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).
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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
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.
Judge Ben T. Barry
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.
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.
The Trustee was not able to avoid the eight pre-petition transfers made within the preference period because the Defendant proved they were made within the ordinary course of business pursuant to 11 U.S.C. 547(c)(2)(2005).
Upon an objection to confirmation of the debtor's chapter 11 plan, the court directed the debtor to modify the plan; objecting creditor making the 1111(b) election would be paid, over the life of the plan, the greater of the full amount of the entire claim without interest or an amount equal to the present value of the secured claim.
Judge Richard D. Taylor
First lien residential mortgage holder's objection to confirmation of Chapter 13 plan is sustained in part, denied in part. Disputed provisions concern the application of payments, deeming arrearages current, court approval of attorney's fees, and compliance with § 524(i).