FLNB Opinions Feed - Judge Killian Opinions

11-30834 | Kenneth W. Bryant

Tue, 03 Jul 2012 00:00:00 -0400

Chapter 7 case was filed in "bad faith" and could be dismissed. Court found that the case was filed in an attempt to discharge judgment debt which was debtor's only unsecured debt on petition date, on which, despite having substantial financial resources, debtor had avoided making any payment for more than a decade. 474 B.R. 770

Codes: 707(a),

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11-04003 | Colon v. Strawberry et al

Wed, 25 Jan 2012 00:00:00 -0500

Order denying the IRS' Motion to Dismiss the Interpleader filed by the New York Mets. The Mets brought the interpleader after facing competing claims from the Ch. 7 Trustee, the IRS and Darryl Strawberry against the monthly deferred compensation payments the Mets disburse to Darryl Strawberry. The IRS argued the United States had not waived its sovereign immunity for this action and thus, this Court lacked subject matter jurisdiction to resolve this interpleader. The Court denied the IRS' Motion, finding sovereign immunity is waived pursuant to 28 USC § 2410(a)(5).

Rules: 7022,

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11-50287 | Hoyt Willard Cook and Glenda Ann Cook

Wed, 07 Dec 2011 00:00:00 -0500

The Chapter 7 Trustee and a Creditor objected to the Debtors' claim of homestead exemption, seeking to disallow the claim under Section 522(o)(4). The Debtors had purchased their homestead 5 months before the petition date using proceeds from a non-exempt tax refund. The Trustee and the Creditor argued that the Debtors' acquired the homestead with intent to hinder, delay or defraud their creditors. The Court overruled the objections, finding that the Debtors purchased the homestead in order to secure a primary, permanent home. The Trustee and the Creditor failed to present extrinsic evidence of fraudulent intent.

Codes: 522(o)(4), 522(p)(1), 522(m),

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11-50182 | Wayne Eugene Middleton

Tue, 22 Nov 2011 00:00:00 -0500

Creditor objected to the Debtor's claim of a Florida homestead exemption. The Court found that the Debtor's primary residence was in Georgia and that the Debtor did not intend to permanently reside on the Florida property.

Codes: 522,

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09-50616 | Joel I Franck and Rachel Franck

Thu, 10 Nov 2011 00:00:00 -0500

Debtors filed Motions to Reconsider three claims of a vehicle leasing company. The Court denied the first two Motions on the grounds that the Debtors had withdrawn their objections to the two claims prior to confirmation. Thus, there were no orders for the Court to reconsider and any further objections to the two claims were barred pursuant to 11th Circuit case law. The third Motion to Reconsider was denied on the grounds that the lease contract was enforceable by its terms.

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11-3021 | Harris v. Ben-Ezra & Katz, P.A. et al

Mon, 03 Oct 2011 00:00:00 -0400

Plaintiff brought a class action against Defendants on 10 counts, including: (i) Abuse of the Bankruptcy Process, (ii) Fraud on the Court, (iii) Declaratory and Injunctive Relief, (iv) Violation of the Automatic Stay, (v) Contempt of the Bankruptcy Code, (vi) Contempt of the Federal Rules of Bankruptcy Procedure, (vii) Breach of the Uniform Covenants,(viii) Unauthorized Practice of Law, (ix) Civil Conspiracy, and (x) Violation of 18 U.S.C. § 155. The Court dismissed the Complaint on all counts. The allegations based on substantive Bankruptcy Code and Rule violations depended on the Court finding a violation of Bankruptcy Rule 2016. The Court found the Rule was not violated because the Defendants did not seek property from the estate.

Codes: 1306(a)(2), 1327(b),

Rules: 2016,

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10-10295 | Bert Jay Garvin and Beth Ellen Garvin

Thu, 22 Sep 2011 00:00:00 -0400

Creditor brought a Motion to Reconsider the Order Approving Modification of Debtor's Amended Chapter 13 Plan. Creditor did not object to the Chapter 13 Plan because of a scheduling error, but sought relief under Rule 9024. The Court found that Rule 9024 limits relief from confirmation orders to 180 days, and further limits the reasoning for relief to only fraud and the motion was denied.

Codes: 1330,

Rules: 9024,

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11-40011 | Prestige Motorcar Gallery, Inc.

Tue, 13 Sep 2011 00:00:00 -0400

Trustee filed a Motion to Assume and Assign an Unexpired Lease under 11 U.S.C. 365(a). The Court denied the Motion finding no benefit to the estate.

Codes: 365,

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11-50287 | Hoyt Willard Cook and Glenda Ann Cook

Mon, 08 Aug 2011 00:00:00 -0400

Ch. 7 Debtor's post-petition salary was deemed part exempt wages and part profit distributions from stock ownership, which is property of the estate under 541(a)(6).

Codes: 541(a)(6),

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10-40454 | Steven Edward Fling

Thu, 26 May 2011 00:00:00 -0400

449 B.R. 580 Homestead proceeds were properly claimed as exempt by Debtor even though homestead proceeds were the result of the sale of the Debtor's homestead 13 months prior to filing.

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10-10384 | Edgar L Thurmond and Pamela B Thurmond

Tue, 17 May 2011 00:00:00 -0400

Failure of debtors' counsel to make disclosures and to make debtors available for examination warranted sanctions. 2011 WL 1979485

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10-40102 | Clarence James Prestwood and Pamela Gail Prestwood

Fri, 18 Mar 2011 00:00:00 -0400

- Debtors' projected disposable income had to be calculated by taking their current projected income, based on income then being received, and multiplying that income by applicable commitment period, and - In calculating projected disposable income, debtors could only claim rental expense in amount set forth by Internal Revenue Service (IRS) local standard for family household of two. 2011 WL 1549264

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10-10515 | Davis Heritage GP Holdings, LLC

Mon, 03 Jan 2011 00:00:00 -0500

Dismissal of Chapter 11 Debtor for bad faith. Debtor LLC filed a petition under Chapter 11 of the Bankruptcy Code, and a creditor filed a motion for relief from the automatic stay, a motion to dismiss the debtor's case or for appointment of an examiner, and a motion for abstention. The debtor was formed in 2002 for the purpose of holding, developing, and selling condominium development properties in Mississippi and Louisiana, and it purchased land from a business ("creditor") and gave the creditor a promissory note for the unpaid balance of the purchase price. Although the debtor dealt directly with the creditor in that transaction, it also conducted business by establishing "Middle Tier" LLCs which owned "Lower Tier" LLCs that made other purchases. When the debtor failed to pay debt it owed the creditor, the creditor sued the debtor in a Mississippi court, obtained a judgment, and initiated action to levy on the debtor's membership interests in the Middle Tier LLCs. The debtor declared bankruptcy and proposed a plan for reorganizing its business. The court dismissed the debtor's case. The debtor did not own anything that it could reorganize, and its plan could not be confirmed under section 1129 because it was not in the best interest of the debtor's creditors, was not fair or equitable, and was not proposed in good faith. The plan was designed for the sole purpose of protecting the debtor's insiders.The court granted the creditor's motion to dismiss the debtor's case, and denied the creditor's motion for relief from the automatic stay and the creditor's motion for abstention as moot. The debtor owned one parcel of vacant land in Mississippi that was fully encumbered and its only other assets consisted of membership interests in the Middle Tier LLCs, which had no employees, no income, and no expenses.443 B.R. 448, 2011 Bankr. LEXIS 671  

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10-30571 | Mark A. Ciano

Fri, 06 Aug 2010 00:00:00 -0400

Creditor objected to debtor's claim of exemption in intervivos spendthrift trust, opinion finds trust was not property of the estate on the petition date under 541(a) and the trust proceeds did not became property of the estate within 180 days via 541(a)(5).

Codes: 541,

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10-31225 | Kevin Daniel Creeden

Mon, 02 Aug 2010 00:00:00 -0400

Debtor sought to avoid judicial liens on mobile home situated upon land the Debtor did not own, and upon personal property. Court found alleged real property was personal property. The court then found that the recording of a judgment in the county records did not create a lien on personal property, since a lien certificate filed with the Florida Department of State is required to obtain such lien. Since the Debtor did not evidence any liens that impaired the debtor's exemptions, the Motions were denied as moot.

Codes: 522,

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09-04009 | Federal Deposit Insurance Corporation v. Laketown Wharf Marketing Corporation et al

Mon, 19 Jul 2010 00:00:00 -0400

Court held that deliberate decision on part of purchasers' attorney not to file notice of appeal or to seek extension of appeals deadline prior to expiration thereof, because attorney had not yet had opportunity to consult with purchasers and to explore whether they wished to pursue appeal, was not in nature of “neglect,” and did not permit an out-of-time extension of appeals deadline on “excusable neglect” theory. Motion denied.433 B.R. 419

Rules: 8002, 7007,

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10-40232 | Martha Ann Hildebrandt

Wed, 30 Jun 2010 00:00:00 -0400

Chapter 7 Trustee Objected to Debtors’ claim of exemption on a parcel of property in which Debtor held a vested remainder interest, contending that a vested remainder interest is not enough to qualify for a homestead exemption. The Court overruled the Objection and held that in certain circumstances, a vested remainder interest may equal a present possessory right sufficient to support a homestead exemption.

Codes: 522, 541,

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09-4009 | Federal Deposit Insurance Corporation v. Laketown Wharf Marketing Corporation et al

Mon, 07 Jun 2010 00:00:00 -0400

Mortgagee brought adversary proceeding against individuals and entities holding or claiming to hold lien on some or all of assets of Chapter 11 debtor's condominium development project, seeking declaratory judgments determining validity, priority, perfection, and extent of any asserted or purported liens on debtor's assets. Mortgagee moved for partial summary judgment, and condominium unit purchasers cross-moved for summary judgment, seeking equitable lien with priority over mortgagee's construction mortgage. Court held that (1) unit purchasers could assert equitable vendee's lien; (2) mortgagee, pursuant to subordination clause, had priority over equitable vendee's lien;(3) mortgagee did not have constructive notice of equitable vendee's lien; and (4) mortgagee did not have actual notice of equitable vendee's lien. Mortgagee's motion granted in part and denied in part. 433 BR 401

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09-10502 | Roman M. Vasallo and Celena Vasallo

Mon, 24 May 2010 00:00:00 -0400

The Court conducted a hearing on the valuation of a chicken farm where the owners had lost their poultry contract and wanted to value the farm as to their use, hay farming. The lender argued that a new owner could receive a chicken contract, thus the farm should be valued as a chicken farm. The Court determined that the appropriate standard of valuation is replacement value, and that the Court must establish the price a willing buyer in the Debtors’ trade, business, or situation would pay to obtain property of like age and condition from a willing seller. Specifically, the price an individual with history in chicken farming business, but without a current contract, would pay to obtain a home and farm with poultry infrastructure and other improvements of like age and condition.

