Using a totality of the circumstances standard, the Court found that this chapter 7 debtor, whose income was below 150% of the income official poverty line, was unable to pay the filing fee in installments and, therefore, eligible to have the filing fee waived, even though she had paid her attorney $300 prior to filing the petition.
You are here
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 Ben T. Barry
Debtors who moved from Arizona to Arkansas within 730 days required to use Arizona exemption statute, if available, under 522(b)(2) and (3); however, even though Arizona is an “opt-out” state, non-residents are not precluded from using federal exemptions.
Chapter 7 debtors who filed their petition in Arkansas (where venue was proper) were required to use Iowa exemptions because they had not been domiciled in Arkansas for 730 days prior to filing pursuant to 11 U.S.C. § 522(b). Iowa is an opt-out state. Because Iowa homestead exemption on its face is not territorial, the Court found that Iowa's homestead law would apply to the debtors homestead located in Arkansas.
Audrey R. Evans
The Court granted Debtor's motion for more time to pay the filing fee in installments. Specifically, the Court held that while Bankruptcy Rule 1006(b)(2) allows for more time to pay installments of the filing fee than General Order 26, II.I., General Order 26, II.I. is not invalid. It is permissible for a court to set deadlines that are more restrictive than those provided by the Code or Rules unless prohibited from doing so under Fed. Rule Bankr. Proc. 9006. However, after hearing arguments in opposition to General Order 26, II.1., the Court found that in Debtor's case, the requirement that the Debtor make the regular plan payment and also pay the $274 filing fee within thirty days of filing her petition created an undue hardship for this Debtor given her monthly income. Not selected for publication.
On creditor's motion for relief from the automatic stay, the Court makes two holdings regarding the extent of the automatic stay's termination under § 362(c)(3)(A) (added to the Code by BAPCPA). First, the Court finds that the phrase with respect to any action taken in § 362(c)(3)(A) requires a creditor to have taken a formal action, such as a judicial, administrative, governmental, quasi-judicial, or other essentially formal activity or proceeding prior to the filing of the debtor's bankruptcy petition in order for the automatic stay to terminate. Second, the Court finds that § 362(c)(3)(A) terminates the automatic stay only with regard to the debtor and property of the debtor, not property of the estate. In re Stanford, 373 B.R. 890 (Bankr. E.D. Ark. 2007).
Court found that the Debtors' right to a refund of prepaid private school tuition was property of the Debtors' estate at the time they filed bankruptcy, and that the Trustee's timing in seeking reimbursement for this asset was not unreasonable. The Court further found that the proper remedy is a judgment against the Debtors pursuant to 11 U.S.C. § 105 for the prepaid tuition which was an estate asset the Debtors dissipated by not timely seeking a refund. Specifically, the Court found that it would be an abuse of the bankruptcy process to allow the Debtors to prepay their children's tuition, fail to adequately disclose such prepayments on their schedules and statement of financial affairs, and then not reimburse the Trustee for those funds. Rice v. Johnson (In re Johnson),371 B.R. 380 (Bankr. E.D. Ark. 2007).
Divorce-related debts that do not qualify as nondischargeable domestic support obligations under 11 U.S.C. § 523(a)(5) are nondischargeable in a chapter 7 case under 11 U.S.C. § 523(a)(15) as amended by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. Douglas v. Douglas (In re Douglas), 369 B.R. 462 (Bankr. E.D. Ark.2007).
On Plaintiff's motion for attorneys fees and costs pursuant to Internal Revenue Code § 7430, Court awarded fees and costs (with adjustments) finding that Plaintiff had incurred the fees and costs in question even though Plaintiff had a contingency agreement with his counsel in which he would not be required to pay attorneys fees if attorney fees were not awarded by the court. The Court further found the government's position in the case was not substantially justified, and that Plaintiff's counsel was entitled to an enhanced hourly rate above that provided by the statute (although the Court did not award counsel's actual hourly rate). Seay v. Internal Revenue Service (In re Seay), 369 B.R. 423 (Bankr. E.D. Ark. 2007).
Judge Richard D. Taylor
Court granted partial summary judgment because collateral estoppel doctrine precluded the Court from hearing complaint for false representations and willful and malicious injury as to certain debts.
Applicable commitment period under section 1325(b)(4) does not apply to above median family income debtor who has no projected disposable income under section 1325(b)(3), as determined by section 707(b)(2).