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Opinions/Orders for
Judge Ben T. Barry

Date Entered Last Name Description
11-05-09 Umberson The court dismissed the plaintiff’s complaint for lack of subject matter jurisdiction. Piercing the corporate veils of companies held by the debtor is not a core proceeding and, even if successful, in this instance would have no conceivable effect on the debtor’s chapter 13 bankruptcy case.
10-21-09 Wright The Court found that the chapter 7 trustee did not meet his burden to show that the debtor's exemption claimed under section 522(d)(11)(D) was improper.
10-06-09 Osborn In this case, the debtor attempted to avoid the nonpossessory nonpurchase-money liens of a secured creditor because they impaired the debtor’s tools of the trade and wild card exemptions. The creditor responded by requesting relief from the automatic stay. The court found that the debtor’s truck, boat, and trailer were tools of the debtor’s fishing guide trade, but the debtor’s ATV and tractor were not. In ruling, the court avoided the creditor’s liens on the tools of the trade to the extent the liens impaired the exemptions, and granted relief from the stay on the ATV and tractor for lack of equity. It also granted relief from the stay for cause for the remaining value of the creditor’s liens on the tools of the trade.
9-25-09 Haley The debtor's dilatory performance of a contract to customize the creditor's vehicle was not sufficient to find the debt non-dischargeable under section 523(a)(2).
9-11-09 Cozart The plaintiffs filed a complaint against the debtor under §§ 523(a)(2)(A) and (a)(6) to determine the dischargeability of a debt relating to the construction of a residence and a subsequent settlement agreement and to deny the debtor a discharge under §§ 727(a)(3) and (a)(5) . The Court granted the plaintiffs’ complaint under § 523(a)(2)(A), finding that the debtor falsely represented his knowledge and experience as a builder and his knowledge about the quality of the home at issue. However, the Court found that the plaintiffs failed to meet their burden of proof regarding the remaining causes of actions and denied the additional requests for relief.
7-31-09 Wright The court denied the debtor’s motion to sell property owned by the debtor and a co-owner (ex-spouse) for failure to prove that partition was impracticable, sale of only the undivided interest would realize significantly less than a sale of the entire property, and the benefit to the estate would outweigh the detriment to the co-owner. (§ 363(h))
7-21-09 Reagan In a pre-BAPCPA chapter 11 case, the Court found that the net income interest created in a testamentary trust was protected by a valid spendthrift provision, and, as such, was not property of the debtor's bankruptcy estate.
7-06-09 Cozart The plaintiffs filed a complaint against the debtor to determine the dischargeability of a debt related to the construction of a residence and a subsequent settlement agreement. After finding that the Court could not look behind the settlement agreement because there was no underlying debt in this case, the Court denied the plaintiffs’ complaint under § 523(a)(2) for failing to prove that they entered the settlement agreement based on the debtor’s false representation, false pretense, or actual fraud. The Court also found that the plaintiffs failed to prove that the debtor caused a deliberate or intentional injury to the plaintiffs under § 523(a)(6) when they entered into the settlement agreement.
6-25-09 Alford Court denied debtors' motion regarding whether the debtors' exemptions precluded the chapter 7 trustee from selling certain real property because the issues presented were not ripe for determination, not before the Court in the correct procedural posture, or not noticed to the correct parties.
5-29-09 Butterfield The Court set aside a state court order confirming the foreclosure sale of the debtor's principal residence because of a violation of the automatic stay and other unusual, compelling, and particularly egregious facts and circumstances surrounding the foreclosure sale; the Court denied the creditors' motion for relief from stay where not enough evidence was presented to annul the stay or grant prospective relief.
5-8-09 Ward The Court granted the plaintiff's motion for summary judgment based on collateral estoppel and a durable power of attorney that satisfied the fiduciary requirement under s. 523(a)(4).
5-5-09 Cozart The Court denied the plaintiffs’ complaint under § 523(a)(2)(A) for failure to prove justifiable reliance on the debtor’s misrepresentations with regard to the purchase of a newly constructed residence, and failure to prove actual damages. Although the debtor made specific misrepresentations, because the plaintiffs’ obtained their own inspection report prior to closing, the Court found they were put on notice of the deficiencies but chose to purchase the residence regardless.
4-15-09 Justice On remand, the Court granted creditor's motion to dismiss the debtor's chapter 7 case based on a presumption of abuse as determined by the debtor's means test. Although the debtor was correct in choosing applicable IRS standards based on a family size of five, the Court disallowed a claimed educational expense and found that the debtor's dependents received at least $18.61 in financial assistance that must be included in the debtor's current monthly income.
3-16-09 Butler Reading § 1325(a)(5)(B)(iii) in conjunction with § 1326(a)(1), (2), and (b), the Court finds that chapter 13 debtors must pay creditors holding allowed claims secured by personal property adequate protection beginning not later than 30 days after the order for relief and continuing until the creditor receives equal monthly payments provided for by the debtors’ plan.
11-6-08 Kershner The Court sustained the creditor's objection to "termination pay" being a similar plan or contract entitled to exemption under section 522(d)(10(E). Although contingent at the time of filing, the contract is property of the estate; the Court found it to be an unadministered asset.
9-25-08 Gentry The Court sustained the chapter 13 trustee's objection to the debtor's modified plan, which provided for post-petition creditors that had not filed proofs of claim.
9-3-08 Betty's Homes, Inc. The Court denied the plaintiff's complaint to avoid an alleged preferential transfer because the plaintiff did not meet its burden of proof with regard to the fifth element of a preferential transfer--that the transfer enabled the creditor to receive more than it would receive in a chapter 7 liquidation case. The Court also recognized that the earmarking doctrine was not applicable when the transfer was from a secured creditor to an unsecured creditor.
