Judge Smith

Penland v. Bryan (In re Bryan)

Creditor, acting pro se, filed a nondischargeability complaint against defendant debtor under 11 U.S.C.S. § 523(a)(2) and (6). Defendant filed a motion to dismiss the complaint on the ground that it was untimely under Fed. R. Bankr. P. 4007(c) and 9006(b)(3). Plaintiff filed a motion to extend the time in which to file the complaint.
Ruling: 
Creditor who received insufficient notice entitled to extension of time to file nondischargeability complaint.
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Consumer case opionion summary, case decided on May 04,2011, LexisNexis #0611-034

Hope v. Acorn Fin. Inc. (In re Fluellen)

Trustee filed an avoidance action against creditor under 11 U.S.C.S. § 547(e)(2)(C). Defendant filed a motion for summary judgment. It argued that the action was barred by res judicata because the action was commenced after the confirmation of the debtor's chapter 13 plan.
Ruling: 
Postconfirmation avoidance proceeding barred by res judicata.
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Consumer case opionion summary, case decided on March 18,2011, LexisNexis #0611-033

Save Our Springs Alliance Inc. v. WSI (II)-CSO LLC

Appellant, a Chapter 11 debtor, sought review of a decision of the United States District Court for the Western District of Texas affirming orders of the bankruptcy court and concluded that the bankruptcy court correctly denied plan confirmation under 11 U.S.C.S. §§ 1121 and 1129 and dismissed the petition and that the debtor was judicially estopped from denying that it was a small business debtor.
Ruling: 
District court properly affirmed denial of confirmation on feasibility grounds due to speculative reliance on donors.
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Commercial case opionion summary, case decided on January 26,2011, LexisNexis #0211-064

Myers v. Raynor (In re Raynor)

Appellee, a chapter 7 bankruptcy trustee, brought an adversary proceeding to avoid certain transfers appellant debtor made to his wife. After the debtor and the wife's motions to dismiss the suit as time barred were denied, the parties entered into a stipulated judgment. The U.S. Bankruptcy Appellate Panel for the Eighth Circuit (BAP) affirmed the stipulated judgment. The debtor and his wife appealed.
Ruling: 
Avoidance complaint filed before midnight on day two-year deadline was to expire was timely.
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Consumer case opionion summary, case decided on August 23,2010, LexisNexis #0910-069

In re Sweet

A chapter 13 trustee objected to confirmation of the debtors' plan, contending that it was not proposed in good faith as required by 11 U.S.C.S. § 1325(a)(3) because the debtors were proposing to keep a large home while paying a low-percentage dividend to unsecured creditors.
Ruling: 
Plan in which debtors were to retain large home in which there was no equity while paying small dividend to unsecured creditors was proposed in good faith.
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Consumer case opionion summary, case decided on April 30,2010, LexisNexis #0710-131

Davis v. Conner (In re Conner)

Creditor brought an adversary proceeding against debtor alleging that a debt based on the debtor's failure to pay the creditor his partnership share of profits from a used car business was nondischargeable under 11 U.S.C.S. § 523(a)(4), (6) based on fiduciary defalcation and wilful and malicious injury. The creditor moved for summary judgment based on the collateral estoppel effect of a state court judgment.
Ruling: 
Debtor's intentional failure to pay partnership shares resulted in nondischargeable debt.
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Consumer case opionion summary, case decided on April 23,2010, LexisNexis #0810-014

DaimlerChrysler Fin. Servs. Ams. LLC v. Miller (In re Miller)

Chapter 13 debtors proposed to surrender their vehicle in full satisfaction of the remaining debt to a secured creditor pursuant to 11 U.S.C.S. § 1325(a)(5)(C). The United States Bankruptcy Court for the Western District of Louisiana confirmed the chapter 13 plan over the creditor's objection. the appellate court granted the creditor's request for leave to take a direct appeal from the bankruptcy court.
Ruling: 
Bankruptcy court erred in allowing debtor to surrender vehicle in full satisfaction of debt where state law provided for deficiency.
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Consumer case opionion summary, case decided on June 05,2009, LexisNexis #0709-061

Rederford v. US Airways Inc.

Plaintiff former employee sued defendant airline, alleging that she was terminated in violation of the Americans with Disabilities Act. The airline then filed for chapter 11 bankruptcy protection. The employee's claim was disallowed after she failed to file a written response or request a hearing in response to the airline's objection to the class of claims that included her claim. The airline then moved to dismiss for failure to state a claim.
Ruling: 
Employee's ADA claim was discharged due to failure to respond to debtor's objection to relevant class of claims.
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Commercial case opionion summary, case decided on November 19,2008, LexisNexis #1208-138

Milavetz Gallop & Milavetz PA v. United States

Appellants, a law firm, a firm president, a firm attorney and two clients, appealed from the District Court for the District of Minnesota which granted summary judgment in favor of appellee United States. Appellants claimed that the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), 11 U.S.C.S. §§ 526(a)(4), 528(a)(4), (b)(2), did not apply to attorneys and law firms and was unconstitutional as applied to attorneys.
Ruling: 
BAPCPA's 526(a)(4) restrictions on "debt relief agencies" unconstitutional as applied to attorneys meeting that definition.
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Commercial case opionion summary, case decided on September 04,2008, LexisNexis #0908-119

Addison v. Seaver (In re Addison)

Appellee trustee filed objections to appellant chapter 7 debtor's claims that certain property was exempt from creditors' claims, and an adversary proceeding seeking an order denying the debtor's discharge. The bankruptcy court reduced the debtor's homestead exemption, denied exemptions the debtor claimed in an IRA and college funds, and denied discharge. The U.S. Bankruptcy Appellate Panel for the Eighth Circuit affirmed and the debtor appealed.
Ruling: 
Exemption in Roth IRA disallowed due to dbetor's use of funds to make mortgage payment.
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Consumer case opionion summary, case decided on August 07,2008, LexisNexis #0808-133

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