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Opinions—Chief Judge Dennis R. Dow

The opinions contained on this site are provided for reference use only and are not to be considered "official court documents." If you require an official copy, contact the Clerk's office.

09/07/2011 Vitzthum vs. EduCap, Inc. (In re Vitzthum), Case No. 09-21577, Adv. No. 11-2007 Court finds language of § 523(a)(8) does not create an exception to discharge for non-student co-obligors on educational loans.
09/02/2011 In re Bryan, Case No. 10-40330 Trustee objected to the debtor’s exemption of an annuity under Mo. Rev. Stat. §§377.090, 377.330 and 513.430.1(7), claiming that the annuity was insurance entitled to protection. The Court sustained the objection on two grounds: the annuity was not life insurance as contemplated by §513.430.1(7) or Chapter 377, and that these provisions were not exemption statutes for bankruptcy purposes in light of In re Benn.
07/08/2011 In re Graff, Case No. 09-20928 The Trustee asserts in her complaint to avoid preferential payments that the manner in which the Debtors acquired the funds to pay the Defendants precludes the application of the ordinary course defense, drawing the analogy between the Debtors' business practices and a Ponzi-like scheme. The Court holds that the source of funds is irrelevant under these facts -- the Debtors were not operating a Ponzi-like scheme and permitting the section 547(c)(2) defense is consistent with its policy of promoting customary transactions between the Debtors and the Defendants.
06/14/2011 In re Schultz, Case No. 11-40490; In re Smith, Case No. 11-40945; In re Fulton, Case No. 11-41044 The Court holds that Debtors with unencumbered vehicles more than six years old or with more than 75,000 miles may not claim an additional $200 operating expense deduction on line 27a of Form 22C in accordance with the guideline contained in the Internal Revenue Service manual, rejecting the argument that the Supreme Court’s use of the manual in Ransom authorizes such a deduction.
06/07/2011 In re Harold Ray Clifton, Case No. 10-43681 Court holds that debt is excepted from discharge under §523(a)(2)(A). Debtor is collaterally estopped from challenging the findings necessarily made in a state court judgment as to his fraudulent misrepresentations. The issue of fraud was litigated fully in the state court litigation, and the elements proven closely mirror the requirements of §523(a)(2)(A).
05/13/2011 In re Derril L. Olson, et ux., Case No. 10-21354 Court denies dischargeability complaint. Parties formed limited liability company to develop investment property. Financing was insufficient, so Debtors borrowed funds to complete construction. Plaintiffs accused Debtors of fraud, defalcation in a fiduciary capacity, and conversion. Plaintiffs failed to prove that Debtors made false representations with requisite intent, or that losses were proximately caused by Debtors’ misrepresentations under §523(a)(2)(A). After reviewing operating agreement and Missouri’s Limited Liability Act, Court finds that Debtors owed no fiduciary duty to Plaintiffs as LLC member and thus, did not commit fraud in a fiduciary capacity under §523(a)(4). Record did not support finding under §523(a)(6) that Debtors willfully and maliciously caused Plaintiffs harm by devising a plan targeted at them.
05/03/2011 In re Steven Arlen, et ux., Case No. 10-21980 The Court holds that a Chapter 13 plan, the exclusive purpose of which is to pay the administrative fees of the proceeding and which makes no payment to unsecured or secured creditors, is inconsistent with the spirit and purpose of Chapter 13 and is therefore not filed in good faith. The Court also holds that the applicable commitment period requires below median Chapter 13 debtors to remain in Chapter 13 and make payments over a period of 36 months notwithstanding the fact that their disposable income (and projected disposable income) are negative because their income, or a substantial portion thereof, derives from benefits received under the Social Security Act.
03/07/2011 In re Mimi Anita Ward v. Wells Fargo Bank, N.A., et al., Case No. 10-42456 The Court reviewed Mo. Rev. Stat. § 491.060(3) and observed that the Missouri Supreme Court has taken a broad construction of the attorney-client privilege. The attorney in this case was both legal counsel to the lender and the successor trustee on the deed of trust. The Court found only those communications between the attorney as legal counsel and the lender privileged and found the communications between the attorney as the successor trustee on the deed of trust and the lender discoverable. The Court found that the communications which were notations of fact did not fall under the scope of the attorney-client privilege.
02/18/2022 In re Barnes v. Karbank Holdings, LLC, Case No. 08-41902 Court grants Trustee partial summary judgment under §547(b) where prima facie case of preferential transfers established. Court grants defendant partial summary judgment under §547(c)(1) where contemporaneous exchange of new value established by rent being paid on commercial real estate within the month due pursuant to an unexpired lease. Court denied summary judgment under §547(c)(2) where defendant failed to prove transfers were made in the ordinary course of business as between either the parties or within the relevant industry. Court denied defendant summary judgment on issue of whether it could be paid its attorney’s fees pursuant to the common fund doctrine because its billing statements lacked sufficient detail.
02/03/2011 In re Hutchison, Case No. 08-43603 Debtor originally confirmed plan to pay claim of credit union secured by automobile to value over life of plan. After experiencing health problems increasing her expenses, Debtor moved to amend plan to surrender vehicle with deficiency to be unsecured. Court addresses and overrules creditor’s objections that modification was prohibited by doctrine of res judicata, was not authorized by § 1329 and unfairly shifted risk of depreciation to creditor. Court conditions confirmation on payment by Debtor of all amounts suspended or in default from date of commencement of plan payments to date of surrender of vehicle.
01/25/2011 Jill D. Olson, Trustee v. J.P. Morgan Chase Bank, N.A., et. al (In re Woods), Case No. 09-21447 Court grants summary judgment on §547(b) claim where Trustee established all elements of the preference claim including that the transfer, which involved reformation of a deed of trust, was made within the 90 days of filing and pursuant to the provisions of §§547(e)(1) and (e)(2). Transfer was not perfected as to a bona fide purchaser until recording of the judgment. Because that happened more than 30 days after the execution of the deed of trust, the transfer was not made until that date.
01/06/2011 The Callaway Bank v. Kevin Ray and Yvette Marie Asbury (In re Asbury), Case No. 08-21989 Court found sufficient evidence of a partnership between co-debtor spouses to impute liability for fraud and hold debt nondischargeable under § 523(a)(2)(B) on a theory of vicarious liability. The debtor-husband provided fraudulent financial information to the lender and the debtor-wife’s involvement in the business, including her signature on the loan documents, multiple draws on the bank accounts, enjoyment of the proceeds and endorsement of business checks, supported the Court’s finding that she was a partner and that she should have known of her husband/partner’s fraud.
12/03/2010 Premier Bank v. Falco (In re Falco), Case No. 10-20590 Court denies lender’s § 523(a)(2)(A) claim where lender failed to establish damages. Case involved change of collateral package in a renewal of loan rather than a new loan or an extension of additional funds, where the measure of damages would be limited to those directly resulting from the fraudulent conduct. Court denied debtor attorney fees under § 523(d) where he failed to establish debt was for consumer purpose.
11/15/2010 In re Mitchell Leonard, Case No. 09-20845 Court denied motion to enforce the automatic stay finding that the exception in § 362(b)(4) applied to the Missouri Real Estate Commission’s police and regulatory power to investigate claims of misconduct by the debtor/real estate agent.
10/22/2010 Sevenans, et al. v. Leonard, Case No. 09-21458 Court denied summary judgment where plaintiffs failed to comply with Bankr. W.D. Mo. LR 9013-1(H)(1), which requires a movant to submit a statement of uncontroverted facts. The Court found that the motion lacked the specificity required by the local rule.
