Decisions of 2006

 

Blekkenk - Chapter 7 - Fee Waiver Denied - January 26, 2006

Case No. 06-60026-7

On January 26, 2006, Debtor filed a chapter 7 case, without paying the filing fee. On January 26, 2006, Debtor filed an application for waiver of the chapter 7 filing fee for individuals who cannot pay the filing fee in full or in installments. Debtor states in the application that his family size is two (2), although he states that he and his wife are separated on Schedule I and discloses no other dependents. He states that his combined monthly income from line 16 of Schedule I is $2,300. Debtor states that his monthly expenses from line 18 of Schedule J is $5,064. Debtor states in the Statement of Monthly Net Income on Schedule J that his monthly net income is $-2764.83. Debtor provides no explanation or information in question 18 of the application for waiver as to why he is unable to pay the filing fee in installments (the page containing question 18 is not attached).

PDF Version

 

Boudreau - Chapter 13 - Second Stay Violation - Sanctions - January 20, 2006

Case No. 04-62410-13

In this Chapter 13 case, hearing was held at Missoula after due notice on December 8, 2005, on Debtor’s second Motion for Sanctions against Riverside County, California, Department of Child Support Services (“Riverside DCSS”), filed October 27, 2005, for additional willful violations of the automatic stay committed by Riverside DCSS and its representative Diana E. Inzer (“Inzer”) in violation of 11 U.S.C. § 362(h)1, by garnishment of Debtor’s wages. The Debtor Joane Lisa Boudreau (“Lisa” or “Debtor”) appeared and testified, represented by attorney Nikolaos G. Geranios (“Geranios”). Riverside DCSS and Inzer failed to appear at the hearing, despite being specifically ordered to appear by this Court in its “Order and Notice of Civil Contempt Proceeding” entered on November 14, 2005. Debtor’s Exhibits

This memorandum cites to 11 U.S.C. § 362(h) concerning the relief that is available to the Debtor for a violation of the stay by a creditor, even though the Bankruptcy Abuse Prevention and Consumer Protections Act of 2005, effective for most provisions on October 17, 2005, amended 11 U.S.C. § 362(h) and redesignated it as 11 U.S.C. § 362(k). This contested matter is governed by the prior Code provision.

(“Ex.”) A, B, C, D, E, F and G were admitted into evidence at the hearing2, and at Debtor’s request the Court took judicial notice that Riverside DCSS is listed on the Debtor’s mailing matrix and was sanctioned in prior proceedings in this case, after notice and a hearing, for willful violation of the stay by Memorandum of Decision, Order and Judgment entered by the Court on July 29, 2005 (Docket Nos. 52, 53 and 54). �

At the conclusion of the Debtor’s case-in-chief the Court granted Debtor’s counsel Geranios ten (10) days in which to file an affidavit of attorney’s fees and costs incurred by the Debtor in relation to her second Motion for Sanctions. This Court, at hearing, granted Debtor’s second Motion for Sanctions and awarded the Debtor judgment against Riverside DCSS for all lost wages and additional garnishments, hospital bills, and in addition awarded the Debtor her attorney’s fees and costs as proven by affidavit, plus an award of $10,000.00 against Riverside DCSS for emotional distress caused by its willful violation of the stay, and lastly the Court disallowed Riverside DCSS’s Proof of Claim No. 7 filed in this case on November 18, 2004, in its entirety and discharged the Debtor from all further liability to DCSS, except that the payments already made to Riverside DCSS would be honored. With respect to DCSS’s representative Inzer, the Court awarded the Debtor Judgment against Inzer in the amount of $10,000.00 in punitive damages under § 362(h). �

The Court directed the Debtor to advise it immediately of any further violation of the stay by Riverside DCSS, and ordered that copies of the Court’s Memorandum of Decision, Judgments and Order be sent to Riverside DCSS, to Debtor’s employer, and all her recent creditors stating

The Court granted the Debtor 5 days to submit her hospital bill and Ex. G, her bill for a psychiatric follow up exam. She filed Ex. G and H on December 15, 2005. Ex. H is admitted into evidence.� that any delinquencies in monthly payments by the Debtor were not the fault of the Debtor but rather were the fault of Riverside DCSS. The Court further directed that copies be sent to the three national credit reporting agencies and to local Missoula credit agencies with directions to place copies of the Memorandum of Decision, Order and Judgments in any file pertaining to the Debtor Joane Lisa Boudreau with a notation that any difficulty in payment by the Debtor during the period of garnishment was not the fault of the Debtor but rather the result of improper garnishment by Riverside DCSS in willful violation of the automatic stay in violation of 11 U.S.C. § 362(h).

