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All Reporters → collier-bankr-cas-2d → Volume 57

Opinions in collier-bankr-cas-2d Volume 57

MEMORANDUM OPINION AND ORDER The Boleman Law Firm (“Boleman Firm”) appeals the Bankruptcy Court’s Order entered on April 27, 2006, denying its request for supplemental fees and costs. The Court heard argument on November 13, 2006, and the matter is now ripe for decision. For the reasons stated below, the Bankruptcy Court’s Order is AFFIRMED in part, REVERSED in part, and REMANDED for ...
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OPINION AND ORDER These two Adversary Proceedings, involving different Debtors, have been consolidated for hearing and decision because they present identical issues and the same Defendant. The Defendant has moved to dismiss and the Debtors have opposed. Although the facts are not exactly “stipulated,” it appears from the submissions that there is no material dispute. For ease of expression, th...
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MEMORANDUM OPINION On October 25, 2006, trial was held on the complaint of LVR Carpet Center, Inc. (“LVR Carpet”) asserting that its claim against Carolyn Ann Coley, the defendant and debtor, should be declared nondis-chargeable under 11 U.S.C. § 523(a)(2)(A), (a)(4), and/or (a)(6). The Court has juris *815 diction over this matter under 28 U.S.C. § 1334(b); this is a core proceeding pursua...
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MEMORANDUM AND ORDER ON APPEAL FROM BANKRUPTCY COURT This is an appeal from an order of the United States Bankruptcy Court confirming that proceeds from the sale of debtor’s home are exempt from appellant’s pre-petition debt. Debtor Maurice F. Cunningham claimed a homestead exemption under Massachusetts law in his home in North Andover, Massachusetts. He then filed for bankruptcy...
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MEMORANDUM The Herzog Company asks the court to terminate the automatic stay on the ground that the debtor, Reginald Gibson, Sr., has commenced a chapter 12 case in bad faith. Three facts allegedly indicate the debtor’s bad faith. First, when this petition was filed the debtor was a debtor in a pending chapter 7 case awaiting entry of a discharge. Second, the debtor is not a family farmer and t...
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MEMORANDUM OF DECISION The above-captioned debtor (the “Debt- or”) filed a motion, seeking an order compelling his former bankruptcy attorney, Jaime Alcabes (“Alcabes”), to disgorge all monies received in connection with his representation of the Debtor in the above-captioned case. Because the material facts presented by the motion were disputed, the Court held an evidentiary hearing on t...
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This matter came before the court on the Trustee’s Motion to compel turnover of funds held by Debtor John A. Hill’s bankruptcy counsel, Shawn P. Ryan (hereinafter “Mr. Ryan”). Both Mr. Ryan and the Trustee, Rodolfo Camacho, appeared pro se. Following an initial hearing on this matter I set a briefing schedule and took the matter under advisement. At my request, the parties thereafter submi...
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MEMORANDUM OPINION REGARDING COMPLAINT OBJECTING TO DISCHARGE OF DEBT Before the Court is the complaint of Anna Lorraine Williford McCrey objecting to the discharge of a debt owed by debtor to her. This Court has jurisdiction of this proceeding pursuant to 28 U.S.C. §§ 1334 and 157. This is a core proceeding. I. Facts McCrey and debtor met at a casino in Lake Charles, Louisiana in April 200...
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DECISION RE PLAN CONFIRMATION Anders and Cynthia Knudsen seek confirmation of their chapter 12 plan. Objections were filed by the United States on behalf of the Internal Revenue Service (hereinafter “IRS”) and by the trustee, *482 Carol F. Dunbar. Hearing on confirmation was held July 12, 2006 in Fort Dodge. Joseph A. Peiffer appeared as attorney for Knudsens. Martin J. McLau...
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*762 ORDER Plaintiffs ask the Court to declare portions of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”) unconstitutional. Defendant, United States of America (“the government”) moves to dismiss for failure to state a claim upon which relief can be granted. Defendant’s motion is denied; the debt relief agency sections of BAPCPA unconstitutionally ...
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MEMORANDUM OPINION WesBanco Bank, Inc. (“WesBanco”), objects to the motion filed by Joyce A. Nice (the “Debtor”) to cramdown the value of its secured claim against a 2005 Chevrolet Surburban from $56,600 to $36,050. 1 Wes-Banco argues that the replacement 2 value of the vehicle is $43,874, based on the N.A.D.A. listing for the vehicle’s particular make and model,...
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MEMORANDUM OF DECISION This adversary proceeding is before the court on the defendant’s motion for approval of a settlement. The defendant, Jay Steinberg, is the Chapter 7 trustee of debtor Resource Technology Corporation (“RTC”). The plaintiff, Ungaretti & Harris, LLP (“U & H”) was counsel to RTC’s former Chapter 11 trustee, Gregg Szilagyi. U & H asserts in its complaint (1) that it provided ser...
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MEMORANDUM OPINION OVERVIEW In a Complaint filed November 8, 2005, Debtor and Plaintiff David L. Seay (“Plaintiff’) challenges the Internal Revenue Service’s (“IRS”) assessment of unpaid individual income taxes and interest for Plaintiffs 1982 tax-year (the “1982 as *617 sessment”). Plaintiff further requests a return of tax refunds in the amount of $6,928 retained b...
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ORDER Debtor-appellant Robert C. Thomas appeals from an order entered by the United States Bankruptcy Court for the Northern District of California, denying Thomas’ Motion for Damages for Violation of the Automatic Stay. Having read and considered the papers submitted, including the record on appeal from the Bankruptcy Court, and being fully informed, the Court AFFIRMS the Bankruptcy...
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MEMORANDUM This is a proceeding brought by the trustee against the defendant to recover alleged setoffs pursuant to the provisions of 11 U.S.C. § 553. Having considered both the evidence produced at trial and the arguments of counsel, the court now makes its findings of fact and conclusions of law pursuant to the provisions of Bankruptcy Rule 7052. I. The debtor, Transcommun...
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ORDER AND OPINION This matter came before the Court for hearing on November 2, 2006 upon the Bankruptcy Administrator’s Motion for Appointment of a Patient Care Ombudsmen filed on October 24, 2006. At the hearing, William Yaeger appeared on behalf of the Debtor, Stephanie Osborne-Rodgers appeared as Attorney for the Chapter 7 Trustee, and Sarah Bruce appeared for the Bankruptcy Administrator. B...
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Memorandum Opinion Before the Court is the Motion of the United States Trustee (“UST”) for Disgorgement of Fees by Debtor’s Counsel (the “Motion”). A hearing was held on October 3, 2006 at which argument was presented. The facts are not disputed and can be gleaned from the docket, pleadings and record in this case. 1 For the reasons that follow, the Motion shall be granted....
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MEMORANDUM DECISION INTRODUCTION MCA Financial Group, Ltd., as Trustee for the Fourthstage Technologies, Inc. Liquidating Trust (“Trustee”), sued Hew *157 lett-Packard (“HP”) to recover payments made by Fourthstage Technologies, Inc. (“Fourthstage” or “Debtor”) to HP in 2001, pursuant to a settlement agreement. The Trustee seeks to set aside the payments as avoidable preferences under 11 ...
