Opinions/Orders for
Judge Audrey R. Evans
Please note that selection for publication does not affect the precedential value of cases. This Court does not have a local rule barring citation of unpublished opinions or orders.
Search Judge Evans' Opinions
| Date Entered | Last Name | Description |
|---|---|---|
| 12/29/2014 | Baber | Court found that mortgage servicer's attachment of note indorsed in blank to its proof of claim was not fraudulent based on its prior presentation of an unindorsed note in state court foreclosure action. Court also found that Debtors lacked standing to raise speculation about the proper assignment of the note, particularly where they allege no injury resulting from the note's assignment. Finally, the Court found that the fees listed on servicer's proof of claim were not fraudulently incurred, that Debtors did not show any fees were unreasonable, and that the fees were provided for in the note and mortgage. |
| 10/23/2014 | Webb | In this Chapter 7 case, the Debtors formed a joint venture to conduct their farming operations; the Court previously held that the joint venture was not a separate legal entity. On competing motions for summary judgment, the Court held that the joint venture could grant legally enforceable security interests in property owned by the Debtors individually and that the creditors had perfected security interests in the Debtors' rice and farming equipment with the exception of certain vehicles for which the creditors' names were not listed on the certificates of title. Specifically, the Court found that financing statements filed in the name of the joint venture were not seriously misleading and the creditors filed financing statements in the appropriate location. The Court also determined that a portion of the Debtors' rice crop designated as the "landlord's share" under a lease agreement was subject to a landlord's lien and therefore belonged to the Trustee, as the successor-in-interest to the landlord. The Court further found a post-petition transfer of funds to a creditor was avoidable under 11 U.S.C. § 549, but that the Court must decide a factual issue to determine whether the creditor had a security interest in those funds and to calculate the amount of the Bank's secured claim under 11 U.S.C. §§ 502(h) and 506(a). The Court also denied summary judgment on other issues which required additional findings of fact, including: surcharge, preferential transfers, disallowance of claims, equitable subordination, and violation of the automatic stay. Bank of England v. Rice et al. (In re Webb), 2014 WL 5472568 (Bankr. E.D. Ark. Oct. 23, 2014). |
| 07/25/2014 | Dickens | The Court granted the Debtors’ motion to disgorge the standing Chapter 13 trustee’s percentage fee when the Debtors’ case had been dismissed prior to the confirmation of a plan. The Court found that 28 U.S.C. § 586(e) does not unambiguously provide for the retention of percentage fees in such cases. Section 586(e) specifies how the percentage fee is to be collected and it must be read in conjunction with 11 U.S.C. § 1326(a), the provision governing the circumstances under which the percentage fee must be returned to the debtor. In re Dickens, 513 B.R. 906 (Bankr. E.D. Ark. 2014). |
| 04/23/2014 | Weaver | Pursuant to 28 U.S.C. § 1334(c)(1), the Court exercised its discretion and entered an order abstaining from hearing the adversary proceeding commenced by the Plaintiffs. The Court found the protracted process associated with obtaining a final judgment in this noncore proceeding outweighed any other consideration. The Court granted the Plaintiffs relief from the stay to proceed in another forum with their litigation. Weaver v. Everhome Mortgage Co. (In re Weaver), 2014 WL 1872096 (Bankr. E.D. Ark. Apr. 23, 2014). |
| 04/15/2014 | Living Hope Southeast | The Court granted creditor’s motion for administrative expenses pursuant to 11 U.S.C. § 503(b)(3)(D) and (b)(4) with respect to those expenses associated with the creditor’s efforts to have a Chapter 11 Trustee appointed because the Court found those expenses were actual and necessary and provided a substantial contribution to the Debtor’s estate. The Court found that other claimed expenses did not provide a substantial contribution in this case because they were incurred in furtherance of the creditor’s own interests and did not benefit the estate. In re Living Hope Se., LLC, 509 B.R. 649 (Bankr. E.D. Ark. 2014). |
| 03/21/2014 | Living Hope Southeast | Fee application of Debtor-in-possession’s counsel approved pursuant to 11 U.S.C. § 330(a). The Court overruled objections raised by the Debtor’s 99% member and a creditor questioning whether counsel’s services were beneficial to the estate. The Court further found that the Debtor’s principals did not have the unfettered right to terminate the Chapter 11 Debtor’s counsel without court approval, particularly when such actions were taken for the principals’ benefit and not for the benefit of the estate. In re Living Hope Se., LLC, 509 B.R. 629 (Bankr. E.D. Ark. 2014). |
| 01/29/2014 | Living Hope Southeast | Relief from stay to proceed with litigation against the Chapter 11 Debtor in State Court denied. Due to the Chapter 11 Trustee's current efforts to find a buyer for the Debtor and establish its value, the Court found that the estate faced greater harm if relief from stay were granted than the moving creditor would face if relief from stay were denied. Forcing the Debtor to defend State Court litigation would impede the sale process and result in increased and possibly wholly unnecessary administrative fees. In re Living Hope Se., LLC, 505 B.R. 237 (Bankr. E.D. Ark. 2014). On appeal to the Eastern District of Arkansas. |
| 12/17/2013 | Humes | In a noncore proceeding, the Court entered a proposed order for the District Court’s review granting the Plaintiff’s application for attorney fees and costs pursuant to the Fair Debt Collection Practices Act (“FDCPA”). The District Court adopted the proposed order. Humes v. LVNV Funding, L.C.C. (In re Humes), 505 B.R. 851 (Bankr. E.D. Ark. 2013), adopted, No. 3:13–CV–00179–SWW, 2014 WL 310451 (E.D. Ark. Jan. 28, 2014). |
| 12/07/2013 | Speed | The Court denied the defendants’ motion to bifurcate the issue of the Plaintiff’s standing to bring various claims from a trial on her claims. The Court found that although the standing issues were distinct from the issue of whether the claims were meritorious, bifurcation would not result in judicial economy because resolution of the standing issues would not necessarily eliminate the need for a trial on the claims. Speed v. U.S. Bank (In re Speed), No. 3:09–BK–17860, 2013 WL 7710285 (Bankr. E.D. Ark. Dec. 7, 2013). |
| 12/07/2013 | Burrow | The Court granted the Plaintiff’s motions to remand and abstain from hearing a removed foreclosure action. The Court rejected the Defendant’s assertion that the Debtor’s interest in an LLC that owned the property subject to foreclosure gave the Court jurisdiction to adjudicate the dispute. Although the Debtor may have held a leasehold interest in the property, without more, the Court determined that mandatory or alternatively, discretionary abstention applied. Additionally, the Court equitably remanded the foreclosure action. Farmers Bank & Trust Co. v. Chickasaw Props. (In re Burrow), 505 B.R. 838 (Bankr. E.D. Ark. 2013). |
| 07/17/2013 | Humes | In a noncore proceeding, the Court entered a proposed order for the District Court’s review finding that the Defendants violated the Fair Debt Collection Practices Act (“FDCPA”), breached a contract with the Plaintiff, and committed the torts of fraud and misrepresentation. Subsequently, the District Court entered an order adopting the proposed findings of fact and conclusions of law. Humes v. LVNV Funding, L.C.C. (In re Humes), 496 B.R. 557 (Bankr. E.D. Ark. 2013). |
| 07/09/2013 | Living Hope Southeast | Addendum to: Order Granting Motions to Appoint Trustee. This Addendum, to be read in conjunction with the Order Granting Motions to Appoint Trustee, contains facts and testimony regarding the various individuals and entities involved, the Debtor, the Debtor’s Chapter 11 filing, and the series of events that led to the Motions to Appoint a Trustee. Although the Court does not repeat its reasoning for finding that the appointment of a trustee was necessary and appropriate in this case, additional findings are made. |
| 07/01/2013 | Calderon | The Court denied the defendant’s request for a jury trial in the debtors’ § 362(k)(1) action for a willful violation of the automatic stay. The Court applied the Seventh Amendment right to trial by jury analysis set forth by the Supreme Court in Granfinanciera, S.A. v. Nordberg and concluded that the defendant was not constitutionally entitled to a jury trial because a § 362(k)(1) action asserts a “public right.” Calderon v. Bank of Am. Corp. (In re Calderon), 497 B.R. 558 (Bankr. E.D. Ark. 2013). |
| 04/19/2013 | Living Hope Southeast | Order Granting Motions to Appoint Trustee. Court found cause to appoint a Chapter 11 trustee pursuant to 11 U.S.C. § 1104(a)(1), and that the appointment of a trustee was in the best interests of the creditors and the estate pursuant to § 1104(a)(2). Specifically, the Court found that a trustee must be appointed in this case to serve as a neutral fiduciary and the estate’s sole representative due to the distrust created by the various actions of certain insiders and related parties, their disrespect for the Debtor’s fiduciary duties to all its creditors, the acrimony that exists between the Debtor and its creditors, particularly the Southwest Trustee, and the dishonesty and lack of transparency as to who controls this Debtor. |
| 10/16/2012 | Whitehead | Court denied Debtor’s discharge pursuant to 11 U.S.C. § 727(a)(5) for failing to explain the loss of an asset. The uncontroverted evidence was that the Debtor sold and received payment for a house prior to filing. At the hearing, the Debtor failed to provide a reliable explanation to convince the Court that he had not hidden or improperly shielded the proceeds from that sale. Bailey v. Whitehead (In re Whitehead), 483 B.R. 902 (Bankr. E.D. Ark. 2012). |
| 10/04/2012 | Living Hope Southeast | Order Approving Application to Employ Attorney. Court approved employment of Chapter 11 Debtor-in-possession's proposed counsel James E. Smith and Smith Akins, P.A. pursuant to 11 U.S.C. § 327(a) finding that Smith was disinterested and did not hold or represent an adverse interest to the Debtor-in-possession's estate. Court found that Smith did not represent an adverse interest based on his prepetition representation of the Debtor while certain transfers took place because Smith had valid reasons to counsel Debtor to make the transfers and Smith did not represent those insiders receiving the transfers, even if their interests were adverse to the Debtor. Court also found that Smith's employment was in the best interests of the estate due to his knowledge of the Debtor, its operations, and the extensive litigation involving the Debtor both before and since filing bankruptcy. In re Living Hope Se., LLC, 495 B.R. 866 (Bankr. E.D. Ark. 2012). |