Codes: 506,

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08-4009 | Bender v. Saint Felix

Wed, 19 Aug 2009 00:00:00 -0400

Plaintiff brought action against purchaser of non-primary residence real property, alleging: (1) that the Bankruptcy Estate should be declared owner of the real property due to alleged deficiencies in the warranty deed; (2)that the Warranty Deed should be revoked based on general equitable principles; and (3) that she was entitled to damages under Florida's Unfair and Deceptive Trade Practices Act for, inter alia, failing to satisfy the mortgage at the time of sale. The Defendant filed this motion for summary judgment. The Court held that the deed issues were moot in light of Fla. Stat. 689.07, that the undisputed facts of this case showed that the Plaintiff had not suffered any damages as a result of the acts of the Defendant, that the Debtor was not individual intended to be covered by the FUDTPA, and that the Plaintiff had improperly attempted to color the transaction as a mortgage rescue in the face of facts which demonstrated a true sale. No genuine issues of material fact existed, and Defendant was entitled to Judgment as a matter of law.

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09-50089 | Barefoot Cottages Development Company, LLC

Tue, 28 Jul 2009 00:00:00 -0400

Law firm filed motion to determine ownership of bond posted in state court registry as supersedeas to stay execution on Debtor's assets pending appeal, after appeal was terminated pre-petition pursuant to settlement agreement. The Court held that the funds belonged to the law firm and not to be bankruptcy estate under the earmarking doctrine because the Debtor never obtained dispositive control over the funds and the funds were placed into the court registry for a particular purpose which had expired pre-petition.

Codes: 541, 547,

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9-4011 | Lamb v. Rolfe & Lobello, P.A. et al

Mon, 15 Jun 2009 00:00:00 -0400

Defendant filed Motion to Dismiss pursuant to Rule 12(b)(6), as incorporated by Fed. R. Bankr. P. 7012, Count I, a tort claim for wrongful garnishment, Count III, a claim for violation of the Florida Consumer Collection Practices Act. Defendant also properly asserted that the plaintiff lacked standing on her own to bring suit, but that the Court held the standing issues were cured by the Joinder of the Trustee. The Motion to dismiss was granted as to Counts I and III, after an examination of the pleadings, because the Plaintiff failed to allege sufficient facts to either claim across the line from conceivable to plausible, as is required by applicable Supreme Court precedent.

Codes: 7012,

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8-40379 | Weaver Oil Company, Inc.

Mon, 17 Nov 2008 00:00:00 -0500

Debtor filed Motion to Reject Master Motor Fuel Operations;and Personnel Supply Agreement under 11 U.S.C. 365(a). The court granted the Debtor's Motion for Authorization to Reject, holding that the Debtor had provided some credible evidence that its decision to reject was based upon a reasonable exercise of business judgment and that rejection of the Contract would benefit the estate. The Court noted that the Creditor did not discredit the Debtor's contention that the estate will receive a benefit from the rejection, or prove that the decision was the result of bad faith, whim, or caprice.

Codes: 365, 9014,

Rules: 9014,

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8-5009 | Kennedy et al v. Chancellor

Fri, 14 Nov 2008 00:00:00 -0500

Plaintiffs filed this Motion for Summary Judgment seeking a determination that funds previously held by the Condominium Association for payment of common expenses, and now in the possession of the Chapter 7 Trustee, belong to the Plaintiffs and other individual unit owners of the Condominium as common surplus as that term is defined in the Florida Statutes and the Condominium Declaration. The Court denied the Motion and held as a matter of law that pending state court claims against the Association arising from breach of a statutory duty to maintain, repair, or replace the common elements were payable as a common expense such that a common surplus could not exist.

Rules: 7056, 9006(f),

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8-5009 | Kennedy et al v. Chancellor

Wed, 08 Oct 2008 00:00:00 -0400

Third-Party Defendant filed Motion to Dismiss for improper use of third-party practice under Rule 14 Fed. R. Civ. P., as incorporated in Bankruptcy by Fed. R. Bankr. P. 7014.  The Court held that the Trustee's claim against the Third-Party defendant was no way secondary to, derivative of, or dependant upon the outcome of the main claim, and therefore it was an impermissible attempt to employ third-party practice beyond the scope of impleader established by the Federal Rules of Civil Procedure.

Rules: 7014, 9020,

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8-30727 | Duane Dean Heckman and Cathy Ann Heckman

Mon, 06 Oct 2008 00:00:00 -0400

Chapter 7 Trustee Objected to Debtors claim of exemptions and contended that Debtors were not entitled to claim the $4000 wild-card personal property exemption under Fla. Stat. 222.25(4); where the Debtors had also claimed their mobile home as exempt on Schedule C under Fla. Stat. 222.05. The Court overruled the Objection and held that Fla. Stat. 222.05 is statutory and distinct from Florida's constitutional homestead exemption.

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04-10141 | Ridley Owens, Inc.

Mon, 07 Jul 2008 00:00:00 -0400

Defendants in a lawsuit filed by the trustee in state court requested leave to seek an award of attorney's fees against the trustee and her special counsel. The motion was denied as moot. The Court determined that the Barton doctrine, which prevents a party from filing suit against the trustee without leave of the appointing court, does not require a defendant in a state court action that was instituted by the trustee to obtain leave of the bankruptcy court before seeking monetary sanctions against the trustee. Accordingly, the state court could grant Defendants motion for sanctions against the trustee and her special counsel without first obtaining leave from this Court.

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07-40528 | Andre Leonard Barnes and Camilla Lavonne Barnes

Fri, 06 Jun 2008 00:00:00 -0400

The Debtor objected to certain charges included in the oversecured mortgage Creditor's claim. The Court overruled the objection with respect to charges that were easily calculable or patently reasonable. However, the objection was sustained as to pre-petition attorney's fees, for which there was nothing in the record to show reasonableness.

Codes: 502, 506(b), 9006, 362(d)(4), 9006, 362(d)(4),

Rules: 3001, 7022, 7022,

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08-50066 | Shores of Panama, Inc.

Tue, 20 May 2008 00:00:00 -0400

A creditor moved for relief from the automatic stay to continue with pre-petition arbitration proceedings against the Debtor. Assuming the action the creditor was seeking to arbitrate was a core proceeding, the Court found that enforcing the arbitration clause would not inherently conflict with the underlying purposes of the Bankruptcy Code. Accordingly, there was cause to lift the automatic stay and enforce the arbitration agreement.

Codes: 362, 503,

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07-31105 | Timothy D. Magelitz

Mon, 28 Apr 2008 00:00:00 -0400

The Trustee objected to the Debtor's claim of the additional $4,000 wildcard personal property exemption provided by Florida Statute 222.25(4) to debtors who do not claim or receive the benefits of the homestead exemption under Section 4, Article X of the Florida Constitution on the ground that the Debtor owned a home in which he intended to continue to reside. After reviewing other Florida bankruptcy cases that had examined the issue, the Court determined that the Debtor was retaining property with homestead status and therefore received the benefits of the constitutional homestead exemption. The Court concluded that in order for a debtor who has an interest in a homestead to claim the additional $4,000 personal property exemption under Fla. Stat. 222.25(4), the debtor must (1) not claim the property as exempt, and (2) timely and properly show a clear and unambiguous intent to abandon the property. Accordingly, the Trustee's objection was sustained.

Codes: 522(b), 1141(d)(1),

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07-30685 | Alvin Leonard Palmer and Mary Ann Palmer

Thu, 24 Apr 2008 00:00:00 -0400

The Debtors objected to the mortgage Creditor's claim of attorneys fees in light of the fact that the Debtors were current on the mortgage when the case was filed, and the mortgage was being paid directly to the Creditor outside of the Plan. After examining the time records submitted by the Creditor for the preparation of the proof of claim and post-confirmation monitoring of the case, the Court found that the $500 fee sought was unreasonable and reduced the amount to $300 suggested by the Debtor.

Codes: 1322(b)(2), 101(10), 101(10),

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07-10158 | Rosemarie Curcio

Tue, 22 Apr 2008 00:00:00 -0400

Creditors moved under 707(b)(1) to dismiss the Debtor's case as abusive under the totality of the circumstances pursuant to 707(b)(3). The Court determined that the Debtor's income tax refund should not be included in the calculation of the Debtor's current monthly income because a tax refund is actually the repayment of a debt, and the gross wages from which Debtor's current monthly income is calculated should already include the amount received from the tax refund. In addition, the Court determined that the proceeds from a one-time sale of a house in which the Debtor had no equitable interest and from which the Debtor had not actually received any proceeds should not be included in the Debtor's current monthly income. When the Debtor's income was recalculated after deducting the appropriate amounts, it was determined that the Debtor was below median income. Therefore, under 707(b)(6), Creditors were not eligible to file the motion to dismiss, and accordingly it was denied.

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07-30419 | Key Auto Liquidation Center, Inc.

Wed, 02 Apr 2008 00:00:00 -0400

Based on the record and case file, the Court determined that the Trustee's Application for Compensation for Special Counsel should be denied.

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07-30419 | Key Auto Liquidation Center, Inc.

Wed, 19 Mar 2008 00:00:00 -0400

The Court determined that certain creditors that joined in an involuntary petition had filed the petition within the meaning of 503(b)(3)(A) and were therefore entitled to the allowance of their reasonable fees and costs as an administrative expense. In addition, the Petitioning Creditors incurred actual, necessary expenses. Finally, the Court determined the compensability and reasonableness of the specific amounts sought.

Codes: 503(b)(3)(, 503(b)(4), 326(a), § 101(10),

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07-31033 | Melody Ann Hafner

Thu, 21 Feb 2008 00:00:00 -0500

The Court concluded that the $1,000 exemption for a single motor vehicle under Fla. Stat. 222.25(1) may be stacked with Fla. Stat. 222.25(4), which provides a $4,000 wild card personal property exemption to debtors who do not claim or receive the benefits of a homestead exemption under the Florida Constitution.

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07-01001 | Barley v. Paletti

Wed, 09 Jan 2008 00:00:00 -0500

The complaint was dismissed; the Plaintiff's allegations under 727 in the Amended Complaint were time-barred since they did not relate back to the original Complaint, and the 523 claim failed to allege a false representation or justifiable reliance.

Codes: 727(a)(4), 523(a)(2), 12(b)(6), 554, 12(b)(6), 554, 12(b)(6), 554, 12(b)(6), 554,

Rules: 4004, 7014, 2016, 3008,

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06-03022 | Whitney National Bank et al v. Jones

Fri, 07 Dec 2007 00:00:00 -0500

Genuine issues of material fact precluded the entry of summary judgment on the Plaintiffs' claims that the Debtor should be denied discharge for failure to maintain adequate records, making a false oath, and failure to explain a loss of assets.

Codes: 727(a)(3), 2004, 323, 1109(b), 2004, 323, 1109(b), 2004,

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07-05006 | Venn, Jr., Trustee v. Reinhard et al

Tue, 16 Oct 2007 00:00:00 -0400

The Trustee objected to the Debtor's claim of exemptions under 522(p) where the Debtor had owned a residence for more than 1215 days prior to the filing of the petition, but the residence acquired homestead status within the 1215 days. The Court held that the acquisition of homestead status alone does not fall within the exemption limits in 522(p).

