Crawford v. Vanwinkle (In re Vanwinkle)

(Bankr. E.D. Ky. Dec. 27, 2016)

The bankruptcy court dismisses the creditor’s non-dischargeability complaint under 11 U.S.C. § 523(a)(2)(A) and (a)(6). The creditor conceded that the debt was based on a breach of contract claim. However, the creditor alleged the debt was converted to a non-dischargeable debt based on the debtor’s post-judgment efforts to avoid collection. The court finds that the creditor failed to state a claim in part because the alleged behavior did not result in the debt sought to be declared non-dischargeable. Opinion below.

Judge: Schaaf

Attorneys for Plaintiff: DelCotto Law Group PLLC, Laura Day DelCotto

Attorney for Defendant: Michael B. Baker

2016-12-27-in-re-vanwinkle

Author: Matt Lindblom

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

Gower v. Parker (In re Parker)

(Bankr. W.D. Ky. Oct. 3, 2016)

The bankruptcy court denies the debtor’s motion to dismiss the nondischargeability action. The debt arose from a burglary of an individual’s home. The individual died prepetition. The deceased individual’s beneficiaries filed the action pro se, naming the individual’s estate as well as themselves as plaintiffs. The debtor argued the complaint should be dismissed because the beneficiaries engaged in the unauthorized practice of law because the estate was included. The Court relies on a recent Sixth Circuit opinion and finds the beneficiaries were permitted to file as they did. The debtor also argued the complaint should be dismissed because of the timing of service of the complaint and summons. The Court holds the proper procedures were followed. Opinion below.

Judge: Lloyd

Attorney for Plaintiffs: Crain, Schuette & Associates, Amanda Lisenby Blakeman

Attorney for Debtor: Alicia C. Johnson

2016-10-03-in-re-parker

Author: Matt Lindblom

In re Willams

(Bankr. W.D. Ky. Apr. 22, 2016)

The bankruptcy court denies the U.S. Trustee’s motion to dismiss the Chapter 12 case. The debtors testified at their § 341 meeting of creditors that they had not engaged in a farming operation since two years before the petition was filed and did not intend to return to farming. The court applies the Code’s definition of “family farmer” and first finds that the debtors had engaged in a farming operation even though they contracted with their son to do the physical planting and harvesting of crops. The court also holds that the Code does not require the debtor to be engaged in a farming operation at the time the petition was filed, in part because Chapter 12 permits liquidation of the farming operation. Opinion below.

Judge: Lloyd

Attorney for Debtors: Kerrick Bachert PSC, Scott A. Bachert

Attorney for U.S. Trustee: Tyler Yeager

2016-04-22 – in re williams

Author: Matt Lindblom

Hollowell v. Chase Home Finance

(N.D. Ind. Apr. 5, 2016)

The district court grants the defendants’ motion to dismiss the appeal for being untimely. The debtor filed his notice of appeal outside the 14-day period. Upon the defendants’ motion to dismiss the appeal, the debtor filed a motion to extend the deadline to file the notice of appeal, but that motion was also untimely. Opinion below.

Judge: Simon

Debtor: Pro Se

Attorneys for Defendants: Dykema Gossett PLLC, Louis S. Chronowski, Maria A. Diakoumakis

2016-04-05 – hollowell v chase home finance

Author: Matt Lindblom

Gaft v. Sheidler (In re Sheidler)

(6th Cir. B.A.P. Mar. 28, 2016)

The Sixth Circuit B.A.P. affirms the bankruptcy court’s order dismissing the plaintiffs’ nondischargeability complaint. The plaintiffs had suffered a loss when they purchased a condominium unit and hired a builder to complete its construction. The builder accepted funds but failed to complete the work. Each of the plaintiffs’ claims under 11 U.S.C. § 523 were properly dismissed, principally because they failed to establish that the builder was the debtors’ agent. Opinion below.

Judge: Harrison

Attorneys for Creditors: Daniel P. Feinberg, William Z. Kolobaric

Attorneys for Debtors: Michigan Legal Group, Sean M. Liles

2016-03-28 – in re sheidler

Author: Matt Lindblom

HIJ Industries, Inc. v. Roy (In re roy)

(Bankr. E.D. Ky. Mar. 21, 2016)

The bankruptcy court denies the debtor’s motion to dismiss the complaint seeking to deny the debtor a discharge under 11 U.S.C. § 727(a)(2)(A) or alternatively to except the creditors claim from discharge under § 523(a)(6). The debtor argued that the creditor failed to state a claim because the complaint only alleged that the debtor caused injury to his own business rather than to the creditor itself. The court disagrees, holding the debtor’s actions to remove property from his business could be the basis for a claim under § 523(a)(6). The debtor also argued that the creditor failed to plead the requisite intent for § 727(a)(2), but the court disagrees and denies the motion to dismiss. Opinion below.

Judge: Wise

Attorney for Debtor: John M. Simms

Attorney for Plaintiff: Tricia A. Shackelford

2016-03-21 – in re roy

Author: Matt Lindblom

Golson-Dunlap v. HSBC Capital (USA), Inc. (In re Garrison)

(S.D. Ind. Feb. 5, 2016)

The district court grants the unopposed motion to withdraw the reference and the motion to dismiss the adversary proceeding with prejudice. The court discusses the standard for withdrawal motions, and finds that the standard is met here. The claims arise out of a contractual relationship outside the bankruptcy and would not be resolved through the claims resolution process. Thus, the bankruptcy court could not issue a final judgment in the matter absent the movant’s consent. Opinion below.

2016-02-05 – in re garrison

Author: Matt Lindblom

Sturgeon v. Hart County Finance, LLC (In re Sturgeon)

(Bankr. W.D. Ky. Nov. 20, 2015)

The bankruptcy court grants the defendant’s motion to dismiss the adversary proceeding because it lacks jurisdiction over the claim asserted. The debtor listed the claim in his schedules, but the trustee effectively abandoned the claim upon filing his report of no distribution. The debtor then filed the adversary proceeding. The court finds that there is no “related to” jurisdiction because the claim was abandoned, outside the estate, and owned by the debtor. Opinion below.

2015-11-20 – sturgeon v hart county finance

Author: Matt Lindblom

In re Atlas Red-D Mix, Inc.

(Bankr. S.D. Ind. Nov. 10, 2015)

The bankruptcy court dismisses the chapter 7 business debtor’s bankruptcy for cause under 11 U.S.C. § 707(a). The debtor had ceased operations a few years prior to the bankruptcy, due to the death of its principal. The individual that inherited the stock then caused the debtor to withdraw from a pension fund to which the debtor was a contributing employer, which caused the debtor to incur a $3.5 million liability. The fund obtained a judgment against the debtor, took steps to collect on the judgment, and the debtor then filed a chapter 7 petition. The court finds that the case should be dismissed for cause because the debtor filed the bankruptcy in bad faith. The court finds that factors supporting a dismissal for bad faith include that the debtor had transferred four parcels of real property after the fund sued the debtor, the bankruptcy was essentially a two-party dispute, and there was no real purpose for the bankruptcy because the corporate debtor would not receive a discharge. Opinion below.

2015-11-10 – in re atlas red-d mix

Author: Matt Lindblom