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Notice: Not all of the Judges Opinions will be made available on this site. Individual Judges have the option of specifying that all, some or none of their opinions be posted.

Judge Ben T. Barry

Based upon the court's findings that (1) the debtor could not effectuate a confirmable plan of reorganization and (2) the debtor's estate had incurred substantial and continuing losses and was not reasonably likely to be rehabilitated, the court converted the chapter 11 case filed by a bank holding company to a case under chapter 7 pursuant to § 1112(b) upon the motions of three of the debtor's creditors.

The debtors’ amended their confirmed plan to require the creditor to release its lien on a vehicle upon completion of the debtors’ payments under the plan, even though the debtors were not paying the contract rate of interest under their plan. At issue was a third party’s ownership interest in the subject vehicle. The court found that because the third party had also given a security interest in the vehicle to the creditor, the debtors could not provide for the release of the creditor’s lien in their amended plan unless the underlying debt as determined by non-bankruptcy law was paid.

In this case, the court found that attorney fees that were awarded to the non-debtor in a state court action were non-dischargeable under § 523(a)(5) because the state court action focused on the health and welfare of the minor child.

In this case, the court found that a chapter 13 debtor whose plan payments were funded by his wife’s income through automatic withdrawal was an “individual with regular income” and eligible to be a chapter 13 debtor under § 109(e).

In this chapter 13 case, the debtors filed a complaint to determine the extent of a creditor’s lien on the debtors’ residence, arguing that because the debtors’ personal obligation on the note was discharged in a prior chapter 7 case, the creditor’s lien should only attach to the value of the collateral. The court granted the creditor’s motion for summary judgment holding that the proposed “cram-down” was not permissible under § 1322(b)(2). The court also explained why the debtors’ proposed modification of their confirmed plan was not permissible under § 1329(b) and § 1325(a)(5).

The Court found that the debtor did not possess an express or implied private right of action under PACA and, thus, the chapter 7 trustee lacked standing to bring such causes of action on behalf of the debtor's estate. Therefore, the Court dismissed two of the chapter 7 trustee's adversary proceeding complaints in full and partially dismissed a third complaint.

The court denied counsel's motion for attorney fees and costs. The requested costs were either not allowed under 28 USC 1920 or were not sufficiently itemized such that the court could determine if the costs were either reasonable or necessary. Further, a bill of costs and verified affidavit was not included pursuant to 28 USC 1924. Although the debtor prevailed under 11 USC 525, that code provision does not include a private right of action and there is no statutory authority to award attorney fees. Nor was counsel able to provide the court with any other authority for an award of attorney fees.

The court found that by not notifying SSA of her return to work or disclosing to SSA for a period of approximately two and a half years of her return to work, the debtor had an intent to deceive SSA and obtained over $18,000 from SSA under false pretenses.

Judge Richard D. Taylor

The homeowners' association fees of a Chapter 13 debtor are nondischargeable when the creditor has not filed a proof of claim and the debt accrues postpetition.

The debtors' exemption in an IRA is denied as the IRA engaged in a prohibited transaction that rendered it amenable to taxation pre-petition.