(Bankr. S.D. Ind. Apr. 4, 2018)
The bankruptcy court denies the debtor’s motion to dismiss the nondischargeability complaint. The court finds that the complaint is a short, plain statement of the plaintiff’s claims, which constitute plausible claims upon which relief can be granted. Opinion below.
Judge: Carr
Attorney for Plaintiff: Randolph A. Leerkamp
Attorney for Debtor: Carey Law Office, Penny Lynn Carey
Author: Matt Lindblom
(Bankr. S.D. Ind. Mar. 20, 2018)
The bankruptcy court holds that a fine for wrongful receipt of unemployment benefits is excepted from discharge pursuant to 11 U.S.C. § 523(a)(7). However, the benefits received while the debtor worked under a certain contract were not excepted under § 523(a)(2) because the debtor established that he was confused by the government’s response to his question about whether he was “employed” if he was working pursuant to a coaching contract. Opinion below.
Judge: Carr
Attorney for Government: Megan Elizabeth Binder
Attorney for Debtor: Thomas H. Rothe
Author: Matt Lindblom
(Bankr. S.D. Ind. Mar. 20, 2018)
The bankruptcy court finds in favor of the debtor in this nondischargeability action. The plaintiff alleged that the debtor had fraudulently taken funds from the plaintiff for the purchase of a vehicle that the debtor did not provide. The court finds that the plaintiff did not provide sufficient proof of the necessary intent under 11 U.S.C. § 523(a)(2)(A) and (a)(6). Opinion below.
Judge: Carr
Attorney for Plaintiff: Carrie L. Breedlove
Debtor: Pro Se
Author: Matt Lindblom
(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
Author: Matt Lindblom
(Bank. S.D. Ind. Jan. 25, 2018)
The bankruptcy court grants the debtor’s motion to dismiss the Chapter 12 case but bars the debtor from refiling a case under any chapter for 180 days. The debtor filed its motion after the trustee filed a motion to dismiss and for a 180-day refiling bar. The court concludes that the debtor has the right to dismiss its case under 11 U.S.C. § 1208(b), and thus the trustee’s motion must be denied. However, the court finds that the case was filed in bad faith and thus the Court can order the 180-day bar without motion under § 349(a). Opinion below.
Judge: Moberly
Attorney for Debtor: McClure O’Farrell, Thomas B. O’Farrell
Trustee: Joseph M. Black, Jr.
2018-01-25 – in re valentine hill farm
Author: Matt Lindblom
(Bankr. S.D. Ind. Dec. 4, 2017)
The bankruptcy court grants the motion to dismiss, finding the defendant’s security interest in the debtor’s assets, including its inventory, has priority over the plaintiff’s reclamation rights. The plaintiff sold goods to the debtor up to the petition date and sought either return of the goods delivered within the reclamation period or recovery of the proceeds from the sale of such goods. Pursuant to 11 U.S.C. § 546(c), the Court finds the reclamation rights are subordinate and the complaint should be dismissed. Opinion below.
Judge: Jeffrey J. Graham
Attorneys for Plaintiff: Warner Norcross & Judd LLP, Robert Michael Azzi, Stephen B. Grow, Janet L. Ramsey; Rubin & Levin, P.C., Joshua W. Casselman, James E. Rossow, Jr.
Attorneys for Defendants: Ice Miller LLP, Adam Arceneaux, Sarah Lynn Fowler, Jeffrey A. Hokanson; Morgan Lewis & Bockius LLP, Andrew Joseph Gallo, Neil E. Herman; Choate Hall & Stewart LLP, Mark D. Cahill, Sean Monahan, John Ventola; Faegre Baker Daniels LLP, Terry E. Hall, Jay Jaffe; DLA Piper LLP, David E. Avraham, Stuart M. Brown, Jeffrey Scott Torosian
Author: Matt Lindblom
(Bankr. S.D. Ind. Oct. 20, 2017)
The bankruptcy court dismisses the debtor’s complaint against the lender, which asserted claims related to the lender’s foreclosure of its mortgage lien in state court. The court dismisses the stay violation claim, because the property was not property of the estate at the time of the alleged acts, and dismisses the remaining claims because the court lacks subject-matter jurisdiction. Opinion below.
Judge: Carr
Attorney for Debtor: Sawin, Shea & Des Jardines LLC, J. Andrew Sawin
Attorneys for Defendant: Taft Stettinius & Hollister LLP, Tammara Danielle Porter
Author: Matt Lindblom
(Bankr. S.D. Ind. Oct. 19, 2017)
The bankruptcy court grants summary judgment in favor of the county in this § 542 turnover action. The case involves a matter of first impression regarding a Chapter 13 debtor’s rights in the tax surplus fund provided for in Ind. Code § 6-1.1-24-7. The court determines the debtor had two options as of the petition date: (1) exercise the right of redemption by the statutory deadline or (2) allow the redemption period to expire, divest herself of the property, and then make a claim against the tax surplus fund. As of the petition date, the debtor only holds a contingent interest in the tax surplus fund, and thus an order directing turnover of the fund is inappropriate. Opinion below.
Judge: Moberly
Attorney for Debtor: Steven P. Taylor
Attorney for Defendants: Scott R. Richards, Katherine A. Starks; Douglas J. DeGlopper
Author: Matt Lindblom
(Bankr. S.D. Ind. Sep. 14, 2017)
The bankruptcy court grants the university’s motion for summary judgment, determining that the student loan debt is nondischargeable. The debtor filed the adversary proceeding alleging repayment would present an undue hardship. The debtor did not respond to the university’s motion and failed to present any evidence to satisfy the Brunner test. Opinion below.
Judge: Carr
Attorney for Debtor: Eric C. Redman, Redman Ludwig PC
Attorney for University: Constantine Alexander Hortis, Maryland Attorney General
Author: Matt Lindblom
(Bankr. S.D. Ind. Sep. 7, 2017)
The bankruptcy court enters judgment in favor of the debtor, granting a discharge in her bankruptcy case. The U.S. Trustee brought the action under § 727(a)(2)(B) and (a)(4)(A), alleging the debtor intentionally failed to disclose $5,000 she held in a lockbox on the petition date. The Court finds the debtor did not have the requisite intent and was unsure of what she was supposed to do at the 341 meeting based on a misunderstanding or miscommunication with her lawyer. Opinion below.
Judge: Carr
Attorney for U.S. Trustee: Jeanette Eisan Hinshaw
Attorney for Debtor: Joseph L. Mulvey
Author: Matt Lindblom
Kentuckiana Bankruptcy Opinions 