Solomon v. Cosby, 173 B.R. 325 (D. Md. 1994)

*326 Alan M. Grochal, Tydings and Rosenberg, Baltimore, MD, for appellant.

Deborah H. Devan, Weinberg & Green, Baltimore, MD, for appellees.

SMALKIN, District Judge.

This is an appeal from the Bankruptcy Court's determination to reject, in part, a Chapter 13 plan proposing a small amount in payment to a number of tort claimants. The Bankruptcy Court rejected the plan principally because it did not take into account certain potential income from the debtor's IRAs. The matter has been fully briefed, and, in light of the briefs and the record, this Court declines to hear oral argument.

The Court, on de novo review, is of the opinion that the Bankruptcy Judge properly applied governing law in refusing to accept the plan as proposed, and that his factual conclusions were not clearly in error. Therefore, this Court will affirm on the basis of the memorandum opinion, as amended, entered by Bankruptcy Judge Derby, upon which this Court might elaborate, but could hardly improve.

The Court has also considered the cross-appeal of the Trustee, but it declines to hold, on appeal, that the Bankruptcy Judge was compelled to conclude that the proposal was filed in bad faith. The question of badfaith filing is a totality-of-the-circumstances one, best left to further consideration in the trial court rather than to be settled in the first instance on appellate review, even though this Court has the power to do so.

For the stated reasons, an appropriate order will be entered, affirming the orders from which this appeal was taken.

For the reasons stated in a Memorandum Opinion entered herewith, it is, by the Court, this 17th day of August, 1994, ORDERED and ADJUDGED:

1. That the orders from which this appeal and cross-appeal were taken BE, and they hereby ARE, AFFIRMED;

2. That costs be assessed against the appellant;

3. That this case BE, and it hereby IS, REMANDED to the Bankruptcy Court for further proceedings; and

4. That the Clerk mail copies hereof and of the foregoing Memorandum Opinion to counsel and to Bankruptcy Judge Derby.