2007 Decisions

 

Agrisystems Inc.-Agri Systems Inc. v. Hartford Insurance - Motion to Dismiss - October 18, 2007

Case No. 04-60069-11

In this Adversary Proceeding, after due notice, a hearing was held August 30, 2007, in Billings on the Motion to Dismiss filed on June 11, 2007, by Hartford Insurance Group, Hartford Fire Insurance Company, Hartford Specialty Company and Twin City Fire Insurance Company (collectively referred to as “Hartford”), together with the Debtor/Plaintiff’s objection thereto. Hartford was represented at the hearing by attorney Doug James of Billings, Montana and the Debtor was represented at the hearing by attorney Jon E. Doak, also of Billings, Montana. At the

hearing, attorneys James and Doak made arguments to the Court, but the Court did not hear any testimony from witnesses and no exhibits were offered into evidence. This memorandum contains the Court’s findings of fact and conclusions of law.

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Boland v. Crum - Application for Fees - May 7, 2007

Case No. 00-12915-7

Before the Court in this Adversary Proceeding are the “Plaintiff’s Application for Professional Fees and Costs” filed by attorney Jon E. Doak (“Doak”) on January 24, 2007, and the “Final Application for Professional Fees and Costs” filed on March 14, 2007, by attorney Steven M. Johnson (“Johnson”), who is counsel for the Defendant Trustees, Darcy M. Crum, Joseph V. Womack, Richard J. Samson, William M. Kebe, Jr., Ross P. Richardson, Gary S. Deschenes, Donald W. Torgenrud, Jr., and Robert G. Drummond. �

Procedurally, this Adversary Proceeding was commenced on December 5, 2006, when the Plaintiff filed a Complaint in Interpleader. The following day, the Plaintiff filed an Amended Complaint in Interpleader. Plaintiff, Thomas E. Boland, was Class Counsel in a class action lawsuit captioned Wombold v. Associates Fin. Services Co. of Montana, Inc. et al., Case No. BVD 00-888, which was filed on or about October 2, 2000, in the Montana Eighth Judicial District Court, Cascade County (hereinafter, “the Wombold Class Action”). Defendants Darcy M. Crum, Joseph V. Womack, Richard J. Samson, Ross P. Richardson, William M. Kebe, Jr., Gary S. Deschenes, and Donald W. Torgenrud, Jr. are each Chapter 7 Panel Trustees in the District of Montana; and Defendant Robert G. Drummond is the Standing Chapter 13 Trustee for the District. Such Defendants, hereinafter referenced collectively as “the Trustees”, are the Trustees in certain Chapter 7 and Chapter 13 bankruptcy cases filed in the District of Montana.
 

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Boland v. Crum-Interpleader - Class Action - March 5, 2007

Case No. 00-12915-7

Before the Court in this Adversary Proceeding is the “Motion for Summary Judgment and Interpleader Award of Entire Wombold Settlement Proceeds to Bankruptcy Estates” filed on January 29, 2007, by counsel for the Defendant/Trustees, Darcy M. Crum, Joseph V. Womack, Richard J. Samson, William M. Kebe, Jr., Ross P. Richardson, Gary S. Deschenes, and Donald W. Torgenrud, Jr. This Adversary Proceeding was commenced on December 5, 2006, when the Plaintiff filed a Complaint in Interpleader. The following day, the Plaintiff filed an Amended Complaint in Interpleader. Plaintiff was Class Counsel in a class action lawsuit captioned Wombold v. Associates Financial Services Company of Montana, Inc. et al., Case No. BVD 00-888, which was filed on or about October 2, 2000, in the Montana Eighth Judicial District Court, Cascade County (hereinafter, “the Wombold Class Action”). Defendants Darcy M. Crum, Joseph V. Womack, Richard J. Samson, Ross P. Richardson, William M. Kebe, Jr., Gary S. Deschenes, and Donald W. Torgenrud, Jr. are each Chapter 7 Panel Trustees in the District of Montana; and Defendant Robert G. Drummond is the Standing Chapter 13 Trustee for the District. Such Defendants, hereinafter referenced collectively as “the Trustees”, are the Trustees in certain Chapter 7 and Chapter 13 bankruptcy cases filed in the District of Montana.

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Brenden Retz-Abbey v. Retz - Motion to Amend - November 16, 2007

Case No. 04-60302-7

Pending in this adversary proceeding is the Debtor/Defendant Brendon Keith Retz’s motion to alter or amend judgment (Docket no. 170) filed on September 14, 2007, together with a supporting memorandum (Docket No. 171). Plaintiff Donald G. Abbey filed an objection, and the matter was set for hearing after notice on November 13, 2007. Defendant was represented at the hearing by attorney Ward E. Taleff of Great Falls, Montana. Plaintiff was represented by attorneys Edward A. Murphy and Michael Black, of Missoula, Montana. Counsel for both sides consented to submit Defendant’s motion to alter or amend judgment on the briefs, no further evidence was offered and the Court took Defendant’s motion under advisement. After review of Defendant’s motion and memorandum and Plaintiff’s response, the Court deems this matter ready for decision. For the reasons set forth below Defendant’s motion to alter or amend is denied.

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Brenden Retz-Abbey v. Retz - Opinion - September 6, 2007

Case No. 04-60302-7

In this adversary proceeding Plaintiff Donald G. Abbey (“Abbey”) seeks denial of Defendant/Debtor Brendon Keith Retz’s (“Brendon”) discharge under 11 U.S.C. §§ 727(a)(2)(A) and (B), 727(a)(4)(A) and 727(a)(5). Brendon opposes Abbey’s allegations and seeks discharge of his debts, contending that he lacked fraudulent intent and corrected his Schedules and Statements informally at the 11 U.S.C. § 341(a) creditors’ meeting. After trial of this cause and review of the parties’ briefs and applicable law, this matter is ready for decision. For the reasons set forth below, a separate judgment shall be entered for the Plaintiff and against the Defendant denying Brendon’s discharge under §§ 727(a)(2)(A) and (B), 727(a)(4)(A) and 727(a)(5).

The agreed Pretrial Order submitted by the parties on November 20, 2006, was approved by the Court. It provides that this Court has jurisdiction of this cause under 28 U.S.C. § 1334, and that this is a core proceeding under 28 U.S.C. § 157(b)(2)(J). This Memorandum of Decision includes the Court’s findings of fact and conclusions of law pursuant to F.R.B.P. 7052.

Trial of this adversary proceeding was held at Missoula on April 10 and 11, 2007, and on June 1, 4 and 5, 2007. Abbey appeared and testified, represented by attorneys Edward A. Murphy (“Murphy”) of Missoula, Montana, and Michael G. Black (“Black”) of Missoula. Brendon appeared and testified, represented by attorneys Ward E. Taleff (“Taleff”) of Great Falls, Montana, and Harold V. Dye (“Dye”) of Missoula who also testified. Other witnesses testifying included: Trustee Richard J. Samson (“Samson”), appraiser Martha Noel (“Noel”), Rodney D. Stell (“Stell”), Brendon’s spouse Misty Retz (“Misty”), Brendon’s brothers Eric Retz (“Eric”) and Ryan Retz (“Ryan”), Ryan’s spouse Angela Rae Retz (“Angie”), Joe Bilau (“Bilau”), Riley McGiboney (“Riley”), accountant David J. Schultz (“Schultz”), William Matteson (“Matteson”), and Brendon’s attorney Bruce Measure (“Measure”). Several exhibits (“Ex.”) of both parties were admitted into evidence1. At the conclusion of the parties’ cases-in-chief the Court granted the parties time to file briefs, which have been filed and reviewed by the Court together with the record and applicable law. This matter is ready for decision.

1The following exhibits were admitted: Plaintiff’s Ex. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 41A, 42, 43, 44, 45, 50, 51, 52, 54, 55, 56, 57, 58, 59, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 72, 73, 74, 75, 76, 77, 78, 78, 80, 81, 83, 86, 87, 91, 93, 95, 96, 101, 102, 103, 104, 105, 106, 107, 111, 112, 113, 114, 116, 117, 118, 119, and 120; and Defendant’s Ex. A, B, E, I, J, K, L, M, P, Q, S, T, V, W, X, Y, Z, AA, BB, CC, FF, II, MM, NN, OO, PP, QQ, WW, YY, ZZ, CCC, FFF, JJJ, MMM, OOO, PPP, QQQ, and RRR.

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Brenden Retz-Abbey v. Retz - Summary of Judgment - March 21, 2007

Case No. 04-60302-7

Plaintiff, Donald G. Abbey (“Abbey”), through his attorneys, Edward A. Murphy and Michael G. Black, both of Missoula, Montana, initiated this adversary proceeding against Defendant Brendon Keith Retz (“Retz”) on March 8, 2005. On September 19, 2005, after several contested motions and amended pleadings, Abbey filed an amended complaint, doc. no. 30.� Retz, through his attorney, Harold V. Dye (“Dye”), of Missoula, Montana, filed an answer, doc. no. 31, on September 19, 2005. The Court conducted a pretrial scheduling conference on October 19, 2005, and scheduled a trial in this proceeding for June 26, 2006. Abbey filed a motion for leave to file a second amended complaint, doc. no. 36, on December 1, 2005, the Court granted on December 15, 2005. Retz filed an answer, doc. no. 38, on December 19, 2005.� Upon motion, the Court vacated the trial setting for June 26, 2006, by Order filed February 17, 2006, without date. The Court conducted an additional pretrial scheduling conference on August 30, 2006, and set this proceeding for trial on April 10, 2007.

Abbey filed a motion for partial summary judgment, doc. nos. 61, 62, 63 and 64, as to Count Nine of the second amended complaint (“complaint”), doc. no. 36, on February 16, 2007, on the basis of 11 U.S.C. § 727(a)(4). The Court, by Orders, amended the pretrial scheduling order on February 23, 2007, doc. no. 74, and on March 9, 2007, doc. no. 92.

Retz filed an Objection, doc. no. 79, which actually is entitled “Objection to Declaration in Support of Motion for Summary Judgment and Motion to Strike. Given the partially incomplete docket entry, the Court was not aware of Retz’s motion to strike. Retz also filed a response, doc. nos. 80, 81, 82 [misidentified in docket entry as a Statement of Facts, when actually the document is entitled Statement of Genuine Issues], 86, 87 and 88, to Abbey’s motion for partial summary judgment on February 28, 2007. Abbey on March 6, 2007, filed a reply, doc. no. 84, to Retz’s response to Abbey’s motion for partial summary judgment. On March 7, 2007, Retz docketed an opposition brief, doc. no. 88, by using an incorrect docket text, which actually involved an objection to new matter in reply brief; a motion to strike and motion for leave to file affidavit, and set the matter for hearing on March 8, 2007. Dye’s docket entry for doc. no. 88, “Opposition Brief,” was completely inaccurate and misleading and in fact did not bring to the attention of this Court the complete purpose of doc. no. 88, which was entitled “Objection to New Matter in Reply Brief; Motion to Strike and Motion for Leave to File Affidavit.”� Furthermore, as the docket entry was inaccurate and did not contain any hearing information, such entry did not appear on any Court calendar. Counsel has the obligation to use the proper docket events and codes to insure that negative notice and hearing information are properly identified on the docket entry. As the Affidavit, doc. no. 86, and Declaration, doc. no. 87, have been filed, the Court grants Retz leave to file the same; however, the motion to strike is denied, as moot, given the decision contained herein. The Court finds such inaccurate docketing by Retz’s attorney, Dye, unacceptable. If such inaccurate docketing by Dye in this proceeding or in any other case or proceeding continues without seeking further training from the Clerk’s Office, this Court shall consider more serious sanctions, after notice and hearing, that could include being prohibited from using the Court’s CM/ECF system [which would also prohibit filing by mail].

The Court conducted a brief hearing on the motion for partial summary judgment on March 8, 2007, and took the motion under advisement. The Court has reviewed the motion and related pleadings filed by Abbey and the response and related pleadings filed by Dye, on behalf of Retz; this matter is ready for a decision. This memorandum contains the Court’s findings of fact and conclusions of law.

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Brenden Retz-Samson v. Retz - Summary Judgment -March 21, 2007

Case No. 04-60302-7

Plaintiff, Richard J. Samson (“Samson”), of Missoula, Montana, as a Chapter 7 trustee, initiated this adversary proceeding against Defendant Brendon Keith Retz (“Retz”) on March 7, 2005. By several stipulations filed and approved by the Court, the parties stipulated that Retz would not be required to file an answer until June 30,2006. Retz filed an answer on June 30, 2006. The Court conducted a pretrial scheduling conference on August 8, 2006, and scheduled a trial in this proceeding for January 26, 2007. The Court approved a stipulation allowing the parties until January 9, 2007, to file pretrial motions. Samson filed a motion for partial summary judgment as to Counts I and II of the complaint on January 9, 2007, solely on the basis of 11 U.S.C. § 727(a)(4), even though Samson alleges that discharge should be denied in these two counts on the basis of 11 U.S.C. §§ 727(a)(2) and (4). Based upon a consensual motion, the Court amended the pretrial scheduling order and rescheduled several deadlines contained in the pretrial scheduling order and rescheduled the trial for March 27, 2007. Retz filed a response to Samson’s motion for partial summary judgment on January 22, 2007 and requested more time to file his brief in opposition to Samson’s motion for partial summary judgment. The Court grant the motion to extend Retz’s briefing schedule. On February 21, 2007, Retz again filed a response to Samson’s motion together with a statement of genuine issues of fact, affidavits and a brief.� Samson filed a reply to Retz’s response. The Court conducted a brief hearing on the motion for partial summary judgment on March 8, 2007, and took the motion under advisement. The Court has reviewed the motion and related pleadings filed by Samson and the response and related pleadings filed by Dye; this matter is ready for a decision. This memorandum contains the Court’s findings of fact and conclusions of law.

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Buttinsky-Smith v. Buttinsky - Alimony Arrearage - Nondischargable Fees - January 23, 2007

Case No. 05-64866-7

In this adversary proceeding Plaintiff Lynn Smith (“Smith”) seeks exception from the discharge of her former spouse, Defendant/Debtor Victor N. Bunitsky, Jr. (“Bunitsky”), for her claim under 11 U.S.C. § 523(a)(5) as alimony, maintenance or support in connection with their divorce decree, separation agreement and settlement, plus attorney’s fees and costs. After due notice trial of this cause was held at Missoula after due notice on October 5, 2006. The Plaintiff appeared and testified, represented by attorney Nikolaos G. Geranios (“Geranios”) of Missoula, Montana. The Defendant appeared and testified, represented by attorney Edward A. Murphy (“Murphy”) of Missoula, Montana. All of the parties’ exhibits were admitted into evidence by stipulation, including Plaintiff’s Exhibits (“Ex.”) A, B, C, D, E and Defendant’s Ex. A, B, C, D, and E.1 At the conclusion of the parties’ cases-in-chief the Court granted the parties time to file briefs, which have been submitted and reviewed by the Court together with the record and applicable law. This matter is ready for decision.

