In this subchapter v chapter 11 case, the debtor in possession filed an application to employ an accountant pursuant to 11 U.S.C. § 327. The application requested that the accountant’s employment be approved with an effective date “nunc pro tunc” to the date of the filing of the debtor’s bankruptcy petition. The Court found that nunc pro tunc relief was inapplicable in this instance because there was no court error or delay to correct for the record. However, the Court found that it was authorized to approve a pre-application employment date under § 327 because Congress included no temporal limitation in that code section. As a result, the Court approved the employment of the accountant effective as of the date the debtor filed his petition on the condition that the debtor file an amended affidavit of disinterestedness executed by the accountant that fully complied with the disclosure requirements stated in Federal Rule of Bankruptcy Procedure 2014(a).
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Opinions
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Judge Bianca M. Rucker
Judge Richard D. Taylor
Motion to set aside default judgment denied on basis that service was proper per information supplied on filed proof of claim and at the corresponding secretary of state’s office.
Cumulative omissions, misstatements, and inaccuracies on a debtor’s schedules sufficient for the court to conclude that the debtor’s discharge should be denied pursuant to section 727(a)(4) as a false oath or account.
Fact intensive case where the debtor did not adequately account, as per the court’s order, for the disposition of post-petition insurance proceeds converted to cashier’s checks and then cashed.
Judge Ben T. Barry
The Court granted in part and denied in part the chapter 7 trustee’s motion for partial summary judgment, finding that the trustee’s designated “triggering creditor” held an allowed unsecured claim on the date of the debtor’s petition but that factual issues remained for trial regarding whether the trustee’s proffered “triggering creditor” had a viable pre-petition cause of action against the debtor that would enable the trustee to step into the creditor’s shoes under 11 U.S.C. § 544(b) for the purpose of pursuing an avoidance action to recover the debtor’s allegedly fraudulent transfers of real property for the benefit of the estate.
Here, the Court conditionally overruled several objections to the debtor’s exemptions, finding that if the debtor’s plan was ultimately confirmed under 11 U.S.C. § 1191(b), property of the debtor’s estate would include eighty acres of property that the debtor had acquired after filing his chapter 13 petition but before converting his case to subchapter V of chapter 11. The Court also held that the eighty acres was rural rather than urban and found that the property qualified as the debtor’s homestead under Arkansas law.
In this chapter 13 case, the Court denied the debtor’s attorney’s additional application for compensation because the application was not filed until three days after the case was dismissed and property of the estate had revested in the debtor upon dismissal pursuant to 11 U.S.C. § 349(b)(3).
Here, the court sustained a judgment creditor’s objection to the debtor’s homestead exemption based on the court’s finding that the debtor had not established the subject property as his homestead under Arkansas law because the debtor had not resided on the property while married or the head of a household. The court also denied the creditor’s motion for relief from stay because the creditor did not establish a prima facie case that there was cause to do so under 11 U.S.C. § 362(d)(1).
In this involuntary chapter 7 case, a creditor and the chapter 7 trustee objected to the debtor’s claim of Florida exemptions, alleging that Florida was not the debtor’s domicile during the relevant look-back periods under 11 U.S.C. § 522(b)(3)(A). The court overruled the objections, finding that the fact that the debtor intermittently resided in Tennessee, where he also owned or leased property, did not defeat the debtor’s claim that Florida was his domicile during the 910 days prior to the filing of his involuntary petition. In making its decision, the court looked to objective indicators that the debtor intended to make Florida, rather than Tennessee, his domicile, including: the debtor’s ownership of property and physical presence in Florida, Florida voter registration, Florida driver’s license, Florida utility payments, and application for a Florida homestead exemption.
Chief Judge Phyllis M. Jones
Court found that dealership agreement between Debtor and Kubota was an assumable executory contract. Although the agreement included financing as one payment option, Kubota was not required to extend financing to the Debtor under the agreement. Therefore, the Court found the agreement was not a contract to make a loan, or extend debt financing or financial accommodations within the meaning of Section 365(c)(2). In addition, Court denied Kubota’s motion for relief from stay.