The court denied the defendant’s motion for summary judgment in a dispute over the amount owed to the debtor for goods sold on account. Material questions of fact exist as to how the balance due should be calculated and whether credits should be granted.
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The court found that the debtors intentionally excluded significant debts from their loan application to mislead the lender and induce it to approve the loan. The debt remaining after the sale of the collateral was non-dischargeable under § 523(a)(2)(B).
A lender who cannot produce the promissory note it is attempting to foreclose and takes the position that the note is lost must comply with Neb. U.C.C. § 3-309 and prove by clear and convincing evidence that it no longer has possession of the instrument.
The presumption of insolvency in this preference action was unrebutted by the defendant after the trustee showed that the schedules didn’t truly reflect asset values. However, a question of fact existed as to the ordinary course of business defense.
The court overruled debtors’ objection to the IRS’s claim for tax penalties related to failure to timely file returns. Neither poor health nor debtors’ belief that they didn’t need to file returns constituted “good cause” for not filing the returns.
The court discharged the debt to the bank. Although the debtor listed as collateral certain items he did not own but was in the process of buying, there was no evidence of intent to deceive, nor did the bank rely on that representation in making the loan.
The court denied the trustee’s motion for summary judgment on claims concerning preferential transfers. There was a question as to the insider status of one of the defendant transferees, as well as issues of affirmative defenses under § 547(c).
The debtor could not strip off the junior lien on her home because the record indicated there was sufficient equity in the property to secure a portion of that lien. The debtor did not submit any evidence, so the court relied on the bankruptcy schedules.
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 dismissed the debtor’s case because the amount of noncontingent, liquidated, unsecured debt exceeded the Chapter 13 debt limit in § 109(e). Debtor’s assertion of claims against the creditor did not change the liquidated nature of the debt.