Opinions/Orders for
Chief Judge Ben T. Barry

Search Judge Barry's Opinions

Date Entered Last Name Description
9/13/2018 Benson 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.
9/10/2018 Simpson 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.
8/30/2018 Corn 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.”
4/09/2018 Kikut 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.”
3/28/2018 Dulaney 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.
3/5/2018 Belew 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.
1/25/2018 Kline 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.
1/12/2018 Kikut 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.
1/10/2018 Jones 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.
12/17/2017 Jenison 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).
12/11/2017 Kikut In this order, the first of two in this case, the court denied the debtor's motion for contempt for violation of a discharge order against two loan servicing companies because the debtor did not prove by clear and convincing evidence the servicers had knowledge of debtor's discharge, the first of two elements required to be proven.
11/27/2017 Kemp Considering all relevant facts and circumstances, including the debtor’s choice to only work part-time, the court found that debtor's ability to pay her student loan debt was entirely within her control. The court found the debt nondischargable under § 523(a)(8); the debtor had a budgetary surplus and agreed at trial that she could afford a payment of $30.00 a month, the current payment amount. The debtor has appealed the decision.
11/22/2017 Knox In this opinion, the court found that the creditor/plaintiff did not have an agricultural lien in the debtors’ 2015 Arkansas crop proceeds because the debtors did not use any products sold or delivered by plaintiff in 2015. The court also found that a separate defendant held only an unsecured claim in the debtors’ case because a statutory landlord lien on crop proceeds had expired prior to the debtors’ filing their petition.
10/13/2017 Ellison The court sustained the trustee's objection to exemptions, finding that the debtor had only a remainder interest in the real property at issue and, therefore, could not claim a homestead exemption under Arkansas law.
08/29/2017 Cole The debtor asked the court to declare that the Contract for Deed between her and a homeowner was an equitable mortgage. The court found that the contract was a contract that allowed the debtor to rent the property for one year while arranging alternative financing to purchase the property and that the sellers did not waive the forfeiture clause contained within the contract. The debtor also wanted the court to find that the sellers had breached the contract even though the debtor has remained in the house for almost twelve years after entering into the contract, eleven of which she has been in a bankruptcy case. The court denied all of the debtor’s requested relief.
07/27/2017 Cunningham In this opinion, the court resolved two legal issues: (1) whether a putative debtor is entitled to the protection of the automatic stay if it is later determined that such debtor was not eligible to be a debtor under § 109(h) and (2), if the stay does go into effect, should any action that is taken in violation of the stay be annulled after the Court determines that the debtor was not an eligible debtor under § 109(h).
07/21/2017 Chestnut The court granted the IRS’s motion for summary judgment finding that the debtor’s tax liability for post-petition interest and unpaid unsecured debt was not discharged under § 523(a)(1). The debtor argued that under Espinosa, the debtor’s tax liability was discharged because the IRS did not object to the debtor’s plan, which proposed to pay only the IRS’s priority debt and a pro rata amount of the IRS’s unsecured debt. The court distinguished Espinosa and found the Court’s holding in Espinosa was not applicable in this instance.
06/26/2017 Dearasaugh In a motion to prohibit the debtors' use of cash collateral, a creditor-bank alleged that the debtors defaulted on eight loans with the bank before filing their chapter 11 petition. The bank argued that the debtors' pre-petition default triggered an absolute assignment of rents that excluded the rents from the debtors' estate. Because the court found that no pre-petition default had occurred, the court denied the bank's motion without prejudice to the filing of an objection to a subsequent motion of the debtors' to use cash collateral under § 362(c).
05/26/2017 Loden In this opinion, the court confirmed the debtors’ modified plan that proposed to surrender collateral to a secured creditor and treat any deficiency as an unsecured claim. The court also explained its interpretation of the debtors’ motion for authority to incur a debt in the light of the trustee’s response that he “does not necessarily oppose the motion.”
05/03/2017 Allen In this Allens/Veg Liquidation adversary proceeding, the Court granted the defendants’ second motion to dismiss, which addressed what remained of the trustee’s complaint. (The defendants' first motion to dismiss was granted by the Court on September 29, 2016.) The Court found that the doctrine of res judicata and the requirement for finality of a § 363 sale dictated dismissal. For those same reasons, the Court denied the trustee’s incorporated request for leave to file a second amended complaint.
03/21/2017 Allen The chapter 7 trustee filed a motion for the imposition of sanctions under Rule 2019 for failure of some of the parties to disclose certain relationships between the parties in this case prior to the authorized § 363 sale when the case was a chapter 11 case. The court dismissed the motion finding that the chapter 7 trustee had not suffered an “injury-in-fact” sufficient to satisfy Article III standing.
01/18/2017 James In this short order, the Court denies counsel’s claim for the allowance of attorney fees in a chapter 13 case as an administrative expense because the case was dismissed prior to an order allowing the claim was entered.
12/21/2016 Dulaney The creditor filed a motion to dismiss both counts of the debtors’ complaint–first, for lack of standing to challenge the endorsements on an assignment and, second, for failure to state a claim under the FDCPA. The court denied the motion in its entirety. In their first count, the debtors are challenging the signatures that appear on the subject note as a matter of law under the UCC, not the contractual rights of the parties to the assignment. For the second count, the court found that the debtors stated sufficient facts to state a facially plausible claim for relief under a provision of the FDCPA.
12/09/2016 Jackson This case lays out the required two-step process for obtaining default judgment. The debtor properly served the creditor bank with summons and the complaint. When the bank failed to respond to the complaint, the debtor then properly served a motion for default judgment on the bank, to which the bank did respond. After recognizing the Eighth Circuit’s two-step process, the court treated the motion for default judgment as a motion for entry of default, which would have been entered on the court’s docket when the motion was filed. Based on the lesser standard of “good cause,” the court treated the bank’s response as a motion to set aside the entry of default, granting the motion setting aside the default and allowing the case to proceed.
12/07/2016 Keel The debtor objected to the late filed claim of the IRS. The court sustained the objection, finding that although the IRS was not on the initial creditor matrix, it received actual notice with good service at least three times prior to the claims bar date, the last such notice being received at least two months prior to the bar date. The IRS did not file its proof of claim until three years after the bar date.
11/21/2016 McAdoo The court found that 11 USC 1322(c)(1) provides a federal right to cure a home mortgage default up until the purchase price is paid and a trustee's deed is delivered, even though the Arkansas Statutory Foreclosures Act follows the "gavel rule" in Arkansas, which states that a statutory foreclosure sale is concluded when the highest bid is accepted.
10/25/2016 Special Education Solutions The debtor filed a small business chapter 11 plan on the 300th day after filing its petition. The court set the plan for confirmation hearing. At the hearing, the debtor did not have any of its impaired classes voting for the plan so the court denied confirmation. Because another plan could not be filed within the statutory 300 days, the court dismissed the case.
