RETAIL VALUE MUST BE USED FOR REDEMPTION PURPOSES
In re Smith (Bankr. ND IL 2004); See Also Associates Comm. Corporation v. Rash, 117 S. Ct. 1879 (1997)
The Debtor, Ms. Joann Smith (“Smith”), in this Chapter 7 proceeding proposes to redeem her automobile pursuant to 11 U.S.C. § 722 based on its wholesale value. The main issue presented is whether a wholesale value standard or a retail value standard should be used to determine the amount of a secured claim for redemption purposes. For reasons discussed below, the automobile must be valued under 11 U.S.C. § 506(a) according to its retail value discounted to eliminate inapplicable elements of that value, not wholesale value. Moreover, the showing as to purported wholesale value is not proper and must be rejected, though a proper showing could be made under Evidence Rule 803(17). For both reasons, the motion is by separate order denied.
ADVERSARY PROCEEDING REQUIRED TO FIX VALUE OF LIEN
In re Anderson (8th Cir. BAP 2004)
Held, in a Chapter 12 proceeding the court erred in finding Jaks was not a secured creditor, in using the confirmation process to avoid a valid lien absent an objection to said claim, and in using the confirmation process, instead of an adversary proceeding, to determine the extent and validity of the lien.
DEBTOR’S AUTISM JUSTIFIES HARDSHIP DISCHARGE
In re Porrazzo (Bankr. CT 2004)
The presence of a disability is an important factor in assessing whether undue hardship exists warranting discharge of a student loan. A debtor who suffered from autism, and was unable to work due to that disability, was entitled to an undue hardship discharge.