Geranios filed his affidavit of fees and costs incurred in connection with Debtor’s second motion for sanctions on December 16, 2005, together with an application for compensation and a notice to parties, including Riverside DCSS, granting ten (10) days to respond and request a hearing, the failure of which shall be deemed an admission that the relief requested should be granted. Geranios’ application and affidavit set forth fees of $1,047.60 and costs in the sum of $16.75 in adequate detail as supported by billing statements. Upon review of Geranios’ application and affidavit, and in the absence of any objection by Riverside DCSS after notice, the Court finds that the $1,047.60 in fees and $16.75 in costs requested are reasonable and necessary.

This Court has jurisdiction over this Chapter 13 case under 28 U.S.C. § 1334(a). Debtor’s Second Motion for Sanctions is a core proceeding under 28 U.S.C. § 157(b)(2). This Memorandum of Decision includes the Court’s findings of fact and conclusions of law. These contempt proceedings are governed by F.R.B.P. 9020 and 9014.

PDF Version

 

Braulick - Chapter 13 - Deferred Compensation Exemption - Property of Estate November 13, 2006

Case No. 06-60620-13

In this Chapter 13 case, the Trustee, Robert G. Drummond, of Great Falls, Montana (“Trustee”), filed an objection, docket no. 15, on September 11, 2006, to the Debtors’ amended claims of exemption in their homestead and in Debtor Tim Braulick’s Montana Deferred Compensation Plan, as described in Debtors’ notice of amendment, docket no. 12. On September 20, 2006, Debtors, through their attorney, Gary S. Deschenes, of Great Falls, Montana, filed a response and requested a hearing for October 19, 2006. At the hearing held on October 19, 2006, the Trustee appeared and withdrew his objection to Debtors’ homestead exemption, stating that it was cured by Debtors’ amendment to their Schedules, but the Trustee continued to object to Debtors’ claimed exemption in the described Montana Deferred Compensation Plan and requested time for the parties to file a brief. By stipulation, the parties agreed that Exhibit (“Ex.”) A, a copy of Debtor Tim Braulick’s Montana Deferred Compensation Plan, could be offered and admitted as an exhibit. The Court admitted Ex. A. Docket no. 26. No witnesses testified and no other exhibits were offered or admitted. Debtors’ counsel agreed that no disputed facts exist and that the objection involves a matter of law. Counsel agreed that confirmation of Debtors’ Chapter 13 Plan depends on the outcome of the objection to exemption.  Based on the representations of counsel the Court vacated the hearing on both matters. The Court granted the parties until November 9, 2006, to file their briefs, docket nos. 31 and 32, together with any uncontested facts, on the Trustee’s objection to exemption in the Montana Deferred Compensation Plan, after which the matter would be taken under advisement, a decision rendered and a new date set for the hearing on confirmation. The briefs have now been filed and this matter is ready for a decision.

For the reasons set forth below, the Court determines that the Trustee’s objection to the exemption claimed by Debtors in the Montana Deferred Compensation is moot. The Debtors will be granted time to filed amended Schedules B and C and a new date will be set for a confirmation hearing on Debtors’ chapter 13 plan, or any amendment thereto.

This is a core proceeding under 28 U.S.C. § 157(b)(2)(B) concerning allowance or disallowance of an exemption from property of the estate. This memorandum of decision includes the Court’s findings of fact and conclusions of law.