10/19/2016 Smith The court denied the debtor’s motion to reopen his case to add an omitted creditor. The creditor’s claim is a non-dischargeable obligation under § 523(a)(3) and reopening the case to schedule the creditor would not affect the dischargeability of this debt.
10/07/2016 LaSpina The court denied the debtor’s motion to reconsider. The debtor asked the court to “impose” a stay because she failed to file a timely motion to extend the stay under § 362(c)(3), even though she only had one case pending in the prior year. Neither the debtor nor her counsel appeared at the hearing on her motion.
09/29/2016 Allens-Veg Liquidation The court granted the creditors’ motion to dismiss the trustee’s complaint on two of the fourteen counts: fraud on the court and violation of § 363(n). The trustee failed to plead facts sufficient to state a plausible claim for fraud on the court. Additionally, the court did not accept the trustee’s legal conclusion concerning the identity of “potential bidders” and found that the trustee did not plead sufficient facts to support a finding of collusion under § 363(n).
09/13/2016 Bradley The court denied the creditor’s motion for relief from stay in this chapter 13 case. The debtor’s plan was confirmed prior to the hearing on the relief from stay rendering the creditor’s argument that the collateral was not necessary for reorganization under § 362(d)(2) not applicable.
09/08/2016 Roush The debtor challenged, and overcame, the court’s finding that the creditor had established the prima facie validity of its claim. However, after the creditor then met its burden of proving the validity of its claim, the court had to overrule the debtor’s objection to the mortgage holder’s claim for failure to state any of the exceptions listed in § 502(b) even though the court had asked counsel to advise the court in a post-trial brief specifically under what exception she was proceeding. The court also denied the debtor’s request for attorney fees, which was based on the “significant amount of legal work” involved in this case. Debtor’s counsel failed to respond to the court’s directive to give the court a path showing why the debtor may be entitled to attorney fees.
07/21/2016 Scott The debtor filed a complaint seeking the return of $7100 the Department of Treasury withheld from the debtor's tax refund in partial satisfaction of a debt the debtor owed to the Department of Education. The debtor's theory was that the offset was a preferential transfer under s. 547 because it occurred within 90 days of the filing or, alternatively, an impermissible setoff under s. 553(b) because the DOE improved its position. The court found that the setoff did not improve the position of the DOE and that the setoff was permissible under s. 553. Because the setoff was permissible, s. 547 was not applicable.
02/26/2016 Stephens In this case, the court found that the IRS proved by a preponderance of the evidence that the debtor was aware of her duty to pay taxes for the tax years 2004, 2005, 2006, and 2007, that she had the resources to pay the taxes, and that she took steps to avoid paying the taxes. As a result, the court found that the debtor willfully attempted to evade or defeat her taxes and held that the taxes were nondischargeable under § 523(a)(1)(C).
01/08/2016 Krummel The court dismissed this case and another case because the debtors failed to file a motion to extend time to file schedules within 45 days from the date of the petition. The court had no discretion under section 521(i) but to deny the late-filed motion to extend and dismiss the case.
11/20/2015 Schiefer Wells Fargo filed a proof of claim with an attached note and mortgage that did not include an indorsement memorializing an alleged transfer of the note and mortgage. When another copy of the note and mortgage was provided to the debtor with an additional indorsement, the debtor brought this AP arguing that Wells Fargo did not own the note and alleging fraud on the court. The court denied the complaint.
11/05/2015 Herrera The court granted the plaintiff’s motion for summary judgment after finding that the plaintiff’s statement of undisputed facts were deemed true and admitted for the purpose of the summary judgment motion. The facts established the elements of defalcation in a fiduciary relationship relating to the PACA trust.
10/09/2015 Veg Liquidation The court denied Bank of America’s [BOA] motion to enjoin the PACA creditors from proceeding against BOA in New York to pursue proceeds and payments received by BOA to the extent the funds received by BOA were found to be PACA trust assets.
09/15/2015 Veg Liquidation The court denied the defendants’ motions to dismiss the complaints filed by the PACA creditors for the disgorgement of funds paid to the defendants in an amount sufficient to pay the remainder of the PACA creditors’ claims in full.
08/13/2015 Lopez The court overruled the creditor’s objection to confirmation of the debtor’s plan for the debtor’s failure to file an insurance claim for pre-petition damage to the debtor’s vehicle. The debtor stated an approximate value of the damaged vehicle in her petition but the creditor argued that it was not adequately protected because the debtor refused to file a claim for the damage with her insurance company.
07/23/2015 Acme Holding Company, Inc. Based upon the court's findings that (1) the debtor could not effectuate a confirmable plan of reorganization and (2) the debtor's estate had incurred substantial and continuing losses and was not reasonably likely to be rehabilitated, the court converted the chapter 11 case filed by a bank holding company to a case under chapter 7 pursuant to § 1112(b) upon the motions of three of the debtor's creditors.
07/19/2015 Wain Ryel The debtors’ amended their confirmed plan to require the creditor to release its lien on a vehicle upon completion of the debtors’ payments under the plan, even though the debtors were not paying the contract rate of interest under their plan. At issue was a third party’s ownership interest in the subject vehicle. The court found that because the third party had also given a security interest in the vehicle to the creditor, the debtors could not provide for the release of the creditor’s lien in their amended plan unless the underlying debt as determined by non-bankruptcy law was paid.
07/14/2015 Carter In this case, the court found that attorney fees that were awarded to the non-debtor in a state court action were non-dischargeable under § 523(a)(5) because the state court action focused on the health and welfare of the minor child.
07/06/2015 Stoyanov In this case, the court found that a chapter 13 debtor whose plan payments were funded by his wife’s income through automatic withdrawal was an “individual with regular income” and eligible to be a chapter 13 debtor under § 109(e).
06/29/2015 Hill In this chapter 13 case, the debtors filed a complaint to determine the extent of a creditor’s lien on the debtors’ residence, arguing that because the debtors’ personal obligation on the note was discharged in a prior chapter 7 case, the creditor’s lien should only attach to the value of the collateral. The court granted the creditor’s motion for summary judgment holding that the proposed “cram-down” was not permissible under § 1322(b)(2). The court also explained why the debtors’ proposed modification of their confirmed plan was not permissible under § 1329(b) and § 1325(a)(5).
06/18/2015 Veg Liquidation The Court found that the debtor did not possess an express or implied private right of action under PACA and, thus, the chapter 7 trustee lacked standing to bring such causes of action on behalf of the debtor's estate. Therefore, the Court dismissed two of the chapter 7 trustee's adversary proceeding complaints in full and partially dismissed a third complaint.
