Darcy Williamson v. Georgianna Elsa Snodgrass (In re Snodgrass); Adv. 03-7132; Case No.
03-43504-7 (June 14, 2005) (Somers)
MEMORANDUM AND ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
Facts:
In January, 2002, husband files Chapter 7 bankruptcy and claims the Winchester property as exempt. The Trustee objected and an Order was entered that denied the Trustee’s objection to the Winchester property and stated that the debtor had an undivided one-half interest in the real estate located in the Lawrence property.
In December, 2003 Georgianna filed a Chapter 7 bankruptcy petition and claimed the Lawrence property as exempt. The husband and wife were now separated and there was an informal settlement agreement that gave wife ownership of the Lawrence property. The Trustee filed the Answer and Complaint to recover the husband’s interest in the Lawrence property. There is a factual issue concerning the informal separation agreement between husband and wife. A trial will be necessary to determine the terms of this agreement and whether the husband will retain any interest in the Lawrence property. The Order entered in the husband’s bankruptcy does not adjudicate the ownership interest of husband and wife only that allowed the Trustee to pursue any interest she has in the Lawrence property.
Agco Corporation v. Jeffrey Dean Fromore (In re Formore); Adv. 05-5013; Case No.
04-14412-7 (May 25, 2005) (Nugent)
ORDER AND OPINION GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS
Facts:
The defendant Jeffrey Fromore (“defendant”) formed Valley Springs Services LLC (“LLC”). In March, 1998, LLC entered into a contract for purchase of an egg culture spraying equipment from Agco (“financer”). In July, 2004 the defendant sold the property to Stan Fromore ________ Inc. in return for a deed to real property in the City of Dighton, Kansas. No consent or permission was obtained by Agco. Agco filed a Complaint under 523(a)(2) alleging (“fraud”); 523(a)(4) (breach of fiduciary duty); and 523(a)(6) (intentional and malicious damage).
Holding:
1. The Complaint makes no allegation of any ___________, deception or any
misleading statement or conduct which Agco _____________ relied on to its detriment. No pleading of any ___________ deceptive or misleading conduct was made and therefore a Motion to Dismiss was granted.
2. The only relationship between Agco and LLC was a debtor and creditor
relationship and not a judiciary one. The cause of action is _____________. Furthermore there is no allegation that the property was fraudulently or wrongfully taken by the defendant or LLC.
3. To the extent the defendant sold the property with knowledge of Agco’s lien
rights and knowing that by doing so he would hinder any efforts to recover its collateral, Agco is allowed to proceed with this count.
In re Metlife Palace Dairy LLC; Case No. 03-16743-11 (May 19, 2005) (Nugent)
ORDER GRANTING IN PART AND DENYING IN PART METLIFE’S MOTION TO ALTER OR AMEND
Facts:
The Court entered an Order __________ the value of Metlife’s allowed secured claim of priority between Metlife and ________ regarding certain equipment, post-__________ offers to purchase, loss of valuable water rights, and E&B voting rights.
The case is factually involved but in determining the allowed secured claim of Metlife the Court held that any rent recovered during the course of the bankruptcy case should not be considered additional collateral value of the secured creditor but rather should be deducted through the secured creditor’s claim. This is the “dual valuation approach”. Furthermore the Court reassessed the plan treatment. The Court did not have to look at post trial evidence but could not have presented it at Court trial and therefore is not _______________________ post judgment.
North American Savings Bank v. Gregory Downing and Mary _________ Downing; (In re Downing); Adv. 04-5161; Case No. 03-15942-7 (June 13, 2005)
MEMORANDUM AND ORDER DENYING MOTION OF CREDITOR AND NORTH AMERICAN SAVINGS BANK FOR AUTHORITY TO PROSECUTE CLAIMS ON BEHALF OF STATE AND FOR GRANT OF ADMINISTRATIVE CLAIM
Facts:
Gregory Downing and Mary ________ Downing filed Chapter 7 bankruptcy petition and no party objected to the claimed exemptions. North American Savings Bank (“Bank”) filed its Motion for Authority to Prosecute Claims Under 542 and 549. The Bank alleges the debtors converted non-exempt assets to exempt assets by paying down the debts secured by the debtors’ residence shortly before filing relief, that the residence claimed as exempt is not exempt, and that the debtors made voidable post-petition transfers. The Trustee has declined to prosecute.