| 08/14/2012 | Huskey | Court denied the Debtors’ Motion for Summary Judgment on a cause of action seeking to avoid a creditor’s lien. As part of that ruling, the Court found that the statutory language of 11 U.S.C. § 544(a)(3) grants authority to avoid a lien to the trustee, but not to the debtor. Following Eighth Circuit precedent construing that statutory language narrowly, the Court held that the Debtors lacked standing to avoid the creditor’s lien under § 544(a)(3). The Court also found that the Debtors’ other claims, which were not based on § 544(a)(3), required a trial. Huskey v. Citimortgage, Inc. (In re Huskey), 479 B.R. 827 (Bankr. E.D. Ark. 2012). |
| 08/06/2012 | Living Hope Southeast | Order Approving in Part Application to Employ Attorney. Court found that Chapter 11 Debtor's proposed counsel Chip Welch and Ashley Hudson were disinterested and neither held nor represented an adverse interest to the Debtor's estate, and accordingly, they could be hired to represent the Debtor-in-possession under 11 U.S.C. § 327(a). Court did not grant application to hire applicants nunc pro tunc to the date of Debtor's Chapter 11 filing where an objection was filed and no explanation was provided for the tardiness of the application to employ. In re Living Hope Se., LLC, 495 B.R. 424 (Bankr. E.D. Ark. 2012). |
| 07/03/2012 | Heath | In an Order sustaining an Objection to Confirmation, the Court held that 11 U.S.C. § 1225(a)(5)(B)(i) requires that a secured creditor be allowed to retain a lien on cross-collateralized property, and that the Debtor could not sever cross-collateralization through the Chapter 12 plan without the secured creditor’s consent. In re Heath, 483 B.R. 708 (Bankr. E.D. Ark. 2012). |
| 07/03/2012 | Webb | Court found that a joint venture created by individual husband and wife debtors did not constitute a separate legal entity, specifically a general partnership, based on evidence presented, and that accordingly, the debtors' bankruptcy estate included property held in the name of the joint venture. The Court also granted a permanent injunction in favor of the Trustee to prevent the Bank of England from exercising control over and selling certain grain held in the name of the joint venture. Rice v. Carlton Farms, LLC (In re Webb), 474 B.R. 891 (Bankr. E.D. Ark. 2012), aff’d, 742 F.3d 824 (8th Cir. 2014). |
| 06/27/2012 | Hopper | The Court converted Debtor’s Chapter 13 case to Chapter 7 after concluding the Debtor filed both his bankruptcy petition and his Chapter 13 plan in bad faith. Specifically, the Court found the Debtor’s actions in filing bankruptcy two days before a scheduled contempt hearing in State Court initiated by his former spouse to collect the divorce judgment owed her, and in proposing a fee-only plan that paid his creditors virtually nothing, evidenced a lack of good faith. The Court further found that conversion of Debtor’s case to Chapter 7 was in the best interests of creditors because there are potentially fraudulent or preferential transfers that a Chapter 7 trustee should investigate and possibly pursue for the benefit of the Debtor’s creditors. Finally, because Debtor filed this case solely to avoid the State Court contempt action without any legitimate need for bankruptcy relief, the Court found cause to lift the automatic stay to allow the State Court divorce proceedings and related contempt action to proceed. In re Hopper, 474 B.R. 872 (Bankr. E.D. Ark. 2012). |
| 06/20/2012 | Dugan | The Court dismissed cause of action as failing to state a claim for relief for violation of the automatic stay where bank allegedly seized $10,000 in funds from a business account owned by the individual debtor's wholly owned corporation. The Court concluded the corporation's property is not property of the Debtors’ bankruptcy estate subject to the automatic stay. Dugan v. U.S. Bank (In re Dugan), No. 4:11–BK–13039, 2012 WL 6825328 (Bankr. E.D. Ark. June 20, 2012). |
| 06/18/2012 | Gambill | Defendant moved to set aside Default Judgment awarding $25,000 to Plaintiffs based on violations of the discharge injunction. Defendant argued that the service of process in the case was invalid because the person served was not the “officer” of the depository institution, as is required by Fed. R. Bankr. 7004(h). Following a hearing, the Court found that Plaintiffs met the requirement for service on an officer by specifically addressing the mailing to the position of the CEO, even though the specific CEO named in the mailing no longer held that position. With regard to the Defendant’s other arguments, the Court found the evidence insufficient to warrant setting aside the Default Judgment. In re Gambill, 477 B.R. 753 (Bankr. E.D. Ark. 2012). |
| 02/22/2012 | Dewese | The Court held that the Defendant was not personally liable to the Plaintiffs for fraud, and that any debt the Defendant owed the Plaintiffs was not excepted from discharge by 11 U.S.C. § 523(a)(2)(A). The Plaintiffs asserted that the Defendant was liable to them for fraud because of an alleged breach of a contract between the Plaintiffs and the Defendant’s limited liability company. The Court determined that the Defendant lacked an intent to deceive the Plaintiffs, which was a necessary requirement for a finding of fraud, and for any resulting debt to be excepted from discharge under 11 U.S.C. § 523(a)(2)(A). Myers v. Dewese (In re Dewese), 469 B.R. 314 (Bankr. E.D. Ark. 2012). |
| 12/20/2011 | Humes | In denying summary judgment, the Court addressed the requirements necessary to prove each of the alleged causes of action, which included breach of contract, fraud, and multiple violations under the Fair Debt Collection Practices Act (FDCPA), Arkansas Fair Debt Collection Practices Act (AFDCPA), and Arkansas Deceptive Trade Practices Act (ADTPA), and explained the genuine issues of material fact which precluded entry of summary judgment. Humes v. LVNV Funding, L.L.C. et al (In re Humes), 468 B.R. 346 (Bankr. E.D. Ark. 2011). |
| 12/20/2011 | Andrews | The Court entered judgment in favor of the Trustee pursuant to 11 U.S.C. § 549, finding that a race car owned by the Debtor was purposefully taken apart and then sold by the Debtor and his brother during the administration of the Debtor's bankruptcy case (despite a prior finding by the Court that the Debtor held an interest in the race car). The parties' testimony regarding ownership of the race car was contradictory and could not be credited; accordingly, insufficient evidence was provided to show any specific percentage in the race car was owned by anyone other than the Debtor. Because the Debtor and his brother Brian disassembled the race car, destroyed its value, and then sold its frame, the Court entered a joint and several judgment against the Debtor and his brother for $30,000 (the value of the race car) together with attorneys' fees and costs pursuant to 11 U.S.C. § 105(a) as damages for violation of the automatic stay. Cox v. Andrews (In re Andrews), 467 B.R. 173 (Bankr. E.D. Ark. 2011). |
| 10/26/2011 | Nicholas | Court held that a Chapter 13 debtor's social security income is included in determining the debtor's projected disposable income for purposes of plan confirmation, and that this below-median-income debtor's $2,800 housing expense was both unreasonable and unnecessary. In re Nicholas, 458 B.R. 516 (Bankr. E.D. Ark. 2011). |
| 09/28/2011 | Johnson | Court held that bank was not qualified to conduct non-judicial foreclosures in Arkansas because it failed to comply with the authorized-to-do-business requirement found in Ark. Code Ann. § 18-50-117. Court rejected bank’s argument that it had qualified to use the non-judicial foreclosure process by employing an attorney-in-fact under Ark. Code Ann. § 18-50-102. Court also rejected bank’s arguments that Ark. Code Ann. § 18-50-117 was superseded by Arkansas’ Wingo Act, or preempted by the National Banking Act. As a result, the debtors did not owe the foreclosure fees and costs incurred by the bank. In re Johnson, 460 B.R. 234 (Bankr. E.D. Ark. 2011). rev’d sub nom. JPMorgan Chase Bank, N.A. v. Johnson, 470 B.R. 829 (E.D. Ark. 2012) aff’d, 719 F.3d 1010 (8th Cir. 2013). |
| 07/18/2011 | Frankum | Court granted summary judgment on plaintiff's preferential transfer complaint finding that the Debtors had a contractual right to certain payments transferred to a creditor on their behalf within the preference period. The Court further found that the payments enabled the creditor to receive more than it would receive under a hypothetical Chapter 7 case.In re Frankum, 453 B.R. 352 (Bankr. E.D. Ark. 2011). |
| 06/13/2011 | Burnett | Court previously entered an Order suspending an attorney from practicing before the Arkansas Bankruptcy Courts while allowing the attorney 14 days to make arrangements for the continued protection of his clients’ interests (In re Burnett). Five days after entry of the suspension Order, the attorney filed a new bankruptcy case. After a hearing on an Order to Show Cause, the Court rejected the attorney's contention that he filed the new case for the protection of the clients' interests and found that the duties and responsibilities an attorney owes to a bankruptcy client extend beyond the mere preparation and filing of the case. As a result, the Court held attorney in contempt and entered sanctions.In re Burnett, 455 B.R. 187 (Bankr. E.D. Ark. 2011). |
| 06/07/2011 | Ellis | Court sustained creditors’ objection to Debtors’ claimed homestead exemption for real property on which they did not live at the time they filed bankruptcy where Debtors previously abandoned the property as a homestead and neither returned to it nor impressed upon it any characteristics of a homestead at the time they filed bankruptcy. The Court determined that the debtors’ intention to move back onto the property at some point in the future did not satisfy the requirements for claiming a homestead exemption under Arkansas law. In re Ellis, 456 B.R. 401 (Bankr. E.D. Ark. 2011). |
| 04/15/2011 | Burnett | Court held that the compensation paid to attorney was unreasonable and excessive in light of the services provided, and ordered attorney to disgorge the entire amount of attorney fees paid to him for that representation. Court also found that attorney's inadequate representation and efforts to conceal those inadequacies warranted an entry of sanctions against him. Court sanctioned attorney by suspending him from practicing before the Arkansas Bankruptcy Courts pending a review and determination of the matter by the Arkansas Supreme Court’s Committee on Professional Conduct. In re Burnett, 450 B.R. 116 (Bankr. E.D. Ark. 2011). |
| 03/22/2011 | Burrow | Court held that mortgage creditor had standing to file proof of claim because even though it did not initially attach a copy of the note indorsed to it, it ultimately produced and filed the indorsed Note. Additional evidence showing the creditor had standing was a recorded assignment of mortgage listing it as the mortgage creditor filed prior the debtor's bankruptcy, and the fact that debtors listed the creditor as their mortgage creditor on their plan and schedules. The Court also found that Debtors successfully rebutted the validity and reasonableness of certain foreclosure fees charged by the mortgage creditor. In re Burrow, 2011 WL 1103354 (Bankr. E.D. Ark. March 22, 2011). |
