Bankruptcy Appellate Panel

Dixon v. LaBarge (In re Dixon)

Appellant bankruptcy debtor filed his bankruptcy petition with a certification that the debtor was unable to obtain debt counseling prior to filing the petition, as required by 11 U.S.C. § 109(h), since a foreclosure sale of his residence was scheduled for the day after the petition was filed. The debtor appealed the order of the Bankruptcy Court for the Eastern District of Missouri which dismissed the debtor's case.
Ruling: 
Dismissal was affirmed since the debtor failed to show exigent circumstances to warrant granting a waiver of the prefiling credit counseling requirement.
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OBrien v. Ravenswood Apts. Ltd. (In re Ravenswood Apts. Ltd.)

Appellants, a trustee and related parties, challenged a decision of the Bankruptcy Court for the Southern District of Ohio, which denied their motion, pursuant to 11 U.S.C. § 365, to compel appellee debtor to make payments under a land installment contract and to assume or reject the contract within a specified time period.
Ruling: 
Appellate panel held that a land installment contract was executory because the trustee continued to hold legal title under the contract and had a future obligation to convey that title, and a material breach by the debtor would excuse the trustee's future obligation to convey legal title.
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Mktg. & Creative Solutions v. Scripps Howard Broad. Co. (In re Mktg. & Creative Solutions)

Appellees, petitioning creditors, filed an involuntary petition for relief under chapter 7 against appellant, involuntary debtor. The Bankruptcy Court for the Northern District of Ohio entered an order granting relief to the petitioning creditors. The debtor appealed alleging that the claims of the creditors were subject to bona fide disputes.
Ruling: 
Debtor failed to demonstrate bona fide disputes as to the debtor's liability to the creditors who filed an involuntary petition since the debtor's prior dealings showed the debtor intended to be liable to the creditors.
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Harris v. Boyd G. Montgomery Testamentary Trust (In re Harris)

Appellant chapter 13 debtor challenged the Bankruptcy Court for Eastern District of Arkansas's order granting appellee lessor's motion to terminate the automatic stay so that it could enforce its state law right to remove the debtor from a nonresidential building.
Ruling: 
Order granting a lessor's motion to terminate the automatic stay was affirmed since the debtor had been provided with reasonable notice of the motion's hearing.
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Concannon v. Imperial Capital Bank (In re Concannon)

Appellee creditor sought relief from an automatic stay to foreclose its judgment lien, and appellant debtors defended the motion in their chapter 7 case by seeking a valuation of their rental property encumbered by the lien and avoidance of the creditor's lien pursuant to former 11 U.S.C. § 506(a) and (d). The Bankruptcy Court for the District of Arizona granted the creditor's motion and lifted the stay. Debtors appealed.
Ruling: 
Appellate panel affirmed ruling that the debtor could not use section 506(d) to remove a creditor's judgment lien and that the lien would pass through the bankruptcy case.
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Khaligh v. Hadaegh (In re Khaligh)

Appellee creditor brought an adversary proceeding against appellant bankruptcy debtor alleging that the creditor's arbitration award against the debtor for defamation was not dischargeable based on willful and malicious injury under 11 U.S.C. § 523(a)(6). The debtor appealed the order of the U.S. Bankruptcy Court for the Central District of California which granted summary judgment to the creditor based on issue preclusion.
Ruling: 
Creditor's arbitration award against the debtor for defamation was deemed nondichargeable since the arbitration satisfied the requirements of an adjudicated finding of willfull and malicious injury.
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Lorenz v. American Educ. ServicesPennsylvania Higher Educ. Assistance Agency (In re Lorenz)

Appellee bankruptcy debtor brought an adversary proceeding against appellant creditor seeking a determination that the debtor's student loan debt to the creditor was dischargeable based on undue hardship under 11 U.S.C. § 523(a)(8). The creditor appealed the Bankruptcy Court for the District of Massachusetts's judgment, which discharged the debt.
Ruling: 
Judgment discharging student loan debt based on undue hardship was reversed because the debtor had not demonstrated a financial inability to repay when considering the income of the debtor's household, which included the debtor's domestic partner.
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In re Tippett

Debtors, without authorization, sold their home to appellant buyer. Appellee trustee filed an adversary proceeding seeking turnover, quieting of title, and avoidance of the lien's of the buyer's lenders. The Bankruptcy Court for the Eastern District of California declared title to the property vested in the trustee and entered an order denying annulment of the automatic stay. The buyer and one of its lenders appealed.
Ruling: 
Automatic stay did not apply to sales or transfers, even authorized ones, initiated by the debtor and thus the transfer and liens were not void.
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Wellman v. Salt Creek Valley Bank (In re Wellman)

Debtors appealed from the bankruptcy court's orders: (1) dismissing their chapter 13 case with prejudice; and (2) denying their motion to reconsider the order of dismissal. Appellee was a first lienholder on a parcel of unimproved land adjacent to debtors'residence.
Ruling: 
Dismissal of debtors'chapter 13 case was affirmed since a substantial deficit in plan payments showed the debtors had materially defaulted in performing under their plan's terms.
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Law v. Stover (In re Law)

Appellant debtors challenged orders of the bankruptcy court entered on June 27, 2005, and June 29, 2005, in each of these cases sustaining the objection of appellee, the chapter 7 trustee, to debtors'claim of exemption in the portions of their federal tax refunds attributable to the federal child tax credit.
Ruling: 
Debtors were denied exemption of their federal child tax credit refunds since the refunds were contingent interests in future payments and thus were estate property.
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