Codes: 522(p),

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06-30679 | Gregory Eugene Purdy and Laura Mae Purdy

Mon, 06 Aug 2007 00:00:00 -0400

The Court concluded that the term projected disposable income as used in 11 USC 1325(b)(1)(B) is forward-looking. Therefore, the debtor's disposable income for the six months before the filing of the petition, as calculated on Form B22C, will be presumed to be the debtor's projected disposable income in the absence of rebuttal by showing a substantial change in the debtor's circumstances.

Codes: 1325(b)(1), 1302,

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07-30419 | Key Auto Liquidation Center, Inc.

Tue, 31 Jul 2007 00:00:00 -0400

The Court found that there were no genuine issues of material fact as to whether the alleged debtor was generally not paying its debts as they became due, and there were a sufficient number of petitioning creditors with claims in the aggregate of at least $13,475.00 that were not the subject of a bona fide dispute as to liability or amount. In addition, the petition was not filed in bad faith. Therefore, relief was ordered pursuant to 11 U.S.C. 303.

Codes: , 363(b), 363(b), 363(b),

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07-30576 | David Welsh

Wed, 27 Jun 2007 00:00:00 -0400

The Debtor's motion to be exempted from credit counseling was denied because it neither described exigent circumstances that would merit a waiver of the credit counseling nor stated that the Debtor had requested but was unable to obtain credit counseling for five days. In addition, there was no suggestion that the Debtor should be excused from credit counseling due to disability, incapacity, or active military duty in a military combat zone.

Codes: 109(h),

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06-03034 | Dees et al v. United States of America et al

Thu, 31 May 2007 00:00:00 -0400

The Court abstained from determining the dischargeability of taxes that had not yet been assessed in a fully-administered, no-asset, reopened Chapter 7 case when there were parallel proceedings pending in the Tax Court that would answer the dispositive question.

Codes: 523(a)(1), 505,

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06-30497 | Alvin Alexander

Wed, 25 Apr 2007 00:00:00 -0400

A creditor holding a claim secured by the Debtor's principal residence objected to confirmation of the Debtor's Chapter 13 Plan. The Court concluded that the Plan met the requirements for confirmation, and the Plan could provide for the curing of the Mortgage default even though the Mortgage had been accelerated, the Debtor was not personally obligated on the underlying Note, and the Debtor held only a life estate interest in the real property securing the Mortgage.

Codes: 1325,

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07-40133 | Timothy Williams and Rachel Williams

Fri, 13 Apr 2007 00:00:00 -0400

The Court dismissed the Debtors' case because they were ineligible to be debtors under 109(g). The Debtors had voluntarily dismissed a previous case in which a motion for relief from stay had been filed within 180 days of the filing the petition in the instant case. Furthermore, the Debtors' motion to extend the automatic stay was untimely because it had not been filed within five days of the petition.

Codes: 109(g), 362(c)(3),

Rules: 4001-3,

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05-50484 | Mark A Mullins

Tue, 27 Mar 2007 00:00:00 -0400

Construing 18 USC 3613 and 26 USC 6323, the Court concluded that a Debtor could not avoid a lien arising from an order of restitution on the grounds that the federal Government failed to comply with state formal requirements in Fla. Stat. 55.501, et seq. when it filed the notice of lien.

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06-40567 | Elaine DeReese Harper

Fri, 16 Feb 2007 00:00:00 -0500

The Court denied the Debtor's motion to stay its order granting relief from the automatic stay pending appeal because there was no likelihood that the Debtor would succeed on the merits, denying the motion would not irreparably harm the Debtor, denying the motion would avoid inflicting substantial harm on the Creditor, and denying the motion would further the public interest. Moreover, the automatic stay was not in effect with respect to the creditor's actions with respect to the Debtor because this was the Debtor's second bankruptcy filing within the previous one-year period.

Codes: 362,

Rules: 8005,

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05-35022 | Marusha Maria Wowdia

Thu, 21 Dec 2006 00:00:00 -0500

The Court denied the Debtor's motions to avoid forfeiture and seizure actions of certain property by the United States because the property was not protected by the automatic stay or discharge provisions of the Bankruptcy Code. Exempt property revests in the debtor and therefore ceases to be property of the estate for purposes of the automatic stay. In addition, the automatic stay terminates once the debtor receives her discharge; thereafter, the debtor's protections lie in the provisions governing the effect of discharge, which void judgments only to the extent they are determinations of the personal liability of the debtor. The Court also determined that the merits of the forfeiture action were res judicata and would not be relitigated.

Codes: 362, 524,

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01-00512 | Moltech Corporation

Fri, 15 Dec 2006 00:00:00 -0500

The Court concluded that summary judgment on the Claimant's breach of contract claim was appropriate since there was no evidence of damages.

Codes: 502,

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06-10156 | Darrcelle S. Covert

Thu, 05 Oct 2006 00:00:00 -0400

The Court held that motions to extend the automatic stay in cases where one previous case has been filed and dimissed within the previous one-year period must be filed within five days of the filing of the petition.

Codes: 362(c)(3),

Rules: 4001-3,

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03-70514 | TIMOTHY ALAN JOHN and CHERYL STILWELL JOHN

Wed, 04 Oct 2006 00:00:00 -0400

The Court concluded that property of the estate in a case converted from Chapter 13 to Chapter 7 consists of property of the estate on the date of petition that remains in the possession of the debtor on the date of conversion.

Codes: 348, 541(a)(6),

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06-50143 | Peter Terence Russ and Leaise Russ

Fri, 04 Aug 2006 00:00:00 -0400

Motions to extend the automatic stay beyond the first 30 days in cases where the debtor has been a debtor in a case dismissed within the year preceding the petition date should be filed within five days of the petition. The Court can only extend the automatic stay after a hearing completed before the stay terminates on the 30th day post-petition. Motion filed on the 31st day was untimely because the stay had already terminated and there is no mechanism in the Code for reimposition of the stay.

Codes: 362,

Rules: 4001-3,

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04-50558 | Kathy Jean Cain

Wed, 02 Aug 2006 00:00:00 -0400

Codebtor stay no longer in effect on balance owed to the creditor over and above the amount of the allowed claim in the debtor's bankruptcy case, since the debtor was no longer liable on the debt with the codebtor. To the extent that there may have been a codebtor stay, it was lifted as to the balance because the debtor's plan did not propose to pay that part of the creditor's claim.

Codes: 1301,

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05-35004 | Robert Earl Brown

Tue, 18 Jul 2006 00:00:00 -0400

Debtor may surrender a vehicle in full satisfaction of the debt owed on the vehicle over the secured creditor's objection if such vehicle is the subject of a so-called "910 car claim," which means that it is subject to the hanging paragraph located at the end of 1325(a) enacted under BAPCPA. The hanging paragraph renders a creditor's claim fully secured, whether the vehicle is surrendered or retained, and no deficiency or unsecured claim can result from a claim that is fully secured.

Codes: 1325, 506,

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02-724 | UNIVERSITY CENTRE HOTEL, INC.

Wed, 05 Jul 2006 00:00:00 -0400

Creditor was not entitled to a superpriority administrative expense based on the failure of adequate protection because the guarantee given by the Debtor's principle was fully secured by a supersedeas bond and thus was sufficent substitute adequate protection for the Creditor's interest.

Codes: 361, 507,

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06-30015 | Meredith Lee Underwood

Wed, 24 May 2006 00:00:00 -0400

Debtor's claim of federal exemptions was permited because she was not eligible to claim any state's exemptions. She had not lived in Florida for the entirety of the 730-day period prepetition (and was therefore unable to claim Florida exemptions), and she was also ineligible to claim Colorado exemptions (her previous state of residence) because Colorado exemptions are only available to Colorado residents.

Codes: 522, 1408,

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06-40061 | Aisha Rahkia Conner

Tue, 16 May 2006 00:00:00 -0400

The Court has no discretion to set aside a dismissal or reinstate a case after such case has been dismissed by operation of law for a debtor's failure to timely file documents required by 521(a)(1). Such case is dismissed by operation of law on the 46th day post-petition, and there is no provision that allows for reinstatement upon a debtor's tardy compliance with the filing requirements.

Codes: 521,

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06-40028 | Edward A. Johnson and Jessierene Johnson

Fri, 12 May 2006 00:00:00 -0400

The required personal financial management course must be completed post-petition in order for a debtor to receive a discharge. Pre-petion completion of such a course is not sufficient to fulfill the requirement and neither is pre-petition credit counseling.

Codes: 727, 1007,

Rules: 4004,

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02-724 | UNIVERSITY CENTRE HOTEL, INC.

Tue, 04 Apr 2006 00:00:00 -0400

Stay lifted and Debtor-in-possession required to pay over to secured creditor cash balance in its sweep account and operating account because those amounts constiuted the creditor's cash collateral. Creditor may file a further application for an administrative claim for the remaining balance of its cash collateral as of the petition date (accounts receivable).

Codes: 362, 506,

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04-4011 | Whitney v. Dunston et al

Tue, 21 Mar 2006 00:00:00 -0500

The court held that the parties entered into an oral contract under which the defendants were required to execute a mortgage on their home in favor of the plaintiffs in the amount of the contract, The defendant-debtors' insolvency rendered any remedy at law inadequate, and it was equitable and just that specific performance be ordered.

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06-40049 | Matilda L. Frazier

Fri, 17 Mar 2006 00:00:00 -0500

Under the circumstances of the case, 5 days was sufficient notice for the creditor to appear at a hearing and oppose a motion to extend the automatic stay if it chose to do so. Debtor's counsel had phoned creditor counsel and faxed both the motion and the notice of hearing to them on the day the motion was filed. The exigencies of the case required the hearing to occur on short notice, and any lack of opportunity to respond, prepare, and attend the emergency hearing was a result of the internal practice of the law firm coupled with the Creditor's decision to use a law firm located in Tampa; therefore, the Court would not reconsider its order extending the stay.

Codes: 362, 102,

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05-35011 | Robert Michael Brown and Marion Virginia Brown

Mon, 13 Mar 2006 00:00:00 -0500

The Debtor failed to file a statement of intention with respect to the Creditor's collateral within 30 days of the petition date as required by 521(a)(2)(A). As a result, the automatic stay was terminated as to the collateral, and the court was required under 362(j) to enter an order confirming such termination.

Codes: 521,

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05-50189 | Lettica A Johnson

Mon, 13 Mar 2006 00:00:00 -0500

The Court would not enter an order confirming that the automatic stay was no longer in effect as to the Creditor's collateral where, regardless of whether or not the stay was actually still in effect, the provision providing for such an order was added to the Bankruptcy Code by the BAPCPA of 2005 and the instant case was filed prior to its effective date.

