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.
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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.
James G. Mixon
The Debtor agreed to the terms of the written agreements issued by American Express by use of the credit cards, thereby forming a binding contract. Therefore, the Debtor's objections to the claims were overruled because the five year statute of limitations applicable to written obligations applied.
Decas was unable to establish that the Perishable Agricultural Commodities Act found in 7 U.S.C. § 499 covered dried cranberries or that the transactions in question were made in the ordinary course of business pursuant to 11 U.S.C. § 547(c)(2) ; therefore, the three transactions were preferential transfers and Trustee was granted judgment.
Judge Ben T. Barry
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.
Reading § 1325(a)(5)(B)(iii) in conjunction with § 1326(a)(1), (2), and (b), the Court finds that chapter 13 debtors must pay creditors holding allowed claims secured by personal property adequate protection beginning not later than 30 days after the order for relief and continuing until the creditor receives equal monthly payments provided for by the debtors’ plan.
Audrey R. Evans
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).
Court found Plaintiffs failed to plead sufficient facts to justify entry of default judgment on claims under 11 U.S.C. §§ 506(b) and 362, and the Fair Debt Collection Practices Act, but found that sufficient facts were pled to warrant default judgment on Plaintiffs’ claims under the Real Estate Settlement Procedures Act and for state law breach of contract. A hearing on damages is to be set by subsequent notice. Price v. America's Servicing Company (In re Price), 403 B.R. 775 (Bankr. E.D. Ark. 2009).
Upon trustee's complaint, the Court found that the Debtor abused the bankruptcy process by her actions and demonstrated bad faith in her filings. Consequently, the Court employed its equitable powers under 11 U.S.C. § 105(a) to bar the Debtor from filing any case under any chapter of the Bankruptcy Code anywhere in the United States for a period of five (5) years. Not selected for publication.