The parties agree this Court has jurisdiction of this adversary proceeding under 11 U.S.C. § 1334. This is a core proceeding to determine dischargeability of a debt under 28 U.S.C. § 157(b)(2)(I). At issue is whether Smith’s claim against Bunitsky arising from their divorce is in the nature of alimony, maintenance or support subject to exception from Bunitsky’s discharge under 11 U.S.C. § 523(a)(5), or whether the claim was satisfied or discharged. For the reasons set forth below Judgment will be entered against Bunitsky excepting Smith’s claim from the Defendant’s discharge under § 523(a)(5), and awarding Smith her attorney’s fees and costs. This Memorandum of Decision includes the Court’s findings of fact and conclusions of law pursuant to F.R.B.P. 7052 (incorporating Fed. R. Civ. P. 52 in adversary proceedings).

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Card Wilson Scotch Mountain Angus - Confirmation of Plan - November 7, 2007

Case No. 05-65161-12

After due notice the Court held a hearing on confirmation of Debtors’ Chapter 12 Plan in the above-captioned jointly administered cases, after due notice, at Missoula on August 30, 2007, along with a hearing on the motion for adequate protection (Docket No. 279) filed by secured creditor Paul E. Harper Revocable Trust (“Harper Trust”), which also filed objections to confirmation. Debtors filed a Sixth Amended Chapter 12 Plan on July 26, 2007, (Docket No. 293) and were represented by attorney Gary S. Deschenes (“Deschenes”) of Great Falls, Montana. Debtor Jeffery Paul Wilson (“Jeffery”) testified, and the attachments1 to Debtors’ Sixth Amended Plan were admitted into evidence as Exhibit (“Ex.”) 1 without objection. Consisting of eight (8) pages at Docket No. 293. 1 Harper Trust was represented at the hearing by attorney Harold V. Dye (“Dye”) of Missoula, Montana. The Court denied Harper Trust’s request for judicial notice of Paul Harper’s testimony of the amount of Harper Trust’s attorney and expert witness fees and costs, as set forth in its Order entered on (Docket No. 316)2. Creditor AG Sales, which had filed objections to confirmation of Debtors’ prior plans, did not file a further objection and did not appear3. The Chapter 12 Trustee James Volk (“Volk”) appeared and voiced his strong support in favor of confirmation. With the agreement of counsel the Court stated that all prior testimony and exhibits from the hearings held in this case on September 21-22, 2006, October 31, 2006, and May 10, 2007, are part of the record.

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Card Wilson Scotch Mountain Angus - Objection of Claim - March 13, 2007

Case No. 05-65161-12

On December 21, 2006, Debtor Wilson Scotch Mountain Angus, LLC (“Wilson Scotch”), through its attorney, Gary S. Deschenes (“Deschenes”), of Great Falls, Montana, filed an objection to the seconded amended proof of claim no. 1-3, filed on December 13, 2006, by Paul E. Harper Revocable Trust (“Harper Trust”) in Debtor’s case. Harper Trust, through its attorney, Harold V. Dye (“Dye”), filed a response on January 2, 2007, and requested a hearing for February 8, 2007, in Missoula. Prior to the hearing Debtor requested the Court to take judicial notice of “Valley Bank's Statement of Estimated Post-petition Attorneys Fees and Costs filed on September 29, 2006, Docket number 129, Estimated Fees and Expenses for Counsel filed by Missoula Federal Credit Union on September 29, 2006, Docket number 130, and Ag Sales Estimate of Fees and Costs filed on October 3, 2006, Docket number 131.” The Court granted in part and denied in part Debtor’s request for judicial notice by noting that it would judicially notice that such fee statements were filed and would consider at the time of hearing any additional request for judicial notice as to any evidentiary or judicial findings involving such fees statements. Except for taking judicial notice that such fee statements were filed, the Court will not take any further judicial notice of such statements as no witnesses testified concerning the charges contained in such statements. The Court conducted the hearing on February 8, 2007.� The parties and their attorneys were present. Deschenes call Dye as a witness. Debtor’s Exhibit 11 was admitted and Harper Trust’s Exhibit (“Ex.”) 1 was admitted. Dye call Jon R. Binney (“Binney”) as an expert witness. At the Court’s request, Dye filed on February 23, 2007, a revised fee statement, breaking out any “lumped time” exceeding one hour contained in Harper Trust’s Ex. 1. The matter is ready for a decision. This memorandum contains the Court’s findings of fact and conclusions of law.

In the addendum to the second amendment to proof of claim 1 [“1-3"], Harper Trust states that “attorneys fees and costs to 5/24/2006" amount to $11,849.27. Wilson Scotch objects on the basis that no accounting of the fees and costs have been submitted to Wilson Scotch or its attorney. Wilson Scotch further objects by stating, without an accounting, Debtors can only suspect that these fees were incurred during the individuals’ bankruptcy in which Harper Trust was only a creditor by the guaranty of the individuals. In fact, prior to February, 2006, there had not even been a default under the Contract for Deed and no attorneys fees should have been incurred. Any attorneys fees incurred between February and May in the Debtor’s Exhibit 1 is an itemization of fees and costs incurred by Harper Trust for Dye’s services that Dye submitted to Deschenes for review. However, by the testimony of Dye and Binney, Dye informed the Court that Debtor’s Exhibit 1 contained billing information for unrelated cases. Consequently, the Court with verification from Dye and Deschenes informed the parties that it would consider Harper Trust’s Exhibit 1 as the more accurate exhibit and the exhibit that would be used for purposes of determining the fees that would be allowed in this contested matter. individuals’ bankruptcy would not be appropriate reasonable attorneys fees due to the frivolous filings of Harper Trust and the unnecessary expenses incurred by Harper Trust.

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Chabot-Chabot v. Washington Mutual - Judgment - May 10, 2007

Case No. 05-62798-7

Pending in this adversary proceeding is the Defendant Washington Mutual Bank’s (“WaMu”) motion for summary judgment, filed on February 5, 2007, and Plaintiff/Debtor Theresa A. Chabot’s (“Chabot”) objection. Also pending is WaMu’s amended motion for relief from the automatic stay and for in rem relief filed in the above-captioned Chapter 7 case on October 24, 2005, and Chabot’s objection thereto, which were consolidated with this adversary proceeding. The parties have filed briefs on WaMu’s motion for summary judgment which have been reviewed by the Court, together with the record and applicable law. This matter is ready for submission. For the reasons set forth below WaMu’s motion for summary judgment is granted in part and the Court will submit proposed findings of fact and conclusion of law to the district court recommending that Counts Two, Three, Four, Five, Six, Seven, Eight, and Nine of Chabot’s complaint be dismissed with prejudice and that Count One of the complaint be dismissed without prejudice. WaMu’s motion for relief from the automatic stay will be granted in part as the stay is terminated, and the hearing will proceed as scheduled commencing on May 30, 2007, on WaMu’s motion for in rem relief.

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Chavez - Chapter 13 Confirmation - Good Faith - October 11, 2007

Case No. 07-60567-13

In this Chapter 13 bankruptcy, after due notice, a hearing was held August 30, 2007, in Billings on confirmation of Debtors’ Amended Chapter 13 Plan filed August 30, 2007. The Chapter 13 Trustee, Robert G. Drummond of Great Falls, Montana, appeared at the hearing in opposition to confirmation of Debtors’ Chapter 13 plan, while Debtors’ attorney of record, Craig D. Martinson of Billings, Montana, appeared in support of confirmation of Debtors’ Chapter 13 plan. Debtor Jerry Chavez (“Jerry”) testified in support of Debtors’ Chapter 13 Plan and Debtors’ Exhibits B and C were admitted into evidence.

At the hearing, Debtors’ counsel referred to an amended Chapter 13 plan that called for monthly payments of $550.00. Debtors’ Amended Chapter 13 Plan filed August 30, 2007, only provides for monthly payments of $500.00. Following the hearing, Debtors’ counsel filed a Second Amended Chapter 13 Plan on August 31, 2007, which Plan provides for the monthly payments of $550.00 referenced by Debtors’ counsel. The post-hearing briefs filed by the Trustee and Debtors address Debtors’ Second Amended Chapter 13 Plan, and thus, this Memorandum of Decision will address confirmation of such Plan, rather than Debtors’ Amended Chapter 13 Plan filed August 30, 2007.

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Clouser - Motion to Modify Plan - Valuation - October 9, 2007

Case No. 06-60894-13

In this Chapter 13 bankruptcy, after due notice, a hearing was held August 16, 2007, in Missoula on Debtors’ Motion to Modify Chapter 13 Plan filed on June 27, 2007, together with the Trustee’s objection thereto filed July 9, 2007. Attorney Edward A. Murphy of Missoula, Montana appeared at the hearing on behalf of the Debtors and in support of Debtors’ Motion.� The Chapter 13 Trustee, Robert G. Drummond of Great Falls, Montana, also appeared at the hearing, but in opposition to Debtors’ Motion. At the conclusion of the August 16, 2007, hearing, the Court granted the Trustee ten days to file a brief in support of his position and granted Debtors five days thereafter to file a response. The Trustee and Debtors have filed their briefs and the matter is now ready for decision.

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Counts - Confirmation - Valuation - September 6, 2007

Case No. 07-60542-13

In this Chapter 13 bankruptcy, after due notice, a hearing was held August 14, 2007, in Butte on confirmation of Debtors’ First Amended Chapter 13 Plan filed August 8, 2007, and on Debtors’ Motion for Valuation of Security filed July 19, 2007. The Chapter 13 Trustee, Robert G. Drummond of Great Falls, Montana appeared at the hearing, along with attorney Richard A. Ramler of Belgrade, Montana, who appeared on behalf of the Debtors, and attorney Jon R. Binney of Missoula, Montana, who appeared on behalf of Capital One Auto Finance (“Capital One”).� Debtor Terry Lynn Counts testified and Debtors’ Exhibits 3, 4 and 5 were admitted into evidence without objection.

This Court has jurisdiction over the above matters pursuant to 28 U.S.C. §§ 157 and 1334.� This is a core proceeding under 28 U.S.C. § 157(b)(2)(B) and (L). For the reasons stated in this Memorandum of Decision, the Court sets the value of Debtors’ 2001 Dodge at $9,500.00, denies confirmation of Debtors’ First Amended Chapter 13 Plan and grants Debtors time to file a further amended Chapter 13 plan consistent with this Memorandum of Decision.

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Crabtree - Chapter 13 Confirmation - Disposable Income - October 12, 2007

Case No. 07-60543-13

In this Chapter 13 bankruptcy, after due notice, a hearing was held August 30, 2007, in Billings on confirmation of Debtors’ Chapter 13 Plan dated May 10, 2007. The Chapter 13 Trustee, Robert G. Drummond of Great Falls, Montana, appeared at the hearing in opposition to confirmation of Debtors’ Chapter 13 plan, while Debtors’ attorney of record, Craig D. Martinson of Billings, Montana, appeared in support of confirmation of Debtors’ Chapter 13 plan. Debtor David Allan Crabtree (“David”) testified in support of Debtors’ Chapter 13 Plan and Debtors’ Exhibit A was admitted into evidence without objection. This memorandum contains the Court’s findings of fact and conclusions of law.

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Darby Lumber - Objections to Claim - August 2, 2007

Case No. 02-30483-7

On March 8, 2007, the Chapter 7 trustee, Donald W. Torgenrud, Jr. (“Torgenrud”), of Saint Ignatius, Montana, filed an objection to proofs of claim no. 7, filed by Wayne Buhler, Michael Steele, and Michael Miller, and 14, filed by Sharon Childress and several other creditors, with notice. The Court set Torgenrud’s objection for hearing on April 2, 2007, in Missoula.

Milodragovich, Dale, Steinbrenner & Nygren, P.C., of Missoula, Montana (“MDSN”), filed proofs of claim nos. 7 and 14, and any amendments thereto, on behalf of the respective creditors. G. Patrick HagEstad, of Milodgragovich, Dale, Steinbrenner & Nygren, P.C., filed a response to Torgenrud’s objection. No other party in interest filed a response and requested a hearing. At the time of the hearing Exhibits (“Ex.”) D, A1, B1 and B2 were offered and admitted. The Court further took judicial notice of the proofs of claim nos. 7 and 14, and any amendments thereto and the global settlement agreement. Torgenrud was called as a witness and testified. Lon Dale of MDSN argued on behalf of the creditors; Torgenrud argued in support of his objection. At the conclusion of the hearing, the Court provided the creditors fifteen days to file an additional brief. Torgenrud elected not to file any brief. The additional brief has been filed.

After the Court’s initial review of this contested matter, the Court on its own motion reopened the record on May 16, 2007, subject to objection, for MDSN to file a copy of its contingency fee agreement as an exhibit on or before May 25, 2007, with any interested party having the right to file a response and request a hearing on the Court’s reopening the record and allowing an exhibit to be filed. Torgenrud filed a response on May 30, 2007, and informed the Court he had no objection to the Court reopening the record or allowing the filing of the contingency fee agreement. On May 25, 2007 MDSN filed an affidavit through Lon J. Dale and attached three exhibits marked as Exhibits (“Ex.”) A, B and C. Ex. A is an hourly fee agreement.� Ex. B is letter disclosing that the hourly fee arrangement was converted to a forty percent contingency agreement. Ex. C, identical to Ex. B1, is Chief Judge Molloy’s Order awarding attorneys’ fees to MDSN using a lodestar method. Ex. A and B are admitted without objection.

This contested matter is ready for a decision. This memorandum contains the Court’s findings of fact and conclusions of law.

This contested matter is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(B).

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Dason-Samson v. Dason - Summary Judgment - September 28, 2007

Case No. 06-60947-7

This adversary proceeding was removed to this Court by Notice of Removal filed on March 29, 2007, by Defendants Peak Development, LLP, Dave Tonjum, Nate Tonjum, Dave Waati and Matt Waati (together the “Peak Group”). Plaintiff T.E.F. filed on May 4, 2007, a motion to remand (Docket No. 15) and to allow the state district court to decide a pending motion for partial summary judgment that had been filed by T.E.F. in state court, Cause No. DV-06-065B in the Montana Eleventh Judicial District Court, Flathead County, to set aside transfers by the Debtor/Defendant Richard A. Dasen, Sr. (“Dasen”) of his 85% interest in Dasen Company corporate stock as a fraudulent transfer under Montana’s Uniform Fraudulent Transfer Act (“UFTA”), MONT. CODE ANN. (“MCA”) § 31-2-327, et seq. After a hearing the motion for remand was denied by Order entered on June 7, 2007.

