Opinions

The District of Nebraska offers a database of opinions for the years 1997 to 2011, listed by year and judge. For a more detailed search, enter the keyword or case number in the search box above.

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  • 10/02/2014
    Daniel L. Potmesil v. Great Western Bank (In re Potmesil), Ch. 13, BK13-80007, A14-8016 (Oct. 2, 2014) 10/02/2014

    An unsecured junior lien on the debtor’s residential real estate may be avoided after the debtor completes Chapter 13 plan payments. The case law in the Eighth Circuit permits wholly unsecured liens to be stripped off.

  • 09/22/2014
    Thomas D. Stalnaker, Chap. 7 Trustee v. Computershare Trust Co. (In re Randy S. Ricker & Paula D. Ricker), Ch. 7, BK08-83110, A11-8098-SH (Sept. 22, 2014) 09/22/2014

        On the bankruptcy trustee’s complaint alleging securities fraud and common-law causes of conversion, breach of fiduciary duty, and tortious interference with business relationships/expectancy against the defendant, the bankruptcy court ruled that it had non-core related-to jurisdiction over the matters and, under Executive Benefits Ins. Agency v. Arkison (In re Bellingham Ins. Agency, Inc.), ___ U.S. ___, 134 S. Ct. 2165, 2170 (2014), could enter final judgment with the consent of the parties. Accordingly, the court granted summary judgment to the defendant.
        In ascertaining the applicable choice-of-law rules governing disputes arising from a Nebraska resident’s business transactions with a Colorado corporation, the court determined that the “most significant relationship” test favored Colorado because the alleged fraud and wrongful refusal to transfer stock that caused harm to the debtor occurred in Colorado. The adoption of the U.C.C. displaced the bankruptcy estate’s common-law claims, so the court dismissed those. Moreover, even if those causes of action were not supplanted by the U.C.C., the claims were not brought within Colorado’s three-year statute of limitation and were dismissed as untimely. The trustee unsuccessfully argued that the “continuing tort” doctrine should apply. Likewise, with regard to the trustee’s allegation of federal securities law violations, the court found it to be untimely as it was filed outside of the two-year statute of limitations.

  • 08/29/2014
    Korley B. Sears, Ch. 11, BK10-40277 (Aug. 29, 2014) 08/29/2014

    Summary judgment was granted to creditors whose claims were based on a stock sale agreement and promissory notes from the debtor. Res judicata prevented the debtor from changing his position on liability based on the outcome of the creditors’ dispute with a co-debtor on similar claims.

  • 08/19/2014
    Rick D. Lange, Chap. 7 Trustee v. Dan Henslee (In re Kelly Leann Michener & Thomas J. Michener), Ch. 7, BK14-40294, A14-4024 (Aug. 19, 2014) 08/19/2014

    In this action brought by the Chapter 7 trustee to avoid and recover a pre-petition transfer of funds from the debtors to their residential landlord as a preference, the court denied the trustee’s motion for summary judgment. While the landlord’s § 365(p) argument regarding the assumption of a personal property lease was inapplicable here, the affirmative defenses in the preference statute were viable. The debtors’ pre-payment of a month’s rent could be considered an substantially contemporaneous exchange for new value, while the lump-sum payment of a six-month arrearage requires a factual inquiry into whether that was part of the parties’ ordinary course of business dealings or financial affairs.

  • 07/11/2014
    William H. Sutton, Jr., Ch. 13, BK14-80189 (July 11, 2014) 07/11/2014

    The claim of the debtor’s former wife should be allowed as a general unsecured claim rather than as a domestic support obligation. The claim was based on the parties’ property settlement agreement, under which the debtor was to make a lump-sum payment to his former wife within five years after entry of the decree of dissolution. Nothing about the debt indicated it was “in the nature of support,” so it was not entitled to priority or excepted from discharge.

  • 07/03/2014
    Christopher S. Johnson & Kimberly S. Johnson, Ch. 7, BK03-83695 (July 3, 2014) 07/03/2014

    The court denied the debtor’s motion to reopen her bankruptcy case for purposes of determining the dischargeability of judgment debt for violations of state deceptive trade practices and consumer protection laws. Bankruptcy Code § 350(b) calls for reopening a case to administer assets or accord relief to the debtor. While resolution of the dischargeability  issue may provide some relief to the debtor, it would not affect the bankruptcy estate or its creditors, which weighs against reopening the case. In addition, the state court that rendered the judgment has concurrent jurisdiction to determine whether the debt is dischargeable under § 523(a)(7) as a fine, penalty or forfeiture.

  • 07/01/2014
    Jeffrey R. Odell & Michelle L. Miller, Ch. 7, BK14-80602 (July 1, 2014) 07/01/2014

    The debtor is the beneficiary of a living trust. The Chapter 7 trustee claimed the debtor’s interest in the trust as an asset of the bankruptcy estate. Construing the trust agreement in its entirety, the court overruled the trustee’s motion, finding that the trust is subject to an enforceable spendthrift provision and is excluded from property of the bankruptcy estate pursuant to § 541(c)(2).

  • 06/23/2014
    Biovance Technologies, Inc., Ch. 11, BK10-82441 (June 23, 2014) 06/23/2014

    The court overruled the debtor’s objection to the lender’s claims on two grounds: (1) judicial estoppel does not bar a creditor from amending its claim to correct the calculation of the balance due on the petition date, and (2) long-standing legal authority allows a creditor to assert a claim for the full amount of the debt owed, without deducting amounts recovered from third parties. “The confirmed plan is not a recovery or payment in full. Instead, it is a promise to pay. The foregoing authorities are clear that until such time as ANB has received payment in full, it is entitled to assert the balance due against all responsible parties.”

  • 06/23/2014
    William Edward Julien, Ch. 11, BK10-82442 (June 23, 2014) 06/23/2014

    The court overruled the debtor’s objection to the lender’s claims on two grounds: (1) judicial estoppel does not bar a creditor from amending its claim to correct the calculation of the balance due on the petition date, and (2) long-standing legal authority allows a creditor to assert a claim for the full amount of the debt owed, without deducting amounts recovered from third parties. “The confirmed plan is not a recovery or payment in full. Instead, it is a promise to pay. The foregoing authorities are clear that until such time as ANB has received payment in full, it is entitled to assert the balance due against all responsible parties.”

  • 06/12/2014
    Nebraska Dep't of Health & Human Servs. v. Katherine Lynne Zupancic (In re Zupancic), Ch. 7, BK13-42031, A13-4066 (June 12, 2014) 06/12/2014

    The court granted summary judgment to a creditor who brought a non-dischargeability action based on a state court judgment against the debtor under the Nebraska False Medicaid Claims Act. The debtor, a mental health practitioner, was found to have filed claims for reimbursement from the Medicaid program for which she had no supporting documentation. She was also found to have made fraudulent representations in connection with those claims. The state court verdicts and judgment, including an award of treble damages, established the elements of § 523(a)(2)(A) and collaterally estopped the debtor from challenging the creditor’s allegations in this proceeding.

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