Nicholson v. Hyundai Capital America, Inc.

(W.D. Ky. May 2, 2017)

The district court denies the debtor’s motion to withdraw the referral of one count of her complaint to the bankruptcy court. The defendant had filed a motion with the bankruptcy court seeking to have the count dismissed because it was not a core claim. The debtor then sought an order withdrawing the reference to avoid litigating the jurisdictional question. The district court declines to grant the motion, stating that the bankruptcy court should rule on the motion to dismiss, as it has jurisdiction to consider the issue presented with the motion. Opinion below.

Judge: Russell

Attorneys for Plaintiff/Debtor: Whitford & Neuhauser, Ross B. Neuhauser

Attorneys for Defendants: Reimer Law Co., Dennis Mark Ostrowski; Smith, Rolfes & Skavdahl, Co., LPA, Neil P. Baine

2017-05-02 – in re nicholson

Author: Matt Lindblom

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

(W.D. Ky. April 25, 2017)

The district court affirms the bankruptcy court’s judgment finding the debt owed to the creditor was nondischargeable under 11 U.S.C. § 523(a)(2)(B). The court holds the bankruptcy court’s decision was not clearly erroneous, as the evidence supported a finding that the debtor obtained a loan from the creditor based on a written statement that was materially false as to the debtor’s financial condition. The court also affirms the bankruptcy court’s finding that the creditor did not obtain a lien on personal property of the debtor when the sheriff, following default judgment in the creditor’s favor prepetition, merely located property of the debtor rather than exerted control over the property. Opinion below.

Judge: McKinley

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

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

2017-04-25 – in re french

Author: Matt Lindblom

Sunshine Heifers, LLC v. Purdy

(W.D. Ky. Aug. 15, 2016)

The district court affirms the bankruptcy court’s decision that proceeds of the auction of the debtor’s cattle were properly payable to the bank, which held a first priority security interest in the debtor’s assets. While the Sixth Circuit had reversed the bankruptcy court’s prior decision finding the second creditor’s lease of the cattle to be a second priority lien (rather than a true lease), the bankruptcy court’s decision here was not clearly erroneous and was based on the evidence presented at the hearing to determine ownership of the cattle auctioned. The bankruptcy court found that all of the cattle subject to the leases had been sold prior to the auction. Opinion below.

Judge: McKinley

Attorneys for Plaintiff: Keller & Almassian, PLC, Michael D. Almassian, Nicholas S. Laue

Attorneys for Defendants: Kerrick Bachert PSC, Ashley D. Gerughty, Scott A. Bachert

2016-08-15 – sunshine heifers v purdy

Author: Matt Lindblom

 

Harper v. Conco ESOP Trustees

(W.D. Ky. July 7, 2016)

The district court affirms the bankruptcy court’s order enjoining the transfer of certain equity interests in the reorganized chapter 11 debtor because it violated the terms of the confirmed plan. The court determines that the bankruptcy court interpreted rather than modified the plan and thus the district court reviews the appealed order for abuse of discretion. While the plan did not expressly prohibit the transfer of the equity interests, the facts surrounding the negotiation and confirmation of the plan clearly evidenced the interested parties’ intent to prohibit such transfer until a certain date. Opinion below.

Attorneys for Appellants: Kaplan & Partners, LLP, Casey L. Hinkle, David S. Kaplan; Keller Rohrback LLP, David S. Preminger; Frost Brown Todd LLC, Cory J. Skolnick, Edward M. King, John S. Egan; Hahn & Hessen LLP, Gilbert Backenroth, Jeffrey Zawadzki; Seiller Waterman, LLC, Neil Charles Bordy

Attorneys for ESOP Trustees: Stoll Keenon Ogden PLLC, Lea Pauley Goff, P. Douglas Barr

Attorneys for Oversight Committee: Bingham Greenebaum Doll LLP, Claude R. Bowles, Jr., James R. Irving, John W. Ames

2016-07-07 – harper v conco esop trustees

 

Author: Matt Lindblom

 

Kentucky Employees Retirement System v. Seven Counties Services, Inc.

(W.D. Ky. Mar. 31, 2016)

The district court affirms the bankruptcy court’s decision finding that Seven Counties Services, Inc. was permitted to file for Chapter 11 bankruptcy relief because it was not a “governmental unit” as defined in the bankruptcy code. Further, the debtor’s contract with KERS was properly deemed an executory contract that could be rejected by the debtor. The court makes one factual correction to the record, but the bankruptcy court’s decision is affirmed in all other respects. Opinion below.

Judge: Hale

Attorneys for KERS: Ice Miller LLP, Daniel R. Swetnam, Tyson A. Crist, Victoria E. Powers

Attorneys for Debtor: Seiller Waterman, LLC, David Cantor, Tyler R. Yeager, Gray & White, Paul Joseph Hershberg, Bingham Greenebaum Doll LLP, Philip C. Eschels, Wyatt Tarrant & Combs LLP, Theodore T. Myre, Jr.

2016-03-31 – kers v seven counties services

Author: Matt Lindblom

Woodson v. Ausmus

(W.D. Ky. Mar. 31, 2016)

The district court affirms the bankruptcy court’s decision to bar the creditor’s nondischargeability claims for being untimely. The bankruptcy notice set forth the applicable bar date for assertion of such claims, based on the first scheduled meeting of creditors. The case was then repeatedly dismissed for failure to file schedules and reinstated on motions of the debtor. While the meeting of creditors was rescheduled and continued, no changes were made to the initial bar date for nondischargeability claims. The court enforces the deadline and declines to exercise its equitable powers under 11 U.S.C. § 105(a) to revoke the discharge. Opinion below.

Judge: Stivers

Attorney for Debtors: Whitford & Neuhauser, Ross B. Neuhauser

Attorney for Creditor: Dinsmore & Shohl LLP, James L. Adams

2016-03-31 – woodson v ausmus

Author: Matt Lindblom

Waldman v. Stone

(W.D. Ky. Jan. 15, 2016)

On remand from the Sixth Circuit, the district court apportions fault 50/50 between the two defendants (pursuant to KRS 411.182) and reduces the punitive damage award proportionally with the reduction of compensatory damages. The court also finds that the punitive damages should be apportioned 50/50. The two defendants had conspired to defraud the debtor of his interest in his business entity. Opinion below.

 

2016-01-15 – waldman v stone

Author: Matt Lindblom