MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S MOTION TO DISMISS ROBERT D. BERGER, Bankruptcy Judge. Defendant Educational Credit Management Corp. (ECMC) moves to dismiss Debtor's declaratory judgment action seeking to discharge his student loans under 523(a)(8). Defendant's motion is denied because Congress has provided a statutory discharge in the Bankruptcy Code separate and distinct from the discharge provided by the Federal Family Education Loan Program (FFELP). 1 The administrative...
MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS' MOTION TO DISMISS AND GRANTING PLAINTIFFS' MOTION TO REMAND COUNTS AGAINST NON-DEBTOR DEFENDANTS ROBERT D. BERGER, Bankruptcy Judge. Plaintiffs Grant Hartwig and Adria Secord seek to except from discharge approximately $80,000 and allege the defendants fraudulently obtained and misappropriated funds Plaintiffs invested in a business. Defendants' motion to dismiss is denied because Plaintiffs state an individual claim under 11 U.S.C. 523(a)(2)...
MEMORANDUM OPINION DENYING DEBTOR'S OBJECTION TO CLAIM OF FIRST NATIONAL BANK OF OMAHA DALE L. SOMERS, Bankruptcy Judge. On October 18 and 19, 2011, 1 the Court held an evidentiary hearing on Debtor's Objection to Claim #5 of First National Bank of Omaha (FNBO or Bank), 2 in which Debtor Centennial Park, LLC (Debtor or Centennial Park), challenges Bank's entitlement to interest at the default rate and an award of attorney fees and costs. Since Debtor admits it defaulted on the Note giving...
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT ROBERT D. BERGER, Bankruptcy Judge. Plaintiff IBD, Inc., and Defendant/Debtor Thomas Scott Jenkins both seek summary judgment in this proceeding to determine the dischargeability of a debt under 11 U.S.C. 523(a)(4) and (a)(6). Plaintiff's motion is granted. Defendant's motion is denied. Findings of Fact Debtor filed for bankruptcy on June 21, 2010. Prior to filing, Debtor and IBD litigated in state court...
MEMORANDUM OPINION AND ORDER GRANTING IN PART, AND DENYING IN PART, DEFENDANT CITIMORTGAGE, INC'S MOTION TO DISMISS JANICE MILLER KARLIN, Bankruptcy Judge. This matter is before the Court on Defendant CitiMortgage, Inc.'s Motion to Dismiss 1 filed pursuant to Federal Rules of Bankruptcy Procedure 7012(b). Plaintiff, Chapter 7 Trustee Patricia Hamilton, responded to the motion, and CitiMortgage elected not to reply. These matters constitute core proceedings over which the Court has the...
MEMORANDUM OPINION AND ORDER GRANTING STOCKTON NATIONAL BANK'S MOTION FOR PARTIAL SUMMARY JUDGMENT DALE L. SOMERS, Bankruptcy Judge. When the Trustee seeks to avoid allegedly preferential transfers that partially satisfied debtor's loan held by a lead bank subject to participation agreements and the lead bank transmitted the payments to the participants in accord with the participation agreements, is the lead bank the initial transferee under 11 U.S.C. 550(a)(1) 1 This is a question of...
MEMORANDUM OPINION ROBERT E. NUGENT, Chief Judge. The Chapter 7 Trustee, Carl B. Davis (Trustee), generally objects to Timothy Weddington's discharge and seeks to expand his chapter 7 estate to include all of the property Weddington obtained from the time he filed this case as a chapter 13 in October of 2009 to the date of its conversion to chapter 7. 1 In addition, the Trustee objects to Weddington's exemption of his hunting equipment as a tool of the trade because guiding hunts is only...
MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S MOTION TO DISMISS FOR IMPROPER VENUE DALE L. SOMERS, Bankruptcy Judge. This is an adversary proceeding in which the Chapter 7 Trustee, Christopher J. Redmond (hereafter "Trustee") seeks to recover a prepetition transfer of $7,794.38, pursuant to 11 U.S.C. 547, 548, and 550. The matter under advisement is Defendant Gulf City Body & Trailer Works, Inc.'s (hereafter "Defendant") Motion to Dismiss (hereafter "Motion") for improper venue under 28...
MEMORANDUM OPINION ROBERT E. NUGENT, Chief Judge. This case presents yet another opportunity to consider the extent of the remedies available to a trustee who has successfully avoided an unperfected security interest in the frequently-encountered situation where a lender has perfected its mortgage interest in real property but failed to perfect its lien in the manufactured or mobile home that is set on the property. Recent case law developments in the Tenth Circuit warrant another look at...
MEMORANDUM OPINION AND ORDER DETERMINING THE ESTATE'S INTEREST IN A CASH BOND HAS NO VALUE AND DENYING THE TRUSTEE'S CLAIM FOR AVOIDANCE UNDER 11 U.S.C. 549 DALE L. SOMERS, Bankruptcy Judge. The Complaint filed in this adversary proceeding by the Chapter 7 Trustee, Steven L. Speth, seeks to recover for the estate a $125,000 cash supersedeas bond (hereafter "Cash Bond") which Debtor Leigh Ann Koksal posted prepetition in Sedgwick County, Kansas, District Court as a condition to stay...
