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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
Chapter 13, Reconsideration, Statutory Construction     02/19/2016     Gloria L. Marcott     

Chapter 13 Debtor asked the Court to set aside dismissal order entered pursuant to 11 U.S.C. § 521(i), prompted by Debtor’s failure to file a “Chapter 13 Statement of Current Monthly Income” within 45 days of the petition date.  The Court concluded the Chapter 13 statement of current monthly income (commonly known as "Form B22") is not required by § 521(i).  In Chapter 13 cases, that form is required by Bankruptcy Rule 1007.  Because Debtor's failure to provide the statement of current monthly income should not have triggered "auto-dismissal" under § 521(i)(1), the Court vacated the dismissal order and reinstated the Chapter 13 case.

Judge David T. Thuma
Relief from Stay     02/11/2016     Kadlubek Family Revocable Living Trust     

Creditor sought relief from stay under Section 362(d)(2) to continue a foreclosure action on a commercial property. The Creditor asserted that the Debtor lacked equity in the property and the property was not necessary to an effective reorganization.   The Court found that although the Debtor lacked equity in the property, the property was necessary to an effective reorganization. The property was necessary in that it furthered the interests of the estate in the Chapter 11 plan of liquidation, and there was a reasonable possibility of a successful reorganization within a reasonable time.

Judge David T. Thuma
Cause, Chapter 11, Dismissal     02/05/2016     Sandia Resorts, Inc.     

Court dismissed Chapter 11 bankruptcy case for “cause” under 11 U.S.C. § 1112(b), finding that the debtor’s second chapter 11 case filed for the purpose of restructuring debt with its principal lender that had already been restructured through a substantially consummated plan in a prior chapter 11 case was an impermissible attempt to circumvent the prohibition against post-substantial consummation modifications contained in 11 U.S.C. § 1127.  None of the justifications the debtor offered in support of its good faith in filing its second chapter 11 case were sufficient to fall within the generally recognized exception of unforeseeable or unanticipated changed circumstances that affect a debtor’s ability to perform under a confirmed plan in a prior Chapter 11 case.   None of the other recognized exceptions applied.

Chief Judge Robert H. Jacobvitz
Dischargeability, Nondischargeability, Statutory Construction     02/04/2016     Esparsen v. Esparsen et al     

Debtor filed an adversary proceeding seeking a determination that a debt was dischargeable under 11 U.S.C. § 523(a)(15).  Debtor-Plaintiff was ordered to pay his ex-wife (the Defendant) a net equalization payment as part of the allocation of property in their divorce proceeding.  When the Defendant failed to pay her attorney, the state court judge ordered Debtor to pay the equalization payment directly to Defendant's attorney.  In the adversary proceeding, Debtor argued the debt was dischargeable because it was no longer payable to a former spouse.  On Defendant's request, the Court dismissed the adversary proceeding.  The Court found that the debt was nondischargeable under § 523(a)(15) because the payment by the Debtor to Defendant's attorney pursuant to a charging lien was an indirect payment to Defendant. 

Judge David T. Thuma
Discharge Injunction, Public Utility, Sanctions     02/03/2016     Allan and Tisha Sanchez     

Utility company violated the discharge injunction under Section 524 when it discontinued the debtor's trash pick-up service, refused to reinstate it, and demanded that debtor reaffirm the pre-petition debt.  The Court found that the refusal to provide utility service after the case is discharged and closed was not a per se violation of the bankruptcy code.  However, because utility companies hold monopoly powers, the disconnection of service often works to coerce repayment of prepetition debt.  The Court awarded $150 in actual damages and $3,800 in attorney fees to the debtors.

Judge David T. Thuma
Abstention, Adversary Proceedings - Procedural Matters, Discharge Injunction, Jurisdiction     01/14/2016     Tammy Sprague, personal representative of the estate of Fred Dale Van Winkle v. Williams et al     

 Defendants sought dismissal under 12(b)(1), asserting the Court lacked jurisdiction to adjudicate Plaintiff's claim for violation of the discharge injunction and a bankruptcy court order.  The Court found such actions are core proceedings and that it has constitutional authority to adjudicate the dispute.  The Court also declined to abstain from hearing the matter because the elements of mandatory and permissive abstention were not met.

Judge David T. Thuma
Jurisdiction, Relief from Judgment, Reconsideration     01/11/2016     Philip J. Montoya v. Nancy Akbari-Shahmirzadi, et al     

Defendant sought reconsideration of an order denying her motion to dismiss.  She also asked to intervene in a claim against her co-defendant daughter.  The Court, in its discretion, declined to reconsider its non-final order because Defendant primarily rehashed her original arguments.  Once again, the Court concluded the matter was not moot based on an earlier settlement and that it had jurisdiction.  The Court also denied the motion to intervene because Defendant was already a party to the action.

Judge David T. Thuma
Judicial Liens - Avoidance     01/04/2016     Eloy and Rosina Martinez     

Debtor who initially filed her case under Chapter 13 but later converted to Chapter 7 could not avoid creditor’s judicial lien as impairing the her homestead exemption under the formula found in § 522(f) notwithstanding the significant post-petition decline in the property’s value.  The Court previously held that the petition date rather than the conversion date is the operative date for determining lien avoidance issues.  The Court disregarded debtor’s evidence of the property’s value as of the conversion date ajudicnd fixed the value of the property based on valuation evidence as of the petition date. 

Chief Judge Robert H. Jacobvitz
Chapter 11, Confirmation     12/21/2015     The Vaughan Company Realtors     

On objection to confirmation by certain restitution claimants, defrauded investors in the debtor’s Ponzi scheme, the Court denied confirmation of Chapter 11 plan proposing a “rising tide” distribution method whereby pre-petition distributions to defrauded investors are treated as distributions from the estate in an effort to equalize distributions between earlier defrauded investors who received a greater return on their principal investment and later defrauded investors who received little or nothing before the bankruptcy filing because the plan did not comply with the requirements of § 1123(a)(4), which requires “same treatment” of claims within a class.  The plan also failed to satisfy the “best interest of creditors test” under § 1129(a)(7) with respect to rejecting creditors. 

Chief Judge Robert H. Jacobvitz
Discovery     12/17/2015     United Tort Claimants v. Quorum Health Resources, LLC.     

On a motion to compel compliance with subpoena and the objection thereto, the Court acknowledged the split in authority on the issue of whether Rule 45(b)(1) requires personal service of a subpoena or whether some other form of service is sufficient, but did not decide the issue, finding, instead, that service of a subpoena on a corporation to the attention of “Records Custodian” fails to comply with the requirements for service on a corporation.   Because the target of the subpoena waived its objection to defective service on such basis, the Court considered the motion to compel on the merits and granted motion in part, requiring production of certain requested documents.

Chief Judge Robert H. Jacobvitz