PDF Version

 

Chase - Chapter 12 - Homestead Exemption - March 1, 2006

Case No. 05-64439-1

Pending in this Chapter 13 bankruptcy case are: (1) confirmation of the Debtors’ Chapter 13 Plan, and (2) the Chapter 13 Trustee’s objection to Debtors’ claim of homestead exemption, filed on November 22, 2005, on the grounds the claimed homestead consists of two (2) parcels of commercial property purchased at different times and should be denied with respect to the commercial property other than Debtors’ residence. After due notice hearing on these matters was held at Great Falls on January 26, 2006. The Debtors Denis James Chase (“Denis”) and Linda Michelle Chase (“Linda”) both appeared and testified, represented by attorney Gary S. Deschenes (“Deschenes”). The Chapter 13 Standing Trustee Robert G. Drummond appeared in opposition to confirmation and Debtors’ homestead exemption. Exhibit (“Ex.”) 1 consisting of Debtors’ recorded homestead exemption in Lots 1, 2, 3, 4, and 5, Block 8, Glacier Park Original to the Town of East Glacier, Glacier County, Montana, according to the official plat or map on file, was admitted into evidence by stipulation of counsel. At the conclusion of the parties’cases-in-chief the Court granted the parties time to file briefs, after which the matter would be taken under advisement. The parties’ briefs have been filed and reviewed by the Court, together with the record and applicable law. This matter is ready for decision.

This Court has jurisdiction over this Chapter 13 bankruptcy under 28 U.S.C. § 1334(a).� Confirmation of Debtors’ Chapter 13 Plan and the Trustee’s objection to exemption both are core proceedings under 28 U.S.C. § 157(b)(2)(B). At issue is: first, whether the Trustee has satisfied his burden of proof under F.R.B.P. 4003(c) to show that Debtors’ homestead exemption in the nonresidential commercial property is not properly claimed; and second, whether Debtors satisfied their burden of satisfying the requirements for confirmation of their Plan under 11 U.S.C. § 1325(a). For the reasons set forth below, separate Orders will be entered overruling the Trustee’s objection to exemption based upon Montana’s liberal policy in favor of homestead exemptions, and overruling the Trustee’s “best interests of creditors” objection and confirming Debtors’ Chapter 13 Plan. This Memorandum of Decision includes this Court’s findings of fact and conclusions of law.

PDF Version

 

Crop Hail Management-Samson v. All About Travel - Chapter 7 - Amendment Relation Back - Motion to Dismiss - January 20, 2006

Case No. 03-61901-7

On November 18, 2006, Defendant, All About Travel, Inc., filed a Fed.R.Civ.P. 12(b)(6) motion to dismiss, doc. # 19, this adversary proceeding as it relates to the allegations asserted against it in Plaintiff’s First Amended and Substituted Complaint. Plaintiff responded to the motion to dismiss and requested a hearing for January 12, 2006, at 10:00 a.m. At the scheduled hearing on January 12, 2006, James H. Cossitt, of Kalispell, Montana, represented Plaintiff; Harold V. Dye, of Missoula, Montana, represented Defendant All About Travel, Inc. Neither party offered any exhibits for admission or provided any witness testimony. The attorneys made brief legal arguments. The Court took this contested matter under advisement, which is now ripe for decision.

PDF Version

 

Delany - Chapter 13 - Post Petition Fees Requested Late In Case - March 10, 2006

Case No. 02-20359-13

On February 19, 2002, Debtors filed this chapter 13 case. On September 20, 2002, this Court issued an order confirming their chapter 13 plan. On January 26, 2006, R. Clifton Caughron (“Caughron”), Debtors’ attorney, of Helena, Montana, filed an application for compensation requesting $2,330.55 for fees and $379.85 in costs. Robert G. Drummond, chapter 13 trustee (“trustee”), of Great Falls, Montana, filed an objection on February 3, 2006, and requested a hearing for February 7, 2006. The United States Trustee has not filed any response to the application for fees and costs. On February 3, 2006, trustee filed a notice of completion of plan payments and the Court issued an order discharging debtor after completion of Debtors’ plan. Caughron received a retainer of $575.00 for fees and $300.00 for costs. Caughron received, through the plan, payment for fees in the amount of $1,175.00. Caughron is requesting the allowance of unpaid fees in the amount of $580.55 and costs in the amount of $79.85.� Trustee has disbursed all plan payments. In the fee application, Caughron stated that the Debtors have been given the opportunity to review the application, but had not responded as of the date of the application. At the hearing on February 7, 2006, Caughron represented to the Court that Debtors have subsequently agreed to pay his firm the requested fees if allowed by this Court.

