Pursuant to Federal Rule of Civil Procedure 12(b)(6), made applicable to the proceeding by Federal Rule of Bankruptcy Procedure 7012, the court grants the defendant's motion to dismiss the debtor's claims for turnover and violation of the automatic stay based on the defendant's post-petition retention of funds garnished pre-petition.
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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.
Judge Richard D. Taylor
Court adopts Judge James G. Mixon’s ruling in In re Johnson, 407 B.R. 364 (Bankr. E.D. Ark. 2009), holding that an assignee does not have to take further action to be a properly perfected lienholder.
Civil contempt is not the appropriate remedy for enforcement of a monetary judgment.
Judge Ben T. Barry
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.
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.
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.
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).
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.
Audrey R. Evans
Court adopted Judge James G. Mixon’s opinion in In re Johnson, 407 B.R. 364 (Bankr. E.D. Ark. 2009), holding that where assignor has a perfected security interest in a vehicle under Arkansas’ certificate of title statute prior to its assignment, the assignee remains perfected against creditors of and transferees from the original debtor, even if the assignee takes no action to change the name on the certificate of title. Further, the Court found that because no “new” lien was created by an assignment, Defendant was not required to release the lien and comply with the requirements of A.C.A. § 27-14-909. Gaines v. Ford Motor Credit Corp. (In re Gaines), 414 B.R. 494 (Bankr. E.D. Ark. 2009).
James G. Mixon
The Court found that pursuant to 11 U.S.C. 1112(b)(4) cause existed to dismiss the case; cause included unauthorized use of cash collateral, a consistent pattern of failure to maintain insurance, failure to pay taxes, co-mingling of personal and business assets, the Debtor's continued loss of money, and filing operating reports late.