2008 Decisions

 

Bailargeon - Chapter 13 Confirmation - June 13, 2008

Case No. 08-60024-13

In this chapter 13 bankruptcy case, after due notice, a hearing was held April 15, 2008, in Billings on confirmation of Debtors’ Chapter 13 Plan filed January 21, 2008, together with the Trustee’s objections thereto. Debtors appeared personally at the hearing and were represented by their counsel of record, Gary S. Deschenes of Great Falls, Montana. The chapter 13 trustee, Robert G. Drummond of Great Falls, Montana, also appeared at the hearing. In addition, debtor Cynthia M. Baillargeon’s father, Randolph S. Green (“Randy”) appeared at the hearing with his counsel, Craig Martinson of Billings, Montana. Debtor Cynthia M. Baillargeon (“Cyndi”), Randy and debtor Robert W. Baillargeon (“Robert”) testified and the Trustee’s Exhibits 1 through 4 were admitted into evidence without objection. Debtors and the Trustee have filed post-hearing briefs in support of their respective positions and confirmation of Debtors’ Chapter 13 Plan is now ripe for decision. This Memorandum of Decision contains the Court’s findings of fact and conclusions of law. For the reasons set forth herein, the Court denies confirmation of Debtors’ Chapter 13 Plan.

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Byrne - Chapter 13 Confirmation - Disposable Income - November 21, 2008

Case No. 08-60513-13

Confirmation of Debtors’ Chapter 13 Plan is pending in this Chapter 13 case. The Chapter 13 Trustee filed objections to confirmation based on Debtors’ failure to satisfy the “disposable income” requirement of 11 U.S.C. § 1325(b)(1)(B), and that Debtors are not entitled to deduct $200 for motor vehicle ownership/lease expense on their Form B22C, Line 29, under In re Deadmond, 2008 WL 191165 (D. Mont. 2008). A hearing on confirmation was held after due notice at Great Falls on October 24, 2008. The Debtor Michael Byrn (“Michael”) appeared and testified, represented by attorney Gary S. Deschenes of Great Falls. The Standing Chapter 13 Trustee Robert H. Drummond, of Great Falls, Montana, appeared in opposition. At the conclusion of the parties’ cases-in-chief the Court closed the record and took the matter under advisement. After review of the record and applicable law, the Trustee’s disposable income objection will be sustained and confirmation denied for the reasons set forth below, but the Trustee’s objection based on the $200 vehicle expense is overruled.

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Deamond - Chapter 7 - Abuse - February 5, 2008

Case No. 06-60512-7

In this Chapter 7 bankruptcy, the United States Trustee (“UST”) filed a Motion to Dismiss on September 22, 2006, seeking to dismiss this case arguing that Debtors’ case is a presumed abuse of Chapter 7 under 11 U.S.C. § 707(b)(2), and in the alternative, on the basis that Debtors’ petition is 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, and set the matter for hearing. Following a hearing held November 7, 2006, the Court entered a Memorandum of Decision and an Order on February 27, 2007, ruling in favor of the Debtors’ and denying the UST’s Motion to Dismiss. In particular, this Court held that while Debtors failed to provide any justification for a claimed expense of $310.32 for a housing and utility adjustment, and thus denied the same, Debtors could claim expenses totaling $803.00 for a transportation ownership/lease expense, even though Debtors owned both of their two vehicles free and clear of any liens.

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Doty-Dreditor - Attorneys Fees August 28, 2008

Case No. 08-60173-13

In this Chapter 13 case, after due notice, a hearing was held at Missoula on August 5, 2008, on the Debtors’ objection (Docket No. 25) to Proof of Claim No. 8-2 filed by Apex Funding Group, Inc. (“Apex”), and on Debtor’s objection (Docket No. 37) to Apex’s Application to approve Fees of Over-Secured Creditor (“Application”) (Docket No. 35). Apex filed a response to Debtors’ objection to its Proof of Claim and was represented at the hearing by attorney Quentin M. Rhoades (“Rhoades”) of Missoula. Debtor was represented by attorney Jon R. Binney (“Binney”) of Missoula. No testimony or exhibits were offered. The Court granted Debtors’ request to take judicial notice of Apex’s Application and Proof of Claim No. 8-2. Rhoades conceded at the hearing that Apex’s prepetition fees are limited by MONT. CODE ANN. (“MCA”) § 71-1-320 to the lesser of one percent (1%) of the obligation or $1,000, but argued that Apex’s claim for post-petition fees remains a legal question under bankruptcy law which preempts state law. After hearing statements from counsel the Court took both matters under advisement. After review of the record and applicable law, the Court sustains the Debtors’ objections and allows Apex attorney’s fees in accordance with MCA § 71-1-320 and its published decision, In re Ransom, 361 B.R. 895, 901-02 (Bankr. D. Mont. 2007). The allowance of Apex’s fees in its claim and Application is a core proceeding under 28 U.S.C. § 157(b)(2)(B). This Memorandum includes the Court’s findings of fact and conclusions of law.

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Dumontier - Objection to Claim - June 13, 2008

Case No. 08-60050-7

In this Chapter 7 bankruptcy case, after due notice, a hearing was held April 1, 2008, in Butte on Debtor’s Motion to Modify Stay filed March 7, 2008, and on Debtor’s Objection to Proof of Claim No. 6 filed by Mike McVicker. Attorney Daniel Sweeney of Butte, Montana, appeared at the hearing on behalf of the Debtor and attorney Harold V. Dye of Missoula, Montana, appeared at the hearing on behalf of Mike McVicker (“McVicker”). Attorney Jamie McKittrick (McVicker’s divorce attorney), of Missoula, Montana, testified and Exhibit 1 was admitted into evidence without objection. At the April 1, 2008, hearing the Court granted Debtor’s Motion to Modify Stay to allow Debtor and McVicker to seek a final resolution of all matters in their dissolution proceeding now pending in Lake County and identified as Cause No. DR-03-98, which matters necessarily include McVicker’s contempt citations against Debtor, but reserved ruling on that part of McVicker’s Objection to Debtor’s Motion that requested that McVicker be allowed to collect on his debt against any of Debtor’s property not listed in Debtor’s schedules. The Court’s oral ruling is memorialized in an Order entered April 3, 2008.� The Court granted the parties until April 11, 2008, to file briefs in support of their respective positions on Debtor’s Objection to Proof of Claim No. 6 filed by McVicker and on McVicker’s request to allow collection of a nondischargeable property settlement indebtedness from any of Debtor’s property which is not property of the estate. Both parties timely filed post-hearing briefs. Consequently, the matter is now ready for decision. This Memorandum of Decision contains the Court’s findings of fact and conclusions of law.

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Ellis - Exemptions - August 21, 2008

Case No. 08-60230-7

In this Chapter 7 bankruptcy, the Trustee filed an Objection to Claim of Exemption on April 30, 2008, objecting to Debtor’s claim of exemption in “Equity of Redemption from foreclosure sale of residence.” Debtor filed a two sentence reply on May 13, 2008, arguing that the “right of redemption after a foreclosure sale is a personal privilege and not a property rights [sic] that can be taken by a bankruptcy trustee and sold. Parcells v. Nelson, 103 Mont. 412, 16, 63 P.2d 131 (1936); Brown v. Timmons, 79 Mont. 246, 250, 256 Pac. 176 (1927).” A hearing on the matter was scheduled for June 10, 2008, but the Trustee appeared at the hearing and requested that the parties be allowed to submit the matter to the Court on stipulated facts and simultaneous briefs. A Stipulation of Facts was filed on June 20, 2008, and both parties filed their respective, timely briefs on July 10, 2008. The matter is thus ready for decision. This Memorandum of Decision sets forth the Court’s findings of fact and conclusions of law.