10/05/2010 Trilogy Development Co. v. BB Syndication Services, Inc., et al., Case No. 10-4016 Court denied Debtor’s motion for summary judgment seeking judgment as matter of law that Defendant does not have a valid mechanic’s lien against property of the bankruptcy estate and that the claim of Defendant against the estate is unsecured. Court analyzed Missouri state law and determined that nearly all of the cited Missouri state court cases acknowledge, and in several instances apply, the notion of substantial compliance with the mechanics’ lien statutory notice language and that none of them, including the Missouri Supreme Court in Gauzy, has explicitly rejected the doctrine. Court determined that it is not clear that Missouri’s highest court would require absolute strict compliance with the statutory language set forth in § 429.012.1.
09/24/2010 In re Overby, Case No. 10-20602 The Court sustains trustee’s objections to confirmation of Chapter 13 plan holding that unemployment compensation is not a benefit received under the Social Security Act and must, therefore, be included in the calculation of current monthly income. Unemployment compensation placed the debtors above median income and made the applicable commitment period five years.
09/15/2010 The Callaway Bank v. Kevin Ray and Yvette Marie Asbury, Adv. No. 09-02012 Court grants in part and denies in part summary judgment on § 523(a)(2)(B) claim. Court found that genuine issues of material fact exist regarding 1) whether debtor spouses were partners in the business, and 2) whether the wife “knew or should have known” of husband’s fraudulent activity such that her debt should be nondischargeable on a theory of vicarious liability.
09/10/2010 Cutcliff v. Reuter, Adv. No. 07- 21128 Court grants in part and denies in part plaintiffs’ motion for attorneys’ fees. Court grants fees under Mo. Rev. Stat. § 509.5-509(b)(3) and denies fees associated with confirmation of debtor’s Chapter 11 plan.v
08/03/2010 Phegley v. Phegley (In re Phegley), Adv. No. 09-4296 Court held that debts in the decree of dissolution of marriage relating to monthly maintenance payments and attorney’s fees are in the nature of a domestic support obligation under § 523(a)(5) and are therefore non-dischargeable.
06/21/2010 Olsen v. JP Morgan (In re Woods), Adv. No. 09-2080 Defendant filed motion for summary judgment claiming the adversary complaint is barred by the Rooker-Feldman doctrine and principles of abstention; its interest is not a preferential transfer under 11 U.S.C. § 547(b); its interest is not a fraudulent conveyance under § 548; its interest is not an avoidable unperfected lien under § 544(a); and cannot be recovered under § 550. The Court denied Defendant’s motion and discussed the application of Missouri law on reformation of deeds of trust as it applies to a trustee as a bona fide purchaser.
04/14/2010 In re Reuter, Adv. No. 08-02009 Court found Plaintiffs have a claim for fraudulent misrepresentation against Debtor and found debts nondischargeable pursuant to § 523(a)(2)(A). Court found Debtor sold securities in violation of Mo. Rev. Stat § 409.3-301 and found debts nondischargeable pursuant to § 523(a)(19). Court also denied confirmation of Debtor’s Chapter 11 Plan because it was not filed in good faith pursuant to 11 U.S.C. § 1129 (a)(3), is not feasible under § 1129(a)(11) and is not in the best interest of creditors under § 1129 (a)(7)(A).
02/24/2010 The Bank of Otterville v. Rowles, Adv. No. 09-2032 Description: Court holds claims for extension and renewal of credit nondischargeable pursuant to § 523(a)(2)(B) based on submission by debtors of materially false financial statement with intent to deceive. Financial statement claimed 100% ownership in farm equipment and machinery owned by the mother of one of the debtors. Court finds publication of statement was made with intent to deceive based on prior agreement between one debtor and his parents specifying that he had no ownership in equipment and preparation by debtor-wife of personal property tax statements omitting any farm machinery or equipment.
01/15/2010 Roach v. The Bank of Missouri, Adv. No. 09-2051 On cross motions for summary judgment in adversary proceeding seeking to strip deed of trust held by defendant bank, Court confirms that even if bank is secured solely by security interest in real property that is debtors’ residence, lien may be stripped if there is no value securing the claim. The Court also holds that appropriate date for valuation to determine allowed amount of secured claim for purposes of plan confirmation is effective date of the plan, which Court construes to mean the date of the confirmation hearing. Given conflicting evidence in the record as to that date, Court sets evidentiary hearing.
11/09/2009 In re American Trailer & Storage, Inc., Case No. 08-43929 The court confirms Chapter 11 plan over objection of secured creditor. The Court determines that the United States Supreme Court’s opinion in Till suggests that in choosing interest rates to determine present value of payment stream paid to holder of dissenting secured claim Court will consult efficient market if one is available. If not, Court will use formula approach starting with riskless rate and adding appropriate premium for risk. Court finds the proposed 100% payment plan feasible despite absence of bar date, determines Debtor’s projections to be sufficiently reliable and concludes evidence justifies reasonable probability that balloon payment can be made at end of five-year period. Court overrules bank’s objection, based on unfair discrimination, to differential treatment of loan covenants and interest rates on secured claim. Court also permits Debtor to modify covenants in prepetition loan documents if inclusion of covenants would unduly impair reorganization and failure to include covenants would not unduly impair lender’s collateral position.
10/29/3009 U.S. Bank National Association v. Ocwen Loan Servicing, LLC, et al., Adv. No. 09-2022 Plaintiff, a creditor of the Debtors, initiated adversary proceeding for determination of lien validity of its deed of trust. The Trustee argued that the deed of trust was released, that the Trustee was a bona fide purchaser, and that Plaintiff’s lien was subordinate to Trustee’s interest in the property. Plaintiff responded arguing that the release was void because the release was executed by a former servicer which had not interest in the note or authority to execute the release. Plaintiff’s complaint sustained. The Court found that the release was void − Missouri law does not allow a party, with no interest in the deed of trust or authority to execute a release, to file a release of a deed of trust. Therefore, the Trustee can not sell the disputed property free and clear of all liens even if the Trustee exercises the rights of a bona fide purchaser under 11 U.S.C. §544(a).
08/25/2009 In re Campbell, Case No. 09-20020 Court sustains trustee’s objection to homestead exemption where debtors did not occupy the property and failed to establish their intent to occupy the property. Debtors inherited property located in Oklahoma and indicated an intent to move there after their son graduates from high school in two years. The Court found that debtors lacked sufficient control or influence over the timing of their occupation of the property and that they had not engaged in a single overt act in support of their stated intention.
07/14/2009 In re Asbury, Case No. 08-21989 Court denied a motion to approve a Debtor’s written waiver of his right to a discharge pursuant to § 727(a)(10) because the Debtor could not demonstrated that the motion is in his interest, that he clearly understood the consequences of his decision, and that his creditors would not be prejudiced by the waiver. The Court found that it had jurisdiction to enter a money judgment in actions to bar dischargeability.
07/08/2009 Casarotto v. Missouri Dept. of Revenue, et al., Adversary No. 09-2016 The Debtor’s claim that a state tax lien did not attach to her property satisfied the case or controversy requirement. The Court found that permissive abstention was inappropriate because the dispute required an interpretation of its own order. The Debtor’s claim that the tax lien violated the discharge injunction failed to provide sufficient facts to defeat a motion for summary judg
06/23/2009 In re: Kruse v. Murray, Adversary No. 08-04198 Creditors did not provide sufficient evidence to prove embezzlement, defalcation by a fiduciary or larceny by Debtor under 11 U.S.C. §523(a)(4). Creditors also failed to prove their allegations of a conspiracy between Debtor and her husband or that her husband’s alleged fraud should be imputed to Debtor. Thus, the Court found the alleged indebtedness owed by Debtor to Creditors was not excepted from discharge pursuant to § 523(a)(4).
