In re Melcher

(Bankr. E.D. Ky. Sep. 8, 2017)

The bankruptcy court grants the creditor’s motion to dismiss the Chapter 7 case because the debtor failed to rebut the “presumption of abuse.” The debtor argued she should be permitted to file under Chapter 7 because of special circumstances, pursuant to § 707(b)(2)(B). The debtor argued that she was a “stockbroker” and thus not eligible for Chapter 11 or 13. However, the court determines that she is not a stockbroker because she is merely an employee, rather than a stockbroker as defined by § 101. Opinion below.

Judge: Wise

Attorney for Debtor: Stuart P. Brown

Attorney for Creditor: Nicholas A. Zingarelli

2017-09-08 – in re melcher

Author: Matt Lindblom

In re Penick

(Bankr. E.D. Ky. Aug. 28, 2017)

The bankruptcy court denies confirmation of the debtors’ proposed Chapter 12 plan. The court first determines that the debtors’ timber operations constitute a “farming operation” under § 101(21). Those operations are ongoing rather than a single cut of all timber at one time. The debtors are eligible to proceed under Chapter 12. However, the debtors failed to provide sufficient evidence that the proposed plan was feasible. Opinion below.

Judge: Wise

Attorney for Debtors: Michael L. Baker

Attorneys for Creditor: Morgan & Pottinger, Scott T. Rickman

2017-08-28 – in re penick

Author: Matt Lindblom

Kendrick v. Rister (In re Rister)

(Bankr. E.D. Ky. Aug. 4, 2017)

The bankruptcy court grants the motion to dismiss the trustee’s complaint. The court recently entered an order dismissing the trustee’s complaint for failure to state a claim but permitted the trustee leave to amend the complaint. See In re Rister. The amended complaint alleged that the vehicle became property of the estate because it was a proceed of the debtor’s contractual rights to the vehicle as of the petition date, whereas the original complaint alleged the vehicle itself was property of the estate on the petition date. The court finds that the fact that the debtor’s name was not on the certificate of title on the petition date is still dispositive. Opinion below.

Judge: Wise

Attorney for Trustee: Michael B. Baker

Attorneys for Defendants: Steffen Law Offices, Eric A. Steiden; Frost Brown Todd LLC, Paige Leigh Ellerman, Adam J. Webb; Aaron J. Nash; Patricia L. Johnson

2017-08-04 – in re rister

Author: Matt Lindblom

Ball v. United Cumberland Bank (In re Ball)

(Bankr. E.D. Ky. July 17, 2017)

The bankruptcy court dismisses the debtor’s complaint seeking to avoid a transfer to the bank defendant. The transfer consisted of the Bank exercising its contractual setoff right and applying funds in the debtor’s bank account to the Bank’s claim. The transfer occurred while the bankruptcy case was dismissed. The debtor fails to state a claim that is plausible on its face. Opinion below.

Judge: Schaaf

2017-07-17 – in re ball

Author: Matt Lindblom

Spradlin v. Whitt (In re Licking River Mining, LLC)

(Bankr. E.D. Ky. June 29, 2017)

The bankruptcy court grants the defendants’ motion to dismiss in this adversary proceeding. The trustee sought to subordinate and recharacterize defendants’ claims under 11 U.S.C. § 510, avoid as fraudulent and preferential transfers certain transfers to the defendants, and disallow defendants’ claims. The court finds that the trustee fails to allege facts sufficient to support any of the claims. Opinion below.

Judge: Wise

Attorneys for Trustee: Bingham Greenbaum Doll LLP, Claude R. Bowles, Jr., Danial J. Donnellon, James R. Irving, Alex S. Rodger, April A. Wimberg

Attorneys for Defendants: Brian H. Meldrum, Brian R. Pollock

2017-06-29 – in re licking river mining

Author: Matt Lindblom

Spradlin v. Wrigley’s 7-711, Inc. (In re Licking River Mining, LLC)

(Bankr. E.D. Ky. June 21, 2017)

The bankruptcy court grants the defendant’s motion to dismiss the trustee’s complaint, which sought to avoid transfers from debtors to the defendant. The complaint failed to state a claim, in part because the defendant could not be deemed an “insider” of the debtor. The court additionally finds that the complaint contains insufficient facts to support various other claims. Opinion below.

Judge: Wise

Attorneys for Trustee: Bingham Greenbaum Doll LLP, Claude R. Bowles, Jr., Daniel J. Donnellon, James R. Irving, April A. Wimberg

Attorneys for Defendant: Stites & Harbison, PLLC, Brian H. Meldrum, Brian R. Pollock

2017-06-21 – in re licking river mining

Author: Matt Lindblom

Kendrick v. Rister (In re Rister)

(Bankr. E.D. Ky. May 18, 2017)

The bankruptcy court grants the defendant’s motion for judgment on the pleadings in this vehicle lien avoidance action. The debtor entered into a sale contract for purchase of the vehicle on the day before the petition was filed, but the certificate of title was not transferred to the debtor until after the petition was filed. Accordingly, the court finds that the vehicle is not property of the estate and the complaint should be dismissed. The court permits the trustee a period of time in which to file an amended complaint based on the trustee’s assertion that the estate may include rights under the sale contract. Opinion below.

Judge: Wise

Attorney for Trustee: Michael B. Baker

Attorneys for Defendants: Steiden Law Offices, Eric A. Steiden; Frost Brown Todd LLC, Paige Leigh Ellerman, Adam J. Webb; Aaron J. Nash; Patricia L. Johsnon

2017-05-18 – in re rister

Author: Matt Lindblom