PDF Version

 

Detienne - Chapter 11 - Subjective and Objective Good Faith Tests - February 13, 2006

Case No. 05-64797-11

In this Chapter 11 bankruptcy, after due notice, a hearing was held February 7, 2006, in Butte on the Motion to Dismiss Case filed by Fremont Investment and Loan (“Fremont”) on November 22, 2006. Fremont was represented at the hearing by attorney Ross Richardson, of Butte, Montana, and the Debtor was represented by attorney James A. Patten, of Billings, Montana. Kevin Detienne testified. No exhibits were offered into evidence. This Memorandum of Decision sets forth the Court’s findings of fact and conclusions of law.

PDF Version

 

Dumontier - District Court Appeal - Proof of Claim

PDF Version

 

 

Ferguson - Chapter 7 - Motion to Withdraw Chapter 7 - Perlain Legal Prejudice

- March 22, 2006

Case No. 04-60669-7

In this Chapter 7 bankruptcy, after due notice, a hearing was held March 21, 2006, in Billings on Debtors “Motion to Withdraw From Bankruptcy” filed February 21, 20061, together with the objections thereto by the United States Trustee, the Chapter 7 Trustee and Wells Fargo Bank. Neal G. Jensen, Assistant United States Trustee, appeared at the hearing as did the Chapter 7 Trustee, Darcy Crum. Additionally, attorney Matthew Braukmann appeared on behalf of Wells Fargo Bank. No appearance was made by Debtors.

Debtors filed, in propria persona, a voluntary Chapter 13 bankruptcy petition on March 15, 2004, thereby commencing the instant case. The Chapter 13 Trustee filed a motion to convert on April 1, 2004, seeking to convert this case to Chapter 7 of the Bankruptcy Code arguing that Debtors had failed to file a Chapter 13 plan within fifteen days of their petition date as required by 11 U.S.C. § 1321 and F.R.B.P. 3015, and that Debtors had failed to file a Debtors filed a second “Motion to Withdraw From Bankruptcy” on March 2, 2006, which Motion appears to be an exact duplicate of the Motion filed February 21, 2006, except the March 2, 2006, Motion is dated February 28, 2006, while the February 21, 2006, Motion is dated February 18, 2006.

PDF Version

 

Gjullin - Chapter 7 - Objection to Exemptions - March 22, 2006

Case No. 05-63825-7

Pending in this Chapter 7 case are the Trustee’s objection based upon 11 U.S.C. § 522(o) to Debtor’s homestead exemption, filed November 30, 2005, and the Debtor’s response and motion to dismiss Trustee’s objection, filed January 23, 2006. The Court held a hearing on the Trustee’s objection at Great Falls on January 26, 2006. The Court consolidated these matters at the hearing on Debtor’s motion to dismiss the Trustee’s objection which was held on February 23, 2006. The Debtor Kenneth C. Gjullin (“Ken” or “Debtor”) appeared represented by attorney Randy L. Tarum (“Tarum”), of Great Falls, Montana, and testified at the hearing on January 26, 2006. The Trustee, Gary S. Deschenes, of Great Falls, Montana, appeared, and his Exhibits (“Ex.”) 1, 2, 3 and 4 were admitted into evidence by stipulation. After conclusion of parties’ cases-in-chief the Court granted the Trustee time to file a brief1, after which the matter would be taken under advisement. The Court has reviewed the parties’ briefs, the record and applicable law. These matters are ready for decision. For the reasons set forth below the Trustee’s objection to Debtor’s homestead is overruled, and Debtor’s motion to dismiss the Trustee’s objection is denied.

This Court has jurisdiction of this Chapter 7 bankruptcy under 28 U.S.C. § 1334(a). The Trustee’s objection to exemption is a core proceeding under 28 U.S.C. § 157(b)(2). At issue is whether the Trustee satisfied his burden of proof to show that the Debtor transferred proceeds from the sale of his pickup truck to his homestead with the intent to hinder, delay, or defraud a creditor and therefore could not exempt a part or all of the his homestead under § 522(o). This Memorandum of Decision includes the Court’s findings of fact and conclusions of law.