| 01/21/2011 | Bullard | Court held that it was not barred by collateral estoppel from making a determination on “willful and malicious” requirements of § 523(a)(6) because Debtor’s guilty plea to crime of battery may have been satisfied, in this case, by recklessness prong of criminal statute, and because civil judgment for intentional tort of battery was based on Debtor’s stipulation to liability. Following a full review of the evidence, the Court found that the Debtor’s actions were willful, but that the evidence was insufficient to support a finding that the Debtor’s actions were malicious. As a result, Court held that the judgment debt was not excepted from discharge under § 523(a)(6). Hidy v. Bullard (In re Bullard), 451 B.R. 473 (Bankr. E.D. Ark. 2011). Affirmed on appeal to 8th Circuit BAP. See Hidy v. Bullard (In re Bullard), 449 B.R. 379 (B.A.P. 8th Cir. 2011). |
| 01/21/2011 | Dunbar | Court overruled objection to unredacted proof of claim because 11 U.S.C. § 502(b) does not provide for such disallowance and 11 U.S.C. § 105(a) does not provide a private cause of action. Court dismissed the Debtor's contempt claim because the Debtor alleged no specific facts showing that the violation was willful or that the Debtor suffered any monetary damages other than her attorney's fees. Court also dismissed Debtor's state law invasion of privacy claim because she failed to allege sufficient facts showing that the unredacted information actually reached or was sure to reach the public at large. Dunbar v. Cox Health Alliance, LLC (In re Dunbar), 446 B.R. 306 (Bankr. E.D. Ark. 2011). |
| 12/29/2010 | Eubanks | Court found that the Debtors' transfer of a remainder interest in real property to their mother was not actual fraud under 11 U.S.C. § 548(a)(1)(A), but was constructively fraudulent pursuant to 11 U.S.C § 548(a)(1)(B) because no consideration was provided in exchange for the transferred interest and the Debtors were insolvent at the time of the transfer. Luker v. Eubanks (In re Eubanks), 444 B.R.415 (Bankr. E.D. Ark. 2010). |
| 12/15/2010 | McKay | Court found that debtor and creditor entered into a binding settlement agreement under Arkansas law to settle a dischargeability lawsuit under 11 U.S.C. § 523, and that the settlement was enforceable despite lack of prior court approval under Federal Rule of Bankruptcy Procedure 9019(a). Hyundai Motor Finance Co. v. McKay (In re McKay), 443 B.R.511 (Bankr. E.D. Ark. 2010). |
| 10/22/2010 | Panther Mtn. | In Chapter 11 case, the Court denied request for relief from stay made pursuant to 11 U.S.C. § 362(d) on two pieces of real property, which were the primary assets of the Debtor’s estate. The Court held that the appraisals and other evidence of value were not sufficiently reliable or persuasive for the Creditor to meet its burden of proof of a lack of equity in the properties, and furthermore, that the equity cushion, marketing strategy, and likelihood of a confirmed plan were sufficient to provide adequate protection. The Court also denied the Creditor’s request for valuation of its claims, made pursuant to Fed. R. Bankr. P. 3012, holding that the evidence presented did not lend itself to the type of specific, quantified determination necessary for such a finding. In re Panther Mountain Land Development, LLC, 438 B.R. 169 (Bankr. E.D. Ark. 2010). |
| 10/08/2010 | Bryant | Court denied Bank's motion to dismiss Chapter 11 case finding that the Debtors' plan was filed in good faith, and the Debtors' case is not otherwise subject to dismissal under 11 U.S.C. § 1112(b). Court further conditionally confirmed Chapter 11 plan overruling creditors' objections to feasibility, and finding that the proposed post-confirmation interest rate and length of payout period with respect to bank creditor's claim was fair and equitable under 11 U.S.C. § 1129(b)(2). However, Court held that Debtors must modify their plan to pay the Bank, an oversecured creditor, interest on its claim at the contract rate from the date of filing through confirmation. Finally, the Court found that Debtors' plan to pay the Farm Services Agency (FSA) $4,000 in lieu of its Junior Lien in addition to the other payments and security provided to FSA was fair and equitable under the "indubitable equivalence" test of 11 U.S.C. § 1129(b)(2)(A)(iii). In re Bryant, 439 B.R.724 (Bankr. E.D. Ark. 2010). |
| 07/20/2010 | Bryant | Default judgment denied because a default had not been entered, an answer had been filed, the Debtor provided an acceptable reason for the delay in filing the answer, and an answer filed five days late constituted only a marginal failure to comply with the deadline for filing an answer. Not selected for publication. |
| 05/14/2010 | Hudson | Court was not collaterally estopped from finding that Debtor lacked intent required for a determination of nondischargeability pursuant to 11 U.S.C. § 523(a)(2)(A), where state court default judgment rested on the two independent grounds of (1) default and (2) fraud. In such circumstances, collateral estoppel applies only to findings that are essential to the judgment under both theories of liability that are the basis of the judgment. Fraudulent intent was not an element of default and therefore not essential to the judgment. After an evidentiary hearing, the Court found that Debtor lacked fraudulent intent and the debt was therefore dischargeable. First Security Bank v. Hudson (In re Hudson), 428 B.R. 866 (Bankr. E.D. Ark. 2010). |
| 05/06/2010 | Andrews | On creditor's complaint, the Court denied Debtors' discharge pursuant to 11 U.S.C. § 727(a)(4)(A) (false oath). Debtors filed petition and amended petition that failed to disclose numerous transfers listed in the complaint. When making eve-of-trial amendments disclosing the transfers, Debtors still failed to disclose a $33,000 race car, which the Court found Debtors both owned and controlled. Additional inaccuracies in the petition and testimony corroborated creditor's claim that Debtors knowingly and fraudulently made false oaths despite their contention that the mistakes on their original Petition and First Amended Petition were simply innocent omissions and errors. Watson v. Andrews (In re Andrews),428 B.R.855 (Bankr. E.D. Ark. 2010). |
| 08/26/2009 | Gaines | Court adopted Judge James G. Mixon’s opinion in In re Johnson, 407 B.R. 364 (Bankr. E.D. Ark. 2009), holding that where assignor has a perfected security interest in a vehicle under Arkansas’ certificate of title statute prior to its assignment, the assignee remains perfected against creditors of and transferees from the original debtor, even if the assignee takes no action to change the name on the certificate of title. Further, the Court found that because no “new” lien was created by an assignment, Defendant was not required to release the lien and comply with the requirements of A.C.A. § 27-14-909. Gaines v. Ford Motor Credit Corp. (In re Gaines), 414 B.R. 494 (Bankr. E.D. Ark. 2009). |
| 06/22/2009 | Moffitt | Court denied Defendant's motion to dismiss in part, finding that Plaintiffs stated a claim for relief for reconsideration of a claim under 11 U.S.C. s. 502(j) and under FRBP 2016, where the ultimate amount paid to Defendant at the close of Plaintiffs' bankruptcy case was alleged to include fees and charges not included on a proof of claim. Court also found that Plaintiffs stated a claim for relief under 11 U.S.C. s. 524 for violation of the discharge injunction where it was alleged that certain fees and charges were included in the Plaintiffs' discharge but collected after the discharge was entered, and that Plaintiffs stated a claim for relief under 11 U.S.C. s. 362 for violation of the automatic stay where Defendant allegedly collected unapproved fees and charges from estate property prior to the entry of Plaintiffs' discharge. Court found that Plaintiffs failed to state a claim for relief under 11 U.S.C. s. 506(b), and failed to state a claim for relief with respect to allegations the automatic stay was violated after the entry of the Plaintiffs' discharge. Moffitt v. America's Servicing Company (In re Moffitt), 408 B.R. 249 (Bankr. E.D. Ark. 2009). |
| 05/21/2009 | Moffitt | On Defendant's Motion to Dismiss adversary proceeding filed in a reopened bankruptcy case post-discharge, the Court found it has subject matter jurisdiction over claims arising under the bankruptcy code and involving amounts paid pursuant to a chapter 13 bankruptcy plan, but does not have subject matter jurisdiction over federal and state law claims because there was no longer an estate for the claims to affect. Moffitt v. America's Servicing Company (In re Moffitt), 406 B.R. 825 (Bankr. E.D. Ark. 2009). |
| 05/21/2009 | Clark | Court set aside an ex parte order granting relief from the automatic stay pursuant to FRBP 9024 and 11 U.S.C. §105, finding the Creditor’s simultaneous use of the power of the Bankruptcy Court and the power of the State Court to be an extraordinary fact justifying such relief. The Debtor paid the full amount of the Creditor’s secured claim in bankruptcy via a wage deduction order, and the Creditor accepted these payments (treating the Debtor as owner of the home securing the debt); at the same time, in State Court, Creditor sought to evict Debtor from the same home as a tenant behind in her rent payments (asserting Creditor was the true owner of the home). The Court found that setting aside the ex parte Order Lifting Stay was necessary to prevent a manifest injustice. In re Clark,409 B.R. 906 (Bankr. E.D. Ark. 2009). |
| 04/19/2009 | Brown | In overruling Debtors’ Objection to Claim 4 of American Express Centurion Bank, the Court, applying Arkansas law, found that the credit card debt, which was evidenced by a written agreement, met all the necessary requirements for a written contract for purposes of applying the five-year statute of limitations. In re Brown, 403 B.R. 1 (Bankr. E.D. Ark. 2009). |
| 03/20/2009 | Price | Court found Plaintiffs failed to plead sufficient facts to justify entry of default judgment on claims under 11 U.S.C. §§ 506(b) and 362, and the Fair Debt Collection Practices Act, but found that sufficient facts were pled to warrant default judgment on Plaintiffs’ claims under the Real Estate Settlement Procedures Act and for state law breach of contract. A hearing on damages is to be set by subsequent notice. Price v. America's Servicing Company (In re Price), 403 B.R. 775 (Bankr. E.D. Ark. 2009). |
| 03/09/2009 | Withers | Upon trustee's complaint, the Court found that the Debtor abused the bankruptcy process by her actions and demonstrated bad faith in her filings. Consequently, the Court employed its equitable powers under 11 U.S.C. § 105(a) to bar the Debtor from filing any case under any chapter of the Bankruptcy Code anywhere in the United States for a period of five (5) years. Not selected for publication. |