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Fisher - Motion of DOR to Convert - April 15, 2008

Case No. 07-61338-11

In this Chapter 11 bankruptcy, after due notice, a hearing was held April 1, 2008, in Butte on the Motion to Convert filed by the United States Trustee (“UST”) on February 4, 2008, and on the Montana Department of Revenue’s (“MDOR”) Motion to Covert filed February 5, 2008.� Neal G. Jensen (“Jensen”) of Great Falls, Montana, attorney for the UST, prosecuted the UST’s Motion and attorney Lynn H. Butler (“Butler”) of Austin, Texas prosecuted the MDOR’s Motion. Debtors were represented at the hearing by their attorney of record, R. Clifton Caughron (“Caughron”) of Helena, Montana. Debtors Brad Fisher (“Brad”) and Janet Fisher (“Janet”) testified as did Kim Davis of the MDOR. The UST’s Exhibits 1 through 10 and the MDOR’s Exhibits 1 through 22 were admitted into evidence without objection.1 Debtors’ rebuttal Exhibit A was admitted into evidence over the objection of the MDOR and Debtors’ Exhibit B was admitted into evidence without objection.

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Fisher - Turnover of Property - October 10. 2008

Case No. 07-61338-7

In this Chapter 7 bankruptcy, the Trustee filed a Motion for Summary Judgment on September 26, 2008, which Motion is accompanied by a Brief in Support of Trustee's Motion for Summary Judgment and a Statement of Uncontroverted Facts. The Trustee's Motion was filed in accordance with Mont. LBR 9013-1 in that the Trustee's Motion includes a notice provision advising Debtors and their counsel that they have ten days to file a responsive pleading and that “[i]f no objections are timely filed, the Court may grant the relief requested as a failure to respond . . . shall be deemed an admission that the relief requested should be granted.” Similarly, Mont. LBR 7056-1(2) and (3) provide in relevant part: “Opposition to a motion for summary judgment, if any, must be filed within ten (10) days after the motion is served. ... All material facts in the moving party’s Statement of Uncontroverted Facts are deemed to be admitted unless controverted by a Statement of Genuine Issues filed by the opposing party.” In the instant case, Debtors have not filed a response to the Trustee's Motion nor have Debtors filed a statement of genuine issues. Thus, all material facts set forth in the Trustee’s Statement of Uncontroverted Facts filed September 26, 2008, are deemed admitted. 

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Fray - Motion for Contempt - Violation of Stay - April 11, 2008

Case No. 05-63305-7

In this Chapter 7 case a hearing was held after due notice at Missoula on April 3, 2008, on the Debtor James Eugene Fray’s (“James”) Motion for Contempt against his former spouse Yvonne Fray (“Yvonne”), filed March 7, 2008 (Docket No. 40) and for recovery of damages for violation of the automatic stay. Yvonne filed an opposition to Debtor’s Motion and appeared and testified, represented by attorney Monte Jewell (“Jewell”) of Missoula, Montana. James Fray appeared and testified, represented by attorney Gary W. Wolfe (“Wolfe”) of Missoula, Montana. No exhibits were admitted.

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Frazure - Creditor Fees - March 27, 2008

Case No. 06-60704-13

In this Chapter 13 bankruptcy, after due notice, a hearing was held February 5, 2008, in Butte on confirmation of Debtors’ Sixth Amended Chapter 13 Plan dated December 3, 2007, and on Debtors’ Motion for Award of Fees and Costs filed January 8, 2008, wherein Debtors seek an award of fees and costs against secured creditor Cheryl L. Britton (“Britton”) for the fees and costs Debtors assert they have incurred in defending Britton’s Motion to Determine Applicability of Stay, and for prosecuting an appeal of this Court’s Order holding that the automatic stay did not apply to Britton because 11 U.S.C. § 108(b) trumped 11 U.S.C. § 1322(c)(1). The Chapter 13 Trustee, Robert G. Drummond, of Great Falls, Montana, appeared at the February 5, 2008, hearing. In addition, attorney R. Clifton Caughron (“Caughron”), of Helena, Montana, appeared at the hearing on behalf of the Debtors and attorney James A. Patten, of Billings, Montana, appeared at the hearing on behalf of Britton. No testimony orexhibits were offered at the hearing. However, the Court takes judicial notice of the record inthis case, including Britton’s Exhibits A, B, C and D that were admitted into evidence at a priorhearing.1 Debtors filed a brief with their Motion for Award of Fees and Costs on January 8,2008. Although Debtors had filed a brief with their motion, the Court, after hearing commentsfrom Debtors’ counsel and Britton’s counsel, granted Debtors time through February 15, 2008,to file a brief in support of their position, and granted Britton through February 22, 2008, torespond to Debtors’ initial or supplemental briefs. Debtors tardily filed a “Response toBritton’s Objection to Debtors’ Motion and Brief for an Award of Fees and Costs” on February18, 2008. Britton timely filed a Reply to Debtors’ Response on February 21, 2008, notingtherein that “[t]his reply is to the Debtor’s [sic] response which was late filed on February 18, 2008.

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Hall - Objection to Claim - November 24, 2008

Case No. 99-40381-7

In this Chapter 7 case a hearing was held at Great Falls after due notice on November 21, 2008, on the Debtor’s objection, filed October 2, 2008, (Docket No. 48) to Proof of Claim No. 3 filed by Debtor’s former mother-in-law Barb Kernaghan (“Barb”), and on the Trustee’s Notice of Final Report and Proposed Distribution (Docket No. 52) and Debtor’s objection thereto. Barb filed a response to Debtor’s objection to Claim No. 3 and appeared and testified at the hearing pro se. The Debtor Darlene F. Hall (“Debtor”) also appeared and testified pro se. No exhibits were admitted. At the conclusion of the parties’ cases-in-chief the Court took the matter under advisement.

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Hettick - Motion to Vacate - March 13, 2008

Case No. 04-60081-7

In this Chapter 7 bankruptcy, after due notice, a hearing was held March 6, 2008, in Missoula on the Trustee’s Application to Appoint Employment of Professional filed January 22, 2008, together with Kaye Tomlinson’s “Objection to Employment of Counsel for Bankruptcy Estate, [and] Motion to Vacate January 23, 2008, Order Authorizing Appointment of Counsel for Estate” filed January 25, 2008. The Chapter 7 Trustee, Donald W. Torgenrud, Jr. (“Torgenrud”), appeared at the hearing with attorney Quentin M. Rhoades (“Rhoades”) of Missoula, Montana and Kaye Tomlinson (“Tomlinson”) was represented at the hearing by attorney Timothy B. Strauch (“Strauch”) of Missoula, Montana. The Court heard arguments from attorneys Strauch and Rhoades. Torgenrud testified. Tomlinson’s Exhibits 1 through 19 were admitted into evidence without objection, Tomlinson’s Exhibit 20 was admitted into evidence over the objection of Rhoades, and the Trustee’s Exhibit A was admitted into evidence without objection. At the conclusion of the hearing, the Court took the matter under advisement. This Memorandum of Decision sets forth the Court’s findings of fact and conclusions of law.

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Houston-Anderson v. Huston - Exception to Discharge - November 18, 2008

Case No. 07-61306-7

In this adversary proceeding Plaintiffs Wendell H. Anderson (“Wendell”) and Linda Anderson (“Linda”) (together “Andersons”) seek exception from the Defendant/Debtor William C. Houston’s (“Houston”) discharge of their claims totaling $475,524.00 from a state court civil judgment under 11 U.S.C. § 523(a)(6) for willful and malicious injuries by Houston to them. Houston opposes exception from his discharge on the grounds that Linda’s $100,000 claim was not the result of a willful and malicious act against Linda, and that Wendell failed to satisfy his burden of proof that his injury was willful and malicious under § 523(a)(6). After trial of this cause and review of the parties’ briefs and the record, this matter is ready for decision. For the reasons set forth below, a separate Judgment shall be entered against Houston in Wendell’s favor excepting his claim in the amount of $375,524.00 plus costs and accrued interest from Houston’s discharge under § 523(a)(6), but dismissing and discharging Linda’s derivative claim.

