Court denied Defendant's motion to dismiss in part, finding that Plaintiffs stated a claim for relief for reconsideration of a claim under 11 U.S.C. s. 502(j) and under FRBP 2016, where the ultimate amount paid to Defendant at the close of Plaintiffs' bankruptcy case was alleged to include fees and charges not included on a proof of claim. Court also found that Plaintiffs stated a claim for relief under 11 U.S.C. s. 524 for violation of the discharge injunction where it was alleged that certain fees and charges were included in the Plaintiffs' discharge but collected after the discharge was entered, and that Plaintiffs stated a claim for relief under 11 U.S.C. s. 362 for violation of the automatic stay where Defendant allegedly collected unapproved fees and charges from estate property prior to the entry of Plaintiffs' discharge. Court found that Plaintiffs failed to state a claim for relief under 11 U.S.C. s. 506(b), and failed to state a claim for relief with respect to allegations the automatic stay was violated after the entry of the Plaintiffs' discharge. Moffitt v. America's Servicing Company (In re Moffitt), 408 B.R. 249 (Bankr. E.D. Ark. 2009).
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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
On Defendant's Motion to Dismiss adversary proceeding filed in a reopened bankruptcy case post-discharge, the Court found it has subject matter jurisdiction over claims arising under the bankruptcy code and involving amounts paid pursuant to a chapter 13 bankruptcy plan, but does not have subject matter jurisdiction over federal and state law claims because there was no longer an estate for the claims to affect. Moffitt v. America's Servicing Company (In re Moffitt), 406 B.R. 825 (Bankr. E.D. Ark. 2009).
Court set aside an ex parte order granting relief from the automatic stay pursuant to FRBP 9024 and 11 U.S.C. §105, finding the Creditor’s simultaneous use of the power of the Bankruptcy Court and the power of the State Court to be an extraordinary fact justifying such relief. The Debtor paid the full amount of the Creditor’s secured claim in bankruptcy via a wage deduction order, and the Creditor accepted these payments (treating the Debtor as owner of the home securing the debt); at the same time, in State Court, Creditor sought to evict Debtor from the same home as a tenant behind in her rent payments (asserting Creditor was the true owner of the home). The Court found that setting aside the ex parte Order Lifting Stay was necessary to prevent a manifest injustice. In re Clark,409 B.R. 906 (Bankr. E.D. Ark. 2009).
On Defendant's Motion to Dismiss adversary proceeding filed in a reopened bankruptcy case post-discharge, the Court found it has subject matter jurisdiction over claims arising under the bankruptcy code and involving amounts paid pursuant to a chapter 13 bankruptcy plan, but does not have subject matter jurisdiction over federal and state law claims because there was no longer an estate for the claims to affect. Moffitt v. America's Servicing Company (In re Moffitt),406 B.R. 825 (Bankr. E.D. Ark. 2009).
In overruling Debtors’ Objection to Claim 4 of American Express Centurion Bank, the Court, applying Arkansas law, found that the credit card debt, which was evidenced by a written agreement, met all the necessary requirements for a written contract for purposes of applying the five-year statute of limitations. In re Brown, 403 B.R. 1 (Bankr. E.D. Ark. 2009).
Judge Ben T. Barry
The Court set aside a state court order confirming the foreclosure sale of the debtor's principal residence because of a violation of the automatic stay and other unusual, compelling, and particularly egregious facts and circumstances surrounding the foreclosure sale; the Court denied the creditors' motion for relief from stay where not enough evidence was presented to annul the stay or grant prospective relief.
The Court granted the plaintiff's motion for summary judgment based on collateral estoppel and a durable power of attorney that satisfied the fiduciary requirement under s. 523(a)(4).
The Court denied the plaintiffs’ complaint under § 523(a)(2)(A) for failure to prove justifiable reliance on the debtor’s misrepresentations with regard to the purchase of a newly constructed residence, and failure to prove actual damages. Although the debtor made specific misrepresentations, because the plaintiffs’ obtained their own inspection report prior to closing, the Court found they were put on notice of the deficiencies but chose to purchase the residence regardless.
On remand, the Court granted creditor's motion to dismiss the debtor's chapter 7 case based on a presumption of abuse as determined by the debtor's means test. Although the debtor was correct in choosing applicable IRS standards based on a family size of five, the Court disallowed a claimed educational expense and found that the debtor's dependents received at least $18.61 in financial assistance that must be included in the debtor's current monthly income.
James G. Mixon
The Court found that an award of attorney's fees pursuant to 11 U.S.C. § 107(c)(1), 15 U.S.C. § 6801, 28 U.S.C. § 1927, Federal Rule of Bankruptcy Procedure 9037(a)(1), Federal Rule of Civil Procedure 5.2, 11 U.S.C. § 105(a) or General Order 24, incurred in filing a motion to restrict public access was not appropriate in either case.