APPEAL RECORD:

December 11, 1992. L.D. ALDERSON. Case No. 89-50106, Adversary No. 92-5002. Notice of Appeal filed by United States of America with the District Court from the Bankruptcy Court's Memorandum of Decision re: Turnover of Estate Property filed December 1, 1992. APPEAL STATUS: AFFIRMED - Memorandum Opinion and Order from Judge Battey filed 4-6-93 (Civ. #'s 93-5001 and 92-5152).

April 26, 1993: L.D. ALDERSON. Case No. 89-50106, Adversary No. 92-5002. Notice of Appeal filed by L.D. Alderson appealing to the U.S. Court of Appeals re: Judge Battey's Order filed 4-6-93. APPEAL STATUS: REVERSED AND REMANDED - Eighth Circuit Court of Appeals Decision filed 8-19-94 (No. 93-2582).

June 7, 1993: L.D. ALDERSON. Case No. 89-50106, Adversary No. 92-5002. Notice of Appeal filed by U.S. of America through the U.S. Office of Personnel Management (OPM) appealing to the U.S. Court of Appeals re: Judge Battey's Order filed 4-6-93. APPEAL STATUS: REVERSED AND REMANDED - Eighth Circuit Court of Appeals Decision filed 8-19-94 (No. 93-2582).

2000 #1

ALDRICH, JESSIE B., January 10, 20001, Case No. 00-40969 Chapter 7.   ISSUE: Upon a § 329(b) review of the debtor's attorney's fees, is the attorney entitled to full compensation for his time spent traveling from his home office to the site of the § 341 meeting, though it may notably increase the fees paid by the debtor?  RULING: Attorneys who do not live in one of the divisional towns where § 341 meetings are conducted are entitled to their regular hourly compensation for their time traveling to and from the meeting. This travel time should be pro rated with other cases when possible. Substitute counsel from the divisional town to appear at the meeting in the attorney's stead should be considered when appropriate.

1995 #2

1993 #4

1988 #11

1993 #12

1998  #17

ANDRAWIS, EHAB A.: July 29, 1998, Case No. 98-40040, Chapter 12. ISSUE: Whether the debtor could declare exempt life insurance that he purchased pre-petition from proceeds from the sale of his lien-free car to his mother? RULING: The exemption in the life insurance policy was denied. The Court found that the debtor had made a sham sale of his unencumbered car to his mother in order to temporarily shelter his equity in the car in an exempt life insurance policy. The debtor's fraudulent intent regarding the car sale and purchase of the insurance policy was evidenced by his lack of present intent to retain the policy, the transfer of his car was made in anticipation of bankruptcy, the transfer was to a family member, and the debtor retained use of the car. The Court did not find that the sale price for the car was unreasonable (not all the proceeds were used to purchase the policy). Therefore, only the value of the life insurance policy remained in the estate and could not be exempted.

1989 #4

March 8, 1989,

ISSUE: Court approval of professional compensation from estate funds. RULING: Travel Time - Professionals should be compensated at their full reasonable hourly rate for necessary travel hours, unless the travel fees become too large a percentage of the total fees applied for, exclusive of expenses and sales tax. Because the geographic locations of the court points does not always coincide with the attorney's residence and because of the limited number of attorneys in the District who practice bankruptcy law, the debtor's ability to hire qualified counsel would be unduly chilled if travel was not fully compensable.

Mileage Expense - Section 330(b)(2) allows a professional reimbursement from the estate for "actual, necessary expenses". The Court allowed a mileage expense of 24 cents per mile, regardless of the economy of the auto driven. (This is the standard mileage rate the I.R.S. presently allows taxpayers for autos used in business).

Paraprofessional Billing - If paralegal work is to be compensable, the qualifications of the assistant should be established to justify the charge.

Adequate Itemization - B.R. 2016. Problem of inadequately itemized applications is not limited to travel related fees and expenses - In re Pothoven, 84 B.R. 579, 584 (1988), citing In re Pettibone Corp., 74 B.R. 293 (Bkrtcy. N.D. Ill. 1987; In re S.T.N. Enterprises, Inc., 70 B.R. 823 (Bkrtcy. D. Vt. 1987); In re Doyle-Lunstra Sales Corp., 19 B.R. 1003, 1005 (D. S.D. 1982).

1990 #23

BACHMANN, JOSEPH HENRY & MARILYN DALE: December 11,1990. Case No. 89-30054, Adversary No. 89-3018, Chapter 12. ISSUE: Whether certain debts created by a decree of divorce and an incorporated stipulation were non-dischargeable under 11 U.S.C. § 523(A)(5) because the debts were for alimony, support, or maintenance? RULING: Debtor agreed debts for child support were non-dischargeable. Plaintiff, Debtor's former spouse, failed to meet burden that other debts were for her support and were not property division.

1990 #2

1990 #9

1989 #1

1998 #26

BARDONNER, JOHN NICHOLAS, Case No. 97-50379, Adversary No. 98-5016, Chapter 7. ISSUE: Whether summary judgment for the defendant-Debtor should be granted as to the Plaintiff's counts under § 523(a)(2), (4), or (6) where the debt arose from a failed sale of a dental business and where the debtor's actions clouded the plaintiff-seller's security interest in the property? RULING: Summary judgment was granted under     § 523(a)(4) because the record did not show that the debtor was a fiduciary. Summary judgment was granted under § 523(a)(6) because the record did not establish any claim for a willful and malicious injury. A trial was to be held under § 523(a)(2) because the record bore some evidence of general fraud. 

2002  #17

BARNES, WILLIAM G. (Sohler v. Barnes), July 30, 2002, Case No. 01-50397, Adv. No. 01-5014, Chapter 7.  ISSUE: Whether the plaintiff’s claim was excepted from discharge under § 523(a)(4) for embezzlement where the defendant-debtor failed to return to an account managed by the plaintiff all the proceeds from livestock purchased through that account? RULING: The debt was not excepted from discharge under § 523(a)(4) for embezzlement. Even assuming that the livestock purchased through the account were owned by the plaintiff, there was no evidence that the defendant-debtor acted with any malevolent intent when he failed to immediately turnover the sale proceeds. The Court could not identify a place in time when the defendant-debtor used the sale proceeds with an intent contrary to his loose agreement with the plaintiff.