Codes: 362,

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06-50042 | Dennis Carrasquillo

Tue, 07 Mar 2006 00:00:00 -0500

Debtor's time to comply with an order directing him to file a certificate of credit counseling would not be extended upon a creditor's motion. If the Debtor received pre-petition credit counseling, he needed only to file a certificate of such, but if he did not receive pre-petition credit counseling, then he was ineligible ab initio to be a debtor and extending the time to comply would be futile as his case should be dismissed.

Codes: 109,

Rules: 1007,

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05-31164 | Roger Allen Buis and Pauline Reid Buis

Wed, 11 Jan 2006 00:00:00 -0500

The total amount of the debtors' unsecured debt (consisting of the scheduled unsecured and undersecured debt and attorney's fees) rendered the debtors ineligible for relief under chapter 13. The amount of attorneys' fees was liquidated, although their reasonableness had not yet been determined, because the determination of reasonableness was restricted by specific criteria. The petition was also filed in bad faith, which constituted cause under 1307 to dismiss the case, and it was in the creditors' best interest to dismiss rather than convert.

Codes: 109, 1307,

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05-40099 | Harry Eugene Osteen

Wed, 07 Dec 2005 00:00:00 -0500

Mere failure of a secured creditor to give prior notice of the disposition of an asset is not sufficient to disallow its unsecured deficiency claim. Creditor has the burden of coming forward with evidence to establish the difference between its debt and the amount of proceeds that would have been realized had it complied with the provisions of Florida law relating to the disposition of collateral.

Codes: 679.626,

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05-30924 | Mary Elizabeth Schmidt

Thu, 01 Dec 2005 00:00:00 -0500

Debtor's objection to proofs of claims filed by the Trustee overruled, as 501(c) specifically allows the Trustee to file claims on behalf of creditors who do not timely file their own. The Court disagreed with other courts which have held that such claims will not be allowed unless they were filed to protect the debtor in situations in which the creditor's claim is non-dischargeable.

Codes: 501,

Rules: 3004,

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05-40681 | Carla S. O'Conner and Dewey B. O'Conner

Wed, 23 Nov 2005 00:00:00 -0500

Debtors have a demonstrated inability to repay their creditors or fund a plan such that their receiving a discharge in Chapter 7 is not a substantial abuse under the requirements of 707(b).

Codes: 707,

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05-40736 | Shaun Edward Barry and Venessa Ann Barry

Mon, 21 Nov 2005 00:00:00 -0500

Since the debtors were barred under 523(a)(10) from discharging a large majority of their debts because those debts were included in a previous case in which the debtors' discharge was denied, and since the estate was bascially a no asset estate, the case was dismissed under 707(a), for cause, because the administration of the case would serve no useful purpose. Res judicata principles applied to the final judgment denying the debtors' discharge in the previous case even though it was a judgment by default. Discusses the difference between collateral estoppel and res judicata.

Codes: 707, 523,

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05-45002 | John Booth and Linda Booth

Mon, 24 Oct 2005 00:00:00 -0400

109(h) Case dismissed because debtors did not complete the required credit counseling prior to filing or fit within the statutory exemptions to such requirement.

Codes: 109,

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05-10305 | Beverly A. Craig

Wed, 19 Oct 2005 00:00:00 -0400

Creditor would not be held in civil contempt or assesed damages for violation of the automatic stay where the creditor had no knowledge of the debtor's bankruptcy filing when he filed an eviction action against the debtor in state court, and there was no evidence of any actual damages suffered by the Debtor because of the creditor's action.

Codes: 362, 105,

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05-31030 | Craig Charles Turner and Virginia Louise Turner

Mon, 03 Oct 2005 00:00:00 -0400

Debtor was not an owner or named beneficiary of an annuity which was the vehicle for payment of a structured settlement agreement to which she was a party. The settlement agreement was not an annuity because there was no intent to create an annuity. Thus,the Debtor could not exempt the annuity from her bankruptcy estate.

Codes: 222.14,

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01-70935 | JOE S. REAMS and KATHLEEN H. REAMS

Thu, 22 Sep 2005 00:00:00 -0400

Sanctions not appropriate under Rule 9011, which didn't apply, or under 362 or 105, as any violation of the automatic stay did not result in damages.

Codes: 362,

Rules: 9011,

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00-70664 | CHRYSTAL MESSER

Tue, 23 Aug 2005 00:00:00 -0400

The Court must consider the ability of the Plaintiff to pay in determining an appropriate an amount of sanctions, and after such consideration, found that the Plaintiff "might actually pay" a substantial sum, which would serve to reimburse Defendant for sums she had to expend in defense of this action. Sanctions imposed against the Plaintiff in the amount of $30,000.

Rules: 9011,

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03-90048 | MOLTECH POWER SYSTEMS, INC NKA BATTERY PARK INDUST v. TOOH DINEH INDUSTRIES INCORPORATED

Mon, 27 Jun 2005 00:00:00 -0400

547(c)(2). Preferential payments avoided where the payments made during the preference period substantially deviated from the ordinary course of business which had developed between the parties before the preference period in terms of amount, timing, and batch size.

Codes: 547,

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05-3009 | Lindig v. McLellan

Mon, 20 Jun 2005 00:00:00 -0400

523(a)(5), 523(a)(15), 12(b)(6) Motion to Dismiss denied. Complaint did state causes of action upon which relief could be granted because, under a 523(a)(5) dischargeability analysis, the bankruptcy court is not bound by state court characterizations of obligations between former spuses as being support rather than a property settlement or vice versa. Further, the Rooker-Feldman doctrine precludes this Court from declaring the final judgment of a state court to be invalid.

Rules: 7008,

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04-31769 | Juan F. Evans

Fri, 03 Jun 2005 00:00:00 -0400

350(b), 362(a),362(c), 524(a). If a case is reopened without limitation as to what pleadings can be filed, then the subject matter of pleadings is not limited to the stated reason for the initial reopening of the case. However, Debtor’s motion for civil contempt for violation of the automatic stay and discharge injunction was denied because no violation of the automatic stay occurred as relief from stay was sought and granted (even though the property was not subject to the stay because it was not property of the estate as it was transferrred by the debtor pre-petition). Further, while the debtor's discharge extinguished his personal liability under the note to the creditor, it did not extinguish the mortgage on the property and thus the creditor was free to continue and complete its in rem foreclosure proceedings.

Codes: 362, 524, 350,

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03-90049 | MOLTECH POWER SYSTEMS, INC, NKA BATTERY PARK INDUS v. TRUELOVE & MACLEAN INCORPORATED

Wed, 01 Jun 2005 00:00:00 -0400

547(a)(2) & 547(c)(4). Supplier's affirmative defense of "new value" to the repayment of preferential transfers failed because its manufacture of specialty goods for the debtor without delivery of such goods did not constitute new value to the debtor as the estate was not was replenished or enhanced.

Codes: 547,

Rules: 7056,

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04-3009 | Rutland et al v. Petersen

Tue, 26 Apr 2005 00:00:00 -0400

727(a)(4). Debtor was not denied a discharge, despite her imprudence with regard to her finances, when there was no evidence that any misstatement or omission from her schedules or statement of financial affairs was made knowingly and fraudulently, or with any intent to deceive.

Codes: 727,

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03-1400 | UNIVERSITY CENTRE HOTEL, INC. et al v. PCD Construction, Inc. et al

Tue, 22 Mar 2005 00:00:00 -0500

Defendant was not entitled to award of attorney's fees and costs from Plaintiff/Creditor because, under the American Rule, each party bears its own costs absent a statutory or contractual provision to the contrary, and there was no contract between the parties and no applicable statute authorizing such an award.

Codes: 57.105,

Rules: 8020, 9011,

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04-05011 | VENN v. Sherman

Wed, 22 Dec 2004 00:00:00 -0500

Entire amount of settlement proceeds received in settlement of the debtor's prepetition sexual harassment and retaliation claims was property of the estate regardless of the fact that a portion of the proceeds may have been intended to compensate for lost future earnings. The 541(a)(6) "earnings exception" was inapplicable because it does not exclude from property of the estate post-petition wages received by a debtor from sources other than the estate, and the debtor here did not provide any services to the estate. Since the settled causes of action accrued prepetition, and since no exception applied, the entire amount of the settlement proceeds were property of the estate.

Codes: 541,

Rules: 7056,

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04-32053 | Norman Arthur Steele

Wed, 01 Dec 2004 00:00:00 -0500

Venue not proper because Debtor not a resident or domiciliary of this district. Debtor never resided in this district and did not manifest the intent to remain in the district temporarily, much less indefinitely.

Codes: 1408,

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02-721 | STEPHANIE ALYEEN OWEN

Thu, 23 Sep 2004 00:00:00 -0400

Attorney's claim for fees could not be classified as a priority claim for wages or salary under 507(a)(3)(A). The attorney was engaged in a contractual, attorney-client relationship with the debtor, and not a master-servant relationship that would have given rise to a priority claim for wages under 507.

Codes: 507,

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02-71373 | KIRK-MURPHY HOLDING, INC.

Mon, 24 May 2004 00:00:00 -0400

Rule 9011(c) requires that a request for sanctions is to be initiated by motion and served on the offending party 21 days prior to filing such motion with the court. The alleged debtor's sending of a warning letter is not a substitute for the procedural requirements of 9011, which require the actual motion be served.

Rules: 9011,

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03-90063 | QUALITY TRAILER PRODUCTS, INC. v. FOXWORTH et al

Wed, 14 Apr 2004 00:00:00 -0400

For 523(a)(2)(A) purposes, NSF checks presented in exchange for goods on a COD basis consitutes an implied representation that the checks are good. By tendering an NSF check, a debtor may be fraudulently inducing the creditor to tender goods, thus distinguising a bad check for an immediate direct exchange from a bad check issued for a prior debt (no inducement). The presentation of an NSF check could also be a "false pretense" under that 523(a)(2)(A).

Codes: 523,

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03-655 | DEB-LYN, INC.

Fri, 20 Feb 2004 00:00:00 -0500

Pre-petition waiver of the automatic stay was not "cause" under 362(d) to lift the stay. The waiver of the automatic stay was unenforceable where the Debtor was not a single asset debtor, there was no evidence of bad faith, and there was a realistic possiblity of reorganization. This case involved more than just a two party dispute between an single secured lender and the Debtor, and the pre-petition waiver was not a part of any plan of reorganization, nor was it approved by prior adjudication. A debtor cannot unilaterally waive the automatic stay against the interest of its other creditors.

Codes: 362,

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03-14009 | Earl Jeffrey Fultz and Deborah Rawls Fultz

Fri, 13 Feb 2004 00:00:00 -0500

Debtors do not have an absolute right to dismiss their Chapter 7 bankruptcy case. A court will consider several factors in determining whether or not dismissal is appropriate, with the most important factor being whether or not such dismissal causes prejudice to the creditors. The Court held that the presence of preferential payments to the Debtors' son that were recoverable by the trustee for the estate, but not recoverable for the creditors outside of bankruptcy, demonstrated that prejudice to creditors would exist if the case were dismissed, so the motion to dismiss was denied.