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Memorandum Decision on MBNA’s Objection to Confirmation In In re Guzman, 345 B.R. 640 (2006), this Court reviewed the history of the Chapter 13 disposable income requirement and the changes wrought by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) for debtors whose income exceeds the State median. Guzman held that, pursuant to § 1325(b)(3), the above-median deb...
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ORDER This Chapter 13 case involves the provision in § 109(e) of the Bankruptcy Code that states that only an individual may be a debtor under Chapter 13. The case came before the Court on September 7, 2006, on the Chapter 13 Trustee’s motion to dismiss. This case was filed on August 1, 2006, under the name of JAC Family Foundation, and the petition was signed by James Allen Causey as...
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MEMORANDUM OF DECISION In this adversary proceeding, plaintiff Lois I Brady (the “Trustee”), the duly appointed chapter 7 trustee for the above-captioned bankruptcy case, seeks to avoid a pre-petition transfer to defendant Best-worth-Rommel, Inc. (“Bestworth”) pursuant to 11 U.S.C. § 548(a)(2) and to recover the amount of the transfer from Best-worth pursuant to 11 U.S.C. § 550(a) or (b). Trial w...
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MEMORANDUM OPINION AND DECISION This cause comes before the Court upon Plaintiffs’ Motion for Summary Judgment to Determine Dischargeability of Debt pursuant to 11 U.S.C. § 523; and the Response of the Defendant/Debtor, Phil M. Kelley. The Court has now had the opportunity to review the arguments of the Parties, as well as the entire record in this case. Based upon that review, and for the fo...
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MEMORANDUM OF DECISION ON DEBTOR’S MOTION TO AVOID JUDICIAL LIEN AND CREDITOR GREEN VALLEY FARMS, INC. OPPOSITION THERETO This matter came before the Court for a hearing on the Motion of Michael V. Lyons to Avoid Judicial Lien [Docket # 53] and the Opposition of Creditor Green Valley Farms, Inc. thereto [Docket # 60]. For the reasons set forth herein, the Debtor’s Motion to Avoid Judicial Lien ...
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OPINION SUSTAINING CREDITOR’S OBJECTION TO CONFIRMATION OF DEBTORS’ CHAPTER 13 PLAN I. Introduction This opinion involves the interpretation and application of the so called “hanging paragraph” that the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”) added to the end of § 1325(a)(9) of the Bankruptcy Code. The Debtors in this case propose a Chapter 13 plan that pr...
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ORDER DENYING MOTION FOR DEFAULT JUDGMENT AND DISMISSING COMPLAINT This matter is before the Court on Plaintiffs Motion for Default Judgment (“Motion”) and the Supplemental Affidavit submitted by Plaintiff in support of its Motion. The determination of whether to enter judgment by default is left to the *530discretion of the Court. Gomes v. Williams, 420 F.2d 1364, 1366 (10th Cir.1970). Rule 55(b)...
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MEMORANDUM OF DECISION Introduction Plaintiff, R. Sam Hopkins, chapter 7 trustee, commenced this adversary proceeding against Defendant Donald W. Lojek, alleging that he received an avoidable post-bankruptcy transfer of property of the bankruptcy estate under § 549(a).1 Defendant denies the transfer should be avoided, but if it is, in a third-party complaint, Defendant seeks to recover a judgme...
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Memorandum re Violation of Discharge Injunction I. Background and Facts The roots of the current dispute between debtor Glenn Storek and his brothers, Richard and Craig Storek, and their 92-year-old mother, Lorraine Storek, stretch back for decades to 1969, when Glenn purchased a one-half interest in the Storek Building, a three-story building in San Francisco which has been owned by...
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DECISION (Re: Motion to Dismiss for Lack of Credit Counseling) Before the Court are four related matters: (A) a motion to dismiss that was filed by the Chapter 13 Trustee on September 28, 2006 (the “Trustee’s Motion”); (B) a hearing to consider whether the Debtor’s proposed Chapter 13 plan should be confirmed (the “Confirmation hearing”); (C) a motion by CitiMortgage, Inc., the secured credit...
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delivered the opinion of the Court. We are asked to consider whether federal bankruptcy law precludes an unsecured creditor from recovering attorney’s fees authorized by a prepetition contract and incurred in postpetition litigation. The Court of Appeals for the Ninth Circuit held, based on a rule previously adopted by that court, that such fees are categorically prohibited — even where th...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Under consideration by the Court is confirmation of the Chapter 13 Plan, originally filed on October 27, 2005, by Jeffrey L. Williams (“Debtor”) and subsequently amended on March 7, 2006. On March 7, 2006, an objection was filed by the chapter 13 trustee, Mark W. Swimelar, Esq. (“Trustee”) concerning the feasibility of th...
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OPINION Taylor Ayes, William P. Cutshall, Frank A. Ribar, Edward C. Smith, James F. Martin, and William C. Terrio (collectively “Appellants”) filed a class action complaint against the U.S. Department of Veterans Affairs (VA) on behalf of themselves and a putative class of veterans. The complaint alleged that the VA violated 11 U.S.C.A. § 525 (West 2004 & Supp.2006), the anti-d...
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Fibreboard Corp. appeals the district court’s judgment for Celotex. The district court affirmed the bankruptcy court’s determination that Fibreboard could not bring a subrogation claim against Celotex in bankruptcy proceedings under either the Bankruptcy Code or state law. We hold Fibreboard is not entitled to subrogation for its payment of judgments on which both Celotex and Fibreboard were join...
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MEMORANDUM AND ORDER SUSTAINING TRUSTEE’S OBJECTION TO DEBTOR’S PLAN Following oral argument on November 15, 2006, the Court took under advisement the Chapter 13 Trustee’s objection to Debtor’s plan that proposes to be completed in 18 months without making payments to unsecured creditors. The Chapter 13 Trustee, William H. Griffin (hereafter Trustee), appears by Dianna J. Lord. Debtor, The...
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Martin Ramos Delgado, as the debtor in a case under Chapter 13 of the Bankruptcy Code, appeals from an order overruling his objection to a proof of claim filed by the Commonwealth of Puerto Rico and, more specifically, to the Commonwealth’s claim of priority under 11 U.S.C. § 507(a) (8) (A) (i) as to income taxes for calendar year 2001. For the reasons set forth below, we affirm. I. BACKGROUND...
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ORDER REGARDING VALUATION 1 Debtors filed their voluntary Chapter 13 petition and Chapter 13 Plan on April 11, 2006. Among the property listed in their schedules and included in their plan was a 2003 Dodge Durango (“Durango”) and a 2000 Chrysler Sebring (“Sebring”). Both of these vehicles were subject to liens of Tinker Federal Credit Union (“TFCU”). Debtors’ original plan listed TFCU’s c...
