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Judge Dow

McArdle v. Alvarez (In re Alvarez)

Plaintiff creditors moved for summary judgment against defendant debtor in their action alleging they were entitled to summary judgment on the issue of dischargeability of a debt pursuant to 11 U.S.C. § 523(a)(2)(A) and (a)(6).
Ruling: 
Debt was deemed nondischargeable since fraud and personal liability were already found in state court action.
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In re Robinson

Movant chapter 13 debtor objected to the amended claim submitted by claimant IRS. The debtor moved to keep her income tax refunds for two taxable years notwithstanding the IRS'claim that it had a right to set off the refunds against prepetition tax liability. The IRS objected to the motion.
Ruling: 
Court ruled that IRS had right to offset mutual debt related to debtor's prepetition tax liability and rejected argument that plan confirmation extinguished this setoff right.
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Shadwick v. United States Dept of Educ. (In re Shadwick)

Plaintiff debtor filed an adversary proceeding against defendants, creditors, to determine the dischargeability of certain student loan obligations pursuant to 11 U.S.C. § 523(a)(8).
Ruling: 
Debtor was denied a request to discharge student loans since both debtor and debtor's spouse had potential to earn a good income despite their lack of effort.
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In re Ginter

Movant debtor sought to avoid a nonpossessory, nonpurchase money security interest that the debtor had with the nonmovant creditor. The creditor argued that the debtor was precluded from avoiding the security interest because the debtor had previously stipulated to relief from the stay and was not estopped from avoiding the security interest at issue.
Ruling: 
Debtor was denied a motion to avoid a creditor's nonpossessory, nonpurchase money security interest since the debtor had stipulated that the creditor had a security interest and since the motion was barred by res judicata.
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Albee v. U.S. Dept of Educ. (In re Albee)

Plaintiff debtor filed an adversary proceeding against defendant creditor to determine the dischargeability of certain student loan obligations pursuant to 11 U.S.C. § 523(a)(8).
Ruling: 
Debtor was granted undue hardship discharge of student loan debt since the debtor's current level of income and earnings potential would not permit the debtor to make minimum payments.
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Dahmer v. United States (In re Dahmer)

Plaintiff chapter 7 debtors filed an adversary proceeding pursuant to 11 U.S.C. § 523(a)(1) against defendants, the United States and the State of Missouri Department of Revenue ("MDOR"), seeking a declaratory judgment that any tax debt owed for the 1987 tax year was dischargeable and that any liens associated with that tax debt should be avoided or should attach only to the debtors'property as of the date of their bankruptcy filing.
Ruling: 
Debtors'additional federal tax assessment was dischargeable even though the debtors did not file an amended tax return since a state statute requiring a taxpayer to report federal tax assessment changes did not mean the taxpayer had to file an amended tax return.
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In re Heerlein

Debtor moved to avoid judicial lien pursuant to 11 U.S.C. § 522(f) and for release of garnished wages.
Ruling: 
Debtor could not avoid a judicial lien since the debtor lost an interest in the garnished wages when the prepetition wage garnishment order was entered.
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Missouri ex rel. Nixon v. Foster (In re Foster)

In consolidated adversary proceedings, motions for partial summary judgment were filed on certain of the claims asserted in the complaints filed by plaintiffs, state, an individual, and the trustee, for denial of discharge to debtors and defendants debtors, pursuant to 11 U.S.C. § 727(a)(3), (a)(4)(A), (a)(5) and (a)(6)(A).
Ruling: 
Debtors were denied a discharge since they knowingly and fraudulently failed to disclose or correct numerous material omissions or to comply with a court order to produce documents.
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In re Talib

Pursuant to 11 U.S.C. § 109(h)(3), a chapter 13 debtor filed a certification of exigent circumstances and a motion to waive debt counseling prior to filing.
Ruling: 
Debtor's motion to waive pre-filing debt counseling requirement was denied since she did not establish exigent circumstances.
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In re Gee

A putative bankruptcy debtor filed a bankruptcy petition and a certification of exigent circumstances in support of a request for waiver of the requirement under 11 U.S.C. § 109 that the debtor obtain debt counseling prior to filing her petition. The certification of exigent circumstances was denied, and the debtor moved to vacate the order rejecting the certification.
Ruling: 
Debtor was ineligible to be a debtor despite exigent circumstances since the debtor failed to request credit counseling services prior to filing.
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