APPEAL FILED August 12, 2002 by Debtor.  Order entered by Judge Karen E. Schreier, dated August 11, 2003, affirming Bankruptcy Court's decision  (CIV.02-5070-KES). 

2003  #15

BARNES, WILLIAM G., July 11, 2003, Case No. 01-50397, Chapter 7.  ISSUE: Whether creditor’s claim arising from alleged partnership with Debtor should be allowed? RULING: There was no evidence to support the creditor’s claim. The claim was not allowed.

2001 #29

BARRETT, DANIEL W. & MEGEN L., July 17, 2001, Case No.  99-40138, Chapter 7.  ISSUE: Whether lien SBA held on life insurance policy pre-petition survived Debtors’ Chapter 7 discharge where Debtors declared the policy exempt? RULING: SBA’s lien survived post-discharge. Debtors’ exemption declaration did not impact the lien. 11 U.S.C. § 522(c)(2). There were also no grounds to void the lien under 11 U.S.C. § 105(a).

1997 #2

1988 #20

1988 #27

1991 #1

1987 #3

1994 #1

APPEAL RECORD  

January 14, 1994: BERGER, ARTHUR ADOLPH & CHERYL JEAN: Case No. 87-10289. Notice of Appeal to District Court filed by Debtors from the final judgment and order re: Debtors' Discharge, Trustee's Motion to Modify Confirmed Plan, and Trustee's Objection to Exemption entered January 7, 1994. APPEAL STATUS: Judgment affirming bankruptcy court decision entered by Judge Piersol on 8-31-94 (Civ. 94-1006).

APPEAL RECORD

September 14, 1994: BERGER, ARTHUR ADOLPH & CHERYL JEAN: Notice of Appeal to 8th Circuit Court of Appeals filed by Debtors from judgment entered by Judge Piersol on 8-31-94. Affirmed the bankruptcy court's decision to deny discharge on the ground that disposable income remains to be paid to unsecured creditors. Reversed its holding that any equity in the tractor purchased with exempt proceeds should be available to creditors.

2000 #23

BITTERMAN, PHYLLIS R., June 27, 2000.  Case No. 99-41111, Chapter 7.  ISSUE: Whether Debtor's Chapter 7 case should be dismissed for substantial abuse? RULING: The Chapter 7 case constituted a substantial abuse. Debtor, after payment of reasonable and necessary expenses, had sufficient disposable income to fund a Chapter 13 plan.

1993 #3

BLACK HILLS GREYHOUND RACING, ASS'N.: March 25, 1993.  Case No. 91-50224, Chapter 7. ISSUE: Whether a corporate debtor's counsel may obtain compensation under § 330(a) where the counsel failed to disclose that he had previously represented the debtor's parent company on financial matters involving the debtor, where the parent company owed the debtor a large debt, and where the parent company paid the counsel's bankruptcy retainer? RULING: Compensation was denied because the debtor's counsel was never eligible under § 327(2) to represent the debtor. The counsel was not disinterested, he represented an entity who held an adverse interest, and he personally held an adverse interest. Further, the facts did not support an award of any fees on a quantum meruit theory.

1995 #38

BLAKE, WARREN A. & PATRICIA K.: October 26, 1995, Case No. 95-50058, Adversary No. 95-5009, Chapter 7. ISSUE: Whether res judicata barred re-litigation of dischargeability complaint when judgment had been entered in state court action but where timely appeal of judgment had been filed? RULING: Appeal rendered state court judgment not final. Bankruptcy Court granted parties relief from the automatic stay to pursue final judgment in state court.

2003 # 10

BLUDORN, TAMMIE L., Case No. 02-10226, Chapter 7, and LOPHOVSKY, FRANK S., Case No. 02-10261, Chapter 13, May 6, 2003.  ISSUE: Whether Debtors’ counsel was entitled to fees incurred when Debtors resisted motions to dismiss for substantial abuse filed by the United States Trustee and when they converted to Chapter 13? RULING: Debtors’ attorney was not entitled to compensation for services and related costs associated with Debtors’ defense against the substantial abuse motions and the subsequent conversion of their cases to Chapter 13. Both cases should have been original filed as Chapter 13 cases.

2001 #28

BOEKA, ROBERT L., JR., July 16, 2001, Case No. 01-40301, Chapter 7.  ISSUE: What amount of compensation, if any, was Debtor’s counsel entitled to have paid from the estate as an administrative expense? RULING: Debtor’s attorney was allowed total fees of $567.93 from the estate for basic Chapter 7 services through the meeting of creditors. He was not compensated for non professional services.

2000 # 38

BOYER, DARELL & BARBARA I.:   November 13, 2000.  Case No.  00-50142, Adv. No. 00-5008, Chapter 7.  ISSUE: Whether certain debts the debtor was ordered to pay in her earlier divorce are non dischargeable under § 523(a)(15)? RULING: The divorce-related debts were declared dischargeable under the exception provided by § 523(a)(15)(B) because the benefits of the debtor receiving a discharge outweighed the detriments to her former spouse if he had to repay the debts himself after the debtor's discharge.

1992 #8

BRANDENBURGER, LYNN AND VALERIE C.: July 17, 1992.  Case No. 87-10162, Chapter 12. and SEARCY, ARDELL FRANCIS AND BERNETTE MAE: Case No.      87-10257, Chapter 12. ISSUE: (1)Whether Court may award compensation to a Chapter 12 debtor's counsel after confirmation? (2) Whether Services related to a Chapter 12 discharge are compensable from the estate? RULING: (1) Court may award compensation and reimbursement to a Chapter 12 debtor's counsel for all post-confirmation services that benefit the estate. (2) Preparing and filing a Chapter 12 debtor's final report and account and providing notice of that report are required by the local rules. Consequently, these discharge related services are compensable from the estate because they benefit the administration of the estate. If discharge is contested, all subsequent services are not compensable from the estate because those services benefit only the debtor.

