Calloway Cleaning & Restoration, Inc. v. McFarland (In re McFarland)

(Bankr. E.D. Ky. Feb. 20, 2018)

The bankruptcy court enters summary judgment in favor of the debtors in this nondischargeability action. Following a Christmas Eve fire at the debtors’ home, they entered into a contract with the plaintiff to restore the property. The contract provided that the plaintiff would take insurance proceeds as compensation for the work. A dispute arose, and the debtors used the insurance proceeds for other expenses. The plaintiff argued that the debt is non-dischargeable under 11 U.S.C. § 523(a)(2) and (4). The court disagrees, finding the creditor failed to present evidence sufficient to establish the necessary intent under § 523(a)(2) or to establish a “fiduciary capacity” under § 523(a)(4). Opinion below.

Judge: Wise

Attorneys for Creditor: Frost Brown Todd LLC, Patricia K. Burgess; Michael E. Nitardy

Attorney for Debtors: Michael L. Baker

2018-02-20 – in re mcfarland

Author: Matt Lindblom

In re Joseph

(Bankr. E.D. Ky. Feb. 7, 2018)

The bankruptcy court grants the debtor’s motion to enforce the discharge injunction and for sanctions. The creditor held a certificate of delinquency for unpaid real property taxes. Post-discharge, the creditor sought and obtained an in rem judgment to foreclose the tax lien. The foreclosure sale did not fully satisfy the lien, and the creditor then recorded a judgment lien against the debtor for the deficiency and sought to foreclose on other real property of the debtor. The bankruptcy court holds this is an attempt to collect on the discharged claim for the unpaid property taxes. Sanctions are appropriate under these circumstances. Opinion below.

Judge: Schaaf

Attorneys for Debtor: Ryan R. Atkinson; DelCotto Law Group PLLC, Michael J. Gartland

Attorneys for Creditor: Bilz & Associates, P.S.C., Joshua M. Bilz, David A. Schulenberg

2018-02-07 – in re joseph

Author: Matt Lindblom

Harker v. PNC Mortgage Company (In re Oakes)

(6th Cir. B.A.P. Feb. 6, 2018)

The Sixth Circuit B.A.P. affirms the bankruptcy court’s order denying the mortgage holder’s motion for judgment on the pleading in this mortgage avoidance action. The creditor argued that recently-enacted Ohio statutes provide that the bankruptcy trustee, as a hypothetical judicial lien creditor, cannot avoid the mortgage, which was improperly executed and recorded. The B.A.P. holds that, pursuant to Ohio law at the time the case was filed, the trustee takes priority over the creditor’s defective mortgage. Opinion below.

Judge: Opperman

Attorneys for Trustee: Donald F. Harker, III; Rieser & Marx, Dianne F. Marx, John Paul Rieser

Attorneys for Creditor: Plunkett Cooney, Amelia A. Bower

2018-02-06 – in re oakes

Author: Matt Lindblom

In re Lane

(Bankr. W.D. Ky. Feb. 5, 2018)

The bankruptcy court denies the creditors’ motion to dismiss the Chapter 13 case. The motion raised issues that could have been raised in an objection to confirmation of the plan. The confirmation order operates as res judicata of all issues which could have been raised at the confirmation hearing. Opinion below.

Judge: Lloyd

Attorneys for Debtor: Seiller Waterman LLC, Neil Charles Bordy

Creditor: Pro Se

2018-02-05 – in re lane

Author: Matt Lindblom

In re Challis

(Bankr. S.D. Ind. Jan. 31, 2018)

The bankruptcy court grants the U.S. Trustee’s motion to dismiss pursuant to 11 U.S.C. §§ 707(b)(1) and (2). The bankruptcy court concludes that the presumption of abuse arises based on the Debtors’ schedules and the submitted means test form. The debtors failed to rebut the presumption, despite their arguments that deductions to their monthly income should be made due to special circumstances. Opinion below.

Judge: Carr

Attorney for Debtors: Steven P. Taylor

2018-01-31 – in re challis

Author: Matt Lindblom

Reinbold v. Thorpe (In re Thorpe)

(7th Cir. Jan. 31, 2018)

The Seventh Circuit affirms the bankruptcy court, holding that the bankruptcy estate took the debtor’s half interest in the real property subject to the debtor’s ex-spouse’s contingent interest in the property. The court applies the Illinois Marriage and Dissolution of Marriage Act and concludes that the divorce court divested the estate of all rights to the marital home when it awarded the property to the debtor’s ex-spouse pre-petition. Opinion below.

Judge: Sykes

Attorneys for the Trustee: Jeana K. Reinbold; Pollick & Schmahl, LLC, Michael Mario Schmahl, John Franklin Pollick

Attorney for Appellee: Katz, Huntoon & Fieweger, Dale G. Haake

2018-01-31 – in re thorpe

Author: Matt Lindblom

 

In re Odell

(6th Cir. B.A.P. Jan. 30, 2018)

The Sixth Circuit B.A.P. dismisses the appeal as moot. The debtor claimed an exemption in her real property that was greater than its value. The mortgagee obtained stay relief to foreclose on the debtor’s real property, and the debtor appealed. The court holds that because the exemption amount exceeded the value of the property, the property was no longer property of the estate and thus not subject to the automatic stay. Even if the court were to reverse the bankruptcy court’s stay relief order, the outcome would be the same. Opinion below.

Judge: Preston

Debtor: Pro Se

Attorney for Creditor: Lerner, Sampson & Rothfuss, Joel K. Jensen

2018-01-30 – in re odell

Author: Matt Lindblom