*THE HOLDING OF THIS CASE HAS BEEN ABROGATED BY THE RULING IN LAW v. STOVER (IN RE LAW), 336 B.R. 780 (B.A.P. 8th Cir. 2006) (income tax refunds received post-petition are property of the estate).*
Published at 314 B.R. 433. Refundable portion of federal child tax credit is not property of the bankruptcy estate.
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Exemptions are determined as of the petition date, so a state statute regarding exemption of earned income credits, which took effect post-petition, does not apply to this debtor's exemptions as the legislature did not make the statute retroactive
Abstention under 28 U.S.C. section 1334(c) was appropriate. This is not a core proceeding, the sole issue in the lawsuit is one of interpretation of a state statute, and the case could not have been brought in federal court but for this bankruptcy case.
Testamentary trust created by debtor's mother constitutes a spendthrift trust because it's unclear from trust language whether debtor has an "ownership equivalent" in trust property. Debtor's interest in trust assets therefore isn't property of the estate.
11 U.S.C. s. 521(2)(A) requires a Ch. 7 debtor to file a statement of intent for collateral securing consumer debts. The debtor can't simply continue to make payments under the terms of the note; he must redeem, reaffirm, surrender or exempt the property
The court allowed the parties to go forward with state court litigation concerning the debtors' liability on a debt. If the creditor obtained a judgment in that action, then the parties could recommence a non-dischargeability adversary proceeding.
Debtors' attempt to void judgment lien on real property is denied because the Supreme Court case of Dewsnup v. Timm prohibits using section 506(d) for lien-stripping purposes. The claims allowance process required for 506(d) doesn't occur in a no-asset 7.
Summary judgment is denied because state court judgment on which plaintiffs rely doesn't address the same elements of fraud and defalcation by a fiduciary that need to be established to support a finding of non-dischargeability under section 523
Of 3 under-collaterized loans to debtor, 1 was discharged under 523(a)(2)(A) because debtor didn't intentionally mislead lender about lack of collateral. The other 2 loans were excepted under 523(a)(2)(B) because debtor submitted a false fin'l statement
Joshua & Catherine Archer v. Cornerstone Bank (In re Archer), A03-4076, BK03-41425, Ch. 7 04/12/2004
Debtors sued bank under section 522(h) to recover preferences. The loan payments were preferential because the bank's lien had been avoided in the bankruptcy, rendering it unsecured, so the payments caused it to receive more than it otherwise would have