05/21/2009 In re: Kuhrts, Case No. 08-20502 Court sustained Trustee’s objection to Debtor’s claimed exemption of an annuity. Debtor received the annuity as a result of an accident settlement. The disability exemption in Mo. Rev. Stat. § 513.430(10)(e) only applies to benefits relating to employment and lost earning potential. The provision is intended to protect payments which function as wage substitutes during the time a person’s earning capacity is limited. The Debtor’s settlement payment was not related to his employment and was not meant to replace his future wage earning ability.
04/15/2009 In re: Caruso v. Harmon, Case No. 07-21292, Adversary No. 07-02048 Court found judgment debt non-dischargeable pursuant to § 523(a)(6), and that the Debtor was collaterally estopped from relitigating the issues of willful and malicious, where Debtor was found liable for the intentional torts of assault and battery by the state court. Plaintiff endured 2 years of physical, emotional and verbal abuse by Debtor which resulted in physical and mental harm to Plaintiff.
03/05/2009 In re: Heinrich, Case No. 08-2029 Plaintiffs brought adversary proceeding under &sect 523(a)(8) alleging undue hardship to repay student loan. Issue was whether Debtors’ dependent children’s income should be included in Debtors’ financial resources analysis. The Court agrees with Defendant that if it is to exclude an unemancipated child’s income from the undue hardship analysis that it must also exclude that child’s expenses. Due to lack of evidence with which the Court could exclude expenses, and based on the Court’s analysis of the other applicable factors, the Court concluded that it would not be an undue hardship on Debtors to pay the remaining amount owed on their student loan debt.
02/18/2009 In re: Duvall, Case No. 08-20466 Court found that the state court judgment, which was a default judgment rendered as a sanction for debtor’s failure to comply with discovery orders, was a judgment on the merits and, therefore, the doctrine of collateral estoppel was appropriate to prevent debtor from challenging the findings made in the state court judgment, and summary judgment was granted on this point. Court found that the findings made in the state court judgment did not determine the question of whether debtor’s conduct was “willful and malicious” under § 523(a)(6), and, therefore, declined to apply collateral estoppel to this issue and denied summary judgment on this point.
01/23/2009 In re: Booker, Case No. 08-42466 Court grants motion to dismiss pursuant to § 707(b)(3) based on totality of the circumstances of Debtors’ financial situation and bad faith. Court discusses standards applicable and the factors to consider under each of the two subparagraphs of § 707(b)(3). Court may consider Debtors’ ability to pay which can be determinative and is principal if not exclusive factor for determining dismissal under totality of circumstances. Court may consider Social Security income in determining ability to pay under § 707(b)(3) even though excluded from definition of current monthly income. Court will consider propriety of allowing deductions for contributions to retirement plans on case-by-case basis. Court concludes Debtors have ability to pay substantial percentage of their unsecured debt and that case was not filed in good faith based on inaccuracies in schedules.
01/16/2009 American Family v. George, Case No. 07-21574 Court denied motion for new trial where Debtor attempted to raise for the first time in his post-trial motion the argument that the record does not support the Court’s finding that it was Debtor who willfully and maliciously damaged plaintiff’s boat. Court found that the evidence overwhelmingly supports its finding that Debtor had a motive to damage the boat, that the boat was in Debtor’s custody and control when it was damaged and that such damage was willful and malicious.
12/23/2008 In re: Roach, Case No. 08-20667 Debtors filed Chapter 7 case and a non-residential real property lease between Debtors and Creditor was deemed rejected under § 365(d)(4)(A)(I). Subsequently, Debtors converted their case to one under Chapter 13. Creditor filed an application for administrative expense claim for rent arrears that accrued between the filing of the Chapter 7 petition and the lease rejection. Court denied Creditor’s Application for Administrative Expense Claim based on statutory interpretation of §§ 348 & 365. Section 348(d) does not apply to a Chapter 7 to 13 conversion and the interplay of the plain language of §§ 348(c) & 365(d)(3) does not allow for an administrative expense claim.
12/12/2008 Cooper v. ECMC Case No. 02-21129 Court finds student loan debt non-dischargeable pursuant to § 523(a)(8) where Debtor has maintained the same employment for 13 years, experienced regular pay increases and has a gross monthly income that exceeds her monthly expenses such that making a student loan debt payment is feasible under the ICRP. Debtor testified as to having medical problems and house repair issues but the Court was not convinced her issues limited her ability to generate income sufficient to repay her student loans.
10/17/2008 James Ray Maxey, Debtor. David Duvall, Plaintiff v. James Ray Maxey, Defendant. Case No. 08-20466 Court found that the state court judgment, which was a default judgment rendered as a sanction for debtor’s failure to comply with discovery orders, was a judgment on the merits and, therefore, the doctrine of collateral estoppel was appropriate to prevent debtor from challenging the findings made in the state court judgment, and summary judgment was granted on this point. Court found that the findings made in the state court judgment did not determine the question of whether debtor’s conduct was “willful and malicious” under § 523(a)(6), and, therefore, declined to apply collateral estoppel to this issue and denied summary judgment on this point.
10/07/2008 In re: Preston, Case No. 08-2017 Court held that regarding three payments of sequestered wages that were made to the Sheriff’s Department prior to Plaintiff’s bankruptcy filing, any interest in the funds passed from Plaintiff once they were paid to the Sheriff’s Department, ceased being her property and did not become property of her bankruptcy estate. However, the two remaining payments of sequestered wages made to the Sheriff’s Department post-petition are property of Debtor, the collection which by Defendant constituted a violation of the automatic stay. Court also held that Defendant received actual notice of Plaintiff’s bankruptcy filing so that its collection and retention of Plaintiff’s sequestered wages subsequent to that date constituted a willful violation of the automatic stay.
09/03/2008 In re: Cox Debtors challenged on equal protection grounds the disposable income requirements applicable to above-median debtors in Chapter 13 cases as interpreted by the Bankruptcy Appellate Panel in Coop v. Frederickson. Court rejects constitutional challenge finding that limitation of bankruptcy judge discretion in allowing expenses to Chapter 13 debtors and placing limitations on expenditures of higher income debtors are legitimate objectives and that adoption of the Internal Revenue Service Standards was rationally related to those objectives.
08/29/2008 In Re Rosen's, Inc. v. Ghere Court finds debt non-dischargeable pursuant to § 523(a)(2)(B) where debtor recklessly provided materially false financial information to creditor. Debtor listed as assets leased items, failed to list a million plus dollar debt, rarely updated his information, did not understand the computer program that he chose to use and admitted he did nothing the verify the veracity of the numbers he provided. Court found cancelled bank checks, admittedly false financial statements and tax returns inadequate business records for a business transacting millions of dollars in sales. Debtor ′ s assertion of unsophistication and the fact that he was a farmer was not sufficient to justify the inadequate business records and Court denied debtor a discharge under § 727(a)(3).
05/14/2008 In re: G.E. Money Bank v. Wyble, Adv. Case No. 07-2047 Creditor alleged that Debtor obtained a line of credit through its credit card application at a time when she knew that she would be unable to repay the debt and that the debt should be nondischargeable under § 523(a)(2)(A). With respect to the first element of fraud, Court held that credit card use carries the implied representation that the buyer has the intention and the ability to repay the charge. Court applied factors used to determine fraud and found that Plaintiff did not meet its burden in proving the second element: that at the time Debtor made the representation that she would repay Creditor that Debtor knew such representation to be false.
04/28/2008 In re: Suess Court holds that in arriving at disposable income to be committed to unsecured creditors in the plan, debtors who propose to surrender property pursuant to their plan may not take a secured debt deduction for such payments pursuant to § 707(b)(2)(A)(iii) incorporated into Chapter 13 by §1325(b)(3).
04/24/2008 In re: Rush, In re: Glover The Court holds that the appropriate method for determining projected disposable income for below-median debtors is to deduct from their current monthly income the reasonable and necessary expenses reflected on Schedule J with certain adjustments. Even if the Court were to use Schedule I and Schedule J to determine projected disposable income, Social Security income should be excluded. Finally, the Court holds that below-median debtors who have, according to this formula, no disposable income have no projected disposable income, no applicable commitment period and therefore no requirement to commit any particular sum of money to the payment of unsecured creditors pursuant to the plan.
