MEMORANDUM OPINION ROBERT H. JACOBVITZ , United States Bankruptcy Judge . Before the Court is Plaintiffs' adversary complaint against Debtor-Defendants. Plaintiffs assert Defendants defrauded and embezzled from them by siphoning money away from the parties' co-owned limited liability company. Plaintiffs seek a non-dischargeable judgment against Defendants in the amount of $581,473.73 pursuant to 11 U.S.C. 523(a)(2)(A) and 523(a)(4). After carefully considering the evidence and...
MEMORANDUM OPINION David T. Thuma , United States Bankruptcy Judge Before the Court is the Chapter 13 trustee's motion to dismiss this case because the debtors also have a pending Chapter 7 case. The trustee contends such simultaneous bankruptcy cases are prohibited. She argues in the alternative that the case should be dismissed on bad faith grounds. The Debtors counter that having two cases pending at the same time is not necessarily verboten and should be allowed in this case. For...
MEMORANDUM OPINION Hon. David T. Thuma , United States Bankruptcy Judge . Before the Court is Plaintiff's request that Defendants' bankruptcy discharge be denied under 727(a)(2), (a)(4), and/or (a)(5). 1 The main issue is whether Debtors' conveyance of real estate with certain reconveyance rights constituted a fraudulent concealment. Also raised is the effect of Defendants' failure to list certain property rights, including rental income, on their bankruptcy schedules. After trial on...
MEMORANDUM OPINION DAVID T. THUMA , Bankruptcy Judge . Debtor Bright Harvesting, Inc. is a custom harvester headquartered near Clovis, New Mexico. Debtors Gary and Gennifer Bright own Bright Harvesting, and also own a wheat and sorghum farm in the Clovis area. They filed separate Chapter 12 cases and separate plans of reorganization. The Court held a final hearing on confirmation of both plans, including the objections filed by their main creditor. For the reasons below, the Court...
MEMORANDUM OPINION Hon. David T. Thuma , United States Bankruptcy Judge . Before the Court is Plaintiffs' motion for summary judgment on their 523(a)(2)(A), (a)(4), and (a)(6) 1 nondischargeability claims against Defendant. Defendant did not respond to the motion. The Court concludes that Plaintiffs' claims based on the liens Defendant filed are nondischargeable under 523(a)(2) and (a)(6), in an amount to be determined by the Court. The Court will permit Plaintiffs to supplement...
MEMORANDUM OPINION DAVID T. THUMA , Bankruptcy Judge . Before the Court is a motion to dismiss the adversary proceeding under F.R.Civ.P. 1 12(b)(1), (2), (4), (5), and (6), and for a more definite statement under Rule 12(e). The motion was filed by three of the named defendants. For the reasons set forth below, the dismissal arguments are overruled, but the plaintiff will be required to file an amended complaint. I. FINDINGS OF FACT The Court makes the following findings, based on...
MEMORANDUM OPINION AND ORDER ON MOTIONS TO APPLY FED. R. BANKR. P. 7023 TO THE CLAIMS ALLOWANCE AND DISALLOWANCE PROCESS ROBERT H. JACOBVITZ , Bankruptcy Judge . THIS MATTER is before the Court on the following motions: 1) Plaintiff Caroline Tullie's Motion to Allow Class Proofs of Claim, to Apply Fed. R. Bankr.P. 7023 to the Claims Allowance and Disallowance Procedure and to Implement a Schedule for Certifying Class Claims ("Tullie Motion" — See Docket No. 57); and 2) Consumer...
MEMORANDUM OPINION ROBERT H. JACOBVITZ , United States Bankruptcy Judge . Plaintiff Caroline Tullie, on her own behalf as next friend of Nelson Tullie, and on behalf of all others similarly situated, filed a class action against Defendant Quick Cash, Inc. ("Quick Cash") in the United States District Court for the District of New Mexico as Case No. 1:14-cv-00491-SMV-SCY (the "Class Action Suit"). Ms. Tullie removed the Class Action Suit to this Court initiating this adversary proceeding on...
MEMORANDUM OPINION ROBERT H. JACOBVITZ , United States Bankruptcy Judge . At issue before the Court is whether a creditor can obtain an order compelling debtors who wish to retain personal property subject to the creditor's security interest, here a manufactured home, to either 1) enter into a reaffirmation agreement; or 2) redeem the property. Creditor 21 st Mortgage Corporation, successor to Chase Manhattan Bank USA, N.A. ("21 st Mortgage") requests the Court to require Debtors to...
MEMORANDUM OPINION DAVID T. THUMA , Bankruptcy Judge . Before the Court is Plaintiffs' request for attorney fees under Fed.R.Civ.P. 37(a)(5), sought in connection with obtaining an order compelling discovery. For the reasons set forth below, the Court concludes that reasonable attorney fees should be awarded. I. FINDINGS OF FACT 1 The Court makes the following findings, based on the dockets of the adversary proceeding and the main bankruptcy case, 2 the documents submitted by the...