| 01/05/2009 | Frankum | Court determined that Chapter 7 Debtors, whose assets were levied on post-discharge by the IRS, were not entitled to reimbursement from the bankruptcy estate for non-dischargeable, pre-petition taxes that were not paid by the Trustee. The Court found that under 11 U.S.C. § 507(d), Debtors were statutorily precluded from obtaining the IRS’ priority status which Congress specifically reserved for the taxing authority. The Court further found that the Trustee paid claims in a timely manner, and that because Debtors remained personally liable for the non-dischargeable taxes they paid, they were not entitled to subrogation under either statutory or equitable grounds. In re Frankum, 399 B.R. 498 (Bankr. E.D. Ark. 2009). |
| 11/10/2008 | West | Court disgorged fees paid by Debtor to Debtor's counsel in connection with her five-year chapter 13 plan finding that counsel failed to adequately represent her client, billed for services not rendered, and failed to communicate with her client. Counsel's inadequate representation harmed the Debtor, preventing her from receiving the benefits from her Chapter 13 bankruptcy that she would have received if she had been adequately represented. In re West, 398 B.R. 629 (Bankr. E.D. Ark. 2009). |
| 06/18/2008 | Moffitt | Court granted preliminary injunction where Plaintiffs demonstrated that injunction was necessary to prevent Defendant from continuing its efforts to collect payments from the Plaintiffs which they did not owe. Defendant, a mortgage servicing institution, ignored communication from, and refused to provide accurate information to, the Plaintiffs about their home mortgage. Defendant did not accurately apply the payments it received from the Plaintiffs or the Chapter 13 Trustee, did not accurately process information vital to the servicing of the Plaintiffs loan, did not send the Plaintiffs accurate mortgage statements, did not provide an accurate payment history, and did not discover the mistakes it made, yet continued its collection efforts against Plaintiffs. The Court enjoined the Defendant from (1) contacting the Plaintiffs except by regular monthly mortgage statements showing only true and accurate information as to what is owed by the Plaintiffs on their mortgage; and (2) attempting to collect any arrearages, late fees, or any other amounts exceeding the Plaintiffs monthly mortgage payments; the injunction is to remain in effect until a trial on the merits is concluded. Moffitt v. America's Servicing Company(In re Moffitt), 390 B.R. 368 (Bankr. E.D. Ark. 2008). |
| 05/22/2008 | Price | Court denied Defendant's Motion to Set Aside Entry of Default and granted Plaintiffs' Motion to Strike Answer where Defendant failed to show good cause for setting aside the entry of default. The Court specifically found the Defendant's arguments raised in defense of its failure to file a timely answer to be evidence of culpable behavior, and also that the Defendant's behavior in the lawsuit thus far would prejudice the Plaintiffs if the case were allowed to proceed. The Court further found that the Defendant had failed to present a meritorious defense in its untimely Answer. Price v. America's Servicing Company (In re Price), 388 B.R. 901 (Bankr. E.D. Ark. 2008). |
| 01/07/2008 | Risby | Pro se individual (Petitioner), while incarcerated in federal prison, mailed 74 involuntary bankruptcy petitions and other miscellaneous documents to clerk of court in attempt to file such petitions against various individuals and entities, including federal judges. Court found there was not proper venue in Arkansas and that Petitioner was not eligible under Section 303 of the Code to file these involuntary petitions. Court further found that such petitions were frivolous and submitted for filing merely to harass and without any basis in fact or law. In light of the adverse effects which could be caused by simply docketing the abusive involuntary petitions, Court found there was cause to withhold docketing petitions and to withhold public disclosure of names contained therein under Section 107(c) of the Code. Court found appropriate sanctions were to (1) direct clerk of court to reject and not docket these involuntary petitions and submissions, (2) prohibit Petitioner from filing any additional involuntary petitions, and (3) refer matters to US Attorney for possible further investigation. In re Risby, 2008 WL 116701 (Bankr. E.D. Ark. 2008). |
| 11/21/2007 | Washburn | Court adopted Judge James G. Mixon's ruling in In re Wilson, 373 B.R. 638 (Bankr. W.D. Ark. 2007), holding that debtors were entitled to deduct the standard vehicle ownership expense for purposes of the means test notwithstanding that the debtors owned their vehicles outright, and thus, had no "actual" ownership payments. Not selected for publication. Affirmed on appeal to 8th Circuit. See In re Washburn, 579 F.3d 934 (8th Cir. 2009). |
| 11/07/2007 | Harper | In deciding that collateral estoppel applied to a state court judgment awarding compensatory, treble and punitive damages for trespass and conversion involving the cutting of trees on plaintiff's property, the Court determined that while the jury instructions established willfulness for purposes of the exception to discharge under 11 U.S.C. s. 523(a)(6) for a debt resulting from a wilful and malicious injury, the jury instructions did not establish maliciousness. However, the jury instructions and questionnaire with respect to punitive damages made it clear that the jury also made a finding of maliciousness, and therefore, the state court judgment, in its entirety, is nondischargeable in debtor's bankruptcy case.Quadrangle v. Harper (In re Harper), 378 B.R. 836 (Bankr. E.D. Ark. 2007). |
| 10/23/2007 | Garettson | Court determined that summary judgment was not appropriate on collateral estoppel grounds where the State Court judgment was entered following the Debtor's failure to participate in the lawsuit. Under Missouri law, a default judgment is not considered a judgment on the merits for collateral estoppel purposes. Furthermore, the issues crucial to a § 523(a)(2) or § 523(a)(4) case were neither presented nor ruled upon by the Missouri State Court, and therefore, the State Court case and the creditor's adversary proceeding were not based on the same issue(s). Finally, the State Court case and the adversary proceeding in bankruptcy were predicated upon a contract alleged to be between the debtor and creditor, when it was in fact between the creditor and an unrelated third party. Accordingly, the creditor's attorney would be ordered to show cause why inaccurate evidence was presented to the court. Ebco Construction Group, LLC v. Garretson (In re Garretson), 377 B.R. 214 (Bankr. E.D. Ark. 2007). |
| 10/23/2007 | Price | Court entered default against Defendant who failed to answer complaint served on Defendant's attorney. Defendant's attorney had filed a Request for Service in the bankruptcy case-in-chief, which asked Debtors to serve a copy of each notice of any proceeding, hearing, and/or report in this matter on her. The signature block under her name also read Authorized Agent for America's Servicing Company. Because an adversary proceeding is a proceeding stemming from and related to the main bankruptcy case, the Court determined that the Request for Service expressly authorized Defendant's attorney as an agent to receive process for Defendant under both Bankruptcy Rules 7004(b)(3) and 7004(b)(8). The Court gave Defendant an additional time period in which to respond to the Debtors' request for a default judgment. The Court will then determine whether a hearing is necessary before entering default judgment, if appropriate. Price v. America's Servicing Company (In re Price), 377 B.R. 224 (Bankr. E.D. Ark. 2007) |
| 08/16/2007 | Murphy | The Court granted Debtor's motion for more time to pay the filing fee in installments. Specifically, the Court held that while Bankruptcy Rule 1006(b)(2) allows for more time to pay installments of the filing fee than General Order 26, II.I., General Order 26, II.I. is not invalid. It is permissible for a court to set deadlines that are more restrictive than those provided by the Code or Rules unless prohibited from doing so under Fed. Rule Bankr. Proc. 9006. However, after hearing arguments in opposition to General Order 26, II.1., the Court found that in Debtor's case, the requirement that the Debtor make the regular plan payment and also pay the $274 filing fee within thirty days of filing her petition created an undue hardship for this Debtor given her monthly income. Not selected for publication. |
| 08/03/2007 | Stanford | On creditor's motion for relief from the automatic stay, the Court makes two holdings regarding the extent of the automatic stay's termination under § 362(c)(3)(A) (added to the Code by BAPCPA). First, the Court finds that the phrase with respect to any action taken in § 362(c)(3)(A) requires a creditor to have taken a formal action, such as a judicial, administrative, governmental, quasi-judicial, or other essentially formal activity or proceeding prior to the filing of the debtor's bankruptcy petition in order for the automatic stay to terminate. Second, the Court finds that § 362(c)(3)(A) terminates the automatic stay only with regard to the debtor and property of the debtor, not property of the estate. In re Stanford, 373 B.R. 890 (Bankr. E.D. Ark. 2007). |
| 07/19/2007 | Johnson | Court found that the Debtors' right to a refund of prepaid private school tuition was property of the Debtors' estate at the time they filed bankruptcy, and that the Trustee's timing in seeking reimbursement for this asset was not unreasonable. The Court further found that the proper remedy is a judgment against the Debtors pursuant to 11 U.S.C. § 105 for the prepaid tuition which was an estate asset the Debtors dissipated by not timely seeking a refund. Specifically, the Court found that it would be an abuse of the bankruptcy process to allow the Debtors to prepay their children's tuition, fail to adequately disclose such prepayments on their schedules and statement of financial affairs, and then not reimburse the Trustee for those funds. Rice v. Johnson (In re Johnson),371 B.R. 380 (Bankr. E.D. Ark. 2007). |
| 06/06/2007 | Douglas | Divorce-related debts that do not qualify as nondischargeable domestic support obligations under 11 U.S.C. § 523(a)(5) are nondischargeable in a chapter 7 case under 11 U.S.C. § 523(a)(15) as amended by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. Douglas v. Douglas (In re Douglas), 369 B.R. 462 (Bankr. E.D. Ark.2007). |
| 05/16/2007 | Seay | On Plaintiff's motion for attorneys fees and costs pursuant to Internal Revenue Code § 7430, Court awarded fees and costs (with adjustments) finding that Plaintiff had incurred the fees and costs in question even though Plaintiff had a contingency agreement with his counsel in which he would not be required to pay attorneys fees if attorney fees were not awarded by the court. The Court further found the government's position in the case was not substantially justified, and that Plaintiff's counsel was entitled to an enhanced hourly rate above that provided by the statute (although the Court did not award counsel's actual hourly rate). Seay v. Internal Revenue Service (In re Seay), 369 B.R. 423 (Bankr. E.D. Ark. 2007). |