The pending motion for partial summary judgment was filed in this adversary proceeding on June 18, 2007, as Docket No. 48, with 35 exhibits attached and a memorandum in support. The Trustee in the above-captioned Chapter 7 case, Richard J. Samson, filed a motion for substitution as real party in interest on June 18, 2007 (Docket No. 49), and objections thereto were resolved by stipulation. The Court set a trial date and other deadlines by Order entered on June 26, 2007 (Docket No. 53), which also allowed parties time to file responses to T.E.F.’s motion for partial summary judgment.

A brief in opposition to T.E.F.’s motion was filed on July 9, 2007, by Defendant Budget Finance (Docket No. 65), accompanied by a seventeen-page affidavit of Dennis Green, with attached exhibits (Docket No. 66). Budget Finance’s brief argues that genuine issues of fact remain as to whether reasonably equivalent value was received, whether Debtor was fulfilling his fiduciary duties as a corporate officer and director, and whether the stock was worthless or had a negative value, or was in satisfaction of Debtor’s obligation to support his spouse. T.E.F. filed a reply brief (Docket No. 67) on July 18, 2007. The Trustee filed a reply brief on July 20, 2007, in support of T.E.F.’s motion for partial summary judgment. The Court has reviewed the motion and objections, and supporting exhibits, and applicable law. The pending motion is ready for decision.

This Court has jurisdiction of this adversary proceeding under 28 U.S.C. § 1334(b). T.E.F.’s complaint to determine, avoid and recover fraudulent conveyances is a core proceeding under 28 U.S.C. § 157(b)(2)(H). At issue is whether T.E.F. satisfied its burden under FED. R. BANKR. P. 7056 (applying FED. R. CIV. P. 56(c) in adversary proceedings) of showing that there is no genuine issue of material fact and that it is entitled to summary judgment as a matter of law. After carefully considering all the alleged facts, motion, response and supporting documents in this case, the Court concludes that T.E.F. failed to satisfy its burden under Rule 56 to show an absence of genuine issues of material fact. T.E.F.’s motion for partial summary judgment under Montana’s UFTA will therefore be denied. This Memorandum of Decision sets forth the Court’s findings of fact and conclusions of law.

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Deadmond - Chapter 7 - Motion to Dismiss - February 27, 2007

Case No. 06-60512-7

In this Chapter 7 bankruptcy, after due notice, a hearing was held November 7, 2006, in Butte on the United States Trustee’s Motion to Dismiss filed September 22, 2006. The United States Trustee (“UST”) was represented at the hearing by attorney Daniel P. McKay, of Great Falls, Montana, and Debtors were represented by their attorney of record, R. Clifton Caughron, of Helena, Montana. The Court heard testimony from Lawrence C. Rezentes and Wendell A. Deadmond, Jr., and the UST’s Exhibits 1 through 4 were entered into evidence without objection.

In this case, the UST moves to dismiss arguing that Debtors’ case is a presumed abuse of Chapter 7 under 11 U.S.C. § 707(b)(2). In the alternative, the UST asks that this case be dismissed as an abuse of Chapter 7 based on the “totality of the circumstances” under § 707(b)(3). Debtors filed a response to the UST’s motion on September 26, 2006. In their response, Debtors do not dispute any of the UST’s allegations but merely set the matter for hearing. However, Debtors did file amended Form B22A’s on September 26, 2006, November 6, 2006, and December 15, 2006.1�

This Memorandum of Decision sets for the Court’s findings of fact and conclusions of law as required by Fed.R.Civ.P. 52(a), made applicable to the proceeding by Rule 7052, F.R.B.P.� The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334 and 11 U.S.C. § 707.� For the reasons discussed herein, the Court finds in favor of the Debtors.

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Decker - Chapter 13 -Secker v. Washington Mutual - Summary Judgment - Claim Preclusion - February 6, 2007

Case No. 05-64945-13

 On January 6, 2006, Plaintiffs filed an adversary proceeding complaint against the named Defendants. Defendants filed an answer, doc. no. 6 on April 5, 2006. On September 25, 2006, Plaintiffs, M. Penny Leatzow, of Kalispell, Montana, filed an amended complaint. On November 7, 2006, Defendants, represented by Charles E. Hansberry, filed a motion for summary judgment, doc. no. 33, together with a memorandum in support of their motion for summary judgment, doc. no. 34, and a statement of uncontroverted facts, doc. no. 35. The Court scheduled a trial in this proceeding on March 12, 2007, doc. no. 18. Plaintiffs, on November 15, 2006, filed a motion, doc. no. 39, which this Court granted, doc. no. 40, to extend the time for filing a response to Defendants’ motion for summary judgment. On November 27, 2006, Plaintiffs filed their response to the motion for summary judgment, doc. no. 45, which unnecessarily also includes a motion to dismiss Defendants’ motion for summary judgment. On December 4, 2006, Defendants filed a reply to Plaintiffs’ response. On December 7, 2006, the parties filed a stipulation, doc. no. 49, identifying responsible parties on various counts contained in Plaintiffs’ amended complaint if the Court enters judgment against the Defendants. The Court approved the stipulation by order, doc. no. 51, on December 8, 2006.

Plaintiffs filed on October 14, 2005, Washington Mutual Bank, N.A., an objection to the confirmation of Plaintiffs’ chapter 13 plan, doc. no. 18. Plaintiffs responded, doc. no. 22, that they were filing an adversary action supposedly against the objecting creditor. The Court denied confirmation of the first chapter 13 plan and sustained the objections filed by the trustee and the objecting creditor. On March 15, 2006, Plaintiffs filed an objection to the proof of claim no. 4 filed by Washington Mutual Bank, N.A. Plaintiffs filed an amended plan and Washington Mutual Bank, N.A. and the trustee filed objections to confirmation. Washington Mutual Bank, N.A. filed a response to Plaintiffs’ claim objection and set the matter for hearing. Plaintiffs filed a reply to Washington Mutual Bank, N.A.’s response. Plaintiffs filed another amended plan, which this Court confirmed after the trustee and Washington Mutual Bank, N.A. consented to the amended plan. The Court further ordered that “Debtors’ objection, filed March 15, 2006, to Washington Mutual Bank’s Proof of Claim shall be heard and determined in conjunction with trial of Adversary Proceeding No. 06/00002.” On February 5, 2007, Defendants filed a second motion for summary judgment, doc. no. 52, together with a statement of uncontroverted facts, doc. no. 53. Defendants further filed a motion to transfer jury trial to article III judge, doc. no. 54, on February 5, 2007.

The Court has reviewed the pleadings, the motion for summary judgment, the statement of uncontroverted facts and exhibits, the parties’ memorandums, the response, and the reply. The Court is now ready to issue a decision in this proceeding. This memorandum contains the Court’s findings of fact and conclusions of law.

For the reasons set forth below, the Court grants the Defendants’ motion for summary judgment.

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Decker - Credit Application for Fees - December 14, 2007

Case No. 05-64945-13

Pending in this Chapter 13 case1 Charles E. Hansberry (“Hansberry”) of Garlington, Lohn & Robinson, PLLP (“the Garlington firm”), attorneys for secured creditor Deutsche Bank National Trust Company as trustee for Long Beach Mortgage Loan Trust 2001-2 (“Deutsche Bank”), filed an Application for Professional Fees and Costs (“Application”) on June 27, 2007, (Doc. No. 98) requesting an award of attorney fees in the amount of $35,529.25 and costs in the amount of $4,582.28. Debtors filed an objection and the Application first was set for hearing at Missoula on August 16, 2007. Hansberry appeared in support of the Application and Debtors were represented by attorney R. Clifton CAughron (“Caughron”) in opposition. No testimony or exhibits were admitted. The Court granted the parties time to file additional briefs, which have this case was dismissed on October 2, 2007, when Debtors failed to file a response to the Chapter 13 Trustee’s motion to dismiss, while the instant Application was pending. The dismissal was vacated with the Trustee’s consent after hearing by Order entered on November 13, 2007, reinstating the case and Deutsche Bank’s Application.

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Featherston - Chapter 13 Confirmation - Disposable Income - September 28, 2007

Case No. 07-60296-13

The above-captioned Chapter 13 bankruptcy cases have been consolidated for a decision regarding the Chapter 13 Trustee’s objections to confirmation of their respective Chapter 13 Plans on the grounds they fail to satisfy the “disposable income” requirement of 11 U.S.C. § 1325(b) by deducting expenses from the proceeds from liquidation of business assets, and in Case No. 06-60296-13 deducting proceeds from the sale of United States Treasury Strips, discontinued income from cattle sales, and money given to their adult child for college expenses, from their disposable income. Both matters have been heard and briefs have been submitted, and they are ready for decision. For the reasons set forth below, the Trustee’s disposable income objection to confirmation in Case No. 07-60441-13 will be overruled and Glikos’ Chapter 13 Plan filed on May 9, 2007, confirmed. The Trustee’s objection in Case No. 07-60296-13 will be sustained with respect to the college expenses for their adult child and deduction of discontinued cattle income from their disposable income, but otherwise overruled with respect to the U.S. Treasury Strips and cattle expenses.

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Gatzke-Gatzke v. Christian - Judgment - March 27, 2007

Case No. 06-60037-11

 Several matters are pending in the above-captioned adversary proceeding and Chapter 11 case, which were consolidated for trial held, after due notice, at Missoula, Montana, beginning on November 2, 2006, and concluding November 6, 2006. After trial and review of the parties’ briefs, the transcript and applicable law, these matters are ready for a decision. A separate Judgment and Orders shall be entered in favor of the Plaintiff Donald A. Gatzke (“Gatzke”) against the Defendants, for the reasons set forth below, in this adversary proceeding and the main Chapter 11 case: (1) awarding Gatzke the sum of $152,701.47 against Defendants James Christian (“Christian”) and Northstar Properties, L.L.C. (“Northstar Properties”) based on an accounting pursuant to their written agreement to develop a subdivision in Flathead County, Montana, knows as “Harmony Court”, plus attorney fees and costs; (2) disallowing Proof of Claim No. 11 filed by the Defendant Northstar Development of Montana, L.L.C. (“Northstar Development”) on March 31, 2006; (3) disallowing Proof of Claim No. 10 filed by Christian on March 31, 2006, in the amount of $1,101,599.37, but allowing Christian an unsecured, nonpriority claim in the amount of $5,394.37; and (4) declaring that Christian and/or Northstar Properties have no ownership interest in, and no right to share in the proceeds from development of, a subdivision located near Columbia Falls, Flathead County, Montana, known as “Cedar Park1” which is solely owned by Gatzke.

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George - Chapter 13 Confirmation - Applicable Commitment Period - February 7, 2007

Case No. 06-60778-13

On September 25, 2006, Debtors filed this chapter 13 case. Trustee, Robert G. Drummond, filed an objection to confirmation of Debtors’ plan, doc. no. 14, asserting among other grounds that “[t]he plan is insufficiently funded to meet the disposable income requirements appearing at 11 U.S.C. § 1325(b)(2). Line 58 of Form B22C reflects that the Debtors have disposable income of $111.71 per month. The plan is insufficiently funded to commit this amount to the class of unsecured creditors for the applicable commitment period.” The Court scheduled confirmation for December 7, 2006. Based on agreement, Debtors’ through their attorney, Nikolaos G. Geranios, of Missoula, Montana, and the Trustee, Robert G. Drummond (“Trustee”), of Great Falls, Montana, stipulated to the facts pertinent to Trustee’s objections to confirmation. The Court directed that briefs be filed on or before December 26, 2007, after which the Court would take the matter under advisement. The briefs have been filed; the Court has reviewed the stipulated facts, the briefs and applicable law and this contested matter is ready for a decision. This memorandum of decision contains the Court’s findings of fact of conclusions of law.

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Gliko - Chapter 13 Confirmation - September 28, 2007

Case No. 07-60296-13

The above-captioned Chapter 13 bankruptcy cases have been consolidated for a decision regarding the Chapter 13 Trustee’s objections to confirmation of their respective Chapter 13 Plans on the grounds they fail to satisfy the “disposable income” requirement of 11 U.S.C. § 1325(b) by deducting expenses from the proceeds from liquidation of business assets, and in Case No. 06-60296-13 deducting proceeds from the sale of United States Treasury Strips, discontinued income from cattle sales, and money given to their adult child for college expenses, from their disposable income. Both matters have been heard and briefs have been submitted, and they are ready for decision. For the reasons set forth below, the Trustee’s disposable income objection to confirmation in Case No. 07-60441-13 will be overruled and Glikos’ Chapter 13 Plan filed on May 9, 2007, confirmed. The Trustee’s objection in Case No. 07-60296-13 will be sustained with respect to the college expenses for their adult child and deduction of discontinued cattle income from their disposable income, but otherwise overruled with respect to the U.S. Treasury Strips and cattle expenses.

This Court has exclusive jurisdiction of these Chapter 13 cases under 28 U.S.C. § 1334(a). Confirmation of plans are core proceedings under 28 U.S.C. § 157(b)(2)(L). This Memorandum of Decision includes the Court’s findings of fact and conclusions of law under F.R.B.P. Rule 7052.

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Goldsein - Motion for Reconsideration - May 2, 2007

Case No. 05-65339-On January 12, 2007, Gary S. Deschenes (“Deschenes”), a chapter 7 trustee, of Great Falls, Montana, filed a motion, with notice, for turnover of $624.24 constituting a portion of the tax refund Debtor received for his 2005 Montana income tax refund, amounting to $788. � Deschenes requested in such motion that the prorata amount of $624.24 be remitted to him from Debtor. The Court on January 26, 2007, entered an Order granting Deschenes’s motion as Goldstein failed to file a response and request a hearing within the 10-day notice period. Debtor (“Goldstein”), of Havre, Montana, representing himself, filed a motion to reconsider and a motion to vacate Order, on February 2, 2007. On February 12, 2002, Deschenes filed a response to Goldstein’s motions and requested a hearing on March 22, 2007. Goldstein filed a reply to Deschenes’s response on February 22, 2007.

The Court conducted a hearing on March 22, 2007, and continued the contested matter of Goldstein’s motions for reconsideration and vacation until April 26, 2007, to allow Deschenes and Goldstein to further consider the nature of the refund arising from the Montana statutory provisions creating the Montana Elderly Homeowner/Renter Credit, MONT. CODE ANN. (“MCA”) §§ 15-30-171 through 179. Over the course of the two hearings, Deschenes’s Exhibits (“D Ex.”) 1 through 3 and Goldstein’s Exhibits (“G Ex.”) A, B, C, and 4 through 10 were admitted. This contested matter is ready for a decision.

