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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 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.

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.

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).

Judge Phyllis M. Jones

Objection to confirmation of chapter 13 debtor’s plan overruled. Although Debtor’s confirmed plan in a prior case valued creditor’s collateral at a higher amount than in the current case, where the prior case was dismissed before completion and without the Debtor receiving a discharge, and under the particular facts and circumstances of the current case, the Court found: (1) the Debtor’s current plan was proposed in good faith; (2) res judicata did not apply to the valuation given the collateral in the prior case; (3) the Debtor was not barred by the doctrines of equitable estoppel, judicial estoppel, or the doctrine of inconsistent positions from proposing a different valuation in the current case from the prior case; and (4) the Court would not use its powers under Section 105(a) of the Bankruptcy Code to deny confirmation.

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.

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).

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