| 04/17/2007 | Massey | Upon trustee's complaint to revoke debtor's discharge pursuant to 11 U.S.C. § 727(d)(1), the Court found that the debtor obtained his discharge through fraud by falsifying his schedules and statement of financial affairs so as to hide his interest in certain vehicles and land. Dupwe v. Massey ( In re Massey), 2007WL 1173630 (Bankr. E.D. Ark. 2007). |
| 04/10/2007 | Paro | Court found that Debtor proved by clear and convincing evidence that she had an oral contract to purchase real property, had possession of such property, had paid the bulk of the purchase price for the property, and had made improvements to the property such that the oral contract to purchase the property was enforceable under the part-performance exception to the statute of frauds. As such, Court found that Debtor had an equitable interest in the Property under Arkansas law when she filed bankruptcy, and that her rights to enforce that interest have not been conclusively cut off by either the state tax sale of the property or a subsequent quiet title action in State Court. Court granted relief from the automatic stay to both parties to allow all issues regarding the legitimacy of the tax sale and the quiet title action to proceed in State Court. In re Paro,362 B.R. 419 (Bankr. E.D. Ark. 2007). |
| 03/21/2007 | Simmons | Court held that a debt owed by business partners is nondischargeable under 11 U.S.C. § 523(a)(2)(A) where debtor knew, or should have known, of fraud. On a motion for summary judgment against joint debtors, the Court granted summary judgment against a debtor that knew of a forged guaranty prior to the partnership incurring indebtedness. However the Court denied summary judgment against his partner, and wife, where there was no evidence that the wife knew, or should have known, of the forgery. Helena Chemical Company v. Simmons (In re Simmons), 364 B.R. 673 (Bankr. E.D. Ark. 2007). |
| 02/28/2007 | Huffer Porter |
Court held that a debt owed by Debtors is nondischargeable as a debt for a willful and malicious injury under 11 U.S.C. § 523(a)(6) where Debtors were found liable to Plaintiff in a Federal District Court jury trial for sexual harassment and retaliation. Court applied collateral estoppel to the jury’s verdict and awarded summary judgment in favor of Plaintiff; in doing so, the Court determined that the District Court jury necessarily and implicitly found that Debtors acted with the intent to injure Plaintiff, and with the knowledge that their actions were substantially certain to harm Plaintiff. Sells v.Porter (In re Porter), 363 B.R. 78 (Bankr. E.D. Ark. 2007). Affirmed on appeal to the 8th Circuit BAP. See Sells v. Porter (In re Porter), 375 B.R. 822 (8th Cir. B.A.P. 2007). Affirmed on appeal to 8th Circuit. See Sells v. Porter (In re Porter), 539 F.3d. 889 (8th Cir. 2008). |
| 01/26/2007 | Harris | Memorandum opinion entered January 26, 2007; oral ruling issued January 24, 2005. Bank sought to have its debt excepted from Debtors' discharge under sec. 523(a)(2)(B). Court granted Debtors' discharge despite a finding that Mr. Harris presented materially false written statements to the bank because the bank failed to prove that it reasonably relied on such statements. Twin City Bank v. Michael and Lucinda Harris (In re Harris) ,360 B.R. 267(Bankr. E.D. Ark. 2007). |
| 01/18/2007 | Fox | Court found that Debtor-contractor committed defalcation while acting in a fiduciary capacity by spending bonded job receipts on job costs for which the surety was not liable. Court held that any use of the trust res (i.e., bonded job receipts) to cover the contractor’s own expenses, whether that be the cost of using his own equipment, the cost of maintaining full-time employees, or the contractor’s general overhead expenses was a breach of fiduciary duty. International Fidelity Insurance Co. v. Emery Joseph Fox (In re Fox),357 B.R. 770 (Bankr. E.D. Ark. 2006). |
| 11/13/2006 | Wright | The Court found that St. Francis County met its burden of proof under 11 U.S.C. § 727(a)(3), and the Debtors were, therefore, not entitled to a discharge. The Court also found that St. Francis County, as an unsecured creditor, lacked standing to bring the Complaint to set aside fraudulent transfers under the Bankruptcy Code, and that because the remaining state law fraudulent transfer claims did not have any effect on the administration of the bankruptcy estate, the Court did not have "related to" jurisdiction over the remaining state law fraudulent transfer claims. St. Francis County Farmers Assoc. v. Jerry Wright and Audrey Wright, Wright Land Co. (2:05-ap-1087) and St. Francis County Farmers Assoc. v. Jay Gardner Wright and Mary Rush Wright (2:04-ap-1289) (In re Wright), 353 B.R. 627 (Bankr. E.D. Ark. 2006). (The two adversary proceedings were consolidated for trial). Affirmed on appeal to the Eastern District of Arkansas. |
| 10/31/2006 | Seay | Court found that IRS was equitably estopped from assessing a tax based on a disallowed loss in the 1982 tax year after it assessed and collected a tax for the 1995 tax year based on the validity of the same loss. Court held 1982 assessment invalid, and directed the IRS to refund Plaintiff’s bankruptcy estate $6,928 in previously withheld tax refunds with interest. Seay v. Internal Revenue Service (In re Seay), 353 B.R.614 (Bankr. E.D. Ark. 2007). |
| 10/12/2006 | GS Inc. | In the context of the construction business, the Court found that Hydro Temp, who was the supplier of heating and cooling units, met its burden of proof on each of the three elements of the ordinary course of business exception. Based on this finding, the Trustee was not entitled to avoid the transfer (payment for the heating and cooling units) as preferential under 11 U.S.C. § 547(b) for the benefit of the unsecured creditors, and judgment was entered in favor of Hydro Temp. M. Randy Rice v. Hydro Temp Corp. (In re GS Inc.),352 B.R.858 (Bankr. E.D. Ark. 2006). |
| 10/10/2006 | West | Interpreting new § 1328(f) enacted by the Bankruptcy Abuse Prevention and Consumer Protection Act, Court determined that § 1328(f)(2) did not bar the Debtor from receiving a discharge in her current Chapter 13 case. Although the Debtor had received a Chapter 13 discharge within two years of the current case’s filing, that discharge was not received in a case filedunder Chapter 13 within two years of the current case’s filing. In re West, 352 B.R. 482 (Bankr. E.D. Ark. 2006). |
| 10/05/2006 | Fewell | Where assignor has a perfected security interest in Certificate of Deposit prior to its assignment, the assignee remains perfected against the creditors and transferres of the original debtor even though the Certificate of Deposit remains in the custody and control of the assignor. In re Fewell, 352 B.R. 98 (Bankr. E.D. Ark. 2006). |
| 09/22/2006 | Simmons | Motion to reopen granted to allow Debtor to receive a discharge where Debtor had filed Official Form 23, Debtor’s Certification of Completion of Instructional Course Concerning Personal Financial Management, after the case had closed without a discharge. However, Court did not grant motion to continue the automatic stay because the automatic stay had expired upon the closing of the case pursuant to § 362(c)(2)(A), and reopening the case does not automatically cause the automatic stay to become effective again. Not selected for publication. |
| 08/02/2006 | Angeleri (Eastern District Order of Suspension) Angeleri (Western District Order of Suspension) |
Mr. Angeleri required to show cause why he should not be suspended
from practicing law in the Arkansas Bankruptcy Courts in accordance
with Local Rule 2090-2 until the Arkansas Supreme Court's Committee
on Professional Conduct reaches a decision on the Court's complaint
(arising from Judge Evans' April 26, 2006 Opinion and Judge Mixon's
referrals in the Binns and Ersery cases). See April 26, 2006 Bost opinion below. |
| 07/11/2006 | Bost (Order to Show Cause re Suspension) |
Mr. Angeleri required to show cause why he should not be suspended
from practicing law in the Arkansas Bankruptcy Courts in accordance
with Local Rule 2090-2 until the Arkansas Supreme Court's Committee
on Professional Conduct reaches a decision on the Court's complaint
(arising from Judge Evans' April 26, 2006 Opinion and Judge Mixon's
referrals in the Binns and Ersery cases). See April 26, 2006 Bost opinion below. |
| 06/26/2006 | Talley Withers |
In both of these cases, Debtors’ counsel filed a Motion to Extend the Automatic Stay prior to the expiration of the automatic stay (to the extent provided in section 362(c)(3)(A)), but counsel noticed the motions out for a period that extended beyond the expiration of the thirty day automatic stay. Accordingly, the Court held that it could not extend the stay once expired, and also noted that it could not impose a stay because a motion to impose the stay had not been timely filed under section 362(c)(4). Orders amended to reflect that reference to procedure posted on website is only that of Judge Evans. Not selected for publication. |
| 06/20/2006 | Guido | Court found that under the facts of this case, a real estate installment contract was not a mortgage or mortgage substitute under Arkansas law, but was an executory contract with a valid forfeiture clause. Because the forfeiture clause was not waived by the sellers, and the sellers canceled the contract prior to the Debtor's bankruptcy filing, the Court found that the Debtors had no equitable or legal interest in the property. 345 B.R. 656 (Bankr. E.D. Ark. 2006). |
| 05/10/2006 | Williams | In overruling Creditor's Objection to Confirmation of Plan, the Court adopted the legal analysis of § 1322(c)(2) in In re Young, 199 B.R. 643 (Bankr. E.D. Tenn. 1996) and found that § 1322(c)(2) permits the bifurcation of an undersecured mortgage on a Chapter 13 debtor's principal residence when the mortgage matured before the filing of the bankruptcy petition. Not selected for publication. |
| 04/26/2006 | Bost (Angeleri) |
Because attorney Norman D. Angeleri failed to adequately represent clients, made false statements in signed pleadings, and failed to follow court orders, Court ordered him to disgorge fees paid by his clients, referred him to the Arkansas Supreme Court's Committee on Professional Conduct, and referred him to the U.S. Attorney for investigation of possible bankruptcy crimes. An Order to Show Cause was also entered ordering him to appear and show cause why he should not be suspended from practicing before the Bankruptcy Court. 341 B.R. 666 (Bankr. E.D. Ark. 2006). |
| 03/16/2006 | Wright | Court denied motion to impose an automatic stay under section 362(c)(4)(B) to a case where the stay had expired as provided in section 362(c)(3)(A) because the motion to impose a stay was not filed within 30 days of the bankruptcy petition filing. 339 B.R. 474 (Bankr. E.D. Ark. 2006). |
| 03/16/2006 | Beasley | Court adopted Judge Marvin Isgur’s ruling in In re Hernan Toro-Arcila, 334 B.R. 224 (Bankr. S.D. Tex. 2005), holding that section 362(c)(4)(B) applies to cases in which the automatic stay has expired under section 362(c)(3)(A) provided a motion to impose an automatic stay is filed within 30 days of the bankruptcy petition filing. 339 B.R. 472 (Bankr. E.D. Ark. 2006). |