1994 #10

BRINKMAN, GLEN J. & BRINKMAN, SUSAN M., June 20, 1994.  Case No. 93-30040, Chapter 7. ISSUE: Whether separate Chapter 7 cases filed a few months apart should be substantively consolidated where the first case filed was still pending and where problems with claimed exemptions arose? RULING: Court substantively consolidated the two cases since debts and assets were common and since a joint claim of exemptions would clarify the trustee's ability to assess the validity of the exemptions claims.

1988 #8

IN RE BROKEN BOW RANCH, INC.: March 21, l988, Case No. 87-30137, Chapter 12. ISSUE: 11 U.S.C. Section 506(a) - Valuation dispute on real estate. RULING: Value determined.

APPEAL RECORD

April 29, 1988: BROKEN BOW RANCH, INC.. Case No. 87-30137. Notice of Appeal to District Court filed by Federal Land Bank of Omaha from Judgment and Order of Valuation of Real Estate Improvements and Irrigation Equipment Fixtures Securing Federal Land Bank of Omaha Claim entered 4-18-88; Memorandum Decision 3-21-88. Dismissed. Stipulation of Voluntary Dismissal of Appeal filed 6-9-88. Order Dismissing Appeal entered 6-13-88.

May 13, 1988: Notice of Cross-Appeal filed by FLBO from same judgment as above. APPEAL STATUS: Dismissed. Stipulation of Voluntary Dismissal of Cross-Appeal filed 6-9-88. Order Dismissing Cross-Appeal filed 6-13-88.

1995 #10

IN RE BROKEN BOW RANCH, INC.: April 12, l995, Case No. 87-30137, Chapter 12. ISSUE: Whether the debtor was entitled to costs arising from an aborted hearing where the opposing creditor filed a witness and exhibit list late? RULING: The debtor was not entitled to costs arising from the aborted hearing. The debtor's counsel should have requested a continuance when the problem arose, rather than traveling to Pierre for the hearing and then making the request. The information disclosed was in the nature of rebuttal or was just a finer-tuned version of information previously disclosed or used at an earlier hearing. The fees sought would have been an excessive sanction where the creditor and its counsel had not caused similar problems in the past and would unlikely cause similar problems in the future.

1995 #23

2000 #1

BROST, TERI R.    January 3, 2000.  Case No. 99-40588, Adv. No. 99-4020, Chapter 7.  ISSUE: Whether divorce-related debts were dischargeable under § 523(a)(15)(B)? RULING: Debts were declared dischargeable. Benefits to Debtor in receiving a discharge of the divorce-related debts outweighed detriments to Debtor’s ex-spouse if he had to assume sole responsibility for the joint debts. Most significant factor was disparity between the parties’ respective living standards and the ex-spouse’s ability to pay the debts over time without significant consequence to himself, his family, or his business.

1997 #9

APPEAL RECORD:   BRUNER, E. JOHN & EILEEN.   Notice of appeal to District Court filed by Green Tree Financial Corp. on 7-3-97.   APPEAL STATUS:  AFFIRMED.  Judgment entered by Judge Piersol on 9-24-98 affirming decision of Bankruptcy Court.

1997 #17

1993 #6

BRUNO, INC.: August 12, 1993. Case No. 92-50206, Chapter 11. ISSUE: Whether compensation for services and reimbursement for expenses may be awarded a debtor's counsel where: (1) some items of service were poorly documented and/or failed to show that a professional service was rendered; (2) compensation was sought for trying to sell or lease Debtor's business when a sale or lease was not contemplated with the reorganization; (3) compensation was sought for "reviewing financial Documents," especially where substantial time was also spent preparing Debtor's schedules, plan, and disclosure statement; and (4) compensation was sought for an aborted adversary proceeding filed by Debtor. RULING: Absent additional justification in an amended fee application, compensation and related expenses will not be allowed for non-professional services, poorly documented services, efforts contrary to reorganization that did not benefit the estate, unreasonable time spent reviewing financial documents, and preparing and working on an aborted adversary proceeding.

1993 #10

BRUNO, INC: October 18, 1993. Case No. 92-50206, Chapter 11. ISSUES: Whether the lessee of restaurant from Debtor was entitled to: (1) a determination of the lessee's claim when the lease is terminated; (2) reimbursement for a replaced water heater; and (3) damages, including "lost projected profits," due to the disruption of business when the roof leaked and while the roof was repaired? RULINGS: (1) The lessee's claim against Debtor that will arise when the lease is terminated does not need to be determined by the Court at this time. The lease is still running, that claim will not be paid under the plan, and any payment of that claim will not affect the feasibility of the plan. (2) Under the terms of the lease, the lessee was obligated to replace the broken water heater. (3) Lessee was entitled to damages for labor costs in cleaning the restaurant after leaks and during the roof repair. Lessee was not entitled to damages for lost "projected profits" or a rent abate because those damages were too speculative to determine based on the evidence presented.

2007 #4

BUCARO, PATRICIA A.(bench ruling - April 9, 2007).  Case No. 05-10326, Chapter 7.  Issue: Whether Debtor, who lived with her 16-year old daughter and an adult male who earned more than Debtor but was not related to either Debtor or her daughter by blood or marriage, was “the head of a family” for the purposes of S.D.C.L. § 43-45-4? Ruling: Yes. The adult male who lived with Debtor and her daughter was a member of Debtor’s household, but he was not a member of her family. Debtor’s family consisted of Debtor and her 16-year old daughter. Debtor was the sole breadwinner for her family and was thus the head of her family for the purposes of S.D.C.L. § 43-45-4.

1995 #33

BUCHHOLZ, ALFRED L. AND JOSEPHINE M.: April 15, 1995. Case No. 94-40526, Chapter 12. ISSUE: To what extent may a Chapter 12 debtor's counsel be compensated when he is replaced as counsel before a plan is confirmed? [Decision includes some other minor fee issues.] RULING: The debtor's counsel who was replaced before a plan was confirmed will be compensated the amount that was requested. 