MEMORANDUM OPINION DAVID T. THUMA , Bankruptcy Judge . Before the Court is a dispute about the value of Debtor's manufactured house. After hearing evidence, including expert testimony, and requiring the submission of supplemental evidence, the Court finds the house is worth $22,030. I. FACTS 1 The Court finds the following facts: Debtor purchased the manufactured house, a 1999 Signal Beacon 56' x 28' (the "House") in February, 2005. She paid about $50,000 for the House, with a $3,...
MEMORANDUM OPINION DAVID T. THUMA , Bankruptcy Judge . Before the Court is the Chapter 11 Trustee's motion to authorize monthly payment of 75% of his Trustee fees earned in the prior month. The main secured creditor in the case objected, arguing that the Trustee should not be paid until creditors have been paid in full. For the reasons set forth below, the Court will grant the motion. I. FACTS 1 On July 25, 2014, the Debtor filed a voluntary petition under Chapter 11 of the...
MEMORANDUM OPINION Hon. David T. Thuma , United States Bankruptcy Judge Before the Court are a secured creditor's motion to designate its collateral as "single asset real estate" (or "SARE") and Debtor's motion to set the monthly interest-only payment required if the subject property is SARE. The crux of the dispute is whether the property comes within an exception to the SARE designation for certain residential property. For the reasons set forth below, the Court concludes that Debtor'...
ORDER GRANTING MOTION TO ABANDON PROPERTY LOCATED AT 1201 W YUCCA DR., CLOVIS, NEW MEXICO 88101 ROBERT H. JACOBVITZ , Bankruptcy Judge . This matter came before the Court on August 20, 2015 at 2:00 p.m., upon the Motion to Abandon Property located at 1201 W Yucca Dr., Clovis, NM 88101 filed on June 30, 2015, Docket No. 29 (the "Motion") by U.S. Bank National Association ("Movant"), the Opposition to the Motion filed on July 14, 2015, Docket No. 31 by Jeffie Chloe Hamar ("Debtor"), and the...
MEMORANDUM OPINION AND ORDER ON DEFENDANT'S MOTION TO DISMISS ROBERT H. JACOBVITZ , Bankruptcy Judge . Eric C. Johnson, co-personal representative and property manager for the Estate of Harold G. Johnson (the "Personal Representative") initiated this adversary proceeding on March 17, 2015. See Docket No. 1. Instead of filing an answer, Defendant Antoinette Cynthia Metheney, by and through her attorney of record, Sean Patrick Thomas, filed a Motion to Dismiss, asserting, among other...
MEMORANDUM OPINION REGARDING MOTION FOR JUDGMENT ON THE PLEADINGS AS TO COUNT 1 ROBERT H. JACOBVITZ , Bankruptcy Judge . THIS MATTER is before the Court on Defendants Michael Dreskin and Carol Williams' Motion to Dismiss Count 1 of the Complaint for Failure to State a Claim ("Motion"). See Docket No. 124. Plaintiff Judith A. Wagner, Chapter 11 Trustee of the bankruptcy estate of the Vaughan Company, Realtors ("Trustee") has asserted various claims in this Adversary Proceeding arising...
MEMORANDUM OPINION Hon. David T. Thuma , United States Bankruptcy Judge . Before the Court is the Chapter 7 Trustee's motion for summary judgment that John L. Saylor's ("Saylor's") proof of claim be disallowed because it was filed late and lacks appropriate supporting documentation. Mr. Saylor does not dispute the late filing but argues that he did not receive notice of the bar date, so his due process rights prevent disallowance. Saylor also amended his proof of claim in an attempt to...
MEMORANDUM OPINION Hon. David T. Thuma , Bankruptcy Judge . Before the Court are three voluntarily converted Chapter 13 cases, two of which converted before a plan was confirmed. The question is whether, in light of the Supreme Court's recent decision in Harris v. Viegelahn, ___ U.S. ___, 135 S.Ct. 1829 , 191 L.Ed.2d 783 (2015), Kelly L. Skehen, the Chapter 13 trustee in these cases prior to conversion (the "Standing Trustee"), may after conversion proceed in accordance with prior...
MEMORANDUM OPINION Hon. David T. Thuma , United States Bankruptcy Judge . Before the Court is Defendant's motion to dismiss all claims in this adversary proceeding pursuant to Fed. R. Civ. P. 12(b)(1) or 12(b)(6). The matter has been fully briefed and argued. For the reasons set forth below, the Court will dismiss most of the claims because they were not reserved in the confirmed plan of liquidation. I. FACTS For the purpose of ruling on the Fed. R. Civ. P. 12(b)(1) arguments, the...
ORDER ABANDONING TRADEMARK DAVID T. THUMA , Bankruptcy Judge . Las Alamos National Bank's Motion to Abandon Trademark (DKT. 21) was filed May 21, 2015 and a Notice of such Motion and Deadline to file Objections (DKT. 22) was filed on May 21, 2015 confirming service of such Motion and Notice on the Debtor, Debtor's counsel and the Trustee, providing 21 days plus 3 days for mailing in which to file objections; the objection deadline has expired; and no objections were timely filed or filed...
