Opinions

 

All court opinions may be accessed at no charge via PACER through the "Written Opinions" link on the Reports page. You must, however, have an account to access the report via CM/ECF or PACER.

Access to opinions from 1997 to present, that are PDF searchable, unrestricted & unsealed, are also available through the Government Printing Office using the Advanced Search for Government Publications. There is no login required and publications are available free of charge.


Court's Web Site Opinions Database

The court's web site provides free access of some opinions, at the discretion of the judges, for the years 1998 to present. The results shown below are automatically displayed for all years, all judges, and all keywords/topics.

A search may be performed using the Search box above, or filtering by year, judge, and/or keyword/topic. To search for more than one judge and/or keywords/topics simultaneously, hold down the Ctrl key (or Command key) and select each item.

Keywords/Topic Date Title Description Judge
Default Judgment, Due Process, Relief from Judgment, Service     04/30/2021     Phillip J. Montoya v. Sheaneh Sattari     

Defendant moved to set aside a default judgment entered against her, alleging lack of proper service of process and proper proof of service under Fed. R. Civ. P. 4 and Fed. R. Bankr. P. 7004. The Court denied the motion, concluding that Defendant was served by mail at her business while it was still operating and that service was satisfactorily proved by certificate under the circumstances.

Judge David T. Thuma
Adversary, Avoidance Actions, Summary Judgment     04/22/2021     Yvette Gonzales v. Community 1st Bank Las Vegas et al     

Plaintiff, the chapter 7 trustee, filed an adversary proceeding seeking, in part, to avoid an attorney charging lien on surplus funds generated by a prepetition foreclosure sale of residential property owned by Debtor. Ruling on Plaintiff’s motion for summary judgment, the Court held that the undisputed facts show that the Defendant, who represented Debtor in its prepetition attempt to claim the surplus funds, did not have a valid attorney charging lien because (1) the fund at issue was generated by the foreclosure sale, not by Defendant’s skill and effort; and (2) Defendant did not satisfy the notice requirement. Judgment is entered in favor of Plaintiff on the lien avoidance claim. The balance of Plaintiff’s motion for summary judgment will be addressed in a separate opinion.

 

Judge David T. Thuma
Discovery, Settlement     04/16/2021     Sean Starkweather and Faith Starkweather     

Case trustee moved for a protective order limiting discovery requested in advance of a final hearing on a Rule 9019 settlement between the trustee and Debtors, objected to by Debtors’ largest creditor. The Court finds the motion is well taken and should be granted, as the discovery interrogatories and requests for production were in many cases irrelevant or disproportionate to the triable issues surrounding settlement.

 

Judge David T. Thuma
Confirmation, Extension of Time, Subchapter V     04/16/2021     Total Oilfield Solutions, LLC; Dennis Randy Holman and Dana Holman (Jointly Administered Subchapter V)     

In these jointly administered subchapter V cases, after the bankruptcy cases had been pending for more than 8 months, Debtors moved to continue the final hearing confirmation hearing and to permit them to amend their proposed reorganization plans after the Court resolved Debtors’ objections to a claim filed by one of its major creditors. The Subchapter V Trustee objected to continuation of the final confirmation hearings, arguing that subchapter V cases are intended to proceed to resolution quickly, that Debtor would not be able to confirm a plan, and that administrative expenses, already approximately $250,000, were continuing to accrue. The Court granted the motion to continue the confirmation hearing taking into account the need for rapid progress toward plan confirmation, including prejudice to creditors from delay; the risk of nonpayment of administrative claims; the likelihood that a plan will be confirmed and whether delaying the confirmation hearing will increase the prospect of confirmation; whether the debtor has proceeded diligently; special challenges presented by the COVID-19 pandemic; the debtor’s progress in reaching agreements with its creditors; and the complexities of the case.