| 01/18/2006 | Hughes | Motion for Extension of Time to File Certificate denied because a "Certification Regarding Exigent Circumstances" (a separate document prepared by the Debtor’s counsel which meets the requirements set forth in § 109(h)(3)(A)) should be filed instead using the ECF event labeled “Exigent Circumstances re: Credit Counseling” (under miscellaneous events). Not selected for publication. |
| 01/10/2006 | Murphy | Court denied Debtor's Motion to Extend the Automatic Stay because it was filed the same day that the automatic stay (as limited by § 362(c)(3)(A)) expired, and the Court may only extend the automatic stay after notice has been provided and a hearing completed before the expiration of the automatic stay. Not selected for publication. |
| 11/27/2005 | Hamilton | In re Hamilton. Although Judge Evans's procedure with respect to motions to extend the automatic stay under 11 U.S.C. s. 362(c)(3)(B) is to set such motions for hearing before the thirty-day automatic stay expires, the pleading in this instance was stricken due to its many errors and omissions. Not selected for publication. |
| 10/17/2005 | Brown | In re Betty Faye Brown. Where Debtor’s rights in her residence were extinguished under Arkansas' Statutory Foreclosure Act prior to Debtor’s bankruptcy filing, the residence was not property of the Debtor’s bankruptcy estate, and this Court had no jurisdiction to alter Creditor’s rights in the Property through a confirmed chapter 13 plan. Not selected for publication. |
| 10/13/2005 | Truly | Bryant, et al. v. Rosslare, et al. (In re Truly). The Court Granted Plaintiffs’ Motion for Attorney Fees. The Court found that reasonable attorney fees and costs should be awarded to Plaintiffs in defending removal to this Court where at the time the Removing Defendants filed their Notice of Removal, they had no objectively reasonable grounds to believe that the removal was legally proper. Not selected for publication. |
| 09/21/2005 | Sanders | Even though Chapter 13 Trustee held sufficient funds to pay all allowed claims, the court granted Debtor's motion to dismiss their case prior to payment; however, dismissal was conditioned for cause pursuant to 11 U.S.C. s. 349(b) on payment of all allowed claims and retention by the Chapter 13 Trustee of any remaining funds for resolution of outstanding claim based on pending state court lawsuit. Not selected for publication. Affirmed on appeal to the United States District Court for the Eastern District of Arkansas. |
| 08/26/2005 | Truly | Bryant, et al. v. Rosslare, et al. (In re Truly). Plaintiffs’ Motion to Remand to State Court was Granted. Despite having “related to” jurisdiction in this matter, the Court exercised its powers of discretionary abstention under 28 U.S.C. § 1334(c)(1) and remanded this case to the Greene County Circuit Court on equitable grounds under 28 U.S.C. § 1452(b) where federal preemption did not provide the basis for the bankruptcy court to retain jurisdiction over this case. The Court also found that the Defendants, having previously asserted in their written pleadings to this Court that this was a non-core proceeding, were estopped from arguing that this was a core proceeding at the hearing. Not selected for publication. |
| 08/19/2005 | Fredriksson | Court sustained Chapter 13 Trustee's objection to confirmation under 11 U.S.C. s. 1325(b) which requires all of debtors' projected disposable income to be paid into the plan during the first three years. Court found that some of Debtors' expenses were not reasonable and necessary such that Debtors could pay more into their plan and make a larger distribution to their creditors. Not selected for publication. |
| 07/26/2005 | Schultz | In re Schultz, Order Denying Motion to Reconsider. Court clarified earlier ruling that late claims may be allowed and distributions made thereon pursuant to 11 U.S.C. s. 726(a), and that claims filed after the Court issued an outdated and incorrect "Second Notice of Assets" would not be disallowed. Not selected for publication. |
| 06/17/2005 | Schultz | In re Schultz, Order Striking Second Notice of Assets and Granting in Part and Denying in Part Debtor's Amended Objection to the Trustee's Request for Issuance of a Notice of Assets and For the Establishing of a Claims Bar Date. Although Court found that an outdated "Second Notice of Assets" referring to incorrect or no longer existing bankruptcy rules should be stricken from the case docket, the Court refused to disallow late claims which were filed after the Second Notice of Assets was issued because late claims may be allowed and distributions made thereon pursuant to 11 U.S.C. s. 726(a). Not selected for publication. |
| 05/18/2005 | Secrease | Court denied the Motion to deem requests for admissions as admitted. Even though response to request for admissions was untimely, Federal Rule of Civil Procedure 36(b) provides the authority for a court to permit a party to respond to a request for admissions after the expiration of the time afforded by Rule 36 in cases where the opposing party is not prejudiced by allowing untimely responses, and the presentation of the merits of the action would be otherwise assisted. Not selected for publication. |
| 05/17/2005 | Schultz | Trustee is not required to bring a fraudulent conveyance action to set aside a trust where the Debtor's interest in the trust is property of Debtor's estate under 11 U.S.C. s. 541. (Supplemental Memorandum Opinion to Memorandum Opinion entered April 25, 2005). In re Schultz, 324 B.R. 722 (Bankr. E.D. Ark. 2005). |
| 05/11/2005 | Allen | Court found that a legal description in a deed which listed the proper address and county but the wrong city created a valid lien under Arkansas law because the description given was sufficient to specifically identify the subject property despite providing an inaccurate city name. |
| 04/25/2005 | Schultz | Trustee's objection to exemptions sustained; Debtor's interest in entire trust corpus of trust funded with his own assets included in his bankruptcy estate despite spendthrift and anti-alienation provision. In re Schultz, 324 B.R. 712 (Bankr. E.D. Ark. 2005). |
| 03/31/2005 | Smith | In re Deborah Renae Smith. Motion to set aside discharge order and motion for expedited hearing denied where debtor wished to set aside discharge order for the sole purpose of extending time within which debtor could rescind her reaffirmation agreement. Insufficient facts alleged which would justify setting aside discharge order under Bankruptcy Rule 9024. Even if additional facts had been alleged, case law does not support setting aside discharge order to permit modification/rescission of reaffirmation agreement once deadline as stated in 11 U.S.C. 524(c)(4) has passed. Not selected for publication. |
| 02/10/2005 | Schutzius | Debtors are ineligible for chapter 13 under 11 U.S.C. § 109(e) because their unsecured debt included the debt of a corporation the Court found to be the alter ego of Debtor Mark Schutzius; additionally, Debtors' attempt to remove corporate debt from initial schedules by filing an amended plan omitting the corporate debt was a bad faith attempt to create eligibility.Not selected for publication. |
| 01/10/2005 | Hampton | Existence of security device which disables vehicle's starter if debtor does not obtain the proper code each month is willful violation of the automatic stay where creditor failed to ensure that debtor in bankruptcy received the proper code each month. Debtor awarded compensatory damages and attorneys' fees; no punitive damages awarded. Hampton v. Yam's Choice Plus Autos, Inc. (In re Hampton)319 B.R. 163 (Bankr. E.D. Ark. 2005) |
| 10/14/2004 | Williams | Debtors filed a complaint for turnover of estate property in possession of the lien creditor. The creditor alleged a lack of adequate protection of its lien interest as a defense to the turnover action. Rejecting that defense, the Court held that lien creditors in possession of collateral constituting estate property violate the automatic stay if they retain possession of that collateral postpetition following a debtor’s demand for turnover. Williams v. GMAC (In re Williams), 316 B.R. 534 (Bankr. E.D. Ark. 2004). |
| 09/15/2004 | Beggs | Obligations arising out of Property Settlement Agreement to pay for former spouse's car and a second mortgage on former spouse's residence held nondischargeable pursuant to § 523(a)(15); obligation to pay former spouse's attorney's fees held nondischargeable pursuant to § 523(a)(5); obligation to pay premiums on a life insurance policy benefitting a third party held dischargeable pursuant to § 523(a)(15)(B).Beggs v.Niewdach and Beggs v. Tripcony Law Firm, P.A. (In re Beggs), 314 B.R. 401 (Bankr. E.D. Ark. 2004). |
| 08/18/2004 | Wayman | Debtor could not discharge a student loan obligation pursuant to 11 U.S.C. § 523(a)(8) despite her bleak financial circumstances because there were enough available funds in her budget to pay her debt in installments under the William D. Ford Direct Loan Consolidation Program’s Income Contingent Repayment plan while maintaining a minimal standard of living. Not selected for publication. |
| 08/16/2004 | Dowdy | The confirmation of Debtor’s chapter 11 plan, which did not address the issue of the Federal Government's setoff rights, does not affect that entity's right to setoff a tax refund owed to Debtor against Debtor's tax debt. The Court found that § 1141, discussing the binding nature of a confirmed plan, does not apply to the setoff provision § 553, based on the plain language of that setoff provision. However, the Court found, although § 553 preserved a creditor's setoff rights even in light of a confirmed plan, that it is also logically consistent for the Code to preserve, as a corollary to the preservation of setoff rights, any defenses to those rights that existed outside of the bankruptcy. Therefore, wavier could be a defense to setoff and the Federal Government could have waived its rights to setoff by its conduct. In light of this ruling, the Court determined that further evidence on waiver was needed before it could reach a decision on whether the Federal Government had, in fact, waived those rights. In re Ronnie Dowdy, Inc., 314 B.R. 182 (Bankr. E.D. Ark. 2004). |
| 08/16/2004 | Shelby | Court sustained Chapter 13 Trustee's objection to claim where creditor failed to have its lien recorded on the subject vehicle's certificate of title in accordance with Arkansas' Vehicle Titling Statute. Creditor failed to establish that it had an equitable lien, and in any case, Court held that the Trustee's avoidance powers are superior to equitable liens. Although Debtor had listed creditor as secured in its confirmed plan, the Court held that such language was not binding, nor did it afford res judicata effect because of language in the plan confirmation order providing that all debts referred to in the Debtor's plan meant "allowed claims," and the creditor's claim had not yet been allowed. In re Shelby, 313 B.R. 292 (Bankr. E.D. Ark. 2004). |