05/27/2015 Dwelle The court denied counsel's motion for attorney fees and costs. The requested costs were either not allowed under 28 USC 1920 or were not sufficiently itemized such that the court could determine if the costs were either reasonable or necessary. Further, a bill of costs and verified affidavit was not included pursuant to 28 USC 1924. Although the debtor prevailed under 11 USC 525, that code provision does not include a private right of action and there is no statutory authority to award attorney fees. Nor was counsel able to provide the court with any other authority for an award of attorney fees.
04/29/2015 Drummond The court found that by not notifying SSA of her return to work or disclosing to SSA for a period of approximately two and a half years of her return to work, the debtor had an intent to deceive SSA and obtained over $18,000 from SSA under false pretenses.
04/13/2015 Dwelle The court found that the bank/employer violated § 525 of the code when it terminated the debtor’s employment after the debtor failed to make a payment on his bank issued credit card and the debt was “charged off.” The termination occurred even though the debtor included the credit card obligation in the debtor’s bankruptcy petition. The court awarded the debtor back pay under § 105(a), to be paid to the estate in accordance with the debtor’s confirmed plan.
03/10/2015 Pourmehdi In this chapter 7 case, the court denied the debtor's discharge under 727(a)(2)(B) and (a)(4)(A) because the debtor intentionally made false statements under oath to conceal assets that included over two million shares of stock and a pre-petition lawsuit that he settled for $107,000 after filing bankruptcy. The court further found that the joint debtor did not intentionally conceal assets or make false statements under oath and that she had no knowledge of the debtor's pre-petition lawsuit or its post-petition settlement. As a result, the court granted the joint debtor's discharge.
03/09/2015 Hatton The court sustained the chapter 7 trustee’s objection to the debtors’ claim of a homestead under AR law in 80A that was divided by the Ouachita River. The court first found that the Ouachita River is a navigable waterway and, as such, is owned by the state. Next, because the debtors did not own the Ouachita River, the court found that the parcels on each side of the river were not contiguous for purposes of homestead and ordered the turnover of one of the parcels.
03/06/2015 Ingham A provision of the debtors’ confirmed plan stated that the debtors would pay any tax refund over $2000 into the plan. At a hearing related to the trustee’s objection to confirmation of a modified plan, the debtors argued that earned-income credit [EIC] should not be included in the amount of refund required to be turned over. The court found that because EIC is a “refundable credit” that is treated as an overpayment under the tax code, the EIC received by the debtors should be included in determining the amount of tax refund to be paid into the plan.
02/06/2015 MSJ Gatewood The debtors filed an adversary proceeding alleging a violation of the Fair Debt Collection Practices Act [FDCPA] against a creditor that had filed a proof of claim for a stale debt. The debtors argued that because the statute of limitations had run on the underlying debt, when the creditor filed its proof of claim in the debtors’ bankruptcy case, it violated the FDCPA. The court held that filing a proof of claim in the debtors’ bankruptcy case was not a violation of the FDCPA and that the debtors’ remedy was to object to the claim under § 502 or proceed under Rule 9011 for filing the proof of claim in the first place.
02/02/2015 Allens-Great American

The Court sustained the debtor's objection to Great American Appetizer's PACA proof of claim on the grounds that the food items sold to the debtor did not qualify as perishable agricultural commodities under 7 U.S.C. 499a(b)(4). The Court found that those food products--breaded jalapenos with cheddar cheese, spicy breaded pickle slices, fried green tomatoes, and battered corn nuggets--had been manufactured into articles of food of a different kind or character from the native vegetable ingredients.

02/02/2015 Allens-Hartung After granting in part and denying in part the debtor's oral Rule 15(b) motion made at the trial, the Court overruled the debtor's objections to Hartung's PACA proof of claim on all grounds.
01/27/2015 Rosen The court denied the trustee’s motion to extend time on behalf of herself and all creditors to file a complaint to determine the dischargeability of a debt. The court found that the chapter 7 trustee was not a party in interest within the context of a nondischargeability action under § 523 or Rule 4007(c). The court granted the trustee’s motion to extend time on behalf of herself and all creditors to file a complaint objecting to the debtor’s discharge. Although ordinarily a motion to extend time to object to discharge only applies to the moving party, in this instance the trustee specifically included all creditors in her motion and established cause.
01/08/2015 Boyd The court granted the United States’s motion for summary judgment after finding that reconsideration of the US Navy’s decision to separate the debtor from service was not a justiciable issue for the court. The debtor’s obligation to repay an enlistment bonus was non-dischargeable because the debtor received his bankruptcy discharge within 5 years of his separation from the Navy.
12/11/2014 Daniels The Court granted in part and denied in part the debtors' motion to dismiss a creditor's adversary complaint. The Court found that the creditor failed to state a plausible claim under Fed. R. of Civ. Pro. 12(b)(6) or plead fraud with particularity pursuant to Fed. R. of Civ. Pro. 9(b) as to some of the allegations and, accordingly, dismissed those counts.
10/28/2014 Johnson The debtor filed a motion for contempt against a creditor that would not turnover funds withheld from the debtor’s tax refund after the debtor received his discharge. Although the debtor scheduled the creditor on his petition, the debtor used an incorrect address. The debtor argued that the “no-asset rule” makes the errant listing irrelevant because the debt would have been discharged regardless in this no-asset case. The creditor argued that it deserved the opportunity to assert the non-dischargeability of its debt under § 523(a)(2) for fraud. The court found that § 523(a)(3)(B) was applicable in this instance and denied the debtor’s motion for contempt.
09/17/2014 Allens/Central The Court granted the debtor's oral Rule 15(b) motion made at trial and, upon consideration of the debtor's additional ground for objection to the creditor's PACA claim, sustained that objection by finding that the creditor had failed to preserve its PACA trust rights under 7 U.S.C. 499e(c)(3) when it did not include the payment terms in its invoices.
09/08/2014 Wilmoth The court found that property a chapter 13 debtor received as a result of a Missouri beneficiary deed when her mother died was not property of the estate in the debtor's converted chapter 7 case pursuant to § 348(f).
08/29/2014 Allens/D&T The Court sustained the debtor's objection to a creditor's 503(b)(9) claim for administrative expenses on the basis that the creditor did not file a claim by the Court-ordered deadline. The Court found that the creditor did not prove excusable neglect under Rule 9006, was not entitled to amendment of its PACA claim to reflect the administrative expense, and had not established an informal proof of claim through its PACA claim and correspondence with the debtor.
08/20/2014 Allens/Schmieding The court overruled the debtor’s objection to the creditor’s PACA claim finding that the creditor was not an agent of the debtor when the parties agreed that the creditor would provide shipping; the agreement changed the parties alleged FOB contract to an FOB sale at delivered price contract. The court also recognized that state law controlled as to the amount of interest the creditor could charge.
