Skip to main content


    In re Paul F. Dinkins, Case No. 04, 28251, Romes Design, Inc. v. Paul F. Dinkins, Adv. No. 04-2229 and Central Consulting Engineers, Ltd. v. Paul F. Dinkins, Adv. No. 04-2230 Published: In re Dinkins, 327 B.R. 918 (June 2005) -- Judge M.D. McGarity
    Because plaintiff architects were not beneficiaries under state theft by contractor statute, the debtor's obligations to them were dischargeable.

    In re Mark & Marlene Brewer, Case No. 03-33181, Debtors v. QC Financial Services, Inc., Adv. No. 03-2532 (April 2005) -- Judge M.D. McGarity
    In same case, the court previously determined presentation of post-dated check by the payee after payor filed bankruptcy, and resulting receipt of proceeds, was excepted from the automatic stay (see below). In this decision, the court found the retention of the proceeds after demand by the debtors was a violation of the stay. Because the creditor's conduct was egregious and intentional, the debtors were entitled to punitive damages.

    In re Daniel P. & Miranda J. Huitema, Case No. 03-33310 (March 2005) -- Judge M.D. McGarity
    Chapter 7 debtors could recover from lienholder postpetition payments made on truck loan prior to avoidance of security interest by trustee.

    In re Casey R. Wilbur, Case No. 03-37383 (March 2005) -- Judge M.D. 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 M.D. 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 M.D. McGarity
    Plaintiffs' causes of action under the Truth in Lending Act (TILA) survived defendants' motions to dismiss.

    In re Derrick & Shannon Buchner, Case No. 03-37885 (August 2004) -- Judge M.D. 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 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 M.D. 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 Linda L. Middaugh, Case No. 02-32054 (July 2004) -- Judge M.D. 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 M.D. 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.