Kansas Department of Labor v. Boyd (In re Boyd)
Kansas Department of Labor v. Boyd (In re Boyd)
Opinion of the Court
MEMORANDUM OPINION AND ORDER DISMISSING ADVERSARY PROCEEDING
Plaintiff Kansas Department of Labor commenced this adversary proceeding under 11 U.S.C. §§ 523(a)(2), (c)(1), and 1328, seeking nondischargeability of its claim against Defendant Deborah Boyd for fraudulently receiving unemployment benefit overpayments.
VENUE AND JURISDICTION
This Court has jurisdiction over the parties and the subject matter pursuant to 28 U.S.C. §§ 157(a) and 1334(a) and (b) and the Amended Standing Order of Reference of the United States District Court for the District of Kansas that exercised authority conferred by 28 U.S.C. § 157(a) to refer to the District’s bankruptcy judges all mat
BACKGROUND
Beginning with the week ending April 26, 2014, and ending with the week ending May 31, 2014, Defendant received unemployment benefits from Plaintiff.
On January 31, 2015, Defendant filed a joint voluntary Chapter 13 petition and Chapter 13 plan (Plan) with Martin Alan Boyd.
On June 18, 2015—three months after Plan confirmation—Plaintiff opened an investigation into whether Defendant fraudulently received unemployment benefit overpayments.
ANALYSIS. ,
Under § 1327(a), “[t]he provisions of a confirmed plan bind the .debtor and each creditor, whether or not the claim of such creditor is provided for by the plan, and whether or not such creditor has objected to, has accepted, or has rejected the plan.”
A debt is subject to discharge under § 1328 if the “claimants have proper notice and an opportunity to object to con-
Defendant is bound by the Plan under § 1327(a), but Plaintiff is not so bound. Plaintiffs complaint to determine dis-chargeability under §§ 523(a)(2), (c)(1), and 1328 is dismissed because its claim is not subject to discharge under § 1328.
However, Plaintiff is still bound by the provisions of the automatic stay because its claim arose pre-petition.
CONCLUSION
IT IS ORDERED that Plaintiffs complaint is dismissed without prejudice because it is not subject to the § 1328 discharge in this case.
IT IS FURTHER ORDERED that Plaintiffs audit and administrative assessment against Defendant are void because they violated the § 362 automatic stay.
IT IS SO ORDERED.
ORDER GRANTING PLAINTIFF’S MOTION TO RECONSIDER
Plaintiff Kansas Department of Labor moves this Court to Reconsider
IT IS THEREFORE ORDERED that Plaintiffs Motion to Reconsider is GRANTED and the Court’s Order Dismissing Plaintiffs Complaint is hereby modified to vacate only the Court’s conclusion that Defendant’s conduct violated the automatic stay. The remainder of the Court’s Order Dismissing Plaintiffs Complaint is final and remains unchanged.
IT IS SO ORDERED.
. Doc. 1. All future statutory references are to the Bankruptcy Code (Code), as amended by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), 11 U.S.C. §§ 101-1532, unless otherwise specifically noted.
. D. Kan. Standing Order No. 13-1, printed in D. Kan. Rules of Practice and Procedure at 168 (March 2016).
. Doc. 1, at 11, Case No. 15-6071.
. Doc. 1 and 2, Case No. 15-20171.
. Doc. 23, Case No. 15-20171.
. Doc. 7, Case No. 15-20171.
. Doc. 1, at 5, ¶ 9, Case No. 15-6071.
. Id. at 12-13.
. Doc. 36, Case No. 15-20171.
. Claim 14-1, Case No. 15-20171.
. Doc. 1, Case No. 15-6071.
. 11 U.S.C. § 1327(a) (emphasis added).
. 11 U.S.C. § 1328.
. Rake v. Wade, 508 U.S. 464, 473-74, 113 S.Ct. 2187, 124 L.Ed.2d 424 (1993).
. Keith M. Lundin & William H. Brown, Chapter 13 Bankruptcy, 4th Edition, § 233.1, at
. 8 Collier on Bankruptcy ¶ 1328.02[3][a], at 1328-13 (Alan N. Resnick & Henry J. Som-mer, eds,, 16th ed, 2016).
. Grady v. A.H. Robins Co. Inc., 839 F,2d 198 (4th Cir, 1988) (holding that a claim may arise before commencement of a bankruptcy case even though payment depends on a future uncertain event); Roach v. Edge (In re Edge), 60 B.R. 690, 701 (Bankr. M.D. Tenn. 1986) ("a claim arises at the time of the negligent act").
. In re Hairopoulos, 118 F.3d 1240, 1244 (8th Cir. 1997) ("a claim cannot be considered to have been provided for by the plan if a creditor does not receive proper notice of the proceedings") (citing In re Ryan, 78 B.R. 175, 183 (Bankr. E.D. Tenn. 1987)); 8 Collier on Bankruptcy, supra note 16, ¶ 1328.02[3][a], at 1328-13-14 (“[C]ourts have held that a creditor that is not scheduled and does not have notice of the chapter 13 case in time to file a claim or to participate in the confirmation process has not been provided for by the plan.”).
. Grady, 839 F.2d 198.
. Soares v. Brockton Credit Union (In re Soares), 107 F.3d 969, 975 (1st Cir. 1997).
. 3 Collier on Bankruptcy, supra note 16, ¶ 362.12, at 362-140.
. Kalb v. Feuerstein, 308 U.S. 433, 438, 60 S.Ct. 343, 84 L.Ed. 370 (1940) ("the action of the ... [c]ourt was not merely erroneous but was beyond its power, void, and subject to collateral attack.”); Ellis v. Consol. Diesel Elec. Corp., 894 F.2d 371, 372 (10th Cir. 1990) ("It is well established that any action taken in violation of the stay is void and without effect.”); Job v. Calder (In re Calder), 907 F.2d 953, 956 (10th Cir. 1990) ("[A]ny action taken in violation of the stay is void and without effect, even where there is no actual notice of the existence of the stay.” (citation omitted)).
. Doc. no. 28.
. Doc. no. 23.
Reference
- Full Case Name
- IN RE: Martin Alan BOYD and Deborah Ann Boyd, Debtors. State of Kansas Department of Labor v. Deborah Ann Boyd
- Cited By
- 2 cases
- Status
- Published