Western District

Wallach v. Countrywide Home Loans Inc. (In re Sheppard)

After receiving a duly executed mortgage on debtor's real property, defendant lender recorded by mistake an unsigned copy of that same instrument. In this proceeding, plaintiff chapter 7 trustee sought to avoid that mortgage pursuant to 11 U.S.C.S. § 544(a)(3). The lender moved for summary judgment. The Trustee cross-moved for summary judgment.
Ruling: 
Lis pendens prevented trustee from avoiding mortgage that was recorded unsigned as bona fide purchaser.
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Consumer case opionion summary, case decided on May 24,2012, LexisNexis #1012-022

In re Fletcher

The United States Trustee (UST) sought dismissal of a chapter 7 debtor's bankruptcy on the ground that the totality of the circumstances constituted abuse under 11 U.S.C.S. § 707(b)(3)(B).
Ruling: 
Case dismissed for abuse where debtor's 401(k) loan payments could more properly be used to fund plan.
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Consumer case opionion summary, case decided on November 10,2011, LexisNexis #1211-090

Tiffany v. Dziedzic (In re Dziedzic)

Creditors, asserting the rights of trust fund beneficiaries under N.Y. Lien Law art. 3-A, filed a complaint against defendant chapter 7 debtor seeking a determination that their claim was nondischargeable under 11 U.S.C.S. § 523(a)(4) because the underlying indebtedness resulted from the debtor's alleged defalcation while acting in a fiduciary capacity.
Ruling: 
Misuse of construction loan proceeds for purposes unrelated to project resulted in nondischargeable debt.
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Consumer case opionion summary, case decided on July 15,2011, LexisNexis #0911-121

In re Wallace

Pursuant to 11 U.S.C.S. § 552(f)(1), the debtors filed a motion to avoid judicial liens on mortgaged real property for which the debtors had no equity and had not formally claimed a homestead exemption on Schedule C. The trustee objected to the debtor's request.
Ruling: 
Debtors could not avoid liens as impairing homestead exemption they had not formally claimed.
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Consumer case opionion summary, case decided on May 12,2011, LexisNexis #0611-051

In re Anderson

Office of the United States Trustee moved to dismiss this chapter 7 case as an abusive filing under 11 U.S.C.S. § 707(b).
Ruling: 
Age and likely retirement of debtor were not "special circumstances" that would prevent abuse dismissal.
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Consumer case opionion summary, case decided on March 21,2011, LexisNexis #0611-093

In re Minor

Debtor filed a petition under Chapter 7 of the Bankruptcy Code, and a trustee was appointed to administer the debtor's bankruptcy estate. The trustee sought approval of an agreement he negotiated to settle a personal injury action the debtor filed prepetition, and filed an objection to the debtor's claim that part of the settlement proceeds were exempt from creditors' claims pursuant to N.Y. Debt. & Cred. Law § 282(3).
Ruling: 
Trustee's settlement of personal injury action that was property of the estate denied as not reasonable.
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Consumer case opionion summary, case decided on February 24,2011, LexisNexis #0311-124

In re L. Frumusa Family Enter. P1 LLC

A creditor filed a motion for order dismissing case and authorizing dissolution of debtor pursuant to 11 U.S.C.S. § 1112(b).
Ruling: 
Case dismissed with prejudice where debtor no longer owned scheduled real or personal property that could be used in reorganization or adjusted in chapter 7.
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Commercial case opionion summary, case decided on February 14,2011, LexisNexis #0311-027

Wisotzke v. County of Ontario (In re Wisotzke)

Plaintiff Chapter 13 debtor filed a complaint against defendant county requesting a determination that a transfer in a state court tax proceeding was a fraudulent conveyance under 11 U.S.C.S. §§ 544 and 548, seeking to avoid the transfer under 11 U.S.C.S. § 522(h), and seeking a money judgment. The county asserted various counterclaims. The county filed a motion for summary judgment, and the debtor filed a cross-motion for summary judgment.
Ruling: 
Transfer in a state court tax proceeding could not be avoided as fraudulent where debtor did not qualify for state homestead exemption at time of transfer.
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Consumer case opionion summary, case decided on February 04,2011, LexisNexis #0211-115

In re Lang

A Chapter 7 trustee moved to compel the debtor to turn over $7,250, which was the non-exempt value of an automobile as of the date of the filing of the case in Chapter 13. The central issue was whether the debtor had to account for that value even after the conversion of her case to Chapter 7.
Ruling: 
Debtor in converted chapter 7 case not required to turn over difference between current value of vehicle and value at date of original filing under chapter 13.
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Consumer case opionion summary, case decided on September 17,2010, LexisNexis #1010-135

Rochester Lumber Co. v. Millner (In re Millner)

The debtor, a homebuilder, filed a petition under chapter 7. Plaintiff lumber company filed this adversary action alleging that, to the extent the debtor had diverted trust funds under Article 3A of the New York State Lien Law, (the Lien Law), all or a portion of the amounts due to the lumber company under a state court judgment should be determined nondischargeable under 11 U.S.C.S. § 523(a)(4).
Ruling: 
Debtor builder's diversion of lien law trust funds was a breach of fiduciary duty resulting in nondischargeable debt.
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Commercial case opionion summary, case decided on July 13,2010, LexisNexis #0910-121

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