Pro se individual (Petitioner), while incarcerated in federal prison, mailed 74 involuntary bankruptcy petitions and other miscellaneous documents to clerk of court in attempt to file such petitions against various individuals and entities, including federal judges. Court found there was not proper venue in Arkansas and that Petitioner was not eligible under Section 303 of the Code to file these involuntary petitions. Court further found that such petitions were frivolous and submitted for filing merely to harass and without any basis in fact or law. In light of the adverse effects which could be caused by simply docketing the abusive involuntary petitions, Court found there was cause to withhold docketing petitions and to withhold public disclosure of names contained therein under Section 107(c) of the Code. Court found appropriate sanctions were to (1) direct clerk of court to reject and not docket these involuntary petitions and submissions, (2) prohibit Petitioner from filing any additional involuntary petitions, and (3) refer matters to US Attorney for possible further investigation. In re Risby, 2008 WL 116701 (Bankr. E.D. Ark. 2008).
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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.
Audrey R. Evans
Court adopted Judge James G. Mixon's ruling in In re Wilson, 373 B.R. 638 (Bankr. W.D. Ark. 2007), holding that debtors were entitled to deduct the standard vehicle ownership expense for purposes of the means test notwithstanding that the debtors owned their vehicles outright, and thus, had no "actual" ownership payments. Not selected for publication. Affirmed on appeal to 8th Circuit. See In re Washburn, 579 F.3d 934 (8th Cir. 2009).
In deciding that collateral estoppel applied to a state court judgment awarding compensatory, treble and punitive damages for trespass and conversion involving the cutting of trees on plaintiff's property, the Court determined that while the jury instructions established willfulness for purposes of the exception to discharge under 11 U.S.C. s. 523(a)(6) for a debt resulting from a wilful and malicious injury, the jury instructions did not establish maliciousness. However, the jury instructions and questionnaire with respect to punitive damages made it clear that the jury also made a finding of maliciousness, and therefore, the state court judgment, in its entirety, is nondischargeable in debtor's bankruptcy case.Quadrangle v. Harper (In re Harper), 378 B.R. 836 (Bankr. E.D. Ark. 2007).
Court determined that summary judgment was not appropriate on collateral estoppel grounds where the State Court judgment was entered following the Debtor's failure to participate in the lawsuit. Under Missouri law, a default judgment is not considered a judgment on the merits for collateral estoppel purposes. Furthermore, the issues crucial to a § 523(a)(2) or § 523(a)(4) case were neither presented nor ruled upon by the Missouri State Court, and therefore, the State Court case and the creditor's adversary proceeding were not based on the same issue(s). Finally, the State Court case and the adversary proceeding in bankruptcy were predicated upon a contract alleged to be between the debtor and creditor, when it was in fact between the creditor and an unrelated third party. Accordingly, the creditor's attorney would be ordered to show cause why inaccurate evidence was presented to the court. Ebco Construction Group, LLC v. Garretson (In re Garretson), 377 B.R. 214 (Bankr. E.D. Ark. 2007).
Court entered default against Defendant who failed to answer complaint served on Defendant's attorney. Defendant's attorney had filed a Request for Service in the bankruptcy case-in-chief, which asked Debtors to serve a copy of each notice of any proceeding, hearing, and/or report in this matter on her. The signature block under her name also read Authorized Agent for America's Servicing Company. Because an adversary proceeding is a proceeding stemming from and related to the main bankruptcy case, the Court determined that the Request for Service expressly authorized Defendant's attorney as an agent to receive process for Defendant under both Bankruptcy Rules 7004(b)(3) and 7004(b)(8). The Court gave Defendant an additional time period in which to respond to the Debtors' request for a default judgment. The Court will then determine whether a hearing is necessary before entering default judgment, if appropriate. Price v. America's Servicing Company (In re Price), 377 B.R. 224 (Bankr. E.D. Ark. 2007)
Judge Ben T. Barry
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.
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).
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).
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.
Judge Richard D. Taylor
The Court overruled trustee's objection to confirmation of chapter 13 plan, finding that, when calculating disposable income, the code does not provide for the proration of 401(k) loan repayments when such loans will be paid off prior to the completion of a debtor's plan.