Codes: 305, 707,

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00-40156 | JAMES LEE BELL

Fri, 03 Oct 2003 00:00:00 -0400

The creditor's contested claim was negotiated and agreed to between the debtor and the creditor. The agreed amount became part of the confirmed plan. The res judicata effect of the confirmed plan bars the debtor from challenging the validity and amount of the creditor's claim post confirmation.

Codes: 1327,

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02-90018 | JOHN E. VENN, JR., TRUSTEE v. MCRAE

Wed, 23 Jul 2003 00:00:00 -0400

Trustee brought adversary proceeding against debtor and sought to compel production of documents by debtor's testifying expert witness. Debtor objected. The Bankruptcy Court, Lewis M. Killian, Jr., J., held that inter-office memoranda from one of debtor's attorneys to another, once disclosed to testifying expert witness for his consideration, were subject to discovery under Federal Rule of Civil Procedure governing disclosure of expert testimony, regardless of whether such memoranda contained only factual information or attorneys' legal theories. Objection overruled; production ordered. 295 B.R. 676

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02-90036 | SECURITIES INVESTOR PROTECTION CORPORATION et al v. CAPITAL CITY BANK FKA INDUSTRIAL NATIONAL BANK

Wed, 25 Jun 2003 00:00:00 -0400

Securities Investor Protection Corporation (SIPC), on its own behalf and as trustee appointed to liquidate financial services company pursuant to Securities Investor Protection Act (SIPA), brought adversary proceeding against bank at which company and its principal officer had maintained checking accounts, asserting claims for negligence and gross negligence, recoupment of proceeds of fiduciary items, breach of fiduciary duty, aiding and abetting breach of fiduciary duties, conversion, breaches of covenants of good faith and failure to exercise ordinary care, and breach of warranty. Bank moved to dismiss. The Bankruptcy Court, Lewis M. Killian, J., held that: (1) dismissal for failure to include short and plain statement of each claim was not warranted; (2) SIPC lacked standing, as trustee, to bring adversary proceeding against bank; (3) SIPC had standing as bailee; (4) under Florida law, bank owed no general duty to analyze, investigate, or look behind company's banking transactions in a custodial capacity for the benefit of company's customers; (5) bank was not liable to company's investors based on fiduciary relationship; (6) bank could not be held liable to customers under Florida law for aiding and abetting breach of fiduciary duty; and (7) bank was not liable for conversion under Florida law. Motion granted. 296 B.R. 243

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02-90036 | SECURITIES INVESTOR PROTECTION CORPORATION et al v. CAPITAL CITY BANK FKA INDUSTRIAL NATIONAL BANK

Wed, 25 Jun 2003 00:00:00 -0400

Although the plaintiff’s complaint was vague and overlapping, it alleged sufficient facts and put the Bank on fair notice of the claims against it; the trustee had no standing as trustee or Meridian representative against the Bank because the claims it asserted were third party claims; the plaintiff failed to state claims upon which relief may be granted because the Bank owed no fiduciary duty to Meridian’s investors. 296 B.R. 243.

Rules: 7010,

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01-00335 | MOLTECH POWER SYSTEMS, INC.

Wed, 11 Jun 2003 00:00:00 -0400

County tax collector filed motion for allowance of administrative expense claim for postpetition ad valorem real estate and tangible personal property taxes owed by Chapter 11 debtor-in-possession (DIP), a battery manufacturer. DIP opposed motion. The Bankruptcy Court, Lewis M. Killian, Jr., J., held that the subject taxes were entitled to treatment as an administrative expense. Motion granted. 296 B.R. 63

Codes: 507(a)(8), 503(b)(1),

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01-20930 | WILLIAM B. MCRAE

Tue, 06 Aug 2002 00:00:00 -0400

Since there was joint debt at the time of the petition, the post-petition payment of a joint debt by the debtor’s wife does not exempt the TBE property from the bankruptcy estate. 308 B.R. 572. 

Codes: 522(d), 532a2A, 532a2A,

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01-20930 | WILLIAM B. MCRAE

Tue, 06 Aug 2002 00:00:00 -0400

Chapter 7 trustee objected to debtor's claim of exemption in Florida and North Carolina real property held in tenancy by the entireties (TBE). The Bankruptcy Court, Lewis M. Killian, Jr., J., held that: (1) under both Florida and North Carolina law, because there was joint debt on the petition date, the TBE assets, to the extent of the joint debt, were not exempt from process and were subject to bankruptcy administration; (2) the postpetition payment of the final joint debt by debtor's nondebtor wife could not create an exemption that did not exist on the petition date; and (3) for distribution purposes, joint unsecured claims were of equal rank to the other unsecured claims pursued exclusively against debtor. Objection sustained. 295 B.R. 676 On appeal, The District Court, Paul, Senior District Judge, held that: (1) debtor's tenancy by the entirety property could be administered by trustee in the amount of joint unsecured debt outstanding as of debtor's petition filing date, even though nondebtor wife paid off the joint debt postpetition, but (2) debtor's non-exempt entireties property could be distributed only to the joint creditors of both spouses, and not to individual creditors. Reversed and remanded. 308 B.R. 572

Codes: 541, 522, 726,

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01-90025 | STANLEY v. Educational Credit Management Corporation

Wed, 13 Feb 2002 00:00:00 -0500

Chapter 7 debtor brought adversary proceeding for determination that she was entitled to “undue hardship” discharge of her debt on student loans, and state agency which had guaranteed student loan debt moved to dismiss on Eleventh Amendment immunity grounds. The Bankruptcy Court, Lewis M. Killian, Jr., J., held that: (1) agency waived its Eleventh Amendment immunity by allowing proofs of claim for student loans at issue to be filed upon its behalf; and (2) having waived its Eleventh Amendment immunity, agency could not reinstate it simply by withdrawing these proofs of claim. Motion denied. 273 B.R. 907

Codes: 523(a)(8),

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01-90025 | STANLEY v. Educational Credit Management Corporation

Wed, 13 Feb 2002 00:00:00 -0500

A state agency waived its sovereign immunity under the 11th Amendment when it filed proofs of claim in the bankruptcy court; the agency was unable to reinstate its immunity simply by withdrawing its proofs of claim. 273 B.R. 907.

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01-00335 | MOLTECH POWER SYSTEMS, INC.

Mon, 28 Jan 2002 00:00:00 -0500

Company that entered into prepetition service agreement with Chapter 11 debtor to audit its utility bills and to obtain refunds and future savings for debtor from utility companies, in exchange for receiving set percentage of any such refunds or future savings, filed application for payment of administrative expense. The Bankruptcy Court, Lewis M. Killian, Jr., J., held that company did not confer any postpetition benefit on debtor's estate, and was not entitled to administrative expense claim. Application denied. 273 B.R. 268

Codes: 503(b)(1), 507(a)(1),

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01-80030 | DEWRELL v. SMITH

Thu, 10 Jan 2002 00:00:00 -0500

Attorney who had represented Chapter 7 debtor's ex-wife in Florida state court dissolution proceedings sued for determination that debtor's obligation for portion of attorney's fees was nondischargeable, as being in nature of “support.” The Bankruptcy Court, Lewis M. Killian, Jr., J., held that, under Florida law, dissolution courts award attorney fees based on relative need and ability to pay, so that attorney fee obligation would be excepted from discharge as being in nature of “support.” Judgment for attorney. 273 B.R. 669

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01-90023 | JOHN E. VENN, JR., TRUSTEE v. HAROLD BAZZELL, CLERK O COURT, BAY COUNTY, FLORIDA

Wed, 09 Jan 2002 00:00:00 -0500

Chapter 7 trustee brought adversary proceeding to recover for alleged violation of stay, in connection with county clerk of court's issuance of tax deed while stay was in effect, and to set aside tax deed as unauthorized postpetition transfer. On trustee's motion for summary judgment, the Court held that: (1) issuance of tax deed by county clerk of court was not mere ministerial act, but violation of automatic stay, that was void ab initio; but (2) because tax deed that was issued after commencement of debtor-taxpayers' Chapter 7 case was void and of no effect, it did not result in any “transfer” of property of the estate, and there was no unauthorized postpetition transfer for trustee to avoid. Motion granted in part and denied in part. 273 B.R. 663

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00-80049 | SPIRES et al v. GREGG

Wed, 12 Dec 2001 00:00:00 -0500

Judgment creditors brought adversary proceeding for determination that judgment debt was excepted from discharge. On creditors' motion for summary judgment based on preclusive effect of prior state court judgment, the Court held that: (1) prior consent judgment entered in breach of contract and fraud suit could not be given collateral estoppel effect upon question of nondischargeability of judgment debt, as one for debtor's fiduciary or nonfiduciary fraud; and (2) mere fact that prior state court judgment contained nondischargeability language, indicating that judgment debt would not be dischargeable in bankruptcy, was insufficient to preclude debtor, on res judicata grounds, from contesting nondischargeability of judgment debt. Motion denied. 268 B.R. 295

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01-70047 | WALTER J. LAWRENCE

Wed, 12 Dec 2001 00:00:00 -0500

Chapter 7 debtor moved to avoid federal tax liens and challenged his tax liability to federal government. The Court held that tax protestor who was allowed to file bankruptcy petition, despite order enjoining him from thereafter seeking bankruptcy relief except with court's leave, based on his express representation that he would not seek to challenge validity of federal tax liens or challenge amount of any tax liability, was judicially estopped from thereafter commencing proceeding to challenge federal tax liens or tax liabilities. Motion denied. 277 B.R. 135

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92-04836 | ELMER C. HILL

Wed, 12 Dec 2001 00:00:00 -0500

Judgment creditor objected to certain assets claimed as exempt by Chapter 7 debtor. The Court held that: (1) debtor was not entitled to exemption for individual retirement account (IRA) which was entirely funded from proceeds of services contract that resulted from fraudulent actions of debtor; (2) creditor's objection to exemption of debtor's home could not be sustained on ground that home was repository for fruits of debtor's fraudulent acts; (3) creditor's objection to exemption of home on ground that debtor converted nonexempt assets to exempt assets could not be sustained; and (4) debtor and wife acquired furnishings for home with intent that property be held by the entireties, and so furnishings were exempt from debtor's individual debts. So ordered. 163 B.R. 598 Ultimately became Certified Question to Florida Supreme Court: Judgment creditor objected to exemptions claimed by Chapter 7 debtor in certain assets, and the United States Bankruptcy Court for the Northern District of Florida, No. 92-04836/ RV, Lewis M. Killian, Jr., J., 163 B.R. 598, held that debtor was not entitled to exemption for individual retirement account (IRA), but that creditor's objection to exemption claimed by debtor in his homestead and in entireties property could not be sustained. Creditor appealed, and the District Court, Roger Vinson, J., No. 95-30585, remanded for further findings. On remand, the Bankruptcy Court again overruled creditor's objection to homestead exemption and held that challenge to exemption claimed by debtor in entireties property had to be pursued by way of adversary proceeding in which wife was named as defendant. Creditor appealed. The Court of Appeals, Birch, Circuit Judge, 197 F.3d 1135, affirmed in part and certified question. On certification, the Supreme Court, Shaw, J., held as a matter of first impression that the homestead exemption protects a homestead acquired by a debtor using nonexempt assets with the intent to hinder, delay, or defraud creditors. Question answered. Anstead, J., dissented. 790 So.2d 1018 (Fla. 2001).

