After a trial, the court denied the plaintiffs’ complaint to except a debt from discharge under § 523(a)(6). The alleged debt concerned a deficiency in the plaintiffs’ share of proceeds from a partition sale forced by the debtor, under facts that seemed more like a breach of contract shoe-horned into a § 523(a)(6) proceeding. The evidence did not support a finding of willfulness or malice on the part of the debtor.
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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.
After extensively reviewing the history of Nebraska’s homestead law, the bankruptcy court held that a married couple may claim only a single homestead exemption in one parcel of property.
When the Nebraska legislature amended § 40-102 in 2014, it allowed either spouse to claim the homestead, but it “did not change the fact the claiming spouse makes the selection for the married couple.” The court gave several reasons for this:
Section 40-102 continues to differentiate between married couples and unmarried individuals. It retains the consent language. The balance of the act remains unchanged and continues to differentiate between a homestead and the value of the exemption. The homestead continues to be in property, not in an “interest” in property. Finally, and perhaps most importantly, the LB 964 did not change long-standing Nebraska law holding one parcel of property cannot sustain two homesteads.
In speaking to the dissonance between the long-standing proposition of law that two homesteads cannot be claimed in a single parcel of property and the bankruptcy court’s 1997 Roush decision, the court overruled Roush “[t]o the extent [it] could be read to allow a married couple two homesteads.”
The bankruptcy court granted the debtor’s motion to avoid a lien that impaired his homestead exemption under § 522 “[b]ecause the debtor is allowed to claim a homestead in his one-half interest in property, and because there is no evidence or presumption his non-filing spouse consented to a homestead in her one-half interest.” After analyzing the 2011 Nebraska bankruptcy decision of In re Pedersen and the cases cited therein, the court distinguished it from the present case because Pedersen involved a married couple filing jointly while this case involves a debtor and his non-filing spouse. The court would not presume the non-filing spouse consented to the selection of the homestead from her separate property.
After a trial, the court sustained the debtors’ objection to a claim because there was no underlying basis for the debt. The creditor argued it was on account of a breach of contract, but he had no separate judgment on that basis, nor did he plead it in the associated adversary complaint he filed.
The court also ruled in favor of the debtors in the adversary proceeding, which sought to except the debt from discharge under § 523(a)(2)(A). The issue of fraudulent intent came down to the credibility of the parties’ testimony, and the court found the debtor’s explanations to be more believable.
The court overruled an objection to a claim of exemptions under Neb. Rev. Stat. § 25-1552(1).
As to the assertion that the exempted property was potentially incorrectly valued, the court said if the property is worth less than claimed, the excess exemption claimed was not necessary. If any item of property is worth more than the debtors claimed, the excess value remains available for the bankruptcy estate. If the property is worth materially more than claimed or if the debtor did not schedule assets, the remedy is an objection to or revocation of discharge.
As to the assertion that the exemptions were somehow fraudulent, the court pointed out that a generic “scheme of fraud” allegation has not been found to be a valid objection to a wildcard exemption under either federal or state law. Moreover, the objection did not plead fraud with particularity as required by Fed. R. Civ. P. 9.
Finally, the evidence was sufficient to sustain the claimed exemptions.
The bankruptcy court denied a debtor’s objection to the claim of a creditor asserting an attorney’s lien in real estate awarded to her in divorce proceedings. The court ruled that, under Nebraska law, although an attorney does not have a general or possessory attorney’s lien against a client’s real estate, an attorney’s charging lien can attach to real estate that is the subject of and recovered in an action.
However, this order is not final, as issues remain to be decided. Those issues include whether a charging lien attaches to real estate recovered in a divorce action; how much of the lien is secured by the real estate; is an attorney’s charging lien against real estate avoidable in an adversary proceeding as a statutory lien under 11 U.S.C. §§ 544 and 545; and does the secured claim need to be estimated for purposes of a Chapter 13 plan?
The court granted the plaintiff’s motion for default judgment, and found that the state court judgment in her favor on claims for relief including invasion of her right to privacy was sufficient to support a finding that the judgment debt was non-dischargeable under 11 U.S.C. § 523(a)(6) as a debt for willful and malicious injury.
In a matter of first impression in this district, the bankruptcy court considered how to harmonize a federal agency’s Touhy regulations with the Federal Rules of Civil Procedure where documents are sought from an opposing litigant and not subpoenaed or requested from the federal agency.
The plaintiffs moved to compel the production of FDIC examination reports from a bank. The FDIC raised the bank examination privilege and agency regulations governing the disclosure of documents otherwise exempt from public disclosure requirements (known as Touhy regulations). The Touhy regulations are based on sovereign immunity to protect the government from being forced to comply with a subpoena.
The court examined the tension between a party’s right under Rule 34/Rule 7034 to request the production of relevant documents in the responding party’s possession, custody, or control, and the sovereign immunity of government agencies. Under the circumstances of this case, the court held that sovereign immunity is not implicated by the discovery request, because the plaintiffs were seeking the records from a bank, not from the FDIC. The court permitted the plaintiffs to request the records from the bank without making a Touhy request to the FDIC. Separately, the court would consider the claimed bank examination privilege after an in camera review of the records.
In a matter of first impression in this district, the bankruptcy court considered how to harmonize a federal agency’s Touhy regulations with the Federal Rules of Civil Procedure where documents are sought from an opposing litigant and not subpoenaed or requested from the federal agency.
The plaintiffs moved to compel the production of FDIC examination reports from a bank. The FDIC raised the bank examination privilege and agency regulations governing the disclosure of documents otherwise exempt from public disclosure requirements (known as Touhy regulations). The Touhy regulations are based on sovereign immunity to protect the government from being forced to comply with a subpoena.
The court examined the tension between a party’s right under Rule 34/Rule 7034 to request the production of relevant documents in the responding party’s possession, custody, or control, and the sovereign immunity of government agencies. Under the circumstances of this case, the court held that sovereign immunity is not implicated by the discovery request, because the plaintiffs were seeking the records from a bank, not from the FDIC. The court permitted the plaintiffs to request the records from the bank without making a Touhy request to the FDIC. Separately, the court would consider the claimed bank examination privilege after an in camera review of the records.
The court granted the Subchapter V debtor’s unopposed motion for summary judgment in this adversary proceeding seeking the court’s permission to use the plan confirmation process to restructure the manner in which the debtor provides water to and receives payment from the residents of its housing development.
The debtor has for years furnished water to the lots in the subdivision in a manner that does not allow for service to individual lots to be turned off. The water is provided under an arrangement that originally envisioned the formation of a homeowners’ association to approve assessments on each lot to pay for water service and enforce non-payment by filing a lien against the property. However, the original set of covenants has expired and the homeowners’ association was never formed. None of the subsequent covenants and easements are enforceable to give the debtor the ability to assess and collect payment for the water it provides. Most of the residents are years in arrears on water payments; this delinquency caused the debtor to file its bankruptcy petition.
In its plan, the debtor proposed a payment and assessment scheme. Because the proposal would affect the rights of parties not under the bankruptcy court’s jurisdiction, the debtor filed this adversary proceeding and served all of the lot owners. Most did not respond and are in default. None resisted this amended motion for summary judgment, so the court granted it. The debtor may proceed with developing a plan to establish a payment structure to compensate it for maintaining a water utility and providing water to residents, and to establish procedures for shutting off the water for non-payment.