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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

If a creditor receives notice of a plan sufficient to satisfy the requirements of due process, with a sufficient description of the debtor's treatment of the creditor's lien under the plan, the principles of res judicata will control and the plan will be binding on all parties regardless of an unobjected to proof of claim.

For purposes of claims estimation, unknown class of persons who may sustain injuries in the future not appropriate class.

Court can abstain from non-core related to case when all asserted actions are based on state law.

Audrey R. Evans

The Court found the granting of a discharge would be a substantial abuse under 11 U.S.C. 707(b) where Debtor testified dishonestly, omitted his minor child from his Schedule and Statement of Financial Affairs, and accumulated $44,000 in credit card debt within the two months prior to the bankruptcy filing. Based on these facts, the Court found Debtor acted in bad faith and dismissed Debtor's case. Not selected for publication.

The sequential exercise of the trustee’s powers under 11 U.S.C. §§ 547 and 544 permits avoidance of defendant-banks' interests in real properties when the banks obtained mortgages on those properties from entities (either the Debtor or one of her companies) which were not the record owners of the properties. First, the Court avoided the banks' lis pendens and certain quitclaim deeds, all filed on these properties within the preference period, as preferential transfers under 11 U.S.C. § 547. Then, the Court avoided any remaining equitable interest held by the banks by applying 11 U.S.C. § 544 and Arkansas real property law, finding that the trustee stepped into the shoes of a bona fide purchaser of these properties at the time of the bankruptcy filing. Accordingly, any remaining equitable interest held by the banks was avoided in accordance with the trustee's "strong-arm" powers. Rice v. First Arkansas Valley Bank and Regions Bank (In re May), 310 B.R. 405 (Bankr. E.D. Ark. 2004).

Debtors' applications to incur debt granted. The Court found that certain government payments to farmers under the Farm Security and Rural Investment Act of 2002 are earned independent of whether crops are planted or not. But, in light of Arkansas law requiring central filing to perfect liens on accounts or general intangibles, such as rights to payment under this Act, the Court ruled that the creditor failed to properly perfect its interest in those payments by filing its lien only locally. As the payments were not subject to another lien, the Court allowed the Debtors to pledge them as collateral. In re Stevens, 307 B.R. 124 (Bankr. E.D. Ark. 2004).

Debtor held in criminal contempt for filing 10th bankruptcy petition in willful violation of a prior court order dismissing Debtor's 9th bankruptcy petition and prohibiting any further bankruptcy filings by Debtor for a two-year period. In re Webb, 308 B.R. 357 (Bankr. E.D. Ark. 2004).

The Court found that the automatic stay protected Debtors' equitable interest in real property even though it was titled in the name of a Limited Liability Company ("LLC") created by one of the Debtors. The Debtors did not intend for title to be held solely in the name of the LLC and only created the LLC because they believed it was a requirement for closing on the property. In re Ealy, 307 B.R. 653 (Bankr. E.D. Ark. 2004). Affirmed on appeal by United States District Court for the Eastern District of Arkansas (Wright, J.) and the Eighth Circuit Court of Appeals.

Security interests found avoidable by Chapter 7 Trustee. ATVs and mobile homes (whether affixed to real property or not) are subject to Arkansas' vehicle titling statute (Ark. Code Ann. §§ 27-14-801 - 27-14-807); accordingly, creditor's security interests in mobile home and ATV were not perfected because Defendant did not comply with the requirements of the vehicle titling statute and have its liens noted on the mobile home and ATV’s certificates of title. Rice v. Simmons First Bank of Searcy (In re Renaud), 302 B.R. 280 (Bankr. E.D. Ark. 2003). Affirmed on appeal. See In re Renaud, 308 B.R. 347 (8th Cir. B.A.P. 2004).

Based on out-of-state attorney's failure to pay previously assessed contempt fine, the Court prohibited him from filing any further pleadings in Arkansas Bankruptcy Courts and directed Clerk of Court to return any further pleadings from that attorney until such time as fine is paid with post-judgment interest. In re Tubbs, 302 B.R. 290 (Bankr. E.D. Ark. 2003)

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