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In re Casey R. Wilbur, Case No. 03-37383 (March 2005) -- Judge McGarity

Because debtor’s future interest in spendthrift trust was not property of the estate, the chapter 7 trustee’s motion for turnover was denied.


In re Chad M. Koenigs, Case No. 04-23111, Paul G. Swanson, Trustee v. Chase Manhattan Mortgage Corporation, Adv. No. 04-2263 (March 2005) -- Judge McGarity

Chapter 7 trustee was granted relief from order of abandonment. Personal property annexed to land was improvement subject to mortgage, precluding avoidance of the creditor’s security interest.


In re Paul & Veronique Madel, Case No. 03-32367, Debtors v. GMAC Mortgage Corporation, et al., Adv. No. 04-2060 (November 2004) -- Judge McGarity

Plaintiffs’ causes of action under the Truth in Lending Act (TILA) survived defendants’ motions to dismiss.


In re Mark & Marlene Brewer, Case No. 03-33181, Debtors v. QC Financial Services, Inc., Adv. No. 03-2532 Published: In re Brewer, 313 B.R. 795 (August 2004) -- Judge McGarity

Chapter 13 debtors brought an adversary proceeding to recover for the creditor's alleged violations of the automatic stay.  The court granted the creditor's motion for summary judgment in part. The creditor's postpetition presentment of a check written prepetition was not a violation of the automatic stay. Genuine issues of fact precluded entry of summary judgment on whether the creditor's refusal to turn over proceeds of the transfer was an exercise of control over property of the estate.


In re Derrick & Shannon Buchner, Case No. 03-37885 (August 2004) -- Judge McGarity

Chapter 7 debtors refinanced their 1996 Harley Davidson motorcycle prepetition.  Perfection of the motorcycle was untimely during the preference period.  The trustee filed a motion to turn over property for the benefit of the estate.  The lien granted by the debtors to the bank was an avoidable preference and because the debtors had not made any payments to the trustee to satisfy the lien, the trustee was entitled to possession.


In re Linda L. Middaugh, Case No. 02-32054 (July 2004) -- Judge McGarity

Chapter 13 debtor had two loans with the Farmers Home Administration ("FHA"), which she obtained as part of a divorce settlement.  One loan was subsequently paid in full.  Debtor had not made payments on the second loan for over a year, as she thought the loan had been paid in full.  The debtor objected to both the FHA's proof of claim and motion for relief from the automatic stay.  The Court allowed the claim for the pre- and postpetition amounts and further allowed the filing of a supplemental claim for postpetition arrearages.  The motion for relief was denied because the debtor had equity in the property and the property was necessary for effective reorganization, subject to the debtor maintaining current payments to the creditors and trustee.


In re Tracey Rene Turck, Case No. 03-34679 (July 2004) -- Judge McGarity

The chapter 7 trustee filed a no asset report in November 2003, and the discharge was granted and case closed in January 2004.  In March 2004, debtor's counsel advised the trustee that the debtor was to receive previously undisclosed state and federal tax refunds.  The trustee filed a motion to reopen and a motion for turnover of property.  The debtor objected, stating the majority of the refund was generated by earned income credit and child tax credit.  The court found that both types of credit were property of the estate and as such, subject to turnover.


In re Donald P. Lomax, Case No. 99-28332, Bruce Lanser, Trustee v. Frank Balistreri, Adv. No. 01-2496 (March 2004) -- Judge McGarity

On remand, the chapter 7 trustee was required to prove the debtor received less than reasonably equivalent value in exchange for relevant transfers and the debtor was insolvent on the date the transfers were made or became insolvent as a result of the transfers.  The evidence supported the court's previous findings in favor of the trustee and the court denied the defendant's motion for return of the proceeds.


In re Richard & Barbara Fisher, Case No. 02-22055, Monroe Equipment, Inc. v. Debtors v. Milwaukee Western Bank, Adv. No. 02-2196 (May 2003) -- Judge McGarity

Debtors claimed any recovery they received from third party complaint was not part of the bankruptcy estate, but rather for the beneficiaries of a trust.  The bank argued, and the court agreed, that based on the debtors' claim, the court did not have subject matter jurisdiction; therefore, the third party complaint was dismissed.


In re Arrowhead Systems, LLC, Case No. 02-20147 (April 2003) -- Judge McGarity

The State of Minnesota Department of Revenue amended its claim requesting unpaid state sales tax, accrued interest and penalties.  The debtor objected to the penalty portion of the claim, stating the punitive aspect of the claim should not take priority over the allowed claims of unsecured creditors.  The court overruled the debtor's objection, finding the doctrine of equitable subordination was inapplicable.


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