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Hughes-Valley Bank v. Hughes - Order Setting Trial - November 17, 2008

Case No. 08-60003-12

Defendant/Debtor Charles R. Hughes filed his bankruptcy case on January 3, 2008. Plaintiff commenced this adversary proceeding on April 3, 2008, by removing a state court case filed in the Montana Twentieth Judicial District Court, Lake County during February, 2003, and captioned VALLEY BANK OF RONAN, Plaintiff, vs. CHARLES R. HUGHES, Trustee under Charles R. Hughes Loving Trust; COUNTRYWIDE HOME LOANS, INC.; and FIDELITY NATIONAL TITLE INSURANCE COMPANY, Defendants, Cause No. DV-03-28. On August 15, 2008, Plaintiff (“Valley Bank”) filed an objection to the jury trial demand, doc. # 54, requested by Defendant Charles R. Hughes, Trustee under Charles R. Hughes Loving Trust (“Hughes”). Hughes requested an extension of time to respond, doc. # 55, which this Court granted, doc. # 56. On September 5, 2008, Hughes filed a response, doc. # 59, and scheduled a hearing for October 9, 2008. The parties filed briefs in support of their respective positions. On October 9, 2008, Trent Baker, of Missoula, MT appeared on behalf of the Valley Bank and James A. Patten, of Billings, Montana, and G. Patrick HagEstad, of Missoula, Montana, appeared on behalf of Hughes. The parties presented their arguments and the Court took the matter under advisement. After considering Valley Bank’s objection, Hughes’ response and the respective briefs, the Court is ready to issue its decision. Valley Bank’s objection to Hughes’ demand for a jury trial is sustained for the reasons set forth herein.

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Jackson - Compensation - May 14, 2008

Case No. 05-65276-13

In this Chapter 13 bankruptcy, after due notice, a hearing was held May 13, 2008, in Butte on approval of the Amended and Updated Application for Professional Fees and Costs (“Amended Application”) filed by Debtors’ attorney of record, R. Clifton Caughron of Helena, Montana (“Caughron”), on March 13, 2008. Caughron appeared at the hearing in support of his Application. No appearance was made in opposition thereto. In addition, the Court heard no testimony and no exhibits were offered into evidence.

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Jim Palmer Equipment - Relief from Stay - November 25, 2008

Case No. 08-60892-11

Debtor's Motion for Modification of Lease filed August 27, 2008, and Navistar Leasing Company (“Navistar”)’s Motion to Modify Stay filed on October 6, 2008, are pending in this Chapter 11 bankruptcy case. At a hearing held November 18, 2008, in Billings, the parties agreed through their respective counsel that resolution of the Motion to Modify Stay necessarily depended on the Court's ruling on Debtor's Motion for Modification of Lease.

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Jones - Creditor Application for Compensation - January 24, 2008

Case No. 05-65426-7

In this Chapter 7 case, after due notice hearing was held at Missoula on January 10, 2008, on the Request for Payment of Administrative Expenses filed by Jeff M. Smith (hereinafter “Smith”) and JS Tower Management Services, Inc. (“JS Tower”) on October 19, 2007 (Docket No. 263) (“Request”), asking for $67,392.73 in building rent as an administrative expense for the period from December 2005 through October 2006 under a written lease. The Trustee filed an objection and was represented at the hearing by attorney Harold V. Dye (“Dye”) of Missoula, Montana. Smith and JS Tower were represented by attorney Edward A. Murphy (“Murphy”) of Missoula, Montana. Smith testified in support of his and JS Tower’s Request. Smith’s Exhibits (“Ex.”) A and B, and the Trustee’s Ex. A,1 B, C, D, and E, all were admitted into evidence. In addition the Court granted the Trustee’s request for judicial notice (Docket No. 278). After the conclusion of the parties’ cases-in-chief the Court took the matter under advisement. After review of the record and applicable law, and for the reasons set forth below, the Request for Payment of Administrative Expenses filed by Smith and JS Tower will be denied by separate Order.

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Jones - Violation of Discharge Injunction - April 10, 2008

Case No. 05-65285-7

In this Chapter 7 case, after due notice hearing was held at Missoula on January 10, 2008, on the Debtors’ Motion for Sanctions for Contempt of Court” (“Motion”) against Northwest Collectors, Inc. (“Northwest Collectors”) and its attorney Patrick G. Sandefur/the Law Office of Patrick G. Sandefur (“Sandefur”), of Missoula, Montana, and Mountain West Co-op (“Cenex”) (Docket No. 15), filed November 28, 2007, for violation of the discharge injunction of 11 U.S.C. § 524(a)(2). Northwest Collectors, Sandefur and Cenex filed an objection and were represented at the hearing by counsel. The Debtors appeared represented by counsel in support of the Motion. The parties offered witness testimony, and exhibits were admitted. At the conclusion of the hearing the Court directed Debtors’ counsel to file an affidavit of fees and costs, and granted Northwest Collectors and Sandefur 10 days to respond and request a hearing. The parties filed briefs and agreed to waive further hearing on the amount of attorney fees and costs by Stipulation filed on February 28, 2008, which the Court approved and took the matter under advisement. This matter is ready for decision. For the reasons set forth below, Debtors’ Motion will be granted with respect to Northwest Collectors and Sandefur for violations of the discharge injunction, but the Motion is denied with respect to Cenex. A separate Order and Judgment against Northwest Collectors and Sandefur shall be entered accordingly.  

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Josephson - Withdrawal - Confirmation - January 9, 2008

Case No. 04-60004-13

In this Chapter 13 bankruptcy, after due notice, a hearing was held January 8, 2008, in Butte on: (1) a Motion for Approval of Addendum to First Post-Confirmation Amended Chapter 13 Plan filed November 21, 2007; and (2) an Order to Show Cause entered December 20, 2007. In addition to the above matters, a “Response to Motion for Order to Show Cause, Withdrawal of Motion to Amend, and Motion to Withdraw as Counsel” was filed by R. Clifton Caughron on January 7, 2008. The aforementioned pleading, although not noticed for hearing, relates directly to the two matters set for hearing. The Chapter 13 Trustee, Robert G. Drummond, of Great Falls, Montana appeared at the hearing as did Debtors’ counsel of record, R. Clifton Caughron (“Caughron”), of Helena, Montana. Debtor Alissa R. Josephson (“Alissa”) testified and the Trustee’s Exhibit 1 was admitted into evidence without objection. In addition to the testimony and Exhibit, the Court takes judicial notice of Caughron’s 11 U.S.C. § 329(a) and Rule 2016(b), F.R.B.P., Disclosure of Compensation of Attorney for Debtor (“Caughron’s Disclosure of Compensation”) filed January 5, 2004, and all Debtors’ Chapter 13 Plans and Addendums filed in this case.

Pursuant to 28 U.S.C. § 1334(a), this Court has exclusive jurisdiction over this Chapter 13 case. The pending matters are core proceedings under 28 U.S.C. § 157(b)(2). This Memorandum of Decision sets forth the Court’s findings of fact and conclusions of law.

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Kaufman - Chapter 13 Confirmation - Disposable Income - August 21, 2008

Case No. 08-60501-13

 In this Chapter 13 bankruptcy, after due notice, a hearing was held July 24, 2008, in Billings on confirmation of Debtors' Chapter 13 Plan dated May 14, 2008. 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 Pamela Sue Kaufman (“Pamela”) and Zene Johnson of The Realty Place testified in support of confirmation. Debtors' Exhibits A and B were admitted into evidence without objection. This Memorandum of Decision sets forth the Court’s findings of fact and conclusions of law.

