ORDER DENYING WAIVER OF CREDIT COUNSELING BRIEFING AND PERSONAL FINANCIAL MANAGEMENT INSTRUCTIONAL COURSE ROBERT E. NUGENT , Bankruptcy Judge . To be eligible for chapter 7 relief, most individual debtors must first receive consumer credit counseling within 180 days before filing. Individual debtors cannot receive a discharge unless they complete a personal financial management instructional course during the case. Debtors who labor under a physical disability or are incapacitated are...
Memorandum Opinion and Order Granting Defendant's Motion to Dismiss Adversary Complaint DALE L. SOMERS , Chief Bankruptcy Judge . Debtor Brittany Keever (Debtor) borrowed money prepetition from Defendant Cash-2-Go of Kansas to be secured by her vehicle. In this proceeding, Debtor contends that Defendant failed to make disclosures required by the Truth in Lending Act (TILA) and violated Regulation Z with respect to that transaction. Debtor prays for rescission of the parties' contract, for...
Memorandum Opinion and Order Denying in Part and Granting in Part Defendants' Motions to Dismiss DALE L. SOMERS , Chief Bankruptcy Judge . Defendants Bank of the Flint Hills (the "Bank") 1 and Federal Home Loan Bank of Topeka (the "FHLB") 2 move to dismiss the Complaint filed by the Chapter 7 Trustee, Patricia E. Hamilton (the "Trustee") to avoid allegedly fraudulent transfers and to recover for alleged violations of federal consumer protection laws. 3 For the reasons, stated below, the...
ORDER REGARDING DEBTOR'S NOTICE OF AUCTION RESULTS (Doc. 228); DEBTOR'S FURTHER SUBMISSIONS (Doc. 252); and SUBMISSION OF REJECTION BID (Doc. 256) ROBERT E. NUGENT , Bankruptcy Judge . Maintaining a level playing field for bankruptcy sale bidders fosters a transparent auction process that insures the appearance of integrity and trustworthiness of the bankruptcy court system. Applying and enforcing previously-approved bid procedures serves that object. In this case, detailed bid procedures...
Memorandum Opinion and Order Denying the United States Trustee's Motion to Compel Debtor to Give Notice to Employee-Creditors DALE L. SOMERS , Chief Bankruptcy Judge . Debtor Riley Drive Restaurant XIX, LLC filed a voluntary petition under Chapter 11 on January 15, 2020. On January 17, 2020, Debtor filed several first day motions, including an Application for Approval of Payment of Prepetition Payroll (Application). 1 The United States Trustee (Trustee) responded with his Motion to Compel...
MEMORANDUM OPINION Robert E. Nugent , United States Bankruptcy Judge . Courts freely grant chapter 7 discharges unless the debtor has failed to preserve or destroyed books, records, and papers from which their financial condition can be ascertained under 727(a)(3) 1 or has failed to satisfactorily explain the loss of their assets under 727(a)(5). 2 But, courts strictly interpret these and other 727(a) objections to discharge before imposing bankruptcy's "death penalty" on a debtor....
Memorandum Opinion and Order Denying Objection to Confirmation and Granting Motion for Relief from Stay DALE L. SOMERS , Chief Bankruptcy Judge . This Chapter 13 case was filed shortly after the divorce of Debtor Shelly Nichole Pittman ("Debtor" or "Shelly") and Dennis J. Pittman ("Dennis"). As part of the divorce proceeding, the parties entered into a Separation and Property Settlement Agreement and Parenting Plan ("Settlement Agreement"). If Debtor's Chapter 13 plan is confirmed,...
ORDER APPROVING TRUSTEE'S FINAL REPORT (Doc. 506) ROBERT E. NUGENT , Bankruptcy Judge . When a chapter 7 estate is "fully administered," the Court can close the case. 1 If no one objects to the trustee's final report within 30 days of its filing, the case is presumed to be fully administered. 2 But a case may not be fully administered if there are outstanding undetermined administrative claims. For a claim to receive administrative priority, the claimant must have conferred a benefit...
ORDER OVERRULING OBJECTIONS TO HOMESTEAD EXEMPTION ROBERT E. NUGENT , Bankruptcy Judge . Kansans can exempt their ownership interest in their homestead if they, or their families, or both occupy it as a residence. 1 If the homestead is outside an incorporated city, it can extend to 160 acres and includes "improvements." The Bankruptcy Code recognizes that exemption. 2 Kansas state courts consistently hold that, for homestead purposes, "ownership" is not limited to fee title, but may...
Memorandum Opinion and Order Granting Debtor's Motion to Extend Stay, with Conditions DALE L. SOMERS , Chief Bankruptcy Judge . The matter before the Court is Debtor Karie Ann Baker's motion to determine that the termination of the automatic stay in 11 U.S.C. 362(c)(3)(A) is not applicable, or in the alternative to extend the automatic stay. 1 Creditor U. S. Bank, National Association (hereafter U.S. Bank) responded and opposes the motion. 2 Debtor's petition was filed on October 31,...