08/05/2014 Ozark Mtn. Solid Waste District In this chapter 9 case, the Court found that a regional solid waste district created pursuant to Arkansas Code Annotated 8-6-701 was not specifically authorized by the state of Arkansas to be a debtor as required by 109(c)(2). Because the district was not eligible to be a debtor under 109, the Court dismissed the case under 921(c). As a second basis for dismissal, the Court found that the district had not filed the case in good faith because it had opted not to collect a statutorily authorized service fee that would have generated revenue for the district.
07/30/2014 Allens/D&E Farms The court overruled the debtor’s objection to the creditor’s PACA claim finding that freight and fuel surcharges were sums owing in connection with the parties’ produce transaction and, therefore, covered under the PACA trust. The court also found that the portion of the federal regulation purporting to give guidance to what charges could be included as a “sums owing” under the statute was contradictory to the statute. Finally, the court found that interest on the pre-petition claim was also a “sums owing” related to the PACA transaction and covered under the PACA trust, but recognized that state law controlled as to the amount of interest the creditor could charge.
05/16/2014 Meier Upon the objection of a creditor, the Court denied the debtor's Amended Application for Order for Employment of Attorneys based on a potential conflict of interest. The conflict of interest resulted from the attorney's prior representation of the creditor in a matter against the debtor, in combination with the attorney's current representation of the creditor in an unrelated matter.
05/12/2014 Svetc In this chapter 7 case, the Court denied the debtor's discharge under 727(a)(2)(A), (a)(2)(B), (a)(3), and (a)(4), avoided the debtor's fraudulent transfers under 548 and the Arkansas Fraudulent Transfer Act, and sustained the trustee's objection to the debtor's exemptions. The debtor had purchased real property in Arkansas with funds to which his ex-wife was entitled pursuant to a Minnesota court order. The debtor had orchestrated a series of transfers of the real property between his friends and employees in order to conceal the property from his ex-wife and other creditors. The debtor also failed to disclose his true interest in the property in his bankruptcy schedules, intentionally concealed or destroyed tax returns and other documents relating to his property and financial affairs, and claimed exemptions in real and personal property in bad faith.
04/30/2014 Johnson The Court found that the debtor's student loans are nondischargeable under 11 U.S.C. 523(a)(8) because the debtor did not prove by a preponderance of the evidence that those loans impose an undue hardship upon her.
04/28/2014 Griffin In this opinion, the Court found that the chapter 11 debtor and four of his debtor companies had neither timely nor fully performed their obligations under a settlement agreement with their largest secured creditor. Because the settlement agreement conditioned the creditor's performance upon the debtors first timely and fully performing their obligations under the agreement, the Court granted the chapter 11 trustee's motion to enforce the settlement agreement but denied the trustee's request to compel the creditor to perform its obligations under the settlement agreement. The Court further found that the application of the doctrine of substantial performance was inappropriate in this case because the creditor had bargained for the debtors' strict compliance with the provisions of the agreement that required their timely and full performance and the Court cannot rewrite an agreement for sophisticated parties that bargained at arms' length.
04/21/2014 Strzelecki In this case, the court held that insurance proceeds paid as a result of a post-confirmation accident between the debtors’ minivan and a deer belonged to the creditor/lien holder even though the creditor’s allowed secured claim had been paid in full under the debtors’ confirmed plan. The court’s conclusion was based on a BAPCPA amendment to § 1325(a)(5)(B). That section now states unequivocally that a holder of an allowed secured claim retains its lien until the payment of the underlying debt as determined under nonbankruptcy law or the debtor receives a discharge.
04/14/2014 Allens/D&T Farms In this PACA claim case, the court held that the supplier/creditor did not provide notice as required under 7 USC 499a et seq. and, therefore, did not preserve its PACA rights. Without proper notice, the supplier/creditor's argument that it had substantially complied with the statute also failed.
03/11/2014 Gaines In a two-part finding, the Court denied the debtors' motion to dismiss a creditor's adversary complaint. The Court found that the creditor may proceed on a timely-filed complaint seeking a determination of dischargeability of a debt under 11 U.S.C. 523(a)(2), (a)(4), and (a)(6) notwithstanding terms in the debtors' confirmed chapter 11 plan that state that part of the debt shall be discharged. In addition, the Court found that it has jurisdiction to hear the adversary proceeding based on a retention of jurisdiction provision in the debtors' confirmed plan.
03/11/2014 Brassart The court held that deferral of the payment of the adversary proceeding filing fee was not warranted when the chapter 7 trustee had funds available in the estate.
02/20/2014 Melon In this opinion, Judge Barry denied the creditor’s complaint under § 523(a)(2) and (a)(6). Under (a)(2), the court found that subsequent exchanges of collateral that occurred between the debtor and creditor did not induce the creditor to either loan money or provide for the extension, renewal, or refinancing of the obligation. Under (a)(6), although the court found the potential for injury, it could not identify a specific “willful” injury or any resultant harm from the injury. The court also was not able to find that the debtor’s conduct was targeted at the creditor such that the conduct was “malicious” as required under (a)(6).
01/08/2014 Savage In this case, the court found that two mortgages that were filed for record and contained only the street address of the subject property provided the requisite “key” to identify the property and that the mortgages constituted constructive notice to the trustee under Arkansas law. Because the mortgages contained constructively noticed facts, the court found that constructive inquiry notice (as opposed to actual inquiry notice) was applicable in this instance and the trustee had a duty to investigate “everything to which the inquiry might lead.” Based on the evidence presented at trial, that inquiry would have identified specifically the legal description of the property subject to the creditor’s interest. Accordingly, the court denied the trustee’s motion to avoid the creditor’s liens under 11 U.S.C. § 544(a)(3).
09/06/2013 Pokrivnak The court revoked the debtor’s discharge under § 727(d) because she failed to turn over life insurance proceeds she received within 180 days of filing her chapter 7 petition in accordance with § 541(a)(5). Instead, the debtor placed the proceeds in an overseas account, moved out of state, and bought a house out of state. The debtor turned over the balance of the proceeds (the house) only after the trustee filed an adversary proceeding.
08/06/2013 Cockrell The debtor and creditor attempted to reaffirm a debt of $22,000 on a car valued at $16,000. Because the debtor’s attorney did not sign the attorney certification, the court scheduled a hearing on the reaffirmation agreement. In addition to informing the debtor of the consequences of entering into the agreement, the court also had to determine whether the agreement was in the best interest of the debtor. After discussing the four possible scenarios a reaffirmation agreement presents to a court, the court did not approve the reaffirmation agreement. The debtor was current in her payments to the creditor and had complied with § 521; therefore, the court could conceive of no benefit to the debtor to enter into the reaffirmation agreement and obligate herself to $6000 of unsecured debt.
07/12/2013 Hefty In this short order, the court distinguishes between criminal and civil contempt and finds that the state court order that sentenced the debtor to spend time in jail was criminal contempt because it carried an unconditional penalty and the jail time could not be purged.
