Court set aside an ex parte order granting relief from the automatic stay pursuant to FRBP 9024 and 11 U.S.C. §105, finding the Creditor’s simultaneous use of the power of the Bankruptcy Court and the power of the State Court to be an extraordinary fact justifying such relief. The Debtor paid the full amount of the Creditor’s secured claim in bankruptcy via a wage deduction order, and the Creditor accepted these payments (treating the Debtor as owner of the home securing the debt); at the same time, in State Court, Creditor sought to evict Debtor from the same home as a tenant behind in her rent payments (asserting Creditor was the true owner of the home). The Court found that setting aside the ex parte Order Lifting Stay was necessary to prevent a manifest injustice. In re Clark,409 B.R. 906 (Bankr. E.D. Ark. 2009).
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Opinions
Notice: Not all of the Judges Opinions will be made available on this site. Individual Judges have the option of specifying that all, some or none of their opinions be posted.
Audrey R. Evans
On Defendant's Motion to Dismiss adversary proceeding filed in a reopened bankruptcy case post-discharge, the Court found it has subject matter jurisdiction over claims arising under the bankruptcy code and involving amounts paid pursuant to a chapter 13 bankruptcy plan, but does not have subject matter jurisdiction over federal and state law claims because there was no longer an estate for the claims to affect. Moffitt v. America's Servicing Company (In re Moffitt),406 B.R. 825 (Bankr. E.D. Ark. 2009).
In overruling Debtors’ Objection to Claim 4 of American Express Centurion Bank, the Court, applying Arkansas law, found that the credit card debt, which was evidenced by a written agreement, met all the necessary requirements for a written contract for purposes of applying the five-year statute of limitations. In re Brown, 403 B.R. 1 (Bankr. E.D. Ark. 2009).
Court found Plaintiffs failed to plead sufficient facts to justify entry of default judgment on claims under 11 U.S.C. §§ 506(b) and 362, and the Fair Debt Collection Practices Act, but found that sufficient facts were pled to warrant default judgment on Plaintiffs’ claims under the Real Estate Settlement Procedures Act and for state law breach of contract. A hearing on damages is to be set by subsequent notice. Price v. America's Servicing Company (In re Price), 403 B.R. 775 (Bankr. E.D. Ark. 2009).
James G. Mixon
The Court found that an award of attorney's fees pursuant to 11 U.S.C. § 107(c)(1), 15 U.S.C. § 6801, 28 U.S.C. § 1927, Federal Rule of Bankruptcy Procedure 9037(a)(1), Federal Rule of Civil Procedure 5.2, 11 U.S.C. § 105(a) or General Order 24, incurred in filing a motion to restrict public access was not appropriate in either case.
The Debtor agreed to the terms of the written agreements issued by American Express by use of the credit cards, thereby forming a binding contract. Therefore, the Debtor's objections to the claims were overruled because the five year statute of limitations applicable to written obligations applied.
Judge Ben T. Barry
The Court granted the plaintiff's motion for summary judgment based on collateral estoppel and a durable power of attorney that satisfied the fiduciary requirement under s. 523(a)(4).
The Court denied the plaintiffs’ complaint under § 523(a)(2)(A) for failure to prove justifiable reliance on the debtor’s misrepresentations with regard to the purchase of a newly constructed residence, and failure to prove actual damages. Although the debtor made specific misrepresentations, because the plaintiffs’ obtained their own inspection report prior to closing, the Court found they were put on notice of the deficiencies but chose to purchase the residence regardless.
On remand, the Court granted creditor's motion to dismiss the debtor's chapter 7 case based on a presumption of abuse as determined by the debtor's means test. Although the debtor was correct in choosing applicable IRS standards based on a family size of five, the Court disallowed a claimed educational expense and found that the debtor's dependents received at least $18.61 in financial assistance that must be included in the debtor's current monthly income.
Reading § 1325(a)(5)(B)(iii) in conjunction with § 1326(a)(1), (2), and (b), the Court finds that chapter 13 debtors must pay creditors holding allowed claims secured by personal property adequate protection beginning not later than 30 days after the order for relief and continuing until the creditor receives equal monthly payments provided for by the debtors’ plan.