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.
You are here
Opinions
Notice: Not all of the Judges Opinions will be made available on this site. Individual Judges have the option of specifying that all, some or none of their opinions be posted.
Judge Ben T. Barry
The Court 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.
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.
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.
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.
Judge Richard D. Taylor
Court denies postconfirmation right of setoff absent sufficient grounds to lift stay.
Above-median-income debtors may use Local Standards as allowances for expense deduction purposes when they have an actual expense, even if less than the allowance.
Audrey R. Evans
Court granted preliminary injunction where Plaintiffs demonstrated that injunction was necessary to prevent Defendant from continuing its efforts to collect payments from the Plaintiffs which they did not owe. Defendant, a mortgage servicing institution, ignored communication from, and refused to provide accurate information to, the Plaintiffs about their home mortgage. Defendant did not accurately apply the payments it received from the Plaintiffs or the Chapter 13 Trustee, did not accurately process information vital to the servicing of the Plaintiffs loan, did not send the Plaintiffs accurate mortgage statements, did not provide an accurate payment history, and did not discover the mistakes it made, yet continued its collection efforts against Plaintiffs. The Court enjoined the Defendant from (1) contacting the Plaintiffs except by regular monthly mortgage statements showing only true and accurate information as to what is owed by the Plaintiffs on their mortgage; and (2) attempting to collect any arrearages, late fees, or any other amounts exceeding the Plaintiffs monthly mortgage payments; the injunction is to remain in effect until a trial on the merits is concluded. Moffitt v. America's Servicing Company(In re Moffitt), 390 B.R. 368 (Bankr. E.D. Ark. 2008).
Court denied Defendant's Motion to Set Aside Entry of Default and granted Plaintiffs' Motion to Strike Answer where Defendant failed to show good cause for setting aside the entry of default. The Court specifically found the Defendant's arguments raised in defense of its failure to file a timely answer to be evidence of culpable behavior, and also that the Defendant's behavior in the lawsuit thus far would prejudice the Plaintiffs if the case were allowed to proceed. The Court further found that the Defendant had failed to present a meritorious defense in its untimely Answer. Price v. America's Servicing Company (In re Price), 388 B.R. 901 (Bankr. E.D. Ark. 2008).
James G. Mixon
The Court found that the debts incurred by the Debtor were excepted from discharge because they were incurred by the Debtor's willful and malicious injury to the Plaintiff's horses; furthermore, the Court denied the Debtor's discharge for making numerous misrepresentations on his bankruptcy petition.