06/07/2013 Gaddy The court found that, under Arkansas law, the debtor was not entitled to claim a homestead in property that was purchased with funds that were fraudulently transferred from a trust (of which the debtor was trustee) to the debtor's individual account. As a result, the debtor could not avoid a creditor's lien as impairing an exemption in the property.
05/23/2013 Ponce The court found that the debtors’ joint case consisted of two separate debtors with two separate estates being jointly administered. As such, the debtors were only able to claim the exemptions to which they would be entitled individually. The court disagreed with the debtors’ argument that Arkansas marital dissolution laws establish the wife’s equitable interest in her husband’s property. However, the court did find that, under Arkansas law and the facts presented, the wife had an equitable interest in a vehicle that was titled solely in her husband’s name.
05/21/2013 Head The debtors initially filed a voluntary chapter 7 case, then converted the case to a chapter 13 case, then converted the case to a small business chapter 11 case. In accord with § 348(a), the court found that the requirement under § 1121(e) for a debtor to file a plan and disclosure statement within 300 days in a small business case runs from the date the initial petition was filed, not the date the case was converted to a small business chapter 11 case. Because this case was filed more than 300 days earlier, the court granted the UST’s motion to dismiss or convert.
04/29/2013 King The court found that in accordance with §§ 365(d)(1) and 502(g)(1), the debtor’s unpaid post-petition rent was treated as a pre-petition claim for the period of time between the filing of the petition and the trustee’s rejection of the lease that occurred statutorily 60 days after the date the petition was filed. However, because the debtor remained in the premises after the trustee rejected the lease and the lease was no longer property of the estate, any further damages as a result of the breach of the lease would be the debtor’s personal obligation outside the confines of her bankruptcy case.
03/14/2013 Brackney A § 526(a)(6) action was brought against the debtor to determine the dischargeability of a debt that arose from a U.S. District Court jury verdict finding that the debtor had used excessive force that resulted in a man's death. Based on the facts entered into evidence, the Court found that the plaintiffs did not meet their burden of proving a willful and malicious injury under § 523(a)(6). Accordingly, the debt is eligible for discharge.
02/11/2013 Blalock The underlying adversary proceeding is based on an alleged violation of the automatic stay; specifically, the defendant filed a motion for incarceration of the debtor during the pendency of the debtor’s bankruptcy case. The court denied the movant’s motion for summary judgment because there remained questions of fact for the court to determine whether the motion for incarceration was a continuation of a state court civil contempt action or whether the motion changed the nature of the civil contempt action to criminal contempt, either in whole or in part.
01/17/2013 Simmons The debtor's sons objected to the chapter 7 trustee's motion to sell property, arguing that the property was held in a resulting trust for the benefit of one of the sons and, therefore, the subject property was not property of the estate. The Court found that while a resulting trust had been established, it was later terminated. Accordingly, the Court found that the subject property was property of the estate and granted the trustee's motion to sell.
12/12/2012 Bracey Payment of rent from an account that was closed six months earlier amounted to a false representation made with the intent to deceive the creditor/landlord. The court found the debt for unpaid rent to be nondischargeable under § 523(a)(2).
10/25/2012 Stringer The court denied the creditor/defendant’s motion to dismiss for failure to state a claim finding that the debtor had stated a plausible cause of action. The court also declined the parties request to use additional agreed stipulations to decide the motion to dismiss.
10/22/2012 Reopelle The court found that a second claim filed by a creditor after liquidation of the collateral securing the debt was an amended claim that related back to the date of the original filing.
10/02/2012 Muller The court combined five objections to claims in three different cases in this opinion and explains burden of proof for claims litigation, the application of judicial estoppel, and the three step process required to determine the rights of creditors holding secured claims.
09/21/2012 Tate The debtor entered into an agreement to lease a portable storage building from the creditor approximately four months prior to filing his chapter 13 voluntary petition. The debtor's plan proposed to classify the creditor's claim as a secured claim rather than as a lease, to which the creditor objected, arguing that the agreement was a true lease that the debtor had to assume or reject in his plan. Applying Oklahoma law, the court held that the agreement was a true lease and sustained the creditor's objection to confirmation of the debtor's plan.
08/08/2012 Marx The court granted partial summary judgment against one of the debtors based on the doctrine of collateral estoppel and under § 523(a)(2)(A) for fraud. The court denied summary judgment against the other debtor because the state court made no specific findings against that debtor relating to a false representation made with the intent to deceive the plaintiffs.
07/13/2012 Christain The court denied the chapter 7 debtors their discharge under 727(a)(2) and (a)(4)(A) because the debtors failed to disclose numerous assets and a significant amount of income in their original schedules and statements and their four subsequent amendments.
07/03/2012 Covel The court held that with regard to real property that is collateral for a consumer debt, in addition to the three options set forth in § 521(a)(2)--surrendering the property or retaining the property by either reaffirming the debt secured by the property or redeeming the property under § 722--if the debtor is current on her obligation to the creditor, she also has the right to retain the property and continue to make payments to the secured creditor.
05/24/2012 Gomez The debtors argued that the reaffirmation agreement between themselves and the creditor was legally deficient because it failed to reflect disclosures the debtors believed to be required under § 524(c) and (k). They also argued the reaffirmation agreement was deceptive because it did not disclose that one of the debtors was allegedly reaffirming an unsecured loan. The court found that the reaffirmation agreement between the creditor and the debtors met the requirements of § 524(c) and (k) and was a valid reaffirmation agreement.
04/26/2012 Simmons The creditor objected to the debtor's discharge under 727(a)(3), (a)(4), and (a)(5) based on multiple property transfers made by the debtor prior to filing bankruptcy. The Court found that the creditor failed to prove by a preponderance of evidence the necessary elements of 727(a)(3), (a)(4), and (a)(5), and, accordingly, denied the creditor's objections to discharge. The Court also found that the creditor had abandoned an additional claim under section 727(a)(2).
04/20/2012 Foster The court denied the debtor's discharge under section 727(a)(4)(A) for knowingly and fraudulently failing to disclose a malpractice claim and other material omissions in the debtor's petition and schedules.
04/05/2012 Porter The Court denied the debtors' Motion for Summary Judgment in both cases, ruling that the creditors were not barred by res judicata from bringing dischargeability actions in bankruptcy court when fraud was not alleged in prior breach of contract actions in state court.
04/03/2012 Figueroa The court overruled the chapter 7 trustee's objection to the debtor's third amendment to exemptions. Although the debtor was confused, the court did not believe the debtor acted in bad faith.
01/24/2012 Calkins The Court granted the creditors' motion to dismiss an adversary proceeding because the debtors did not have a private right of action under § 524 for an alleged violation of the discharge injunction.
01/11/2012 Blok The Court granted the creditor's motion to compel arbitration as to the debtor's claim of an alleged violation of the automatic stay under section 362. The Court dismissed the debtor's remaining claims for lack of subject matter jurisdiction.
