The debt resulting from a limited liability company manager's unauthorized use of company funds was non-dischargeable under § 523(a)(4). The debtor admitted to acting in a fiduciary capacity as the manager, and his misappropriation of funds constituted defalcation by a fiduciary. The court also awarded pre- and post-judgment interest on the debt.
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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.
The court sustained a creditor's objection to confirmation of the debtor's Chapter 13 plan on the basis of the proposed post-confirmation interest rate on the debt. The court ruled that the debtor should pay the contract rate of 8.5 percent, rather than the formula rate of 5.25 percent, because of the significant degree of risk the creditor will face. The debt was delinquent on the petition date, the debtor had not made payments pursuant to the plan, and there would be delays and possible additional costs before the creditor could collect if the case was dismissed.
In this fraudulent transfer action, the court denied the defendant transferee's motion for summary judgment on the grounds that factual issues exist as to whether there was any unencumbered value in the property that was transferred and whether the debtor received a reasonably equivalent value for the transfer. Additional evidence is needed to explain the difference between the valuation of the property on the debtor's financial statement and the valuation of the property in the asset purchase agreement executed approximately two months later.
An unsecured junior lien on the debtors' residential real estate may be avoided after the debtors complete Chapter 13 plan payments. The case law in the Eighth Circuit, interpreting Nobelman, permits wholly unsecured liens to be stripped off.
The court denied the debtor's motion challenging the court's jurisdiction over an adversary proceeding seeking denial of the debtor's Chapter 11 discharge. Dischargeability is a core proceeding over which the bankruptcy court has jurisdiction. It is also an action in equity, so the debtor is not entitled to a jury trial in an Article III court.
The court denied the debtor's proposed use of cash collateral from the sale of cattle because the creditor was not adequately protected. The debtor's cash flow estimates were not reliable as there was no evidence of the future market value of the animals or even the actual number of animals on hand at the time of the hearing.
The debtor was a homebuilder. The debtor's lender held a deed of trust lien on certain real estate and improvements owned by the debtor. A construction lien was subsequently filed against the same property for work performed. When the home sold, the court ruled that the deed of trust lien had priority over the construction lien, so the lender was entitled to the distribution of the sale proceeds.
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.
In this fraudulent transfer action, the plaintiff's motion for summary judgment was denied because there was an issue of fact as to the element of insolvency, as the debtor's balance sheet from near the time of the transfer showed that assets exceeded liabilities.
The court denied the debtor's objection to the claim of the Nebraska Department of Health & Human Services regarding the overpayment of child support to the debtor while the debtor's child was in foster care. The debtor argued that the money she received was not child support and therefore was not assigned to the department because the funds were garnished from someone falsely using the Social Security number of the child's deceased father. However, the debtor waited too long to make that argument, as she should have challenged the state's interpretation when she received notice of it in 2008.