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On August 17, 2001, Christine Lazarus and her sister purchased real property in Springfield, Massachusetts — Lazarus’ residence — as joint tenants, taking out a loan secured by a mortgage from Washington Mutual. In a refinancing on June 22, 2004, both sisters executed a promissory note, and a mortgage on the property to secure the note, in favor of Greater Atlantic Mortgage Corporation (“GAMC”)...
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MEMORANDUM OPINION THIS CORE PROCEEDING 1 comes before the Court on the complaint of Louisa R. Miles (“Plaintiff’), the above-named Chapter 7 debtor, seeking a finding of contempt by Zebedee Thomas Clarke (“Defendant”) for allegedly violating the discharge injunction, under 11 U.S.C. § 524(a)(2), by attempting to collect a prepetition debt that was discharged in Plaintiffs Chapter 7 bankruptc...
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MEMORANDUM OPINION This matter came on for hearing on September 5, 6, 11, 14 and 15, 2006 for the confirmation of the amended and supplemental joint Chapter 11 plan of reorganization. For the reasons set forth below, the court finds that the proposed plan of reorganization is not confirmable under 11 U.S.C. § 1129. I. Background Facts A. History of the Debtor Or...
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Appellants, Debbie Rinehart, Jack Blair, and David Mask, among others (hereinafter, referred jointly as “Appellants”), appeal an order of the bankruptcy court of the Western District of Oklahoma, arguing that the bankruptcy court erred when it concluded that Monte J. Sharp (“Sharp”) was a farmer as defined in 11 U.S.C. § 101(20) and therefore exempt from involuntary proceedings. For the followi...
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MEMORANDUM I. INTRODUCTION The matters before the Court are Counts VII and VIII with respect the Complaint filed by Lynne F. Riley, Chapter 7 Trustee of the Estate of Jane A. Tougas, the Debtor. Through these Counts, the Trustee seeks denial of the Debtor’s discharge pursuant to 11 U.S.C. § 727(a)(3) and (a)(6), for the Debtor’s alleged refusal and failure to produce documents pu...
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ORDER This matter came before the Court on the Motion for Sanctions Against General Electric Capital Corporation for Violating § 1141, the Permanent Injunction Under § 524 and Injunctions in the Debtor’s Confirmed Plan of Reorganization (“Motion”) 1 filed by Dynamic Tours & Transportation, Inc., the reorganized Debtor herein (“Debtor”) against General Electric Capital Corpo...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Before this Court is an Objection to Confirmation of Donald L. Green’s (“Debt- or”) Chapter 13 Plan (“Plan”) filed by M & T Bank (“M & T”) on May 31, 2006, Debt- or’s Affidavit in Response to Objection by M & T filed on June 16, 2006, a Supplemental Affirmation to M & T’s Objection filed on July 31, 2006, and Debtor’s Sup...
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MEMORANDUM AND ORDER ON MOTION TO DISMISS The United States trustee (“UST”) has moved to dismiss this case because the *538 debtor did not timely satisfy the prepetition duties required by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”). BACKGROUND On April 9, 2006, the debtor filed a chapter 7 petition. On April 19th, the UST filed the instant motion. Durin...
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MEMORAND UM DECISION DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT TO DISMISS AND GRANTING TRUSTEES MOTION FOR SUMMARY JUDGMENT Before this Court are cross motions for summary judgment on Count I of a Complaint filed by Helen Gredd as Chapter 11 Trustee (the “Trustee”) for Manhattan Investment Fund Ltd. (the “Fund” or “Debt- or”), against Bear, Stearns Securities *513 C...
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MEMORANDUM These chapter 13 and chapter 7 cases are before the court on motions to dismiss pursuant to 11 U.S.C. § 109(h)(1) by the chapter 13 trustee and the United States trustee, respectively. Both cases present the issue of whether 11 U.S.C. § 109(h)(1) requires a debtor to receive a credit counseling briefing at least one day before filing a bankruptcy petition or simply prior to...
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MEMORANDUM OPINION ON OBJECTION TO CONFIRMATION This proceeding relates to the Chapter 13 bankruptcy case filed by Mona Morales (“Debtor”) on August 15, 2006. Wells Fargo Financial Acceptance, its successors and/or assigns (“Wells Fargo Financial”) is a creditor of the Debtor with respect to a certain indebtedness secured by a lien on a 2002 Saab 954 motor vehicle (the “Vehicle”). The Debtor ...
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474 F.3d 143 In re James Owen MURPHY, Jr., Debtor.James Owen Murphy, JR., d/b/a Murphy's Golf Shop, Plaintiff-Appellant,v.Gerald M. O'Donnell, Trustee, Defendant-Appellee.In re Stanley Joseph Goralski; Doris Ann Goralski, Debtors.Gerald M. O'Donnell, Chapter 13 Trustee, Trustee-Appellant,v.Stanley Joseph Goralski; Doris Ann Goralski, Debtors-Appellees. No. 05-1637. No. 05-1844. Uni...
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MEMORANDUM OF DECISION The above-captioned debtor (the “Debt- or”) seeks confirmation of his amended chapter 13 plan, filed on August 1, 2006 (the “Plan”). The chapter 13 trustee (the “Trustee”) and an unsecured creditor (“American Express”) object to confirmation. 1 Section 1325(b)(1)(B) provides that, when the chapter 13 trustee or an unsecured creditor objects to confirmation, the plan may...
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MEMORANDUM OF DECISION On September 27, 2006, chapter 11 debtor Taylor Quality Concrete, Inc. (“Debtor”) filed an Application to Employ Pike & Miller P.A. as its attorneys (“Application”) in this bankruptcy case. Docket No. 70. In the Application, Debtor requests that the employment be approved nunc pro tunc to February 8, 2006, the date the bankruptcy petition was filed. There is no dispute that...
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OPINION 1 This is an adversary proceeding brought by Simon & Schuster, Inc. (“S & S”) to reclaim goods, pursuant to section 546(c) of the Bankruptcy Code. Before the Court is the Emergency Application of Simon & Schuster for Temporary Restraining Order Pursuant to Bankruptcy Rule 7065 [Docket No. 8] (the “TRO Motion”), which is opposed by the Debtors and the ...
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MEMORANDUM OPINION This matter came before the court on the motion of Jonathan Jerome Bardell (the “Debtor”) requesting that Branch Banking & Trust, Riverside Trustee Company, and Draper & Goldberg, PLLC (the “Creditor”) be held in contempt of court for rejecting the Debtor’s post-petition mortgage payments. The Creditor filed a response to the motion asserting that refusal to accept paym...
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MEMORANDUM DECISION ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT The plaintiff, Dustin Elbing, filed an adversary proceeding under 11 U.S.C. § 523(a)(6) seeking a determination that potential obligations owed him by the debt- or, as yet unliquidated, are excepted from his discharge. The plaintiff moved for summary judgment on the grounds various statements, pleadings, and state court orders...
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MEMORANDUM DECISION Justin Lawson (Lawson) and Douglas and Cheryl Boynton (the Boyntons) (collectively the Debtors) filed petitions under chapter 13 of the Bankruptcy Code as amended by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), 1 and confirmation of the Debtors’ proposed plans is pending before the Court. The Debtors are above-median debtors according to th...