1994 #14

BUNKE, EDWIN ROBERT: April 11, 1994. Case No. 93-10166, Chapter 11. ISSUES: Whether fully secured creditor is entitled to relief from stay for cause where creditor has foreclosure judgment but where debtor could pay secured claim only if it may be modified by paying over time? RULING: Creditor was not entitled to relief for cause. Since a foreclosure sale had not taken place, the mortgage/contract relationship between the creditor and debtor still existed. Thus, the secured claim could be modified under §§ 1222(b)(2) and 1222(b)(9), and 1225(a)(5).

1999 #5

BURNEY, WILLIAM C.:  March 5, 1999.  Case No. 98-50158, Adversary No.  98-5012, Chapter 7.  ISSUE: Whether Defendant-Debtor was entitled to attorney's fees and costs under § 523(d)? RULING: Defendant-Debtor was awarded attorney's fees and costs under § 523(d). Record established that the plaintiff-creditor requested a determination of the dischargeability of a debt, the debt was a consumer debt, and the debt was discharged. Plaintiff-creditor was unable to go forward and show that its complaint was substantially justified because it learned only after the complaint was filed that it could not prevail on one element under § 523(a)(2)(A).

1995 #22

BUXCEL, CLIFFORD AND ELAINE. June 19, 1995: Case No. 94-30036, Chapter 13. ISSUES: 1. Whether the secured claim of SD's Conservation Reserve Enhancement Program should be valued at confirmation for plan purposes? 2. What is the value of the secured claim of Debtors' mother and mother-in-law where Debtors had reported to SBA pre-petition that the balance was less than they now claim in the bankruptcy case? 3. Whether SBA has a perfected, secured interest in Debtors' life insurance policy? 4.What is the effect on Debtors of the settlement between SBA and First Fidelity Bank? RULINGS: 1. The Reserve Enhancement Program's secured claim should be valued at confirmation for plan purposes. 2. SBA must commence an adversary proceeding if it wants to challenge the validity, priority, or extent of an insider's claim. 3. SBA has a perfected, secured interest in Debtors' life insurance policy with Aid Association for Lutherans. 4. The Court does not have sufficient information to determine the effect on Debtors of the settlement between SBA and First Fidelity Bank.

1998  #12

BUXCEL, CLIFFORD AND ELAINE. June 17, 1998: Case No. 98-30004, Chapter 13. ISSUE: Whether Chapter 13 case should be dismissed where Debtors proposed repayment of $27.38 per month, where income was minimal and expenses were understated, and where automatic stay insulated Debtors from possible state court action with large judgment holder? (2) Whether Debtors may declare home exempt where they have no ownership interest in it on the petition date but where they have an executory agreement with foreclosing creditor to repurchase it? RULING: (1) Confirmation of plan was denied and the case was dismissed. Case and plan were not filed in good faith because Debtors did not come in ready to reorganize. Further, success of plan was improbable based on income and expenses stated and the plan did not meet the best interest of creditors test. (2) Homestead exemption was disallowed because Debtors did not have an ownership interest in the home on the petition date.

2002 # 22

CAHOY TRUCKING, INC., (Lovald v. Cahoy), October 17, 2002:  Case No. 02-30015, Adv. No. 02-3002, Chapter 7.  ISSUE: Whether Defendant bank’s motion for summary judgment should be granted? RULING: Motion was granted to the extent that Plaintiff-Trustee’s complaint sought relief under     § 547(b) since the facts plead did not fall under that Bankruptcy Code section. Plaintiff-Trustee was directed to file an amended complaint to clarify the alternative Bankruptcy Code sections on which he seeks relief.

2008   #9

CAMERON,GERALD W. & RENA E. DORCAS CAMERON (Pioneer Bank & Trust, as Special Administrator and Personal Representative for the Estate of Eleanor Youman Sigloh v. Gerald W. & Rena E. Dorcas Cameron), October 17, 2008:  Case No. 08-50005, Adversary No. 08-5007, Chapter 7.  Issue: Whether Debtors' fiduciary duty to an elderly relative under two powers of attorney met the federal definition of a fiduciary under 11 U.S.C.    § 523(a)(4) so as to allow entry of summary judgment for the plaintiff-bank who had obtained, as the elderly person's estate representative, a state court judgment against Debtors for their misuse of the elderly relative's assets?  Ruling: Yes, summary judgment was entered for the plaintiff-bank. Debtors were a fiduciary under § 523(a)(4) because the initial power of attorney established the parameters of the fiduciary relationship and the res of the trust but did not evidence any expectation of supervision by the elderly person; the relationship was not contractual in nature; and the trust did not arise from Debtors' wrongdoing.
  

2002  #10

CAP, KEVIN G. & CATHY J., May 8, 2002:  Case No. 01-41239, Chapter 7. ISSUE: Whether the case should be dismissed under § 707(b) based on the pleadings filed to date? RULING: The case was not dismissed under    § 707(b) on the pleadings. The Court directed that an evidentiary hearing be held on whether one debtor was having the appropriate amount of wages withheld for income tax purposes and whether the debtors’ housing expenses (mortgages and utilities) were reasonable.  

1991 #15

CARR, EDWARD W. AND WILMA. CARR FARMS, INC., June 14, 1991 (jointly administered). Case Nos. 87-40067 and 87-40068, Chapter 11. ISSUE: Whether substantially consummated Chapter 11 case should be dismissed when debtors file subsequent Chapter 7 petition? RULING: No. Insufficient evidence was presented for the Court to determine that dismissal of the Chapter 11 case was in the best interest of the estate and creditors, especially when confirmation and discharge would not be revoked by a dismissal order.

1991 #16

CARR, EDWARD W. AND WILMA. CARR FARMS, INC., June 14, 1991 Case Nos. 91-30030 and 91-30031, Chapter 7. ISSUE: Whether secured creditor was entitled to relief from stay? RULING: No. Creditor was not entitled to relief under § 362(d)(2) because it failed to show that the Chapter 7 estate did not have equity in the property. Creditor was not entitled to relief under §362(d)(1) because it did not establish cause, including lack of adequate protection.