6-19-08 Walters Creditor objected to the confirmation of the debtors' chapter 13 plan claiming it held a 910 car claim that was not subject to bifurcation. The debtors argued that because negative equity from a trade-in vehicle was part of the purchase price, the creditor did not hold a PMSI as described in the hanging paragraph of section 1325(a), and bifurcation was appropriate. The Court sustained the creditor's objection because the final agreement between the parties did not show that negative equity was part of the obligation.
6-6-08 Withrow The Court granted creditor's Motion to Alter or Amend Judgment based on conflicting orders entered by the Court, and set aside the second order entered. The debtor did not object to or appeal from the first order entered, and it became a final order, which the Court will enforce.
5-30-08 Vandiver The Court overruled the chapter 7 trustee's objection to exemptions after finding that the debtor's actions surrounding her failure to disclose an asset of her bankruptcy estate (a sexual harassment claim) did not rise to the level of bad faith.
3-17-08 McMahon Court denied creditor's motion to strike the entities listed as trade names on the debtors' chapter 7 petition. Even though the entities listed as the debtor's trade names may be separate legal entities, there was no evidence introduced that those names were not also used as trade names.
3-13-08 Hamilton Debtor who, in a prior case, originally filed a chapter 13 case that later converted to a chapter 7 case was eligible to receive a discharge in his current chapter 13 case even though the current case was filed within four years of the date his previous case was filed. The section 1328(f) time limits relating to a subsequent discharge refer to the chapter under which the previous case was filed, regardless of later conversion to another chapter.
Amended by Correcting Order entered March 17, 2008
2-26-08 Davis The debtor is entitled to claim a vehicle ownership expense on her Form B22C (chapter 13 means test) even though she owns the vehicle free and clear of liens and makes no monthly payments on the vehicle. The debtor was also entitled to claim operating expenses for two vehicles absent any evidence to rebut the debtor's claim.
2-26-08 Coleman Chapter 7 and chapter 13 means tests serve different purposes. Chapter 13 debtors who surrender property in their plan are not entitled to include payments for that property on their Form B22C to determine disposable income.
2-19-08 Collins The Court overruled the chapter 13 trustee's objection to confirmation and held that the debtor could use the Local Standard expense amounts applicable to Florida residents on his means test because the debtor resided in Florida on the date of filing the bankruptcy petition.
1-29-08 Miller Chapter 13 trustee's objections to confirmation of plans were sustained. The court held that above median income chapter 13 debtors are required to pay into their respective plans the monthly disposable income as determined by Form B22C, even though their current monthly income (as defined by the code) exceeded present income.
1-15-08 Meyer's Under pre BAPCPA preference law, trustee may avoid two of four payments made during preference period determined by the Court not to have been paid in the ordinary course of business of the debtor and the creditor.
1-10-08 Sandiford Court overruled creditor's objection to chapter 7 trustee's application for settlement. Creditor argued that a trust the debtors created pre-petition to hold real property was fraudulent and claimed a lien on the proceeds resulting from the sale of the property by the chapter 7 trustee. The Court held that even if trust was invalid, chapter 7 trustee could avoid creditor's lien pursuant to § 544(a)(3).
12-20-07 Snyder Motion to extend time for UST to file motion under s. 704(b)(2) is denied as a matter of law. A definitive 10-day statement of whether a debtor's chapter 7 case would be presumed to be an abuse, as required under s. 704(b)(1), is a prerequisite to filing the motion required by s. 704(b)(2). Because the UST did not file a definitive 10-day statement, the threshold requirement to filing the s. 704(b)(2) motion has not been met and the UST is precluded from filing a motion to dismiss or convert under s. 704(b)(2). Therefore, the motion to extend the time to file a s. 704(b)(2) motion is moot.
12-19-07 Politte The Court determined that certain funds were non-dischargeable in the debtor's bankruptcy as a result of embezzlement in accordance with s. 523(a)(4).
10-5-07 Moore The Court denied creditor's motion for relief from stay to setoff funds deposited post-petition into a debtor's savings account against a negative balance incurred pre-petition in the debtors' joint checking account because the creditor failed to meet the requirements of 11 U.S.C. 553(a).
9-24-07 Byrne Even though the UST did not file a definitive statement indicating whether the debtor's case was a presumption of abuse, as required by § 704(b)(1), she was not precluded from filing motion to dismiss under § 707(b)(3) based on debtor's declaration on Form B22A (means test) that there was no presumption of abuse.
8-29-07 King Using a totality of the circumstances standard, the Court found that this chapter 7 debtor, whose income was below 150% of the income official poverty line, was unable to pay the filing fee in installments and, therefore, eligible to have the filing fee waived, even though she had paid her attorney $300 prior to filing the petition.
6-28-07 Wood Debtors who moved from Arizona to Arkansas within 730 days required to use Arizona exemption statute, if available, under 522(b)(2) and (3); however, even though Arizona is an “opt-out” state, non-residents are not precluded from using federal exemptions.
5-22-07 Williams Chapter 7 debtors who filed their petition in Arkansas (where venue was proper) were required to use Iowa exemptions because they had not been domiciled in Arkansas for 730 days prior to filing pursuant to 11 U.S.C. § 522(b). Iowa is an opt-out state. Because Iowa homestead exemption on its face is not territorial, the Court found that Iowa's homestead law would apply to the debtors homestead located in Arkansas.