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Grahm-Samson v. Grahm - Core Proceedings - April 5, 2007

Case No. 05-63640-7

In this adversary proceeding the Plaintiff/Trustee Richard J. Samson filed on March 22, 2007, a motion for judgment on the pleadings as to jurisdiction, venue and whether this adversary proceeding is a core or noncore proceeding, together with a memorandum of points and authorities, a request to apply F.R.B.P. 9011, and a notice granting the Defendants 10 days to respond and request a hearing in accordance with Mont. Local Bankruptcy Rule (“Mont. LBR”) 9013-1(d). The Defendant1 David Lawrence Graham, in propria persona, filed a response which did not set the Plaintiff’s motion for hearing as provided under Mont. LBR 9013-1(e). The Court has reviewed Plaintiff’s motion and Defendant’s objection, and finds that the matters raised involve purely questions of law for which no hearing is necessary. For the reasons set forth below a separate Order will be entered overruling Defendant’s objection, granting Plaintiff’s motion in part with respect to jurisdiction and venue, and finding that this adversary proceeding is a core proceeding, but denying Plaintiff’s request to apply Rule 9011(c)(1)(B), without prejudice.

The material facts are not in dispute and are taken from the parties’ pleadings and the docket of Defendants’ Chapter 7 bankruptcy Case No. 05-63640-7. Defendants David Lawrence Graham and Lee Ann K. Graham filed a voluntary Chapter 7 petition on October 2, 2005, with their Schedules and Statement of Financial Affairs both signed under penalty of perjury declaring that the information provided is true and correct. With the filing of Defendants’ bankruptcy petition, original and exclusive jurisdiction of Defendants’ Chapter 7 bankruptcy was granted to the district court pursuant to federal statute, 28 U.S.C. § 1334(a), and original but not exclusive jurisdiction of all civil proceedings arising under Title 11, U.S.C., or arising in or related to cases under Title 11, was similarly granted to the district court under 28 U.S.C. § 1334(b).

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Hamilton-Hamilton v. Department of Education - Student Loan Discharge - March 5, 2007

Case No. 06-60161-7

In this adversary proceeding the Plaintiff/Debtor David Hamilton (“David”) seeks a determination that excepting debt from three (3) educational loans in the approximate amount of $32,154.62 from his discharge would impose an undue hardship on him under 11 U.S.C. § 523(a)(8). Defendant North Carolina State Educational Assistance Authority (“NCSEAA”) opposes David’s claim for relief. After trial of this cause and review of the parties’ briefs, the record and applicable law, a separate Judgment will be entered in favor of the Plaintiff granting the relief sought, for the reasons set forth below.

This Court has jurisdiction of this adversary proceeding under 28 U.S.C. § 1334(b). This is a core proceeding to determine dischargeability of a particular debt under 28 U.S.C. § 157(b)(2)(I). This Memorandum of Decision includes the Court’s findings of fact and conclusions of law pursuant to F.R.B.P. 7052 (applying FED. R. CIV. P. 52 in adversary proceedings).

The proposed Final Pretrial Order was submitted by the parties and approved by Order entered on November 8, 2006, in which the Court directed that the Final Pretrial Order shall supercede the pleadings and govern the course of the trial. Trial of this cause was held after due notice at Missoula on November 17, 2006. The Plaintiff/Debtor David Hamilton (“David”), of Hamilton, Montana, appeared in propria persona1 and testified, as did his spouse and co-Debtor Elizabeth Hamilton (“Elizabeth”). NCSEAA was represented at the hearing by attorney Harold

V. Dye (“Dye”), of Missoula, Montana, and called vocational expert Kathleen Kleinkopf (“Kleinkopf”) to testify regarding David’s employability. Plaintiff’s exhibits (“Ex.”), 1 through 9, 12, 14, 16 through 31, 33 through 37, and Defendant’s Ex. 1 through 29, were admitted into evidence by stipulation of the parties. At the conclusion of the trial the Court granted the parties time to file simultaneous briefs, which have been submitted and reviewed by the Court together with the record and applicable law. This matter is ready for decision.

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Hayes - Chapter 13 Confirmation

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Hayes-Hayes v. Water Ski Mania Property - October 3, 2007

Case No. 07-60316-13

In this Adversary Proceeding, after due notice, trial was held September 7, 2007, in Butte.� The Debtor/Plaintiffs were represented at the trial by attorney Gregory W. Duncan of Helena, Montana and the Defendants were represented at the trial by attorney Daniel R. Sweeney of Butte, Montana. Don Parsons, Tom Hanson, debtor Jim Hayes, and Bill Bahny testified and Exhibits A, B, C, H, J, M and O along with Exhibits 1, 2 and 5 (consisting of 5-1, 5-2, 5-3, 5-5 and 5-5) were admitted into evidence without objection. Exhibits 3, 4 and 7 were admitted into evidence despite objection.

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Hennelly - Application of Compensation - November 7, 2007

Case No. 06-60463-13

In this Chapter 13 bankruptcy, after due notice, a hearing was held November 6, 2007, in Butte on the Application for Professional Fees and Costs filed by R. Clifton Caughron (“Caughron”) of Debt Relief Law, PLLC, of Helena, Montana, on September 11, 2007, together with the Chapter 13 Trustee’s Objection thereto. Caughron appeared at the hearing in support of the Application and the Chapter 13 Trustee, Robert G. Drummond, of Great Falls, Montana, appeared at the hearing in opposition to approval of the Application. The Court heard statements from Caughron and the Trustee, but no testimony or exhibits were offered at the hearing. The Court ruled at the hearing that it would award Caughron total fees of $1,750.00.� This Memorandum of Decision memorializes, and to a limited extent amends, the Court’s oral ruling and sets forth the Court’s findings of fact and conclusions of law.

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Horob Livestock - Trustee Motion to Sell - September 21, 2007

Case No. 06-60149-7

In this Chapter 7 bankruptcy, after due notice, a hearing was held September 18, 2007, in Billings on: (1) the Trustee’s Amended Motion for Turnover of Property filed August 24, 2007; (2) the Trustee’s Motion to Sell Property Free and Clear of Liens and Interest filed August 24, 2007; and (3) the Motion to Dismiss Horob Livestock, Inc., Bankruptcy filed by James and Bea Horob on August 30, 2007.1 The Chapter 7 Trustee, Joseph V. Womack of Billings, Montana (“Trustee”) appeared at the hearing in support of the Trustee’s motions and in opposition to the Motion to Dismiss filed by James and Bea Horob. Attorneys William D. Lamdin and Kevin P. Heaney, both of Billings, Montana, appeared at the hearing on behalf of Wells Fargo Bank, N.A. (“Wells Fargo”) and in opposition to the Motion to Dismiss filed by James and Bea Horob.�

Other matters were heard at the September 18, 2007, hearing and will be addressed by separate order or orders. James and Bea Horob were represented at the hearing by attorney Kevin J. Chapman of Williston, North Dakota. The Court heard testimony from James Horob (“James”) and the parties agreed that the Court could consider the affidavits and exhibits attached to the above-referenced pleadings and the responses thereto. At the commencement of the hearing, the Court allowed Debtor’s counsel to withdraw on the basis that he had learned things that compromised his position and prohibited him from continuing as Debtor’s counsel. Thus, the Debtor was not represented at the hearing on the matters addressed in this Order. This memorandum contains the Court’s findings of fact and conclusions of law.

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Horob-Womack et al v. Horob Livestock - Jury Trial - October 4, 2007

Case No. 06-60149-7

In this Adversary Proceeding, after due notice, a hearing was held September 18, 2007, in Billings on whether the Defendants James and Bea Horob are entitled to a jury trial given the Trustee’s Notice of Withdrawal of Consent to Jury Trial and Request for Judge Trial filed September 14, 2007, at docket entry no., 193 and Wells Fargo’s Notice of Withdrawal of Consent to Jury Trial, [and] Request for Judge Trial filed September 14, 2007, at docket entry no. 199; together with the reply and amended reply thereto filed by James and Bea Horob on September 17, 2007, at docket entry nos. 223 and 224. The Plaintiff/Trustee, Joseph V. Womack of Billings, Montana, appeared at the hearing in support of his Motion. Wells Fargo Bank, N.A., was represented at the hearing by attorneys William D. Lamdin and Kevin P. Heaney, both of Billings, Montana; and James and Bea Horob were represented at the hearing by their attorney, Kevin J. Chapman of Williston, North Dakota. The Court heard no testimony with respect to the matter addressed in this Memorandum of Decision and no exhibits were offered into evidence.

Before the Court embarks on setting forth the applicable law with respect to the request for jury trial by James and Bea Horob, the Court feels compelled to provide a little factual background as to how this Proceeding came to be filed. James and Todd Horob are brothers and each owns a 50% interest in the Debtor, Horob Livestock, Inc. (“Horob Livestock”). Todd Horob (“Todd”) is the President and Chief Operating Officer of Horob Livestock. Horob Livestock is a North Dakota corporation authorized to do business in North Dakota and Montana. On March 24, 2006, Todd caused two voluntary Chapter 7 bankruptcy petitions to be filed; one on behalf of himself and one on behalf of Horob Livestock. James did not file Horob Livestock’s bankruptcy petition nor did he sign the Statement Regarding Authority to Sign and File Petition, and the evidence in Horob Livestock’s case was not clear as to whether James had knowledge prior to March 24, 2006, regarding Todd’s desire to file a bankruptcy petition on behalf of the Horob Livestock. However, James conceded that he knew that Todd had filed a bankruptcy petition on behalf of Horob Livestock either on March 24, 2006, or March 25, 2006.

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Horob-Womack v. Horob - Judgment - December 17 ,2007

Case No. 06-60149-7
Case No. 06-60150-7

The Court consolidated the above-referenced Lead Adversary Proceeding 07-00001 and Adversary Proceeding 06-00150 by Order entered June 27, 2007. Defendants Todd and Teresa Horob failed to file a timely answer in this Proceeding and upon request of the Plaintiff, the Clerk entered default against Todd and Teresa Horob on February 20, 2007, but said entry of default was subsequently set aside on February 26, 2007. Todd and Teresa Horob filed an answer contemporaneously with the stipulation to set aside default, but they have not taken any action, other than filing an answer, to defend in this Adversary Proceeding.1 Todd Horob agreed to waive his Chapter 7 discharge in a Stipulation for Waiver of Discharge dated November 16, 2006. The Stipulation for Waiver of Discharge was approved by Order entered November 21, 2006.

Through various stipulations that were filed and approved, all claims against Lyle Hove, Daryle Syme, James and Mary Ziegler, d/b/a Lake Region Livestock, Hank’s Wheat Ranch, Jeanne Hoglund and Martha Heller have been resolved. In addition, by stipulation filed October 10, 2007, Farm Credit Services of North Dakota, ACA, and its subsidiaries, Farm Credit Services of North Dakota, FLCA, and Farm Credit Services of North Dakota, PCA (collectively referred to as “FCS”) were dismissed from this proceeding. Likewise, the Plaintiff has either dismissed or resolved all claims for punitive and money damages and Wells Fargo Bank, N.A. (“Wells Fargo”) has voluntarily dismissed all its cross-claims for punitive damages along with its civil conspiracy claims. As a result of the foregoing, the Court entered a Memorandum of Decision on Todd Horob has never personally appeared before this Court in either this consolidated Adversary Proceeding or Todd’s main bankruptcy case. The Plaintiff and Wells Fargo listed Todd as a trial witness and further stated that Todd’s testimony would be presented through a deposition. The Court was presented with a copy of Todd’s telephone deposition taken September 4, 2007. However, after itemizing the various medications he was taking at that time, Todd exercised his Fifth Amendment right in response to all other questions. The Trustee also intended to submit, as evidence, the transcript of Todd’s 2004 examination taken in 2006, but withdrew such request at the conclusion of the trial.

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Incredible Auto Sales-Auto Auction of Montana v. Incredible Auto - Application for Compensation - May 18, 2007

Case No. 06-60855-7

Two applications for professional fees filed by William L. Needler (“Needler”), attorney for the Debtor, are pending in this Chapter 7 bankruptcy case that was converted from Chapter 11 by Order entered on April 10, 2007. Neither Debtor nor any other party in interest has filed a notice of appeal from the Memorandum of Decision and Order converting this case to Chapter 7 and thus, the Court’s findings of fact and conclusions of law set forth in the April 10, 2007, Memorandum of Decision are final, undisputed and deemed established for purposes of this Memorandum of Decision.

Needler filed his “First Interim Application for Fees and Expenses Sought in Chapter 11" (“First Interim Application”) on March 8, 2007, seeking an award of fees and costs, pursuant to 11 U.S.C. § 330(a), in the sum of $100,956.71 for services performed, and costs incurred, between September 15, 2006, and February 18, 2007. Needler filed a “Final Application of William L. Needler and Associates, Attorneys for Debtor, for Fee Allowance and Reimbursement of Costs” (“Final Application”) on May 13, 2007, seeking an additional award of fees and costs in the sum of $14,236.14 for services performed, and costs incurred, between February 28, 2007, and March 30, 2007. The combined total of the fees and costs requested by Needler is thus $115,192.85.

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Incredible Auto Sales-Auto Auction of Montana v. Incredible Auto - Judgment - March 26, 2007

Case No. 06-60855-11

Plaintiff, Auto Auction Associates of Montana, Inc. d/b/a Auto Auction of Montana (“AAM”), represented by Bruce F. Fain (“Fain”), of Billings Montana, filed this adversary proceeding on October 18, 2006, alleging reclamations claims under 11 U.S.C. § 546(c). On November 3, 2006, this Court granted Hyundai Motor Finance Company’s (“Hyundai”) motion to intervene as a Defendant. This Court entered a default judgment against Incredible Auto Sales LLC, on January 17, 2007. The Court set this proceeding for trial on February 26, 2007. On February 22, 2007, AAM and Hyundai, represented by Shane P. Coleman (“Coleman”), filed a proposed pretrial order, which this Court approved. The parties filed pretrial memoranda. At the trial on February 26, 2007, the following witnesses testified: Nick Gutierrez, Ken Cornelison, and Nels Pearson testified. Plaintiff’s Exhibits (“Pl. Ex.”) 1 through 10 and Defendant’s Exhibits (“Def. Ex.”) 1 through 6 and 24 through 29 were admitted pursuant to the approved pretrial order. This proceeding is ready for decision. This memorandum of decision contains the Court’s findings of fact and conclusions of law.