PDF Version

 

Hamilton - Chapter 7 - Fee Waiver - New Guidelines - March 29, 2006

Case No. 06-60161-7

On March 28, 2006, Debtors filed a chapter 7 case, without paying the filing fee. On March 28, 2006, Debtors filed an application for waiver of the chapter 7 filing fee for individuals who cannot pay the filing fee in full or in installments. Debtors disclosed on the application a family size of two. They state that their combined monthly income from line 16 of Schedule I is $1,306, derived from Social Security. Debtors state that their monthly expenses from line 18 of Schedule J is $1,634. Debtors state in the Statement of Monthly Net Income on Schedule J that their monthly net income is $-328. Debtors in question 18 of the application for waiver makes no additional statement as to why they are unable to pay the filing fee in installments.

PDF Version

 

Kiefer - Chapter 13 - Property of Estate - Automatic Stay - May 15, 2006

Case No. 05-65442-13

In this Chapter 13 case secured creditor Washington Mutual Bank (“Washington Mutual”) filed on March 24, 2006, a “Motion for Order Regarding Termination of Automatic Stay”. Debtor filed an objection on March 27, 2006, setting the matter for hearing which was held at Billings on April 17, 2006. Washington Mutual was represented at the hearing by attorney Matthew J. Kolling (“Kolling”). Debtor was represented by attorney Joanne M. Briese (“Briese”). No testimony or exhibits were admitted. Counsel for the parties clarified that Washington Mutual’s Motion is based solely on the timelines set forth under 11 U.S.C. § 362(c)(3)(A), and does not involve the good faith provisions of subsections § 362(c)(3)(B) and (3)(C)1. The Court granted the parties time to file simultaneous briefs, which have been filed and reviewed by the Court. This matter is ready for decision.

At issue is whether under § 362(c)(3)(A) the stay is terminated with respect to property of the estate. This Court holds that the stay is not terminated with respect to property of the estate Kolling stated at the hearing that the bad faith presumption of § 363(c)(3)(C) did not arise and is not at issue in this case. based upon the plain language of § 363(c)(3)(A), in accordance with prevailing authority.

This Court has jurisdiction of this Chapter 13 case under 28 U.S.C. § 1334(a). Washington Mutual’s Motion is a core proceeding to terminate the automatic stay under 28 U.S.C. § 157(b)(2)(G). This Memorandum of Decision includes the Court’s findings of fact and conclusions of law for this contested matter.

PDF Version

LaCounte - Homestead Exemption - 522(o) - 10 Year Look Back - December 8, 2006

Case No. 05-61209-13

In this Chapter 13 bankruptcy, after due notice, a hearing was held September 20, 2005, in Billings on confirmation of Debtors’ Chapter 13 Plan filed June 22, 2005, and on the Trustee’s Objection to the homestead exemption claimed by Debtors. The Chapter 13 Trustee, Robert G. Drummond, appeared at the hearing in support of his Objection. Debtors were represented at the hearing by their counsel of record, Terrance Toavs. Both Earl Leonard Lacounte (“Lenny”) and Janice Corrine Lacounte (“Janice”) testified and Exhibits 1 through 5 and 7 were admitted into evidence without objection. At the conclusion of the hearing, the Court granted the Trustee through October 7, 2005, to file a brief and also granted Debtors the same amount of time to simultaneously supplement the brief previously filed by Debtors on July 29, 2005, and took the matter under advisement. The Trustee timely filed his brief on October 7, 2005. Debtors’ supplemental brief was tardily filed on October 11, 2005. The matter is ready for decision.

PDF Version

 

Leichner - Chapter 13 - Sanctions - Failure to Comply with Order - March 10, 2006

Case No. 05-63630-13

Upon review of the Chapter 13 Trustee’s affidavit and Report to the Court filed on March 8, 2006, and the Court’s Order entered on November 7, 2005, sustaining the Trustee’s objection to Ocwen/Bank One, N.A.’s (“Ocwen”) Proof of Claim, and Order entered on January 12, 2006, granting the Trustee’s Motion for Sanctions against Ocwen, and Order entered on February 21, 2006, assessing damages against Ocwen for its failure to comply with this Court’s Orders, and after notice and hearing, now therefore, IT IS ORDERED the Chapter 13 Trustee is awarded attorney’s fees and costs against Ocwen/Bank One, N.A., in the sum of $203.75 as sanctions for failure to comply with this Court’s Order entered on November 7, 2005, which sustained the Trustee’s objection to Ocwen’s claim, payable to the Trustee within ten (10) days of the date of this Order; and NOTICE IS HEREBY GIVEN that if within 10 days Ocwen has failed to pay the Trustee $203.75 and to comply with this Court’s Order entered on November 7, 2005, to expunge disallowed fees and costs and file verification that it expunged such disallowed fees and costs, the Trustee shall be authorized to request additional fees and other sanctions against Ocwen.