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Krause-Krause v. Krause - Notice of Removal - June 20, 2008

Case No. 01-43609-7

This adversary proceeding involves a family dispute1. Plaintiff Patricia Kraus (“Pat”), who is the mother of co-Plaintiff Debra Purtle (“Debra”), Debtor/Defendant Kenneth R. Kraus (“Ken”) and Defendant David J. Kraus (“David”), seek judgment quieting title to approximately 45 acres of real property in Cascade County, Montana, on which Pat and Debra reside, and personal property, all of which is owned in the name of an involuntarily dissolved Montana corporation, the co-Plaintiff D-K Rentals & Contracting, Inc. (“D-K Rentals”), and seek damages for emotional pain and suffering and attorneys fees and costs. Defendants oppose Plaintiffs’ claims for relief and counterclaim to award Ken and David each fifty percent (50%) of the real and personal property, and in addition seek an accounting for the property and damages for rent and conversion of real and personal property. Trial of this cause was held at Great Falls on March 14, 2008. Pat, Debra, David and Ken all appeared and testified, and exhibits were admitted2.

At the conclusion of the parties’ cases-in-chief the Court took the matter under advisement after first holding that the subject real property is owned in the name of D-K Rentals based on Ken’s admission at trial that a quitclaim deed which he recorded is invalid. After review of the record and applicable law, this matter is ready for decision. For the reasons set forth below, Judgment will be entered against the Defendants quieting title in the real and personal property of the dissolved corporation in the name of Debra Purtle, but dismissing Plaintiffs’ claim for attorney fees and costs and emotional distress, and dismissing all of

1Plaintiff James Kraus, Pat’s spouse and father of Debra, Ken and David, is deceased.

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Llewellyn - Objection to Claim - April 22, 2008

Case No. 07-61110-13

On September 21, 2007, Debtors filed this bankruptcy case. On December 17, 2007, Wilshire Credit Corporation, as servicer for Wells Fargo Bank, N.A., as Trustee for the MLMI Trust Series 2005-WMC2 (“WCC”), filed a timely secured proof of claim no. 8 (“POC 8"), with an attached itemization, in the total amount of $193,542.86. On January 2, 2008, Debtors filed an objection to POC 8, and scheduled a hearing for February 7, 2008. WCC filed a response to Debtors’ objection on January 3, 2008, with attachments. Through an unopposed motion to continue, the hearing on the objection to POC 8 was continued to March 6, 2008. On March 3, 2008, the parties filed an agreed request to submit this contested matter to the Court based on the filed proof of claim, the objection, the response and attachments and the filed briefs. At the scheduled hearing on March 6, 2008, the parties provided no testimony from any witness and did not introduce any additions exhibits other than the noted documents filed in the claims register and the docket. At the scheduled hearing on March 6, 2008, the Court informed the parties that it approved their request and deemed the matter submitted and ready for a decision. This memorandum contains the Court’s findings of fact and conclusions of law.The Court has jurisdiction of this contested matter under 28 U.S.C. § 157(b)(2)(B) as the matter involves an objection to a filed proof of claim, which is a core proceeding.

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Long-Mountain West v. Long - Attorney Withdrawal - July 18, 2008

Case No. 07-60011-7

In this adversary proceeding, which is currently on appeal taken by the Plaintiff Mountain West Bank, N.A. (“MWB”) of Judgment entered on June 17, 2008, Defendant’s attorney James H. Cossitt (“Cossitt”) filed on June 28, 2008, a motion for leave to withdraw as counsel (DocketNo. 66). No objections were filed. The hearing on Cossitt’s motion for leave to withdraw required by Montana Local Bankruptcy Rule (“Mont. LBR”) 2090-5(a) was held after due notice at Missoula on July 17, 2008. Cossitt appeared and addressed the Court, and the letter attached to Cossitt’s motion was admitted. The Court took Cossitt’s motion under advisement at the hearing. After reviewing Cossitt’s motion and the record, and applicable law, the Court denies Cossitt’s motion for the reasons stated below.

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Long-Mountain West v. Long - Decision - June 17, 2008

Case No. 07-60011-7

In this adversary proceeding the Plaintiff Mountain West Bank, N.A. (“MWB”) seeks exception from the Defendant/Debtor Michael Andrew Long’s (“Long”) discharge of its claim for a defaulted loan under 11 U.S.C. §§ 523(a)(4) and 523(a)(6), and objects to Long’s discharge under 11 U.S.C. §§ 727(a)(3) and 727(a)(4)(A). Long opposes exception from or denial of his discharge, and counterclaims for his attorney fees and costs based on provisions of the loan agreements. Trial of this adversary proceeding was held at Missoula on January 28, 2008, and the parties have filed briefs which have been reviewed by the Court together with the record and applicable law. For the reasons set forth below judgment will be entered dismissing MWB’s claims for relief against Long, and dismissing Long’s counterclaim for attorney’s fees and costs.

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Long-Mountain West v. Long - Reconsider attorney Withdrawal - September 15, 2008

Case No. 07-60011-7

In this adversary proceeding the Court held a hearing on September 11, 2008, on the “Motion to: 1) Alter or Amend Judgment; and 2) Motion for Relief or Judgment or Order (docket #75)” filed by Defendant’s attorney James H. Cossitt (“Cossitt”), of Kalispell, Montana, on July 28, 2008 (hereinafter the “Motion”). No objection was filed, but the Debtor/Defendant Michael Andrew Long (“Long”) appeared and testified in opposition to Cossitt’s Motion, which seeks relief from the Court’s Order entered July 18, 2008, denying Cossitt’s motion to withdraw as Long’s counsel (Docket No. 66). Cossitt appeared represented by attorney Jeffrey Greenwell, of Kalispell, Montana, and testified, and exhibits (“Ex.”) 1, 2, 4, 5, 7, and 8 were admitted. At the conclusion of the hearing the Court took Cossitt’s Motion under advisement. After review of the record the Court concludes that Cossitt failed to satisfy his burden for relief under Fed. R. Civ. P. Rules 59(a)(2) and 60(b). A separate Order will be entered denying Cossitt’s Motion.

This adversary proceeding is on appeal by the Plaintiff of the Judgment entered on June 16, 2008, in Long’s favor dismissing Plaintiff’s claims for relief, with a memorandum of decision. Notwithstanding the appeal, this Court retains jurisdiction over all matters that it must undertake to implement or enforce a judgment or order, although it may not alter or expand upon the judgment. In re Sherman, 491 F.3d 945, 967 (9th Cir. 2007). Thus, this Court has jurisdiction over Cossitt’s Motion, which does not seek to alter or expand upon the Judgment on appeal.

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Martellaro - Confirmation - Student Loans - December 1, 2008

Case No. 08-60408-13

The Chapter 13 Trustee's Objection, filed August 25, 2008, to Proof of Claim No. 5 filed by Chase Home Finance, LLC (“Chase”) is pending in this Chapter 13 bankruptcy on the grounds the claim is overstated by $350.00 for “attorney fees for filing proof of claim, reviewing plan, and filing request for special notice,” which the Trustee argues is not authorized under Montana law, MONT. CODE ANN. (“MCA”) § 71-1-320, because a foreclosure has not been commenced. The Trustee’s Objection was scheduled for hearing on October 9, 2008. At the hearing the Standing Chapter 13 Trustee Robert G. Drummond of Great Falls, Montana, and counsel for Chase, Martin S. King of Missoula, Montana, agreed to submit the Trustee's Objection on stipulated facts and briefs, which were filed on October 20, 2008, and have been reviewed by the Court along with the applicable law. This matter is ready for decision. For the reasons set forth below, the Court overrules the Trustee’s Objection and allows Chase’s attorney’s fees in Proof of Claim No. 5 in accordance with Montana law and its published decision, In re Ransom, 361 B.R. 895, 901-02 (Bankr. D. Mont. 2007).

This Court has jurisdiction in this Chapter 13 case under 28 U.S.C. § 1334(a). Allowance of Chase’s claim against the estate is a core proceeding under 28 U.S.C. § 157(b)(2)(B). This Memorandum of Decision sets forth the Court’s findings of fact and conclusions of law.