Holdings:
1. Under 542 the Bank denied use of the ________________ arguments which
reopened the issue as to whether the homestead is exempt. Furthermore the property is of inconsequential value or benefit to the estate because the additional acres that are arguably non-exempt have little or no value and the mortgage securing the exempt parcel is substantial.
2. Like that of 548 a creditor may not bring an action on behalf of the bankruptcy
estate.
Mary Mae v. Gregory Downing and Mary ____________ Downing (Gregory and Mary ____________ Downing); Adv. 04-5083; Case No. 03-15942-7
MEMORANDUM AND ORDER DENYING UNITED STATES TRUSTEE’S MOTION FOR SUMMARY JUDGMENT AND DENYING NORTH AMERICAN SAVINGS BANK’S MOTION FOR SUMMARY JUDGMENT COUNT 3
Facts:
The positions of the U.S. Trustee and the Bank are similar in that because of the alleged ___________ on the basis that the debtor made false oaths in their schedules at the 341 meeting relating to their ownership and correct value of jewelry, a fur coat, coin collection and an interest in an oil well. The debtors alleged in summary that they acted in good faith and that no fraudulent or malicious intent to hide or otherwise conceal personal property.
Holdings:
1. There is no prepondence of the evidence that the debtor made a false oath that related to a material fact. There are controverted facts as whether the debtors knowingly and with fraudulent intent failed to disclose personal property.
3. There is no basis under 727(a)(2) the debtors intentionally concealed any valuable
non-exempt personal property by omitting it from their schedules. There are controverted issues of material fact.
North American Savings Bank v. Gregory C. Downing and Mary_________ Downing (In re Downing); Adv. No. 04-5161; Case No. 03-15942-7
MEMORANDUM AND ORDER GRANTING IN PART AND DENYING IN PART GREGORY C. DOWNING AND MARY A. ________ ‘S MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT FILED BY NORTH AMERICAN SAVINGS BANK
Holding:
1, The Bank fails to show by prepondence of evidence that debtors had fraudulent intent. Under 7278(2)(a) to apply non-exempt assets to liquidate non-exempt assets and to apply proceeds to pay down exempt mortgage and non-exempt assets.
2. The Bank’s argument that debtors’ homestead description included __________
within city limits as a matter of law debtors were not entitled to an exemption. The only error in the schedules related to the homestead exemption was a claim of exemption for ________________ acre. The fact that the non-exempt 6 acre portion is of no value to the estate suggests that the debtors _________________ exemption of the excess 6 acres of homestead was not material. The Motion for Summary Judgment of the debtors is granted and that of the Bank is denied.
David Ulrich v. Teresa and Michael Ulrich (In re Ulrich, Case No. 04-5326); Case No. 04-13965-7 (June 24, 2005) (Somers)
MEMORANDUM AND ORDER DENYING DEFENDANT’S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT
Facts:
The debtor Teresa Ulrich (“debtor”) filed a Chapter 7 bankruptcy petition and David Ulrich, her husband, filed an adversary complaint under 523(a)(6) alleging that the debtors’ tortious and fraudulent conduct was an invasion of the husband’ right to privacy and other interference and conduct resulting to unauthorized access to the husband’s private e-mail account and using such ________________ of the divorce proceedings.
Holding:
1. The Complaint states a claim upon which relief may be granted. Kansas law
recognizes that a tort of intentional invasion of privacy and 523(a)(6) and that same cause of action would be excepted under discharge under 523(a)(6).
2. The debtors’ Motion for Summary Judgment was denied. There can be an
invasion of privacy arising from accessing an e-mail account under Kansas law and the husband contended that he did not consent to the invasion of his privacy. Whether consent was given is a controverted issue of material fact.
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