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).
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.
Audrey R. Evans
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).
Debtor could not discharge a student loan obligation pursuant to 11 U.S.C. § 523(a)(8) despite her bleak financial circumstances because there were enough available funds in her budget to pay her debt in installments under the William D. Ford Direct Loan Consolidation Program’s Income Contingent Repayment plan while maintaining a minimal standard of living. Not selected for publication.
The confirmation of Debtor’s chapter 11 plan, which did not address the issue of the Federal Government's setoff rights, does not affect that entity's right to setoff a tax refund owed to Debtor against Debtor's tax debt. The Court found that § 1141, discussing the binding nature of a confirmed plan, does not apply to the setoff provision § 553, based on the plain language of that setoff provision. However, the Court found, although § 553 preserved a creditor's setoff rights even in light of a confirmed plan, that it is also logically consistent for the Code to preserve, as a corollary to the preservation of setoff rights, any defenses to those rights that existed outside of the bankruptcy. Therefore, wavier could be a defense to setoff and the Federal Government could have waived its rights to setoff by its conduct. In light of this ruling, the Court determined that further evidence on waiver was needed before it could reach a decision on whether the Federal Government had, in fact, waived those rights. In re Ronnie Dowdy, Inc., 314 B.R. 182 (Bankr. E.D. Ark. 2004)
Court sustained Chapter 13 Trustee's objection to claim where creditor failed to have its lien recorded on the subject vehicle's certificate of title in accordance with Arkansas' Vehicle Titling Statute. Creditor failed to establish that it had an equitable lien, and in any case, Court held that the Trustee's avoidance powers are superior to equitable liens. Although Debtor had listed creditor as secured in its confirmed plan, the Court held that such language was not binding, nor did it afford res judicata effect because of language in the plan confirmation order providing that all debts referred to in the Debtor's plan meant "allowed claims," and the creditor's claim had not yet been allowed. In re Shelby, 313 B.R. 292 (Bankr. E.D. Ark. 2004).
Judge Richard D. Taylor
"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.
Order accepting United States Trustee’s letter report regarding examination of a portion of panel trustee’s fee applications, and discussing approval of applications by United States Trustee’s office in general.
This opinion is based on the debtor’s complaint to avoid judgment liens as preferential transfers and the creditor’s allegation of the debtor’s solvency as an affirmative defense. After finding that the debtor was a going concern, the Court analyzed the balance sheet of the debtor on the date of the transfers and determined the debtor was insolvent on the date of the transfers. Accordingly, the Court found that the registration of the creditor’s judgment that created liens on the debtor’s property were preferential transfers, and avoided the liens.
Granting a motion to reinstate, which is actually a motion to set aside an order of dismissal under Rule 9024, does not retroactively reinstate automatic stay during period of time case was dismissed.