2007 #2

CHESMORE, KELLY K AND MICHELLE M. (bench ruling - January 18, 2007).  Case No. 06-10078, Chapter 7. ISSUE: Whether Debtors could claim accrued but unpaid wages owing on the date they filed their Chapter 7 petition exempt under S.D.C.L. § 21-18-53? RULING: No. S.D.C.L. § 21-18-53 provides “[t]he earnings of a debtor are exempt from process or levy only to the extent provided in §§ 21-18-51 and 21-18-52.” S.D.C.L. §§ 21-18-51 (“Maximum amount subject to garnishment”) and 21-18-52 (“Maximum garnishment allowed for support of any person”) deal only with garnishments, and Debtors’ wages had not been garnished. In addition, by its own terms S.D.C.L. § 21-18-51 does not apply with respect to “any order of any court of bankruptcy under Title 11 of the United States Code.”
 

1989 #29

CHRISTOFFERSON, NORMAN & SHEILA. October 25, 1989. Case No. 186-00308. Chapter 12. ISSUE: Whether debtors, who had previously stipulated to the value of certain collateral, could later turn that collateral over to the secured party as full payment of the secured debt. RULING: Debtors' attempt to turn over the collateral to completely satisfy a secured debt constitutes a post confirmation modification under § 1229. No evidence has been presented which would warrant such modification. Further, the parties' stipulation clearly stated that the turnover of any collateral would only reduce the amount of the allowed secured claim by the value of the collateral, rather than extinguishing the claim.

1997 #27

CICHONSKI, STANLEY T. & LYNNE D. September 23, 1997. Case No. 97-50170. Chapter 7. ISSUE: Whether case trustee should receive costs on voluntary dismissal in Chapter 7 case? RULING: Any costs that a Chapter 7 trustee seeks when a debtor voluntarily seeks dismissal of his case should be made through a formal application to the Court, not through negotiations with the debtor.

1997 #29

COLE, FLORENCE M. October 15, 1997. Case No. 94-30046.  Chapter 12. ISSUE: Whether Debtor's motion to modify her confirmed plan was filed in good faith and was feasible? RULING: Debtor's motion to modify her confirmed plan was filed in good faith and was feasible. However, the modified plan was approved only on certain conditions: Debtor had to memorialize any pasture leases, hunting leases, crop sharing agreements, work sharing agreements, cattle wintering agreements, or other financial arrangements on which her modified plan relied. Debtor had to stop all gambling. Debtor had to maintain adequate crop insurance.

1997 #30

CONRAD, LEONARD CHARLES. November 5, 1997. Case No. 97-40191. ISSUE: Whether certain Individual Retirement Accounts were excluded from property of the estate? RULING: The IRAs were property of the bankruptcy estate because they did not contain the necessary transfer restrictions under state or federal non bankruptcy law required by 11 U.S.C. § 541(c)(2) to exclude the funds from the estate.

2001  #22

COOKIE, JUSTIN URIAH (Ford v. Cookie).  May 25, 2001.  Case No. 01-50017, Adv. No. 01-5005, Chapter 7.ISSUE: Whether credit card debts assigned to the debtor in a pre-petition divorce were non dischargeable under § 523(a)(15)? RULING: The subject credit card debts were non dischargeable under § 523(a)(15) since the debtor had not shown either that he did not have the ability to pay the debts or that the benefits of a discharge for him would outweigh any detriment to his former spouse.

1991 #17

COONES RANCH, INC., June 22, 1991. Case No. 91-40183, Chapter 11. ISSUE: Whether Chapter 11 case should be dismissed for bad faith filing or inability to reorganize. RULING: Case should be dismissed for lack of good faith in filing and because Debtor had no reasonable prospect of reorganizing. Debtor's bad faith in filing was evidenced by several factors: (1) "new debtor syndrome;" (2) attempt to file a successive petition after principal's case in Wyoming failed, and (3) abuse of process in several courts.

1992 #2

COONES RANCH, INC., March 9, 1992. Case No. 91-40183, Chapter 11. ISSUE: Whether Rule 9011 sanctions should be imposed on a corporate debtor, its principal,, and its bankruptcy attorney for filing a Chapter 11 petition that the Court dismissed as a bad faith filing. RULING: The Court imposed a joint and severable sanction of $10,000.00 on the debtor, its principal, and its bankruptcy attorney because they had not made a reasonable investigation of the law or facts and because the petition was improperly filed to delay or circumvent other legal proceedings in Wyoming.

APPEAL RECORD

March 26, 1992: COONES RANCH, INC. Case No. 91-40183, Notice of Appeal to District Court filed by Cecelia Grunewaldt from the Amended Order Imposing Sanctions entered March 19, 1992; Memorandum Decision dated 3-9-92. Motion for Stay Pending Appeal filed by Cecelia Grunewaldt on 3-26-92. Order Granting Stay Pending Appeal entered 3-30-92. Referred to Judge Jones 5-6-92. APPEAL STATUS: 7-7-92 - - Judgment affirmed, reversed and remanded in part. Affirmed insofar as it imposes sanctions of $5,000.00 in favor of each appellee and against Debtor Coones Ranch, Inc., James A. Coones & Cecelia Grunewaldt, jointly and severally. Reversed insofar as it orders appellant Grunewaldt to return to the payor any compensation she has received for services and costs. Remanded to the Bankruptcy Court to enter judgment in conformity therewith.

APPEAL RECORD

Notice of appeal to District Court filed by B-Line,L.L.C. from order denying dismissal entered December 23, 2003.  APPEAL STATUS:  Affirmed.  Judgment (CIV. 03-4284) entered by Judge Piersol September 30, 2004.     

2004 #16

1992 #13

CUMMINGS, MICHAEL E. AND DIANE L: November 3, 1992: Case 91-30076, Adversary No. 92-3002, Chapter 7. ISSUE: Whether Debtor's obligation, created by a divorce settlement, to remove a second mortgage on his ex-wife's home is non dischargeable under § 523(a)(5)? RULING: Debtor's obligation to remove the second mortgage is non dischargeable under § 523(a)(5) because it is an obligation in the nature of support, not a property settlement. Significant facts included: Debtor received the business that was financed by the loan and second mortgage; his pre-divorce child support obligation was reduced when he assumed the second mortgage; his ex-wife could not afford to keep the home with both mortgages on it; and his ex-wife and children intended to remain in the home for at least thirty months.

