Understand the complexities and nuances of the Bankruptcy Code to better advise clients and prepare for court.
By Daniel Gill
A neighbor’s damage claim from years of prolonged barking by a large number of large dogs won’t be wiped out by the owners’ Chapter 13 bankruptcy, an Oregon bankruptcy judge ruled March 6 ( Krein v. Szewc (In re Szewc) , Bankr. D. Or., 14-60928-TMR13, 3/6/17 ).
A couple virtually held prisoner in their own home by their neighbor’s 11 mastiffs’ uncontrolled barking for 14 years were entitled to a judgment that their state court damages claim was for a “willful and malicious injury,” Judge Thomas M. Renn of the U.S. Bankruptcy Court for the District of Oregon wrote in his opinion.
Dale and Debra Krein complained that while they lived next to Karen Szewc and Jon Updegraff, the noise from the dogs was “akin to living next to a shooting range or blasting car horns,” the court said.
It caused physical and emotional personal injury and cost them the quiet enjoyment of their property.
“The barking caused Plaintiffs to become prisoners in their own homes , rendering them mentally and physically debilitated,” the court said.
The court rejected the defense that the dogs were necessary to protect a “certain breed of sheep” they raised.
The Kreins sued Szewc and Updegraff in state court and won a judgment for more than $238,000. Before it was finalized, Szewc and Updegraff filed for Chapter 13 bankruptcy, which allows individuals receiving regular income to obtain debt relief while retaining their property. To do so, the debtor must propose a plan that uses future income to repay all or a portion of the debt over a three- to five-year period.
The Kreins got permission from the bankruptcy court to get their judgment and then filed suit in bankruptcy court to have their claim declared non-dischargeable—that the bankruptcy won’t wipe out the remaining debt after the plan payments are concluded.
The court held that the discharge wouldn’t apply to damages for the dog nuisance between the filing of bankruptcy and the entry of judgment, because post-petition claims aren’t discharged by the bankruptcy.
The court noted that a small portion of the judgment could be discharged, because the Kreins conceded as much at trial. But the remaining debt would survive the bankruptcy and not be discharged, because the debtor knowingly and willfully caused the injury by failing to stop the dog barking nuisance, the court said.
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To contact the editor responsible for this story: Jay Horowitz at JHorowitz@bna.com
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