In a rare outcome, the court denied the debtor a discharge. The record showed that the debtor transferred property (residence, stock shares, boat, and two vehicles) to his wife shortly before judgments were entered against him in a state court lawsuit and within a few months before he filed a Chapter 7 petition. The debtor made these transfers to protect the assets from his creditors and prevent or discourage them in their collection efforts. A fresh start is a privilege, not a right, and debtors who transfer property for the purpose of keeping creditors from collecting valid debts forfeit that privilege.
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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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Daniel H. Dunker v. James E. Bachman (In re Bachman), Ch. 7, BK15-80069, A15-8043 (July 20, 2017) 07/20/201707/20/2017
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Ron Ross, Chap. 11 Trustee v. Scott A. Buckles (In re Skyline Manor, Inc.), Ch. 11, BK14-80934, A15-8035 (June 13, 2017) 06/13/201706/13/2017
After trial on whether the debtor was insolvent when it made transfers to three defendants, the court ruled the transfers were fraudulent because the debtor was not paying its debts as they became due. (The other elements of the fraudulent transfers had previously been established on summary judgment.) Transfers to a fourth defendant were found not to be fraudulent because the defendant was a “mere conduit” for the transfers and did not exercise dominion or control over the funds.
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Christopher David Clark v. Select Portfolio Servicing (In re Clark), Ch. 13, BK15-80071, A16-8034 (May 30, 2017) 05/30/201705/30/2017
The court granted summary judgment to the lienholder in an adversary proceeding where the debtor challenged the assignment of the note and deed of trust on his residence, but produced no evidence to support his allegations.
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JN Medical Corp., Ch. 11, BK17-80174 05/17/201705/17/2017
A deficiency remained after a deed of trust sale, so the creditor sought to pursue that debt in bankruptcy court. The court ruled that the creditor lacked standing because it had not obtained a deficiency judgment under Nebraska law and therefore was barred from bringing “an action” to recover the balance due. However, the creditor is likely entitled to pursue its non-judicial remedies under the UCC, and the bankruptcy court would go forward with a trial on the creditor’s motion for relief from stay to do so.
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Ron Ross, Chap. 11 Trustee v. Robert L. Rynard, Jr. (In re Skyline Manor, Inc.), Ch. 11, BK14-80934, A17-8008 (Apr. 14, 2017) 04/14/201704/14/2017
The bankruptcy court recommends to the district court that it withdraw the reference of this adversary proceeding. The bankruptcy trustee seeks to recover fraudulent transfers from the corporate transferee’s principal through alter ego and veil-piercing theories. The defendant is entitled to a jury trial on these state-law non-bankruptcy claims, so the district court is the appropriate place for the case.
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Ronald P. Hasley & Vicki A. Hasley, d/b/a Swite Enter. v. Tyler B. Irons (In re Irons), Ch. 7, BK15-40876, A15-4051 (Mar. 9, 2017) 03/09/201703/09/2017
After a trial interrupted by the plaintiff’s medical condition, which prevented him from testifying and necessitated further continuances, the court granted the debtor-defendant’s motion for judgment on partial findings under Rule 7052.
The plaintiffs were unable to establish the elements of their non-dischargeability claims under § 523(a)(2)(A) and § 523(a)(4). The state court judgment upon which they relied was essentially a default judgment, not decided on the merits, and had no res judicata effect in this adversary proceeding. There was no evidence of fraud or false representations, or justifiable reliance on such. The parties’ relationship was contractual, not based on an express trust. Judgment was entered for the debtor-defendant.
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Ron Ross, Chap. 11 Trustee v. Scott A. Buckles (In re Skyline Manor, Inc.), Ch. 11, BK14-80934, A15-8035 (Feb. 16, 2017) 02/16/201702/16/2017
The court granted partial summary judgment to the Chapter 11 trustee on the issue of reasonably equivalent value in this action to avoid certain allegedly fraudulent transfers by the debtor to third parties. The evidence did not support the defendants’ “identity of interests” and “indirect benefits” defenses.
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Ron Ross, Ch. 11 Trustee v. John Bartle (In re Skyline Manor, Inc.), Ch. 11, BK14-80934, A16-8024 (Feb. 15, 2017) 02/15/201702/15/2017
The court recommended granting the defendants’ unopposed motion to withdraw the reference of this adversary proceeding because the complaint alleges only state-law non-core claims over which the bankruptcy court does not have authority to enter a final judgment. In addition, the defendants are entitled to a jury trial, which will not occur in bankruptcy court.
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Barbara Kay Beraldi v. Midland Properties, LLC (In re Beraldi), Ch. 7, BK16-81286, A16-8057 (Feb. 3, 2017) 02/03/201702/03/2017
The court granted an unopposed summary judgment to a debtor whose wages were garnished in the 90 days prior to the filing of the bankruptcy petition. The debtor established all the elements of a preferential transfer, so the transfers were set aside and the defendant was ordered to return the funds to the debtor.
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Tiffany Lee Cooley v. First NLC Fin'l Servs., LLC (In re Cooley), Ch. 13, BK15-81176, A16-8046 (Feb. 1, 2017) 02/01/201702/01/2017
The debtor’s motion for summary judgment in an action to avoid the lien of a junior lienholder was denied because the defendant(s) were not properly served.