Judge Kirscher

Samson v. Western Capital Partners LLC (In re Blixseth)

Plaintiff chapter 7 trustee filed an adversary proceeding against defendant Colorado limited liability company ("LLC"), seeking a determination that he could avoid a guaranty a chapter 7 debtor gave the LLC on a loan it made to the debtor's son, could recover payments and property the LLC received to repay the loan, and could recover a penalty under Montana law because the LLC charged a usurious rate of interest. The case was tried to the court.
Ruling: 
Guaranty executed within two years of petition date while debtor was insolvent for less than reasonably equivalent value could be avoided as fraudulent.
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Consumer case opionion summary, case decided on March 18,2013, LexisNexis #0413-056

Bucher v. Hughes (In re Hughes)

Creditor filed an adversary proceeding against debtor, seeking a determination that the debtor owed him a debt that was nondischargeable under 11 U.S.C.S. § 523(a)(9) because he injured the creditor while operating a motorcycle under the influence of alcohol. The creditor filed a motion for summary judgment.
Ruling: 
Judgment for injury inflicted by debtor while operating vehicle under the influence of alcohol was nondischargeable.
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Consumer case opionion summary, case decided on February 26,2013, LexisNexis #0413-015

Cini v. Viscomi & Gersh PLLP (In re Cini)

Chapter 11 debtor filed an adversary proceeding against her ex-husband and others, seeking a determination, inter alia, that her ex-husband did not have a valid lien on any judgment she obtained in a survival action and a wrongful death action that were filed in a Montana court (Count I of the debtor's complaint). The debtor filed a motion for summary judgment on Count I of her complaint.
Ruling: 
Debtor's former spouse did not have secured claim in proceeds of wrongful death action.
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Consumer case opionion summary, case decided on February 25,2013, LexisNexis #0313-085

In re Kahle

Debtors declared chapter 13 bankruptcy, and a claimant who had sued the female debtor in state court filed a claim against the debtors' bankruptcy estate. The debtors filed a motion to dismiss their case pursuant to 11 U.S.C.S. § 1307(b), and the claimant filed an objection to the motion and asked the court to convert the debtors' case to one under chapter 7 of the Bankruptcy Code. The chapter 13 trustee also filed a motion to convert.
Ruling: 
Voluntary dismissal granted over objection where omissions were not attributable to bad faith.
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Consumer case opionion summary, case decided on February 08,2013, LexisNexis #0313-063

Duncan v. Stokes (In re Stokes)

Plaintiffs, an attorney and another individual, filed an adversary proceeding against defendant chapter 7 debtor, seeking a judgment declaring that claims the debtor filed against plaintiffs in a Montana court were barred because the bankruptcy court approved the sale of those claims to the attorney. Plaintiffs filed a motion for summary judgment, and the debtor opposed plaintiffs' motion and filed a motion to dismiss for lack of jurisdiction.
Ruling: 
Action by debtor on claims against former attorney, which the attorney purchased at sale of debtor's assets, was barred.
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Consumer case opionion summary, case decided on February 08,2013, LexisNexis #0313-037

In re Stampley

Debtor filed a petition under chapter 13 of the Bankruptcy Code and proposed a second amended plan for paying his creditors. Although the chapter 13 trustee supported confirmation of the plan, the debtor's ex-wife filed an objection. The court held a hearing on the debtor's request for confirmation and the ex-wife's objection.
Ruling: 
Plan modifying stay to allow debtor to proceed with appeal of domestic relations order confirmed over former spouse's objection.
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Consumer case opionion summary, case decided on February 08,2013, LexisNexis #0313-066

In re Cini

Debtor filed a petition under chapter 13 of the Bankruptcy Code, and after her case was converted to one under chapter 11 in February 2011, she filed a motion against her ex- husband, seeking sanctions under 11 U.S.C.S. § 362(k) for violations of the automatic stay. The court held a hearing on the debtor's motion.
Ruling: 
Debtor's former spouse sanctioned for postpetition lawsuits that violated stay.
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Consumer case opionion summary, case decided on February 08,2013, LexisNexis #0313-039

Sterling v. Southlake Nautilus Health & Raquet Club Inc. (In re Sterling)

Chapter 7 debtor filed an adversary proceeding against defendants, a health and racquet club, a law firm, and an attorney, claiming that defendants violated the injunction that was imposed pursuant to 11 U.S.C.S. § 524(a)(2) by continuing collection activities against her with respect to a pre-petition debt that was discharged in bankruptcy. The law firm and the attorney filed a motion to dismiss.
Ruling: 
Use of adversary proceeding for finding of violation of discharge injunction was improper.
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Consumer case opionion summary, case decided on January 31,2013, LexisNexis #0313-093

In re B.Y.O.B. Inc.

A chapter 7 trustee objected to a proof of claim filed by the estate of a debtor corporation's owner because the amount claimed was overstated and unsupported by documentation. She objected to a family's proof of claim for lack of documentation, because there was no showing that the amount claimed was paid to the debtor or was not a capital contribution, and because the claim was barred by statutes of limitation, the statute of fraud, and usury.
Ruling: 
Trustee's objection to proof of claim for lack of documentation sustained.
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Commercial case opionion summary, case decided on January 15,2013, LexisNexis #0213-009

In re Tipton

A chapter 13 debtor objected to a proof of claim, contending that it did not comply with Fed. R. Bankr. P. 3001 and Bankr. D. Mont. R. 3001(c)(1) and should be disallowed because the creditor did not provide copies of the transfer documents to show chain of title and establish that the rights to said note and deed of trust were transferred to the creditor.
Ruling: 
Objection to proof of claim for alleged improper documentation overruled.
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Consumer case opionion summary, case decided on January 11,2013, LexisNexis #0213-033

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