01/11/2012 Francis The plaintiff/creditor mis-identified real property on a mortgage and failed to correct its mistake after being advised of the mistake by the debtor. The Court found that the doctrine of equitable subrogation did not apply in this case because there was no intervening event between the debtors’ initial financing and their subsequent refinancing with the plaintiff/creditor such that an intervening creditor would have had a superior interest to the new plaintiff/creditor’s interest. The court also found that laches would be imputed on the plaintiff/creditor based on its inaction after being informed of the mistake.
11/22/2011 Seidel In this chapter 7 case, under s.523(a)(15), the debtor's obligation to indemnify his ex-spouse in the event she is called upon to satisfy a third-party debt survives the debtor's bankruptcy.
09/28/2011 Taylor The court found that a prior order involving divorce-related obligations between the debtor and the debtor’s ex-spouse did not inure to the benefit of third-party creditor sufficient to deny the dischargeability of the debtor’s obligation to the creditor.
08/02/2011 Heidtman After granting the debtor’s motion for reconsideration, the court granted the creditor’s motion for summary judgment. The debtor argued that it could use § 544 to avoid the transfer of a royalty agreement between it and the creditor because the creditor did not record the agreement in the land recorded pre-petition. The creditor argued that the royalty agreement was listed by the debtor as an executory contract in its schedules, and later sold to a third party purchaser. The court found that two earlier orders of the court unequivocally transferred all liabilities and obligations of the debtor, including the royalty agreement, to the third party purchaser, thus eliminating any avoidance action the debtor may have had under § 544 relating to the royalty agreement.
07/21/2011 Weathers Creditor filed a complaint to deny the joint debtors' chapter 7 discharge under 11 U.S.C. § 727(a)(2), (3), (4), and (5). The Court granted the relief requested in the complaint under § 727(a)(2) and (a)(4)(A) as to one debtor but denied the relief requested as to the other debtor.
07/05/2011 Duvall Court grants partial summary judgment based on doctrine of collateral estoppel and state court findings of breach of fiduciary capacity.
07/01/2011 Walton Street Properties Creditor filed a motion to dismiss debtor's chapter 11 case for gross mismanagement of the estate and the absence of reasonable likelihood of rehabilitation. The Court granted creditor's motion to dismiss under s 1112(b)(4)(A) because of a substantial or continuing loss to the estate and an absence of a reasonable likelihood of rehabilitation. However, because the creditor did not request conversion in its motion, dismissal was conditioned on the Court finding that it is not in the best interests of the estate or the estate's creditors to convert the case to a case under chapter 7 in a subsequent hearing.
05/27/2011 FAC The court granted creditor’s motion to dismiss; the court did not have subject matter jurisdiction for the enforcement of a post-confirmation employment agreement between two non-debtors that would have no effect on the bankruptcy estate.
05/13/2011 Adams In this chapter 13 case, the court applied the same factors previously recognized by the Eighth Circuit for determining good faith under § 1307(c) and § 1325(a)(3) to § 1325(a)(7). Because the objecting creditor failed to produce sufficient evidence to support her motion to reconvert and many of her substantive objections, the court denied her motion and overruled all but two of her objections to confirmation, which related to a domestic support claim and the debtor’s applicable commitment period.
05/09/2011 Dixie The court found that provisions of an LLC operating agreement and Arkansas statute that make the filing of a bankruptcy petition an event of disassociation are invalid and not enforceable.
04/28/2011 Lindsey The Court denied a creditor's complaint to determine the dischargeability of debt under section 523(a)(2)(B) because the creditor did not prove that the debtor possessed the requisite intent to deceive or that the creditor reasonably relied on the debtor's financial statement in extending credit.
04/21/2011 Smakal The debtor’s former employer requested a determination of dischargeability under § 523(a)(2)(A) and § 523(a)(6) for damages arising from an alleged breach of a non-competition, non-solicitation, and confidentiality agreement signed by the debtor during employment. The Court found that the non-competition provision of the agreement was not valid, and that the employer did not provide sufficient evidence to prove that the debtor violated the remaining provisions of the agreement. Because this resulted in a finding that there was no underlying debt, the Court denied the employer’s causes of action under § 523(a)(2)(A) and § 523(a)(6).
03/31/2011 Loos The court granted the UST’s motion to dismiss under § 707(b)(1) after finding that the debtors’ debt was primarily consumer debt and that the debtors did not rebut the presumption of abuse that arises under § 707(b)(2).
03/25/2011 Ensign The Court found that two separate debtors incurred a debt on account of false pretenses and actual fraud. The debt was created by a state court judgment finding that the debtors committed constructive fraud under Arkansas law. Under the doctrine of collateral estoppel, the Court was precluded from determining some, but not all, of the elements of section 523(a)(2)(A).
01/06/2011 Giles The Court overruled the creditor’s objection to the debtors’ claimed Arkansas state homestead exemption under § 522. The debtors’ use of a portion of their homestead property for business purposes did not change the homestead character of the property because the debtors had not manifested an intent to abandon that portion of the property from their homestead.
11/22/2010 Spivey The court found that the creditor had standing to bring suit against other members of an LLC because he had suffered a direct injury under § 523(a)(2). However, the creditor did not have standing under § 523(a)(4); although the debtor/managing member may have had a fiduciary relationship with the LLC, he did not have a fiduciary relationship with the other members in their individual capacity. Misrepresentations relating to the payment or accrual of management fees resulted in a nondischargeable debt under § 523(a)(2).
11/09/2010 Barber The Court denied the chapter 7 debtor his discharge under s. 727(a)(2)(A) and (a)(4)(A).
08/26/2010 Spencer The court denied the plaintiffs’ complaint to determine the dischargeability of a debt resulting from a state court judgment against the debtors as trustees of their respective living trusts. Because the court could not find that the debtors were individually liable on the debt, there was no debt as contemplated under § 523(a).
08/10/2010 McDaniel The Court granted the creditor’s motion for relief from stay as to real property located in Missouri. Despite an incorrect legal description listed in the deed of trust, the creditor had a secured lien on the property. In addition, the trustee did not qualify as a bona fide purchaser according to Missouri law, and therefore could not avoid the creditor’s secured lien pursuant to 11 U.S.C. § 544(a)(3).
07/14/2010 Patterson The Court granted the debtors' motion to refund the debtors' income tax refund, which the chapter 13 trustee held pre-confirmation. In chapter 13 cases, prior to confirmation, property of the estate remains in possession of the debtors. The Court overruled the trustee's objection to confirmation, in part, because the debtor's disposable income could not be determined from the record before the Court.
