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

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

Phi Air Medical, LLC v. Westenhoefer (In re White)

(Bankr. E.D. Ky. Nov. 11, 2016)

The bankruptcy court grants summary judgment in favor of the trustee in this declaratory judgment action, in which the plaintiff sought a judgment that certain health insurance proceeds were not property of the estate. The plaintiff argued that the debtor had assigned the proceeds to it prior to the bankruptcy, but the court holds that the evidence presented did not establish such assignment. The debtor’s spouse had signed the document for him, but the debtor’s spouse did not have the requisite agency authority to do so. Opinion below.

Judge: Schaaf

Attorney for Plaintiff: Stites & Harbison PLLC, Chrisandrea L. Turner

Attorney for Defendant: Barber Law PLLC, T. Kent Barber

Author: Matt Lindblom

2016-11-11-in-re-white

In re Lockhart

(Bankr. W.D. Ky. Oct. 28, 2016)

The bankruptcy court enters an order holding in abeyance the motion to dismiss the Chapter 13 case. The court also denies confirmation of the proposed plan but holds the case open for further filings. The required maintenance payment could not be satisfied by the monthly payments in the proposed plan. Opinion below.

Judge: Lloyd

Attorneys for Debtor: Naber & Joyner, J. Gregory Joyner

Attorney for Creditor: Joseph S. Elder II

2016-10-28-in-re-lockhart

Author: Matt Lindblom

In re Bullitt Utilities, Inc.

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

The court grants the trustee’s motion to employ the law firm as special counsel to pursue claims against certain third parties on behalf of the estate. The law firm had represented two of the largest creditors of the estate in connection with commencing the involuntary chapter 7 against the debtor. The court finds that there is no conflict in the representation, in part because the scope of the proposed engagement—seeking recovery of amounts owed to the estate—was aligned with the interests of the creditors, and in part because the creditors confirmed that the law firm no longer represented them. Opinion below.

Judge: Lloyd

Trustee: Robert W. Keats

Special Counsel: Bingham, Greenbaum, Doll, LLP

Author: Matt Lindblom

2016-09-16-in-re-bullitt-utilities

 

Federal Insurance Company v. Woods (In re Woods)

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

The bankruptcy court grants in part the plaintiffs’ motion for summary judgment in this nondischargeability action. The court denies the motion as to the amount of damages. The debtor admitted to committing the fraud and embezzlement while employed by the plaintiff car dealer. Thus, the court finds that the elements in 11 U.S.C. 523(a)(6) are satisfied, as the undisputed facts established that the debt arose from the willful and malicious injury by the debtor. However, Kentucky’s statute of repose for fraud claims creates an issue as to how much of the loss can be attributed to acts committed within the ten-year repose period. Opinion below.

Judge: Stout

Attorney for plaintiffs: Stoll Keenon Ogden PLLC, Adam Mastin Back

Attorney for debtor: Lowen & Morris, Jan C. Morris

Author: Matt Lindblom

2016-09-16-in-re-woods

In re McWhorter

(Bankr. E.D. Ky. Sept. 14, 2016)

The bankruptcy court denied debtor’s discharge under Sections 727(a)(2) and (a)(4) at the request of the UST. Debtor failed to disclose a corvette, a motor home, and a boat and trailer on Schedule B, asserting they were sold to his father in January 2013, but the UST showed that transfer and certificate of title documentation was not executed until October 2014, just over a month before debtor filed bankruptcy. Debtor maintained possession of those assets. Debtor also failed to disclose his ownership of four complete sets of tickets for the 2014-2015 UK men’s basketball season, as well as numerous other assets. Debtor’s testimony on the status, ownership and disposition of all these assets was inconsistent and led to credibility issues according to the court. The court also discussed the UST’s claim under Section 727(a)(5). A March 2013 financial statement by debtor listed assets of $10.5 million, but his November 2014 petition identified just $415,000 in assets. Even though the court did not have to rely on the 727(a)(5) claim, as denial of discharge was already warranted under 727(a)(2) or (a)(4), the court noted a discussion of the UST’s 727(a)(5) claim was valuable as it supported the (a)(2) and (a)(4) claims.

Judge: Schaaf

Attorney for Debtor: Michael Baker

Attorney for UST: Bradley Nederman

Author: Robert K. Imperial

2016-09-14-in-re-mcwhorter

In re Polly

(Bankr. W.D. Ky. May 17, 2016)

The debtor sustains, in part, the debtors’ objection to the creditor’s notice of post-petition mortgage fees, expenses and charges. The debtor contended the following fees were unreasonable: $500 for an objection to the debtor’s plan, $100 for the filing of the notice, and $650 for the preparation and filing of a proof of claim. The creditor submitted an affidavit of its counsel detailing the tasks completed for the case. However, the affidavit failed to allocate specific amounts of time to each task. Thus, the Court reduces the proof of claim fee to $200, finds the other fees are reasonable, and allows the creditor’s claim in the amount of $800. Opinion below.

Judge: Lloyd

Attorneys for Debtors: Kruger & Schwartz, Richard A. Schwartz

Attorneys for Creditor: Lerner, Sampson & Rothfuss, LPA, Kerry Nunley Bruckner

2016-05-17 – in re polly

Author: Matt Lindblom

In re Jones

(6th Cir. B.A.P. Mar. 3, 2016)

The Sixth Circuit B.A.P. reverses the bankruptcy court’s sanctioning of a lawyer under Bankruptcy Rule 9011. The bankruptcy court sua sponte entered a show cause order to address whether the bankruptcy court should find the attorney in violation of Rule 9011. Following a hearing, the court entered an order holding the attorney liable for $26,000 in attorney fees and revoking his ECF privileges. The B.A.P. reviews the record and finds that the bankruptcy court relied on clearly erroneous factual findings to support the sanctions order and that attorney fees could not be awarded because the show cause order was issued sua sponte. Opinion below.

2016-03-03 – in re jones

Author: Matt Lindblom

In re Brunck

(Bankr. S.D. Ind. Feb. 24, 2016)

The bankruptcy court overrules the trustee’s objection to the debtors’ proposed Chapter 13 plan. For purposes of the means test, the debtors deducted as a car ownership expense payments on a non-purchase money loan secured by their car. The trustee objected, arguing that the deduction was inappropriate because it was not a purchase-money loan and thus not a car ownership expense. The trustee relied on the Supreme Court’s decision in Ransom v. FIA Card Services, N.A. The bankruptcy court rejected the trustee’s argument, holding that the expense constituted a car ownership expense for purposes of the means test.

2016-02-24 – in re brunck

Author: Matt Lindblom