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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 Phyllis M. Jones

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.

Granting hardship discharge on motion filed on behalf of deceased debtor and authorized by deceased debtor’s surviving spouse, and finding deceased debtor should be exempt from completing the financial management course required by Section 1328(g) of the Bankruptcy Code.

Pre-confirmation modifications of Chapter 13 plans must be noticed pursuant to both Rule 2002(a)(5) and Rule 2002(b)(2). Accordingly, all creditors must receive notice of a pre-confirmation plan modification.

Judge Richard D. Taylor

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 Ben T. Barry

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.

Wells Fargo filed a proof of claim with an attached note and mortgage that did not include an indorsement memorializing an alleged transfer of the note and mortgage. When another copy of the note and mortgage was provided to the debtor with an additional indorsement, the debtor brought this AP arguing that Wells Fargo did not own the note and alleging fraud on the court. The court denied the complaint.

The court granted the plaintiff’s motion for summary judgment after finding that the plaintiff’s statement of undisputed facts were deemed true and admitted for the purpose of the summary judgment motion. The facts established the elements of defalcation in a fiduciary relationship relating to the PACA trust.

The court denied Bank of America’s [BOA] motion to enjoin the PACA creditors from proceeding against BOA in New York to pursue proceeds and payments received by BOA to the extent the funds received by BOA were found to be PACA trust assets.

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