Because factual issues exist regarding elements of the denial-of-discharge causes of action, particularly as to the debtor's intent in transferring the asset in question, summary judgment was denied with the matter to be set for trial.
Opinions
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Rhett R. Sears v. Korley B. Sears (In re Korley B. Sears), Ch. 11, BK10-40277, A12-4034 (Apr. 23, 2014) 04/23/201404/23/2014
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Ramsey E. Mills & Stacey D. Mills v. Nationstar (In re Mills), Ch. 13, BK08-41314, A14-4012 (Apr. 8, 2014) 04/08/201404/08/2014
In issuing a written opinion to deny the plaintiffs’ motion for default judgment, the court seeks to provide guidance to practitioners with regard to unambiguously identifying entity defendants and accomplishing effective service of process. A defendant should be described by its proper name, type of entity, and state of organization so the appropriate party is readily identifiable. Specific identification also helps in determining how to properly serve the defendant under Federal Rule of Civil Procedure 4 and Federal Rule of Bankruptcy Procedure 7004.
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Thomas J. Vaughter & Tammy Vaughter, Ch. 13, BK13-41425 (Feb. 28, 2014) 02/28/201402/28/2014
Funds deposited with the Chapter 13 trustee are to be returned to the debtor upon dismissal of the case, but those funds are subject to the remedies of creditors under state or federal law, so they may be attached, levied, or garnished while in the trustee’s possession upon the termination of the automatic stay.
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Rhett R. Sears v. Korley B. Sears (In re Sears), Ch. 11, BK10-40277, A12-4034 (Feb. 21, 2014) 02/21/201402/21/2014
The bankruptcy court recommended to the district court that it deny the debtor-defendant’s motion to withdraw the reference of the bankruptcy case and adversary proceeding because the motion was unfounded. The issues raised in the adversary proceeding arise under Title 11 and are clearly within the bankruptcy court’s constitutional authority to adjudicate. The court further recommended the imposition of monetary sanctions under Rule 9011 against counsel for the debtor-defendant for repeatedly filing frivolous pleadings that were not well-grounded in fact, warranted by existing law, or based on a good-faith argument.
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Richard D. Myers, Chap. 7 Trustee v. Michael L. Blumenthal (In re M & M Mktg., L.L.C. & Premier Fighter, L.L.C.), Ch. 7, BK09-81458, A11-8033 (Feb. 21, 2014) 02/21/201402/21/2014
The bankruptcy court recommended that the district court withdraw the reference of this adversary proceeding because a jury demand had been made. The court further ruled that the defendant’s challenges to the bankruptcy court’s jurisdiction did not need to be resolved in light of the right to a jury trial, which should be conducted by the district court.
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Mark David Wahrman v. Discover Bank (In re Wahrman), Ch. 13, BK11-81573, A13-8011 (Feb. 20, 2014) 02/20/201402/20/2014
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, interpreting Nobelman, permits wholly unsecured liens to be stripped off.
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James A. Overcash, Chap. 11 Trustee v. Carol Knisley (In re Big Drive Cattle, L.L.C.), Ch. 11, BK11-42415, A13-4040 (Feb. 20, 2014) 02/20/201402/20/2014
The court entered summary judgment for the bankruptcy trustee, finding pre-petition payments made to the creditor to be preferential transfers. The creditor placed cattle at the debtor’s feedlot to be fed out, and was to be paid after the cattle were sold and an amount deducted by the debtor for feed costs. The sale proceeds were deposited into the debtor's general operating account, and the debtor made payments to the creditor and others out of that account. Because the creditor’s funds were not segregated, he did not have a bailment, nor was a constructive trust warranted.
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James R. Bixenmann & Catherine A. Bixenmann v. Community Home Fin'l Servs. (In re Bixenmann), Ch. 13, BK11-42283, A13-4047 (Feb. 20, 2014) 02/20/201402/20/2014
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, interpreting Nobelman, permits wholly unsecured liens to be stripped off.
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Caterpillar Fin'l Servs. Corp. v. Craig & Vonnie White (In re White), Ch. 7, BK12-42639, A13-4010 (Feb. 12, 2014) 02/12/201402/12/2014
The bankruptcy court found that a debtor’s pre-petition disclaimer of an inheritance did not relate back to the date of death to prevent the property from becoming part of the bankruptcy estate. Instead, the disclaimer constituted a transfer and a trial was necessary to determine whether the transfer was made with intent to hinder, delay, or defraud creditors, which would warrant a denial of discharge.
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Craig L. White & Vonnie D. White, Ch. 7, BK12-42639 (Feb. 12, 2014) 02/12/201402/12/2014
The bankruptcy trustee and a judgment creditor proposed a compromise by which the creditor’s proof of claim would be allowed, the creditor would be paid a portion of its claim from the sale of certain assets, and the creditor’s counsel would represent the trustee in litigation to recover certain other assets for the estate. The bankruptcy court denied the motion to approve this agreement because it implicated a variety of legal issues that had not been thoroughly considered or resolved before the settlement was reached. The proposed compromise would adversely affect other creditors and the debtors and was premature.