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Judge Timothy J. Mahoney (Retired)

Jeffrey A. Fischer & Melanie J. Fischer, Ch. 12, BK08-40125-TJM (Feb. 28, 2008)

The court granted the Chapter 12 debtors’ motions to sell property in the ordinary course of business and to use cash collateral of $22,000, finding that the objecting secured creditor was protected by an equity cushion of $178,000. The court also directed the debtors to obtain hazard insurance to protect the collateral for the benefit of the bankruptcy estate and the secured creditor.

First Nat'l Bank of Omaha v. James Killips, Trustee (In re Earl Brice Equip., L.L.C.), Ch. 7, BK04-84283, A05-8060 (Oct. 9, 2007)

In an adversary proceeding in which the sole issue was whether the county had “assessed” liability for personal property taxes to the debtor, the county sought to amend its response to a request for admission because, while the response as given was a true statement, its format was informal and did not constitute a statutory certificate of assessment.

Dean Hightree v. First Nat'l Bank of Omaha (In re M & S Grading, Inc.), Ch. 7, BK02-81632, A05-8071 (Mar. 28, 2007)

In a dispute over competing rights to the debtor’s accounts receivable, the court granted partial summary judgment to the lender holding perfected pre-petition security interests in inventory, accounts, equipment, and other collateral. The other claimants to the accounts receivable were the multi-employer pension and welfare benefit plans representing the debtor’s employees.

Manuel Jesse Martinez v. Marie Franzese (In re Martinez), Ch. 7, BK99-80585, A01-8088 (Oct. 23, 2002)

After a trial, the court excepted from discharge a debt to the debtor’s former wife arising from her payment of a marital debt assigned to him in the parties’ divorce. She established that it was a non-support debt that fell within the ambit of § 523(a)(15), and the burden shifted to the debtor to prove that he did not have the ability to pay or that the benefit to him of a discharge would be greater than the detriment to his former wife. Financial records indicated the debtor could pay at least a nominal amount each month to his former wife.

Theo Bullmore & Simon Whicker, Jt. Official Liquidators v. Milliman, Inc. (In re Nat'l Warranty Risk Retention Group), BK03-42145, A04-4056 (Sept. 2, 2005)

In a case ancillary to a foreign liquidation proceedings, the bankruptcy court permitted this adversary proceeding to be stayed pending arbitration concerning an actuarial analysis of the debtor. The parties disagreed on the scope of the arbitration, but the court ruled it was up to the arbitrators, not the bankruptcy court, to determine the scope of their jurisdiction.

Kathleen Laughlin, Chap. 13 Trustee v. American Nat'l Bank (In re Sharyn Bennett), Ch. 13, BK04-40661, A04-4110 (Aug. 5, 2005)

The court granted summary judgment to the lender holding a lien on the debtor’s vehicle when the Chapter 13 trustee sought to avoid that lien. The issue was whether the lender’s security interest was properly perfected within 20 days of the debtor taking possession of the vehicle. The debtor purchased the leased vehicle on Dec. 30, 2003, the dealership received the certificate of title from the lease financing company on Jan. 8, 2004; the debtor signed the odometer certification sometime thereafter; and the new certificate of title was issued on Jan. 26, 2004.

Nebraska Dep't of Health & Human Servs. Fin. & Support v. Christine Angela Palermo (In re Palermo), Ch. 7, BK07-80099-TJM, A07-8036-TJM (Mar. 23, 2009)

The debtor was a mental health provider who pleaded guilty to theft by unlawful taking for overbilling Medicaid. The state argued that the debt resulting from the overpayments was non-dischargeable under § 523(a)(2)(A). The bankruptcy court reviewed the collateral estoppel effect of the criminal conviction, in addition to the alleged overpayments for which there was no criminal or administrative ruling. The court found that the elements of the criminal conviction met the requirements of § 523(a)(2)(A) so that portion of the debt was excepted from discharge.

U.S. Bank N.A. v. Charles Robert Welshiemer & Delores E. Welshiemer (In re Welshiemer), Ch. 7, BK05-85290, A06-8006 (Dec. 5, 2006)

In this adversary proceeding concerning the dischargeability of a judgment debt owed to the plaintiff, as well as a request for a denial of discharge for concealment of financial information, the debtors did not respond to the plaintiff’s request for production of documents until the court ordered them to do so. The debtors eventually produced some of the tax returns and other documents sought, but did not provide tax returns for their affiliated entities, saying the entities had not filed tax returns and therefore could not provide them.

First Nat'l Bank of Belden v. Ronald & Sheila Jueden (In re Jueden), Ch. 7, BK05-85285, A06-8018 (June 27, 2006)

A lender filed a motion for summary judgment to except a debt from discharge under § 523(a)(6) because the debtors allegedly converted collateral and proceeds of collateral by selling the collateral and depositing the proceeds into their personal account. The court denied the motion because the debtors’ intent is a material fact when willfulness and maliciousness are elements of the cause of action, and is difficult to establish on summary judgment.


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