Chief Judge Robert H. Jacobvitz
Attorneys Fees, Chapter 13     04/09/2021     Ronald Dekeyzer and Sherry Dekeyzer     

Following confirmation of Debtors’ chapter 13 plan, Debtors’ attorneys applied for attorney fees, and the Court set the matter for hearing due to the amount requested. The Court finds and concludes that the representation was necessary and beneficial, though the amount of time spent on the case was high. Applying the § 330(a)(3) and Johnson factors, the Court grants the fee application in part.

 

Judge David T. Thuma
Adversary, Nondischargeability     04/02/2021     Jill Stevenson v. Educational Credit Management Corporation     

: Debtor filed an adversary proceeding seeking an undue hardship discharge of her student loans under Section 523(a)(8). Debtor is enrolled in a 25-year income contingent repayment program (ICRP). She has made the required ICRP payments for the past 15 years. If she continues making the payments for the next 10 years, her loan balance, which continues to accrue interest will be forgiven. Possible tax consequences will follow. The Court holds that, in the context of the Brunner test—which is used in the Tenth Circuit to determine whether a debtor has demonstrated undue hardship—ICRPs “repay” student loans. Applying the Brunner factors, the Court concludes that Debtor’s ICRP payment is not an undue hardship. Debtor’s student loans are excepted from discharge accordingly.

 

Judge David T. Thuma
Nunc Pro Tunc, Obtaining Credit     04/01/2021     Twin Pines LLC, a New Mexico limited liability company     

In July 2020, Debtor obtained “Economic Injury Disaster Loans” from the Small Business Administration under the CARES Act of 2020 without prior approval from the Court as required under 11 U.S.C. § 364(b). Debtor moved for nunc pro tunc approval of the loans. The Court discussed whether Roman Cath. Archdiocese of San Juan, Puerto Rico v. Acevedo Feliciano, 140 S.Ct. 696, 701 (2020) precludes it from granting nunc pro tunc approval of the loans. Without deciding that issue, the Court denied the motion because Debtor did not show that there were extraordinary circumstances justifying nunc pro tunc approval.

 

 

Chief Judge Robert H. Jacobvitz
Cause, Confirmation, Dismissal or Conversion, Good Faith, Subchapter V     03/26/2021     Thomas and Connie Young     

The Court held a final hearing on confirmation of the Debtors’ Subchapter V plan and on a motion to convert the case to chapter 7, filed by one of Debtors’ creditors. Debtors’ plan violated the best interest of creditors’ test, was not fair and equitable to classes of claimants rejecting the plan, and was not proposed in good faith, so it is therefore unconfirmable. Grounds exist to convert the case due to bad faith, diminution of the estate without likely rehabilitation, and gross mismanagement, but the Court will grant the alternative relief of removal of the Debtors from possession pursuant to 11 U.S.C. § 1185(a), as requested by the moving creditor and the Subchapter V trustee.

Judge David T. Thuma
Attorneys Fees, Chapter 13     03/19/2021     Robert James Abernathy and Tina Louise Abernathy     

Following confirmation of Debtors’ chapter 13 plan, Debtors’ attorneys applied for attorney fees, and the Court set the matter for hearing due to the amount requested. The Court finds and concludes that the representation was necessary and beneficial, though the amount of time spent on the case was high. Applying the § 330(a)(3) and Johnson factors, the Court grants the fee application in part.

 

Judge David T. Thuma
Claim Objection     03/16/2021     Pat N. Archuleta     

The Court sustained, in part, the chapter 7 Trustee and Debtor’s objection to creditor’s unsecured non-priority claim and allowed creditor’s claim in a reduced amount. Although creditor’s claim met the requirements of Bankruptcy Rule 3001 and, for the most part,  was entitled to the evidentiary presumption of the validity and amount of the claim, claimant satisfied her ultimate burden of persuasion only as to a portion of her claim. The parties gave conflicting testimony and incomplete documentary evidence in support of their positions.

 

Chief Judge Robert H. Jacobvitz

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