SOMERS, Bankruptcy Judge. Randy L. Royal (the "Trustee") appeals the bankruptcy court's judgment in favor of First Interstate Bank ("FIB") and Mortgage Electronic Registration Systems ("MERS") (collectively "Appellees") on his adversary complaint seeking to avoid the mortgage on the debtors' home. The Trustee attacked the mortgage based on a split-note theory due to MERS's involvement in the transaction. The bankruptcy court rejected the Trustee's position that defining MERS as the mortgagee...
OPINION BROWN, Bankruptcy Judge. Debtor Lucio Leide Foah ("Debtor") filed a Chapter 7 petition in the United States Bankruptcy Court for the District of New Mexico on August 5, 2011. In his schedules, he claimed an exemption in a life insurance policy under New Mexico law. 1 The Debtor acquired this policy from Northwestern Mutual Life in 1992. 2 He is both its owner and the named beneficiary. Originally, the policy insured the lives of both of his parents. Unfortunately, his mother passed...
THURMAN, Chief Judge. This case involves dischargeability of a debt owed by an individual debtor based on breach of fiduciary duty by a limited liability company building contractor that debtor admitted he "controlled." I. BACKGROUND In 2008, Appellee Hawks Holdings, LLC ("Hawks") contracted with K2 Construction Company, LLC ("K2") to build three homes on property Hawks owned near Santa Fe, New Mexico, for a contract price of more than $3.6 million. K2 was formed in 2007 as a New Mexico...
CORNISH, Bankruptcy Judge. Creditor appeals an order of the bankruptcy court awarding actual damages of $474.86 and punitive damages of $25,000 to the individual Chapter 11 debtors as a sanction for its repossession of their vehicle. 1 Believing the debtors had missed two monthly payments, creditor repossessed the vehicle approximately one year after the confirmed Chapter 11 plan revested the vehicle in debtors subject to creditor's rights in the collateral, and approximately two months after...
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION OPINION THOMAS H. FULTON, Bankruptcy Appellate Panel Judge. The Liquidation Trustee in six jointly administered chapter 11 cases appeals an order of the bankruptcy court which dismissed his adversary complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. I. ISSUES ON APPEAL The main issue presented by this appeal is whether the bankruptcy court erred in dismissing the Appellant'...
OPINION HALL, Bankruptcy Judge. Before the Court is the appeal of Appellant Kenneth A. Rushton, Trustee ("Trustee"), of the bankruptcy court's Memorandum of Decision which granted Appellee Bank of Utah's ("Bank") motion for summary judgment and denied Trustee's motion for summary judgment. For the reasons that follow, the Court AFFIRMS the bankruptcy court's decision. I. Jurisdiction This Court has jurisdiction over the instant appeal under 28 U.S.C. 158(b) because: the appeal was...
NUGENT, Bankruptcy Judge. A debt owed by a divorced debtor to her former spouse that is either incurred for spousal support or incurred "in connection with a divorce decree" is excepted from the debtor's Chapter 7 discharge by 11 U.S.C. 523(a)(5) or (a)(15). 1 These appeals turn on whether a non-debtor spouse's judgment against a debtor for an overpayment of spousal support may be characterized as a domestic support obligation or as one incurred in connection with a divorce decree. We agree...
OPINION THURMAN, Chief Judge. Bankruptcy courts have been granted broad powers to administer debtors' estates. Such power requires careful attention to the statutes and rules that govern bankruptcy proceedings. In this case, the Bankruptcy Court may have correctly ruled on an issue of law. But in the process, one of a myriad of procedural requirements was overlooked. We therefore are compelled to reverse and remand for its consideration of the issue of the Appellee's standing to seek relief....
CORNISH, Chief Judge. Two general contractors and four subcontractors appeal the bankruptcy court's order determining that, under Kansas law, the interest of a construction lender/mortgagee in a retail shopping center development has priority over their mechanic's lien claims. Having thoroughly reviewed the record and applicable law, we conclude that the bankruptcy court committed no reversible error in determining the priority of interests between these claimants. Therefore, we must affirm...
BROWN, Bankruptcy Judge. The issue before this Court is whether an appellate decision and accompanying remand instruction issued in prepetition litigation between Plaintiffs-Appellees and Debtor-Appellant have preclusive effect in a later nondischargeability proceeding in the bankruptcy court. The appellate decision issued by the Tenth Circuit affirmed a federal district court judgment that found Debtor committed fraud, but reversed on the issue of fraud damages and remanded for a new trial on...
THURMAN, Bankruptcy Judge. Can there ever be too much charity In the bankruptcy context, Congress generally responds, "when the charity exceeds 15% of a debtor's gross annual income." How that response is to be interpreted is the subject of the present appeal. Here, the Bankruptcy Court concluded, pursuant to 11 U.S.C. 548(a)(2)(A), 1 that the trustee in bankruptcy ("Trustee") was entitled to avoid a portion of the charitable contributions made by debtors Lisa and Scott McGough ("Debtors")...
MICHAEL, Bankruptcy Judge. In the world where bankruptcy judges labor, love does not make the world go `round. 1 The United States Bankruptcy Code (the "Code"), and the discretion granted to bankruptcy judges under the Code, do. 2 In this appeal, we are asked to define the limits of a bankruptcy judge's discretion in awarding attorney's fees under 330. The appellant asks us to severely limit such discretion and confine a bankruptcy judge to what is commonly known as the "lodestar"...
BOA argued that all parties knew of and shared a common intent for the mechanic's lien claimants to be paid in full for work performed under contract with prior owner Metcalf, and that BOA would loan Debtor ongoing construction funds only in exchange for fresh start and a first priority lien.
Bankruptcy No. 09-15036., The issue before this Court is whether an appellate decision and accompanying remand instruction issued in prepetition litigation between Plaintiffs-Appellees and Debtor-Appellant have preclusive effect in a later nondischargeability proceeding in the bankruptcy court.
In this case, Appellee's entitlement to the relief it sought in its Application is governed by § 362(j), which provides that [o]n request of a party in interest, the court shall issue an order under subsection (c) confirming that the automatic stay has been terminated (emphasis added).
469 B.R. 44 (2012), In re MARKET CENTER EAST RETAIL PROPERTY, INC., Debtor., Market Center East Retail Property, Inc., Appellant v., Barak Lurie and Lurie and Park, Appellees., BAP No. NM-11-017. Bankruptcy No. 09-11696., United States Bankruptcy Appellate Panel of the Tenth Circuit., March 6
v., John Bryan Larson and Alicia Lynn Larson, Defendants-Appellants. As this Court has stated:, Leave to hear appeals from interlocutory orders should be granted with discrimination and reserved for cases of exceptional circumstances., [13] Order at 4, 5-6. 697, 19 L. Ed. 2d 889 (1968).
, [3] In its response to the Trustee's motion for summary judgment, the Church disputed that the Debtors were insolvent at the time the charitable contributions were made, which the Trustee has the burden of proving in order to avoid the transfers as constructively fraudulent under § 548.
