| Date |
Name |
Description |
| 05/14/2008 |
Case: G.E. Money Bank v. Wyble, Adv. No. 07-2047
|
Description: 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 |
Case: In re Suess
|
Description: 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 |
Case: In re: Rush, In re:
Glover
|
Description: 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 |
Dains v. Dains (In re Dains), Case No. 07-2038
|
Description: 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.
|
Description: 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 |
Neeson v. Sallie Mae, Inc., et al.
|
Description: 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
|
Description: 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
|
Description: 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 |
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 |
Case: Helfant v. Russell
|
Description: 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 |
Case: Desmond v. American Education Services/Wachovia Sallie Mae Servicing, et al.
|
Description: 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, No. 07-41402
|
Description: 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 |
Case: In re Lepley
|
Description: 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 |
Case: Gresham v. America ′ s Servicing Company (ASC), et al., Adv. No. 07-2004
|
Description: 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
|
Description: 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., Adv. No. 06-2054 |
Description: 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 |
Description: 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 |
Description: 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 |
Description: 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, Adv. No. 06-4188 |
Description: 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 |
Description: 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. |
Description: 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, Adv. No. 06-4087 |
Description: 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 |
Description: 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 |
Description: 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 |
Description: 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 |
Description: 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
|
Description: 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
|
Description: 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
|
Description: 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
|
Description: 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.
|
Description: 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, Adv. No. 05-4174
|
Description: 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
|
Description: 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
|
Description: 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
|
Description: Debtor sought to avoid lien after entering into Stipulation to relief from stay with Creditor. Order approving stipulation determined
that creditor had a security interest in the tools and could enforce its rights. Pursuant to both judicial estoppel and the doctrine of res judicata,
Debtor cannot later seek to avoid the same lien he previously agreed the creditor could enforce. |
| 02/23/2006 |
Wyatt v. Nowlin
|
Description: 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, 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.
|
Description: 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
|
Description: 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
|
Description: 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). |
