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United States Courts Opinions

United States Courts Opinions (USCOURTS) collection is a collaborative effort between the U.S. Government Publishing Office (GPO) and the Administrative Office of the United States Courts (AOUSC) to provide public access to opinions from selected United States appellate, district, and bankruptcy courts.

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

Max Christian Kant & Ann Marie Kant, Ch. 7, BK20-40616-BSK (Nov. 28, 2022) 11/28/2022
Judge Brian S. Kruse

A creditor’s pre-petition state court action to rescind a warranty deed and to quiet title to real estate as against the debtors was pending when the Chapter 7 bankruptcy case was filed. The creditor filed a proof of claim, but did not object to dischargeability or discharge. The parties stipulated that the creditor’s claim would be estimated at zero for purposes of distribution to unsecured creditors, and the bankruptcy court ordered that the trustee should not pay that creditor’s claim.

Post-discharge, the creditor obtained relief from the automatic stay to pursue an in rem claim against the real estate. He amended his state court claim to, inter alia, remove his request for money damages. The debtors moved to dismiss the state court action on the grounds that the creditor’s claims had been discharged.

The injunction in the discharge statute plainly applies to in personam actions, but not to in rem actions. Under Nebraska statute, a quiet title action is in rem and unaffected by the discharge injunction. However, the creditor’s complaint sought to do more than quiet title. He also asked to rescind a valid deed, which is generally in personam. The fact that the creditor is not seeking the remedy of money damages does not convert his in personam action into an action in rem because the court could potentially award damages in the state court lawsuit. Accordingly, the creditor’s action is barred by the discharge injunction.

Jack Girard v. Corey A. Parkhurst (In re Parkhurst), Ch. 7, BK21-41284, A22-4004-BSK (Sept. 9, 2022) 09/09/2022
Judge Brian S. Kruse

The court granted summary judgment to the plaintiff, finding a judgment debt excepted from discharge under § 523(a)(6) because the debtor willfully injured the plaintiff and acted with malice when he purposefully hit the plaintiff multiple times.

Daniel J. Casamatta, Acting U.S. Trustee v. Karen Wright (In re Wright), Ch. 7, BK21-80939, A22-8011 (Sept. 7, 2022) 09/07/2022
Judge Brian S. Kruse

The court denied the pro se debtor a discharge under §§ 727(a)(2), (a)(3), (a)(4) and (a)(5), finding after a trial that the debtor misrepresented her true financial position in her schedules and statement of financial affairs. She amended these only after the U.S. Trustee investigated, found discrepancies, and filed a motion to dismiss for bad faith. The discrepancies were material and numerous, and the cumulative effect and nature of the falsehoods demonstrated a pattern of reckless and cavalier disregard for the truth and established the requisite fraudulent intent.

The court also found that the debtor transferred and concealed large amounts of cash and other property both pre-petition and post-petition, with many of the transfers of personal property and cash occurring after she decided to file for bankruptcy. The evidence demonstrated her intent to hinder and delay creditors.

Likewise, the debtor failed to keep adequate financial records, choosing instead to operate on a cash basis and failing to account for how the cash was spent. She also failed to explain the loss or deficiency of her assets.

James A. Overcash, Chap. 7 Trustee v. Bank of Dixon County (In re Tori Lynn Mattes), Ch. 7, BK21-80346-TLS, A21-8014-TLS (June 8, 2022) 06/08/2022
Judge Thomas L. Saladino

The court granted summary judgment to the Chapter 7 trustee, avoiding a lien that was noted on a vehicle’s certificate of title after the bankruptcy petition date. The court found the lien to be an unauthorized post-petition transfer and a preference. Because the lien was not timely noted on the title, it did not attach and was not perfected under Nebraska law. The lien was avoided and the creditor ordered to disgorge payments received on it.

In re Fern E. Paziak, Ch. 7, BK22-80020-BSK (May 25, 2022) 05/25/2022
Judge Brian S. Kruse

The court denied a creditor’s motion for relief from stay to compel debtor’s specific performance of a pre-petition contract to sell her home. The court found the contract to be executory, as neither party had performed as of the petition date, and it was deemed rejected under § 365(d)(1). The creditor’s right to specific performance is a claim in the bankruptcy case, which can be reduced to money damages. Because the debtor has received a discharge, the creditor is enjoined by the discharge injunction from continuing any action to recover the debt as a personal liability of the debtor.

In re Cassi C. Wigington, Ch. 7, BK21-80405-BSK (Mar. 1, 2022) 03/01/2022
Judge Brian S. Kruse

The debtor moved to avoid a judgment lien on her home because it impaired her homestead exemption. The creditor agreed the lien was partially avoidable; the only dispute concerned the home’s value and therefore to what extent the homestead exemption was impaired.

The court heard testimony from each party’s appraisers and found the creditor’s valuation to be supported by the evidence. The court then did the math (amount of judicial lien plus amount of all other liens on the property plus amount of the homestead exemption less the value of the debtor’s interest in the property absent any liens equals the extent of impairment), and avoided some $59,000 of the creditor’s lien.

Anthony L. Koziel & Jodie M. Koziel v. Shellpoint Mortg. Serv'g (In re Koziel), Ch. 13, BK20-80302-TLS, A21-8020-TLS (Dec. 29, 2021) 12/29/2021
Judge Thomas L. Saladino

The court granted summary judgment to the debtors, ordering that a wholly unsecured junior lien on the debtors= residential real estate may be avoided after the debtors complete Chapter 13 plan payments.