03/24/2008 In re: Dains, Case No. 07-2038 Plaintiff brought claims for nondischargeability for false representation and willful and malicious injury to property under 532(a)(2) & (a)(6). Court denied these claims based on Plaintiff ′ s failure to meet her burden of proof on the elements of fraud by a preponderance of evidence and her failure to establish that Debtor willfully and maliciously injured the property. Plaintiff also sought denial of discharge for Debtor ′ s alleged concealment of property with the intent to hinder, delay or defraud creditors and for his making a false oath or account under 727(a)(2)(A) and (a)(4)(A). Court also denied these claims based on Plaintiff ′ s failure to prove each of the elements of the applicable claim by a preponderance of evidence. Court also denied Debtor ′ s counterclaim for attorney ′ s fees under 523(d) due to fact debt at issue was not a consumer debt.
03/14/2008 In re: Vantage Investments, Inc. Debtor′s objection to deficiency claim sustained in part and overruled in part. Court disallows claim for real estate taxes paid and expenditures incurred for repairs made to real property after a foreclosure sale. Court found claimant had an oral assignment of the necessary loan documents, but that there was insufficient evidence regarding when the assignment occurred to find that it held the loan documents at the time the taxes were paid or expenditures made for the repairs. Absent being the note holder when making expenditures related to property purchased at a foreclosure sale, the purchaser takes the property "as is." Court found claimant foreclosed real and personal property together pursuant to Mo.Rev.Stat.section 400.9-604(a)(2), thus, Part 6 of Article 9 of the UCC was inapplicable and debtor ′ s multiple claims for affirmative relief were unfounded.
02/12/2008 In re: Neeson v. Sallie Mae, Inc., et al. Court sustains Debtor ′ s request to discharge student loan indebtedness as undue hardship pursuant to 11 U.S.C. section 523(a)(8). Debtor ′ s current income barely sufficient to meet extremely modest expenses, which are likely understated given demonstrated need to resort to credit card debt to pay expenses and identified unmet needs. Employment history and Debtor ′ s diagnosed personality disorder and limited intelligence indicate that situation not likely to change in foreseeable future.
12/27/2007 In re: Woods, Case No. 07-41123 Debtor ′ s objection to secured creditor ′ s request for allowance of fees, costs and expenses sustained in part and overruled in part. The Court found the total request of $560,819, an amount amassed in a little over four months, unreasonable under the circumstances and a case of overreaching. The Court reviewed pre-petition attorney ′ s fees for reasonableness pursuant to language contained in the parties ′ contract and Missouri law, and the post-petition fees pursuant to section 506(b). The Court disallowed or reduced certain fees, costs and expenses for reasons including lack of specificity in time entry, lumping of numerous tasks, duplication of effort and a general inability by the Court to determine whether time billed was reasonable for the tasks listed.
11/13/2007 In re: Brown, Case No. 07-2010 Court evaluated Debtor ′ s past, present and reasonably reliable future financial resources; Debtor ′ s reasonable and necessary living expenses; and other relevant factors and unique circumstances, including Debtor ′ s failure to participate in the Income Contingent Repayment Program and found that repayment of Debtor s student loan indebtedness to Creditor would impose an undue hardship on her pursuant to 11 U.S.C. section 523(a)(8) and it was therefore dischargeable.
10/16/2007 In re: Bank of Iberia vs. Troy and Denise Jeffries Description: Court denies complaint for nondischargability under 727(a)(2) but grants complaint under 523(a)(6). Plaintiff alleged that Debtor intentionally damaged its collateral. The Court found that Debtor ′ s destruction or misuse of fully-encumbered property (and property with no equity) does not warrant denying him a general discharge under section 727 of the Bankruptcy Code because such an act does not harm the unsecured creditors whom the section seeks to protect. However, based on the evidence introduced by Plaintiff and the lack of any credible explanation from Debtor, the Court found that Plaintiff established that the damage was done with a wilful and malicious intent to injure Plaintiff and that it should therefore be nondischargeable pursuant to section 523(a)(6).
10/16/2007 In re: Helfant v. Russell Court denies motion for summary judgment filed by plaintiff in dischargeability proceeding under section 523(a)(4), holding that plaintiff failed to demonstrate that defendant acted in a fiduciary capacity in his position as guardian of the person of plaintiff ′ s ward. Eighth Circuit requires existence of express or technical trust and although some relationships involve trust-type obligations, plaintiff failed to demonstrate that under Missouri or bankruptcy law, defendant had fiduciary relationship with respect to property.
10/04/2007 In re: Desmond v. American Education Services/Wachovia Sallie Mae Servicing, et al. Court denies complaint to discharge student loans under Section 523(a)(8) filed by 28-year-old debtor with no health problems, recent master ′ s degree, whose income had doubled in the two years since completing his education and incurring the last of his student loans and who had made no payments on any of the loans. While debtor may not have the capacity to make substantial payments on student loans at present, all of the above factors, including elimination of certain expenses in near future, suggest debtor will have capacity to repay substantial portions of both student loans over the course of his working life.
09/07/2007 In re: Adams, Case No. 07-41402 Court sustained Trustee ′ s objection to Debtors ′ claimed exemptions. Debtors attempted to claim Florida ′s exemptions for property located in Missouri. The Court finds that Florida ′ s Constitution is silent on the matter of whether its exemptions have extraterritorial effect so analyzes the Florida case law. Florida courts have determined two public policies prevent its exemptions from having extraterritorial effect: to discourage forum shopping and to protect the homes of families located within the state. Debtors do not promote Florida ′ s public policy and are not entitled to claim its exemptions for Missouri property.
09/07/2007 In re: Lepley Claimant objected to Debtor ′ s chapter 13 plan because it did not characterize her claim as a domestic support obligation and did not provide for payment in full. Debtor objected to the claim, arguing that it was not a domestic support obligation entitled to priority. The separation agreement and decree clearly characterized the award as a property settlement. The Court found that Claimant failed to meet her burden of proving that the obligation was something other than a property division payment, and sustained the objection to her claim (except to the extent of the amount of unpaid child support payments). Claimant s objection to the plan was sustained in part and overruled in part.
08/17/2007 In re: Gresham v. America ′ s Servicing Company (ASC), et al., Case No. 07-2004 Debtor initiated adversary proceeding for determination of lien status as between ASC s deed of trust and Pramco s deed of trust. Trustee joined as a party to avoid ASC s lien under section 544 due to erroneous legal description. ASC filed motion for summary judgment arguing that deed of trust was valid despite error, that Trustee was not a bona fide purchaser, and that ASC′ s lien was superior to Pramco ′s lien. Motion granted. The Court found that ASC′ s lien was valid − Missouri s rule of construction favors validity, Missouri law allows extrinsic proof of parties intent, and identity of property could be ascertained. The Court also found that Trustee lacked standing to avoid ASC ′s lien because he had constructive notice of ASC ′ s interest in subject property. Conflicting deeds of trust in Debtor ′ s chain of title should have put Trustee on inquiry notice of encumbrance and led him to discover recorded Subordination Agreement with correct legal description. Subordination Agreement dictated that ASC′ s lien had priority over Pramco ′ s lien.
08/10/2007 In re: Ross and Hill, Case No. 05-43627 Debtors objected post-confirmation to Creditor ′ s previously allowed, secured claim due to Creditor ′s repossession of the vehicle collateral. Creditor argued section 1327 and 1329, along with In re Nolan and the doctrine of res judicata, prevent Debtors from seeking reconsideration of its allowed claim after confirmation of a plan. Debtors contend that section 502(j) provides for reconsideration of claims post-confirmation based on the equities of the case. The Court determined that section 502(j) does in fact control and that the equities of this case warrant reconsideration of Creditor′s secured claim. Because Creditor chose to repossess and sell the vehicle and there was no evidence of bad faith on the part of the Debtors, the Court determined that Creditor′s remaining deficiency claim should be treated as general unsecured and its allowed secured claim limited to the amount already paid to it under the plan by the Trustee.
