MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S CROSS MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT ROBERT D. BERGER, Bankruptcy Judge. Plaintiff Eric C. Rajala, Chapter 7 Trustee, and defendant U.S. Bank both seek summary judgment in this proceeding to determine whether the debtor's return of the cash advance on February 2, 2010, is avoidable under 11 U.S.C. 547(b). Plaintiff's motion is denied. Defendant's motion is granted. This adversary proceeding is...
MEMORANDUM OPINION ROBERT E. NUGENT, Chief Judge. Kansas law holds that the beneficiary of a self-settled living trust may claim his equitable interest in real property held in the trust as his exempt homestead. 1 Section 522(p) of the Bankruptcy Code caps the "amount of interest" that a debtor may acquire in his homestead in the 1,215 days before filing at $146,450. 2 That amount, however, doesn't include any interest that the debtor transferred from his prior principal residence. 3...
ORDER GRANTING LEGACY BANK'S MOTION FOR SUMMARY JUDGMENT AND DENYING THE TRUSTEE'S MOTION FOR SUMMARY JUDGMENT ROBERT E. NUGENT, Chief Judge. These are cross-motions for summary judgment filed by the trustee, Carl B. Davis, and the defendant Legacy Bank on the Trustee's complaint to avoid the Bank's security interest in Michelle Brown's ownership interest in the Kansas Medical Center, L.L.C. 1 The Bank claims to have a lien in her 7 units of that company; the controversy here arises...
MEMORANDUM OPINION AND JUDGMENTS DENYING DEBTOR'S MOTION FOR SUMMARY JUDGMENT AND GRANTING ELAINE L. STELTER AND STEVEN A. LUNT'S CROSS MOTION FOR SUMMARY JUDGMENT DALE L. SOMERS, Bankruptcy Judge. In this re-opened Chapter 7 case, Debtor Philip Duane Lunt requests the Court to hold The Peoples Bank as Trustee (Trustee) of the Harry B. Lunt Trust (Trust) in contempt for violation of the discharge injunction. 1 The basis for the alleged violation is the Trustee's offsetting of a 2010...
MEMORANDUM OPINION ROBERT E. NUGENT, Chief Judge. Section 1229 permits a debtor to modify a confirmed chapter 12 plan to, among other things, reduce or extend the time for payments. 1 This is done by filing a modified plan which, upon filing and until disapproved after notice and a hearing, "becomes the plan." 2 According to 11 U.S.C. 1229(b)(2), the requirements of 1222(a), describing what provisions a plan must contain, and 1225(a), setting out the requirements for confirmation,...
MEMORANDUM OPINION ROBERT E. NUGENT, Chief Judge. Congress and the Kansas Legislature have each enacted an earned income tax credit (EIC) to afford lower-income families with children not only a refund of over-withheld wages, but also an additional refundable tax credit. 1 Until last year, the right to receive the credit, along with the debtor's income tax refund, was subject to turnover to a chapter 7 debtor's trustee for administration and distribution to the creditors. Recognizing that...
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART THE TRUSTEE'S SECOND AMENDED COMPLAINT FOR REVOCATION OF DISCHARGE DALE L. SOMERS, Bankruptcy Judge. Trial on the Trustee's Second Amended Complaint for Revocation of Discharge was held on May 29, 2012. 1 The Plaintiff, Carl B. Davis, Chapter 7 Trustee (Trustee), appeared by Elizabeth A. Carson of Bruce, Bruce & Lehman, L.L.C. The Defendant, Debtor Donald P. Osborne (Debtor), appeared pro se. There were no other appearances....
MEMORANDUM OPINION GRANTING MOTION TO DISMISS FILED BY TEXTRON BUSINESS SERVICES, INC. DALE L. SOMERS, Bankruptcy Judge. Textron Business Services, Inc. (Textron), 1 has moved to dismiss 2 claims of the Trustee and Brooke Agency Services Company LLC (BASC) 3 for breach of contract for failing to "set aside and distribute" amounts due them for "Level III CP services provided." These claims arise out of contracts for the securitization of loans made to Brooke insurance agents and agencies by...
MEMORANDUM AND ORDER GRANTING TRUSTEE'S MOTION FOR TURNOVER ROBERT D. BERGER, Bankruptcy Judge. Chapter 7 Trustee Eric Rajala moves for an order directing Debtors to turn over the balances in two accounts designated as 529 college savings accounts. The motion is granted because the accounts do not fall within any statutory exemption, and only pre-petition support obligations may be paid from estate assets. Findings of Fact Debtors filed a Chapter 7 petition on April 14, 2011, and...
