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The Court denied the Bankruptcy Administrator's request to dismiss case with a permanent bar from refiling.  The Court nevertheless found that section 349 grants authority to bar a refiling for a period exceeding 180 days.  In light of the Debtor's history as a serial filer, her violation of prior orders of the Court, and her submission of false evidence to the Court (forged credit counseling certificate), the Court dismissed the Debtor's case with a one year bar from refiling a Chapter 13 petition.

Dismissal, Published No
In re Lev 12/01/2016
(Judge Benjamin A. Kahn)

Motion by trustee sought turnover of certain severance payments the Debtor had received and was continuing to receive post-petition.  The Debtor received these payments as part of a severance agreement entered into pre-petition.  Debtor argued that the payments received post-petition should not be property of the estate and were akin to wages or salary that could be excluded from the estate pursuant to Section 541(a)(6).  The Court found that the severance payments were property of the estate because they were sufficiently rooted in the pre-petition past and that the services performed to become entitled to these payments had been substantially, if not fully, rendered pre-petition.  Debtor was therefore ordered to turnover any severance proceeds to the trustee.

Property of the Estate, Published No

Debtor sought reconsideration of the order dismissing her Chapter 13 case with prejudice and requested the court to set aside dismissal or amend the order to remove the 180-day bar from refiling. The court found that the Debtor did not satisfy the requirements of Rule 60(b)(6), and did not establish grounds for the Plan to be modified to remove the 180 day bar.  Concerns regarding a mortgage and escrow payment should have been met with a claim objection rather than a decision to cease plan payments. Motion Denied.

Reconsider/Amend, Published No

The Court found that an oversecured creditor was entitled to pre- and post-petition interest at the contract default rate.  With respect to post-petition interest, the Court found that the Trustee had failed to rebut the presumption that the contract rate should apply.  The Court also found that adequate protection payments made by the debtor while the case was administratively consolidated should be credited to debt at issue.  To determine the appropriateness of a request for post-petition attorneys' fees, the court looked to the underlying loan documents.

Claims, Published No

Plaintiff/Trustee filed two motions in limine to exclude any evidence at trial that the Defendant failed to disclose as required in discovery. Declining to impose a harsher or lesser sanction for Defendant's failure to respond to discovery as required by the rules of civil procedure, the Court granted Plaintiff's motions pursuant to Rule 37 and determined that it would exclude any evidence of solvency or valuation offered by the Defendant at trial to the extent such evidence contradicted or supplemented Debtor's schedules.

Discovery, Published No

Former business associate of the Debtor obtained a default judgment against the Debtor in Connecticut state court prior to the petition date, and filed an adversary proceeding to assert nondischargeability pursuant 523(a)(2)(A) and 523(a)(4). The Debtor failed to answer or otherwise plead, and after re-issuing summons, the plaintiff obtained a default judgment in the proceeding. The Debtor motioned to vacate the default judgment and entry of default pursuant to Rule 60(b)(4) and (6) on the grounds that the Debtor was never served despite plaintiff's attempts. The Court ruled that the Debtor's Motion was timely; that the Debtor could assert meritorious defenses, and that the Connecticut judgment was did not collaterally estop the Debtor from opposing the claims in the current proceeding; that no party was unfairly prejudiced by vacating the default judgment; that the Debtor was never properly served pursuant to Bankruptcy Rule 7004; and that entry of default could be set aside.

Default Judgment, Published Yes

Court reconsidered interlocutory order, sua sponte, to clarify that Pricing Confirmation Documents, not Sales Settlement Sheets, constituted forward contracts under section 546(e)

Preferences, Published No

Trustee brought this adversary proceeding against other parties to a trust agreement seeking to recover damages for funds that had been absconded with from the trust.  The claims were for breach of contract against both Dealers Assurance Company and The Fidelity Bank, as well as numerous tort claims solely against Fidelity Bank.  Dealers Assurance moved to dismiss pursuant to Rule 12(b)(6) based on the statute of limitations.  This motion to dismiss was denied because the Court found that the facts were sufficient to raise the possibility of equitable estoppel, barring Dealers Assurance from arguing the statute of limitations, and therefore would not dismiss at this early stage of the proceeding.  Fidelity Bank filed a separate motion to dismiss all claims against it.  The Court denied this motion to dismiss as well due to an earlier stipulation from both the Trustee and Fidelity Bank that these defenses under Rule 12(b)(6) would be raised at the summary judgment stage of the proceeding.

Dismissal, Published No

Trustee moved the Court to reconsider its Order Granting Summary Judgment in Part and Denying in Part. The Trustee sought reconsideration that the reflection of solvency in the Debtor's schedules was sufficient to rebut the presumption of solvency under 11 U.S.C. § 547(f). The Court denied the motion, finding the Trustee had not put forth a proper basis for the Court to reconsider its partial summary judgment.

Reconsider/Amend, Published No

Debtor filed an adversary proceeding seeking to recover real property sold at foreclosure prior to the petition date pursuant to § 548, and the Trustee was added as a co-plaintiff. Defendant purchaser moved to dismiss the case, claiming (a) that Plaintiffs failed to state a claim and that the Court's prior ruling on a Motion for Preliminary Injunction evidenced as much; (b) that Defendant's status as a good faith, third party purchaser protected Defendant pursuant to state law; and (c) that the Rooker Feldman doctrine, res judicata, and collateral estoppel preclude the Plaintiffs from bringing their claim. The Court ruled that Plaintiffs did sufficiently plead pursuant to Iqbal and Twombley, and that the standard used in adjudicating a Motion to Dismiss is distinct from an injunction analysis. Further, the Court dismissed Defendant's assertion that it was protected under state law as a good faith, third party purchaser as irrelevant pursuant to § 550. Finally, the Court found that the Rooker Feldman doctrine, res judicat, and collateral estoppel did not apply in this proceeding. Motion Denied.

Dismissal, Published Yes


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