1992 #14

CUMMINGS, MICHAEL E. AND DIANE L: November 3, 1992: Case No. 91-30076, Adversary No. 92-3002, Chapter 7. ISSUE: Whether creditor bank sold Debtor's secured property in compliance with the U.C.C.? RULING: Creditor bank did not sale Debtor's secured property in a commercially reasonable manner and did not give Debtor proper notice of the private sale. Significant factors included: the bank did not have the secured property inventoried or appraised and the bank made little effort to locate potential buyers. Bank was not entitled to claim a deficiency against Debtor or seek recovery from the remaining secured property owned by Debtor's ex-wife.

1996 #18

DAKOTA INDUSTRIES, INC.: November 7, 1996. Case No. 87-40209, Chapter 11. ISSUE: Whether a closed Chapter 11 case should be reopened to allow Debtor to get clarification on prior orders or to allow a creditor to bring a motion to dismiss? RULING: The case was reopened only to allow the Court to interpret its prior orders. The confirmed plan contemplated such action and it was within the Court's statutory post-confirmation jurisdiction. The case was not reopened to allow the creditor to file a motion to dismissal or convert. Dismissal or conversion would not reinstate creditors to their pre-petition status nor revoke Debtor's discharge.

1997 #13

DAKOTA INDUSTRIES, INC.: April 28, 1997. Case No. 87-40209, Chapter 11. ISSUE: What amount, if any, does Debtor owe for interest on the IRS's claim based on the Court's (Ecker, J.) earlier rulings and Debtor's plan? RULING: The Court found that Debtor owed pre-petition and post-confirmation interest on Debtor's withholding taxes but no interest on Debtor's employment taxes.

1997 #1

DAMMANN, CHARLES C., January 9, 1997, Case No. 96-40373, Adversary No. 96-4027, Chapter 7. ISSUE: Whether a credit union's lien on a vehicle was voidable as a preference under § 547(c) where the lien was not perfected on the petition date and where more than twenty days has passed since Debtor took possession of the vehicle? RULING: The Credit Union's lien was a voidable preference.

1997 #5

DANIELSON, DAN E.: February 4, 1997, Case No. 96-40163, Adversary No. 96-4007. Chapter 13. ISSUE: Whether a criminal restitution debt is non dischargeable under § 1328(a)(3) where the government satisfied the criminal judgment when it obtained a civil judgment to enforce the restitution order before the restitution was paid in full? RULING: The restitution order is still non dischargeable. Section 3663 of Title 18 allows the government to enforce a restitution order through either a civil or criminal judgment. When § 3663 is read in harmony with § 1328(a)(3), it is clear that the method of enforcing the judgment does not affect its dischargeability.

1999  #3

DAVIS, LINDA KAY , Case No. 97-40475. Chapter 7. ISSUE: Whether Debtor was a head of a family under S.D.C.L. § 43-45-4 where she was married and maintained a joint household with her husband and minor daughter, she ran the household in her husband's absence due to his employment away from home as a trucker, and he earned more than her? RULING: Debtor was not the head of the family as that term in used in § 43-45-4, as it was amended in 1998. Her husband earned more than her at the time of the petition, they maintained a joint household, and he was not absent from the home due to dereliction and abandonment. She fell within the new class of debtors under § 43-45-4, as amended: non heads of a family.

2000 #40

DAWSON, FINESHA RANDLE, Case No. 00-40405, Chapter 7.  ISSUE: Whether pre-petition the debtor had assigned to her chiropractor her rights in a stated amount of insurance or lawsuit proceeds to cover her medical bill so as to exclude those funds from property of the bankruptcy estate? RULING: The agreement between the debtor and her chiropractor created only a security interest for the chiropractor. The insurance proceeds the debtor received for a pre-petition personal injury thus became property of the estate and the debtor was able to exempt a portion of it. Further, the chiropractor's security interest was not perfected pre-petition so he was not able to establish a priority claim to the funds. The Trustee's settlement of the debtor's excess exemptions, which included the insurance proceeds, was therefore approved over the chiropractor's objection.

1994 #13

DEAN, MICHAEL EUGENE & ANNA JEAN: July 28, 1994. Case No. 93-50257, Adv. No. 93-5017, Chapter 7. ISSUES: Whether Debtor Anna J. Dean was entitled to a hardship discharge of her student loans where her husband was permanently and totally disabled, she was temporarily disabled, the family had to move across the nation, and her job skills would limit her future earnings? RULING: Under § 523(a)(8)(B) and Education Resources Institute, Inc., v. Law (In re Law), No. 93-4196, slip op. (D.S.D. May 18, 1994), and cases cited therein, Debtor was not entitled to a hardship discharge because she had not shown that her present inability to repay the student loans would continue throughout the repayment period. The Court, however, concluded that Debtor may seek a determination of hardship in the future if circumstances change.

1999 #19

2000 #24

DEZELL, GARY B. & FLORANCE E.  July 6, 2000.  Case No. 00-40227, Chapter 7.  ISSUE: Whether case should be dismissed for substantial abuse under  § 707(b) where Debtors admitted they had disposable income of $615.07 per month, but where Debtors state this disposable income may be needed later if Debtors decide to maintain separate households? RULING: Motion was granted and Debtors were given an opportunity to convert to Chapter 13 in lieu of dismissal. Court held that any change in circumstances could be addressed in a motion to modify their confirmed Chapter 13 plan.