PDF Version

 

Moore - Chapter 13 - Homestead Exemption - January 25, 2006

Case No. 05-64359-1

In this Chapter 13 bankruptcy, after due notice, a hearing was held January 10, 2006, in Butte on the “Trustee’s Objection to Property Claimed as Exempt” filed November 22, 2005, together with Debtor’s response thereto filed November 29, 2005. The Chapter 13 Trustee, Robert G. Drummond, appeared at the hearing in support of his Objection and Debtor appeared both personally, and through his attorney, Harold V. Dye, in opposition to the Trustee’s Objection. Debtor testified. No exhibits were offered into evidence. This Memorandum of Decision sets forth the Court’s findings of fact and conclusions of law.

PDF Version

 

Nateka - Filings Waiver - Chapter 7 - January 25, 2006

Case No. 06-60021-7

On January 24, 2006, Debtor filed a chapter 7 case, without paying the filing fee. On January 24, 2006, Debtor filed an application for waiver of the chapter 7 filing fee for individuals who cannot pay the filing fee in full or in installments. Although Debtor does not state in the application what his family size is, Debtor disclosed on Schedule I that he is single and lists no dependents. The Court concludes his family size is one. He states that his combined monthly income from line 16 of Schedule I is $422.22. Debtor states that his monthly expenses from line 18 of Schedule J is $945.00. Debtor states in the Statement of Monthly Net Income on Schedule J that his monthly net income is $-945, which is incorrect as it is $-522.78 (422.22 - 945 = -522.78). Debtor in question 18 of the application for waiver states “I am unable to find a job in my field, and so am returning to school, where I will need all available money for living expenses.”

PDF Version

 

Nelson - Chapter 7 - Waiver of Filing Fee - January 5, 2006

Case No. 06-60001-7

On January 3, 2006, Debtor filed a chapter 7 case, without paying the filing fee. On January 4, 2006, Debtor filed an application for waiver of the chapter 7 filing fee for individuals who cannot pay the filing fee in full or in installments. Debtor states in the application that his family size is three (3). He states that his combined monthly income from line 16 of Schedule I is $3,343. Debtor states that his monthly expenses from line 18 of Schedule J is $2,433. Debtor states in the Statement of Monthly Net Income on Schedule J that his monthly net income is $910. Debtor in response to question 14 of the application states that he has paid $200.00 to someone other than an attorney for services rendered in connection with this case. Debtor in question 9 of his Statement of Financial Affairs does not disclose any person providing any consultation of service concerning this case. Debtor provides no explanation or information in question 18 of the application for waiver as to why he is unable to pay the filing fee in installments.

PDF Version

 

Nettleberg - Chapter 13 - Post Petition Fees - Discharge - March 10, 2006

Case No. 01-22917-13

On September 27, 2001, Debtors filed this chapter 13 case. On April 25, 2002, this Court issued an order confirming their chapter 13 plan. Their plan was modified, by order of this Court, on May 3, 2002. On January 4, 2006, R. Clifton Caughron (“Caughron”), Debtors’ attorney, of Helena, Montana, filed an application for compensation requesting $2,442.17 for fees and $384.89 in costs. Robert G. Drummond, chapter 13 trustee (“trustee”), of Great Falls, Montana, filed an objection on January 11, 2006, and requested a hearing for February 7, 2006.� The United States Trustee has not filed any response to the application for fees and costs. On February 3, 2006, trustee filed a notice of completion of plan payments and the Court issued an order discharging debtor after completion of Debtors’ plan. On February 6, 2006, Caughron filed an amended application requesting total fees in the amount of $2,204.75 and total costs in the amount of $384.89. Caughron received a retainer of $575.00 for fees and $300.00 for costs.� Caughron received, through the plan, payment for fees in the amount of $1175.00. Caughron is, through the amended application, requesting the allowance of unpaid fees in the amount of $454.75 and costs in the amount of $84.89. Trustee has disbursed all plan payments. At the hearing on February 7, 2006, and as stated in the amended fee application, Caughron states that the Debtors have no objection to the additional fees and are willing to pay the additional amounts not paid through the plan if allowed by the Court.

