Debtor's discharge granted over Chapter 7 trustee's objection based on alleged false oaths at her first meeting or statements on her schedules.
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Judge Richard D. Taylor
Debtor failed to meet her burden of proof with respect to alleged converted items of personalty in a repossessed vehicle. The creditor's version contained sufficient and persuasive context and circumstantial corroboration.
Contractual class action waiver enforceable independent of and in conjunction with an arbitration clause based on U.S. Supreme court rulings.
Application of the Sunday Rule to contractual "on or before" language.
Judge Ben T. Barry
In this case, a creditor moved to convert a high-income debtor's case from chapter 7 to chapter 11 under § 706(b) and, in the alternative, moved to dismiss the case under § 707(a) and (b). The court denied the creditor's motion to convert under § 706(b) because it found that conversion would not benefit all parties in interest. The court also denied the creditor's motion to dismiss under § 707(a) because it found no evidence that the debtor had engaged in the type of extreme misconduct that would qualify under Eighth Circuit precedent as bad faith sufficient to dismiss the case "for cause" under § 707(a). Finally, the court denied the creditor's motion to dismiss under § 707(b) because it found that the debtor did not have primarily consumer debts, making § 707(b) inapplicable in this case.
The court found that A.C.A. § 18-60-308 did not bar the debtor from pleading as a compulsory counterclaim an allegation of non-compliance with the AR statutory foreclosure act in a previous state court unlawful detainer action. Because she waived her compulsory counterclaim, she was now precluded from attempting to set aside the foreclosure sale by raising the issue in her bankruptcy case.
In this case, the court found that the debtors’ mobile home was a fixture based on the cancellation of title of the home and the fact that it sat on a permanent foundation. The court also overruled the debtors’ objection to the creditor’s proof of claim based on the unequivocal testimony of the debtors’ expert opinion that the creditor’s proof of claim was accurate.
The court denied the creditors’ motion to abandon commercial tort claims finding that the creditors’ security interest did not encompass the tort claims.
The court denied the debtor’s discharge based on the debtor’s deficient and inaccurate schedules and his clear attempt to not pay one of his secured creditors. Between the order for relief in the debtor’s initial skeletal chapter 13 filing and his subsequent conversion of the case to chapter 7, the debtor apparently paid many of his creditors and then failed to list those payments on his later-filed schedules because “they were no longer creditors.” The debtor also failed to disclose his business, the judgment obtained by the creditor that he attempted not to pay (despite this creditor garnishing the debtor’s bank one week prior to filing), and money in two bank accounts that he characterized as “customers’ money.” Of note, the attorney that represented the debtor in the state court action is the same attorney that filed the deficient and inaccurate schedules on behalf of the debtor.
Chief Judge Phyllis M. Jones
Debt was nondischargeable pursuant to Section 523(a)(2)(B) where the loan was obtained through a false financial statement intended to deceive the Bank, through the Debtor's reckless disregard for the truth, on which the Bank reasonably relied. Debtor's discharge was also denied pursuant to Section 727(a)(4)(A) for his failure to list accurate income and failure to disclose his interest in a limited liability company of which he was the sole member.