First Nebraska Bank ("Bank") filed a Complaint seeking denial of Debtors/ Defendants Nolan Balfour's and Maegan Balfour's discharge under 11 U.S.C. §§ 727(a)(2) and 727(a)(4). Alternatively, the Bank requests that the Balfours' debt to the Bank be excepted from discharge under 11 U.S.C. §§ 523(a)(2)(A) and 523(a)(2)(B). In its Complaint, the Bank alleges the Balfours sold or transferred collateral that serves as security for debt to the Bank but did not submit the proceeds to the Bank, misrepresented their financial condition and intentionally provided the Bank incorrect financial information on which the Bank relied in making its lending decisions. The Balfours filed an Answer to the Complaint, denying they intentionally provided the Bank false information and denying that the Bank relied on information they provided in making its lending decisions. Defendants denied other allegations as well. They seek an order dismissing the Complaint.
The court found the Bank met its burden of proving Nolan transferred the Balfours' property, within one year of bankruptcy, with intent to hinder, delay, or defraud a creditor. Nolan's discharge is denied under 11 U.S.C. § 727(a)(2).
The Bank did not satisfy its burden of proving Maegan transferred her property, within one year of bankruptcy, with the intent to hinder, delay, or defraud a creditor. Its cause of action against Maegan under 11 U.S.C. § 727(a)(2) is dismissed.
The Bank did not prove that the Balfours knowingly and fraudulently made a false oath in connection with a case under 11 U.S.C. § 727(a)(4). This claim and cause of action against both Nolan and Maegan is dismissed.
Since the Court denied Nolan's discharge under section 727, it is not necessary to analyze the Bank's section 523 claims against Nolan.
The Bank did not meet its burden of showing Maegan's debt to it should be discharged under section 523(a)(2)(A) or (B). These claims and causes of action are dismissed.
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A landlord filed a request for payment of an administrative expense claim for the difference between the amount of post-petition rent it claimed it was due and the amount the debtor actually paid. In December 2018, shortly before the debtor filed bankruptcy in January 2019, it asked the landlord to make some rent concessions to allow the debtor to keep its store open and not reject the lease immediately upon filing its petition. The landlord agreed to, and accepted payment of, a reduced rental rate. The debtor then rejected the lease and closed the store in late April 2019. The landlord argued that the lease as modified was not valid because there was no consideration, so the debtor owed the higher amount of rent pursuant to the original lease.
The court denied the request, finding the debtor's promise to not close the store immediately constituted consideration for the landlord's promise to accept reduced rent. The debtor's subsequent closure of the store was not a failure of consideration, but was simply a breach of contract.
The request for payment of the administrative expense claim was denied except for the post-petition rent owed for January at the reduced rate, which the debtor conceded it owed.
The court granted summary judgment to a creditor and denied the discharge of a debtor who omitted several assets from his schedules and failed to list certain transfers of his interest in assets on his statement of financial affairs. The court found that these omissions were too numerous to be simple oversights; rather, they showed, at a minimum, reckless indifference to the truth, which evidences fraudulent intent concerning false statements under oath that relate materially to the bankruptcy case and warrant a denial of discharge under § 727(a)(4)(A).
The debtor failed to comply with terms of its confirmed Chapter 11 plan applicable to one secured creditor. After extensive litigation, the bankruptcy court ruled in the creditor's favor in part, but denied its request to force the debtor to sell certain vehicles, finding that the plan did not include the vehicles among the assets the debtor had agreed to liquidate to pay this creditor's claim.
The creditor then filed a motion seeking derivative standing to prosecute claims on behalf of the bankruptcy estate concerning the allegedly fraudulent transfer of the vehicles and unauthorized use of cash collateral. The debtor did not object or appear at the hearing on the motion, although one of the debtor's members did appear without counsel. The bankruptcy court granted the motion for derivative standing.
Members of the debtor then filed a motion to reconsider or amend the order, which is what the court addressed here.
First, the court granted the motion to reconsider its order granting the creditor derivative standing, despite the court's observation that the matter had either been waived or raised by parties who lacked authority to assert it, because standing is a jurisdictional prerequisite that courts are obligated to examine.
Second, the court granted the motion to amend its order concerning standing, finding that the creditor had not established either element necessary under § 1123(b)(3). The debtor did not reserve under the terms of the confirmed plan, to itself or its designee, the right to bring Chapter 5 enforcement actions, nor can the creditor establish it is acting as a representative of the estate to benefit unsecured creditors. Instead, the court found, the moving creditor would be the only creditor to benefit from the litigation.
Accordingly, the court vacated its order granting derivative standing and denied the creditor's motion.
A secured creditor filed a motion for civil contempt and sanctions to force the debtor to turn over machinery and equipment and execute a deed as provided for in the confirmed plan. After hearings, the court granted the motion and entered a writ of execution authorizing the creditor to repossess and sell the machinery and equipment at issue. Members of the debtor then filed a motion to amend the order, claiming that some of the equipment actually belonged to them and not to the debtor.
