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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  • 08/29/2014
    Korley B. Sears, Ch. 11, BK10-40277 (Aug. 29, 2014) 08/29/2014

    Summary judgment was granted to creditors whose claims were based on a stock sale agreement and promissory notes from the debtor. Res judicata prevented the debtor from changing his position on liability based on the outcome of the creditors’ dispute with a co-debtor on similar claims.

  • 08/19/2014
    Rick D. Lange, Chap. 7 Trustee v. Dan Henslee (In re Kelly Leann Michener & Thomas J. Michener), Ch. 7, BK14-40294, A14-4024 (Aug. 19, 2014) 08/19/2014

    In this action brought by the Chapter 7 trustee to avoid and recover a pre-petition transfer of funds from the debtors to their residential landlord as a preference, the court denied the trustee’s motion for summary judgment. While the landlord’s § 365(p) argument regarding the assumption of a personal property lease was inapplicable here, the affirmative defenses in the preference statute were viable. The debtors’ pre-payment of a month’s rent could be considered an substantially contemporaneous exchange for new value, while the lump-sum payment of a six-month arrearage requires a factual inquiry into whether that was part of the parties’ ordinary course of business dealings or financial affairs.

  • 07/11/2014
    William H. Sutton, Jr., Ch. 13, BK14-80189 (July 11, 2014) 07/11/2014

    The claim of the debtor’s former wife should be allowed as a general unsecured claim rather than as a domestic support obligation. The claim was based on the parties’ property settlement agreement, under which the debtor was to make a lump-sum payment to his former wife within five years after entry of the decree of dissolution. Nothing about the debt indicated it was “in the nature of support,” so it was not entitled to priority or excepted from discharge.

  • 07/03/2014
    Christopher S. Johnson & Kimberly S. Johnson, Ch. 7, BK03-83695 (July 3, 2014) 07/03/2014

    The court denied the debtor’s motion to reopen her bankruptcy case for purposes of determining the dischargeability of judgment debt for violations of state deceptive trade practices and consumer protection laws. Bankruptcy Code § 350(b) calls for reopening a case to administer assets or accord relief to the debtor. While resolution of the dischargeability  issue may provide some relief to the debtor, it would not affect the bankruptcy estate or its creditors, which weighs against reopening the case. In addition, the state court that rendered the judgment has concurrent jurisdiction to determine whether the debt is dischargeable under § 523(a)(7) as a fine, penalty or forfeiture.

  • 07/01/2014
    Jeffrey R. Odell & Michelle L. Miller, Ch. 7, BK14-80602 (July 1, 2014) 07/01/2014

    The debtor is the beneficiary of a living trust. The Chapter 7 trustee claimed the debtor’s interest in the trust as an asset of the bankruptcy estate. Construing the trust agreement in its entirety, the court overruled the trustee’s motion, finding that the trust is subject to an enforceable spendthrift provision and is excluded from property of the bankruptcy estate pursuant to § 541(c)(2).

  • 06/23/2014
    Biovance Technologies, Inc., Ch. 11, BK10-82441 (June 23, 2014) 06/23/2014

    The court overruled the debtor’s objection to the lender’s claims on two grounds: (1) judicial estoppel does not bar a creditor from amending its claim to correct the calculation of the balance due on the petition date, and (2) long-standing legal authority allows a creditor to assert a claim for the full amount of the debt owed, without deducting amounts recovered from third parties. “The confirmed plan is not a recovery or payment in full. Instead, it is a promise to pay. The foregoing authorities are clear that until such time as ANB has received payment in full, it is entitled to assert the balance due against all responsible parties.”

  • 06/23/2014
    William Edward Julien, Ch. 11, BK10-82442 (June 23, 2014) 06/23/2014

    The court overruled the debtor’s objection to the lender’s claims on two grounds: (1) judicial estoppel does not bar a creditor from amending its claim to correct the calculation of the balance due on the petition date, and (2) long-standing legal authority allows a creditor to assert a claim for the full amount of the debt owed, without deducting amounts recovered from third parties. “The confirmed plan is not a recovery or payment in full. Instead, it is a promise to pay. The foregoing authorities are clear that until such time as ANB has received payment in full, it is entitled to assert the balance due against all responsible parties.”

  • 06/12/2014
    Nicole Corrine Beauvais, Ch. 7, BK14-40365 (June 12, 2014) 06/12/2014

    The court denied the debtor’s uncontested motion to avoid a non-possessory, non-purchase-money security interest in the vehicle she uses to commute to work. Following the holding of In re Cardwell, Case No. BK13-40623 (Sept. 12, 2013), the court ruled that simply using a vehicle for commuting is not sufficient to define it as a tool of the trade under federal law, and federal law determines the availability of lien avoidance.

  • 06/12/2014
    Nebraska Dep't of Health & Human Servs. v. Katherine Lynne Zupancic (In re Zupancic), Ch. 7, BK13-42031, A13-4066 (June 12, 2014) 06/12/2014

    The court granted summary judgment to a creditor who brought a non-dischargeability action based on a state court judgment against the debtor under the Nebraska False Medicaid Claims Act. The debtor, a mental health practitioner, was found to have filed claims for reimbursement from the Medicaid program for which she had no supporting documentation. She was also found to have made fraudulent representations in connection with those claims. The state court verdicts and judgment, including an award of treble damages, established the elements of § 523(a)(2)(A) and collaterally estopped the debtor from challenging the creditor’s allegations in this proceeding.

  • 05/22/2014
    City of Bellevue, Nebraska v. Paradise Park, Inc. (In re Paradise Park, Inc.), Ch. 11, BK11-80449, A13-8044 (May 22, 2014) 05/22/2014

    The court prepared findings and recommendations for the district court in a contractual dispute in which one of the defendants was a debtor in a Chapter 11 case arising after the contracts were entered into. The debtor had not included the creditor or the contracts in its bankruptcy and gave no notice to the creditor in time to permit it to protect its rights. Accordingly, the creditor was not bound by the terms of the debtor’s confirmed reorganization plan, nor did the plan discharge the debtor’s obligation under the contracts. In addition, the contracts were not executory, but even if they were, they were deemed rejected as part of the bankruptcy process. The court found that the creditor retained its rights and remedies under the contracts to enforce the debtor’s performance of its obligation. A pre-petition dispute over certain terms of the contract was resolved in the creditor’s favor in an administrative hearing under state law; that outcome is final and is res judicata. The debtor did not defend itself in this adversary proceeding, so the court recommended default judgment be entered against the debtor. The court also recommended the dismissal of the individual defendant, as he was not a proper party to the lawsuit.

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