Judge Mahoney

Cartsens v. GMAC Mortg. LLC (In re Carstens)

Chapter 13 debtors filed an adversary proceeding against defendant mortgage company, seeking an order which allowed them to avoid a second mortgage the company held on their residence. The debtors filed a motion for summary judgment. The motion was unopposed.
Ruling: 
Wholly unsecured second mortgage could be stripped off but not avoided until completion of chapter 13 plan.
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Consumer case opionion summary, case decided on August 09,2011, LexisNexis #0911-025

In re Copper Creek Estates - Grand Island LLC

A chapter 11 debtor filed a motion to reject a lease or executory contract pursuant to 11 U.S.C.S. § 365. The other party to the contract, a corporation, objected to the debtor's motion.
Ruling: 
Contract that had been fully performed by creditor was not executory and could not be rejected.
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Commercial case opionion summary, case decided on July 08,2011, LexisNexis #0811-080

In re QA3 Fin. Corp.

An insurer filed a motion for relief from the automatic stay pursuant to 11 U.S.C.S. § 362(d)(1) in order to allow it to continue a declaratory judgment proceeding regarding the policy that was pending in the United States District Court for the Southern District of New York prior to the date the debtor filed a Chapter 11 petition. The debtor and the Official Unsecured Creditors Committee objected to the relief requested.
Ruling: 
Relief from stay granted to allow insurer to pursue non-core litigation pending in another district.
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Commercial case opionion summary, case decided on July 01,2011, LexisNexis #0811-042

Spry v. Great Western Bank (In re Spry)

Plaintiff Chapter 13 debtor filed adversary proceedings to avoid two junior liens held by defendant creditor on his real property pursuant to 11 U.S.C.S. § 506(d). The debtor filed motions for summary judgment pursuant to Fed. R. Civ. P. 56 and Fed. R. Bankr. P. 7056.
Ruling: 
Debtors could strip off wholly unsecured junior lien which would not be avoided until completion of chapter 13 plan.
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Consumer case opionion summary, case decided on June 29,2011, LexisNexis #0811-046

Vodicka v. Vodicka (In re Vodicka)

Plaintiff, debtor's ex-wife (hereafter "creditor"), filed this adversary proceeding asserting that certain obligations owed by defendant debtor, pursuant to a state court's temporary order for relief in their dissolution of marriage case, were non-dischargeable under 11 U.S.C.S. § 523(a)(5), (a)(15). She moved for summary judgment, Fed. R. Civ. P. 56(c). Debtor opposed the motion.
Ruling: 
Debtor's share of daycare and medical expenses for children and cost of court-ordered child custody evaluation were excepted from discharge as domestic support obligations.
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Consumer case opionion summary, case decided on June 09,2011, LexisNexis #0711-048

In re Pedersen

Creditors who were holders of a judicial lien against the home of Chapter 11 debtors (husband and wife) filed an objection to the debtors' claim of a homestead exemption. The debtors resisted the objection and filed a motion to avoid the lien under 11 U.S.C.S. § 522(f)(1)(A).
Ruling: 
Judicial lien avoided as impairing debtors' homestead exemption.
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Consumer case opionion summary, case decided on April 11,2011, LexisNexis #0511-053

In re Crossroads Ford Inc.

The United States Trustee (UST) filed a motion to dismiss, or, in the alternative, to convert Chapter 11 debtor's case to Chapter 7.
Ruling: 
Small business debtor not required to obtain confirmation of timely filed plan within 45 days if plan was withdrawn.
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Commercial case opionion summary, case decided on March 29,2011, LexisNexis #0411-128

In re Carstens

A creditor bank filed a motion for relief from stay in a chapter 13 proceeding to obtain an order to set off an amount in an account against the remaining obligation of the debtor. The debtor objected on the ground that the account was owned by his parents.
Ruling: 
Relief from stay to obtain setoff order denied absent enforceable agreement.
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Consumer case opionion summary, case decided on March 10,2011, LexisNexis #0411-073

In re Basler

Debtors claimed a homestead exemption in their residence, presumably under the statutory authority of Neb. Rev. Stat. § 40-101. The question was whether debtors, despite not holding legal title to the real estate, nevertheless had an exemptible interest in it. It was undisputed that debtors exclusively occupied the residence, and had since August 2004. There was no evidence of a lease of the property from debtors' company to debtors, but it was clear that debtors were residing there with the tacit agreement of the company, which essentially was debtors themselves. Whatever legal arrangement this may have constituted, it appeared to be something more than a tenancy at will, which was insufficient to support a homestead claim. Rather, it was in the nature of a long-term lease, on which debtors could claim a homestead exemption. Debtors also claimed an exemption in life insurance under Neb. Rev. Stat. § 44-371. Contrary to debtors' position, the statute was clear on its face that only the policy owner could claim the exemption. Pursuant to Neb. Rev. Stat. § 44-371(1)(b)(i), debtor husband could claim an exemption of no more than $100,000 in the unencumbered value of the policy.
Ruling: 
Debtors could claim homestead exemption in property occupied pursuant to long-term lease.
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Consumer case opionion summary, case decided on March 10,2011, LexisNexis #0411-082

J.E. Meuret Grain Co. v. Hysell (In re Hysell)

Plaintiff grain company filed this adversary proceeding to liquidate the amount owed and enter judgment for it in the amount of $247,500 and to except that debt from discharge pursuant to 11 U.S.C.S. § 523(a)(2) for fraud, false representations, and false pretenses. Defendant debtor moved for summary judgment.
Ruling: 
Debtor's scheme to play commodities market did not rise to level of fraud and did not result in nondischargeable debt.
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Consumer case opionion summary, case decided on February 03,2011, LexisNexis #0311-013

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