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00-90035 | DAVIS v. GATORWHEEL , INC. et al

Thu, 21 Jun 2001 00:00:00 -0400

Chapter 13 debtor moved for turnover and for imposition of sanctions based on creditor's alleged violations of stay in repossessing car postpetition and in failing to return car for nearly one month after it had been notified of debtor's bankruptcy filing. The Court held that: (1) repossession was itself a mere technical violation of stay, that did not warrant award of damages; but (2) debtor was entitled to lost wages, transportation costs and attorney fees as actual damages for creditor's willful stay violation in failing to timely return automobile; and (3) punitive award, in amount of $4,500, was also warranted. Judgment for debtor. 265 B.R. 453

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01-70047 | WALTER J. LAWRENCE

Mon, 18 Jun 2001 00:00:00 -0400

101(36) Tax liens are statutory, not judicial, and are not subject to the lien avoidance mechanism of 522(f)(1)(A). 2001 WL 933431; 2001 Bankr. LEXIS 1170

Codes: 522(f),

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01-90023 | JOHN E. VENN, JR., TRUSTEE v. HAROLD BAZZELL, CLERK O COURT, BAY COUNTY, FLORIDA

Mon, 18 Jun 2001 00:00:00 -0400

A debtor whose land was to be sold for delinquent taxes had a vested ownership interest in the land which was part of the property of the bankruptcy estate as of commencement of the case; therefore, issuance of a tax deed was void as a violation of the automatic stay. 273 BR 663

Codes: 362, 549, 541, 4004, 532(a), 59,

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99-70289 | WILSON/SEA FRESH, INC.

Mon, 18 Jun 2001 00:00:00 -0400

Secured creditor moved for allowance of superpriority claim, and for order requiring disgorgement, by professionals, of fees and expenses already paid. The Bankruptcy Court, Lewis M. Killian, Jr., J., held that: (1) creditor was entitled to superpriority claim upon failure of adequate protection provided to it under bankruptcy court's cash collateral order; and (2) professionals had to be ordered to disgorge interim fee awards, in order to permit payment of creditor's superpriority claim. Motion granted. 263 B.R. 624

Codes: 507(b), 1109, 1109, 1109,

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00-42181 | JARED C. WILLETS and PAULA M. WILLETS

Thu, 10 May 2001 00:00:00 -0400

Chapter 7 debtors moved to avoid alleged lien, as impairing their homestead exemption rights. The Court held that judgment requiring Chapter 7 debtors to remove pool and concrete deck that they had built in violation of restrictive covenants governing appearance of homes in community was in nature of personal mandate, and did not give rise to a "judicial lien" of kind which debtors could avoid as allegedly impairing their homestead exemption rights. Motion denied. 262 B.R. 552

Codes: 101, 522, 1408,

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99-79997 | CASH COW SERVICES OF FLORIDA, LLC

Fri, 19 May 2000 00:00:00 -0400

Title loans were considered disbursements and, therefore, subject to the United States Trustee's quarterly fee calculation. 249 B.R. 33.

Rules: 1930(a),

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99-79997 | CASH COW SERVICES OF FLORIDA, LLC

Fri, 19 May 2000 00:00:00 -0400

United States Trustee (UST) filed motion to compel full payment of quarterly fees owed preconfirmation by Chapter 11 debtor, which operated a chain of stores that provided title loans to its customers. The Bankruptcy Court, Lewis M. Killian, Jr., J., held that title loans made in the ordinary course of debtor's business constituted “disbursements” that formed the basis for the UST's quarterly fee calculation. Motion granted. 249 B.R. 33 On appeal District Court reversed, and Eleventh Circuit Court of Appeals reversed District Court Judgment, holding that consumer loans made by debtor as part of its business, from funds constituting property of estate, were in nature of “disbursements,” that had to be included with debtor's other disbursements when calculating the UST's quarterly fees. 296 F.3d 1261

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99-70277 | DELOIS HOLLINGER

Fri, 04 Feb 2000 00:00:00 -0500

The market rate to compensate creditors for the time value of money was to be determined by the formula method. 245 B.R. 691.

Codes: 1325(a)(5), 506(d), 506(d),

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99-80006 | Chancellor v. MARTIN et al

Mon, 23 Aug 1999 00:00:00 -0400

Chapter 7 trustee brought adversary proceeding to deny debtors' discharge. The Court held that: (1) debtors could be denied discharge under "false oath" discharge exception based on their undervaluation of assets on their bankruptcy schedules, but (2) errors on debtors' schedules were not in nature of fraudulent "concealment"; warranting denial of debtors' discharge under separate discharge exception. Discharge denied. 239 B.R. 610

Codes: 1126, 1111, 349,

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97-07458 | INNOVATION INSTRUMENTS, INC.

Tue, 15 Dec 1998 00:00:00 -0500

The IRS' post-petition penalties and interest are considered part of the tax and may be assessed against the debtor without violating the automatic stay; furthermore, even if the stay was violated, the court could not disallow the IRS' penalty and interest claims. 228 B.R. 313.

Codes: 362(b)(9), 522(o), 522(o),

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97-07551 | BETTY JEAN LEWIS

Thu, 15 Oct 1998 00:00:00 -0400

Florida Constitution Article X, Section 4(a)(1). A debtor’s remainder interest in real estate was not a sufficient possessory interest in which to claim a homestead exemption. 226 B.R. 703.

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97-90017 | FIRST DEPOSIT NATIONAL BANK v. MACK

Fri, 20 Mar 1998 00:00:00 -0500

A creditor's failure to attend the 341 meeting, request for a 2004 exam of the debtor, or provide other proof of reasonable basis for filing dischargeability complaint meant that the creditor was not substantially justified in challenging the debtor's discharge and its losing its 523 action, and it was thus exposed to an award of costs and attorney's fees to the debtor. The creditor did not show that special circumstances existed that would make the costs and fee unjust and the creditor did not produce evidence of dishonest intent by the debtor in incurring credit card charges. 219 B.R. 311

Codes: 523(d), 4004(b), 4004(b), 4004(b),

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97-07373 | APRIL L. FRANKLIN

Wed, 08 Oct 1997 00:00:00 -0400

In valuing a vehicle, the court used the average between the retail and wholesale values and then made upward and downward adjustments based on the vehicle's special characteristics. 213 B.R. 781.

Codes: 506(a), 1129(a), 1129(a), 1129(a),

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90-4050 | OCEAN TRANSPORT CORP.

Thu, 10 Jul 1997 00:00:00 -0400

Chapter 11 debtor objected to creditor's proof of claim. The Bankruptcy Court, Lewis M. Killan, J., held that: (1) alleged accord and satisfaction between debtor and creditor was not effective; (2) refusal of creditor allow debtor to retrieve its forklift from creditor's property constituted conversion; and (3) damages for conversion was value of property at time of conversion. Ordered accordingly. 213 B.R. 383

Codes: 541, 546(a)(1), 546(a)(1), 546(a)(1), 546(a)(1),

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96-04907 | ERIC MAURICE COOK

Mon, 16 Jun 1997 00:00:00 -0400

Confirmation hearing was held on debtors' proposed Chapter 13 plans. The Bankruptcy Court, Lewis M. Killian, Jr., J., held that plans could not be confirmed unless they provided that, upon confirmation, each creditor whose claim was secured by depreciating asset would receive payment at least equal to amount of depreciation of that asset between time that creditor moved for relief from stay, or for grant of adequate protection, and entry of a plan confirmation order. So ordered. 205 B.R. 437

Codes: 541, 60(c)(1), 60(c)(1), 60(c)(1), 60(c)(1),

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96-337 | EDWARD L. CASON

Tue, 22 Apr 1997 00:00:00 -0400

105(a) Florida exemption for alternate payee's interest under QDRO limited to plans qualified under ERISA. 211 B.R. 72

Codes: 221.21, 362,

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96-00204 | JOHN CURTIS BROOKS and JACQUELINE ANN BROOKS

Wed, 02 Apr 1997 00:00:00 -0500

Chapter 13 debtors brought adversary proceeding against creditor that had repossessed their automobile prepetition, seeking attorney fees and sanctions for creditor's failure to return vehicle upon notice of debtors' bankruptcy petition filing. The Bankruptcy Court, Lewis M. Killian, Jr., J., held that: (1) statute governing turnover of property to estate requires that collateral be returned to locale of repossession, not that it merely be made available for retrieval; (2) creditor retained vehicle for unreasonable period of time where five days elapsed from time creditor was notified until debtors received car; (3) creditor willfully violated stay by not returning vehicle to debtors' possession where it was repossessed; (4) debtors were entitled to recover actual damages, including costs and attorney fees; and (5) creditor's conduct was not so egregious as to warrant award of punitive damages. So ordered. 207 B.R. 738

Codes: 1129(b), 506,

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93-07058 | THOMAS F. EDWARDS

Thu, 20 Feb 1997 00:00:00 -0500

The debtor was granted a discharge from chapter 13 due to circumstances that he should justly not be held accountable because his present economic circumstances did not exist nor were foreseeable at the time of confirmation, the circumstances were beyond his control and the debtor made every effort to complete his plan payments. 207 B.R. 728

Codes: 1328(b), 330, 330, 330,

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94-04750 | PRICE WILLIAMS BEARDEN and EMILY ANN BEARDEN

Mon, 30 Dec 1996 00:00:00 -0500

Chapter 7 Debtors moved to reopen closed no-asset case two years after discharge and closure in order to avoid alleged judgment liens on homestead property, for the purpose of mollifying title insurers hesitant to insure title. The court held that no compelling justification existed for reopening of the case under 11 U.S.C. 350(b). The Court reasoned that under the Florida Constitution, Article X, Section 4(a), a judgment lien does not attach to homestead property, and while orders avoiding judgment liens on homestead property are routinely granted in bankruptcy courts, such comfort orders to mollify title insurers should not be required. Second, the Debtors did not need either the lien avoidance power of the bankruptcy code or the efforts of this Court to obtain the benefits sought, because and at any time after a year following the receipt of a discharge in bankruptcy 55.145 Fla. Stat. (1995) provides a procedure for the debtor to petition the court in which the judgment was entered and obtain an order which cancels and discharges the judgment. Where the relief sought was equally available under state law, no compelling justification for re-opening existed. 204 B.R. 73

Codes: 350(b),

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96-00048 | HENRY E. DRIGGERS and HELEN L. DRIGGERS

Mon, 04 Nov 1996 00:00:00 -0500

105(a), 362(a), 524. Discharge injunction violated and civil contempt sanction imposed due to willful violation of automatic stay. 204 B.R. 70

Codes: 524, 547, 522, 105,

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95-90024 | Miller v. FLORIDA MINING & MATERIALS

Wed, 27 Mar 1996 00:00:00 -0500

Payments made by a debtor construction company to its supplier were challenged as voidable preferences. The supplier asserted the ordinary course of business affirmative defense. The court held that payment is deemed to have been made on the date that the check is delivered to the recipient for purposes of §547(c)(2), provided that the check is honored upon initial presentation to the bank. In addition, the court held that late payments are not per se outside the ordinary course of business if late payment was established as the ordinary payment practice before the preference period. 196 B.R. 900

Codes: 547, 328, 328,

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85-07179 | RALPH J. COLLINS

Wed, 12 Apr 1995 00:00:00 -0400

Due to the debtor’s ambiguous wording of “in full in cash” in the chapter 11 reorganization plan, the IRS was entitled to receive postpetition interest on its tax claim; the court found an interest rate of 8% to be reasonable. 184 B.R. 151

Codes: 1225(a)(6), 1129,

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94-90052 | FREUND v. HEATH

Wed, 18 Jan 1995 00:00:00 -0500

101(31), 547(b). Transfer to Debtor's live-in girlfriend (who was an insider despite per se Code definition) 95 days pre-petition was a voidable preference. 177 B.R. 366.