MEMORANDUM OPINION ROBERT E. NUGENT, Chief Judge. Debtor Hugh Tessendorf filed his bankruptcy case on June 30, 2010. Among his claimed exemptions was a certificate of deposit with Met Life Bank in the amount of $15,300 (CD). 1 Tessendorf acquired this CD in late 2008 with part of the proceeds of an insurance policy on the life of his father. At the father's death, the insurance proceeds were paid into a New York Life Insurance Company investment account called the "Continued Interest...
ORDER GRANTING PLAINTIFFS' MOTION TO DISMISS COUNTERCLAIM FOR LACK OF SUBJECT MATTER JURISDICTION AND MOTION FOR VOLUNTARY DISMISSAL WITH PREJUDICE ROBERT E. NUGENT, Chief Judge. Plaintiffs Gillespie Practical Technologies Inc. ("GPT") and Gilcheck Management, Inc. ("Gilcheck") move to dismiss Sunflower Bank, N.A.'s counterclaims pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and to voluntarily dismiss their adversary Complaint with prejudice...
MEMORANDUM OPINION AND ORDER JANICE MILLER KARLIN, Bankruptcy Judge. This matter is before the Court on the Complaint by Hilda L. Solis, Secretary of Labor, ("DOL") objecting to the discharge of the debt owed by Debtor and Defendant, Mohammad Asif ("Asif"), pursuant to 11 U.S.C. 523(a)(2)(A), 1 and the Complaint by Darcy Williamson, Chapter 7 Trustee ("Trustee"), objecting to Asif obtaining a discharge pursuant to 727(a)(3), (4)(A), (4)(D), and (5). 2 Trustee also seeks turnover of...
MEMORANDUM OPINION AND ORDER MOSTLY DENYING PLAINTIFF'S MOTION TO RECONSIDER OR TO ALTER OR AMEND JUDGMENT BUT ALTERING SOME DISCRETE FINDINGS JANICE MILLER KARLIN, Bankruptcy Judge. The Court is faced with a "Morton's fork:" 2 grant Plaintiff's Motion for Reconsideration or to Alter or Amend Judgment 3 when the facts upon which the motion is almost entirely based could, should, and in fact were known by the movant well before this adversary proceeding was filed, or deny the motion on...
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF'S MOTION FOR ABSTENTION JANICE MILLER KARLIN, Bankruptcy Judge. This matter is before the Court on Plaintiff's Motion for Abstention, filed pursuant to 28 U.S.C. 1334(c). 1 Plaintiff Andrea Peterson requests this Court remand this case back to the state court where she originally filed the suit on the grounds that this Court must abstain from hearing it. After reviewing the briefs filed by the parties, 2 and for the reasons set forth below,...
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO APPOINT CHAPTER 11 TRUSTEE ROBERT D. BERGER, Bankruptcy Judge. Judgment Creditor The Paradigm Alliance, Inc., filed the Motion to Appoint Chapter 11 Trustee. After discovery, the matter was tried over two days. The issue is whether cause exists or it is in the interests of creditors, equity security holders, and the bankruptcy estate to appoint a Chapter 11 trustee. Based on the evidence, applicable authorities, and the following findings of...
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, GRANTING COUNTRYWIDE AND MERS' MOTIONS FOR SUMMARY JUDGMENT, AND OVERRULING PLAINTIFF'S OBJECTION TO PROOF OF CLAIM OF COUNTRYWIDE JANICE MILLER KARLIN, Bankruptcy Judge. This matter is before the Court on the Motion for Summary Judgment 1 filed by Plaintiff, Michelle Martinez, now Graham ("Debtor," "Plaintiff" or "Graham"), 2 on her Complaint to Determine Secured Status pursuant to 11 U.S.C. 506(a) 3 and...
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S MOTION TO DISMISS ROBERT D. BERGER, Bankruptcy Judge. Defendant's Motion to Dismiss the complaint objecting to discharge of a debt under 11 U.S.C. 523(a)(2) and (4) is before the Court. 1 Plaintiffs Grant Hartwig and Adria Secord seek to except from discharge approximately $80,000 and allege Defendant Debtor Krista Markley fraudulently obtained and misappropriated funds they invested in her husband's business. Defendant's motion is granted...
MEMORANDUM OPINION AND JUDGMENT GRANTING DEBTORS' OBJECTION TO THE PRIORITY CLAIM OF THE INTERNAL REVENUE SERVICE AND DETERMINING THE INTEREST RATE ON THE INTERNAL REVENUE SERVICE'S SECURED CLAIM DALE L. SOMERS, Bankruptcy Judge. The matter before the Court is Debtors' "Objection to Claim # 3-1 of Internal Revenue Service" (hereafter "IRS") which asserts that Debtors' 2001 income tax liability is improperly classified as an unsecured priority claim under 11 U.S.C. 507(a)(8) and that...
MEMORANDUM OPINION AND ORDER DENYING BANK OF THE PRAIRIE'S OBJECTIONS TO DEBTORS' FIRST AMENDED CHAPTER 13 PLAN ROBERT D. BERGER, Bankruptcy Judge. Creditor Bank of the Prairie objects to Debtors' First Amended Chapter 13 Plan after the United States Bankruptcy Appellate Panel for the Tenth Circuit ("BAP") reversed the order confirming Debtors' original Chapter 13 plan (Doc. Nos. 126 and 128). The Court previously confirmed Debtors' original plan over the Bank's objection. The Bank holds an...