PDF Version

 

Nunn - Chapter 13 - Marshalling Assets - January 20, 2006

Case No. 05-60354-13

In this Chapter 13 bankruptcy, after due notice, a hearing was held January 10, 2006, in Butte on: (1) Debtors’ “Motion for Approval of Distribution of Proceeds from Sale of 8 Acres” (Dkt. 117) filed December 1, 2005, as superseded by Debtors’ “Amended Motion for Approval of Distribution of Proceeds from Sale of 8 Acres” filed December 29, 2005 (Dkt. 150), together with the consents thereto filed by Mountain West Bank on December 5, 2005 (Dkt. 120), and January 4, 2006 (Dkt. 157), and the Small Business Administration on December 20, 2005 (Dkt. 131), and the objections thereto filed by Wells Fargo Bank, N.A. on December 11, 2005 (Dkt. 124),1 and January 9, 2006 (Dkt. 169), and the Chapter 13 Trustee on December 29, 2005 (Dkt. Mountain West Bank filed a “Response to Wells Fargo Objection to Nunn Motion for Distribution of Proceeds of Sale of 8 Acre Lot” on December 15, 2005, at docket entry 126.� Additionally, the Small Business Administration filed a “Response to Wells Fargo Objection to Distribution” on December 19, 2005, at docket entry 131 and Debtors filed a “Response to Wells Fargo’s Objection to Motion for Approval of Distribution of Proceeds from Sale of 8 Acres” on December 20, 2005, at docket entries 135 and 141. 147); and (2) the “Motion to Approve Sale of Silos Inn Held December 15, 2005" (Dkt. 130) filed by attorney Lewis K. Smith on behalf of Debtors on December 20, 2005, together with the objections thereto filed by attorney Gregory W. Duncan on behalf of Debtors (Dkt. 137 and 140), Mountain West Bank (Dkt.142) on December 22, 2005, and the Chapter 13 Trustee on December 29, 2005 (Dkt. 148), and the “Response Supporting Motion to Approve Sale of Silos” filed by Gateway Economic Development Corporation on December 30, 2005 (Dkt. 156), and the “Response Supporting Motion to Approve Sale of Silos” filed by Lewis Reeves on January 5, 2006 (Dkt. 161). The Chapter 13 Trustee, Robert G. Drummond, appeared at the hearing; Debtors were represented by Gregory W. Duncan and Lewis K. Smith; Mountain West Bank was represented by Jonathan Motl; Gateway Economic Development Corporation was represented by Dale Reagor; Wells Fargo Bank, N.A. was represented by John Grant; Lewis Reeves was represented by James Screnar; and the Small Business Administration was represented by Michael Bayuk. The Court heard testimony from attorney Lewis K. Smith, debtor Ernest Nunn, James Campbell and Robin Notnagle. Debtors Exhibits 1 through 6, Mountain West Bank’s Exhibit A, and Wells Fargo Bank, N.A.’s Exhibits 1 and 2 were admitted into evidence without objection. At the conclusion of the hearing, the Court took both matters under advisement. This Memorandum of Decision sets forth the Court’s findings of fact and conclusions of law

PDF Version

 

Renville - Chapter 7 - Student Loan Discharge - Adversary - January 5, 2006

Case No. 04-61899-7

The Debtor/Plaintiff, Roger J. Renville (“Roger”), filed a Complaint on September 20, 2004, seeking a discharge of his student loans under 11 U.S.C. § 523(a)(8). Educational Credit Management Corporation (“ECMC”), as assignee and successor in interest to the Montana Guaranteed Student Loan Program and assignee of fifteen of Roger’s student loans filed an Answer to Roger’s Complaint on October 6, 2004. Yale University filed an Answer to Roger’s Complaint on October 12, 2004, and Roger and Yale University agreed during the trial that Yale University is owed $11,100.99 plus an additional $1,883.50 in attorney’s fees and costs. Due to a service error by Roger, the United States, Department of Education (“DOE”) was not served with a Summons and a copy of Roger’s Complaint until sometime after November 9, 2004. The DOE filed an Answer to Roger’s Complaint on December 10, 2004.