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Martellaro - Objection to Claim - Creditor Attorney Fees - December 1, 2008

Case No. 08-60408-13

The Chapter 13 Trustee's Objection, filed August 25, 2008, to Proof of Claim No. 5 filed by Chase Home Finance, LLC (“Chase”) is pending in this Chapter 13 bankruptcy on the grounds the claim is overstated by $350.00 for “attorney fees for filing proof of claim, reviewing plan, and filing request for special notice,” which the Trustee argues is not authorized under Montana law, MONT. CODE ANN. (“MCA”) § 71-1-320, because a foreclosure has not been commenced. The Trustee’s Objection was scheduled for hearing on October 9, 2008. At the hearing the Standing Chapter 13 Trustee Robert G. Drummond of Great Falls, Montana, and counsel for Chase, Martin S. King of Missoula, Montana, agreed to submit the Trustee's Objection on stipulated facts and briefs, which were filed on October 20, 2008, and have been reviewed by the Court along with the applicable law. This matter is ready for decision. For the reasons set forth below, the Court overrules the Trustee’s Objection and allows Chase’s attorney’s fees in Proof of Claim No. 5 in accordance with Montana law and its published decision, In re Ransom, 361 B.R. 895, 901-02 (Bankr. D. Mont. 2007).

This Court has jurisdiction in this Chapter 13 case under 28 U.S.C. § 1334(a). Allowance of Chase’s claim against the estate is a core proceeding under 28 U.S.C. § 157(b)(2)(B). This Memorandum of Decision sets forth the Court’s findings of fact and conclusions of law.

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McNulty - Attorneys Fees - May 19, 2008

Case No. 07-60611-13

In this Chapter 13 case the Court held a hearing at Great Falls on May 16, 2008, on the “Application for Allowance of Attorney’s Fees as an Administrative Expense” (“Application”) (Docket No. 56) filed on April 25, 2008, by Debtors’ attorney D. Randy Winner (“Winner”) of Action Bankruptcy Center, P.C. Winner appeared at the hearing in support of his Application, which requested an award of attorney fees pursuant to 11 U.S.C. § 330(a), 11 U.S.C. § 502(b)(2) and F.R.B.P. 2016, in the amount of $3,708.00 which includes costs of $25.00. No testimony or exhibits were admitted. The Court heard statements from Winner and from the Chapter 13 Trustee Robert G. Drummond. The Court scheduled the hearing by Order entered on May 12, 2008, because of the substantial discrepancy between the amount of fees provided for under the Debtors’ confirmed Plan compared with the award of fees requested in Winner’s Application. After discussing the Application with Winner and receiving the Trustee’s input, the Court specifically stated that it found no intent to deceive by Winner, but advised him that the amount of fees requested in his Application would be subject to reduction for lack of disclosure.

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Merena-Merena v. Merena - Injunction - August 28, 2008

Case No. 08-60066-7

In this Adversary Proceeding, after due notice, a hearing was held August 21, 2008, in Billings on the Debtor/Defendant's Motion for Injunctive Relief filed July 16, 2008, wherein the Debtor/Defendant requests that the Court stay all matters in Civil Case No. 070915206 now pending in the Third Judicial District Court, Salt Lake County, State of Utah. Attorney Toby Alback of Billings, Montana appeared at the hearing on behalf of the Debtor/Defendant and attorney Craig D. Martinson of Billings, Montana appeared at the hearing on behalf of the Plaintiffs, Kenneth Merena and Yu Zhao. The Debtor/Defendant Alice M. Merena (“Alice”) testified and Exhibit A was admitted into evidence without objection.

Alice filed a voluntary Chapter 13 bankruptcy petition on January 30, 2008. On March 22, 2008, the Plaintiff Kenneth Merena (“Kenneth”) filed a Motion to Modify Stay seeking to proceed with a tort action commenced by Kenneth against Alice on October 22, 2007, entitled Merena v. Merena, Civil Cause No. 070915206, in the Third Judicial District Court, Salt Lake County, State of Utah, wherein Kenneth seeks damages against Alice for libel and slander. In accordance with Mont. LBR 4001-1, Mont. LBR 9013-1 and Mont. LBF 8, Kenneth attached a “Notice to Debtor” to his motion advising Alice, and other parties in interest, such as the Chapter 13 Trustee, that they had ten (10) days within which to respond to Kenneth’s motion. Neither the Chapter 13 Trustee nor Alice filed a timely response to Kenneth’s motion in accordance with Mont. LBR 4001-1. Given the absence of any outstanding opposition after notice, the Court found that Kenneth’s motion was filed for good cause under 11 U.S.C. § 362(d) and entered an Order on April 8, 2008, granting Kenneth's Motion to Modify Stay, thereby allowing Civil Cause No. 070915206 to proceed to judgment. Shortly thereafter, Alice converted her Chapter 13 bankruptcy to a case under Chapter 7 of the Bankruptcy Code.

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Merena-Merena v. Merena - Motion to Bifurcate Trial - November 19, 2008

Case No. 08-60066-7

In this Adversary Proceeding, after due notice, a hearing was held November 18, 2008, in Billings on the Plaintiffs' Motion to Bifurcate Trial filed October 8, 2008. Attorneys Chris L. Schmutz of Bountiful, Utah and Craig D. Martinson of Billings, Montana appeared at the hearing on behalf of the Plaintiffs and in support of the Motion to Bifurcate Trial. Attorney Toby Alback of Billings, Montana appeared at the hearing on behalf of the Defendant and in opposition to the Plaintiffs' Motion. The Debtor/Defendant Alice Michelle Merena (“Alice”) testified and the Plaintiffs' Exhibits 2 and 3 were admitted into evidence without objection. Alice's objection to the introduction of Plaintiff's Exhibit 1 into evidence was sustained and the admission of that Exhibit was denied.1

By way of background, and as set forth in a Memorandum of Decision entered by this Court on August 28, 2008, Alice filed a voluntary Chapter 13 bankruptcy petition on January 30, 2008. On March 22, 2008, the Plaintiff Kenneth Merena (“Kenneth”) filed a Motion to Modify Stay seeking to proceed with a tort action commenced by Kenneth against Alice on October 22, 2007, entitled Merena v. Merena, Civil Cause No. 070915206, in the Third Judicial District Court, Salt Lake County, State of Utah, wherein Kenneth seeks damages against Alice for libel and slander. In accordance with Mont. LBR 4001-1, Mont. LBR 9013-1 and Mont. LBF 8, Kenneth attached a “Notice to Debtor” to his motion advising Alice, and other parties in interest, such as the Chapter 13 Trustee, that they had ten (10) days within which to respond to Kenneth’s motion. Neither the Chapter 13 Trustee nor Alice filed a timely response to Kenneth’s motion. Given the absence of any outstanding opposition after notice, the Court found that Kenneth’s motion was filed for good cause under 11 U.S.C. § 362(d) and entered an Order on April 8, 2008, granting Kenneth's Motion to Modify Stay, thereby allowing Civil Cause No. 070915206 to proceed to judgment. Shortly thereafter, Alice converted her Chapter 13 bankruptcy to a case under Chapter 7 of the Bankruptcy Code.

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Misty Retz - Debtors Objection to Claim - March 19, 2008

Case No. 04-60247-7

In this Chapter 7 case the Debtor Misty Reed Retz (“Misty”) filed an objection on October 23, 2007 (Docket No. 104) to Proof of Claim No. 5 filed on June 24, 2004, by DonaldG. Abbey (“Abbey”) for himself and on behalf of Timberland Construction, L.L.C. (“TCLLC”). After due notice a hearing on the Debtor’s objection was held after due notice at Missoula on February 7, 2008. Misty appeared represented by attorney Harold V. Dye (“Dye”) of Missoula, Montana. Abbey appeared and testified, represented by attorneys Edward A. Murphy of Missoula and Michael G. Black of Missoula. Debtor’s Exhibits (“Ex.”) 1, 2, 3, 8, and 9 were admitted into evidence without objection. At the conclusion of the parties’ cases-in-chief the Court granted the parties time to file simultaneous briefs, after which the matter would be taken under advisement. The parties’ briefs have been filed and reviewed by the Court, together with the record and applicable law. This matter is ready for decision. For the reasons set forth below the Debtor’s objection to Abbey/TCLLC’s Claim will be sustained, and Proof of Claim No. 5 will be disallowed by separate Order.