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Incredible Auto Sales-Auto Auction of Montana v. Incredible Auto - Motion for Reconsideration -

October 30. 2007

Case No. 06-60855-7

In this Chapter 7 bankruptcy, following a hearing held April 24, 2007, this Court entered a Memorandum of Decision and Order on May 18, 2007, which held as follows:

[T]he Interim Application for Fees and Expenses Sought in Chapter 11 and the Final Application of William L. Needler and Associates, Attorneys for Debtor, for Fee Allowance and Reimbursement of Costs filed by attorney William L. Needler on March 8, 2007, and May 13, 2007, respectively, are granted, in part, and denied, in part; that attorney William L. Needler is awarded reasonable attorney fees in the sum of $18,040.00 and costs of $4,610.69, for a total of $22,650.69; that William L. Needler shall apply a portion of the retainer in the amount of $26,039.00 to the allowed fees and costs in the total of $22,650.69; and that attorney William L. Needler shall, within ten (10) days of the date of this Order, disgorge the sum of $3,388.31 and remit such sum to the Chapter 7 Trustee, Joseph V. Womack.

In response to the Court’s Memorandum of Decision and Order of May 18, 2007, William L. Needler (“Needler”) filed on May 29, 2007, a “Motion of William L. Needier of the Law Firm of William L. Needer and Associates, Attorney for the Debtor and Requests this Court to Modify, Amend, Vacate and Reconsider Its Order of May 18, 2007, Denying Attorney Fees and Expenses for Debtor’s Attorney and to Set a Rehearing and Trial.” By Order entered May 30, 2007, this Court denied Needler’s aforementioned request for reconsideration. On June 11, 2007, Needler filed a Notice of Appeal indicating that he was appealing both this Court’s May 18, 2007, Order granting in part and denying in part Needler’s interim and final fee requests and this Court’s May 30, 2007, Order denying Needler’s request for reconsideration. The United States Trustee (“UST”) subsequently filed a notice of “Election to Have Appeal Heard by the District Court”.� Needler’s appeal of this Court’s Orders of May 18, 2007, and May 30, 2007, was thus assigned to the Honorable Richard F. Cebull of the United States District Court for the District of Montana, Billings Division. Upon request of the UST, Judge Cebull entered an Order for Remand on July 27, 2007, remanding the matter to this Court in order that Needler could have a hearing, after proper notice, on the Final Application of William L. Needler and Associates, Attorneys for Debtor, for Fee Allowance and Reimbursement of Costs (“Final Application”) filed May 13, 2007.

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Incredible Auto Sales - Motion to Convert - April 10, 2007

Case No. 06-60855-11

In this Chapter 11 bankruptcy, the United States Trustee (“UST”), through counsel, filed a Motion to Convert on December 28, 2006, docket entry number 167, seeking to convert this case to Chapter 7 of the Bankruptcy Code. Hyundai Motor Finance Company (“Hyundai”) filed a joinder in the UST’s Motion on January 4, 2007, at docket entry number 170. Debtor, through counsel, filed an objection to the UST’s Motion on January 11, 2007, and noticed the matter for hearing on January 23, 2007. In opposition to the UST’s Motion, counsel for Debtor recites:

1.)This Debtor filed Chapter 11 on October 17, 2006, and since that date has been operating as Debtor-in-Possession.

2.)Since that date, all proceeds of all vehicle sales and repair sales have been deposited with approval of this Court and Hyundai Motor Finance (the “Secured Lender”) into the Debtor’s Trust Accounts.

3.)Reports on the contents of these Trust Accounts have been regularly provided to the Secured Lender without objection[.]

4.)As part of the Cash Collateral Usage Agreement, this Debtor early in this case has changed the management structure of the operating Debtor as agreed with this Court and the Secured Lender as follows:
       a.)Nick Gutierrez, the majority owner . . . no longer has check signing power under the       Chapter 11.

       b.) All Debtor-in-Possession Checks and Trust Account Transfers to be only handled and signed for by:

             1.) Ken Cornelison the General Manager; and

             2.)Zfaneece Gutierrez, the wife of Nick Gutierrez;

5.)Additionally, the Debtor had agreed with the Secured Lender and the Court that:�
       a.)They would not do any more wholesale sales to Graham Stanton, a
       Chevrolet Dealership owned by Nick Gutierrez, and

       b.)That Nick Gutierrez would have no management say so or control.�

6.)Even though a long delay had occurred before this Court entered the Cash Collateral Order, the Debtor continues to operate and sell vehicles.

7.)The Debtor has employed an Automotive Broker, Southwest Brokerage Company to sell the Kia Franchise and assets of the Dealership.

8.)Contemporaneously herewith a Motion to approve a Sale Contract with Rimrock Chrysler, Inc. of Billings, Montana has been docketed and is being served.

9.)The Debtor has requested the approval of a Notice for Upset bids, which has also been filed so that higher bids can be solicited.

10.)As a result of this initial offer, a large ad has been placed by the Debtor in Crains Automotive News, which is read by almost all parties connected with the Retail
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Jackson - Attorney Compensation - July 16, 2007

Case No. 05-65276-13

In this chapter 13 bankruptcy case, after due notice, the Court held a hearing on July 10, 2007, in Butte on the Application for Professional Fees and Costs filed by attorney R. Clifton Caughron on May 23, 2007. Attorney R. Clifton Caughron, of Helena, Montana, appeared at the hearing in support of the Application. The chapter 13 trustee, Robert G. Drummond, of Great Falls, Montana, filed an objection to the filed application. This memorandum contains the Court’s findings of fact and conclusions of law.

Procedurally, Debtors filed their voluntary chapter 13 bankruptcy petition on October 15, 2005, with their plan and a “Disclosure of Compensation of Attorney for Debtor” filed by attorney Stephen R. McCue (“McCue”) of Debt Relief Law, PLLC. McCue’s disclosure states that Debtors agreed to pay $1,750.001 in fees as an administrative expense, and Debtors further

Mont. LBR 2016-1(b) provides for presumed reasonable fees in a chapter 13 case up to $1,750.00, and if the fees do not exceed that amount no application for such fees will be required and no order authorizing such fees shall be necessary. The presumed reasonable fees are also agreed that McCue could file an additional application if hourly fees exceeded the amount estimated. No other disclosures of compensation have been filed by any other attorney for the Debtors, even though attorney R. Clifton Caughron (“Caughron”), also of Debt Relief Law, PLLC, appeared as Debtors’ counsel at a hearing held January 10, 2006

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Johnson-Au v. Johnson - Discharge - June 13, 2007

Case No. 06-60210-7

Plaintiffs initiated this adversary proceeding seeking exception from the discharge of Debtor/Defendant Troy Eugene Johnson (“Johnson”), pursuant to 11 U.S.C. § 523(a)(6), of their wrongful death claim1 against Johnson which arose from a pickup truck accident in which Defendant was driving and their daughter was a passenger who suffered injuries resulting in her death. Trial of this cause was held after due notice at Great Falls on May 22, 2007. Plaintiffs were represented by attorney James A. Patten of Billings, Montana. Johnson appeared and testified, and was represented by attorney D. Randy Winner of Great Falls, Montana. Johnson’s mother Tami Gaines (“Gaines”) testified, as did brake shop owner Ed Mutch (“Mutch”) of Billings. Exhibits (“Ex.”), 1, 2, A, B, C, and D were admitted into evidence. At the conclusion of the parties’ cases-in-chief the Court ruled from the bench that the Plaintiffs had failed to satisfy their burden of proof under § 523(a)(6) to show subjective intent by Johnson to cause willful and malicious injury to the Decedent, and the Court directed that judgment be entered for Johnson dismissing the complaint.

This Court has jurisdiction of this adversary proceeding under 28 U.S.C. § 1334(b). This is a core proceeding to determine dischargeability of a particular debt under 28 U.S.C. § 157(b)(2)(I). This Memorandum of Decision includes the Court’s findings of fact and conclusions of law pursuant to F.R.B.P. 7052 (applying F. R. Civ. P. 52 in adversary proceedings).

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JS Marketing and Communication v. Quest - Intervene - March 26, 2007

Case No. 05-65426-11

On February 22, 2007, Blackfoot Communications, Inc. (“Blackfoot”) filed a motion to intervene in this adversary proceeding as a third-party plaintiff, doc. no. 23. Blackfoot attached a proposed third-party complaint to its motion to intervene. Qwest Corporation (“Qwest”) filed on March 2, 2007, a response, doc. no. 31, to Blackfoot’s motion to intervene and requested a hearing on March 8, 2007. On March 9, 2007, the Court entered an Order allowing Blackfoot to file a brief in support of its motion to intervene on or before March 19, 2007. On March 19, 2007, Blackfoot filed its brief in support of its motion to intervene, doc. no. 45. Debtor is represented by Harold V. Dye, of Missoula, Montana. Qwest is represented by Dean A. Stensland of Missoula, Montana and Andrew H. Sherman, of Newark, New Jersey. Blackfoot is represented by Richard J. Samson, of Missoula, Montana. The Court has reviewed the pleadings and briefs and is ready to issue a decision. This memorandum contains the Court’s findings of fact and conclusions of law.

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Lewis-Partick v. Lewis - Summary Judgment - December 28, 2007

Case No. 06-60684-7

Pending in this adversary proceeding are Counts I and II of the Plaintiffs’ complaint objecting to the Defendants/Debtors’ discharge under 11 U.S.C. § 727(a)(4)(A) for fraud, material omissions and false oaths. Trial of this adversary proceeding was held after due notice on September 27, 2007. Plaintiffs were represented by attorney James H. Cossitt (“Cossitt”) of Kalispell, Montana. Defendants/Debtors Richard Paul Lewis (“Richard”) and Melissa Lynn Lewis (“Melissa”) both appeared and testified, represented by attorney Jon R. Binney (“Binney”) of Missoula, Montana. Also testifying were the panel Chapter 7 Trustee Richard J. Samson (“Samson”), Debtors’ bankruptcy attorney M. Penny Leatzow (“Leatzow”), and Melissa’s brother Jeffery Engle (“Engle”). Plaintiffs’ Exhibits (“Ex.”) 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 21, 23, 24, 25, 26, and Defendants’ Ex. A1, B, C, D, and E were admitted into evidence. At the conclusion of the parties’ cases-in-chief the Court granted the parties time to file briefs, which have been filed and reviewed by the Court, together with the record and applicable law. The pending Counts I and II are ready for decision.

This Court has jurisdiction of this adversary proceeding under 28 U.S.C. § 1334(b). Counts I and II of Plaintiffs’ complaint objecting to Defendants’ discharge are core proceedings under 28 U.S.C. § 157(b)(2)(J). For the reasons set forth below, at the conclusion of the trial and decision of the remaining Counts III and IV of the complaint, the Court will enter judgment for the Defendants dismissing Counts I and II of Plaintiffs’ complaint based upon § 727(a)(4)(A). This Memorandum of Decision includes the Court’s findings of fact and conclusions of law under F.R.B.P. 7052.

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Lorea - Specialty Woodworks v. Lorea - Motion to Amend Judgment - May 31, 2007

Case No. 05-65327-13

Pending in this adversary proceeding is the Motion to Alter or Amend Judgment (Docket No. 52) filed on March 2, 2007, by Plaintiff Specialty Woodworks, Co. (“Specialty”), seeking enforcement of the Defendant/Debtor’s confirmed Chapter 13 Plan and a Stipulation between the parties filed in the above-captioned Chapter 13 case, plus an award of prejudgment interest or the increase in value of property subject to a constructive trust. The Defendant filed an objection and the matter was heard after notice on April 2, 2007, after which the parties were granted time to file briefs, which have been reviewed by the Court along with the record and applicable law. For the reasons set forth below, Plaintiff’s Motion to Alter or Amend Judgment is denied.

This Court has jurisdiction of this adversary proceeding pursuant to 28 U.S.C. § 1334(b). The parties agree this adversary proceeding is a core proceeding under 28 U.S.C. § 157(b)(2). At issue is (1) whether Specialty’s request for modification of the confirmed Plan and enforcement of a Stipulation between the parties filed in the main case, No. 05-65327-13, are proper subjects of a Motion to Alter or Amend the Judgment entered in this adversary proceeding; and (2) whether Plaintiff is entitled to prejudgment interest under MONT. CODE ANN. (“MCA”) §§ 27-1-211, 27-1-212, or 27-1-320.

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Lulow-Lulow v. Lulow - Dischargablility - December 20, 2007

Case No. 06-60820-7

This adversary proceeding to determine dischargeability of debts under 11 U.S.C. §§ 523(a)(4) and (a)(15) came on for trial after due notice on December 19, 2007. The parties both appeared by counsel and testified, and exhibits were admitted. At the conclusion of the parties’ cases-in-chief the Court dismissed Count II of the complaint based upon § 523(a)(4), finding Plaintiff failed to show the existence of a fiduciary relationship prior to the alleged defalcation as required under federal law. The Court ordered judgment entered against the Debtor Jeffrey T. Lulow (“Jeffrey”) excepting from his discharge the $82,500.00 awarded by the state court in their divorce decree, plus interest and other stipulated amounts, under § 523(a)(15). This Memorandum memorializes the Court’s decision and includes the Court’s findings of fact and conclusions of law pursuant to F.R.B.P. 7052 (applying Fed. R. Civ. P. 52 in adversary proceedings).

Plaintiff Christin (“Christin”) Lulow appeared at trial and testified, represented by attorney Jon R. Binney of Missoula, Montana. Debtor/Defendant Jeffrey T. Lulow (“Jeffrey”) appeared and testified, represented by attorney Edward A. Murphy of Missoula. Exhibits (“Ex.”), 1, 2, 3, 4, 5, 6, 7, 10, 11, and 12 were admitted without objection, except the Court ordered the references to the parties’ minor children’s names and social security numbers stricken. The Court took judicial notice of the file of Jeffery’s Chapter 7 bankruptcy case, No. 06-60820-7, which began as a Chapter 13 case on October 5, 2006, and was converted to Chapter 7 on Jeffrey’s motion on February 9, 2007. This adversary proceeding commenced on May 1, 2007, when Plaintiff filed her complaint.