03/20/2007 Gakinya v. Columbia College and General Revenue Corp., Case. No. 06-2054 Debtor sought determination that debt owed to Columbia College was not a loan or provided under a funded program as required by section 523(a)(8). Court determined that an extension of credit in the form of a promissory note by the college to debtor in exchange for debtor attending class was a loan and that actual money need not have changed hands. Court also determined that the Deferred Payment Plan under which the loan was made was a funded program. Funded encompasses any meaningful contribution to the provision of the loan and does not require that actual money be placed in some type of trust or account.
02/23/2007 In re: Levens Court denies debtor ′s motion for reconsideration of order denying motion for extension of automatic stay pursuant to section 362(c)(3). Court reviews standards on motions for reconsideration and refuses to consider new evidence regarding change in debtor′s financial circumstances as it could have been presented at initial hearing. Court identifies standards for determining good faith on motions to extend automatic stay and holds that even if debtor ′s evidence were considered, it did not demonstrate debtor can perform Chapter 13 plan.
02/16/2007 In re: Ex-L Tube Court found that proposed debtor, which owed approximately $10 million to creditors, had liquidated substantially all of its assets, was no longer in operation and had the financial capability to pay only about 10% of its total debt, had generally not been paying its debts as they became due. Court denied debtors motion to dismiss and granted petitioning creditor′s involuntary petition in bankruptcy pursuant to 11 U.S.C. section 303.
01/24/2007 In re: McLaughin Court refused to discharge student loan debts pursuant to section 523(a)(8) where married debtors, ages 51 and 52, who have no significant mental or physical health problems, have, at a minimum, $434 per month of disposable income. Court found wife was not maximizing her income, and that even part time employment at minimum wage would increase the household income significantly Court also found debtors had not minimized their expenses and that they exhibited bad faith by intentionally failing to file tax returns for the last five years so that their creditors could not seize any return due to pay down their debts.
01/23/2007 Delaney v. Carlyle, Case No. 06-4188 Plaintiffs filed Complaint seeking that debt owed to them by Debtors for property damage to rental property be deemed nondischargeable under section 523(a)(6). Plaintiffs testified as to extent of damage and missing items. Debtors countered that any damage caused was not intentional and that they tried to remedy the damage and replace missing items as best they could. Court finds Plaintiffs evidence fails to rise to the level of demonstrating that Plaintiffs′ claim against the Debtors arises from willful and malicious conduct such that it should be nondischargeable under section 523(a)(6). Such an injury requires proof that Debtors acted with an intent to injure Plaintiffs or their property and the evidence fails to establish that the condition of the house was the result of such an intention.
12/11/2006 In re: Campbell, Case No. 06-42501 Creditor ′ s motion to annul stay and ratify foreclosure sale granted. Debtor had filed three Chapter 13 bankruptcy petitions but had not filed any schedules, statements, plan, creditor matrix or filing fee with any of the cases. Each case was dismissed. Creditor held foreclosure sale after second case was filed without notice of the filing. Second case was dismissed and Debtor filed third case. Court determined to annul the stay and ratify the sale based on the factors set forth in Williams, particularly Debtor ′ s lack of good faith in filing and lack of necessity of the property to an effective reorganization. Court also determined that a trustee ′ s power of sale under a deed of trust cannot be exhausted due to a prior void sale.
11/30/2006 Suggs v. Regency Financial Corp. In denying debtor ′ s motion for new trial or amendment of the order granting creditor ′ s motion to dismiss debtor ′s complaint, Court reaffirms its previous conclusion that debtor is estopped from relitigating creditor ′ s compliance with and the validity of Local Rule 4070-1.D., issues which were decided by the Court ′ s previous ruling granting creditor relief from the automatic stay. Debtor presented no new evidence and failed to establish that the order was based on manifest errors of law, therefore, she failed to show that relief from the order was warranted pursuant to Rule 59 (a) or (e) or Rule 60(b) of the Federal Rules of Civil Procedure.
11/28/2006 Auto Mart v. Wendt, Case No. 06-4087 Motion for summary judgment filed by creditor denied. Corporate officer may be found liable for acts done in corporation s name if he participates in or benefits from them. Court found that proof of implied fraud is not enough to establish the nondischargeability of a debt under section 523 (a)(2) because each elements of common law fraud must be proved in order to except a debtor from discharge under that section. As to the section 523(a)(6) claim, genuine issues of fact remain as to Debtor s intent to transfer title at time of sale of vehicle and as to the justifiable reliance by Plaintiff on Debtor s representations.
11/08/2006 In re: Poe Court refused to discharge student loan debts pursuant to section 523(a)(8) where debtor, a mentally and physically healthy 37 year old woman, who has approximately $453 per month in disposable income, and whose student loans constitute 96% of her total scheduled unsecured debt, presented no evidence regarding her current or likely future living expenses, no evidence as to the amount of payments required under various student loan debts or what the payments might be under a restructuring option and scheduled expenses which the court found unnecessary to maintain a minimal standard of living.
10/13/2006 Towle v. Hendrix Court finds debtor s admitted failure to schedule numerous items of personal property, business equipment, an affiliation with one or more businesses, and receipt of an account receivable post-petition sufficient circumstantial evidence of fraudulent intent to grant summary judgment and deny debtor a discharge pursuant to section 727(a)(4)(A). Debtor ′ s explanations that she failed to schedule certain assets because she intended to return them to the creditor, or that she forgot she owned them because they were not in her possession or that she was under stress and depressed did not persuade Court that a genuine issue of material fact existed for trial.
09/28/2006 Thomas v. Thomas Plaintiff failed to satisfy her burden of demonstrating that there is no genuine issue of material fact such that she is entitled to summary judgment on her claims that the debtor should be denied a discharge pursuant to section 727(a)(2), (a)(4), and (a)(5). Debtor ′ s explanation that he was not the owner of certain property that he allegedly concealed and transferred, that his income was initially incorrect because he changed jobs around the time of filing and that he relied on the advice of counsel in completing his schedules created factual issues to be determined by the Court. Summary judgment denied.
09/07/2006 In re: Nicely Creditors objected to provision in debtors′ Chapter 13 plan providing for surrender of vehicles in complete satisfaction of claims. Claims were governed by new provision of Section 1325 (a) making Section 506 inapplicable to claims secured by motor vehicles acquired for personal use of debtor and incurred within 910 days of filing. Court overrules objections and denies motion to vacate holding that surrender satisfies claims in full pursuant to Section 1325 (a)(5)(C).
08/10/2006 In re: Love Court found debt nondischargeable pursuant to § 523(a)(6) and granted summary judgment where the only disputed fact was whether the debtor intended to harm a seven year old child, who he was convicted of sexually molesting while he was working as Santa Claus. In cases of sexual molestation of a child, the court may infer an intent to harm for purposes of analyzing whether the malicious element of § 523(a)(6) is satisfied.
06/23/2006 In re: Emmons Court denied motion for civil contempt and sanctions for violation of section 362(a)(1) where creditor immediately rectified the violation of the stay, debtor was not prejudiced and debtor failed to mitigate damages. Court also denied contempt and sanctions for alleged violation of section 524(a)(2) where creditor′s knowledge of the order was questionable and debtor had not established that the debt was encompassed by the discharge order. Where creditor had a meritorious defense, acted in good faith and filed for relief within a reasonable length of time, Court held debtor would not be prejudiced by the relief and granted motion to vacate default judgment pursuant to Rule 60(b)(1) for excusable neglect.