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MEMORANDUM OF DECISION Granting Debtor’s Application For A Fee Waiver And Overruling Trustee’s Objection Once again this Court is called upon to define the parameters of the new fee waiver provision, 28 U.S.C. § 1930(f)(1), promulgated under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”), Pub.L. 109-8, 119 Stat. 23 (2005). Applying the facts of this case to...
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MEMORANDUM OPINION AND ORDER DISCHARGING ORDER TO SHOW CAUSE REGARDING PATIENT CARE OMBUDSMAN Under new section 333 of the Bankruptcy Code, 1 if a debtor is a health case business, the Court is required to appoint an ombudsman to monitor the quality of patient care and to represent the interests of the patients of the health care business unless the Court finds that the appointment of an om...
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The question in this bankruptcy appeal is whether a Chapter 7 trustee may bring claims that a Chapter 11 debtor-in-possession could not. We conclude that the trustee is barred in the circumstances of this case from bringing a derivative claim on behalf of a creditors’ committee after conversion to Chapter 7. Accordingly, we AFFIRM the decision of the district court. *1129 I. ...
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The question in this appeal is how the rule of single satisfaction for claims brought by a bankruptcy estate should be applied to 11 fraudulent transfers that were at least partially satisfied in a settlement of a lump sum of $3.9 million involving 377 transfers and several other parties. See 11 U.S.C. § 550(d). Patricia Dzikowski, as Chapter 7 Trustee for the estate of Prudential of...
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ORDER THIS MATTER is before the Court on Stipulation for Assumption of the Lease Agreement between Debtor and Cab East, *592 LLC (“Cab East” or “Lessor”) regarding a lease agreement for a 2004 Ford F-150 pickup truck. Counsel for the Cab East and the debtor’s attorney stipulated to the entry of an order approving the assumption of the lease agreement by the debtor under the terms of a Lease A...
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MEMORANDUM OPINION BACKGROUND The Trustee in this chapter 7 case filed an objection to exemptions claimed by the Debtor in his property to the extent of the amount of a domestic support obligation (“DSO”) held by Debtor’s ex-wife. The Trustee argues that, even though the Debtor may claim his property as exempt, *43 the Bankruptcy Code provides at 11 U.S.C. § 522(c)(1...
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MEMORANDUM DECISION ON TRUSTEE’S OBJECTION TO CONFIRMATION Darrin J. Schultz commenced this case with the filing of a chapter 13 petition on August 29, 2006. The Standing Chapter 13 Trustee filed a timely objection to confirmation of the debtor’s plan. A hearing on that objection was held, and the court took the matter under advisement. This is a core proceeding as defined in 28 U.S.C. § 157(...
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MEMORANDUM OPINION On July 27, 2006, the Bankruptcy Court of the Northern District of Alabama (the “Bankruptcy Court”), Hon. James J. Robinson, ordered the dismissal of an adversary proceeding brought by appellant, Phillip A. Talley (“Talley”), against appellees, the Alabama Department of Public Safety (the “DPS”) and W.M. Coppage (collectively, the “appellees”). Talley now brings a timely ap...
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ORDER Before the Court in the above styled and numbered cause of action is Plaintiff United States’ Emergency Motion For Order Declaring 11 U.S.C. § 362 Does Not Apply To This Case and Memorandum Of Law In Support filed February 2, 2007 (Clerk’s Document No. 139). After reviewing the motion, the file, and the applicable law, the Court is of the opinion that the motion should be granted because ...
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MEMORANDUM of DECISION In this Chapter 13 bankruptcy proceeding, the Chapter 13 Trustee, Robert G. Drummond, filed an Objection to Property Claimed as Exempt and a Motion for Certification of Claim of Unconstitutionality on March 27, 2006, challenging the constitutionality of 11 U.S.C. § 522(b)(3). The Trustee’s motion for certification of claim of unconstitutionally was granted by Or...
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MEMORANDUM OPINION AND ORDER INTRODUCTION These three bankruptcy adversary proceedings arise out of payments made by Daniel Miller to Defendants Hans Reinhardt (Civ. No. 06-2289), Howard Steinmetz (Civ. No. 06-2305), and Flywheel Grain, LLP and Bill Hess (Civ. No. 06-3224). Plaintiff David Velde, the Trustee of Miller’s bankruptcy estate, seeks to recover the payments as preferential...
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MEMORANDUM OPINION FINDING OF FACTS AND CONCLUSIONS OF LAW REGARDING DEBTORS’ MOTIONS TO EXCUSE THE FILING OFFORMB22A In case # 06-37157, docket # 7, and in case # 0635550, docket # 38, debtors seek relief from the requirement to file Bankruptcy Official Form B22A for chapter 7 debtors whose debts are not primarily consumer debts. Judges Isgur and Steen scheduled a joint hearing because couns...
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MEMORANDUM DECISION DENYING UNITED STATES TRUSTEE’S MOTION TO DISMISS CASE FOR CAUSE PURSUANT TO 11 U.S.C. §§ 707(a), 109(h)(1) and 521(b) In the matter In re Elmendorf, 345 B.R. *90 486 (Bankr.S.D.N.Y.2006) 1 this Court determined, under 11 United States Code (“U.S.C.”) Sections 109, 301 and 362, it had the authority to strike rather than dismiss petitions of would-be debtors who had n...
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MEMORANDUM OPINION This is the story of two motor vehicles and the debtors who no longer desire them. The parties to these disputes have asked the Court to determine whether debtors or creditors must suffer at the gallows of the “hanging paragraph” found in § 1325 of the United States Bankruptcy Code, as modified by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAP...
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JUDGMENT Based upon the Findings of Fact and Conclusions of Law made in the attached Order of the Court, Debtor’s chapter 13 plan shall be confirmed by separate order to be submitted by the Trustee pursuant to the terms and conditions set forth in the attached Order. ORDER This matter comes before the Court on the chapter 13 trustee’s (“Trustee”) objection to Rebekah Eugene Rayb...
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MEMORANDUM OPINION ON PLAZA CENTRO’S MOTION TO DISMISS On October 25, 2006, Defendant Plaza Centro, LLC, filed a motion to dismiss this adversary proceeding [docket no. 6]. For the reasons set forth below, the motion is granted. Background The property at issue in this proceeding is located at 525 Crosstimbers Street, Houston, Harris County, Texas (the Property). Prior to November 16, 2005, Moh...
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MEMORANDUM OF DECISION Pending in this Chapter 13 bankruptcy is confirmation of Debtor’s Chapter 13 Plan and the Trustee’s objections thereto based upon the “disposable income” test of 11 U.S.C. § 1325(b)(1)(B) and, by reference, 11 U.S.C. § 707(b)(2). The Trustee objects that Debtor’s food, clothing and personal care expenses exceed the local standards issued by the United States Int...