Following a scheduling conference held October 27, 2004, trial in this matter was originally scheduled to commence on March 29, 2005. However, ECMC filed an “Unopposed Motion to Modify Scheduling Order and to Continue Trial Date” on February 11, 2005.� ECMC’s Motion was granted and pursuant to an Order entered February 14, 2005, the trial in this matter was continued to June 21, 2005. Subsequently, on April 14, 2005, the Court entered an Order staying the modified scheduling order, and the deadlines set forth therein, for a period of 30 days to allow the parties an opportunity to conclude settlement negotiations. Settlement negotiations were not successful and consequently, the Court entered yet another Order on June 1, 2005, resetting the matter for trial on October 25, 2005.�

Prior to trial, ECMC filed a Motion in Limine and following a hearing on October 20, 2005, the Court entered an Order granting ECMC’s Motion in Limine, prohibiting testimony from undisclosed witnesses, whether fact witness or expert witness (including any and all treating physicians and physical therapists or other medical professionals) and introduction of documents not produced in discovery; and prohibiting Roger, or any other lay person, from giving or eliciting from any lay witness any medical, psychiatric, or psychological testimony regarding Roger’s diagnosis, prognosis, or significance of Roger’s medical, psychiatric, or psychological conditions, or arguing, stating, speculating or suggesting that any such condition affects Roger’s ability to work or impairs or diminishes his employability.

PDF Version

 

Stearns - Chapter 13 - 46th Day Dismissal - Section 521 - February 23, 2006

Case No. 05-65451-13

In this Chapter 13 case the Trustee, Robert G. Drummond, of Great Falls, Montana, filed on February 21, 2006, objections to confirmation of Debtors’ Chapter 13 Plan and a Report stating that Debtors have failed to fulfill their duties under 11 U.S.C. § 521(a)(1)(B)(iv) by failing to file copies of all payment advices or other evidence of payment received by the Debtors within 60 days before the date of the filing of the petition as added by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”). The Trustee requests in his objection that the case be dismissed. Debtors are represented by R. Clifton Caughron, of Helena, Montana. This is a case of first impression construing new provisions added by BAPCPA – § 521(a)(1)(B)(iv) and § 521(i). Section 521(a)(1)(B)(iv) states that the “debtor shall file – .... (iv) copies of all payment advices or other evidence of payment received within 60 days before the date of the filing of the petition, by the debtor from any employer of the debtor”. Debtors’ Schedule I shows that both Debtors are employed – by Tyler & Hoenning Motors and Beaverhead County, respectively.Review of the case docket confirms the Trustee’s contention that Debtors have failed to file payment advices or other evidence of payment from their employers.

PDF Version

 

Watson - Motion to Convert Granted - March 22, 2006

Case No. 04-62118-13

In this Chapter 13 bankruptcy, after due notice, a hearing was held March 21, 2006, in Billings on the Trustee’s Motion to Convert filed February 21, 2006, together with Debtor’s opposition thereto. The Chapter 13 Trustee, Robert G. Drummond, appeared at the hearing in support of his Motion. Debtor was represented at the hearing by his counsel of record, Martha Carlson McCormack. Additionally, Debtor and Roger D. Johnston of Billings Real Estate Professionals testified and the Trustee’s Exhibits A through I were admitted into evidence without objection.

The Trustee seeks conversion of this case to Chapter 7 of the Bankruptcy Code arguing that Debtor is in default under the terms of his Plan; that Debtor has failed to utilize his bank account for all of his receipts and expenses related to his business, despite a directive by this Court to do so; and that Debtor is proceeding in bad faith. The facts associated with case are straight forward and are not in dispute

PDF Version

 

 

2016

2015

2014

2013

2012

2011

2010

2009

2008

2007

2006

2005

2004

2003

2002

2001

2000

Home

 

 

©copyright 2012 Montana Bankruptcy Reporter

Site is created and maintained by Frictionless Software Contact Webmaster