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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 counsel's motion for attorney fees and costs. The requested costs were either not allowed under 28 USC 1920 or were not sufficiently itemized such that the court could determine if the costs were either reasonable or necessary. Further, a bill of costs and verified affidavit was not included pursuant to 28 USC 1924. Although the debtor prevailed under 11 USC 525, that code provision does not include a private right of action and there is no statutory authority to award attorney fees. Nor was counsel able to provide the court with any other authority for an award of attorney fees.

The court found that by not notifying SSA of her return to work or disclosing to SSA for a period of approximately two and a half years of her return to work, the debtor had an intent to deceive SSA and obtained over $18,000 from SSA under false pretenses.

The court found that the bank/employer violated § 525 of the code when it terminated the debtor’s employment after the debtor failed to make a payment on his bank issued credit card and the debt was “charged off.” The termination occurred even though the debtor included the credit card obligation in the debtor’s bankruptcy petition. The court awarded the debtor back pay under § 105(a), to be paid to the estate in accordance with the debtor’s confirmed plan.

In this chapter 7 case, the court denied the debtor's discharge under 727(a)(2)(B) and (a)(4)(A) because the debtor intentionally made false statements under oath to conceal assets that included over two million shares of stock and a pre-petition lawsuit that he settled for $107,000 after filing bankruptcy. The court further found that the joint debtor did not intentionally conceal assets or make false statements under oath and that she had no knowledge of the debtor's pre-petition lawsuit or its post-petition settlement. As a result, the court granted the joint debtor's discharge.

The court sustained the chapter 7 trustee’s objection to the debtors’ claim of a homestead under AR law in 80A that was divided by the Ouachita River. The court first found that the Ouachita River is a navigable waterway and, as such, is owned by the state. Next, because the debtors did not own the Ouachita River, the court found that the parcels on each side of the river were not contiguous for purposes of homestead and ordered the turnover of one of the parcels.

A provision of the debtors’ confirmed plan stated that the debtors would pay any tax refund over $2000 into the plan. At a hearing related to the trustee’s objection to confirmation of a modified plan, the debtors argued that earned-income credit [EIC] should not be included in the amount of refund required to be turned over. The court found that because EIC is a “refundable credit” that is treated as an overpayment under the tax code, the EIC received by the debtors should be included in determining the amount of tax refund to be paid into the plan

The debtors filed an adversary proceeding alleging a violation of the Fair Debt Collection Practices Act [FDCPA] against a creditor that had filed a proof of claim for a stale debt. The debtors argued that because the statute of limitations had run on the underlying debt, when the creditor filed its proof of claim in the debtors’ bankruptcy case, it violated the FDCPA. The court held that filing a proof of claim in the debtors’ bankruptcy case was not a violation of the FDCPA and that the debtors’ remedy was to object to the claim under § 502 or proceed under Rule 9011 for filing the proof of claim in the first place.

Judge Richard D. Taylor

The debtors' exemption in an IRA is denied as the IRA engaged in a prohibited transaction that rendered it amenable to taxation pre-petition.

The court determined that the opportunity to cure a home mortgage default as set forth in section 1322(c) is not defeated by the mere extinguishment of the equitable and statutory rights of redemption, whether by decree or agreement, until the actual foreclosure sale is fully conducted according to state law

Judge Phyllis M. Jones

Upon remand from the District Court to determine dischargeability of attorneys' fees and costs awarded to two plaintiffs in a state court judgment against the debtor, the Court found that the fees incurred to prove the underlying fiduciary fraud were fully nondischargeable as to one plaintiff but only partially nondischargeable as to the other, who also prevailed in a second, dischargeable cause of action.

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