The court denied the debtor's motion to dismiss the creditor's pro se complaint concerning discharge and dischargeability on the basis of timeliness. The creditor's causes of action under 11 U.S.C. §§ 523(a)(5) and (a)(15) could be brought at anytime and were not subject to a deadline. The creditor's §§ 727(a)(2) and (a)(5) allegations, while filed after the Rule 4004 deadline for objecting to discharge, were subject to an extension of time because the complaint suggested "the conduct justifying a denial of discharge has not yet occurred or [the creditor] has not yet learned of sufficient facts to support such a claim."
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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 denied confirmation of the debtor's Chapter 12 plan and offered an opportunity to file an amended plan. The secured lender had objected to the reasonableness of the repayment terms proposed by the debtor for its three promissory notes. After performing a Till analysis, the court said that while the debtor's proposed repayment schedule for its land loan with an original term of 16 years was not unreasonable, the debtor should include periodic adjustments of the interest rate over the repayment term in order to provide the creditor with the present value of its claim. Likewise, the debtor had not provided sufficient information for the court to determine whether the proposed 15-year repayment term for much shorter-term operating and term loans was appropriate under the circumstances of the case. Finally, live testimony would probably be necessary to make a feasibility determination.
The court granted summary judgment to the debtors, ordering that a wholly unsecured junior lien on the debtors' residential real estate may be avoided after the debtors complete Chapter 13 plan payments.
The court granted summary judgment to the debtor, ordering that a wholly unsecured junior lien on the debtor's residential real estate may be avoided after the debtor completes Chapter 13 plan payments.
The court denied the debtor's motion for summary judgment against a junior lienholder on the debtor's home because the debtor did not properly serve the creditor.
The court denied summary judgment on dischargeability under §§ 523(a)(2)(A) and (a)(4) of a debt that was based on a state court judgment. That judgment was a summary judgment on a breach of contract issue, so the elements of fraud or defalcation had not been established. The motion in state court had not been defended by the debtor, possibly due to counsel's negligence, so collateral estoppel may not be applicable. In sum, genuine issues of material fact exist as to dischargeability, so the matter should be tried.
The court allowed in part the final application for compensation for the law firm representing a Chapter 11 debtor. The court disallowed the portion of the requested fees related to the abandonment of assets because the court previously ruled that the firm violated the standard of care concerning its representation of the debtor in this regard. The firm also was ordered to disgorge $400,000 in fees due to its "blatant disregard of the Bankruptcy Code and the rules" in misrepresenting to the court its compensation arrangements with and payments from third parties.
The court found that counsel for the debtor violated the standard of care owed to his client because he failed to advise the debtor of the legal consequences, risks and benefits of the abandonment of assets, as well as other legal alternatives. Counsel's negligence was the proximate cause of financial losses by the debtor, and the court awarded the debtor $1.8 million for the lost market value of the abandoned assets.
In a priority dispute between the man who sold cattle to the debtor but didn't receive payment for them and the lender and feedlot that financed and fed the cattle for the debtor, the court granted summary judgment to the lender and the feedlot. The seller sent a valid bill of sale with the cattle, which transferred title to the debtor. The seller relied on the debtor's word and took no steps to protect himself against the risk of non-payment. Title did not revest in the seller when the debtor failed to pay. Even if the seller were to have a security interest in the cattle, the perfected security interest of the lender took priority over the seller's unperfected interest because, under U.C.C. § 2-403, the debtor was able to transfer greater title rights to the lender as a good-faith purchaser than he could claim himself.
The court granted summary judgment to the debtor in order to establish the amount of the pre-petition mortgage arrearage to be paid through the Chapter 13 plan. The lienholder did not file a proof of claim or participate in the litigation.