| 08/16/2004 | Hill | Court overruled Chapter 13 Trustee's objection to claim where creditor had proven that its lien was recorded on the subject vehicles' certificates of title in accordance with Arkansas' Vehicle Titling Statute although creditor subsequently lost those titles. The Court held that once the requirements of the Arkansas' Vehicle Titling Statute were met, the creditor had perfected its security interest; there is no requirement that it be able to produce a copy of the title, and no provision under Arkansas law causing it to lose its perfection upon losing the titles. In re Hill, 313 B.R. 290 (Bankr. E.D. Ark. 2004). |
| 07/15/2004 | Triplett | Creditor's alleged failure to attach writing to proof of claim did not render claim invalid. The Court found no cause to reconsider allowed claim where Debtors presented no evidence to dispute the merits or validity of the claim, and failed to justify a two-year delay in moving for reconsideration of the claim. Additionally, the Debtors do not have standing to object to the transfer of a claim under Rule 3001, and accordingly, no alleged deficiency in the claim transfer can serve as cause for reconsideration of a claim under § 502(j). Not selected for publication. |
| 06/02/2004 | O'Donohue | The Court found the granting of a discharge would be a substantial abuse under 11 U.S.C. 707(b) where Debtor testified dishonestly, omitted his minor child from his Schedule and Statement of Financial Affairs, and accumulated $44,000 in credit card debt within the two months prior to the bankruptcy filing. Based on these facts, the Court found Debtor acted in bad faith and dismissed Debtor's case. Not selected for publication. |
| 05/10/2004 | May | The sequential exercise of the trustee’s powers under 11 U.S.C. §§ 547 and 544 permits avoidance of defendant-banks' interests in real properties when the banks obtained mortgages on those properties from entities (either the Debtor or one of her companies) which were not the record owners of the properties. First, the Court avoided the banks' lis pendens and certain quitclaim deeds, all filed on these properties within the preference period, as preferential transfers under 11 U.S.C. § 547. Then, the Court avoided any remaining equitable interest held by the banks by applying 11 U.S.C. § 544 and Arkansas real property law, finding that the trustee stepped into the shoes of a bona fide purchaser of these properties at the time of the bankruptcy filing. Accordingly, any remaining equitable interest held by the banks was avoided in accordance with the trustee's "strong-arm" powers. Rice v. First Arkansas Valley Bank and Regions Bank (In re May), 310 B.R. 405 (Bankr. E.D. Ark. 2004). |
| 03/03/2004 | Stevens | Debtors' applications to incur debt granted. The Court found that certain government payments to farmers under the Farm Security and Rural Investment Act of 2002 are earned independent of whether crops are planted or not. But, in light of Arkansas law requiring central filing to perfect liens on accounts or general intangibles, such as rights to payment under this Act, the Court ruled that the creditor failed to properly perfect its interest in those payments by filing its lien only locally. As the payments were not subject to another lien, the Court allowed the Debtors to pledge them as collateral. In re Stevens, 307 B.R. 124 (Bankr. E.D. Ark. 2004). |
| 02/26/2004 | Webb | Debtor held in criminal contempt for filing 10th bankruptcy petition in willful violation of a prior court order dismissing Debtor's 9th bankruptcy petition and prohibiting any further bankruptcy filings by Debtor for a two-year period. In re Webb, 308 B.R. 357 (Bankr. E.D. Ark. 2004). |
| 02/24/2004 | Ealy | The Court found that the automatic stay protected Debtors' equitable interest in real property even though it was titled in the name of a Limited Liability Company ("LLC") created by one of the Debtors. The Debtors did not intend for title to be held solely in the name of the LLC and only created the LLC because they believed it was a requirement for closing on the property. In re Ealy, 307 B.R. 653 (Bankr. E.D. Ark. 2004). Affirmed on appeal by United States District Court for the Eastern District of Arkansas (Wright, J.) and the Eighth Circuit Court of Appeals. |
| 11/25/2003 | Tubbs | Based on out-of-state attorney's failure to pay previously assessed contempt fine, the Court prohibited him from filing any further pleadings in Arkansas Bankruptcy Courts and directed Clerk of Court to return any further pleadings from that attorney until such time as fine is paid with post-judgment interest. In re Tubbs, 302 B.R. 290 (Bankr. E.D. Ark. 2003). |
| 11/25/2003 | Renaud | Security interests found avoidable by Chapter 7 Trustee. ATVs and mobile homes (whether affixed to real property or not) are subject to Arkansas' vehicle titling statute (Ark. Code Ann. §§ 27-14-801 - 27-14-807); accordingly, creditor's security interests in mobile home and ATV were not perfected because Defendant did not comply with the requirements of the vehicle titling statute and have its liens noted on the mobile home and ATV’s certificates of title. Rice v. Simmons First Bank of Searcy (In re Renaud), 302 B.R. 280 (Bankr. E.D. Ark. 2003). Affirmed on appeal. See In re Renaud, 308 B.R. 347 (8th Cir. B.A.P. 2004). |
| 10/31/2003 | Walker | Objection to confirmation overruled; creditor had only unsecured claim in bankruptcy where collateral securing creditor's claim was lost prior to plan confirmation.Not selected for publication. |
| 10/14/2003 | Balmer | Dismissal for cause under Sec. 707(a) warranted in light of sheer number of bankruptcy filings (10 prior filings), the bases for their dismissal, the minimal time gap between dismissal and refiling in a number of Debtors' previous petitions, Debtors' patently false statements on their current petition, and overall abuse of the bankruptcy process. Debtors barred from refiling under any chapter of the Bankruptcy Code for 8 years. Not selected for publication. |
| 10/03/2003 | Hager | Motion for new trial denied. Creditor's objection to confirmation overruled as untimely under General Order 20, (establishing 10 day deadline from 341(a) meeting to file objections), even though objection was filed prior to confirmation. Not selected for publication. |
| 08/25/2003 | Washington | To redeem collateral, a debtor has to pay the lesser of the collateral's value or the amount of total debt. For purposes of chapter 7 redemption, wholesale value is used as starting point for collateral's value. In this case, loan amounts (including credit card debt) were aggregated due to cross-collateralization language in car notes, but because the total debt exceeded the collateral's stipulated wholesale value, Debtor only had to pay wholesale value of vehicles to redeem them. Remainder of debt is unsecured.Not selected for publication. |
| 08/15/2003 | Harris | Despite a letter from Clerk of Court informing him that it was impermissible to file pleadings on behalf of another attorney, Debtors' attorney continued to do so. Accordingly, he is ordered to show cause regarding his multiple failures to abide by the Administrative Procedures for Electronically Filed Cases and Related Documents, as adopted by General Order 19. Not selected for publication. |
| 07/15/2003 | Burton | Plaintiff-Trustee's Motion for Summary Judgment granted. The Court found that Defendant-Creditor's filing of the financing statement with circuit court clerk where Debtor resided was an ineffective method for perfecting a security interest interest in Debtor's all-terrain vehicle (ATV). For effective perfection of a security interest in an ATV, Arkansas law requires that the lien be noted on the certificate of title. Not Selected for Publication. Available at 2003 WL 21698752 (Bankr. E.D. Ark. 2003). |
| 07/09/2003 | Williams | Complaint to determine amount of child support arrearage dismissed for failure to state a claim upon which relief may be granted. Child support obligations are non-dischargeable, and the Court cannot enter an advisory opinion regarding the amount of the child support obligations; rather, the Debtor must seek that relief in the appropriate state court.Not selected for publication. Available at 296 B.R. 808 (Bankr. E.D. Ark. 2003). |
| 07/08/2003 | Webb Order to Show Cause | Order to Show Cause why Debtor should not be held in criminal contempt for violating prior order. |
| 07/08/2003 | Webb | Extraordinary relief of retroactive annulment of automatic stay and ratification of foreclosure sale warranted where Debtor repeatedly abused the bankruptcy code through ten bankruptcy filings, the most recent of which was in violation of a prior court order prohibiting further filings. In re Webb, 294 B.R 850 (Bankr. E.D. Ark. 2003). |
| 07/01/2003 | Kent | Relief from automatic stay granted as to Debtor's real estate where creditor complied with requirement of Arkansas Statutory Foreclosure Act, despite Debtor's alleged lack of actual notice of the foreclosure sale.Not selected for publication. Available at 2003 WL 21540996 (Bankr. E.D. Ark. 2003). |
| 06/26/2003 | Roeben Order Roeben Opinion |
Creditor's Motion for Relief in rem From the Automatic Stay granted in part as to real property of Spouse and Debtor, even though co-owner Spouse was not a party to this proceeding, where Debtor and Spouse have alternated in filing bankruptcy petitions for the purpose of thwarting foreclosure, for a total of 6 petitions within 6 years. The in rem Order held that the filing of a future bankruptcy petition by any individual or entity will not extend the protection of the automatic stay of 11 U.S.C. 362(a) to the subject real property for a period of six (6) months from the date of entry of the Order. In re Roeben, 294 B.R. 840 (Bankr. E.D. Ark. 2003). |
| 05/28/2003 | Patricia Quarles | Where debtor-creditor relationship is not at issue (such as in the claims allowance process), Debtor is entitled to jury trial on issue of whether creditor converted and damaged her personal property; however, Debtor has no right to jury trial on issue of whether creditor violated the automatic stay. In re Patricia Quarles v. Wells Fargo Home Mortgage, Inc., 294 B.R. 729 (Bankr. E.D. Ark. 2003). |
| 05/02/2003 | Schmitt | Motion for refund of filing fee denied where second duplicate bankruptcy case filed three months after first bankruptcy case, and motion to dismiss second case filed 12 days after second bankruptcy filing. Not Selected for Publication. Available at 2003 WL 21403732 (Bankr. E.D. Ark. 2003). |
| 05/01/2003 | Brown | Debtor's Motion for turnover and contempt, which the Court treated as motion for damages, granted where Court found creditor's evidence was not credible due to intentional misrepresentations and where creditor failed to return repossessed vehicle following notification of debtor's bankruptcy filing.Not selected for publication. Available at 2003 WL 21402570 (Bankr. E.D. Ark. 2003). |