06/13/2006 In re: Koerkenmeier Court holds that failure to reopen closed Chapter 11 proceeding did not deprive it of jurisdiction over fee application but that case should, as an administrative matter, be reopened prior to award of compensation. Court observes rule that counsel may not be compensated for services rendered prior to effective date of application for retention, but finds that the belated retention application, which was previously sustained, requested nunc pro tunc retention. Court reduces fees requested for certain time Court considered to be unreasonable and excessive.
05/25/2006 McArdle v. Alvarez Doctrine of collateral estoppel prevents debtor from re-litigating a section 523(a)(2)(A) dischargeability issue where state court entered final judgment on the merits against debtor for fraud and debtor had full and fair opportunity to participate in the state court litigation.
05/17/2006 In re: Robinson Court denied debtor ′ s motion to keep income tax returns holding that the IRS had a right to setoff prepetition debt and that confirmation of Chapter 13 plan did not prevent that right. Although tax returns were filed after bankruptcy filing, because the debt arose and the refund was earned prepetition, they were mutual obligations, and thus setoff was proper. Section 553 provides right to setoff notwithstanding the binding effect of confirmation under section 1327.
04/27/2006 Demois v. Fritz, et al. Motion to disqualify debtor ′ s attorney pursuant to Model Rule of Professional Conduct 3.7 denied where Court finds testimony regarding mitigation of damages could be obtained from sources other than debtor′ s attorney. No conflict of interest exists where the issue relates to attorney ′ s fees as Model Rule 3.7 specifically provides that an attorney may testify as to the nature and value of attorney fees.
04/18/2006 In re: Seeley Description: Court overrules trustee′ s objection to homestead exemption where debtor rebutted the presumption of abandonment arising from her having vacated the property. Debtor ′s intent to return to the property was evidenced by her having left substantial personal items on the property, by maintaining its physical condition, by making debt service payments and by her stated intent to sell either a portion of the property or all of the property, and reinvest the sale proceeds into another homestead in another location.
04/12/2006 Winsborough v. U.S. Dept. of Educaction, Case. No. 05-4174 Debtor sought discharge of student loan based on undue hardship; discharge denied. Although near retirement age, no evidence that Debtor cannot continue to work for several additional years. Debtor voluntarily obtained the student loan when she was 45 years old. Her past employment history and education suggests that she has significant earning capacity for the future. No expert medical testimony presented to demonstrate that she would be unable to work now or in the near future for medical reasons.
03/29/2006 Case: Shadwick v. U.S. Dept. of Education Court finds 28 year old debtor, without any physical or mental health impairments, failed to establish his burden of proving undue hardship pursuant to section 523(a)(8). Debtor filed his bankruptcy and the complaint to discharge his student loan debt immediately after graduation from law school and before one of the loans even went into repayment. He did not investigate repayment options or make a single payment on his student loan debt. Court finds debtor has significant, future earning potential, despite his initial failure to pass the bar exam and lower than average law school grade point average.
03/15/2006 In re: Swigart, Case No. 05-49494 Court finds that a debtor, his mother and his brother could qualify as a family within the meaning of the term used in Mo. Rev. Stat. section 513.440. However, where debtor s schedules and tax returns do not reflect that he is economically supporting the family, the family is no longer living together as a unit and there is no evidence that the debtor managed the affairs of the household, the Court finds that debtor does not qualify as the head of the family.
03/13/2006 In re: Ginter, Case No. 05-23707  
02/23/2006 Wyatt v. Nowlin Chapter 7 debtor has standing to seek declaratory judgement regarding creditor ′ s claimed lien in exempt property. Creation and effect of lien on manufactured home is governed by Article 9 of the UCC. Although there is no magic language necessary to create a security interest, the Eighth Circuit requires some language in the security agreement which actually conveys a security interest. Where the only documents in evidence are a contract and a certificate of title with a notation of a lien holder ′ s name, with no language conveying a security interest, Court finds creditor has no enforceable lien in debtor ′ s manufactured home.
02/13/2006 Albee v. U.S. Department of Education, Case No. 05-2042 Based on totality of circumstances analysis, Debtor ′ s level of income, even when supplemented by occasional tax refunds and incentive bonuses, does not permit Debtor to pay his reasonable expenses and the minimum payment required by the Income Contingent Repayment Plan. Court will not consider itself bound by the Internal Revenue Service Financial and Collection Standards utilized by IRS agents to assess the ability of delinquent taxpayers to make payments to satisfy their tax debts, in making an undue hardship determination.
01/23/2006 Dahmer v. United States of America, et al. Court finds income tax debt dischargeable where debtors did not fail to file a required tax return pursuant to section 523(a)(1)(B)(i). Under Missouri law no amended return was required as no final determination of the debtors federal tax liability had been made as defined by the applicable regulation. A requirement to report a change in federal income, pursuant to Mo.Ann.Stat. section 143.601, is not equivalent to a requirement to file an amended tax return.
01/17/2006 In re: Heerlein Where court order directing clerk to pay over garnished funds to creditor was entered pre-bankruptcy, debtor has no interest in the garnished funds on bankruptcy filing date that would allow him to avoid creditor s judicial lien or to claim an exemption in the funds.
01/05/2006 State of Missouri v. Foster Court grants summary judgment and denies debtors a discharge pursuant to 11 U.S.C. section 727(a)(4)(A) and 727(a)(6)(A) where debtors knowingly and fraudulently omitted information material to their bankruptcy in their Bankruptcy Schedules and Statement of Financial Affairs and refused to comply with the Court ′s order to produce documents requested, on multiple occasions, by the trustee.
12/12/2005 In re: Talib Description: Court overrules motion for reconsideration and to vacate orders denying certification of exigent circumstance and dismissing bankruptcy case. Court rejects Debtor s arguments that certain requirements for waiver stated in section 109(h)(3)(A) are inconsistent with one another and that literal application of section 109(h)(3)(A)(ii) yields absurd results. Policy considerations involved in requiring Debtor to demonstrate inability to obtain credit counseling within five days of request are for Congress, not the courts.
12/12/2005 Jeffries v. Sullivan Description: Court finds debt non-dischargeable pursuant to 11 U.S.C. section 523(a)(6) where debtor, enraged after an argument involving Plaintiff s relationship with debtor ′s husband, willfully and maliciously accelerated her vehicle multiple times into Plaintiff s vehicle with the specific intent to cause damage.
12/01/2005 In re Talib Description: Debtor first sought legal counsel and credit counseling on the afternoon before the date of the scheduled foreclosure sale on her residence and was told that she could obtain credit counseling within two days of her request. Debtor filed a certification for waiver of prepetition credit counseling on exigent circumstances grounds. Court discusses formal requirements of certification and holds that it need not be subscribed under penalty of perjury. Court also discusses exigent circumstances in the context of last minute filings and denies motion on grounds that certification fails to comply with section 109(h)(3)(A)(ii).
11/12/2005 In re Warden Description: Court denied motion to waive credit counseling based on exigent circumstances for failure to comply with requirements of Section 109(h)(3)and dismissed case Debtor obtained credit counseling postpetition and filed motion to vacate along with certificate. Court denied motion, holding debtor not eligible for waiver may not satisfy credit counseling postpetition.
11/09/2005 In re: Taylor Description: The date of honor of Debtor s checks issued prepetition is the appropriate date to use to determine what amount of a bank account becomes part of the bankruptcy estate under section 541(a)(1). Thus, amounts of checks issued prepetition but which had not yet been honored by Debtor s bank on the filing date were property of the estate. However, at the time of filing the Trustee becomes the representative of the estate and must secure property of the estate by sending notice to Debtor s bank or by seeking to recover the funds from the creditors who received them. Court denies turnover motion directed to Debtor.
