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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

A provision of the debtors’ confirmed plan stated that the debtors would pay any tax refund over $2000 into the plan. At a hearing related to the trustee’s objection to confirmation of a modified plan, the debtors argued that earned-income credit [EIC] should not be included in the amount of refund required to be turned over. The court found that because EIC is a “refundable credit” that is treated as an overpayment under the tax code, the EIC received by the debtors should be included in determining the amount of tax refund to be paid into the plan

The debtors filed an adversary proceeding alleging a violation of the Fair Debt Collection Practices Act [FDCPA] against a creditor that had filed a proof of claim for a stale debt. The debtors argued that because the statute of limitations had run on the underlying debt, when the creditor filed its proof of claim in the debtors’ bankruptcy case, it violated the FDCPA. The court held that filing a proof of claim in the debtors’ bankruptcy case was not a violation of the FDCPA and that the debtors’ remedy was to object to the claim under § 502 or proceed under Rule 9011 for filing the proof of claim in the first place.

The Court sustained the debtor's objection to Great American Appetizer's PACA proof of claim on the grounds that the food items sold to the debtor did not qualify as perishable agricultural commodities under 7 U.S.C. 499a(b)(4). The Court found that those food products--breaded jalapenos with cheddar cheese, spicy breaded pickle slices, fried green tomatoes, and battered corn nuggets--had been manufactured into articles of food of a different kind or character from the native vegetable ingredients.

After granting in part and denying in part the debtor's oral Rule 15(b) motion made at the trial, the Court overruled the debtor's objections to Hartung's PACA proof of claim on all grounds.

The court denied the trustee’s motion to extend time on behalf of herself and all creditors to file a complaint to determine the dischargeability of a debt. The court found that the chapter 7 trustee was not a party in interest within the context of a nondischargeability action under § 523 or Rule 4007(c). The court granted the trustee’s motion to extend time on behalf of herself and all creditors to file a complaint objecting to the debtor’s discharge. Although ordinarily a motion to extend time to object to discharge only applies to the moving party, in this instance the trustee specifically included all creditors in her motion and established cause.

The court granted the United States’s motion for summary judgment after finding that reconsideration of the US Navy’s decision to separate the debtor from service was not a justiciable issue for the court. The debtor’s obligation to repay an enlistment bonus was non-dischargeable because the debtor received his bankruptcy discharge within 5 years of his separation from the Navy.

The Court granted in part and denied in part the debtors' motion to dismiss a creditor's adversary complaint. The Court found that the creditor failed to state a plausible claim under Fed. R. of Civ. Pro. 12(b)(6) or plead fraud with particularity pursuant to Fed. R. of Civ. Pro. 9(b) as to some of the allegations and, accordingly, dismissed those counts.

The debtor filed a motion for contempt against a creditor that would not turnover funds withheld from the debtor’s tax refund after the debtor received his discharge. Although the debtor scheduled the creditor on his petition, the debtor used an incorrect address. The debtor argued that the “no-asset rule” makes the errant listing irrelevant because the debt would have been discharged regardless in this no-asset case. The creditor argued that it deserved the opportunity to assert the non-dischargeability of its debt under § 523(a)(2) for fraud. The court found that § 523(a)(3)(B) was applicable in this instance and denied the debtor’s motion for contempt.

Judge Richard D. Taylor

The court determined that the opportunity to cure a home mortgage default as set forth in section 1322(c) is not defeated by the mere extinguishment of the equitable and statutory rights of redemption, whether by decree or agreement, until the actual foreclosure sale is fully conducted according to state law

Audrey R. Evans

Court found that mortgage servicer's attachment of note indorsed in blank to its proof of claim was not fraudulent based on its prior presentation of an unindorsed note in state court foreclosure action. Court also found that Debtors lacked standing to raise speculation about the proper assignment of the note, particularly where they allege no injury resulting from the note's assignment. Finally, the Court found that the fees listed on servicer's proof of claim were not fraudulently incurred, that Debtors did not show any fees were unreasonable, and that the fees were provided for in the note and mortgage.