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Ortiz v. Aurora Health Care, Inc., 422 B.R. 161 (January 2010) -- Judge Kelley

Even though adversary proceeding involved alleged violation of state statute, mandatory abstention was not appropriate for core proceeding and when there was no pending state court action, and permissive abstention was denied when bankruptcy court would be called upon to interpret its confirmation order.


In re Mazen N. Khoury, Case No. 09-31074 (November 2009) -- Judge McGarity

Chapter 13 debtor who voluntarily dismissed previous bankruptcy case in which secured creditors had moved for relief from the automatic stay was not eligible to be a debtor under sec. 109(g)(2). (This decision is a court minute decision, only.)


Mann, Trustee v. Debtor, et al (In re Rhonda Mitchell) (November 2009) -- Judge Shapiro

Chapter 7 trustee initiated an adversary proceeding seeking a determination that debtor’s interest in a trust was “property of the estate” and for turnover of the trust corpus for administration as an asset of the estate. The spendthrift provision restricted only involuntary transfer of debtor’s interest, not voluntary transfer of debtor’s interest, and therefore, the debtor had an absolute right to immediate payment of the principal, without restrictions. Accordingly, the court held that the trust did not contain a valid spendthrift clause under Arizona law, and, debtor’s interest in such trust was property of the bankruptcy estate. The adversary proceeding was dismissed and the trustee of the trust was ordered to turn over debtor’s beneficial interest in the trust corpus to the chapter 7 trustee for administration.


In re David Michael Larsen, Case No. 09-22963 (November 2009) -- Judge McGarity

Court abstained from exercising jurisdiction over funds related to state court receivership.


In re Daniel A. Fink, Case No. 09-23299 Published: In re Fink, 417 B.R. 786 (October 2009) -- Judge McGarity

Chapter 7 trustee objected to the debtor's claim of exemption in a lien on his former marital home, executed by his former spouse, in partial settlement of their divorce proceedings eight years prior to the bankruptcy filing.  The court sustained the objection, finding the debtor lost his right to claim either a federal or state homestead exemption.


Pleguar Corp. v. Debtors (In re Thomas and Mary Reilly) (October 2009) -- Judge Shapiro

Pleguar entered into an asset purchase agreement with debtors’ LLC to be paid over an 8-year period. Under the terms of the agreement, intangibles, rather than physical assets, comprised approximately 96% of the value. 6-years into the agreement, the debtors defaulted. When Pleguar sued both the LLC and the debtors personally in state court, the LLC ceased business operations, but in an effort to find re-employment for its employees,  transferred some of its intangibles to JHB, a competitor of Pleguar. The debtors then filed a joint personal voluntary petition for bankruptcy under Chapter 7. Pleguar instituted this adversary proceeding for denial of debtors’ discharge. The court held that debtors did not act with actual fraudulent intent in transferring to competitor LLC’s intangibles, precluding denial of discharge on grounds that debtors fraudulently transferred or concealed property. The court also held that omission from debtors’ bankruptcy schedules of such transfer did not warrant denial of discharge on grounds that debtors made false oath in relation to their bankruptcy case. Finally, the court held that denial of discharge was not warranted on grounds that debtor “gave, offered, received, or attempted to obtain money, property, or advantage, or a promise of money, property, or advantage, for acting or forbearing to act.” The adversary proceeding was dismissed, and the debtors were granted a discharge.


In re Brian & Patsy Morey, Case No. 09-26318 Published: In re Morey, 414 B.R. 473 (September 2009) -- Judge McGarity

Secured creditor filed an objection to confirmation of the chapter 13 debtors' plan, arguing the financing of the negative equity on the debtors' used trade-in vehicle was included in the financing of their new vehicle purchase, resulting in its claim being protected from cram down under sec. 1325(a).  The debtors argued the negative equity resulting from the trade-in of their old vehicle was not part of the purchase money security interest, and was thus not subject to the 910-day rule imposed by the hanging paragraph in sec. 1325(a).  The court sustained the creditor's objection, concluding the entire amount of the debt securing the new vehicle met the definition of purchase money security interest.


Christenson v. Lee (In re Lee), 415 B.R. 367 (September 2009) -- Judge Kelley

Debtor's discharge was not denied where records kept by Debtor were appropriate for types of business in which he engaged, and omissions from Schedules appeared inadvertent, but debt based on false representations made in inducing creditor to purchase nontransferable weapons was held not dischargeable under § 523(a)(2)(A).


Neary, UST v. Debtors (In re John and Jennifer McCarthy) (August 2009) -- Judge Shapiro

The UST objected to the debtors' discharge based on § 727(a)(4)A) (false oath), § 727(a)(5) (failure to explain loss of assets), and § 727(a)(2) (fraudulent transfer of property within one year of the filing of the bankruptcy). The court concluded that the debtors were the victims of a scam, orchestrated by a clever con artist, and lacked the requisite intent to defraud. The court also found that the debtors transfer of non-exempt funds into exempt funds, totaling approximately $9,900, shortly before filing bankruptcy, was a proper use of pre-petition bankruptcy planning under the particular facts and circumstances of this case. The adversary proceeding was dismissed, and the debtors were granted a discharge.


In re David Michael Larsen, Case No. 09-22963 Published: In re Larsen, 406 B.R. 821 (June 2009) -- Judge McGarity

Chapter 7 pro se debtor moved for the appointment of counsel pursuant to 28 U.S.C. sec. 1915(e)(1). The court denied the motion, finding no exceptional circumstances justified the appointment of pro bono counsel.


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