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."
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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.
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.
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.
After remand from the Eighth Circuit Bankruptcy Appellate Panel, Judge Shon Hastings, sitting by designation, considered the following question: Whether the $1,190,000 received by the trustee of the Tri-State Financial bankruptcy estate from the Tri-State Ethanol bankruptcy estate is property of the Tri-State Financial bankruptcy estate, and if so, who is entitled to the funds. The court ruled the funds became property of the Tri-State Financial estate and were not subject to the claim of equitable ownership by a group of investors who had contributed post-petition funding to Tri-State Ethanol through Tri-State Financial. As property of the bankruptcy estate, the funds were subject to another creditor's perfected security interest, which was superior to the trustee's claim to the funds on behalf of unsecured creditors.
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.
The court denied confirmation of the debtor's Chapter 11 plan of reorganization, addressing a creditor's objection on three grounds. First, the court ruled that the plan had been accepted by the holder of an impaired allowed post-petition claim. Second, the court declined to reverse its position that the absolute priority rule does not apply to individual Chapter 11 debtors. Third, the court found that, regardless of whether the means test deductions should be considered when calculating a Chapter 11 debtor's disposable income, this debtor appeared to have more disposable income than she was proposing to pay toward the plan.
Because factual issues exist regarding elements of the denial-of-discharge causes of action, particularly as to the debtor's intent in transferring the asset in question, summary judgment was denied with the matter to be set for trial.
In issuing a written opinion to deny the plaintiffs' motion for default judgment, the court seeks to provide guidance to practitioners with regard to unambiguously identifying entity defendants and accomplishing effective service of process. A defendant should be described by its proper name, type of entity, and state of organization so the appropriate party is readily identifiable. Specific identification also helps in determining how to properly serve the defendant under Federal Rule of Civil Procedure 4 and Federal Rule of Bankruptcy Procedure 7004.
Funds deposited with the Chapter 13 trustee are to be returned to the debtor upon dismissal of the case, but those funds are subject to the remedies of creditors under state or federal law, so they may be attached, levied, or garnished while in the trustee's possession upon the termination of the automatic stay.
The bankruptcy court recommended to the district court that it deny the debtor-defendant's motion to withdraw the reference of the bankruptcy case and adversary proceeding because the motion was unfounded. The issues raised in the adversary proceeding arise under Title 11 and are clearly within the bankruptcy court's constitutional authority to adjudicate. The court further recommended the imposition of monetary sanctions under Rule 9011 against counsel for the debtor-defendant for repeatedly filing frivolous pleadings that were not well-grounded in fact, warranted by existing law, or based on a good-faith argument.