You are here

Opinions

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.

The court permitted the debtor to claim a personal property exemption in wages garnished within the 90 days before bankruptcy filing because the debtor would have standing to avoid the transfer of exempt property, which the wages would have been, once in the debtor's possession, had they not been garnished.

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.

The court overruled an objection to a claim that was based on a loan made ostensibly to the debtors but used by the debtors' owner for personal purposes. The evidence indicated that a portion of the funds were used to pay operating expenses for one of the debtors. In addition, the court found that despite a purported transfer of all of the debtors' assets prior to the loan being made, the owner continued to operate the business and the lender could reasonably have believed the funds would be used for business purposes. The court approved a reduced amount of the claim as agreed to by the bankruptcy trustee.

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.

The court granted summary judgment to a lender who objected to the debtors' attempt to modify  their monthly mortgage payments through their proposed Chapter 13 plan. The debtors argued that the terms of the loan had been modified, but there was no evidence of anything other than a temporary modification. The debtors were given time to file an amended plan to account for the appropriate mortgage payment.

The debtors do not have standing to challenge the assignment of their mortgage, so that count of their complaint was dismissed. The dispute over payments made to a junior lienholder after the senior lien had been stripped off (but which was later reinstated) is not a matter for the bankruptcy court to decide. However, the debtors did incur additional expenses in attempting to ascertain the validity and priority of the liens, and they may go forward on that count of their complaint.

This lawsuit originated in state court nearly 15 years ago and had been tried, appealed, and set for retrial there. The same matters were also raised in probate court in a claim against a deceased defendant's estate. When the current defendant filed bankruptcy, the case was removed to bankruptcy court as an adversary proceeding. While the adversary proceeding involved claims adjudication and was therefore a core proceeding, the bankruptcy court nevertheless determined that, because of prevailing state law issues and the case's lengthy history in state court, permissive abstention was the appropriate course of action and it remanded the litigation to state court.

A lender was not obligated to release its pre-petition lien when the debtors filed bankruptcy, so the lender is not subject to a finding of civil contempt or sanctions for its failure to do so. Its failure to timely file an amended UCC financing statement releasing some of the collateral, and thereby causing harm to the debtors, was negligent, but not willful.

The court denied summary judgment for allegations of preferences and fraudulent transfers. Factual issues existed as to whether the creditor was an insider, and whether the transfers were made with intent to defraud. The judgment on which the creditor relied in collecting the debt was entered after the automatic stay was in effect, so it was void. Whether that stay violation was willful was a question to be determined at trial.

After hearing testimony from the debtors about their failure to comply with a creditor's discovery requests, the court granted the creditor's motion for summary judgment and awarded attorney fees as sanctions. Having found the debtors' explanations of the whereabouts of the collateral in question to be evasive and less than credible, the court also denied them a discharge.

Pages