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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.

Judge Richard D. Taylor

In the absence of bad faith, property that came into chapter 13 estate only as a result of § 1306(a), is not property of the estate upon subsequent conversion to chapter 7 case.

Allegations of fraud on the court and the possibility of equitable subordination are questions of fact sufficient to deny the defendant’s motion for summary judgment. The Court also found that the doctrine of res judicata was not applicable given the nature of a cash collateral hearing.

Confirmation of chapter 11 plan denied for failure to comply with 11 U.S.C. § 1129 in that the plan failed the best interests of creditors test, discriminated unfairly among classes, violated the absolute priority rule, and included an ambiguous and inappropriate release.

Because a creditor can include certain post-petition fees and charges in its proof of claim, debtor's plan requiring court approval before the creditor includes those charges could not be confirmed.

"Surrender" as used in 11 USC s 1325(a)(5)(C) means the relinquishment of any rights the debtor has in the collateral, not merely physical delivery of the collateral.

When an earlier federal court case is dismissed on FRCP 12(b)(6) grounds, the doctrine of res judicata may allow summary judgment in bankruptcy. However, in this case, the principal of collateral estoppel cannot be applied.

Audrey R. Evans

Debtors are ineligible for chapter 13 under 11 U.S.C. § 109(e) because their unsecured debt included the debt of a corporation the Court found to be the alter ego of Debtor Mark Schutzius; additionally, Debtors' attempt to remove corporate debt from initial schedules by filing an amended plan omitting the corporate debt was a bad faith attempt to create eligibility.Not selected for publication.

Existence of security device which disables vehicle's starter if debtor does not obtain the proper code each month is willful violation of the automatic stay where creditor failed to ensure that debtor in bankruptcy received the proper code each month. Debtor awarded compensatory damages and attorneys' fees; no punitive damages awarded. Hampton v. Yam's Choice Plus Autos, Inc. (In re Hampton)319 B.R. 163 (Bankr. E.D. Ark. 2005)

Debtors filed a complaint for turnover of estate property in possession of the lien creditor. The creditor alleged a lack of adequate protection of its lien interest as a defense to the turnover action. Rejecting that defense, the Court held that lien creditors in possession of collateral constituting estate property violate the automatic stay if they retain possession of that collateral postpetition following a debtor’s demand for turnover. Williams v. GMAC (In re Williams), 316 B.R. 534 (Bankr. E.D. Ark. 2004).

Obligations arising out of Property Settlement Agreement to pay for former spouse's car and a second mortgage on former spouse's residence held nondischargeable pursuant to § 523(a)(15); obligation to pay former spouse's attorney's fees held nondischargeable pursuant to § 523(a)(5); obligation to pay premiums on a life insurance policy benefitting a third party held dischargeable pursuant to § 523(a)(15)(B).Beggs v.Niewdach and Beggs v. Tripcony Law Firm, P.A. (In re Beggs), 314 B.R. 401 (Bankr. E.D. Ark. 2004).

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