| 04/30/2003 | Oakwood Homes Corporation | Removed State Court lawsuit remanded to Saline County Circuit Court pursuant to § 1334(c)(1)-(2) (discretionary and mandatory abstention) and § 1452(b) (equitable remand); motion to transfer venue to Delaware Bankruptcy Court denied. In re Frelin, et al. v. Oakwood Homes Corp., et al., 292 B.R. 369 (Bankr. E.D. Ark. 2003). |
| 04/22/2003 | Charles McAuley Adams | Motions to Dismiss Chapter 11 case with Prejudice granted; debtor's multiple bankruptcy filings constitute an attempt to use bankruptcy to obstruct state court proceedings thus demonstrating bad faith on the part of the debtor and an abuse of the bankruptcy process which warrants dismissal with prejudice. In re Adams , 292 B.R. 365 (Bankr. E.D. Ark. 2003). |
| 03/06/2003 | Atlas Carriers, Inc. | Motion for ex parte relief from automatic stay granted; debtor did not show sufficient special circumstances to warrant relief from an agreed order.Not selected for publication. Available at 2003 WL 21397832 (Bankr. E.D. Ark. 2003). |
| 02/20/2003 | Edith Smith | Court found cause to reconsider allowed claim under 11 U.S.C. s. 502(j). In re Edith Smith, 290 B.R. 102 (Bankr. E.D. Ark. 2003). |
| 02/05/2003 | Edith Smith | This order was replaced by Amended Order Sustaining Objection to Claim entered February 20, 2003. Where confirmed Chapter 13 plan and an allowed claim are inconsistent, and confirmation order was entered prior to order allowing claims, the provisions of the confirmed plan control under 11 U.S.C. s. 1327(a) provided the creditor had notice of the plan and the confirmation process. |
| 01/17/2003 | Kellogg Valley Motor Sales, Inc. (Sonyia Henry) |
Vendor's lien has priority over subsequent repairmen's lien pursuant to Ark. Code Ann. § 18-45-202(b). Not selected for publication. Available at 2003 WL 21403670 (Bankr. E.D. Ark. 2003). |
| 01/15/2003 | Martin | Debtor's motion to set aside and motion to clarify or correct 1998 order approving settlement agreement denied because Debtor had previously requested such relief on at least two occasions and such relief had been denied. Debtor's petition for permission to sue the chapter 7 trustee and his counsel in state court denied for failure to set forth a prima facie case for relief. Debtor's behavior in repeatedly requesting the same relief despite numerous decisions against her warrants sanctions under bankruptcy Court's inherit power to sanction parties appearing before it. In re Burma Jean Martin, 287 B.R. 423 (Bankr. E.D. Ark. 2003). |
| 12/17/2002 | Sugarloaf | Motion to compel trustee to administer property denied; property sold at foreclosure sale not property of estate where equitable right of redemption was extinguished and statutory right of redemption was not exercised prior to bankruptcy filing (statutory right of redemption is not legal or equitable interest in property). In any event, foreclosure sale was confirmed prior to debtor's bankruptcy filing, and accordingly, debtor had no interest in property. In re Sugarloaf Properties, Inc. ,286 BR 705 (Bankr. E.D. Ark. 2002). |
| 12/16/2002 | Ponzini | Creditor's motion for summary judgment granted; debt arising from State Court judgment in favor of creditor is excepted from Debtor's discharge under § 523 (a)(4). Debtor's response to motion for summary judgment stricken for failure to file in timely manner in accordance with court order. Not selected for publication. Available at 2002 WL 32114484 (Bankr. E.D. Ark. 2002). |
| 12/10/2002 | Herrin | Debt owed by Debtor's deceased husband is dischargeable in Debtor's chapter 7 bankruptcy where Debtor was not husband's principal such that his fraudulent acts could be imputed to her. Court further held that even if principal-agent relationship existed, Debtor was not allowed to participate in her husband's business, and therefore she could not have been recklessly indifferent to his fraudulent conduct. Not selected for publication. Available at 2002 WL 32114565 (Bankr. E.D. Ark. 2002). |
| 12/06/2002 | Raney | Motion for stay pending appeal denied where elements required to obtain stay under Rule 8005 were either not proven or not alleged. Not selected for publication. Available at 2002 WL 32114560 (Bankr. E.D. Ark. 2002). Affirmed on appeal to District Court. |
| 12/04/2002 | Smith | Objection to confirmation sustained. Corporate property is not property of individual debtor's estate, and accordingly, debtor could not "cramdown" value of collateral. Rather, corporate creditor has unsecured claim to be paid on pro-rata basis with other unsecured creditors. Not selected for publication. Available at 2002 WL 32129522 (Bankr. E.D. Ark. 2002). |
| 11/15/2002 | Crofford | Motion to amend judgment denied because Debtors failed to allege grounds sufficient to justify amending judgment under Rule 59(e). Sanctions imposed on Debtors' counsel under Rule 11(b) for filing repetitive motions. In re Crofford, 286 B.R.366, (Bankr. E.D. Ark. 2002). Affirmed in part; reversed and remanded in part. See In re Crofford, 301 B.R. 880 (B.A.P. 8th Cir. 2003). |
| 11/01/2002 | Medsouth Emergency Response, Inc. | Motion for abandonment granted in part and denied in part. Because bank did not perfect its security interest in an ambulance under Arkansas' Certificate of Title Act, and it did not hold the type of lien that is dependent upon possession such that the bank's security interest was perfected upon repossession, chapter 7 trustee could avoid lien as hypothetical lien creditor under § 544. However, bank's security interest in other assets was perfected under Arkansas law, and therefore not avoidable by the trustee. Not selected for publication. Available at 2002 WL 32114475 (Bankr. E.D. Ark. 2002). |
| 10/30/2002 | Green | Case dismissed per request of debtor prior to ruling on motion to convert; cause also exists for dismissal for failure to file schedules, file chapter 13 plan and pay filing fee. Case dismissed with prejudice under § 109(g) due to debtor's multiple filings, conduct and failure to abide by court orders. Not selected for publication. Available at 2002 WL 32114474 (Bankr. E.D. Ark. 2002). |
| 10/28/2002 | Streeter | Objection to confirmation of chapter 13 plan overruled; loans to debtors were unsecured due to specific language in loan documents at issue despite broad future advance clauses in prior loan documents. Not selected for publication. Available at 2002 WL 32114477 (Bankr. E.D. Ark. 2002). |
| 10/22/2002 | Quarles | Pro se debtor's motion for relief from agreed order denied pursuant to Rule 9024; turnover action must be brought as adversary proceeding. Not selected for publication. Available at 2002 WL 32114485 (Bankr. E.D. Ark. 2002). |
| 10/19/2002 | Roper | Tax debts dischargeable where DFA failed to prove by preponderance of evidence that Debtor willfully attempted to evade or defeat state tax liability; tax lien void because filed in wrong county. Roper v. Dept of Finance and Admin. (In re Roper), 286 BR 693 (Bankr. E.D. Ark. 2002).Affirmed on appeal; see Roper v. Barclay (In re Roper), 294 B.R. 301 (B.A.P. 8th Cir. 2003). |
| 10/15/2002 | Love | Creditor asserted automatic stay terminated pursuant to § 362(e) when its motion for relief was not heard within 30 days; automatic stay reinstated due to creditor's failure to object to hearing date 36 days after motion filed. Not selected for publication. Available at 2002 WL 32115834 (Bankr. E.D. Ark. 2002). |
| 10/04/2002 | Raney | Order granting damages in connection with motion for contempt and turnover. Not selected for publication. Available at 2002 WL 32114563 (Bankr. E.D. Ark. 2002). |
| 10/02/2002 | Maiorelle | Credit card debt non dischargeable pursuant to § 523(a)(2)(A). Not selected for publication. Available at 2002 WL 32114483 (Bankr. E.D. Ark. 2002). |
| 09/06/2002 | Faulkner | The automatic stay arising from an individual's chapter 13 bankruptcy filing does not apply to the enforcement of a judgment against the debtor's wholly owned corporation. Trustee's objection to secured claim filed by creditor of corporation sustained. Not selected for publication. Available at 2002 WL 32114473 (Bankr. E.D. Ark. 2002). |
| 09/04/2002 | Reese | Chapter 13 case dismissed for cause, including bad faith and unreasonable delay to creditors. Not selected for publication. Available at 2002 WL 32114486 (Bankr. E.D. Ark. 2002). |
| 09/03/2002 | Clark | Relief from automatic stay granted for cause under § 362(d)(1) for grounds arising after confirmation of debtor's chapter 13 plan.Not selected for publication. Available at 2002 WL 32114480 (Bankr. E.D. Ark. 2002). |
| 09/03/2002 | Whiteside | Complaint for turnover granted; sanctions awarded. Not selected for publication. Available at 2002 WL 32114476 (Bankr. E.D. Ark. 2002). |
| 08/30/2002 | Linzy | Declaratory judgment regarding required chapter 13 plan payments on real estate contract, the remaining balance due on the contract, and the effect of plan's extension beyond five years. EXHIBIT Not selected for publication. Available at 2002 WL 32114564 (Bankr. E.D. Ark. 2002). |
| 08/06/2002 | Parchman | Motion to dismiss chapter 13 case for lack of good faith denied due to creditor's failure to raise good faith issue prior to plan's confirmation.Not selected for publication. Available at 2002 WL 32115832 (Bankr. E.D. Ark. 2002). |
| 07/19/2002 | Harper Development Inc. | Relief from the automatic stay denied where bank failed to prove that debtor has no equity in properties or that it otherwise lacks adequate protection (chapter 11). Not selected for publication. Available at 2002 WL 32114481 (Bankr. E.D. Ark. 2002). |
| 07/18/2002 | May | Relief from automatic stay denied where bank failed to prove that it had a valid security interest in the properties at issue (chapter 7). Not selected for publication. Available at 2002 WL 32114562 (Bankr. E.D. Ark. 2002). |
| 07/10/2002 | Dehn | Complaint for turnover denied; administrative freeze on debtor's account does not constitute a setoff under § 362(a)(7) or otherwise violate the automatic stay. Not selected for publication. Available at 2002 WL 32115833 (Bankr. E.D. Ark. 2002). |
| 07/01/2002 | McNew | Relief from automatic stay granted for cause for the limited purpose of allowing parties to proceed against debtor in state lawsuit. Not selected for publication. Available at 2002 WL 32114482 (Bankr. E.D. Ark. 2002). |
| 06/20/2002 | Huffman | Judicial lien avoided on exempt property under § 522(f); relief from automatic stay denied; creditor barred from filing untimely proof of claim. Not selected for Publication. Available at 2002 WL 32116805 (Bankr. E.D. Ark. 2002). |
| 05/14/2002 | Foote | Complaint for turnover granted; repossessed vehicles were not sold to good faith purchasers prior to debtor's bankruptcy filing.Not selected for publication. Available at 2002 WL 32114561 (Bankr. E.D. Ark. 2002). |
| 04/17/2002 | Ponzini | 11 U.S.C. s 706(a) does not afford chapter 7 debtor an absolute right to convert to chapter 13. In re Ponzini, 277 BR 399 (Bankr. E.D. Ark. 2002). |
| 04/03/2002 | Foote | Real estate lease terminated pre-petition under Arkansas law; agreed order allowing Debtor to retain possession of property after the lease's termination did not constitute an accord and satisfaction. In re Foote, 277 BR 393 (Bankr. E.D. Ark. 2002). |