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Opinions

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.

Audrey R. Evans

In a noncore proceeding, the Court entered a proposed order for the District Court’s review granting the Plaintiff’s application for attorney fees and costs pursuant to the Fair Debt Collection Practices Act (“FDCPA”). The District Court adopted the proposed order. Humes v. LVNV Funding, L.C.C. (In re Humes), 505 B.R. 851 (Bankr. E.D. Ark. 2013), adopted, No. 3:13–CV–00179–SWW, 2014 WL 310451 (E.D. Ark. Jan. 28, 2014).

The Court denied the defendants’ motion to bifurcate the issue of the Plaintiff’s standing to bring various claims from a trial on her claims. The Court found that although the standing issues were distinct from the issue of whether the claims were meritorious, bifurcation would not result in judicial economy because resolution of the standing issues would not necessarily eliminate the need for a trial on the claims. Speed v. U.S. Bank (In re Speed), No. 3:09–BK–17860, 2013 WL 7710285 (Bankr. E.D. Ark. Dec. 7, 2013).

The Court granted the Plaintiff’s motions to remand and abstain from hearing a removed foreclosure action. The Court rejected the Defendant’s assertion that the Debtor’s interest in an LLC that owned the property subject to foreclosure gave the Court jurisdiction to adjudicate the dispute. Although the Debtor may have held a leasehold interest in the property, without more, the Court determined that mandatory or alternatively, discretionary abstention applied. Additionally, the Court equitably remanded the foreclosure action. Farmers Bank & Trust Co. v. Chickasaw Props. (In re Burrow), 505 B.R. 838 (Bankr. E.D. Ark. 2013).

In a noncore proceeding, the Court entered a proposed order for the District Court’s review finding that the Defendants violated the Fair Debt Collection Practices Act (“FDCPA”), breached a contract with the Plaintiff, and committed the torts of fraud and misrepresentation. Subsequently, the District Court entered an order adopting the proposed findings of fact and conclusions of law. Humes v. LVNV Funding, L.C.C. (In re Humes), 496 B.R. 557 (Bankr. E.D. Ark. 2013).

James G. Mixon

The Debtor's motion to avoid the lien created by the recording of a $44,575.99 judgment was granted. The Court found the judgment did not constitute a domestic support obligation because the debt did not fit into the definition of section 101(14A)(A) or the Kline exception and it was not in the nature of support.

The Court dismissed the Plaintiffs' complaint to except from discharge those obligations owed to them by the Debtor, who was their financial advisor; the Court ruled that the Plaintiffs did not carry their burden of proof with regard to their allegations of fraud, breach of fiduciary duty, willful and malicious injury, and securities violations.

First Security's motion for relief from the stay was granted pursuant to section 362(b)(2) because the Debtor failed to show any reasonable possibility of a confirmable plan

Judge Richard D. Taylor

Attorney suspended for Rule 9011 violations and making misrepresentations to the court.

Judge Ben T. Barry

The court revoked the debtor’s discharge under § 727(d) because she failed to turn over life insurance proceeds she received within 180 days of filing her chapter 7 petition in accordance with § 541(a)(5). Instead, the debtor placed the proceeds in an overseas account, moved out of state, and bought a house out of state. The debtor turned over the balance of the proceeds (the house) only after the trustee filed an adversary proceeding.

The debtor and creditor attempted to reaffirm a debt of $22,000 on a car valued at $16,000. Because the debtor’s attorney did not sign the attorney certification, the court scheduled a hearing on the reaffirmation agreement. In addition to informing the debtor of the consequences of entering into the agreement, the court also had to determine whether the agreement was in the best interest of the debtor. After discussing the four possible scenarios a reaffirmation agreement presents to a court, the court did not approve the reaffirmation agreement. The debtor was current in her payments to the creditor and had complied with § 521; therefore, the court could conceive of no benefit to the debtor to enter into the reaffirmation agreement and obligate herself to $6000 of unsecured debt.

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