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John Milwitt (“Milwitt”) appeals his conviction of five counts of bankruptcy fraud and his sentence of twenty-four months imprisonment and three years supervised release. Milwitt challenges his conviction on several bases, including sufficiency of the evidence. Because the evidence presented was insufficient to sustain the verdict, we reverse the conviction. I Sometime prior to March 1997, Milwitt...
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OPINION May a Chapter 13 plan provide for the avoidance of a wholly undersecured lien on a debtor’s principal residence, and does the confirmation of the plan have res judi-cata effect if a creditor fails to object to the plan? This Court concludes that a lien on a debtor’s principal residence may be avoided if there is zero equity in the property to secure the claim, and that a confirmed...
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RULING ON MOTIONS FOR SUMMARY JUDGMENT AND RECONSIDERATION Plaintiff brings this action challenging the constitutionality of one provision of the Bankruptcy Code enacted in the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”). Specifically, Plaintiff challenges 11 U.S.C. § 526(a)(4) as violative of the First Amendment. On July 31, 2006, Defendant moved, pursu...
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DECISION AND ORDER ON MOTION FOR APPROVAL OF SETTLEMENT AND PURCHASE AGREEMENT WITH D & 0 INSURERS In this contested matter 1 in a case under chapter 11 of the Bankruptcy Code, the Debtors move, pursuant to Bankruptcy Code section 363 and Bankruptcy Rule 9019, for approval of a settlement (the “Settlement”) with the Insurers under their D & 0 Policies 2 un...
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OPINION The debtors have filed a Chapter 13 plan that proposes to make payments for 36 months, primarily for the benefit of their secured creditors, with a de minimis dividend to unsecured creditors. An unsecured creditor and the Chapter 13 Standing trustee have each objected to the plan’s confirmation. They contend: (1) that the debtors’ future projected disposable income should be deter...
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MEMORANDUM ON MOTION OF CREDITORS FOR PAYMENT OF ADMINISTRATIVE EXPENSE This contested matter is before the court upon the Motion of Creditors Mims Gordon and Alta Marie Williams for Payment of Administrative Expense (Motion for Administrative Expense) filed by Mims Gordon and Alta Marie Williams on November 16, 2006. Ms. Gordon and Ms. Williams seek payment, pursuant to 11 U.S.C.A. §§ 105(a) a...
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MEMORANDUM OPINION I. INTRODUCTION Phoebe Morse, United States Trustee (the “Trustee”), filed a motion to dismiss this bankruptcy case pursuant to § 707(b)(2) or § 707(b)(3) of the Bankruptcy Code (Doc. No. 17) (the “Motion”). 1 Mark and Angela Hartwick (the “Debtors”) filed an objection to the Motion (Doc. No. 22). The Court held a hearing on the Motion on December 13...
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ORDER RE: COMPLAINT TO AVOID TRANSFER AND FOR TURNOVER This matter came before the undersigned on January 24, 2007. Trustee Wesley B. Huisinga was represented by attorney Abbe M. Stensland. Defendant Greater Quad City Auto Auction was represented by attorney Jeffrey C. McDaniel. After the presentation of evidence and argument, the Court took the matter under advisement. This is a core proceedin...
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MEMORANDUM OF DECISION AND ORDER SUSTAINING OBJECTION TO CLAIM NO. 2, AND OVERRULING IN PART AND SUSTAINING IN PART OBJECTIONS TO CLAIM NOS. 1, 5, 6 AND 7 On December 20, 2006, Debtors’ filed their Objections to Certain Claims Filed by General Unsecured Creditors (“Objection”). A preliminary hearing was held on the Objection on January 17, 2007 at 10:00 a.m. A continued hearing was held o...
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MEMORANDUM OPINION Pending before the Court are two appeals, one filed by the Plan Committee (the “Plan Committee”) of Northwestern Corporation (“Northwestern” or the “Reorganized Debtor”) and one filed by an ad hoc group of creditors (the “Ad Hoc Committee”) holding undisputed Class 7 Claims against the Reorganized Debtor. Both the Plan Committee and the Ad Hoc Committee (collectivel...
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In the debtors’ Chapter 13 case, Capital One Auto Finance (“Capital One”) is the holder of a claim in the amount of $20,279.80, secured by a purchase money security interest in a 2003 Chevrolet pickup truck. The truck was purchased and the debt was incurred within 910 days prior to the filing of the bankruptcy petition. The debtors’ Plan proposes to surrender the truck as full payment of the en...
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ORDER REGARDING OBJECTION TO CONFIRMATION The matter before the court is the objection filed by Wells Fargo Financial Acceptance (“Wells Fargo”) to confirmation of the plan proposed by the chapter 13 debtors, Telephius Letoinne Price and Shawa-na Denise Price. The issue before the court is whether the unnumbered paragraph immediately following 11 U.S.C. § 1325(a)(9) (sometimes referred to as th...
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*46 MEMORANDUM OPINION AND ORDER (1) OVERRULING OBJECTION TO EXEMPTION; AND (2) DENYING TRUSTEE’S REQUEST FOR AUTHORITY TO SELL HOMESTEAD TO PAY DOMESTIC SUPPORT OBLIGATION In the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCA”), Congress added several provisions benefitting creditors holding claims for debts in the nature of alimony, maintenance and ...
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MEMORANDUM OF DECISION GMAC, LLC filed a motion for payment of administrative expenses (“Motion”) [Doc. # 56] to which Debtor objected [Doc. # 57]. GMAC contends that Debtor assumed a motor vehicle lease through his confirmed chapter 13 plan, and that the post-petition and post-confirmation breach of that lease should result in payment of an administrative expense claim of $12,477.19 arising ...
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MEMORANDUM OPINION This matter comes before the Court on the objection of AmeriCredit Financial Services, Inc. (the “Creditor”) to confirmation of the amended Chapter 13 plan filed by Linda J. Blanco (the “Debtor”) because the Debtor proposes to surrender its collateral in full satisfaction of the Creditor’s claim. For the reasons set forth herein, the Court sustains the Creditor’s ob...
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OPINION This matter comes before the Court upon the request of Alan D. Carlton and Diane S. Carlton (“Debtors”) for confirmation of their First Amended Chapter 13 Plan (“Amended Plan”) and an Objection to Confirmation filed by the Chapter 13 Trustee. The Trustee asserts that the Debtors are not paying into the Amended Plan all of their projected disposable income for the applicable commit...
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MEMORANDUM The limited issue before the Court is how “projected disposable income” for purposes of confirming a chapter 13 plan is to be calculated for above-median income debtors under the provisions enacted by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPC-PA”). At the final hearing on confirmation, the Court requested that the parties submit briefs on the issue ...
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MEMORANDUM OPINION This matter came for hearing on February 9, 2007, upon the Objection to Confirmation of the Chapter 13 plan of the Debtors, Robert Bruce Ellegood and Judith Rash Ellegood (“Debtors”), filed by HSBC Auto Finance fik.a. Household Automotive Finance Corporation (“HSBC”). The Court took the matter under advisement. This Court has jurisdiction over these proceedings pursuant...
