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).
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Opinions
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Audrey R. Evans
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).
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).
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.
The Court found that Arkansas law does not require an assignee's name to appear on the certificate of title to maintain perfection of an existing lien in a vehicle. Therefore, the assignee has a perfected lien in the vehicle and the motion for abandonment and relief from the automatic stay was granted.
Judge Ben T. Barry
The court denied the debtor’s motion to sell property owned by the debtor and a co-owner (ex-spouse) for failure to prove that partition was impracticable, sale of only the undivided interest would realize significantly less than a sale of the entire property, and the benefit to the estate would outweigh the detriment to the co-owner. (§ 363(h))
In a pre-BAPCPA chapter 11 case, the Court found that the net income interest created in a testamentary trust was protected by a valid spendthrift provision, and, as such, was not property of the debtor's bankruptcy estate.
The plaintiffs filed a complaint against the debtor to determine the dischargeability of a debt related to the construction of a residence and a subsequent settlement agreement. After finding that the Court could not look behind the settlement agreement because there was no underlying debt in this case, the Court denied the plaintiffs’ complaint under § 523(a)(2) for failing to prove that they entered the settlement agreement based on the debtor’s false representation, false pretense, or actual fraud. The Court also found that the plaintiffs failed to prove that the debtor caused a deliberate or intentional injury to the plaintiffs under § 523(a)(6) when they entered into the settlement agreement.
Court denied debtors' motion regarding whether the debtors' exemptions precluded the chapter 7 trustee from selling certain real property because the issues presented were not ripe for determination, not before the Court in the correct procedural posture, or not noticed to the correct parties.
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.