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Luxford - Chapter 13 Motion to Dismiss - March 29, 2007

Case No. 05-63105-13

On September 13, 2005, Debtors filed this chapter 13 case. On March 22, 2006, upon the consent of the chapter 13 trustee, the Court confirmed Debtors’ amended chapter 13 plan. On October 16, 2005, the chapter 13 trustee, Robert G. Drummond (“Drummond”), of Great Falls, Montana, filed a postconfirmation motion, doc. no. 44, to dismiss this case. Debtors, through their attorney, H. James Oleson (“Oleson”), of Kalispell, Montana, filed a response, doc. no. 45, to the trustee’s motion to dismiss and set the matter for hearing on November 9, 2006. On October 31, 2006, Drummond filed nine exhibits, doc. no. 46, for the hearing. On behalf of the Debtors, Oleson filed a consensual motion to continue the hearing from November 9, 2006, to January 11, 2007. The Court approved the continuance. On December 28, 2006, Debtors filed an amended Schedule B with the Court, doc. no. 53. Drummond, on January 3, 2007, filed a motion for judicial notice of adjudicative facts involving Debtors prior bankruptcy filings that the Court approved on January 4, 2007. A hearing was held in this case on Drummond’s motion to dismiss and Debtors’ objection thereto on January 11, 2007, in Missoula. Exhibits 1 through 9 were admitted without objection. One of the Debtors, Lana Luxford, testified. After the conclusion of the hearing, the parties requested time to file briefs in support of their respective positions. The briefs have been filed. The Court has considered the motion, the objections thereto, the testimony, the exhibits and the briefs and this contested matter is ready for a decision.� This memorandum contains the Court’s findings of facts and conclusions of law.

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McCain - Avoid Lien - June 1, 2007

Case No. 07-60541-7

In this Chapter 7 bankruptcy, Debtors filed a Motion to Avoid Lien under 11 U.S.C. § 522(f) and Notice on May 18, 2007, seeking to avoid liens held by Allied Card Bank and Randy E. Krastel. This Memorandum of Decision sets forth the Court’s findings of fact and conclusions of law with respect to Debtors’ Motion. Debtors’ instant motion was filed in accordance with Mont. LBR 4003-4, which provides:

A debtor shall move to avoid liens pursuant to 11 U.S.C. § 522(f)(1) by filing Mont. LBF 24. If a creditor files a response and requests a hearing within ten (10) days of the date of the motion, then the creditor shall notice the contested matter for hearing pursuant to Mont. LBR 9013-1 and shall provide that the hearing on the objection and response shall be scheduled at least 20 days after the date of the creditor’s response and request for hearing. If the creditor fails to file a written objection to the debtor's motion, addressing with specificity the allegations contained therein, within ten (10) days of the date of the notice provided by Mont. LBF 24, the creditor shall be deemed to have waived any objection to avoidance of its lien.

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McDonald - Disposable Income - Payment to Unsecured - February 7, 2007

Case No. 06-60788-13

On September 28, 2006, Debtors filed this chapter 13 case. Trustee, Robert G. Drummond, filed an objection to confirmation of Debtors’ plan, doc. no. 13, asserting among other grounds that the “Debtors’ plan fails to meet the disposable income requirements appearing at 11 U.S.C. § 1325(b)(1)(B). The Debtors’ Form B22C, Line 58, lists the Debtors’ disposable income in the amount of $199.64 per month. The Debtors’ plan payment is $200.00 per month for sixty (60) months. The plan payment is insufficient to pay the disposable income to the class of ‘unsecured creditors.’ The plan payment fails to take into account the administrative expenses to be paid under paragraph 2(a) and the Trustee’s fees.” The Court scheduled confirmation for December 7, 2006. Based on agreement, Debtors’ through their attorney, Nikolaos G. Geranios, of Missoula, Montana, and the Trustee, Robert G. Drummond (“Trustee”), of Great Falls, Montana, stipulated to the facts pertinent to one of Trustee’s objections to confirmation. The Court directed that briefs be filed on or before December 26, 2007, after which the Court would take the matter under advisement. The briefs have been filed; the Court has reviewed the stipulated facts, the briefs and applicable law and this contested matter is ready for a decision. � This memorandum of decision contains the Court’s findings of fact of conclusions of law.

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Monroe - Bifurcate Case - October 11, 2007

Case No. 05-65203-7

In this joint voluntary Chapter 7 case the Debtors James A. Monroe (“James”) and Lynda Louise Monroe (“Lynda”) filed a motion to bifurcate their cases on August 22, 2007 (Docket No. 31), on the grounds James does not wish any of the proceeds from his medical malpractice action to be paid to Lynda’s creditors. The Trustee filed an objection (Docket No. 41) on the grounds the Debtors filed a joint petition, listed the majority of their debts as joint debts, did not correct their Schedules at the 11 U.S.C. § 341(a) meeting of creditors and did not amend their Schedules for almost 2 years, and bifurcation would work to the detriment of creditors because some would go without payment. The Trustee noticed Debtors’ motion for hearing which was held on September 21, 2007. The Debtors were represented at the hearing by attorney Gary S. Deschenes (“Deschenes”) of Great Falls, Montana. The Trustee Darcy M. Crum appeared. No testimony or exhibits were admitted1, and the Court took the matter under advisement after hearing argument of counsel. After review of the record, the Trustee’s objection is overruled and Debtors’ motion to bifurcate will be granted by separate order, for the reasons set forth below.

This Court has jurisdiction of this case under 28 U.S.C. § 1334(a). Debtors’ motion to bifurcate 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.

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Mosher - Modify Stay

Pending in this Chapter 13 case is the motion to modify stay filed by Alias Smith & Jones Pawn, Inc. (“Alias Smith & Jones”) (Docket No. 18), and Debtors’ objections thereto. The Chapter 13 Trustee filed a consent. Hearing on this contested matter was held at Great Falls on April 26, 2007. Alias Smith & Jones was represented by attorney Lisa Lynn of Great Falls, Montana, and its president Charles Conley (“Conley”) testified. Debtors were represented by attorney D. Randy Winner of Great Falls, and Debtor Robert William Mosher (“Robert”) testified. Exhibits (“Ex.”) 1, 2, A1 and B were admitted into evidence without objection. At the conclusion of the parties’ cases-in-chief the Court closed the record and took the matter under advisement, and continued the hearing on confirmation of Debtors’ Chapter 13 Plan. After review of the record and applicable law, this matter is ready for decision. For the reasons set Ex. A consists of documents which are included in Ex. 1. 1 forth below Debtors’ objections are overruled and Alisa Smith & Jones’ motion to modify stay will be granted by separate Order, which shall also reset the hearing on confirmation.

This Court has original and exclusive jurisdiction of this bankruptcy case pursuant to 28 U.S.C.§ 1334(a). Alias Smith & Jones’ motion to modify stay is a core proceeding under 28 U.S.C.§ 157(b)(2)(G). This memorandum includes the Court’s findings of fact and conclusions of law.

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Naslund - Chapter 13 - Disposable Income - Second Car - November 16, 2006

Case No. 06-60428-13

In this Chapter 13 bankruptcy, after due notice, a hearing was held August 1, 2006, in Butte on confirmation of Debtors’ First Amended Chapter 13 Plan (“Plan”) filed July 11, 2006.� Attorney Richard A. Ramler, of Belgrade, Montana, appeared at the hearing on behalf of Debtors and in support of confirmation of Debtors’ Plan. The Chapter 13 Trustee, Robert G. Drummond, of Great Falls, Montana, also appeared at the hearing, as did attorney Craig D. Martinson, of Billings, Montana, on behalf of objecting creditor MBNA America Bank, N.A. (“MBNA”). No exhibits were offered into evidence, but Debtor Janice Elaine Naslund (“Janice”) testified. At the conclusion of the hearing, the Court granted the parties time to file simultaneous briefs, which have been filed and reviewed by the Court. This matter is now ready for decision and this Memorandum of Decision sets forth the Court’s findings of fact and conclusions of law. For the reasons set forth below, the Trustee’s and MBNA’s objections to confirmation of Debtors’ Plan are overruled, and confirmation of Debtors’ Plan shall be denied by separate Order, so Debtors may amend their plan to correct minor typographical errors.

This is a core proceeding under 28 U.S.C. § 157(b)(2)(L) involving confirmation of a plan. What is at issue is whether the Debtors’ Plan satisfies the “disposable income” requirement of § 1325(b)(1)(B).

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North End Timber Products-Three Rivers Bank v. North End and Johnson - Declaratory Relief -

December 17, 2007

Case No. 06-60440-7

North End Timber Productions LLC (“NET”) filed a chapter 11 bankruptcy case on June 13, 2006. The Court converted the case to a chapter 7 case on April 2, 2007. Three Rivers Bank of Montana (“TRB”), a creditor of NET, filed this adversary proceeding on February 27, 2007, requesting this Court to grant declaratory relief in determining that Johnson Brothers Contracting, Inc. (“JBC”)’s interest in $150,000 of insurance proceeds is subordinate to TRB’s interests by virtue of TRB being named a loss payee on the insurance policy, or alternatively that JBC’s interest in the proceeds only extends to the reasonable value of JBC’s collateral destroyed in the NET’s fire. TRB further requested that a judgment be entered against Steel Etc. LLP allowing TRB to receive $15,000 in proceeds through foreclosing its security interest in salvaged steel and iron that would otherwise be payable to Steel Etc. LLP for debris removal. No relief was requested initially against Jobs Now, Inc., formerly Northwest Montana Human Resources, Inc. Jobs Now, Inc. (“JNI”), filed an answer, counterclaim and cross claim.

Upon settlement by the parties, Steel Etc. LLP was dismissed from the litigation. The parties further stipulated in the approved final pretrial order that NET should be dismissed from this proceeding by stating the following: “Defendant NET should also be dismissed from the action, as it has not made an appearance in the matter and the Chapter 7 trustee informs counsel for the Bank that the Estate asserts no claim to the $150,000 in insurance proceeds.” Based on this stipulation, the Court will dismiss NET from this proceeding.

This Court set this proceeding for trial on September 11, 2007. The parties filed a proposed pretrial order that the Court approved. At the trial, the parties informed the Court that only issues of law remain given the agreed statement of facts contained in the approved final pretrial order and given the stipulation by the parties that all exhibits submitted by the parties could be admitted by the Court. TRB’s Exhibits 1 through 9 (Doc. # 32) and TRB’s amended Exhibit 3 (Doc. # 38), and TRB’s amended Exhibits A through C (Doc.# 43), JBC’s Exhibits A through F (Doc. # 29), and JNI’s Exhibits AA through HH (Doc. ## 33 and 40) are all admitted.� The Court after the trial took this proceeding under advisement. After reviewing the facts and the law, the Court is ready to issue a decision. This memorandum contains the Court’s findings of fact and conclusions of law.

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Pfeifer - Substantial Abuse - March 28, 2007

Case No. 06-60144-7

In this Chapter 7 bankruptcy, after due notice, a hearing was held December 12, 2006, in Billings on the United States Trustee’s Motion to Dismiss filed July 24, 2006. The United States Trustee (“UST”) was represented at the hearing by attorney Daniel P. McKay, of Great Falls, Montana, and Debtors were represented by their attorney of record, James A. Patten, of Billings, Montana. The Court heard testimony from Lawrence C. Rezentes and each of the Debtors. The UST’s Exhibits 1 through 10 and Debtors’ Exhibits A through RR were admitted into evidence without objection. Debtors’ Exhibits SS and TT were admitted into evidence over the objection of the UST.

The UST moves to dismiss this case under 11 U.S.C. § 707(b)(3) arguing that this case is an abuse of Chapter 7 because “Debtors have the ability to pay a substantial amount of their unsecured debt through a plan under [C]hapter 13 of the Bankruptcy Code.” Debtors filed an objection to the UST’s motion on August 1, 2006, and noticed the matter for hearing on September 26, 2006. As a result of two requests for continuance made by Debtors and one made by the UST, this matter was continued from September 26, 2006, to October 24, 2006, to November 14, 2006, and ultimately to December 12, 2006. In their response, Debtors concede that their monthly expenses are overstated on Schedule J by $110.00 and further argue that “[a]pplying the definitions of disposable income from the Bankruptcy Code to the facts of this case demonstrates that the Debtors do have the ability to fund a Chapter 13 Plan.” Given Debtors’ continued opposition to the UST’s motion, it is apparent to the Court that the latter part of the foregoing sentence is a misstatement by Debtors’ counsel. Counsel presumably intended to argue that Debtors do not have the ability to fund a Chapter 13 plan.

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Ransom - Chapter 13 - Statutory Fee Limitation for Creditor - January 16, 2007

Case No. 06-60606-13

 An objection filed by the Chapter 13 Trustee, Robert G. Drummond (“Drummond”), of Great Falls, Montana, to the proof of claim, claim no. 3, filed by the Estate of Carl B. Field is pending before this Court. The Court originally set the objection for hearing on November 15, 2006, with notice to the parties in interest. Steven M. Johnson (“Johnson”), of Great Falls, Montana, who represents the Estate of Carl B. Field (“the Estate”), moved the Court for a continuance of the hearing, to which Drummond agreed. The Court rescheduled the hearing for December 14, 2006. On November 28, 2006, Drummond and Johnson stipulated to facts and filed a stipulation at doc. # 40, which the Court approved. The Court vacated the rescheduled hearing set for December 14, 2006. Pursuant to the approved stipulation, Drummond and Johnson agreed to submit the objection to proof of claim no. 3 to the Court on the stipulated facts and to submit simultaneous briefs on of before December 20, 2006, on the stipulated issue involving whether the Estate was entitled to attorneys fees in an amount exceeding the statutory limits provided by MONT. CODE ANN. (“MCA”) § 71-1-320 when Debtor’s confirmed Chapter 13 plan cures the arrearages through the plan. On December 20, 2006, Drummond filed his brief in support of his objection. Johnson has not filed a brief in support of the Estate’s proof of claim and in opposition to Drummond’s objection. The Court does however note that the Estate has assigned its proof of claim no. 3 the Leland Stanford Junior University, by assignment dated December 4, 2006, which was filed with the Court on January 5, 2007, as doc. # 45. The briefing time period has expired and this contested matter is ready for a decision. This memorandum of decision contains this Court’s findings of facts and conclusions of law.

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Robuck-Robuck v. Robuck - Dischargablility - October 12, 2007

Case No. 05-60572-7

Plaintiff filed this adversary proceeding on April 11, 2007 alleging that in Debtor’s no asset, no bar date bankruptcy case, Case No. 05-60572, filed March 11, 2005, she was not scheduled as a creditor, that as an unlisted creditor she did not have the opportunity to file an adversary proceeding within the required time period to determine the dischargeability of a property settlement debt owing to Plaintiff, and that as a consequence such debt should be nondischargeable.

Plaintiff filed a motion for partial summary judgment on August 7, 2007, together with an accompanying brief containing a general statement of facts. Defendant filed a response to Plaintiff’s motion for partial summary judgment on August 16, 2007, containing his statement of genuine issues, together with a brief and requested a hearing on September 18, 2007, in Billings.

At the scheduled hearing Plaintiff, through counsel, Craig D. Martinson, of Billings, Montana, and Defendant, through counsel, Joanne M. Briese, of Billings, Montana, indicated that they wished to submit the motion and response to the Court without further argument or presentation of evidence. The motion and the response have been under advisement and the motion is now ready for a decision. This memorandum contains the Court’s findings of fact and conclusions of law.

