Judge Nugent

Parks v. Arkebauer (In re Weinmann)

The chapter 7 trustee, filed an adversary complaint claiming that debtor's transfer of $3000 was preferential within the meaning of 11 U.S.C.S. § 547 and that said sum was properly recovered. Issues included whether a notation on the reverse of the certificate of title, which was held by an auto dealer, created an enforceable security interest under either Kan. Stat. Ann. § 8-135(c)(2) or Kan. Stat. Ann. § 84-9-203.
Ruling: 
Dealer reassignment on vehicle title did not create a security interest so that related funds transfer was avoidable.
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Consumer case opionion summary, case decided on February 26,2009, LexisNexis #0509-050

In re Kiser

Debtor moved to modify his confirmed chapter 13 plan to increase the monthly payment to the trustee and to provide for the payment of $500 in attorney fees to debtor's counsel for plan modification. Both the trustee and the IRS objected to the motion to modify. The IRS objection was resolved before trial, and the only issue for trial was the necessity and reasonableness of the additional fee under 11 U.S.C.S. § 330 and Fed. R. Bankr. P. 2016(a).
Ruling: 
Additional attorneys' fee for representation in plan modification approved in reduced amount.
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Consumer case opionion summary, case decided on January 22,2009, LexisNexis #0309-038

In re Smith

Creditor, the mortgagee by assignment of the debtor, filed an emergency motion for relief from the automatic stay pursuant to 11 U.S.C.S. § 362(d)(4) or , in the alternative, for an order dismissing the debtor's case under 11 U.S.C.S. § 1307(c), and to bar her from refiling for a period of 180 days. The motions were premised on the fact that the debtor had filed six bankruptcy petitions in the court since 2003, only one of which was successful.
Ruling: 
Debtor's sixth case in five years dismissed with 180-day filing bar due to prejudice to foreclosing creditor.
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Consumer case opionion summary, case decided on September 11,2008, LexisNexis #1208-049

In re Hoss

In two cases, the trustees objected to confirmation of chapter 13 plans because debtors had proposed to deduct as expenses, on Line 47 of Official Bankr. Form B22C, secured debt payment amounts on original, unmodified contracts despite the fact that the actual sums to be paid on the subject debts was being reduced by cram-down or strip-off. At issue was the proper interpretation of 11 U.S.C.S. § 1325(b)(1)(B) and 11 U.S.C.S. § 707(b)(2)(A)(iii).
Ruling: 
Above-median debtors intending to retain collateral can deduct only amounts likely to be paid to secured creditors under plan.
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Consumer case opionion summary, case decided on August 20,2008, LexisNexis #0908-015

In re DeThample

Debtors, a husband and wife, filed a petition under chapter 13 of the Bankruptcy Code and a plan for repaying their creditors. A bankruptcy trustee was appointed to represent the bankruptcy estate, and she filed an objection to the debtors' plan, claiming, inter alia, that it should not be confirmed because the debtors failed to include a disbursement the wife received from a 401(k) plan when they calculated their projected disposable income.
Ruling: 
Singular nonrecurring 401(k) distribution could be overlooked in computing debtors' current monthly income.
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Consumer case opionion summary, case decided on July 24,2008, LexisNexis #0908-014

In re Ford

Chapter 13 debtors submitted a plan, to which the creditor, which financed the debtors' purchase of a pickup truck, objected to the plan under the provisions of the hanging paragraph of 11 U.S.C.S. § 1325(a). The issue was whether the creditor's payoff of the balance on the debtors' trade-in vehicle was included as part of the purchase money security interest acquired by the creditor, and was thus not subject to cramdown under 11 U.S.C.S. § 506.
Ruling: 
Negative equity was included in purchase money security interest in auto due to state law provisions and was not subject to cramdown.
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Consumer case opionion summary, case decided on May 08,2008, LexisNexis #0608-126

Parks v. Krause (In re Krause)

Plaintiffs, the U.S. and the chapter 7 trustee, filed an adversary proceeding against defendants, the debtor and his brother, seeking a determination that the debtor's substantial income tax debt should be excepted from discharge under 11 U.S.C.S. § 523(a)(1)(C), that trusts for the benefit of the debtor's children should be declared to be the nominees of the debtor, and that the debtor made several fraudulent transfers.
Ruling: 
Income tax debt excepted from discharge due to debtor's willful evasion.
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Consumer case opionion summary, case decided on April 21,2008, LexisNexis #0508-099

In re Anderson

Two creditors who had filed claims objected to the debtor's homestead exemption on the basis of 11 U.S.C.S. § 522(o), asserting that the debtor enhanced the value of his homestead by paying down his home mortgage with the proceeds of nonexempt property that he disposed of with intent to hinder, delay, or defraud his creditors within 10 years of the date of his petition.
Ruling: 
Payoff of mortgage on exempt homestead with nonexempt assets was not grounds for objection absent evidence of fraud.
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Consumer case opionion summary, case decided on April 11,2008, LexisNexis #0508-116

Laine v. Gregory-Laine (In re Laine)

The U.S. Trustee moved to dismiss a bankruptcy debtor's case for cause under 11 U.S.C.S. § 707(a) and for substantial abuse of chapter 7 under § 707(b), asserting that the debtor only sought bankruptcy relief to avoid a judgment debt for attorneys fees from divorce proceedings which was owed to the debtor's former spouse, the debtor's only unsecured creditor.
Ruling: 
Case filed solely to frustrate former spouse's ability to collect on divorce judgment dismissed.
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Consumer case opionion summary, case decided on February 19,2008, LexisNexis #0408-033

In re Lowe

The debtors filed for relief under chapter 7. In consolidated proceedings, a chapter 7 trustee sought turnover of cash and stock distributions that the debtors received through their employment. Debtors in one proceeding and the trustee sought summary judgment.
Ruling: 
Cash and stock distributions under collective bargaining agreement to which debtor did not have an individually enforceable right on petition date were not property of the estate.
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Consumer case opionion summary, case decided on December 24,2007, LexisNexis #0208-024

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