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
Automatic Stay     05/24/2021     Michael Jacques Jacobs     

Creditor sought stay relief under §§ 362(d)(1), (2), and (4). The Court determined that Creditor did not meet its burden under §§ 362(d)(1) or (2) but established its entitlement to in rem stay relief under § 362(d)(4). The equity determination under § 362(d)(2) must be based on the value of the property at or near the final hearing on the motion for relief from stay, not the petition date, which was the date of Creditor’s appraisal. Debtor’s latest bankruptcy filing was part of a scheme to hinder, delay, or defraud Creditor from foreclosing its interest in the property. Debtor or his spouse filed seven bankruptcy cases, avoided making loan payments for nearly 10 years, and filed four cases to stop scheduled foreclosure sales. Five prior chapter 13 cases were dismissed for failure to prosecute the cases, and debtor had taken no meaningful steps toward reorganization in this latest chapter 11 case, having failed to file a plan for over 17 months since commencement of the case.  

Chief Judge Robert H. Jacobvitz
Adversary Proceedings - Procedural Matters, Recusal, Removal     05/21/2021     Barry J. Byrnes v. Sylvia Marie Byrnes     

Plaintiff pro se moved to disqualify the presiding judge under Bankruptcy Rule 5004(a) and 28 U.S.C. Section 455, on the ground that the judge exhibited bias and prejudice in the early stages of this adversary proceeding. “Bias” and “prejudice” requiring recusal under Section 455 typically derives from knowledge acquired by a judge outside judicial proceedings. Judicial rulings, which are appealable, almost never constitute a valid basis for a motion to disqualify. Plaintiff’s motion is based exclusively on his perception that the presiding judge treated him unfairly at two scheduling conferences. The motion is based on facts and assertions that do not demonstrate or even approach the bias, animosity, or partiality required for disqualification under Section 455. The motion is denied.  

Judge David T. Thuma
Adversary Proceedings - Procedural Matters, Discovery, Dismissal, Jurisdiction, Standing     05/18/2021     Cielo Vista Hospitality LLC, et al v. CPLG TX Properties, LLC     

 

Defendant CPLG TX Properties, LLC (as seller) and Hitendra Bhakta (as buyer) executed purchase agreements for the sale of three hotels and Mr. Bhakta wired a $300,000 deposit for each hotel to an escrow agent. The sales did not close. Plaintiffs, which are single purpose LLCs that Mr. Bhakta formed to buy the hotels, brought an adversary proceeding seeking return of the deposits. Each plaintiff is a debtor in a separate chapter 11 bankruptcy case. 

Defendants moved to dismiss the complaint including for lack of standing and jurisdiction, arguing that that Plaintiffs are not valid assignees of Mr. Bhakta’s rights under the Purchase Agreements. The Court ruled: 1) errors in the assignment documents might not be fatal to effective assignments, 2) the attack on jurisdiction was a factual not facial attack warranting discovery on jurisdictional facts, and 3) parties by contract can agree that an invalid attempted assignment is void, not voidable, meaning that a defective assignment cannot be made valid by ratification.   

The Court deferred ruling on the jurisdiction/standing issue pending completion of discovery and an opportunity for an evidentiary hearing.

Chief Judge Robert H. Jacobvitz
Attorneys Fees, Chapter 13     05/14/2021     Angelito Uy Sepulvida and Maria Bituin Caranay     

 

Following post-confirmation work performed for Debtors, Debtors’ attorneys filed a second fee application, and the Court set the matter for hearing due to the total amount requested between both fee applications. The Court finds and concludes that the work performed was necessary and beneficial in part, though the amount of time spent on the work was high. Applying the § 330(a)(3) and Johnson factors, the Court grants the fee application in part.

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Judge David T. Thuma
Adversary Proceedings - Procedural Matters, Automatic Stay, Relief from Stay, Stay Violation     05/13/2021     Roman Catholic Church of the Archdiocese of Santa Fe     

Creditor filed a motion seeking an order for declaratory or injunctive relief directing Debtor to remove his name from a list of persons associated with the Archdiocese who have been credibly accused of child sexual abuse. The list was publicly disseminated in September 2017, more than one year prepetition. The motion thus asserts a prepetition claim. Recognizing a conflict in the case law on the issue whether a creditor may sue the debtor in bankruptcy court on a prepetition claim without seeking relief from the automatic stay, the Court examines the rationales underlying the majority view—i.e. that creditors may file such proceedings without violating the automatic stay, and the minority view—that the language of 11 U.S.C. Section 362(a)(1) plainly stays proceedings against the debtor in bankruptcy court on prepetition claims. The Court concludes that the minority view is correct.  The motion, which violates the automatic stay, and is otherwise procedurally improper, is denied. Creditor may pursue the relief requested in the motion only if stay relief is granted, after which he may file an adversary proceeding or remove a pending state court action to this Court. 

Judge David T. Thuma
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
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
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
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

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