Memorandum Opinion and Order Overruling, in Part, and Granting, in Part, Joint Objection to "Chateau Lake Loan" Claim and Overruling in Part, and Granting, in Part, CMBS Lenders' Motion to Allow Claims Robert D. Berger , United States Bankruptcy Judge . When an oversecured commercial lender contracts for post-petition default-upon-bankruptcy interest, is that loan agreement provision enforceable under bankruptcy law against a Chapter 11 debtor Does the answer change when the debtor is...
Memorandum Opinion Addressing Burden of Proof when Litigating Objections to Debtor's Claimed Exemptions Dale L. Somers , United States Chief Bankruptcy Judge . Under K.S.A. 60-2304(a), a Kansas resident may exempt the "furnishings, equipment, and supplies ... reasonably necessary at the principal residence of the person." 1 The legislature has not established a monetary limit. Taking advantage of this void, Debtor Michael Lerner 2 exempts "household goods and furnishings" valued at $27,...
Order Denying Debtor's Motion for Entry of Chapter 11 Discharge ROBERT D. BERGER , Bankruptcy Judge . Debtor Vikki Lindemuth asks this Court to enter a discharge in her individual Chapter 11 case. 1 Nothing about the overarching "Lindemuth bankruptcies" has been typical, however, and both the U.S. Trustee and Debtor's estranged husband object to the entry of discharge. The Court concludes that Debtor is not entitled to a discharge under the provision upon which she relied in her motion (...
Order Denying Trustee's Motion to Dismiss ROBERT D. BERGER , Bankruptcy Judge . Debtors Jack and Jeri Lana field their Chapter 13 bankruptcy petition in May 2012, about seven and a half years ago. Debtors completed their plan payments and received a discharge on October 4, 2017. 1 More than a year later, on November 9, 2018, the United States Trustee filed a motion to reopen Debtors' case, 2 and this Court signed an Order reopening the case without hearing. 3 In that motion, the United...
ORDER GRANTING PARTIAL MOTION TO DISMISS AND GRANTING LEAVE TO AMEND ROBERT E. NUGENT , Bankruptcy Judge . Patricia Lee's complaint states two causes of action, one that requiring payment of the student loans debtor guaranteed will work an undue hardship on her and the other asserting "on information and belief" that the loans were not "qualified educational loans" (QELs) under 11 U.S.C. 523(a)(8)(B) and Internal Revenue Code (I.R.C.) 221. On the latter count, Ms. Lee seeks a...
Memorandum Opinion and Order Overruling Objection to Confirmation of Debtor's Chapter 13 Plan Dale L. Somers , United States Chief Bankruptcy Judge . Debtor Taukita Lauryce Sharp filed her Chapter 13 bankruptcy petition only twenty-one days after she purchased a vehicle from Creditor PayDay Motors, Inc. d/b/a AutoStart, and the Creditor now opposes confirmation of Debtor's proposed Chapter 13 plan on two bases: 1) that the plan was not proposed in good faith under 11 U.S.C. 1325(a)(3) 1...
MEMORANDUM OPINION Robert E. Nugent , United States Bankruptcy Judge . A Kansas debtor who lives in a city or town may exempt a homestead of up to one acre from the property of the bankruptcy estate if the debtor owns the real estate and resides there either alone or with family. Those factual and legal determinations are made as of the bankruptcy filing date. Married and separated on the petition dates, Horacio and Aracely Vazquez filed separate cases, each attempting to exempt separate...
Memorandum Opinion, Order, and Judgment Denying Motion for Disgorgement of Professional Fees Dale L. Somers , United States Chief Bankruptcy Judge . Debtors ACI Concrete Placement of Kansas, LLC, and related entities 1 filed for bankruptcy relief in September 2017 and operated under the protection of Chapter 11 until the spring of 2019, when the bank holding perfected security interests in substantially all of Debtors' assets declared a default as defined by the cash collateral order....
MEMORANDUM OPINION ROBERT E. NUGENT , Bankruptcy Judge . This is Graves Farms' second attempt to confirm a plan. The initial Graves Farms Chapter 12 plan (the "Partnership Plan") could not be confirmed because that debtor did not present evidence of its previous performance and the proposed plan represented a significant change in the debtor's historical operations by adding a new crop (cotton), a new operator whose position or status with the debtor was unclear (Kylee Graves), and new...
ORDER DENYING PLAINTIFF'S MOTION TO AMEND 727 COMPLAINT ROBERT E. NUGENT , Bankruptcy Judge . A proposed amended complaint relates back to the original complaint under Fed. R. Civ. P. 15(c)(1)(B) if it asserts a claim that arises from the conduct, transactions, or occurrences set out in the original. What matters is whether the originally-pleaded claim and the new one share a "common core" of facts found in the first complaint. If they don't, and if the new claim is barred by an...
