Opinions/Orders for
Judge Ben T. Barry

Search Judge Barry's Opinions

Date Entered Last Name Description
7-30-14 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.
5-16-14 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.
4-30-14 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.
4-28-14 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.
4-21-14 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.
4-14-14 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.
3-11-14 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.
3-11-14 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.
2-20-14 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).
1-8-14 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).
9-6-13 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.
8-6-13 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.
7-12-13 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.
6-7-13 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.
5-23-13 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.
5-21-13 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.
4-29-13 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.
3-14-13 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.
2-11-13 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.
1-17-13 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.
12-12-12 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).
10-25-12 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.
10-22-12 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.
10-2-12 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.
9-21-12 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.
8-8-12 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.
7-13-12 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.
7-3-12 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.
5-24-12 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.
4-26-12 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).
4-20-12 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.
4-5-12 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.
4-3-12 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.
1-24-12 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.
1-11-12 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.
1-11-12 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.
11-22-11 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.
9-28-11 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.
8-2-11 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.
7-21-11 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.
7-5-11 Duvall Court grants partial summary judgment based on doctrine of collateral estoppel and state court findings of breach of fiduciary capacity.
7-1-11 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.
5-27-11 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.
5-13-11 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.
5-9-11 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.
4-28-11 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.
4-21-11 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).
3-31-11 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).
3-25-11 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).
1-06-11 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.
11-22-10 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).
11-09-10 Barber The Court denied the chapter 7 debtor his discharge under s. 727(a)(2)(A) and (a)(4)(A).
8-26-10 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).
8-10-10 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).
7-14-10 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.
6-10-10 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.
6-10-10 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.
4-13-10 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.
4-09-10 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.
4-05-10 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.
3-31-10 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.
2-19-10 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.
12-04-09 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.
11-05-09 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.
10-21-09 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.
10-06-09 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.
9-25-09 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).
9-11-09 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.
7-31-09 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))
7-21-09 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.
7-06-09 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.
6-25-09 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.
5-29-09 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.
5-8-09 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).
5-5-09 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.
4-15-09 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.
3-16-09 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.
11-6-08 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.
9-25-08 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.
9-3-08 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.
6-19-08 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.
6-6-08 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.
5-30-08 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.
3-17-08 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.
3-13-08 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
2-26-08 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.
2-26-08 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.
2-19-08 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.
1-29-08 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.
1-15-08 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.
1-10-08 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).
12-20-07 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.
12-19-07 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).
10-5-07 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).
9-24-07 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.
8-29-07 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.
6-28-07 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.
5-22-07 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.