You are here

Opinions

Notice: Not all of the Judges Opinions will be made available on this site. Individual Judges have the option of specifying that all, some or none of their opinions be posted.

Judge Ben T. Barry

The Court enforced the parties’ agreement to arbitrate and held the adversary proceeding in abeyance. The Court found that the parties’ agreement to arbitrate did not inherently conflict with or jeopardize the objectives of the bankruptcy code.

The Court denied the trustee’s motion for turnover of a post-petition bonus payment the debtor acquired approximately one month after filing a voluntary chapter 7 petition. The Court found that the expectation of a bonus was not enough to bring the post-petition bonus into the debtor’s estate under § 541(a)(1) because the debtor’s employer retained the discretion to pay the bonus up to the time the bonus was paid.

The Court denied the debtor’s motion to reopen his chapter 7 bankruptcy case for the purpose of scheduling an omitted creditor. The Court found that the dischargeability of a debt under § 523(a)(3) is not affected by the debtor’s subsequent listing of the debt on his schedules; reopening the case to schedule the debt is a “useless gesture.”

In this order, the third in this case, the Court granted the creditors’ motion to strike the debtor’s second motion for contempt based on the doctrine of res judicata.  The Court found that the debtor’s second motion for contempt was substantially the same as his first motion with the exception of the named defendants–the debtor now named the principals as defendants rather than the agents.  All three elements of res judicata were met precluding the Court from hearing the debtor’s “second bite at the apple.”

The debtor filed an adversary proceeding objecting to the creditor’s secured status and alleging violations of the Fair Debt Collection Practices Act [FDCPA]. The Court granted the creditor’s motion to dismiss the adversary proceeding, finding that the Court lacked subject matter jurisdiction following the debtors’s voluntarily dismissal of their bankruptcy case.

The Court overruled the chapter 7 trustee’s objection to the debtor’s amended claim of exemptions, finding that the Supreme Court’s statement in Law v. Siegal that denial of an exemption can only be based on a ground specified in the code effectively overruled the Eighth Circuit’s prior holding in In re Kaelin that a bankruptcy court could deny a debtor’s amended exemption for bad faith or if prejudice to creditors was found. Affirmed on appeal.

After reviewing the parties’ cross-motions for summary judgment, the court granted summary judgment in favor of the taxing entity finding that the debtor’s tax liability to the state is nondischargeable under § 523(a)(1)(B)(i). According to the code, a return must satisfy “the requirements of applicable nonbankruptcy law (including applicable filing requirements).” Because the timely filing of a return is a requirement under state law and the debtor filed each of the returns in question late, the court found that the debtor did not file a return for purposes of the bankruptcy code.

In this order, the second of two in this case, the court denied the debtor's Rule 59 motion to alter or amend the court's order denying the debtor’s motion for contempt. The court also found that the debtor appeared to raise a new legal theory to prove the first element required for a finding of contempt.

The court denied the trustee's motion for turnover of assets, finding that the debtor’s personal injury cause of action and the funds from settling that claim were not part of debtor's bankruptcy estate under § 348(f)(1) when her case converted to a chapter 7. The trustee did not allege that the conversion was in bad faith and the funds were no longer in the debtor’s possession when the case converted. The court also denied the trustee's objection to discharge, finding no fraud or other abuse by the debtor under § 727.

The court sustained a creditor's objection to confirmation of the debtor's amended plan because the debtor’s proposal to make a balloon payment did not satisfy the statutory requirement to make payments to the creditor in equal monthly amounts under § 1325(a)(5)(B).

Pages