The court found that 11 USC 1322(c)(1) provides a federal right to cure a home mortgage default up until the purchase price is paid and a trustee's deed is delivered, even though the Arkansas Statutory Foreclosures Act follows the "gavel rule" in Arkansas, which states that a statutory foreclosure sale is concluded when the highest bid is accepted.
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Judge Ben T. Barry
The debtor filed a small business chapter 11 plan on the 300th day after filing its petition. The court set the plan for confirmation hearing. At the hearing, the debtor did not have any of its impaired classes voting for the plan so the court denied confirmation. Because another plan could not be filed within the statutory 300 days, the court dismissed the case.
The court denied the debtor’s motion to reopen his case to add an omitted creditor. The creditor’s claim is a non-dischargeable obligation under § 523(a)(3) and reopening the case to schedule the creditor would not affect the dischargeability of this debt.
The court denied the debtor’s motion to reconsider. The debtor asked the court to “impose” a stay because she failed to file a timely motion to extend the stay under § 362(c)(3), even though she only had one case pending in the prior year. Neither the debtor nor her counsel appeared at the hearing on her motion.
The court granted the creditors’ motion to dismiss the trustee’s complaint on two of the fourteen counts: fraud on the court and violation of § 363(n). The trustee failed to plead facts sufficient to state a plausible claim for fraud on the court. Additionally, the court did not accept the trustee’s legal conclusion concerning the identity of “potential bidders” and found that the trustee did not plead sufficient facts to support a finding of collusion under § 363(n).
The court denied the creditor’s motion for relief from stay in this chapter 13 case. The debtor’s plan was confirmed prior to the hearing on the relief from stay rendering the creditor’s argument that the collateral was not necessary for reorganization under § 362(d)(2) not applicable.
The debtor challenged, and overcame, the court’s finding that the creditor had established the prima facie validity of its claim. However, after the creditor then met its burden of proving the validity of its claim, the court had to overrule the debtor’s objection to the mortgage holder’s claim for failure to state any of the exceptions listed in § 502(b) even though the court had asked counsel to advise the court in a post-trial brief specifically under what exception she was proceeding. The court also denied the debtor’s request for attorney fees, which was based on the “significant amount of legal work” involved in this case. Debtor’s counsel failed to respond to the court’s directive to give the court a path showing why the debtor may be entitled to attorney fees.
The debtor filed a complaint seeking the return of $7100 the Department of Treasury withheld from the debtor's tax refund in partial satisfaction of a debt the debtor owed to the Department of Education. The debtor's theory was that the offset was a preferential transfer under s. 547 because it occurred within 90 days of the filing or, alternatively, an impermissible setoff under s. 553(b) because the DOE improved its position. The court found that the setoff did not improve the position of the DOE and that the setoff was permissible under s. 553. Because the setoff was permissible, s. 547 was not applicable.
Chief Judge Phyllis M. Jones
Student loan debt incurred by Debtor to obtain two associate degrees determined to be an undue hardship and therefore dischargeable under Section 523(a)(8) where debtor was sixty-three years old, had been unable to maintain steady employment in the past, had been unsuccessful in obtaining new employment despite her numerous attempts, and where her reasonably reliable future financial resources consisted of only her social security benefits, which were insufficient to meet her meager monthly expenses.
Objection to confirmation of chapter 13 debtor’s plan overruled. Although Debtor’s confirmed plan in a prior case valued creditor’s collateral at a higher amount than in the current case, where the prior case was dismissed before completion and without the Debtor receiving a discharge, and under the particular facts and circumstances of the current case, the Court found: (1) the Debtor’s current plan was proposed in good faith; (2) res judicata did not apply to the valuation given the collateral in the prior case; (3) the Debtor was not barred by the doctrines of equitable estoppel, judicial estoppel, or the doctrine of inconsistent positions from proposing a different valuation in the current case from the prior case; and (4) the Court would not use its powers under Section 105(a) of the Bankruptcy Code to deny confirmation.