1997 #12

DICE, ROGER L.: April 2, 1997. Case No. 96-30095, Chapter 7. ISSUE: (1) Whether the debtor was a head of household under S.D.C.L. § 43-45-4 where he resided with his fiancée and her children and where he paid support for his minor daughter? (2) Whether the debtor could declare a homestead exempt under S.D.C.L. § 43-31-1 where he resided elsewhere on the petition date? (3) Whether the trustee could abandon certain cattle from the estate under 11 U.S.C. § 554(a) where the sale of the cattle would generate a tax obligation to the debtor? RULING: (1) The debtor is a head of household under § 43-45-4 because he pays support for his daughter. (2) The debtor could not declare a homestead exempt under § 43-31-1 because he did not reside on the property on the petition date, he evidenced no intent to return, and he did not live elsewhere for job or health reasons. (3) Trustee could abandon cattle because they were burdensome to the estate. Tax ramifications for the debtor are not part of the requirement or considerations for abandonment under § 554(a).

2006  #10

DICKHAUT, RANDY L. & ANNE C., March 9, 2006, Case No. 03-50141, Chapter 13.  ISSUE: Whether Debtors’ motion to sell their home and their motion to obtain credit should be granted where Debtors wanted to sell their present home, complete the plan payments, and buy a new home where Debtors’ monthly mortgage payment would increase by about $375, where unsecured creditors were only receiving about a 21% payment on their claims, and where it was unclear how and when disposable income due under the plan would be paid? RULING: Both motions were denied. Debtors could not justify an increase in their housing expense and unsecured creditors would be deprived of disposable income.

1998  #28

DIEFENDERFER, TERRY R., JR., & AMY M., Case No. 98-40319, Chapter 7. ISSUE: Whether creditor was entitled to attorneys' fees and costs arising from its motion for relief from automatic stay? RULING: Creditor's request for attorneys' fees and costs was denied. The Court relied on the "American Rule," 28 U.S.C. § 1920, the absence of a fee-shifting statute that was applicable in this contested matter, and general policy to reach its conclusion. 

2001  #38

DOERR, BRADLEY M. & DEBRA J.:  Case No. 01-40036, Chapter 7.  ISSUE: Whether a stipulation between the debtors and a creditor to revoke the debtors’ discharge should be approved where the request was based on a desire to file an enforceable reaffirmation agreement? RULING: The stipulation was not approved because there was no need to vacate or revoke the debtors’ discharge order. The reaffirmation agreement that the parties had filed earlier, after the discharge was entered, was already enforceable because it had been "made" before the discharge was entered, as required by § 524(c)(1).

1988 #9

DOERR, VAUGHN AND GENEVIEVE: March 22, l988: Case No. 86-00156, Chapter 12. ISSUE: 11 U.S.C Section 506 -Valuation dispute. RULING: Court sought opinion of independent appraiser and adopted values of independent appraiser.

APPEAL RECORD:

May 2, 1988: VAUGHN & GENEVIEVE DOERR. Case No. 186-00156. Notice of Appeal to District Court filed by debtors from Order Determining Value of Property of the Estate for Plan Purposes entered 4-21-88; Memorandum Decision 3-22-88. APPEAL STATUS: Dismissed. Joint Motion for Dismissal of Appeal filed by debtors and FLBO 6-14-88. Order of Dismissal entered    6-16-88.

1996 #9

DOLD, PAUL J.: June 21, 1996: Case No. 86-00156, Adversary No. 96-4002, Chapter 7. ISSUE: Whether Debtor was entitled to a permanent injunction where post-discharge a creditor tried to execute on personal property Debtor had declared exempt in the bankruptcy case? RULING: Debtor was not entitled to a permanent injunction. Debtor had agreed that the creditor had a non dischargeable claim. That agreement reasonably included collateral orders by the state court that Debtor could not exempt certain property as to that creditor's judgment. Debtor also had misleading schedules and Debtor had not disclosed the collateral orders by the state court in his schedules.

2001 #11

DONOVAN, JAMES DOUGLAS:   February 7, 2001.  Case No.  00-30031, Adv. No. 00-3004, Chapter 7.  ISSUE: Whether claim against the debtor for converted grain was non dischargeable on fraud-based grounds under § 523(a)? RULING: Claim was declared non dischargeable under § 523(a)(4) where the evidence established by a preponderance of the evidence that the debtor had committed larceny by taking his employer's grain and selling it for his own benefit. That the debtor had been acquitted of criminal charges surrounding the missing grain was not binding on the Bankruptcy Court because the standard of proof for the criminal charges was the higher "beyond a reasonable doubt."

1996 #14

DOUBLE L.J. FARMS: August 19, 1996: Case No. 93-40213, Chapter 12. ISSUE: Whether Debtor's proposed modification of its confirmed plan should be approved where Debtor would no longer farm after the current crop year? RULING: Debtor's proposed post-confirmation modification was not approved. The modification was not offered in good faith because Debtor would not pay the Bank with interest as soon as it could and because it offered little for unsecured creditors. There also was no evidence that the modification was feasible or that it met the best interest of creditors test.

1999 # 22 

DREPS, JOSEPH WILLIAM AND CYNTHIA ANN.  August 5, 1999, Case No.       99-50103, Chapter 7.  ISSUE: Whether compensation the debtor's counsel received exceeded the reasonable value of the services rendered and therefore should be returned to the bankruptcy estate under § 329(b)? RULING: The attorney's staff member rendered all services but her services could not be compensated from the estate because she was not a certified paralegal. The attorney rendered no services at all so he could not be compensated from the estate. The attorney was directed to return to the bankruptcy estate all moneys he had received from the debtors except that portion representing the filing fee.

2003  #08

DUFFY, BRIAN J. (Duffy v. Duffy).  May 2, 2003.  Case No. 02-40948, Adv. No. 02-4069, Chapter 7.  ISSUE: Whether summary judgment on Plaintiff-Debtor’s complaint for damages arising from a violation of the automatic stay should be entered? RULING: Partial summary judgment was entered for Plaintiff-Debtor. There were no material facts in dispute and the record clearly showed that Defendant willfully violated the automatic stay and that Plaintiff-Debtor was injured. The amount of damages was not established summarily.

2003  #13

DUFFY, BRIAN J. (Duffy v. Duffy), June 26, 2003, Case NO. 02-40948, Adv. No. 02-4069, Chapter 7.  ISSUE: To what damages was Debtor entitled for his former wife’s violation of the automatic stay? [Violation was established in an earlier decision.] RULING: Damages awarded to Debtor included his lost wages for one day arising from a state court hearing he had to attend and attorneys’ fees he had to pay for two state court hearings and for this adversary proceeding.