Codes: 101, 547,

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94-90041 | MINER v. BAY BANK & TRUST COMPANY

Wed, 30 Nov 1994 00:00:00 -0500

An individual who wholly owned the Debtor Corporation sought to avoid the foreclosure sale of certain real property owned by the Debtor Corporation, arguing that the sale constituted a transfer of the individual’s interest in the mortgage. The court dismissed the complaint because, under Florida law at the time of the case, title to corporate property remains with the corporation in the event of dissolution; that is, corporate property is not held in trust by the directors of the corporation for the benefit of the shareholders, as it was under earlier law. 177 B.R. 104

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91-02304 | EDGEWATER SUN SPOT, INC.

Wed, 12 Oct 1994 00:00:00 -0400

The Application for Attorneys’ Fees and Costs was granted over the objection of debtors. The debtors made various claims, including that their attorney in the bankruptcy case was not a “disinterested person” under §327(a) because he held an interest adverse to the estate. The court found no conflict of interest, and that the expenses and costs claimed were appropriate and reasonable. 174 B.R. 626

Codes: 101(14), 327(a), 328(c), 523(a)(15), 1328, 362(d)(3), 523(a)(15), 1328, 362(d)(3),

Rules: 9011,

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94-07015 | GWYNN T. EARP

Mon, 20 Jun 1994 00:00:00 -0400

The creditors’ amended motion to file an extension of time based on excusable neglect for a dischargeability complaint was denied because the creditors failed to make their request before the deadline. 169 B.R. 440

Codes: 4007(c), 523(a)(5), 523(a)(5),

Rules: 9006(b), 4004(b),

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93-02222 | WADE JACKSON

Fri, 17 Jun 1994 00:00:00 -0400

The court held that a fee simple public road bisecting a debtor’s property destroys the contiguity requirement of the homestead exemption. However, the road in this case was a prescriptive easement for public use rather than a fee simple, so the claimed homestead property was held to be contiguous. The peanut quota allotment for the debtor’s property was held not to be part of the homestead real property. 169 B.R. 742

Codes: 522(b), 704, 704,

Rules: 4003(c),

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93-07444 | CHARLES F. ROWLAND

Thu, 17 Mar 1994 00:00:00 -0500

In valuing a mobile home in chapter 13, the starting point was the average between the N.A.D.A. retail and wholesale values and then any upward and downward adjustments should be made accordingly. 166 B.R. 172

Codes: 506(a), 546(a), 546(a),

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93-79999 | INVESTORS FL AGGRESSIVE GROWTH FUND,LTD.

Thu, 17 Feb 1994 00:00:00 -0500

The debtor’s reorganization plan under chapter 11 was not confirmed because the debtor’s financial projections were rendered infeasible and the debtor artificially manufactured an impaired class to force a cramdown; furthermore, the court dismissed the case because the debtor made a bad faith filing for bankruptcy. 168 B.R. 760

Codes: 1129, 522(m), 522(m),

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91-07267 | SENIOR CARE PROPERTIES, INC.

Wed, 24 Nov 1993 00:00:00 -0500

The debtor’s objection to the creditor’s claim was sustained because the creditor had no statutory or contractual basis for a claim against the debtor’s estate. 161 B.R. 294

Codes: 502(a), 522(p)(1), 522(p)(1), 522(p)(1),

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93-07016 | WILLIAM M. THOMASON and KATHERINE R. THOMASON

Tue, 24 Aug 1993 00:00:00 -0400

Sanctions were imposed on the debtor’s attorney because his motion to avoid a lien had no legal basis and an investigation into the law could have easily shown this. 161 B.R. 281

Rules: 9011, 2003, 9023,

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88-02252 | HARRY SANDERS

Mon, 17 May 1993 00:00:00 -0400

The Debtor challenged liability for unpaid federal excise taxes on the sale of fuel. The parties conceded that the Debtor was a “responsible party” under §6672, which shifted the burden to the debtor to prove lack of willfulness in failure to pay the taxes. The court held that the Debtor was liable because he paid other creditors after he became aware of the failure to remit the taxes to the government, and because the Debtor acted with reckless disregard of an obvious risk of non-payment. However, liability was reduced because the Debtor relied on standard business procedures and practices as a defense to §6672 liability. 156 B.R. 854

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92-07497 | MCBRIDE ESTATES, LTD.

Fri, 26 Mar 1993 00:00:00 -0500

The debtor and its attorney’s chapter 11 petition was found to be in bad faith because the filing was done to resist a secured creditor’s motion from relief from the automatic stay and to unnecessarily delay the secured creditor’s foreclosure sale. 154 B.R. 339

Rules: 9011,

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91-79997 | DENVER INVESTMENT CO.,LTD.

Wed, 27 May 1992 00:00:00 -0400

The court dismissed the Chapter 11 case for bad faith filing under §1112. 141 B.R. 228

Codes: 1112(b), 1330,

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91-02148 | GRADY W. MCDANIEL and MARGARET MCDANIEL

Tue, 07 Apr 1992 00:00:00 -0400

Post-petition earnings derived from a prepetition covenant not to compete are not excluded from the bankruptcy estate. 141 B.R. 438

Codes: 1112(b), 541(a)(6), 1306,

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91-07267 | SENIOR CARE PROPERTIES, INC.

Tue, 25 Feb 1992 00:00:00 -0500

The court found that the creditor did not have an interest in the equity cushion that would entitle them to adequate protection because the replacement lien was sufficient protection of the creditor’s interest; furthermore, the creditor was denied relief from the automatic stay because it was adequately protected and it did not show cause for such relief. 137 B.R. 527

Codes: 361, 362, 1329, 1327(b),

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87-07193 | ST. GEORGE ISLAND, LTD.

Fri, 24 Jan 1992 00:00:00 -0500

The court held that a partnership is effectively dissolved upon conversion of a case from Chapter 11 to Chapter 7 because there is no possibility of reorganization once a case enters Chapter 7. Thus, a debtor who is a general partner becomes a limited partner upon conversion to Chapter 7 and the debtor’s right to management is terminated at that point. The debtor (former general partner) retains its interest in the partnership and its potential liability to the Trustee. The authority and responsibility for winding down a partnership lies solely with the Chapter 7 Trustee. 137 B.R. 861

Codes: 101(41), 109, 549, 723(a), 523(a)(8), 503(b)(1), 507(a)(1), 1306(a)(2),

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87-07193 | ST. GEORGE ISLAND, LTD.

Fri, 04 Oct 1991 00:00:00 -0400

The court determined that the U.S. Trustee has standing to contest the results of the election of a bankruptcy trustee; the court further found that the putative elected trustee did not have a right to vote in the election of a trustee in this case because he did not have a claim against the debtor. 137 B.R. 857

Codes: 341, 702, 701, 307, 541, 541(a)(5), 522(f), 726,

Rules: 2003,

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91-07068 | MARY LOUISE SPEIGHTS

Tue, 13 Aug 1991 00:00:00 -0400

Finding, under the facts of the case, that the mobile home owned by the debtor was part of the real property on which it sat, and modification of the Chapter 13 plan was therefore precluded with respect to the mobile home. 131 B.R. 205

Codes: 1322(b)(2), 350(b),

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91-07104 | HARVEY B. DONLEY and CHERYL M. DONLEY

Wed, 31 Jul 1991 00:00:00 -0400

The debtors were not required under Sec. 521 to reaffirm or redeem their automobile debt when they intended to keep their automobile and they were not in default under their original obligation. 131 B.R. 193

Codes: 521, 9014,

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90-02049 | CECIL P. BRANCH and JOY D. BRANCH

Mon, 06 May 1991 00:00:00 -0400

A debtor seeking to surrender to a secured creditor only a portion of the property securing its claim must value each portion separately in light of the proposed disposition of those parcels; when a chapter 12 cramdown forces a secured creditor to write down a portion of its claim, the secured creditor is entitled to receive the current market rate on the restructured loan rather than the original contract rate; the court will find a chapter 12 reorganization plan feasible if the income projections support the debtor as being able to make payments to the creditors as required under the plan. 127 B.R. 891

Codes: 506(a), 1225(a), 362(a)(1), 7012,

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90-02385 | MOSES W. BRAXTON and JOYCE A. BRAXTON

Thu, 14 Mar 1991 00:00:00 -0500

A chapter 12 reorganization plan was not confirmed because the debtors could not establish what residual income would be distributed under the plan to unsecured creditors; the reorganization plan was render infeasible because the debtors' projected income from hog sales would not satisfy all payments required under the plan; the debtors' reorganization plan was not made in good faith because the debtor selectively chose inaccessible swampland parcels to surrender to the secured creditor and attempted to value these parcels at fertile land value. 124 B.R. 870

Codes: 1225(a)(4), 1225(a)(6), 1225(a)(3), 503(b)(4), 222.25(4), 506(b),

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90-07448 | CAMPUS HOUSING DEVELOPERS, INC.

Wed, 06 Mar 1991 00:00:00 -0500

1112(b). The debtor’s chapter 11 petition was filed in bad faith, warranting a dismissal, because the debtor did not present sufficient evidence that there was a reasonable likelihood that a successful reorganization could occur in a reasonable time and the debtor was attempting to delay foreclosure on the property. 124 B.R. 867

Codes: 1112, 727(d)(1),

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89-02279 | WILLIAM KEVIN DABBS and MELONEY RENEE DABBS

Fri, 22 Feb 1991 00:00:00 -0500

When a reaffirmation agreement is filed more than 60 days before the discharge, a reaffirmation hearing is not required to validate the reaffirmation agreement. 128 B.R. 307

Codes: 524(c), 524(d), 726(a)(2), 503(b)(3)(,

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90-02220 | MOSES W. BRAXTON and JOYCE A. BRAXTON

Fri, 09 Nov 1990 00:00:00 -0500

The court found no substantial justification for extending the time to file a chapter 12 reorganization plan when the debtor failed to file within the allotted 90 day period and showed no good cause for not following the procedures; the failure to file within the 90 day period resulted in a termination of the case. 121 B.R. 632.