06/10/2010 Bath Junkie Writ of garnishment and resulting execution lien was a preferential transfer that could be avoided under 11 U.S.C. § 547. In the Fayetteville Division of the Western District of Arkansas, if a debtor is insolvent and the transfer diminishes the debtor’s estate, as a matter of law, any distribution to an otherwise unsecured creditor would result in the creditor receiving more than it would in a chapter 7 liquidation had the transfer not occurred.
06/10/2010 Bettis Court denies creditor's motion for relief from stay for lack of adequate protection payments pre- and post-confirmation. Pre-confirmation, the debtors made the payments required by 11 U.S.C. 1326, as amended by General Order 32. Post-confirmation, the debtors made payments pursuant to their confirmed plan.
04/13/2010 Purvis The court overruled the chapter 7 trustee's objection to the debtor's homestead exemption where the court found that the debtor qualified as"head of a family" under Arkansas law based on the debtor's relationship with each of her brothers.
04/09/2010 Nail Settlement funds received by the debtor that related to a lawsuit between the debtor and the builder were "miscellaneous proceeds" subject to an assignment clause in the debtor’s mortgage with the bank. Under Arkansas statute, the debtor was a trustee with regard to the funds and, as such, should have turned the funds over to the bank. The court found that the debtor committed defalcation while acting in a fiduciary capacity.
04/05/2010 Krummel The court overruled the debtors’ objection to the claim of the IRS finding that a properly perfected tax lien on the debtors’ personal property remains attached to the personal property even if the debtors relocated with the personal property to another county within the state.
03/31/2010 Crosby Debtors' attorney suspended from practice in the United States Bankruptcy Court for the Eastern and Western Districts of Arkansas for violations of Federal Rule of Bankruptcy Procedure 9011 and pursuant to Local Rule 2090-2.
02/19/2010 Green The Court denied the trustee's motion for turnover and overruled his objection to the debtor's exemption. The Court could not determine whether the property interest at issue--the right to payments pursuant to a judgment for past due child support--was an interest of the debtor in accordance with applicable state law based on insufficient record before it. The judgment was not in evidence and state laws differ as to whether child support arrearages are property of the custodial parent or property of the child.
12/04/2009 Weathers In this case, the debtors claimed a homestead exemption under Arkansas law on 0.3 acres in a subdivision that prohibited further division of the property. The creditors objected to the claimed exemption and argued that because the property is indivisible and exceeds one-quarter of an acre, the exemption should be denied or limited in value to $2500.00 under the Arkansas Constitution. In the alternative, the creditors argued that the property should be sold for the estate to realize the non-exempt portion of the claimed exemption. The Court recognized that the highest return to the estate would result from a sale of the property, but further recognized that the trustee’s share of the proceeds could also be determined prior to a sale, resulting in a benefit to the estate without the additional costs of a sale.
11/05/2009 Umberson The court dismissed the plaintiff’s complaint for lack of subject matter jurisdiction. Piercing the corporate veils of companies held by the debtor is not a core proceeding and, even if successful, in this instance would have no conceivable effect on the debtor’s chapter 13 bankruptcy case.
10/21/2009 Wright The Court found that the chapter 7 trustee did not meet his burden to show that the debtor's exemption claimed under section 522(d)(11)(D) was improper.
10/06/2009 Osborn In this case, the debtor attempted to avoid the nonpossessory nonpurchase-money liens of a secured creditor because they impaired the debtor’s tools of the trade and wild card exemptions. The creditor responded by requesting relief from the automatic stay. The court found that the debtor’s truck, boat, and trailer were tools of the debtor’s fishing guide trade, but the debtor’s ATV and tractor were not. In ruling, the court avoided the creditor’s liens on the tools of the trade to the extent the liens impaired the exemptions, and granted relief from the stay on the ATV and tractor for lack of equity. It also granted relief from the stay for cause for the remaining value of the creditor’s liens on the tools of the trade.
09/25/2009 Haley The debtor's dilatory performance of a contract to customize the creditor's vehicle was not sufficient to find the debt non-dischargeable under section 523(a)(2).
09/11/2009 Cozart The plaintiffs filed a complaint against the debtor under §§ 523(a)(2)(A) and (a)(6) to determine the dischargeability of a debt relating to the construction of a residence and a subsequent settlement agreement and to deny the debtor a discharge under §§ 727(a)(3) and (a)(5) . The Court granted the plaintiffs’ complaint under § 523(a)(2)(A), finding that the debtor falsely represented his knowledge and experience as a builder and his knowledge about the quality of the home at issue. However, the Court found that the plaintiffs failed to meet their burden of proof regarding the remaining causes of actions and denied the additional requests for relief.
07/31/2009 Wright The court denied the debtor’s motion to sell property owned by the debtor and a co-owner (ex-spouse) for failure to prove that partition was impracticable, sale of only the undivided interest would realize significantly less than a sale of the entire property, and the benefit to the estate would outweigh the detriment to the co-owner. (§ 363(h))
07/21/2009 Reagan In a pre-BAPCPA chapter 11 case, the Court found that the net income interest created in a testamentary trust was protected by a valid spendthrift provision, and, as such, was not property of the debtor's bankruptcy estate.
07/06/2009 Cozart The plaintiffs filed a complaint against the debtor to determine the dischargeability of a debt related to the construction of a residence and a subsequent settlement agreement. After finding that the Court could not look behind the settlement agreement because there was no underlying debt in this case, the Court denied the plaintiffs’ complaint under § 523(a)(2) for failing to prove that they entered the settlement agreement based on the debtor’s false representation, false pretense, or actual fraud. The Court also found that the plaintiffs failed to prove that the debtor caused a deliberate or intentional injury to the plaintiffs under § 523(a)(6) when they entered into the settlement agreement.
06/25/2009 Alford Court denied debtors' motion regarding whether the debtors' exemptions precluded the chapter 7 trustee from selling certain real property because the issues presented were not ripe for determination, not before the Court in the correct procedural posture, or not noticed to the correct parties.
05/29/2009 Butterfield The Court set aside a state court order confirming the foreclosure sale of the debtor's principal residence because of a violation of the automatic stay and other unusual, compelling, and particularly egregious facts and circumstances surrounding the foreclosure sale; the Court denied the creditors' motion for relief from stay where not enough evidence was presented to annul the stay or grant prospective relief.
05/08/2009 Ward The Court granted the plaintiff's motion for summary judgment based on collateral estoppel and a durable power of attorney that satisfied the fiduciary requirement under s. 523(a)(4).
05/05/2009 Cozart The Court denied the plaintiffs’ complaint under § 523(a)(2)(A) for failure to prove justifiable reliance on the debtor’s misrepresentations with regard to the purchase of a newly constructed residence, and failure to prove actual damages. Although the debtor made specific misrepresentations, because the plaintiffs’ obtained their own inspection report prior to closing, the Court found they were put on notice of the deficiencies but chose to purchase the residence regardless.