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MEMORANDUM OPINION The Court considers whether to dismiss Emanuel Jarrell’s chapter 7 case because he failed to obtain pre-filing credit counseling, or, alternatively, because his filing allegedly constitutes an abuse of the Bankruptcy Code under section 707(b) of the Bankruptcy Code. Dismissal under section 707(b) was raised by the motion of Huntington National Bank. Hearing was held on Janu...
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MEMORANDUM OF DECISION ON REMAND FROM UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS This matter comes before the Court on remand from the United States District Court for the District of Massachusetts (“District Court”) following an appeal of this Court’s decision of June 30, 2006 by the Defendant Ameriquest Mortgage Company (“Ameriquest”). The District Court remanded the...
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MEMORANDUM OPINION This matter comes before the court on the adversary complaints filed by Green Bay Packaging, Inc. against Jeffrey F. Os-carson (“Jeff’) and Oscar F. Oscarson (“Fred”). Green Bay seeks a finding that Jeff cannot discharge a debt owed to Green Bay pursuant to 11 U.S.C. § 523(a)(2)(B), and that Jeffs discharge should be denied pursuant to 11 U.S.C. § 727(a)(4). Green Bay a...
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Debtor James Bruce Preece appeals from the Bankruptcy Court’s 1 Judgments that his debts to Ken Schoenfelder, Blue Skies, Inc., and Central Boiler, Inc. are nondischargeable under 11 U.S.C. § 523(a)(2)(A). For the reasons that follow, we affirm. FACTUAL BACKGROUND Introduction Debtor Bruce Preece was the sole shareholder, director, and CEO of Helicopter Flight, Inc. (“HFI”), which had s...
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MEMORANDUM OPINION AND ORDER This matter affords the court its first opportunity to address the issue of how an above-median income Chapter 13 debtor’s projected disposable income is to be determined. The Debtors here have submitted a plan that proposes to pay $290.00 per month to unsecured creditors. The Trustee, in her Report and Recommendation as to Confirmation, has not recommended confir...
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DECISION & ORDER BACKGROUND On June 21, 2006, Chrystal Rodwell (the “Debtor”) filed a petition initiating a Chapter 13 case, and George M. Reiber, Esq. (the “Trustee”) was appointed as her Chapter 13 Trustee. The Debtor filed an amended Chapter 13 Plan (the “Amended Plan”) which provided, pursuant to that portion of Section 1325(a)(9) that has become known as the “Hanging Pa...
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MEMORANDUM DECISION This Adversary Proceeding is before the Court on motions for summary judgment filed by Defendant Leeza Cherniak (Doc. 35), and Defendant J. Martin & Associates, Inc. (Doc. 40). The motions are fully briefed. (Docs.36, 39, 40, 42, 46, 47). For the reasons set forth below, both motions *234 are GRANTED and the Trustee’s Complaint is DISMISSED WITH PREJUD...
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488 F.3d 1237 In re Jason Derek TROFF, Debtor,Jason Derek Troff, Plaintiff-Appellant,v.State of Utah, Richard Ellis, in his official capacity as Executive Director of the Utah Department of Administrative Services; and David Johnson III, in his official capacity as Interim Director of the Office of State Debt Collection, Defendants-Appellees. No. 05-4244. United States Court of Appeals...
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MEMORANDUM OPINION AND ORDER This matter comes before the court on the timely motion of Donald Vollmer (the “Debtor”) for reconsideration of the Court’s ruling granting him a temporary waiver of the credit counseling requirement of the Bankruptcy Code. 1 *812 The Debtor filed pro se a voluntary petition for relief under chapter 7 of the Bankruptcy Code on January 30, 2007. The Debtor ...
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MEMORANDUM DECISION AND ORDER DETERMINING THAT FRAUDULENT TRANSFER CLAIM BEING PROSECUTED BY CREDITOR FRANKLIN DAY IN NEW YORK STATE COURT IS PROPERTY OF THE BANKRUPTCY ESTATE THIS MATTER came before the Court on January 18, 2007 at 2:00 p.m. on a status conference regarding the Motion of Chapter 7 Trustee Joel L. Tabas (the “Trustee”) to Approve Settlement Stipulation and Mutual Gene...
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MEMORANDUM DECISION REGARDING TRUSTEE’S MOTION TO DISMISS BASED ON 11 U.S.C. § 109(h) INELIGIBILITY Under 11 U.S.C. § 109(h), a provision added to the Bankruptcy Code (11 U.S.C.) by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPC-PA”), Pub.L. No. 109-8, 119 Stat. 23 (2005), an individual debtor, with exceptions of no relevance here, must obtain a credit coun...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW IN SUPPORT OF ORDER GRANTING MOTION FOR AN EXTENSION OF TIME TO COMPLETE PRE-BANKRUPTCY CREDIT COUNSELING This matter presents the following issues: 1. First, whether Bankruptcy Code Section 109(h)(3)’s provisions describing (a) the requirement that an individual receive prepetition credit counseling in order to be eligible to file a bankruptcy case, ...
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MEMORANDUM OPINION On June 17, 2006, Virgil B. LaRosa died. His Chapter 11 bankruptcy case is continuing to be jointly administered with that of his spouse, Joan LaRosa. Judy L. Shanholtz and the law firm of McNeer, Highland, McMunn and Varner, L.C. (“MHMV”), counsel for the Chapter 11 debtors-in-possession Virgil and Joan La-Rosa (the “Debtors”), filed an application with the court t...
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ORDER After notice and hearing, and for the reasons set forth in the accompanying Opinion, the Motion of the United States *409 Trustee to dismiss the chapter 7 bankruptcy case of Melvin G. Mundy is DENIED. OPINION Procedural and Factual History Before me is the motion of the United States Trustee (“UST”) to dismiss the bankruptcy petition of Melvin...
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ORDER DETERMINING THE NATIONAL LABOR RELATIONS BOARD IN VIOLATION OF 11 U.S.C. § 362 FOR THE REASONS SET FORTH BELOW, this Court finds that the Nation *834 al Labor Relations Board (“NLRB”) violated 11 U.S.C. § 362. The following constitutes the Court’s findings of fact and conclusions of law as required by FRBP 7052. FINDINGS OF FACT On or about October 24,...
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MEMORANDUM OPINION This matter is before the Court on the Defendant’s Motion for Summary Judgment in the action of Chapter 11 Trustee, S. Gregory Hays (“Trustee”), against Morgan Stanley DW, Inc. (“MSDW”) to avoid and recover, as fraudulent transfers, certain payments made by Stewart Finance *911 Company (“Debtor” or “SFC”) to MSDW. The payments were to be applied to marg...
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MEMORANDUM-OPINION This matter came before the Court on the Motion to Disallow, In Part, Claim of *726 Anthony G. Steier of Trustee, J. Baxter Schilling (“Trustee”). The Court considered the written submissions of the Trustee, creditor Anthony Steier (“Steier”), creditor National City Bank (“NCB”) and the comments of counsel at the hearing held on the matter. For the foll...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court upon the Motion for Relief From Stay filed by Capi-talSource. After hearings held on December 18, 2006 and January 12, 2007, the Court makes the following Findings of Fact and Conclusions of Law. FINDINGS OF FACT 1. Debtor was a motor fuel distributor headquartered in DeLand, Florida. On April 26, 2006, Debtor, as bor...