10/26/2005 In re: Gee Description: Debtor filed a Certification of Exigent Circumstances requesting the Court to temporarily waive the requirement that debtor obtain debt counseling prior to filing pursuant to 11 U.S.C. section 109(h)(3). The Court rejected the certification and dismissed the case. On motion for reconsideration, the Court agreed that a pending foreclosure sale could constitute an exigent circumstance. However, where debtor did not even request counseling until four days after the filing, the Court refused to ignore the plain language of 11 U.S.C. section 109(h)(3)(A)(ii), and denied the motion to vacate the order dismissing the case.
10/28/2005 Harder v. Citibank (South Dakota), N.A. Description: Court finds no preference pursuant to 11 U.S.C. section 547(b), where both of the debtor ′ s accounts were issued by the same creditor and the debtor was contractually forbidden to transfer balances from one account to another, thus no "transfer of an interest of the debtor in property" occurred.
10/14/2005 Bray v. Educational Credit Management Corp Description: The Court holds student debt of approximately $125,000.00 to be dischargeable as an undue hardship for Debtor and his dependents. Income of Debtor ′s new non-filing spouse included at imputed full-time amount. Expenses attributable to adult children of new spouse, not adopted by Debtor, excluded. The Court considers availability and effect of Income Contingent Repayment Plan option and holds consideration of potential tax consequences of forgiveness of indebtedness income too speculative. However, Court finds Debtor unable to make initial ICRP payment.
09/28/2005 Kesar Enterprises, Inc. v. State Bank of Texas and K.C. Motels, LLC Description: The Court grants a secured creditor ′s motion for relief from automatic stay and motion to abstain in favor of state court proceeding to determine validity and priority of competing lien on debtor ′s property. State court had already invested considerable time in proceeding, granting a preliminary injunction after conducting an evidentiary hearing and issuing extensive findings of fact and conclusions of law. Because matter set for trial in state court, it could be reached ther as expeditiously as in bankruptcy court. There was no basis for federal jurisdiction other than section 1334 and proceeding was governed entirely by state law. Finally, Court noted a hint of forum shopping in debtor ′s adversary proceeding.
09/23/2005 Crow V. Glossip Creditor loaned Debtors money to purchase real property with the expectation of re-payment from proceeds of Debtor ′ s refinance of the mortgage. Because Creditor failed to take a deed of trust to secure the loan, he does not have an interest in property under 11 U.S.C. section 523(a)(6). Creditor ′s assertion of a special equity interest in the Debtor ′ s real property is unsupported by case law and the specific facts of the case.
09/12/2005 In re: Keepper Description: In section 707(b) case, after considering Debtor ′s average net monthly income and that of his non-filing spouse, and Debtor ′s average monthly household expenses, Court found Debtor ′s disposable income sufficient to fund a Chapter 13 plan that provides a 100% dividend to unsecured creditors.
08/22/2005 In re: Smith Creditor objected to confirmation based on lack of good faith under § 1325(a)(3). Where Debtor’s Chapter 13 Plan proposed payment of less than 1% on a debt resulting from Debtor’s pre-petition criminal conduct, and where Debtor’s Schedules included only one creditor, the victim of his pre-petition conduct, only $120 of personal property and a net monthly income of $50, the Court found the Debtor’s Chapter 13 Plan was not filed in good faith and creditor’s objection was sustained.
08/05/2005 In re: Vantage Investments, Inc. Description: Creditor sought administrative expense claim, pursuant to section 503, for contractual damages, liquidated damages and attorney′s fees. Because Debtor assumed the contract, Court found Debtor's pre and post-petition defaults obligations of the estate, thus properly treated as an administrative expense. The Court found the liquidated damages clause a reasonable forecast of damages resulting from a breach of the contract and that the damages varied reasonably with the nature and extent of the breach. Creditor′s attorneys fees reasonable, however, Court reduced the hourly rate by half for travel time where there was no indication work was being performed.
07/15/2005 Harder v. Hartford Life Insurance Company Debtor claimed annual disability annuity payments were "reasonably necessary," not to fund living expenses, but to fund his children's college education. A college education is not a necessity, but is beneficial to both the individual and society as a whole. The Court, therefore, refuses to completely disallow exemption, but also declines to require Debtor′s unsecured creditors to finance 100% of the Debtor's children′s college education. Debtor permitted to exempt $30,000 of the remaining $80,000 of annuity payments.
07/15/2005 In re: Reeves In section 707(b) case, Debtor urged the Court not to pool spousal income/expenses, but to exclude his new spouse's income and to allocate to her a fair share of the expenses. The Court found Debtor′s disposable income sufficient to fund a Chapter 13 plan regardless of whether the fair share or pooling method was utilized. Further, the Court found that when projecting income, previous overtime hours will be considered unless a change in circumstances is demonstrated.
06/21/2005 In re: Hall Date of filing of the petition (rather than date of filing of motion to avoid lien in reopened case) used for determining the value of property claimed as exempt and subject to a judicial lien which debtors sought to avoid. Lien avoidance may be denied based on equitable principles when delay and change in circumstances result in undue prejudice to the creditor.
06/01/2005 In re: Turner Although buildings affixed to property Debtor claimed exempt were originally designed, constructed and used for commercial purposes, that fact does not prevent property from being considered a dwelling house within the meaning of the Missouri homestead exemption statute in light of Debtor′s ownership and actual occupancy of the property, or a portion thereof, on the date of the filing of the petition. Zoning violation might have consequences for Debtor, but did not preclude the assertion of a homestead exemption.
05/31/2005 Childers v. Schrader Debtor sought dischargeability of lump sum award in Tennessee divorce decree payable in installments. Tennessee state courts look at similar factors as bankruptcy courts in determining whether an alimony award is in the nature of support including intent of parties or court as to function of award, misconduct of spouse, need of spouse and other spouse's ability to pay. Based on these factors, debts owed to Defendant under the dissolution decree are excepted from discharge pursuant to 11 U.S.C. section 523(a)(5).
05/24/2005 Furrow v. United States Department of Education Court dismissed adversary proceeding seeking dischargeability of student loan pursuant to section 523(a)(8) without prejudice because Plaintiff has been granted a conditional disability discharge under Department of Educations's guidelines and may receive administratively at the end of a three-year period all of the relief that could be provided by this Court. If, at the end of the three-year period, Debtors do not receive a full administrative discharge from the Department, they are free to reopen their case to seek dischargeability of the student loan.
04/12/2005 Cirincione v. Cirincione Where Debtor was ordered to pay a joint tax debt in dissolution decree, but neither the property settlement agreement nor the dissolution decree contained a provision requiring Debtor to hold the creditor ex-spouse harmless or indemnify him, then no debt is incurred in the course of such divorce or separation within the meaning of section 523 (a)(15) and the debt is not non-dischargeable under the provisions of section 523(a)(15). Also, Plaintiff did not meet his burden of proof that the debt is nondischargeable under section 523(a)(5).
03/22/2005 Harder v. Hartford Life Insurance Company Debtor asserted that workers compensation portion of Debtor′s Settlement Agreement is exempt from attachment, garnishment and execution under Missouri law and thus exempt in Debtor′s bankruptcy proceeding pursuant to Mo. Rev. Stat. section 287.260. Held that once the lump sum compensation was placed in the annuity it was liquidated and no longer payable to Debtor, and Debtor was free to assign or transfer his interest in the payments. Thus, the amount placed in the annuity was no longer exempt pursuant to section 287.260. This finding does not rule out the possibility that some or all of the amount in the annuity may be exempt under section 513.430(10)(e) and the Court must determine to what extent, if any, the annuity payments are reasonably necessary for the support of Debtor and any such dependent of Debtor. Structured settlement payments are clearly assignable under Mo. Rev. Stat. section 407.1062 and not exempt in bankruptcy.