04/15/2009 Justice On remand, the Court granted creditor's motion to dismiss the debtor's chapter 7 case based on a presumption of abuse as determined by the debtor's means test. Although the debtor was correct in choosing applicable IRS standards based on a family size of five, the Court disallowed a claimed educational expense and found that the debtor's dependents received at least $18.61 in financial assistance that must be included in the debtor's current monthly income.
03/16/2009 Butler Reading § 1325(a)(5)(B)(iii) in conjunction with § 1326(a)(1), (2), and (b), the Court finds that chapter 13 debtors must pay creditors holding allowed claims secured by personal property adequate protection beginning not later than 30 days after the order for relief and continuing until the creditor receives equal monthly payments provided for by the debtors’ plan.
11/06/2008 Kershner The Court sustained the creditor's objection to "termination pay" being a similar plan or contract entitled to exemption under section 522(d)(10(E). Although contingent at the time of filing, the contract is property of the estate; the Court found it to be an unadministered asset.
09/25/2008 Gentry The Court sustained the chapter 13 trustee's objection to the debtor's modified plan, which provided for post-petition creditors that had not filed proofs of claim.
09/03/2008 Betty's Homes, Inc. The Court denied the plaintiff's complaint to avoid an alleged preferential transfer because the plaintiff did not meet its burden of proof with regard to the fifth element of a preferential transfer--that the transfer enabled the creditor to receive more than it would receive in a chapter 7 liquidation case. The Court also recognized that the earmarking doctrine was not applicable when the transfer was from a secured creditor to an unsecured creditor.
06/19/2008 Walters Creditor objected to the confirmation of the debtors' chapter 13 plan claiming it held a 910 car claim that was not subject to bifurcation. The debtors argued that because negative equity from a trade-in vehicle was part of the purchase price, the creditor did not hold a PMSI as described in the hanging paragraph of section 1325(a), and bifurcation was appropriate. The Court sustained the creditor's objection because the final agreement between the parties did not show that negative equity was part of the obligation.
06/06/2008 Withrow The Court granted creditor's Motion to Alter or Amend Judgment based on conflicting orders entered by the Court, and set aside the second order entered. The debtor did not object to or appeal from the first order entered, and it became a final order, which the Court will enforce.
05/30/2008 Vandiver The Court overruled the chapter 7 trustee's objection to exemptions after finding that the debtor's actions surrounding her failure to disclose an asset of her bankruptcy estate (a sexual harassment claim) did not rise to the level of bad faith.
03/17/2008 McMahon Court denied creditor's motion to strike the entities listed as trade names on the debtors' chapter 7 petition. Even though the entities listed as the debtor's trade names may be separate legal entities, there was no evidence introduced that those names were not also used as trade names.
03/13/2008 Hamilton Debtor who, in a prior case, originally filed a chapter 13 case that later converted to a chapter 7 case was eligible to receive a discharge in his current chapter 13 case even though the current case was filed within four years of the date his previous case was filed. The section 1328(f) time limits relating to a subsequent discharge refer to the chapter under which the previous case was filed, regardless of later conversion to another chapter.
Amended by Correcting Order entered March 17, 2008
02/26/2008 Davis The debtor is entitled to claim a vehicle ownership expense on her Form B22C (chapter 13 means test) even though she owns the vehicle free and clear of liens and makes no monthly payments on the vehicle. The debtor was also entitled to claim operating expenses for two vehicles absent any evidence to rebut the debtor's claim.
02/26/2008 Coleman Chapter 7 and chapter 13 means tests serve different purposes. Chapter 13 debtors who surrender property in their plan are not entitled to include payments for that property on their Form B22C to determine disposable income.
02/19/2008 Collins The Court overruled the chapter 13 trustee's objection to confirmation and held that the debtor could use the Local Standard expense amounts applicable to Florida residents on his means test because the debtor resided in Florida on the date of filing the bankruptcy petition.
01/29/2008 Miller Chapter 13 trustee's objections to confirmation of plans were sustained. The court held that above median income chapter 13 debtors are required to pay into their respective plans the monthly disposable income as determined by Form B22C, even though their current monthly income (as defined by the code) exceeded present income.
01/15/2008 Meyer's Under pre BAPCPA preference law, trustee may avoid two of four payments made during preference period determined by the Court not to have been paid in the ordinary course of business of the debtor and the creditor.
01/10/2008 Sandiford Court overruled creditor's objection to chapter 7 trustee's application for settlement. Creditor argued that a trust the debtors created pre-petition to hold real property was fraudulent and claimed a lien on the proceeds resulting from the sale of the property by the chapter 7 trustee. The Court held that even if trust was invalid, chapter 7 trustee could avoid creditor's lien pursuant to § 544(a)(3).
12/20/2007 Snyder Motion to extend time for UST to file motion under s. 704(b)(2) is denied as a matter of law. A definitive 10-day statement of whether a debtor's chapter 7 case would be presumed to be an abuse, as required under s. 704(b)(1), is a prerequisite to filing the motion required by s. 704(b)(2). Because the UST did not file a definitive 10-day statement, the threshold requirement to filing the s. 704(b)(2) motion has not been met and the UST is precluded from filing a motion to dismiss or convert under s. 704(b)(2). Therefore, the motion to extend the time to file a s. 704(b)(2) motion is moot.
12/19/2007 Politte The Court determined that certain funds were non-dischargeable in the debtor's bankruptcy as a result of embezzlement in accordance with s. 523(a)(4).
10/05/2007 Moore The Court denied creditor's motion for relief from stay to setoff funds deposited post-petition into a debtor's savings account against a negative balance incurred pre-petition in the debtors' joint checking account because the creditor failed to meet the requirements of 11 U.S.C. 553(a).
09/24/2007 Byrne Even though the UST did not file a definitive statement indicating whether the debtor's case was a presumption of abuse, as required by § 704(b)(1), she was not precluded from filing motion to dismiss under § 707(b)(3) based on debtor's declaration on Form B22A (means test) that there was no presumption of abuse.
08/29/2007 King Using a totality of the circumstances standard, the Court found that this chapter 7 debtor, whose income was below 150% of the income official poverty line, was unable to pay the filing fee in installments and, therefore, eligible to have the filing fee waived, even though she had paid her attorney $300 prior to filing the petition.
06/28/2007 Wood Debtors who moved from Arizona to Arkansas within 730 days required to use Arizona exemption statute, if available, under 522(b)(2) and (3); however, even though Arizona is an “opt-out” state, non-residents are not precluded from using federal exemptions.
05/22/2007 Williams Chapter 7 debtors who filed their petition in Arkansas (where venue was proper) were required to use Iowa exemptions because they had not been domiciled in Arkansas for 730 days prior to filing pursuant to 11 U.S.C. § 522(b). Iowa is an opt-out state. Because Iowa homestead exemption on its face is not territorial, the Court found that Iowa's homestead law would apply to the debtors homestead located in Arkansas.