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEBTORS' MOTION TO DISMISS DALE L. SOMERS, Bankruptcy Judge. Debtors Jonathan I. Schupbach and Amy N. Schupbach (Debtors) move to dismiss Bank of Commerce & Trust Co.'s (Commerce) Complaint to Determine Dischargeability of Debt and Request to Determine Amount of Debt (Motion). Commerce opposes dismissal. The Court has jurisdiction. 1 The Applicable Standard. Debtors move to dismiss the claims against them under Bankruptcy...
ORDER OVERRULING TRUSTEE'S OBJECTION TO EXEMPTION ROBERT E. NUGENT, Chief Judge. In general, the Bankruptcy Code allows debtors to choose between the exemption scheme their domicile state law allows or to choose the "federal" exemptions established in 522(d). 1 But, the Code also allows states to opt out by denying their debtors the right to claim the federal exemptions. 2 The Code further circumscribes the debtors' choice of exemptions by requiring that they have lived in the state...
MEMORANDUM OPINION ROBERT E. NUGENT, Chief Judge. TABLE OF CONTENTS I. Uncontroverted Facts ......................................................... 157 A. The Players and Persels' Debt Settlement Business Model ................... 157 B. Kinderknecht's Enrollment in Debt Settlement Plan and Retention of Persels Law Firm ........................................................ 159 C. Kinderknecht's Performance of Debt Settlement Plan and Persels' Representation ...............................
Memorandum Opinion and Order Overruling the Trustee's Objection to Exemption JANICE MILLER KARLIN, Bankruptcy Judge. Under new legislation effective April 14, 2011, a Kansas debtor in bankruptcy is entitled to exempt from the bankruptcy estate the right to receive the federal and state earned income tax credit ("EIC"). 1 A general debtor in Kansas not proceeding under bankruptcy, however, is not entitled to this protection. The Trustee has objected to the Debtors' use of the exemption based...
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART KUTAK ROCK'S MOTION TO DISMISS STATE LAW CLAIMS DALE L. SOMERS, Bankruptcy Judge. The Court has under advisement the "Motion of Defendant Kutak Rock LLP to Dismiss the State Law Claims (Counts VI-IX) for Failure to State a Claim upon which Relief May Be Granted" (Motion). 1 The First Amended Complaint (Complaint), 2 filed by Plaintiff Christopher J. Redmond, 3 the Chapter 7 Trustee for Debtors Brooke Corporation, Brooke...
MEMORANDUM OPINION AND ORDER FINDING THE AMENDED COMPLAINT FAILS TO STATE CLAIMS ON WHICH RELIEF CAN BE GRANTED AGAINST UNDERWRITERS AND GRANTING THE TRUSTEE LEAVE TO FILE AN AMENDED COMPLAINT DALE L. SOMERS, Bankruptcy Judge. The Court has under advisement the Motion to Dismiss All Claims Against the Underwriters (Motion), 1 filed by defendants Sandler O'Neill & Partners, L.P., Macquarie Holdings (USA) Inc., 2 and Oppenheimer & Co., Inc. (collectively, "Underwriters"). 3 The Amended...
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF'S SUMMARY JUDGMENT MOTION AND GRANTING JUDGMENT IN FAVOR OF DEFENDANTS ROBERT D. BERGER, Bankruptcy Judge. The Trustee sued Defendants Rainstorm, Inc., Stephen J. Davis, Silver Tree Gordon, and Keith Lawyer to avoid a $150,000 transfer as preferential or fraudulent under 11 U.S.C. 547 or 548. The motion for summary judgment is denied because the property at issue never belonged to Debtor or its estate. Judgment shall be entered in favor of...
OPINION GRANTING DEFENDANT'S SUMMARY JUDGMENT MOTION DALE L. SOMERS, Bankruptcy Judge. This proceeding is before the Court on a motion for summary judgment filed by Defendant Bank of America (Bank). The Bank appears by counsel Richard M. Beheler of South & Associates, P.C. Plaintiff-Trustee Steven L. Speth appears by counsel Timothy J. King of Speth & King. The Court has reviewed the relevant pleadings and is now ready to rule. Facts The Trustee has conceded the truth of many relevant facts...
