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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.

Judge Ben T. Barry

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.

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).

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.

Judge Richard D. Taylor

While not a typical judicial lien represented by a court-awarded judgment, a Workforce Services's lien for inappropriate benefits may be avoided as a judicial lien under section 522(f).

Specific debt denied discharge as debtor/contractor obtained a down payment by false pretenses and false representations. The debtor contracted to perform home remodeling work but used the down payment for other purposes all the while fully aware that he was going out of business and did not have the resources to otherwise perform the work.

Judge Phyllis M. Jones

Debt owed to Bank determined dischargeable under Section 523(a)(2)(A). Although Debtor acquiesced in the use of a false address at the suggestion of his relative who owned a car dealership, Bank that provided financing for the purchase of a vehicle that the Debtor never received, failed to prove that Debtor intended to deceive Bank, that the Bank justifiably relied on any misrepresentation made by the Debtor, and that any misrepresentation made by the Debtor proximately caused the Bank damages.

Debtor’s objections to proofs of claim filed by credit card creditors overruled where proofs of claim were prima facie evidence of the validity and amount of each claim, the creditors were not required to attach writings to their claims, and the claims were subject to the five-year statute of limitation period.

Chapter 7 Trustee moved for summary judgment in action requesting turnover of funds held by Bank in bank account maintained by Debtor. The Trustee moved for summary judgment under Section 542(a) of the Bankruptcy Code; the Court, however, found that turnover was warranted under Section 542(b) because turnover was requested from a banking institution. Because Section 542(b) was not raised by the Trustee, the Court gave notice and a reasonable opportunity for the parties to respond before granting summary judgment in the Trustee’s favor pursuant to Rule 56(f)(2) of the Federal Rules of Civil Procedure.

Court found that debtor voluntarily liquidated collateral, and, therefore, the creditor holding a security interest in the collateral was not required to comply with the provisions of Article 9 of the UCC governing notice requirements for a commercially reasonable sale. Debtors’ objections to creditor’s claims based on lack of commercially reasonable sale were overruled.

Granting Plaintiffs’ motion for severance of claims against non-debtor defendants and abstaining from and remanding severed claims to state court, where lawsuit originated prior to removal.

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