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MEMORANDUM DECISION GRANTING MOTIONS TO CONVERT CASE TO CHAPTER 11 AND APPOINT TRUSTEE The current motions before the Court represent the latest round in a sixteen-year old dispute between the Euro-American Lodging Corporation (“EALC” or the “Debtor”) and its mortgagee, CDR Créances S.A. (“CDR”). After CDR filed *423 an involuntary chapter 7 petition and the Court ordered rel...
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*172 MEMORANDUM DECISION DENYING DEBTOR’S MOTION TO CONVERT The matter before the Court is the Debtor’s Motion to Convert to chapter 11 of the Bankruptcy Code. The Debtor is one of five entities which were substantively consolidated in a separate chapter 11 case. Although the chapter 11 case is still pending, the Debtor commenced this chapter 7 case alone, and the Debtor now seeks to convert ...
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MEMORANDUM OPINION AND ORDER Diana Holland appeals from a final order of the bankruptcy court upholding the trustee’s objection to an exemption she claimed for real property in Florida. For the reasons set forth below, the bankruptcy court’s order is reversed. Background On October 15, 2005, Holland filed a petition for bankruptcy pursuant to Chapter 7 of the bankruptcy ...
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483 F.3d 13 In re Vito Anthony LAFATA, Debtor.Eastern Savings Bank, FSB, Appellant,v.Vito Anthony Lafata, Appellee.In re Vito Anthony Lafata, Debtor.Eastern Savings Bank, FSB, Appellant,v.Vito Anthony Lafata; Denise M. Pappalardo, Trustee, Appellees. No. 05-2510. No. 06-9009. United States Court of Appeals, First Circuit. Heard December 4, 2006. Decided April 3, 2007. ...
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483 F.3d 160 In re NORTHWEST AIRLINES CORPORATION, Debtor,Northwest Airlines Corporation, and all other plaintiffs, Plaintiff-Appelleev.Association of Flight Attendants-CWA, AFL-CIO, and all other defendants, Defendant-Appellant,Air Line Pilots Association, International ("ALPA"), Intervenor-Appellant. Docket No. 06-4371-cv(L). Docket No. 06-4468-cv(CON). United States Court of App...
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MEMORANDUM OPINION Pending before the Court is an appeal by Appellant, Law Debenture Trust Company of New York, as Indenture Trustee, from the July 5, 2005 Order of the United States Bankruptcy Court for the District of Delaware, granting in part and denying in part Appellant’s Request For Payment Of Administrative Expenses Pursuant To 11 U.S.C. § 503 (the “Fee Order”). For the reason...
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On this appeal, state family law intersects with the federal bankruptcy statute. On May 14, 2003, Donna Skorich (“Sko-rich”) filed a petition for divorce from J. Gregory Skorich (“the debtor”) with the Portsmouth, New Hampshire, Family Court. Pursuant to N.H.Rev.Stat. Ann. § 458:16-b (2000), the Family Court issued an order restraining each party from disposing of any property belonging to eith...
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Memorandum Opinion Before the Court is the Motion for Entry of Interim and Final Orders (i) Authorizing Debtor to Obtain Secured Post-Petition Financing and (ii) Authorizing Use of Cash Collateral (the “Financing Motion”) and the Objection thereto by Synthetic Oils & Lubricants of Texas, Inc. d/b/a Soltex (“Soltex”) and M & B Asset Management, Ltd. (“M & B”) (together “Obje...
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MEMORANDUM OPINION AND ORDER In this Chapter 13 case, Debtors proposed a Chapter 13 plan providing different treatment of unsecured creditors. Sallie Mae Guarantee Services, Inc. and Wachovia Education Finance are the holders of Debtors’ educational loans (collectively, the “Student Loan Creditors”). The amended plan proposes to make regular monthly payments directly to the Student Loan Credito...
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MEMORANDUM DECISION ON DEBTORS’ OBJECTION TO TRUSTEE’S MOTION TO DISMISS The debtors filed a petition under chapter 13 on February 10, 2003, and their plan was confirmed on October 30, 2003. On January 3, 2007, the trustee filed a motion to dismiss the case, claiming the debtors failed to provide 2005 income tax returns and one-half of the refunds, if any, and the plan was not feasible to...
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*502 OPINION 1 BACKGROUND On October 16, 2003, American Classic Voyages Company (“AMCV”) and its affiliates, 2 by and through Paul Gunther, the Plan Administrator (the “Plaintiffs”), filed a complaint against defendants JP Morgan Chase Bank (“Chase”), National City Bank of Michigan/Illinois (“NCB”), and Hibernia National Bank (“Hibernia”)(collectively,...
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MEMORANDUM DECISION REGARDING RECLAMATION CLAIMS UNDER SECTION 516(C) OF THE BAPCPA Before the Court is the motion of the Dana Corporation (“Dana”) and 40 of its domestic direct and indirect subsidiaries (together with Dana, the “Debtors”), seeking a value determination of zero for certain of the reclamation claims filed in these cases. Twenty-four objections to the motion were filed....
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DECISION ON OBJECTION TO CLAIM This matter is before the court in connection with the trustee’s objection to a proof of claim filed by Janie Fink. The trustee argues that Ms. Fink’s claim was filed after the deadline for doing so had passed and so should be paid only after all timely claims have been paid in full. See, 11 U.S.C. §§ 502(b)(9), 726(a)(3). Ms. Fink argues that...
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MEMORANDUM OPINION Benjamin Kiritu Gakinya (“Debtor”) filed a complaint alleging that Defendants violated the discharge injunction by attempting to collect a debt owed to Columbia College by Debtor that was discharged by the discharge order entered in Debtor’s bankruptcy case. Defendants disagree and assert that the debt owed by Debtor was a student loan that was excepted from dischar...
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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT The issue before the Court is whether a debt arising from a judgment ordering the debtor to pay fees owed to his former spouse’s attorney may be excepted from discharge under § 523(a)(5) of the Bankruptcy Code if the former spouse is no longer liable to her attorneys for payment of these fees. For the reason...
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484 F.3d 946 In re GLOBE BUILDING MATERIALS, INC., Debtor.Gordon E. Gouveia, Chapter 7 Trustee of Globe Building Materials, Inc., Plaintiff-Appellee,v.The RDI Group d/b/a Reichel & Drews, Inc., Defendant-Appellant. No. 05-4749. United States Court of Appeals, Seventh Circuit. Argued September 19, 2006. Decided May 4, 2007. William J. Barrette (argued), Barack, Fe...
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*586 MEMORANDUM OPINION This matter came before the Court on Michael L. Jones’ (“Debtor”) Complaint to Recover Property of the Estate, filed against Wells Fargo Home Mortgage, Inc. (“Wells Fargo”). Defendant Wells Fargo filed a timely Answer, and on January 5, 2007, the Court conducted a trial on the merits. Entering appearances at the trial were: Robin R. DeLeo Alan Ro...
