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 permits wholly unsecured liens to be stripped off.
You are here
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.
The court granted summary judgment and revoked the debtor's Chapter 7 discharge after the U.S. Trustee learned the debtor had obtained a Chapter 7 discharge in another district less than eight years ago and had made false oaths in connection with the present case. The debtor filed the Nebraska case using a different Social Security number, so the previous bankruptcy did not show up on a PACER search. The debtor also lied at her § 341 meeting when asked if she'd ever filed bankruptcy before, and she failed to disclose certain business interests in her statement of financial affairs. She also failed to disclose more than $20,000 in fines, penalties, and disgorged fees she had been ordered to pay for her unauthorized practice of law while acting as a bankruptcy petition preparer.
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 permits wholly unsecured liens to be stripped off.
On the bankruptcy trustee's complaint alleging securities fraud and common-law causes of conversion, breach of fiduciary duty, and tortious interference with business relationships/expectancy against the defendant, the bankruptcy court ruled that it had non-core related-to jurisdiction over the matters and, under Executive Benefits Ins. Agency v. Arkison (In re Bellingham Ins. Agency, Inc.), ___ U.S. ___, 134 S. Ct. 2165, 2170 (2014), could enter final judgment with the consent of the parties. Accordingly, the court granted summary judgment to the defendant.
In ascertaining the applicable choice-of-law rules governing disputes arising from a Nebraska resident's business transactions with a Colorado corporation, the court determined that the "most significant relationship" test favored Colorado because the alleged fraud and wrongful refusal to transfer stock that caused harm to the debtor occurred in Colorado. The adoption of the U.C.C. displaced the bankruptcy estate's common-law claims, so the court dismissed those. Moreover, even if those causes of action were not supplanted by the U.C.C., the claims were not brought within Colorado's three-year statute of limitation and were dismissed as untimely. The trustee unsuccessfully argued that the "continuing tort" doctrine should apply. Likewise, with regard to the trustee's allegation of federal securities law violations, the court found it to be untimely as it was filed outside of the two-year statute of limitations.
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.
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.
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.
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.
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).
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."