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proceeding pro se. Melnor v. Corey (In re Corey), 394 B.R. 519 (B.A.P. 10th Cir. 2008).
Discretion abused in denial of creditor's motion to amend § 523(a)(2) complaint. Five days before trial, the creditor moved to amend her § 523(a)(2) complaint to add § 523(a)(14) count, alleging the debtor incurred a debt to pay a tax to the United States that would be nondischargeable, with the motion asserting that facts stated in the original complaint related to the § 523(a)(14) count and that the creditor had just received information from IRS to support the amended count. The motion was denied, with trial proceeding and the debtor being granted a judgment on the § 523(a)(2)(A) and (B) counts. The BAP affirmed the § 523(a)(2) rulings but remanded, holding that the bankruptcy court should have granted the motion to amend to add § 523(a)(14): "[T] fact that the proposed amendment was based in part on an allegation made in the original complaint weighs in favor of--not against--granting Peterson leave to amend the complaint. Peterson's entire complaint was premised on a belief that the Debtor had misrepresented to her that he intended to use the loan proceeds to pay a tax debt....Amendments to state a new legal theory based on allegations known to a defendant should be liberally allowed when statutes of limitation are not involved." Peterson v. Weber (In re Weber), 392 B.R. 760, 764-65 (B.A.P. 8th Cir. 2008).
Punitive sanction to force payment of alimony is not domestic support obligation. When the state court imposed on the debtor $50 for each day that his separate alimony obligation was late, that was a sanction and was not a part of the alimony for purpose of § 101(14A)'s definition of "domestic support obligation," and the sanction is not a priority claim under § 507(a)(1) for purposes of the debtor's Chapter 13 plan. Although the case does not involve discharge, its application of § 101(14A) may arise in a discharge scenario. Smith v. Pritchett (In re Smith), ___ B.R. ___, 2008 WL 5396476 (B.A.P. 1st Cir. Dec. 29, 2008).
Services by child's representative are in nature of support but not included within definition of domestic support obligation payee for § 523(a)(5). Denying a motion for default judgment by the state-court appointed representative for the debtor's child, the bankruptcy court analyzed whether the representative was a payee eligible for inclusion
©2009 Hon. William Houston Brown