Codes: 1221, 1208(c)(3), 222.25, 523(a)(3),

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90-07201 | BONNELL FOREHAND

Mon, 05 Nov 1990 00:00:00 -0500

The court found, on the facts of the case, that the bank’s UCC-1 filing under the business’ trade name was not seriously misleading and was sufficient to put a reasonably diligent searcher on notice of the bank’s security interest; the court found the financing statement to be effective and that the bank had perfected its security interest in the debtor’s property. 121 B.R. 892

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89-07394 | STEPHEN JOSEPH BADER and LAURA ANN R. BADER

Mon, 20 Aug 1990 00:00:00 -0400

The $5,000 retainer for a Chapter 7 case was excessive because the case was not unusually difficult, it did not require a great amount of skill, extraordinary results were not obtained and some of the work could have been performed by non-lawyers; such a retainer would be adverse to the purpose of §329, to creditors and to the debtors. 118 B.R. 817

Codes: 329,

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89-07043 | WILLIAM L. BOYD

Mon, 11 Sep 1989 00:00:00 -0400

The debtors could not exempt, allowing the trustee to liquidate, real property held in tenancy by the entirety with his non-debtor wife because the debtor and his wife had joint creditors that could have levied the property under Florida law; furthermore, the trustee could satisfy creditors by using the debtors' equity in property held as a joint tenancy with a right of survivorship. 121 B.R. 622.

Codes: 522, 363, 524(d), 1225(a)(4),

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88-07208 | ROSCO ANDERSON and VERNA K. ANDERSON

Mon, 14 Aug 1989 00:00:00 -0400

The debtor's motion to reopen a no-asset bankruptcy case to add a creditor for discharge was denied because there were no assets in the estate and creditors were never asked to file proofs of claims. 104 B.R. 427.

Codes: 350, 1208(c)(3),

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87-07184 | WADE LEE BARBER and JEWEL ANN BARBER

Thu, 10 Aug 1989 00:00:00 -0400

The trustee's complaint to revoke the debtor's discharge was denied because the debtor's lack of complete records for all their financial transactions was not evidence of fraud. 104 B.R. 425.

Codes: 727(a)(5),

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88-07309 | BERKSHIRE MANOR APARTMENTS, LTD.

Tue, 11 Jul 1989 00:00:00 -0400

The debtors' cases were dismissed for bad faith filings because their principal purposes were to delay the secured creditors from foreclosing on the debtors' properties and successful reorganizations were highly unlikely. 104 B.R. 417.

Codes: 1112, 524(c),

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89-07014 | PRINCE MANOR APARTMENTS LTD.

Tue, 11 Jul 1989 00:00:00 -0400

The debtors' case was dismissed for bad faith filing because its principal purpose was to delay the secured creditors from foreclosing on the debtors' property and a successful reorganization was highly unlikely. 104 B.R. 414.

Codes: 1112(b), 727(a)(3),

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86-07270 | STUDEBAKER'S OF FT. LAUDERDALE, INC

Tue, 20 Jun 1989 00:00:00 -0400

Attorney's fees in the chapter 7 case were based on the amount realized after liquidation of the remaining assets, collection of insurance proceeds and damages and sanctions awards; an attorney's charging lien perfected postpetition does not supercede the payment priorities established by the Bankruptcy Code. 104 B.R. 411.

Codes: 328, 507, 1221, 329,

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87-07187 | TERRA VILLA APARTMENTS, LTD

Mon, 05 Jun 1989 00:00:00 -0400

A motion for the change of venue of a secured creditor's motion was denied because the Bankruptcy Rules do not provide a rule for transferring the venue for a party's motion; the debtor-in-possession, as a hypothetical bona fide purchaser, could not avoid the secured creditor's equitable lien in insurance proceeds because the lien arose postpetition and the debtor-in-possession had constructive notice that the lien existed; however, the secured creditor's motion for disbursement of proceeds was denied because the court was unable to determine if the proceeds were adequately secured by other means. 101 B.R. 755.

Codes: 544, 157(b)(3),

Rules: 1014, 8007, 6672, 8007, 4004(c),

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89-04090 | JAMES C. SAUNDERS and PATRICIA A. SAUNDERS

Mon, 15 May 1989 00:00:00 -0400

Creditor sought relief from the automatic stay under 11 U.S.C. sect 362(a) in order to continue an action in state court against non-debtor third party to recover assets allegedly transferred in fraud of creditors. The court respectfully disagreed with In re MortgageAmerica Corp., 714 F.2d 1266 (5th Cir. 1983), and other cases which had held that because the debtor retains a legal or equitable interest in property fraudulently transferred within the meaning of sect 541(a)(1), the state court fraudulent transfer action was stayed by 11 U.S.C. 362(a)(3). Identifying legislative intent, statutory construction, and inconsistencies in applying the MortgageAmerica conclusion to other aspects of practice under the Code, the Court held that the stay under 11 U.S.C. 363(a)(3) was inapplicable and neither a fraudulent transfer action nor the property so transferred are property of the bankruptcy estate until such property is recovered by a trustee pursuant to his avoiding powers. On the other hand, an action or the employment of process to recover a fraudulent transfer is an action to recover a claim against the debtor, that arose before the commencement of the case and is subject to the stay under 11 U.S.C. 362(a)(1). Since the stay was applicable, and the Creditor did not provide a basis for granting relief from the stay, the motion for relief from stay was denied. 101 B.R. 303.

Codes: 362, 541,

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88-02177 | HARRY CECIL MILES and CAROL H. MILES

Wed, 01 Feb 1989 00:00:00 -0500

The debtors' chapter 13 confirmation plan was denied because the proposed monthly tithe coupled with the debtors' large unsecured debt and net monthly pay did not pass disposable income test required for plan confirmation. 96 B.R. 348.

Codes: 727(a)(4),

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87-02010 | EASTERN MARINE, INC.

Tue, 06 Dec 1988 00:00:00 -0500

Debtor's injured employees sought determination that benefits payable under Longshore and Harbor Workers' Compensation Act were administrative expenses, and secured creditor intervened. On cross motions for summary judgment, the Court held that injured employees' prefiling claims under Longshore and Harbor Workers' Compensation Act were not administrative expenses, in that payment of their claims did not benefit all creditors of estate, and thus would be treated as general unsecured claims. 93 B.R. 752.

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87-00024 | DOYLE E. CAMPBELL and YOSHIE K. CAMPBELL

Mon, 25 Jul 1988 00:00:00 -0400

Where four classes of impaired secured claims failed to return ballots either accepting or rejecting the plan, Court held that a single creditor or class of creditors should not be able to force a debtor to resort to cram down process.

Codes: 1129, 1126,

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87-07227 | MIKE J. ZABELSKI and DEBRA K. ZABELSKI

Thu, 07 Jan 1988 00:00:00 -0500

A trustee's objection to exemption claimed by Chapter 7 debtors in an employer administered ERISA qualified pension and profit sharing plan was overruled because the ability of the employee to receive distribution under plan upon termination of employment did not disqualify the plan as a valid spendthrift trust under Florida law, and accordingly, debtors' interests in plan were excluded from their estate in bankruptcy. 81 B.R. 89.

Codes: 541, 727(a)(2),

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86-07231 | NOCO, INC.

Wed, 08 Jul 1987 00:00:00 -0400

Chapter 11 petitions filed by debtor franchisees were dismissed upon the franchisors' motions because the evidence established that the debtors filed Chapter 11 petitions in bad faith, solely to avoid covenants not to compete in the franchise agreements under which they had built successful businesses. The Court found that a franchise agreement was not an "executory contract" and the debtors were not entitled to reject the covenants not to compete contained in the agreements. 76 B.R. 839.

Codes: 365, 502,

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87-02052 | SUSAN K. POSTON

Wed, 08 Jul 1987 00:00:00 -0400

A mortgagee's motion to dismiss a Chapter 13 petition was granted because the Chapter 13 plan, in which debtor proposed to impair only the mortgagee's claim and to provide for payment of the claim solely from the proceeds of a possible future sale of the property, was filed in "bad faith." 78 B.R. 308.

Codes: 362, 1322, 303, 522(p),

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86-07212 | DONALD HOWARD WOMMACK and SARAH NELL WOMMACK

Fri, 12 Jun 1987 00:00:00 -0400

The trustee's objection to a claim and motion to compel the creditor with a perfected security interest in the debtor's pickup truck to turn title to truck over to trustee was sustained because the security interest was subject to avoidance. The Court found that the fact that Florida had opted out of federal exemptions did not establish that the debtor had no property that could be exempted under the particular federal statute for purposes of determining whether the debtor was insolvent at time of the transfer sought to be avoided; additionally, the debt due on exempt assets should not be excluded from the computation of total assets in determining whether a debtor is insolvent at the time of transfer sought to be avoided. 74 B.R. 638.

Codes: 101(26), 101(31), 522, 547, 109(h), 505, 523(a)(1), 507(a)(8),

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86-07265 | GOLD LEAF CORPORATION

Thu, 14 May 1987 00:00:00 -0400

The Debtor's interest in an account being held by a creditor acting as a money conduit was sufficient to consider it property of the bankruptcy estate; furthermore, the creditor's defense of recoupment did not prevent the turnover of the account to the estate. 78 B.R. 1018.

Codes: 541, 542, 507(b), 522(d),

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86-07210 | RUTH ANNE PERKINS

Fri, 27 Mar 1987 00:00:00 -0500

Trustee's objection to a secured creditor's claim on the ground that the lien was preferential was denied because, under Florida law, creditor's security interest in motor vehicle was perfected at time application for certificate of title (which reflected lien information) was received by county tax collector's office. 73 B.R. 317.

Codes: 547, 1325(a)(5),

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86-07271 | STUDEBAKER'S OF FT. LAUDERDALE, LTD

Tue, 20 Jan 1987 00:00:00 -0500

Debtor who had been evicted from leased premises prior to filing of Chapter 11 petition brought adversary proceeding to regain possession of premises. The Court held that: (1) debtor had no interest in premises sufficient to constitute “property of estate,” and (2) even assuming that debtor's action could be filed as core proceeding in bankruptcy case, bankruptcy court would exercise its discretion to abstain from hearing proceeding. 73 B.R. 217.

Codes: 365,

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86-07066 | LINDA CARSWELL SMITH

Wed, 03 Dec 1986 00:00:00 -0500

Trustee brought adversary proceeding, seeking determination as to extent of estate's interest in automobile titled in debtor's name. The Bankruptcy Court, Lewis M. Killian, Jr., J., held that debtor held only bare paralegal title to automobile, as trustee for daughter. 73 B.R. 211

Codes: 541, 523(d),

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