Security Seed and Chemical, Inc. v. French (In re French)

(Bankr. W.D. Ky. Dec. 1, 2016)

Following trial, the bankruptcy court excepts from discharge a debt arising from a loan, but holds the plaintiff failed to meet its burden with respect to other debts. The court also finds that a lien was not created where there was no proof of an actual levy, but a seperate judgment lien is held valid. The court denies the debtor’s motion to avoid the lien. Opinion below.

Judge: Stout

Attorneys for Plaintiff: Thomas, Arvin & Adams, James G. Adams, III, David E. Arvin

Attorneys for Defendant: King, Deep & Branaman, Harry L. Mathison

2016-12-01-in-re-french

Author: Matt Lindblom

In re McCoy

(6th Cir. B.A.P. Nov. 29, 2016)

The Sixth Circuit B.A.P. reverses the bankruptcy court’s order denying the debtor’s motion to reopen his Chapter 7 case. Four years after filing the bankruptcy and receiving a discharge, the debtor filed a motion to reopen his case to avoid judicial liens. No creditors objected. However, the bankruptcy court denied the motion based primarily on the delay in filing the motion. The B.A.P. holds that the mere passage of time does not necessarily cause prejudice to a creditor sufficient to bar reopening of a case. The bankruptcy court did not find prejudice and thus the motion should have been granted. Opinion below.

Judge: Harrison

Attorney for Debtor: Carlo A. Ciccone

2016-11-29-in-re-mccoy

Author: Matt Lindblom

Nelson v. Taylor (In re Taylor)

(Bankr. E.D. Ky. Nov. 28, 2016)

The bankruptcy court enters summary judgment in favor of the plaintiffs in this 11 U.S.C. § 523(a)(6) nondischargeability action. The plaintiffs had obtained a state court default judgment against the debtor for damages caused to them when the debtor drove to their home and shot one of the plaintiffs and injured the other plaintiff with flying debris. The court holds that collateral estoppel bars the debtor from relitigating the issue of whether the debtor caused a willful and malicious injury to the plaintiffs. Opinion below.

Judge: Wise

Attorney for Plaintiff: Noah R. Friend Law Firm, PLLC, Noah R. Friend

Attorney or Defendant: Jeanne K. Channell

2016-11-28-in-re-taylor

Author: Matt Lindblom

Korean Claimants v. Debtor’s Representatives (In re Settlement Facility Dow Corning Trust)

(6th Cir. Nov. 23, 2016)

The Sixth Circuit affirms the 2015 consent order specifying the manner in which certain provisions of the confirmed Chapter 11 plan would apply to a class of claim holders. The Korean Claimants objected, arguing that the district court lacked authority to enter the consent order and that the consent order was an impermissible modification of the distribution agreement. The court holds that the court had the requisite authority to enter the consent order and it merely clarified the distribution agreement rather than modified it. Opinion below.

Judge: Kethledge

Attorney for Claimants: Yeon Ho Kim

Attorneys for Debtor Entities: Deborah E. Greenspan, Jeffrey S. Trachtman, Ernest H Hornsby, Dianna Pendleton-Dominguez

2016-11-23-in-re-dow-corning

Author: Matt Lindblom

In re Elkins

(Bankr. E.D. Ky. Nov. 22, 2016)

The bankruptcy court grants the creditor’s motion to modify the stay to allow the creditor to proceed with the state court real property foreclosure action. The court finds that cause exists for stay relief for reasons including that this second bankruptcy filing by the debtor was pending for three months, the debtor’s plan depended on a sale of the property, the debtor had not taken any action to proceed with the sale, and there was no proof that the debtor’s spouse (co-owner of the property) would consent to the sale. Opinion below.

Judge: Schaaf

Attorney for Debtor: DelCotto Law Group PLLC, Dean A. Langdon

Attorney for Creditor: Miller, Griffin & Marks, P.S.C., Carroll M. Redford, III

2016-11-22-in-re-elkins

Author: Matt Lindblom

U.S. v. Bush

(S.D. Ind. Nov. 18, 2016)

The district court affirms the bankruptcy court’s holding that a tax penalty is dischargeable if the penalty is described by either 11 U.S.C. § 523(a)(7)(A) or (B). Opinion below.

Judge: McKinney

Attorney for Appellant: Peter Sklarew

Attorneys for Debtors: Camden & Meridew, PC, Julie A. Camden

2016-11-18-us-v-bush

Author: Matt Lindblom

In re Parrish

(Bankr. W.D. Ky. Nov. 16, 2016)

The bankruptcy court grants in part and denies in part the debtor’s motion for sanctions for violation of the automatic stay. The government agency sought to collect its loan default claim by set off against the debtor’s tax refund. The debtor filed bankruptcy, and the government effected the set off before its system flagged the account for the bankruptcy. The court finds a technical violation of the automatic stay but also finds that a set off would have been appropriate and there was no evidence that a stay relief motion would have been denied. Accordingly, the court awards the debtor a minimal amount for the inadvertent stay violation. Opinion below.

Judge: Lloyd

Attorney for Debtor: Julie Ann O’Bryan

Attorney for Creditor: Assistant U.S. Attorney, Jessica R. C. Malloy

2016-11-16-in-re-parrish

Author: Matt Lindblom