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Ryan Retz-Abbey v. Retz - Settlement - May 1, 2007

Case No. 04-60272-7

Plaintiffs filed this adversary proceeding on January 6, 2005. On May 1, 2006, this Court approved a settlement agreement between Plaintiffs, Defendant and the Chapter 7 Trustee, Richard J. Samson. Pursuant to such settlement agreement the interested parties agreed how the sale proceeds from Lot 6, Woodside Subdivision, Flathead County, Montana, 650 Woodside Lane, Whitefish, Montana, would be distributed. On January 9, 2007, Plaintiffs, through their attorneys, Michael G. Black and Edward A. Murphy, of Missoula, Montana, filed a motion, doc. # 170, for approval of distribution of sale proceeds and enforcement of agreements, with notice.� Plaintiffs requested that this Court approve a distribution of sale proceeds wherein Plaintiffs (TCLLC) would receive $60,000, Defendant would receive $9,130.73, and the Trustee would receive $15,000.

On January 22, 2007, Defendant, through his attorney, Harold V. Dye, of Missoula, Montana, filed a response, doc. # 172, and an amended response, doc. # 173, and requested a hearing for March 8, 2007. Defendant contends in his amended response that Defendant should receive a distribution of $22,431.16.

On March 7, 2007, Trustee Samson filed a response to Plaintiffs’ motion, doc. # 184, and contends that Defendant is entitled to the amount of $9,130.73 and that the balance of the sale proceeds should be distributed to and retained by the Trustee as any distribution to Plaintiffs is premature. Trustee had prepared an amended proposed distribution that was attached to Plaintiffs’ motion as Exhibit A. The Court held a hearing on March 9, 2007. The interested parties requested until March 23, 2007, to file briefs, which the Court granted. Defendant requested additional time to file briefs, which the Court granted until April 6, 2007. Defendant again requested additional time to file briefs, which the Court granted until April 20, 2007.� Plaintiffs and Defendant filed briefs on April 19, 2007, and Trustee filed his brief on April 20, 2007. Upon the filing of briefs, the contested motion on distribution has been under advisement.� The Court has reviewed the briefs, the motions and the responses and is ready to issue a decision.� This memorandum contains the Court’s findings of fact and conclusions of law. The Court will issue a separate order granting the motion in part and denying the motion in part. The Trustee shall distribute the amount of $9,130.73, payable to Ryan James Retz. The Trustee shall receive and retain, subject to subsequent order of this Court, the amount of $75,000.

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Soieraj - Objection to Claim - June 5, 2007

Case No. 06-60897-13

Pending in this Chapter 13 bankruptcy is Debtors’ Objection to Proof of Claim No. 13 filed by HSBC Mortgage Services (“HSBC”). Hearing on this contested matter was held in Billings on April 24, 2007. Debtors were represented at the hearing by attorney James A. Patten of Billings, Montana, and Debtor Dana Sobieraj (“Dana”) testified. HSBC was represented at the hearing by attorney Matthew Kolling of Dickinson, North Dakota. Debtors’ Exhibits A, D, F through K, M and N, and HSBC’s Exhibit 1 were admitted into evidence without objection. At the conclusion of the parties’ cases-in-chief, the Court granted Debtors through May 9, 2007, to file a brief in support of their Objection and granted HSBC ten days thereafter to file a reply brief. Also at the conclusion of the hearing, the Court directed Debtors’ counsel to file a copy of Debtors’ Deed of Trust and continued the hearing on confirmation of Debtors’ Chapter 13 Plan.�

Debtors’ timely filed their “Brief in Support of Objection to Proof of Claim” on May 9, 2007, and HSBC timely filed its “Brief in Opposition to Debtor’s [sic] Objection to Proof of Claim” on May 21, 2007. HSBC’s Brief is accompanied by a spreadsheet prepared by HSBC that purportedly reflects certain advances made by HSBC and payments made by Debtors. The attachment to HSBC’s Brief was not introduced at the hearing, and because the spreadsheet does not appear to reflect newly discovered evidence, the Court will not consider the attachment for purposes of this Memorandum. After review of the record and applicable law, this matter is ready for decision. For the reasons set forth below, by separate order, Debtors’ objection shall be overruled. This Memorandum contains the Court’s findings of fact and conclusions of law.

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Stevens - Motion to Employ - July 19, 2007

Case No. 05-62678-7

In this Chapter 7 bankruptcy, after due notice, the Court held a hearing on July 10, 2007, in Butte on the Second Retroactive Application to Approve Employment of Professionals Century 21 Heritage Realty, Inc., Christie Killeen, Ann Ford and Cindy Stevick (collectively referred to as “Century 21") filed by Century 21 on May 24, 2007, and on the Second Retroactive Application for Professional Fees and Costs also filed by Century 21on May 24, 2007. Attorney Timothy C. Fox of Helena, Montana, appeared at the hearing on behalf of Century 21, both Debtors Richard Stevens (“Richard”) and Mary Stevens (“Mary”) testified in support of Century 21's Second Retroactive Application to Approve Employment of Professionals and Century 21's Second Retroactive Application for Professional Fees and Costs, and Century 21's Exhibit C was admitted into evidence without objection. Interestingly, attorneys R. Clifton Caughron (“Caughron”) and Stephen R. McCue (“McCue”), both of Helena, Montana, who have to date, been Debtors’ attorneys of record, appeared at the hearing.1 However, neither Caughron nor McCue took any position at the hearing other than McCue to state that he agreed with Debtors’ testimony and Caughron, who stated that while he might not necessarily agree with every statement made by Debtors, he was nevertheless making the professional decision that it was best to decline any comment. This Memorandum of Decision sets forth the Court’s findings of fact and conclusions of law and for the reasons stated herein, the Court finds in favor of Century 21.

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Storer-Businger v. Storer - Dischargablility - November 14, 2007

Case No. 06-60984-7

Plaintiffs John R. Businger (“John”) and Katherine J. Businger (“Kathy”), collectively referred to as the “Busingers”, commenced this Adversary Proceeding on February 14, 2007, seeking a determination that amounts the Busingers paid a third party contractor to finish their home above and beyond the contract amount agreed to by the Busingers and LynxxBuilders, LLC is nondischargeable in Debtor Michael Alan Storer’s bankruptcy proceeding under 11 U.S.C. § 523(a)(2). After due notice, trial in this matter was held November 8, 2007, in Billings.

Attorney Dane Schofield of Billings, Montana, appeared at the trial on behalf of the Debtor/Defendant, Michael Alan Storer (“Mike”) and attorney Craig D. Martinson of Billings, Montana, appeared on behalf of the Busingers. At trial, Kathy, John, Alan Frank Storer (“Doug”), Mike and Dennis Rader testified. In addition, the Busingers’ Exhibits 1 through 12 were admitted into evidence without objection, Exhibit 13 was admitted into evidence over the objection of Mike, and Mike’s Rebuttal Exhibit 14 was admitted into evidence over the objection of the Busingers. This Memorandum of Decision sets forth the Court’s findings of fact and conclusions of law. For the reasons set forth herein, Judgment is entered in favor of Mike, and the Busingers’ Complaint is dismissed with prejudice.

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Storer-Businger v. Storer - Judgment - November 15, 2007

Case No. 07-60116-7

Plaintiffs John R. Businger (“John”) and Katherine J. Businger (“Kathy”), collectively referred to as the “Busingers,” commenced this Adversary Proceeding on February 14, 2007, seeking a determination that amounts the Busingers paid a third party contractor to finish their home above and beyond the contract amount agreed to by the Busingers and LynxxBuilders, LLC is nondischargeable in Debtor Alan Frank Storer’s bankruptcy proceeding under 11 U.S.C. § 523(a)(2). After due notice, trial in this matter was held November 8, 2007, in Billings.

Attorney Dane Schofield of Billings, Montana, appeared at the trial on behalf of the Debtor/Defendant, Alan Frank Storer (“Doug”) and attorney Craig D. Martinson of Billings, Montana, appeared on behalf of the Busingers. At trial, Kathy, John, Doug, Michael Alan Storer (“Mike”) and Dennis Rader testified. In addition, the Busingers’ Exhibits 1 through 12 were admitted into evidence without objection, Exhibit 13 was admitted into evidence over the objection of Doug, and Doug’s Rebuttal Exhibit 14 was admitted into evidence over the objection of the Busingers. This Memorandum of Decision sets forth the Court’s findings of fact and conclusions of law. For the reasons set forth herein, Judgment is entered in favor of Doug, and the Busingers’ Complaint is dismissed with prejudice.

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Stradinger - Mountain West v. Stradinger - Discharge - August 9, 2007

Case No. 05-65113-7

Kimberly A. Stradinger, the Debtor/Defendant (“Kimberly”) filed a voluntary Chapter 7 bankruptcy petition on October 14, 2005. Kimberly’s schedules that accompanied the petition listed a 2005 Nissan Titan Truck on Schedule B, and listed “0.00" as the current market value of her interest in the truck, without deducting any secured claim or exemption. The truck was not listed on Kimberly’s Schedule C, and Kimberly did not identify any creditor on Schedule D as having a secured claim against the truck.

Kimberly’s Chapter 7 case was designated by the Trustee as a no-asset case. Kimberly’s discharge of debts was entered on February 13, 2006, and the case was closed on February 15, 2006.

The Trustee subsequently moved to reopen Kimberly’s bankruptcy on October 13, 2006, to administer a tax refund that Kimberly received after her bankruptcy case was closed.� Consequently, the case was redesignated as an asset case and the Clerk of the Bankruptcy Court set January 15, 2007, as the bar date for filing proofs of claim. The Trustee later filed a “Trustee’s Application for Final Compensation and Reimbursement of Expenses” on March 3, 2007, which reflects that the total disbursements made by the Trustee to parties other than Kimberly would be $821.34. The Trustee’s Notice of Final Report and Proposed Distribution filed March 8, 2007, further reflects that after payment of the Trustee’s fees and costs of $230.34 and the reopening fee of $220.00, that timely filed allowed unsecured claimants would receive their pro rata share of $371.00, representing a 2.37 percent distribution.

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Strobbe - Motion to Avoid Lien - August 31, 2007

Case No. 05-63913-7

In this Chapter 7 bankruptcy, after due notice, a hearing was held August 30, 2007, in Billings on Debtor’s Motion to Avoid Lien Under 11 U.S.C. § 522(f) filed July 31, 2007, together with the objection thereto filed by creditor Nancy G. Schwartz (“Schwartz”). The Debtor, Spring R. Strobbe, was represented at the hearing by attorney Dane C. Schofield, and attorney Schwartz appeared on her own behalf. Debtor testified, and Debtor’s Exhibit A was admitted into evidence without objection.1 This memorandum contains the Court’s findings of facts and conclusions of law.

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Stubbs - Chapter 13 Confirmation - Disposable Income - December 6, 2007

Case No. 07-61165-13

In this Chapter 13 bankruptcy, after due notice, a hearing was held December 4, 2007, in Butte on confirmation of Debtor’s amended Chapter 13 Plan dated November 28, 2007. The Chapter 13 Trustee, Robert G. Drummond of Great Falls, Montana, appeared at the hearing in opposition to confirmation of Debtor’s amended Chapter 13 plan, while Debtors’ attorney of record, R. Clifton Caughron of Helena, Montana, appeared in support of confirmation of Debtor’s amended Chapter 13 plan. Debtor Todd A. Stubbs (“Todd”) testified in support of confirmation. No exhibits were offered into evidence. This Memorandum of Decision sets forth the Court’s findings of fact and conclusions of law.

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Sullivan - Substantial Abuse - June 27, 2007

Case No. 06-60618-7

In this Chapter 7 bankruptcy, after due notice, a hearing was held May 8, 2007, in Butte on the United States Trustee’s Motion to Dismiss filed January 25, 2007. The United States Trustee (“UST”) was represented at the hearing by attorney Daniel P. McKay (“McKay”), of Great Falls, Montana, and Debtors were represented at the hearing by their attorney of record, R. Clifton Caughron (“Caughron”), of Helena, Montana. The Court heard testimony from Lawrence C. Rezentes (“Rezentes”)1 and Debtor Mark Sullivan (“Mark”). The UST’s Exhibits 1 through 8 were admitted into evidence without objection.�

The UST moves to dismiss this case under 11 U.S.C. § 707(b) arguing that this case is an abuse of Chapter 7 because “there is a presumption of abuse under § 707(b)(2) which the debtor will not be able to rebut, and even if the Court finds that there is no presumption of abuse or that Rezentes is employed by the Office of the United States Trustee as a bankruptcy analyst.

the Debtors have rebutted the presumption, the totality of the circumstances of the Debtors’ financial situation demonstrates abuse and this case should be dismissed under § 707(b)(3).”� Debtors filed a one sentence “Response to U.S. Trustee’s Motion to Dismiss” on February 5, 2007, wherein Debtors did not dispute any of the allegations leveled by the UST but set the matter for hearing. As a result of a request for continuance made by the UST, the hearing in this matter was continued from March 6, 2007, to May 8, 2007.

This Memorandum of Decision sets forth the Court’s findings of fact and conclusions of law as required by Fed.R.Civ.P. 52(a), made applicable to the proceeding by Rule 7052, F.R.B.P.� The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334 and 11 U.S.C. § 707.� For the reasons discussed herein, the Court finds that the UST’s Motion to Dismiss was filed for good cause and the Court will thus enter a separate order dismissing this case.

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Tranmer - Chapter 13 - Disposable Income - November 16, 2006

Case No. 06-60353-13

Pending in this Chapter 13 bankruptcy is confirmation of Debtors’ Chapter 13 Plan and the Trustee’s objections thereto based upon the “disposable income” test of 11 U.S.C. § 1325(b)(1)(B) and, by reference, 11 U.S.C. § 707(b)(2)(A)(ii). The Trustee objects that Debtors’ transportation expenses exceed the Standards issued by the United States Internal Revenue Service (“IRS”), and that Debtors’ monthly $15.00 in charitable contributions are not allowed under § 1325(b). After due notice a hearing on confirmation was held at Great Falls on July 20, 2006. The Debtors were represented at the hearing by attorney Kraig C. Kazda (“Kazda”), of Great Falls, Montana, and Debtor Thomas Roy Tranmer (“Thomas”) testified. The Chapter 13 Trustee Robert G. Drummond, of Great Falls, Montana, appeared. Debtors’ Exhibits (“Ex.”) 1 and 2 were admitted into evidence by stipulation. At the conclusion of the parties’ cases-in-chief the Court granted the parties time to file simultaneous briefs, which have been filed and reviewed by the Court, together with the record and applicable law. This matter is ready for decision. For the reasons set forth below the Trustee’s objections to confirmation will be sustained and confirmation of Debtors’ Plan denied by separate Order.