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Montgomery - Violation of Discharge Injunction - August 21, 2008

Case No. 05-60123-7

In this Chapter 7 bankruptcy, after due notice, a hearing was held August 19, 2008, in Butte on Debtor's Motion for Sanctions for Violation of the Discharge Injunction, Including Punitive Sanctions, which Motion was filed May 15, 2008. Debtor Marc A. Montgomery (“Marc”) was represented at the hearing by attorney R. Clifton Caughron (“Caughron”) of Helena, Montana and Centron Services, Inc., d/b/a Credit Systems (“Centron Services”), was represented at the hearing by attorney David N. Hull, also of Helena, Montana. Marc and his spouse, Kelly Montgomery (“Kelly”), testified in support of Marc's Motion. Kevin Mosier of Centron Services testified in opposition to Marc's Motion.1 Marc's Exhibits A, B, C and D were admitted into evidence without objection.

Neither Marc nor Kelly were identified by Caughron as witnesses for the August 19, 2008, hearing. Moreover, the only Exhibit listed by Caughron on the Debtor's Exhibit List filed August 18, 2008, was Exhibit D. Nevertheless, counsel for Centron Services did not object to the admission of any of Debtor's exhibits or to the testimony of Marc and Kelly. However, Caughron objected when Centron Services' counsel called Kevin Mosier as a witness arguing that Kevin Mosier was not properly identified as a witness prior to the hearing. The Court allowed Kevin Mosier to testify because Kevin Mosier was called as a witness only after Caughron sought to expand the scope of Marc's Motion as filed.

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Nichols - Objection to Claim - March 26, 2008

Case No. 07-61099-12

In this Chapter 12 bankruptcy, after due notice, a hearing was held March 11, 2008, in Billings on Debtors’ Objection to Proof of Claim No. 3 filed by Ocwen Loan Servicing, LLC on behalf of the Bank of New York (“BNY”). The Chapter 12 Trustee, Dennis Hoeger, appeared at the hearing with his attorney Joseph V. Womack of Billings, Montana, while Debtor Thomas Nichols (“Nichols”) of Wolf Point, Montana appeared in propria persona and BNY was represented by attorney Matthew Kolling of Dickinson, North Dakota. Nichols and Craig McIvor testified. Debtors’ Exhibits A through P and Exhibits 1 through 4 were admitted into evidence. BNY’s Exhibit 1, a copy of an appraisal completed by Craig McIvor of Dakota Realty and Appraisal stemming from a February 2008 inspection of Debtors’ real property, was also admitted into evidence. This Memorandum of Decision sets forth the Court’s findings of fact and conclusions of law.

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O'Connor - Chapter 13 Confirmation - Disposable Income - September 30, 2008

Case No. 08-60641-13

Pending in this Chapter 13 case is confirmation of Debtors’ Amended Chapter 13 Plan (Docket No. 9), and the Trustee’s objections thereto. A hearing on confirmation was held at Great Falls on August 15, 2008. Debtors were represented at the hearing by attorney R. Clifton Caughron (“Caughron”) of Helena, Montana, and Debtor Michael Lee O’Connor (“Michael”) testified. One exhibit (“Ex.”), Ex. A, was admitted into evidence. The Chapter 13 Trustee Robert G. Drummond, of Great Falls, Montana, appeared in opposition to confirmation based on the “disposable income” requirements of 11 U.S.C. § 1325(b) and, by reference therein, the “Means Test” of 11 U.S.C. § 707(b)(2). At the conclusion of the parties’ cases-in-chief the Court granted them time to file simultaneous briefs, after which the matter would be deemed under advisement. The parties’ briefs have been filed and reviewed, together with the record and applicable law. For the reasons set forth below the Trustee’s objection to confirmation is sustained in part and confirmation is denied. Debtors will be granted a final opportunity to submit a further amended Plan to satisfy the confirmation requirements of 11 U.S.C. § 1325.

This Court has jurisdiction in this Chapter 13 case under 28 U.S.C. § 1334(a). This is a core proceeding under 28 U.S.C. § 157(b)(2)(L) involving confirmation of a plan. This Memorandum of Decision includes the Court’s finding of fact and conclusions of law.

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O'Connor - Objection to Claim - Creditor Attorney Fees - December 16, 2008

Case No. 08-60641-13

The Chapter 13 Trustee's Objection, filed August 25, 2008, to Proof of Claim No. 6 filed by Chase Home Finance, LLC (“Chase”) is pending in this Chapter 13 bankruptcy on the grounds the claim is overstated by $350.00 for “attorney fees for filing proof of claim, reviewing plan, and filing request for special notice,” which the Trustee argues is not authorized under Montana law, MONT. CODE ANN. (“MCA”) § 71-1-320, because a foreclosure has not been commenced. The Trustee’s Objection was scheduled for hearing on October 24, 2008. At the hearing the Standing Chapter 13 Trustee Robert G. Drummond of Great Falls, Montana, and counsel for Chase, Martin S. King of Missoula, Montana, agreed to submit the Trustee's Objection on stipulated facts and briefs. Chase’s brief was filed on October 31, 2008, and has been reviewed by the Court along with the applicable law1. This matter is ready for decision. For the reasons set forth below, the Court overrules the Trustee’s Objection and allows Chase’s attorney’s fees in Proof of Claim No. 6 in accordance with Montana law and its published decision, In re Ransom, The Trustee did not file a post-hearing brief. Docket No. 42 is the Trustee’s brief filed prior to the hearing on October 23, 2008.

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Price - Sanction for Violation of Stay - March 19, 2008

Case No. 07-61449-7

In this Chapter 7 bankruptcy, after due notice, a hearing was held March 11, 2008, in Billings on Debtors’ Motion for Sanctions for Violation of the Automatic Stay filed February 11, 2008, together with Summit Credit Union’s (“SCU”) opposition thereto. Debtors were represented at the hearing by attorney Dane Schofield (“Schofield”) of Billings, Montana and SCU was represented at the hearing by attorney Margy Bonner (“Bonner”) of Billings, Montana.� The Chapter 7 Trustee, Joseph V. Womack of Billings, Montana, also appeared at the hearing.� Debtor Gregory Price (“Price”) testified as did attorneys Schofield and Bonner. No exhibits were offered into evidence.

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Retz-Abbey - Objection to Claim - March 26, 2008

Case No. 04-60247-7

In this Chapter 7 case creditors Donald G. Abbey (“Abbey”) and Timberland Construction, LLC (“TCLLC”), filed on October 31, 2007, an objection (Docket No. 106) to Proof of Claim No. 6 filed by Jo Ellen Retz (“Jo Ellen”). After due notice a hearing on Abbey/TCLLC’s objection was held after due notice at Missoula on February 7, 2008. Abbey and TCLLC were represented by attorneys Edward A. Murphy and Michael G. Black, both of Missoula, Montana, and called as witnesses the Debtor, Misty Reed Retz (“Misty”) and Chapter 7 Trustee, Richard J. Samson (“Samson”) to testify. Jo Ellen was represented by attorney James

A. Patten of Billings, Montana. Abbey’s Exhibits (“Ex.”) 6, 7, 8, 28, and 34, and Jo Ellen’s Ex. 2, 5, 7 and 8, all were admitted into evidence without objection. At the conclusion of the parties’ cases-in-chief the Court granted the parties time to file simultaneous briefs, after which the matter would be taken under advisement. The parties’ briefs have been filed and reviewed by the Court, together with the record and applicable law. This matter is ready for decision. For the reasons set forth below Abbey/TCLLC’s objection to Jo Ellen’s Proof of Claim will be overruled and Proof of Claim No. 6 allowed by separate Order.