After an evidentiary hearing on the ownership issues, the bankruptcy court concluded the members were equitably estopped from claiming ownership of the bulk of the machinery and equipment. The court specifically found that one of the members had intentionally and willfully made false representations to the court and the creditor concerning ownership of the equipment. The court further found the creditor exercised reasonable prudence, relied on the false representations in the debtor's schedules, and acted in accordance with that reliance by agreeing to the terms of the plan and dismissing litigation against the members in their capacity as guarantors. Accordingly, the court denied in large part the members' motion to amend the sanctions order and ordered the members to turn over the property at issue.
The debtors filed this adversary proceeding to stop the IRS's post-discharge collection of pre-petition taxes that the debtors believed were paid through the Chapter 13 plan. The court granted summary judgment to the IRS because the taxes arose from late-filed returns and were not dischargeable under §§ 1328(a)(2) and 523(a)(1)(B)(ii). The debtors had miscalculated the amount due when they objected to the IRS's claim; because the IRS was not properly served with notice of the objection, it did not oppose the objection. Regardless of the notice issue, the debt was not discharged and the IRS did not violate the discharge injunction in renewing its collection efforts.
The court granted summary judgment to the plaintiffs in their action to except a debt from discharge under § 523(a)(2)(A). The plaintiffs purchased a house from the debtor and later discovered the basement suffered water damage, which the debtor had failed to disclose. The matter was arbitrated, with an award being entered in the plaintiffs' favor based on the debtor's knowing failure to disclose. The debtor then filed for bankruptcy protection before the arbitration award could be confirmed.
Collateral estoppel principles allowed the plaintiffs to rely on the arbitration findings to prove the fraudulent nature of the debtor's representations. The arbitration award established that the debtor knowingly made a false statement to the plaintiffs concerning water intrusion in the basement, the plaintiffs justifiably relied on the debtor's representations, and they suffered damage as a result. Therefore, the plaintiffs were entitled to judgment as a matter of law excepting this debt from discharge.
The debtors filed this show-cause motion to challenge the IRS's post-discharge seizure of tax refunds and Social Security payments to collect post-petition interest when the underlying taxes and penalties were paid in full through the confirmed Chapter 13 plan. Eighth Circuit precedent is clear that post-petition interest and penalties are non-dischargeable, and the debtors remain personally liable for that interest subsequent to bankruptcy proceedings, so the motion is denied.
The court denied a pharmaceutical supplier's administrative expense claim based on alleged reclamation rights, finding that the supplier did not have a valid reclamation claim under § 546(c) or the right to exercise the equitable doctrine of asset marshaling.
The debtor and the supplier had entered into a stipulation concerning the supplier's right to assert its reclamation claim, but the agreed-upon conditions for pursuing that claim were not met. The terms of the stipulation required the supplier to establish that it had both an enforceable reclamation claim and enforceable marshaling rights as of the petition date. The court found the supplier's reclamation rights under § 546(c) were valueless and unenforceable because prior secured claims existed that exceeded the value of the pharmaceutical goods. The court also ruled that the supplier did not have the ability to use marshaling as a remedy because that would have required delaying the sale of the debtor's pharmacy assets in order to see if the lenders would have been paid in full from other assets. Such a tactic would have substantially reduced the sale price of the assets and resulted in an inequitable remedy for other creditors.
Finally, the court held that the supplier could not establish its claim outside the terms of the stipulation under § 507(b) (the supplier did not hold a secured claim that was inadequately protected), § 546(c) (there were no proceeds to which the supplier's claim could attach, so its right had no value), or § 503(b)(1)(A) (the supplier had no post-petition transaction with the debtor, and the supplier's valueless reclamation claims did "not morph into valuable post-petition administrative expense priority claims simply because the goods were sold").
On a request for payment of certain administrative expense claims filed by the debtor's landlords, the court addressed four questions:
1. Are the administrative expense claimants entitled to immediate payment of allowed administrative expense claims other than as set forth in the Confirmation Order? The court granted the request for immediate payment of § 365(d)(3) post-petition/pre-rejection lease obligations and ruled that the § 503(b)(1) claims for the costs of preserving the estate are simply entitled to § 507(a)(2) priority and would be paid in accordance with the terms of the plan.
2. Are the landlords are entitled to administrative expense claims for stub rent? The court extensively analyzed the Eighth Circuit Court of Appeals decisions of Burival and Wedemeier and determined that Burival, with its endorsement of the "billing date" approach to § 365(d)(3) obligations, did not overrule Wedemeier's use of "the reasonable rental value of the property" to provide a measure of the administrative claim for rent under § 503(b)(1). Therefore, the court ruled the landlords are entitled to an administrative expense claim under § 503(b)(1) for the debtor's use of the properties between the petition date and the date the first post-petition rent payment was due.
3. Are the landlords entitled to administrative expense claims for the prorated portion of base rent or additional rent items (e.g. taxes, utilities, etc.) billed or payable post-rejection but attributable to the post-petition/pre-rejection period? The court said, "Clearly, under Burival, such charges would constitute administrative expenses if billed to the tenant prior to rejection. However, if such items were not billed before lease rejection, the provisions of § 365(d)(3) – which address post-petition lease obligations – preempt the application of § 503(b)(1) to such charges." Because these post-petition charges were not billed during the post-petition/pre-rejection period, the landlords are not entitled to claim them as administrative expenses.
4. Are the landlords entitled to administrative expense claims for additional rent items attributable to the pre-petition period that become due or payable post-rejection? For the reasons stated in the preceding paragraph, the court also denied this request.