Scott Robert Paulsen v. Jeffrey S. Westerby (In re Westerby), Ch. 7, BK20-41661, A21-4010-BSK (Dec. 22, 2021) 12/22/2021
Judge Brian S. Kruse

After a trial, the court declined to except the debt at issue from discharge under § 523(a)(2)(A). The plaintiff consigned a boat and trailer for sale with the debtor’s business and turned over a signed title for the boat. The items sold four months later. When the plaintiff received a check from the debtor for less than he had anticipated, even accounting for the debtor’s sales commission, he learned that the debtor had reduced the sales price without authorization. The plaintiff also learned that the price paid by the buyer was more than the plaintiff had been told, because the debtor charged an installation fee for some optional equipment purchased by the buyer. The plaintiff did not deposit the check from the debtor while he investigated the sales price discrepancy. By the time the plaintiff tried to deposit the check, it was returned for insufficient funds. The plaintiff ultimately sued in state court and obtained a confessed judgment from the debtor personally and on behalf of his company.

After the debtor filed a bankruptcy petition, the plaintiff commenced this adversary proceeding to except the debt from discharge based on false pretenses, false representation, or actual fraud. The court found no evidence of the debtor’s intent to induce the creditor to rely on a false representation. Rather, the debtor acted in good faith in selling the consigned property and obtaining the best price he could for it. At most, there was a breach of contract. Even if the plaintiff were able to establish a claim under § 523(a)(2)(A), only a fraction of the amount sought would be excepted from discharge. The plaintiff received a check for $4,000 for the sale of the property. He contends he may have been entitled to $4,600 based on the total sales price of the boat and trailer. Had the plaintiff cashed the check in a timely manner, it would have been honored, so $4,000 of the debt owed to him is a result of his own inaction.

Topp's Mechanical, Inc., Ch. 11, BK21-40038-TLS (Nov. 23, 2021) 11/23/2021
Judge Thomas L. Saladino

The court sustained the objection to confirmation filed by the Subchapter V trustee regarding the plan provisions for payment of a secured creditor’s § 1111(b) claim. The court found that the plan proposes to pay to the secured creditor “far more than it is entitled to receive as a result of its election under 11 U.S.C. § 1111(b), [so] there is less money available to pay to unsecured creditors. Accordingly, the plan discriminates unfairly and is not fair and equitable to the class of unsecured creditors.”

In this case, the bank was under-secured. It elected under § 1111(b)(2) to waive its unsecured deficiency claim and have the entire debt treated as a secured claim. The practical application of § 1111(b)(2) is a two-part test, derived from § 1129(b)(2)(A)(i)(II), where the debtor must pay the electing creditor a stream of payments that has a present value equal to the value of the creditor’s collateral and the total amount of the stream of payments must equal the amount of the creditor’s debt.

The majority of courts permit interest payments on the allowed secured portion of the claim to apply to both parts of the § 1111(b)(2) calculation, which is the better-reasoned approach and “gives effect to the plain language of § 1129(b)(2)(A)(i) which merely requires that in a cram down, the creditor making the § 1111(b)(2) election receive a stream of payments equal to its total claim and with a present value equal to the value of the collateral. Requiring anything more would be an unwarranted and unsupportable extension of the statutory requirements of § 1129(b)(2)(A).”

Because the plan as proposed contemplated overly generous payments on the bank’s § 1111(b) claim at the expense of unsecured creditors, confirmation was denied. 

Curt Brown & Stephanie Brown v. JD Peterson & Dawn E. Peterson (In re Peterson), Ch. 7, BK20-40028-TLS, A20-4008-TLS (Aug. 30, 2021) 08/30/2021
Judge Thomas L. Saladino

After a trial on objections to discharge, the court ruled in favor of the plaintiffs and denied the debtors a discharge under § 727(a)(2) (transfer or concealment of property with intent to hinder, delay, or defraud a creditor) and § 727(a)(4)(A) (false oaths or accounts).

The court found that the debtors intentionally failed to disclose (1) their interest in two bank accounts they used for personal and business expenses, (2) their ownership of a parcel of real estate; and (3) the pre-petition transfer of personal property valued at more than $42,000 to the debtor’s mother. Contrary to the debtors’ assertion that the fault for failing to include such information on the bankruptcy schedules lies with their bankruptcy attorney, the court found that the debtors had not bothered to disclose most of the omitted information to the attorney.

In denying the discharge, the court said:

Here, the sheer volume and materiality of the misstatements and omissions demonstrates, at a minimum, reckless indifference to the truth. In fact, the schedules and SOFA appear to be intentionally false, even after two prior amendments.

        Defendants’ schedules and SOFA were and are not accurate or reliable. This is not a situation where there were only one or two innocent omissions; instead, they were numerous. Many were corrected, but only after a creditor went through the effort to dig them out and the trustee re-convened the meeting of creditors. A debtor’s “petition, including schedules and statements, must be accurate and reliable, without the necessity of digging out and conducting independent examinations to get the facts.” In re Sears, 246 B.R. at 347 (citing Mertz v. Rott, 955 F.2d 596, 598 (8th Cir. 1992)). Some omissions have not been corrected at all.
    
        Accordingly, the Court finds that the elements for denial of discharge under 11 U.S.C. § 727(a)(2) and 11 U.S.C. § 727(a)(4)(A) have been met, and it is not necessary to address the causes of action under § 727(a)(5) or § 523.

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