This Court has jurisdiction of this Chapter 7 case under 28 U.S.C. § 1334(a). Allowance or disallowance of claims against the estate are core proceedings under 28 U.S.C. § 157(b)(2)(B). This Memorandum includes the Court’s findings of fact and conclusions of law.

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Retz - Motion to Approve Compromise Settlement - March 19, 2008

Case No. 04-60247-7

In this Chapter 7 case the Trustee Richard J. Samson (“Samson”) filed on October 9, 2007, a motion (Docket No. 96) to approve an “Agreement Regarding Sale Proceeds” (hereinafter the “Agreement”) entered into between the bankruptcy estates of the Debtor Misty Reed Retz (“Misty”) and that of her former spouse and Chapter 7 debtor Brendon K. Retz (“Brendon”), Timberland Construction, L.L.C. (“TCLLC”) and TCLLC’s current owner Donald

G. Abbey (“Abbey”). Objections were filed by the Debtor and by Debtor’s former mother-in-law and Brendon’s mother Jo Ellen Retz (“Jo Ellen”). A hearing on approval of the Agreement was held after due notice at Missoula on February 7, 2008, at which the parties appeared represented by counsel and testimony and exhibits were admitted. At the conclusion of the parties’ cases-in-chief the Court granted the parties time to file simultaneous briefs, after which the matter would be taken under advisement. The parties’ briefs have been filed and reviewed by the Court, together with the record and applicable law. This matter is ready for decision. For the reasons set forth below the objections filed by Misty and Jo Ellen will be overruled, the Trustee’s motion to approve the Agreement will be granted and the Agreement will be approved by separate Order.

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Retz- -Objection to Claim - March 19, 2008

Case No. 04-60247-7

In this Chapter 7 case the Debtor Misty Reed Retz (“Misty”) filed an objection on October 23, 2007 (Docket No. 104) to Proof of Claim No. 5 filed on June 24, 2004, by Donald G. Abbey (“Abbey”) for himself and on behalf of Timberland Construction, L.L.C. (“TCLLC”). After due notice a hearing on the Debtor’s objection was held after due notice at Missoula on February 7, 2008. Misty appeared represented by attorney Harold V. Dye (“Dye”) of Missoula, Montana. Abbey appeared and testified, represented by attorneys Edward A. Murphy of Missoula and Michael G. Black of Missoula. Debtor’s Exhibits (“Ex.”) 1, 2, 3, 8, and 9 were admitted into evidence without objection. At the conclusion of the parties’ cases-in-chief the Court granted the parties time to file simultaneous briefs, after which the matter would be taken under advisement. The parties’ briefs have been filed and reviewed by the Court, together with the record and applicable law. This matter is ready for decision. For the reasons set forth below the Debtor’s objection to Abbey/TCLLC’s Claim will be sustained, and Proof of Claim No. 5 will be disallowed by separate Order.

This Court has jurisdiction of this Chapter 7 case under 28 U.S.C. § 1334(a). Allowance or disallowance of claims against the estate are core proceedings under 28 U.S.C. § 157(b)(2)(B). This Memorandum includes the Court’s findings of fact and conclusions of law pursuant to F.R.B.P. 7052.

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Samson v. Grahm - Summery Judgment - January 24, 2008

Case No. 05-63640-7

Trial of this adversary proceeding is scheduled to commence on February 8, 2008. On January 7, 2008, the Defendant David Lawrence Graham (hereinafter “DLG”), pro se, filed a first motion for partial summary judgment (Docket No. 101) and a second motion for partial summary judgment (Docket No. 102) in both this adversary proceeding and the main case1. Both motions include a supporting memorandum, and both supporting memoranda begin with a section entitled “Background Facts”. Neither motion is accompanied by a separate “Statement of DLG insisted the Clerk file the motions in the main case, even though both motions clearly state in the caption that they are matters for the adversary proceeding. The filing of the motions in the main case was improper, and accomplished nothing since the issues have been joined for trial in the adversary proceeding.

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Schreiner - Motion to Avoid Lien - January 17, 2008

Case No. 07-61139-13

In this Chapter 13 bankruptcy, after due notice, a hearing was held January 15, 2008, in Billings on Debtors’ Amended Motion to Void Lien Under 11 U.S.C. § 506(a)(1) filed October 22, 2007, and on confirmation of Debtors’ Chapter 13 Plan filed October 19, 2007. Debtors were represented at the hearing by attorney Craig Martinson of Billings, Montana and Wells Fargo Financial Bank (“Wells Fargo”) was represented at the hearing by attorney Michael B. Anderson, of Billings, Montana. The Chapter 13 Trustee, Robert G. Drummond of Great Falls, Montana also appeared at the hearing. Debtor Jeremy Schreiner, Richard Baker and Gail Melcher testified and Exhibits 1 through 4 and A were admitted into evidence without objection.

The Court first considered Debtors’ Amended Motion to Void Lien, wherein Debtors seek to set the allowed amount of Wells Fargo’s secured claim at $0.00, rendering the entire claim a general unsecured claim. Pursuant to Exhibit 2, Debtors are indebted to First Interstate Bank on a Deed of Trust dated March 31, 2004, in the amount of $104,717.74. Debtors obtained a line of credit from Wells Fargo in June of 2006, which line of credit is secured by a real estate mortgage. As set forth in Proof of Claim No. 2, the balance owing on the line of credit as of Debtors’ petition date was $20,605.57.

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Schuster-Schuster v. Schuster - Interest in Property - April 23, 2008

Case No. 05-65049-13

The trial of this adversary proceeding was scheduled to be held at Great Falls on April 18, 2008. Plaintiff Larry Schuster appeared at the hearing pro se. Defendant/Debtor Jerry Wayne Schuster was represented at the hearing by attorney Gary S. Deschenes (“Deschenes”) of Great Falls, Montana. Defendant New Century Mortgage Corporation (“New Century”) was represented by attorney Alan C. Bryan (“Bryan”) of Billings, Montana. Because no pretrial order was submitted by the Plaintiff, as ordered by the Court, the Court prohibited Plaintiff from offering any evidence to support his claims for relief pursuant to FED. R. CIV. P. 37(b)(2)(A)(ii) (applicable in adversary proceedings under F.R.B.P. 7037) and FED. R. CIV. P. 16(f) (applicable under F.R.B.P. 7016). As a result, Plaintiff’s claims for relief set forth in his complaint will be dismissed for failure of proof. After that decision, the parties reached a resolution of Defendant’s counterclaim, thereby resolving all remaining matters pending in this adversary proceeding. This Memorandum sets forth the Court’s findings of fact and conclusions of law pursuant to F.R.B.P. 7052.

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Schwenke - Motion for Turnover - Economic Stimulus - September 25, 2008

Case No. 08-60380-7

In this Chapter 7 case the Trustee moved for turnover of an economic stimulus payment which the Debtor received under the “Economic Stimulus Act of 2008", Pub. L. 110-185, 122 Stat. 613 (effective February 13, 2008) (hereinafter referred to as the “Act”), claiming it as property of the estate under 11 U.S.C. § 541(a). The Debtor objected, and the matter was set for hearing on August 15, 2008, at Great Falls. The Debtor was represented by attorney Kraig C. Kazda (“Kazda”) of Great Falls, Montana. The Trustee Darcy M. Crum, of Great Falls, Montana, appeared. No testimony or exhibits were admitted. The parties agreed that there are no disputed facts and agreed to submit the matter on stipulated facts and briefs. The Court granted the parties time to file stipulated facts and simultaneous briefs, which have been filed and reviewed by the Court together with applicable law. The matter is ready for decision. For the reasons set forth below the Court concludes that the entire economic stimulus payment received by the Debtor under the Act is property of the estate not subject to pro rata apportionment. A separate Order will be entered overruling the Debtor’s objection and granting the Trustee’s motion for turnover.