This is a core proceeding under 28 U.S.C. § 157(b)(2)(L) involving confirmation of a plan. At issue is: (1) whether the Debtors’ Chapter 13 Plan satisfies the “disposable income” requirement of § 1325(b)(1)(B) when their monthly gasoline expense exceeds by $180 the amount allowed debtors under IRS Standards which are applicable pursuant to § 1325(b)(3) and § 707(b)(2)(A)(ii); and (2) whether Debtors’ monthly $15.00 charitable contributions are allowable under §§ 1325(b)(2) and (b)(3). This memorandum includes the Court’s findings of fact and conclusions of law.

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Turnbull - Chapter 7 - Womack v. Turnbull- 704(b)(9)-Service - March 16, 2007

Case No. 04-63831-7

On January 29, 2007, Plaintiff filed this adversary proceeding. The return of summons states that the Defendants and their attorney were served by first class mail at the following respective addresses: “Michael Turnbull, 464 Rawlings Drive, Springcreek, NV 81805,” “Moriah Turnbull, 330 Genes Lane, Savannah, TN 38372,” and “Roy Johnson, Johnson Law Office, PO Box 1438, Billings, MT 59103-1438.” The above addresses for Defendants Turnbull are not the addresses provided on Debtors’ petition. On the petition, Defendants Turnbull listed their address as “843 Howard, Billings, MT 59101,” F.R.B.P. 7004(b)(9) provides, in pertinent part that “. . . service may be made within the United States by first class mail postage prepaid as follows: (9) Upon the debtor, after a petition has been filed by or served upon the debtor and until the case is dismissed or closed, by mailing a copy of the summons and complaint to the debtor at the address shown in the petition or to such other address as the debtor may designate in a filed writing.” The Court notes that the Rule was amended effective December 1, 2006, to eliminate the additional requirement that debtor’s attorney be served at the attorney’s post office address, and to eliminate the option to serve the debtor at an address disclosed in debtor’s statement of affairs

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Turville-Turville v. Cornerstone Mortgage - Judgment - March 9, 2007

Case No. 05-62447-13

On August 2, 2006, Plaintiff Lynne M. Turville (“Lynne”), represented by D. Randy Winner, of Great Falls, Montana, filed this adversary proceeding. Defendant Cornerstone Mortgage Company (“Cornerstone”), represented by Matthew Kolling of Dickenson, North Dakota, filed an answer to the complaint on September 15, 2006. This Court issued on October 4, 2006, a pretrial scheduling order setting this proceeding for trial on January 25, 2007. After summonses were returned, Plaintiff moved for entries of default against Defendants Carole L. Turville (“Carole”) and Joseph Peter Amato (“Joseph”). The Clerk of Court entered such defaults against Defendants Carole L. Turville and Joseph Peter Amato on November 21, 2006.� Plaintiff has not filed applications for the entries of default judgments against Defendants Carole L. Turville and Joseph Peter Amato.

Lynne and Cornerstone filed a stipulation of facts and exhibits on January 17, 2007. On the same date, they filed a proposed pretrial order together with exhibits. The Court approved the pretrial order on January 18, 2007, and based on a stipulation of the parties, the Court vacated the January 25, 2007, trial setting. Based upon the stipulation and the approved pretrial order, Exhibits (“Ex.”) B, C, D, E, F, G, and H1 are admitted. The Court directed the parties to file briefs on or before February 16, 2007. The parties have filed their respective briefs and this matter is ready for a decision. This memorandum of decision contains the Court’s findings of fact and conclusions of law. As is more fully discussed below, Debtor has standing to quiet title the subject property (“property”) in her name, but Debtor may not avoid the lien held by Cornerstone and is subject to the terms and conditions of the note and deed of trust.

The Court’s jurisdiction over this matter arises under 28 U.S.C. § 1334 and 11 U.S.C. § 105. This adversary proceeding is a core proceeding under 28 U.S.C. 157. The Court’s consideration of Lynne’s interest in the property and the validity of Cornerstone’s deed of trust are governed by state law. Farrey v. Sanderfoot, 500 U.S. 291, 299, 111 S.Ct. 1825 (1991), Board of Trade of City of Chicago v. Johnson 264 U.S. 1, 10, 44 S.Ct. 232 (1924), Long v. Bullard, 117 U.S. 617, 6 S.Ct. 917 (1886).

Exhibits A and B as contained in the stipulation and the approved pretrial order disclose a deed identified as Exhibit B for both exhibits. The Court is unaware as to what Exhibit A is and the agreed facts in the pretrial order reference Exhibits A and B for the same identified facts in paragraph 3 of the agreed facts.

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Tuss - Chapter 13 - Confirmation - Disposable Income and Other Necessary Expenses - January 5, 2007

Case No. 06-60508-13

Pending in this Chapter 13 bankruptcy is confirmation of Debtor’s Chapter 13 Plan and the Trustee’s objections thereto based upon the “disposable income” test of 11 U.S.C. § 1325(b)(1)(B) and, by reference, 11 U.S.C. § 707(b)(2). The Trustee objects that Debtor’s food, clothing and personal care expenses exceed the local standards issued by the United States Internal Revenue Service (“IRS”), while the Debtor contends that the IRS standards are merely guidelines and not iron clad or binding, and that his $261.85 in addition food/clothing/personal care expenses are needed for his health, welfare and production of income. After due notice a second hearing on confirmation was held at Great Falls on September 28, 2006. The Debtor Howard E. Tuss (“Tuss” or “Debtor”) appeared and testified at the hearing represented by attorney Gary S. Deschenes (“Deschenes”) of Great Falls, Montana. The Chapter 13 Trustee Robert G. Drummond, of Great Falls, Montana, appeared. Debtor’s Exhibits (“Ex.”) 1 through 13, consisting of Debtor’s monthly food and prescription receipts from March through September of 2006, were admitted into evidence by stipulation. Based on the admissions by Debtor’s counsel of a mathematical error and the “applicable commitment period” in the Debtor’s Plan required under § 1325(b)(1)(B) as defined at § 1325(b)(4), the Court denied confirmation of Debtor’s amended Plan, but heard evidence of Tuss’s additional food, clothing and personal care of approximately $261.85 per month incurred while working out of state. At the conclusion of the parties’ cases-in-chief the Court granted the parties time to file simultaneous briefs on whether Debtor may deduct the additional $261.85 per month, which have been filed and reviewed by the Court, together with the record and applicable law. This matter is ready for decision. For the reasons set forth below the Trustee’s “disposable income” objection to confirmation will be sustained by separate Order.

This is a core proceeding under 28 U.S.C. § 157(b)(2)(L) involving confirmation of a plan. At issue is whether the Debtor’s Chapter 13 Plan satisfies the “disposable income” requirement of § 1325(b)(1)(B) when his food, clothing and personal care expenses exceed by $261.85 the amount allowed debtors under IRS Standards which are applicable pursuant to § 1325(b)(3) and § 707(b)(2)(A)(ii). This Memorandum includes the Court’s findings of fact and conclusions of law.

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Urban - Constitutionality of Exemption Opt Out - January 31, 2007

Case No. 06-60045-13

In this Chapter 13 bankruptcy proceeding, the Chapter 13 Trustee, Robert G. Drummond, filed an Objection to Property Claimed as Exempt and a Motion for Certification of Claim of Unconstitutionality on March 27, 2006, challenging the constitutionality of 11 U.S.C. § 522(b)(3). The Trustee’s motion for certification of claim of unconstitutionality was granted by Order entered April 11, 2006. Subsequently, the United States of America, by and through the United States Department of Justice (“United States”), filed an uncontested motion to intervene on June 29, 2006, which motion was granted by Order entered that same date. The Chapter 13 Trustee and Matthew J. Troy, attorney for the United States, proceeded to file a stipulation on July 3, 2006, setting forth the following agreed facts:

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Van Nice - Compensation

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Van Nice - Objection to Claims

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Warren - Business Expenses - October 5, 2007

Case No. 07-60695-13

In this Chapter 13 case, in which the Trustee objected to confirmation on the grounds the Debtors deducted sale expenses from the sale of real property in calculating their disposable income under 11 U.S.C. § 1325(b) (Docket No. 21), the Court overruled the Trustee’s objection at hearing held on September 21, 2007. Although the Court overruled the Trustee’s objection, the Court directed the Debtors to amend their Form 22C to account for the gain or loss from their sale of property, in the same manner as though they were filling out their federal income tax Form 1040, including applicable schedules and related forms. The Court advised the parties that it would enter this Memorandum of Decision setting forth its reasoning. This memorandum contains the Court’s findings of fact and conclusions of law to this Court’s Order, Docket No. 23, entered September 24, 2007.

The facts are not in dispute. Bradley Warren and Toni Warren (together “Warrens”) filed a joint Chapter 7 petition on June 14, 2007, with their Schedules and Statement of Financial Affairs. Warrens filed a motion to convert the case to Chapter 13 on June 29, 2007, with updated Schedules, Statements and Form 22C. The Debtors’ response to question 10a on their Statement of Financial Affairs includes a transfer by Bradley Warren of his equity in 56 unimproved acres of real property at Dearborn, MT, in exchange for $3,000.00.

The case was converted by Order entered on July 2, 2007. Warrens filed their Chapter 13 Plan on July 11, 2007, proposing monthly plan payments in the amount of $125.00 for sixty (60) months. Warrens’ original Form 22C showed an above-median income at lines 15 and 60, and therefore a 5-year commitment period at Line 17. Monthly disposable income was calculated at Line 58 in the amount of negative $19.55.

The hearing on confirmation was set for September 21, 2007. The Chapter 13 Trustee filed an objection to confirmation on September 17, 2007, on the grounds Debtors failed to include income from the sale of real property in their disposable income calculation and thus failed the “disposable income” requirement of 11 U.S.C. § 1325(b). Debtors filed a memorandum in response to the Trustee’s objection on September 20, 2007, with a copy of the contract for deed documenting their sale of real property. Debtors’ memorandum contends that they should be entitled to deduct the basis from the amount they received from the sale of their real property as allowed under pertinent Internal Revenue Code (“IRC”) provisions, Title 26, U.S.C. Debtors argue that they suffered a net loss on their sale of property in the amount of $3,853.30.

The Court overruled the Trustee’s disposable income objection at the hearing, but ordered the Debtors to amend their Form 22C within 10 days to account for the gain or loss from the sale as if they were filling out a Form 1040 and related forms and schedules1. Confirmation was reset for October 12, 2007.

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Weigand - Disposable Income - Business Income - October 9, 2007

Case No. 07-60620-13

 In this Chapter 13 case, in which the Trustee objected to confirmation on the grounds the Debtors deducted ordinary and necessary business expenses from their gross income from the operation of a business in calculating their applicable commitment period and disposable income under 11 U.S.C. § 1325(b) (Docket No. 14), the Court overruled the Trustee’s objection at hearing held on September 21, 2007. Although the Court overruled the Trustee’s objection, the Court directed the Debtors to amend their Plan to include an executory contract which generated income, and reset the hearing on confirmation for October 12, 20071. The Court advised the parties that it would enter this Memorandum of Decision setting forth its reasoning. ThisDebtors filed their amended Plan on September 27, 2007. 1 memorandum contains the Court’s findings of fact and conclusions of law to this Court’s Order, Docket No. 30, entered September 24, 20072.

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Whitney - Motion for Discharge Denied - June 7, 2007

Case No. 04-62483-13

Pending in this Chapter 13 bankruptcy is Debtor’s Motion for Discharge Following Full Payment of Plan filed May 3, 2007. A hearing on the contested matter was held, after due notice, in Butte on June 5, 2007. Attorney R. Clifton Caughron of Helena, Montana appeared at the hearing on behalf of Debtor, and Debtor Teresa Whitney testified. The Chapter 13 Trustee, Robert G. Drummond, appeared at the hearing in opposition to Debtor’s Motion. Debtor’s Exhibit A and the Trustee’s Exhibits 2 and 3 were admitted into evidence without objection. At the conclusion of the hearing, the Court deemed the record closed and took the matter under advisement. This Memorandum of Decision sets forth the Court’s findings of fact and conclusions of law and for the reasons stated herein, the Court, by separate order, will deny Debtor’s Motion.

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Wilson and Card-Wilson Scotch - Chapter 12 - Eligibility Interest Rate - February 7, 2007

Case No. 05-65161-12

Pending in the above-captioned jointly administered Chapter 12 bankruptcy cases are Confirmation of the Debtors’ Chapter 12 Plans and objections thereto filed by creditors Paul E. Harper Revocable Trust (“Harper Trust”) and by Ag Sales, and Debtors’ motion for valuation of Ag Sales’ security. A hearing on these matters was held after due notice on October 31, 2006, with the parties appearing represented by counsel and offering witness testimony and exhibits, after which the Court granted the parties time to file briefs and took the matter under advisement.� After review of the briefs, record and applicable law, this Court sustains Harper Trust’s objection to confirmation based upon 11 U.S.C. § 1225(a)(5)(B)(ii), but the Court concludes that Jeffery Paul Wilson and Shoni Lee Card satisfy the income requirement of “family farmer” as defined at 11 U.S.C. § 101(18) and denies Harper Trust’s request to dismiss.

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Wilson and Card-Wilson Scotch - Interplany Between Rules of Evidence 201 and 801 -

February 2, 2007

Case No. 05-65161-12

On February 1, 2007, the Paul E. Harper Revocable Trust (“the Trust”) filed a request for Judicial Notice requesting this Court to take judicial notice of the following: “Schedules and Statement of Financial Affairs filed in Case No. 05-65161-12, and particularly Schedules A and D; Application to Employ Attorneys filed March 22, 2006 filed in Case No. 05-65161-12;� Chapter 12 Plan (dated March 27, 2006) filed in Case No. 05-65161-12; All pleadings filed in Adversary Proceeding No. 06-00017; and Schedules and Statement of Financial Affairs filed in Case No. 06-60369-12, and particularly Schedules A and D.” The Court is uncertain as what adjudicative facts the Trust is requesting the Court to consider.

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Wright-Olympic Coast Investment v. Wright - Discharge -

Case No. 05-61714-7

In this adversary proceeding Plaintiff Olympic Coast Investment (“OCI”) seeks denial of Defendants/Debtors’ discharge under 11 U.S.C. §§ 727(a)(3), (a)(4)(A) and (a)(5). The Court held the trial in this proceeding, after due notice, at Great Falls on November 21, 2006, after which the Court allowed the parties to submit briefs. For the reasons set forth below, the Court and the Defendants’ attorney filed a Notice in the above-captioned Chapter 7 bankruptcy case on January 2, 2007, (Docket No. 74) stating that Ann Marie Wright died on December 29, 2006.

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