02/16/2005 Houshmand v. Missouri Student Loan Program Debtor sought discharge of student loan based on undue hardship. Although near retirement age, no evidence that Debtor cannot continue to work for several additional years. Debtor voluntarily obtained the student loan when he was 48 years old, consolidated the loan at age 52, and requested deferments for 76 months. Thus, he reasonably could have expected he would not repay his debt until his early 70s. Debtor also could not pay for his daughter's college education while not paying his own student loans.
02/04/2005 Sherilyn Denise Jones Creditor moved to dismiss case pursuant to 109(g)(1). Court granted motion based on debtor′s willful failure to comply with court order requiring her to show cause why plan was not filed in previous bankruptcy case. Debtor′s status as pro se filer not sufficient to prove failure to comply not wilful. Also, Debtor failed to appear at the meeting of creditors which is further evidence of willful failure to comply with court order. Additional sanctions not imposed because creditor received substantial payment on claim in prior bankruptcy plan within last 12 months.
12/27/2004 Holmes v. NCO Financial Systems, Inc., et a Debtor not eligible for undue hardship discharge of student loans under totality of the circumstances analysis. Debtor and spouse have excess disposable income each month and could cut back on several monthly expenses with budgeting and belt-tightening. Debtor and spouse have significant working life ahead of them and no significant medical issues or special circumstances that support an undue hardship discharge.
12/17/2004 Easley v. Educational Credit Management Corporation, et al. Court ordered Debtor′s student loan be discharged due to undue hardship under 11 U.S.C. section 523(a)(8). Debtor′s spouses total disability together with Debtor′s own partial disability caused the household income to be less than the expenses with no evidence that Debtor can earn more in the future than she had in previous years. Spouse unable to work and his income contributions consist only of disability insurance and social security benefits.
12/17/2004 In re: Root Debtor′s Motion to Reopen Chapter 7 case to file an adversary complaint to determine dischargeability of student loan debt filed more than 13 years after discharge order entered. Court denied Motion to Reopen due to unreasonable length of time between discharge and present motion; relationship between discharge and circumstances affecting determination of undue hardship too attenuated after 13 years.
12/14/2004 In re: Kill Debtor′s ex-spouse held not to be creditor when no dissolution pending as of time of filing and no claim established by order of court in subsequent dissolution action. Alternatively, court holds that individual creditor lacks standing to bring motion to compel turnover of estate property. Only case trustee, as representative of estate, may prosecute such a motion. Movant failed to establish applicability of exception based on unreasonable refusal to act.
11/4/2004 In re: Foster Debtors' motion to dismiss Chapter 7 case denied for lack of cause shown. Debtors′ lacked control of proceeds of loan commitment to third party allegedly providing funds to acquire property of estate and satisfy claims. Proceeds were also insufficient to pay all claims in full. Omissions from schedules also raised questions about completeness and accuracy of debtors' disclosures.
11/02/2004 Weller v. Texas Guaranteed Student Loan Corporation, et al. Debtor′s request for declaratory judgment that her consolidated student loan has been paid is denied. Court holds that debtor failed to satisfy her burden of proving that certain payments had not been appropriately credited. Debtor′s alternative request for undue hardship discharge is also denied. Debtor, who is in her mid-40s, single, with no dependents, disability or ongoing health problems has potential, despite her recent difficulties, of earning substantial income based on her education and employment history.
10/06/2004 Woodcock v. United States of America on behalf of its Agency The Department of Education Debtor filed motion to reopen case and for relief from final judgment denying discharge of student loans pursuant to Rule 60(b)(3), (5) and (6). Rule 60(b)(3) request barred by time limitation. Debtor failed to show continued enforcement of judgment inequitable under Rule 60(b)(5) or that extraordinary circumstances justified relief under Rule 60(b)(6) merely on change in circumstances when issues were previously considered or capable of anticipation.
9/28/2004 Furrow v. United States Department of Education Court denied motion for summary judgment by Department of Education in student loan dischargeability proceeding, holding that neither income in excess of poverty guidelines or mere existence of Income Contingent Repayment Plan option precludes finding of undue hardship. Complete deference to ICRP determination would be abdication of judicial responsibility to make undue hardship finding.
7/1/2004 In re: Maloney Court sustains trustee's objection to debtor′s homestead exemption. Debtor failed to prove intention to return after she married, left property and resided in her husband's mobile home for 17 years. Moving to property post-petition ineffective because exemption rights determined as of filing and trustee′s rights had intervened.
6/14/2004 In re: Humphrey Court denies request for relief from codebtor stay. Plan does not propose not to pay claim because creditor not receiving distributions, when creditor failed to file claim. Mere delay in enforcing rights against codebtor does not constitute irreparable
6/14/2004 Thomas v. Money Mart Construing exception in Section 362(b)(11), court holds creditor presenting post-dated check to debtor's bank after filing does not violate automatic stay. Immunity from damages for violation of stay does not entitle creditor to keep funds, however; court holds payment unauthorized and recoverable under Section 549(a).
6/01/2004 Q.C. Financial Services, Inc. d/b/a Quik Cash v. Orton Jabulani Beza Claim based on issuance of insufficient funds checks held nondischargeable under section 523(a)(2)(A). Court holds that issuance of check constitutes implied representation that account on which check is drawn has sufficient funds to cover amount of check.
5/20/2004 In re: Humphrey Secured creditor that failed to file timely proof of claim in Chapter 13 case and which was, as a result, not receiving payments under the plan denied relief from automatic stay despite alleged lack of adequate protection.
5/19/2004 In re: Harvey Debtor′s objection to secured creditors request for attorneys fees sustained in part and overruled in part. The Court finds certain tasks conducted by secured creditors counsel not necessary to protect interests of secured creditor. The Court disallows certain other entries for lack of adequate description, duplication of effort or excessive time.
4/13/2004 In re: Batton Stay annulled to validate foreclosure sale of residence held 15 minutes after filing of third Chapter 13 case based on debtor's lack of good faith and purchase of property by third party without notice of filing.
4/12/2004 Morgan v. Woods Non-covered medical expenses for his four children that Debtor was ordered to pay in divorce decree were intended to serve as support and were non-dischargeable pursuant to 11 U.S.C. § 523(a)(5). Evidence did not support that Debtor’s spouse’s attorney’s fees that Debtor was ordered to pay in the divorce decree were intended to serve as maintenance, thus that debt was not excepted from discharge pursuant to § 523(a)(5). However, attorney’s fees debt was non-dischargeable pursuant to § 523(a)(15) because Debtor did not meet his burden of proof that he was unable to pay the debt or that discharging such debt would result in a benefit to Debtor that outweighed the detriment to his spouse.
3/4/2004 Fahrer v. Sallie Mae Servicing Corp., et al. Debtor held entitled to discharge of student loans on grounds of undue hardship due to amount of debt, husband’s medical conditions, debtor’s age and potential length and burden of repayment under income contingent repayment plan.
2/24/2004 In re: Griggs Court lacks power to extend deadline for filing claims in Chapter 13 case pursuant to motion filed after bar date. Secured creditor must file claim to receive distribution, notwithstanding provision in plan.
1/29/2004 Riley v. Riley Plaintiff in complaint objecting to discharge failed to meet her burden of proving that debtor had transferred property with intent to hinder, delay or defraud creditors, failed to keep adequate books and records, made a false oath or failed to satisfactorily explain loss of assets.
1/29/2004 Magee v. Long Attorney’s fees were not recoverable by successful plaintiff in litigating dischargeability of pre-petition judgment under § 523(a)(4).
1/6/2004 Bricker v. Christiansen Debtor sharing income and expenses with companion failed to sustain burden of proving either inability to pay or that benefit of discharge outweighed detriment to ex-spouse. Debt held non-dischargeable under Section 523(a)(15).
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