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Sebastian - Objection to Exemptions - IRS Tax Credit - November 5, 2008

Case No. 08-60340-7

In this Chapter 7 bankruptcy, the Trustee filed on July 24, 2008, an Objection to Debtor's $750.00 claim of exemption in an IRS tax credit payment (2008 federal economic stimulus payment) and in Debtor's unspecified dollar amount claim of an exemption in that portion of Debtor's 2008 federal and states tax refunds attributable to wages earned prior to Debtors' bankruptcy petition date. Debtor filed a response to the Trustee's Objection on August 4, 2008, setting the matter for hearing and arguing that the 2008 IRS tax credit payment was received within 45 days prior to June 26, 2008; that the IRS tax credit is a credit paid in advance for earnings of the Debtor to be earned post petition; and the tax credit and the tax refunds are payments of earnings withheld by the Debtor's employer for the benefit of the Internal Revenue Service and the Montana Department of Revenue; and that the refunds are the return of Debtor's earnings and Debtor's earnings are exempt pursuant to MONT. CODE ANN. (“MCA”) § 25-13-614 and remain exempt for up to 45 days after receipt by and while in possession by the Debtor pursuant to MCA § 25-13-610(2).

After due notice, hearing on the matter was held September 16, 2008, in Billings. The Chapter 7 Trustee, Joseph V. Womack of Billings, Montana, appeared at the hearing in support of his Objection. Debtor was represented at the hearing by attorney James A. Patten of Billings, Montana. The parties agreed at the hearing to submit the matter to the Court on stipulated facts and simultaneous briefs. Pursuant to the parties’ stipulation approved by this Court on October 14, 2008, the parties filed their final briefs on November 3, 2008.

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Stobbe - Motion to Avoid Lien - August 31, 2008

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 wasadmitted into evidence without objection.1 This memorandum contains the Court’s findings offacts and conclusions of law.Debtor’s 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 filingMont. 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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Taylor - Chapter 12 Plan Confirmation - October 23 ,2008

Case No. 08-60493-12

In this Chapter 12 bankruptcy, after due notice, a hearing was held October 21, 2008, in Billings on confirmation of Debtors' Chapter 12 Plan filed August 7, 2008, and on the Chapter 12 Trustee's Motion to Dismiss filed September 19, 2008, wherein the Trustee seeks the dismissal of this case for Debtors' failure to timely insure their property and file all their income tax returns due through the tax year ending December 31, 2007. The Chapter 12 Trustee, Dennis Hoeger of Bozeman, Montana appeared at the hearing; Debtors were represented by their counsel of record, Richard O. Harkins of Ekalaka, Montana; and the United States of America, Farm Service Agency (“FSA”), was represented by Assistant United States Attorney Victoria L. Francis, of Billings, Montana. Debtor Karen Taylor (“Karen”) and Dave Pitts of FSA testified and FSA's Exhibits B, C and D were admitted into evidence without objection.

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Taylor - Objection to Claim - Auto - September 16, 2008

Case No. 08-60493-12

In this Chapter 12 bankruptcy, Debtors filed an Objection to Proof of Claim No. 3 on July 21, 2008, arguing: Repossession of vehicle within one year of filing is an avoidable transfer under 11 USC 522, 544, 545, 547, 548, 549 or 724(a). Creditor did not use commercially reasonable mode of sale and incurred an unreasonable deficiency. Creditor repossessed vehicle on the 27th day of August, 2007. Their repossession should be considered a setoff of their entire debt, including any claimed deficiency. In response to Debtors' objection, GMAC filed an amended Proof of Claim No. 3 on September 15, 2008, asserting a secured claim of $12,756.17 against Debtors, secured by a 2005 Chevrolet Venture Van.

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Taylor - Objection to Claim - Breach of Contract - October 23 ,2008

Case No. 08-60242-13

In this Chapter 13 case Debtors objected to Proof of Claim No. 6 filed by Dayspring Restoration, Inc. (“Dayspring”), contending that Dayspring breached a contract with the Debtors to repair and remodel Debtors’ bathroom after damage from a water leak. Dayspring filed an amended claim acknowledging that its claim is unsecured, but requested full payment of its invoice, interest and attorney fees and costs on the grounds Debtors did not object in writing within the time provided under state law, MONT. CODE ANN. (“MCA”) § 28-2-2103(1)(b). After due notice a hearing on Debtors’ objection was held at Missoula on September 11, 2008. Debtors were represented by attorney Harold V. Dye (“Dye”) of Missoula, Montana, and Debtor Mary Elizabeth Taylor (“Mary”) testified. Dayspring was represented by attorney Charles E. Hansberry (“Hansberry”) of Missoula, Montana, and Dayspring’s construction manager Larry Banister (“Banister”) testified. Debtors’ Exhibits (“Ex.”) 1, 2, 3, and 4, and Dayspring’s Ex. 2, 3-1, 4, 5, 7-1, 8-1, 8-2, 8-3, 8-4, 12-1, 12-3, 12-4, 12-5, and 12-6, all were admitted into evidence without objection. At the conclusion of the parties’ cases-in-chief the Court closed the record and 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. For the reasons set forth below a separate Order will be entered sustaining the Debtors’ objection in part and denying it in part, and allowing Dayspring an unsecured nonpriority claim in the amount of $773.00, but denying both sides’ requests for attorney’s fees and costs under Montana’s “American Rule.”

This Court has jurisdiction of this case under 28 U.S.C. § 1334(a). Allowance or disallowance of Dayspring’s claim against the estate is a core proceeding under 28 U.S.C. § 157(b)(2)(B). This Memorandum includes the Court’s findings of fact and conclusions of law.

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Yellowstone Mountain Club -Motion to Interim Financing - November 26, 2008

Case No. 08-61570-11

Information to be added at a later date.

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Yellowstone Mountain Club - Second Motion to Interim Financing - December 17, 2008

Case No. 08-61570-11

In the above-referenced Chapter 11 bankruptcies, which are being jointly administered pursuant to an Order dated November 13, 2008, a hearing was held November 12, 2008, in Missoula on interim approval and November 25, 2008, in Butte on final approval of Debtor's November 10, 2008, “Motion Pursuant to Bankruptcy Code Sections 105, 361, 362, 363 and 364 and Bankruptcy Rules 2002, 4001, and 9014 for Interim and Final Orders (I) Authorizing Debtors to Obtain Post-Petition Financing, (II) Authorizing Debtors to Utilize Cash Collateral,(III) Granting Adequate Protection to Pre-Petition Secured Lenders and (IV) Scheduling Interim and Final Hearings.” Also on November 25, 2008, the Court considered Debtor's emergency oral Motion for approval of debtor-in-possession (“DIP”) financing with CrossHarbor Capital Partners (CrossHarbor”).

Following the second hearing held November 25, 2008, the Court entered a Memorandum of Decision and Order on November 26, 2008, denying the Debtors' November 10, 2008, motion for DIP financing through Credit Suisse for the reason that as of 9:00 a.m. on November 25, 2008, Credit Suisse was not able to fund its previously proposed DIP financing. The Debtors, upon learning that the Credit Suisse DIP financing was no longer available, scrambled and were successful, over a six hour period, in arranging DIP financing through CrossHarbor. Thus, at the November 25, 2008, hearing, the Debtors made, and the Court granted, on an interim basis, the Debtors' oral motion for an order (1) authorizing the Debtors (a) to obtain postpetition financing pursuant to 11 U.S.C. §§ 105, 361, 362, 364(c)(1), 364(c)(2), 364(c)(3), 364(d)(1) and 364(e) and (b) to utilize cash collateral pursuant to 11 U.S.C. § 363; (2) granting liens, security interests and superpriority claims; (3) granting adequate protection to prepetition secured parties pursuant to 11 U.S.C. §§ 361, 362, 363 and 364; and (4) scheduling a final hearing pursuant to bankruptcy rules 2002, 4001 and 9014. After due notice, a final hearing on the Debtors' oral Motion--which was memorialized in a written Motion filed on December 2, 2008, at docket entry no. 96--was held December 11 and 12, 2008, in Missoula.

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