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The debtor, Karen Kibbe (the “Debtor”), appeals from the bankruptcy court’s order denying confirmation of her Chapter 13 plan. The issue on appeal is whether the bankruptcy court properly determined how to calculate a below-median income debt- or’s “projected disposable income,” as that term is employed in 1325(b)(1)(B) of the Bankruptcy Code. 1 The resolution of this question turns ...
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Decision Granting Motion for Summary Judgment BEFORE THE COURT is Defendant Washington Mutual’s motion for summary judgment [Doc. # 16] (“Motion”), Plaintiffs reply thereto [Doc #26] (“Reply”), and Defendant’s response [Doc. # 28]. *582 The question before the Court is whether the bare fact that the post-bankruptcy debtor’s credit reports contain information showing that a de...
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Memorandum Opinion Before the Court are the (1) Motion of Commerce Bank N.A. (“Commerce”) for Relief from the Automatic Stays Pursuant to 11 U.S.C. § 362 and 11 U.S.C. § 1301 to Allow Repossession and Sale of Motor Ve-hide and, in the Alternative, For Adequate Protection Pursuant to 11 U.S.C. § 1326(a)(1)(C) (the “Stay Motion”) and (2) that part of the Motion for Equitable Relief to R...
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MEMORANDUM OPINION ON MOTION TO DISMISS OR CONVERT CHAPTER 13 CASE Section 109(e) of the Bankruptcy Code provides that only a debtor who “owes, on the date of the filing of the [bankruptcy] petition, noncontingent, liquidated, unsecured debts of less than $307,675” is eligible for Chapter 13 relief. 11 U.S.C. § 109(e). 1 On October 14, 2005 (“Petition Date”), Bradley T. Smi...
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MEMORANDUM OF DECISION Introduction Darwin Jensen (“Plaintiff’) filed a Complaint to Determine Dischargeability of Debt. Docket No. 1. In it, he alleged that chapter 7 debtor Rebecca Nuttall White (“Defendant”) willfully and maliciously gelded a stallion owned by Plaintiff, and that the damages he suffered as a result, constitute a claim excepted from discharge in Defendant’s ban...
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OPINION Appellant, The Bank of America, N.A. (the “Bank” or the “Appellant”) has appealed the March 31, 2006 Opinion of the Bankruptcy Court (the “Opinion”) granting damages to appellee, Syrria Adomah (“Adomah” or the “Appellee”) arising out of a violation of § 362 of the Bankruptcy Code, 11 U.S.C. Adomah has cross-appealed the denial in the Opinion of punitive damages. For the reason...
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MEMORANDUM OPINION AND ORDER DENYING CONFIRMATION Confirmation of Debtor’s Chapter 13 plan is pending before the Court. 1 The Chapter 13 Trustee objects because Debt- or’s proposed plan runs less than five years and pays nothing to unsecured creditors. 2 The Court, having reviewed the relevant pleadings and having considered counsel’s argument, denies confirmation because the plan does not ...
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MEMORANDUM This case came before the court on the Chapter 13 Plan filed by the debtor on March 2, 2007, as orally amended on April 12, 2007, and objections to confirmation thereof filed by Donna Dodson and the chapter 13 trustee on April 3 and 4, 2007, respectively. For the reasons set forth below, the court will sustain the objections, deny confirmation of the plan, and dismiss this case. In 19...
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DECISION AND ORDER This cause comes before the Court upon the Plaintiff/Trustee’s Motion for Summary Judgment and the Defendant’s Response. The Trustee’s Motion is brought on his Complaint to avoid a preferential transfer based on 11 U.S.C. § 547(b). This Court has reviewed the arguments of counsel, exhibits, and the entire record of the case. Based upon that review, and for the following rea...
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DECISION ON APPLICATION TO RETAIN COUNSEL TO THE TRUSTEE In this case under chapter 7 of the Bankruptcy Code, the newly elected chapter 7 trustee for the Estate, Matthew C. Harrison (the “Trustee”), has applied to employ attorney Leo Fox, Esq. under section 327(a) of the Code. The United States Trustee (“UST”) opposes the application. Insofar as the Court can determine, the UST does not contend t...
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MEMORANDUM OPINION AND ORDER SUSTAINING FIRST CITIZEN BANK’S OBJECTION TO CONFIRMATION This matter is before the Court on First Citizens Bank’s (“FCB”) Objection to Confirmation of the debtor’s Chapter 13 Plan; specifically, FCB objects to the bifurcation of its claim and alleges that it should be paid as fully secured following the addition of the “hanging paragraph” 2 to § 13...
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MEMORANDUM OPINION The debtors, Samuel and Denise Mathis, seek confirmation of their chapter 13 plan, which requires plan payments for three years. The chapter 13 trustee, Marilyn O. Marshall (“trustee”), objects to confirmation because the debtors* income is “over-the-median” for their state but their proposed plan will not last for the five-year *631 commitment period t...
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This case presents a new issue for our court: whether debtors’ pre-bankruptcy application of their right to tax refunds to post-bankruptcy tax obligations constitutes an asset that must be turned over to the bankruptcy trustee pursuant to the Bankruptcy Code, 11 U.S.C. § 542. Plaintiffs-Appellants James W. Nichols and Beverly Nichols (Debtors) appeal from the district court’s order denying their ...
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The Florida Department of Revenue (“the Florida DOR”) appeals the district court’s order affirming an order of the bankruptcy court awarding damages after a determination that the Florida DOR violated the automatic stay. We consider whether the district court erred in upholding the bankruptcy court’s discharge of the support obligation, affirming the bankruptcy court’s holding that the Florida DOR...
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AMENDED MEMORANDUM DECISION Steven M. Speier, Chapter 7 Trustee (“Speier”) seeks an order compelling Kenneth J. Catanzarite, Richard Vergel de Dios and the Catanzarite Law Corporation (collectively, “Catanzarite”), attorneys for Debtor, Eugene H. Perrine, Jr. (“Perrine”) to disgorge undisclosed fees received by Catanzarite within one year before the filing of Perrine’s bankruptcy petition...
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ORDER FOR JUDGMENT This matter came before the Court on the Chapter 7 trustee’s complaint seeking to avoid the transfer of an inheritance into a special needs trust as a fraudulent transfer pursuant to 11 U.S.C. § 548, and to recover the transfer from the trustee of the special needs trust pursuant to 11 U.S.C. § 550(a). At the conclusion of the trial, the Court took the matter under advi...
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AMENDED 1 OPINION GRANTING TRUSTEE’S MOTION TO DISMISS CHAPTER 7 CASE I. Introduction On August 24, 2006, Mark Zaporski filed this chapter 7 case. The U.S. Trustee moved to dismiss this case for abuse. The UST’s motion is brought under § 707(b)(2) and (3) of the Bankruptcy Code. On December 15, 2006, the Court held a hearing on the UST’s motion. The parties agreed ...
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