2001 #37

DURANTE, MARILYN A.:  November 19, 2001.  Case No. 01-50181, Chapter 7.  ISSUE: Whether Debtor could avoid under § 522(f)(1)(B) a nonpossessory, nonpurchase-money security interest in her mobile home, which she had declared exempt as her homestead? RULING: Debtor could not avoid the nonpossessory, nonpurchase-money security interest in her mobile home. The mobile home was not one of the exempt items governed by § 522(f)(1)(B). 

2006  #06

DURFEE, DAVID AND SANDRA:  January 31, 2006, Case No. 05-10354, Chapter 7.  ISSUE: Whether the United States Trustee’s motion for judgment on the pleadings regarding its motion to dismiss for substantial abuse under 11 U.S.C. § 707(b) should be granted where pleadings indicated Debtors had monthly disposable income of just over $1,300.00 with which to fund a Chapter 13 plan? RULING: The motion for judgment on the pleadings was granted, and the debtors were given an opportunity to convert their Chapter 7 case to Chapter 13 in lieu of dismissal under § 707(b).

1995 #11

DWYER, CHARLES GERARD: April 12, l995, Case No. 94-50152, Chapter 7. ISSUE: Whether creditor's judgment should be satisfied under 11 U.S.C.  §§ 522(f) or 524(a)(1) and S.D.C.L. § 15-16-20? RULING: Judgment should be satisfied since the debtor's personal liability for the debt had been discharged. Further, the creditor would not retain any right to enforce a judgment lien after bankruptcy because the debtor did not own any non exempt real property at the time of the petition to which a lien could attach.

1995 #30

EAGLE, JAMES W. AND PATRICIA L.: August 10, 1995. Case No. 92-30072, Chapter 12. ISSUE: Whether the debtors' second modified plan was confirmable? RULING: The debtors' second modified plan was not confirmable because the liquidation analysis required under the best interest of creditors test, § 1225(a)(4), was not accurate.

1995 #14

ECKER, DANIEL BRUCE AND SUZANN ELIZABETH: May 3, 1995, Case No. 92-30013, Adversary No. 94-3008, Chapter 7. ISSUE: Whether Debtors' discharge should be revoked because Debtors failed to pay the Trustee for excess exemptions as agreed by the parties and as ordered by the Court? RULING: Discharge was revoked under § 727(d)(3) because Debtors had failed to abide by the Court's order approving the settlement.

1989 #7

EHRICH, ROBERT LAVERNE: March 31, 1989, Case No. 585-00119, Chapter 11. ISSUE: Whether in a Section 506(a) hearing the real estate securing a claim should be valued as ranch land, the debtor-in-possession's present use, or whether it should be valued as sub-devisable land where the creditor can prove that the land is viable for this purpose? RULING: The Court ruled that in a Section 506(a) hearing, the real estate securing the claim of a creditor should be valued at its highest and best use where the creditor can prove that the land is more valuable for a purpose other than the debtor's present use, and that such proposed use is not speculative, but rather affects the property's present fair market value.

1989 #11

EHRICH, ROBERT LAVERNE: April 28, 1989, Case No. 585-00119, Chapter 11. ISSUE: Whether the Court would issue an opinion regarding the legality of the debtor's contemplated dismissal of a pre-confirmation Chapter 11 and subsequent filing of a Chapter 12 in order to avoid the effects of the 8th Circuit In re Erickson decision which prohibits converting Chapter 11 cases pending at the effective date of Chapter 12 to Chapter 12. RULING: The debtor requested an advisory opinion which the Court could not give.

1990 #13

EHRICH, ROBERT L.: June 27, 1990, Case No. 585-00119, Chapter 11. ISSUE: Whether interim quarterly trustee fees need be paid on disbursements that are later ratified into the debtor's confirmed Chapter 11 plan. RULING: 28 U.S.C. 1930(a)(6) requires payment of interim quarterly trustee's fees on all disbursements regardless of whether such disbursements are later ratified into the debtor's Chapter 11 plan of reorganization.

2000 #15

ELKHORN FARM, INC.:  May 3, 2000.  Case No. 99-50553, Adv. No. 00-5004, Chapter 11.  ISSUE: Whether Bank had a post-petition security interest under § 552(b)(1) in federal government farm program payments that the debtor had received? RULING: The Bank did have a post-petition security interest in the farm program payments. Evidence was needed, however, on the issue of whether this security interest should be cut off based on the equities of the case.

1999  #1

ELLIOTT, KENNETH E. and MARLYS-HARVARD-ELLIOTT, January 6, 1999. Case No. 97-40901. Adversary No. 98-4027, Chapter 7. ISSUE: ISSUE: Whether Bankruptcy Court should retain jurisdiction over some counts of Plaintiffs' complaint and all counts of Defendants' third-party complaint where underground storage tanks, possible contamination, and cleanup where at issue and where cleanup funds were within the control of the state and its agencies? RULING: The Bankruptcy Court abstained from further jurisdiction pursuant to 28 U.S.C. § 1334(c)(1). State and its agencies could better address the matter. Case had also recently been converted to Chapter 7 and the Trustee could work with the state and interested parties to get the cleanup done and the costs for it allocated timely.

1999  #2

ELLIOTT, KENNETH E. and MARLYS-HARVARD-ELLIOTT, January 11, 1999. Case No. 97-40901. Adversary No. 98-4027, Chapter 7. ISSUE: Whether Defendants-Sellers breached purchase agreement with Plaintiffs-Debtors in conveying restaurant equipment, heating and cooling system, and sewer system to Debtors that was not in a "good state of repair and working order." RULING: Evidence did not support Plaintiffs-Debtors' allegations and judgment was entered for Defendants-Sellers. Problems Debtors encountered with the equipment, heating and cooling system, and the sewer system were not out of the ordinary nor the result of neglectful maintenance by the Sellers.

1993 #1

2002 #14

ELSPERGER, KEVIN J. & TARI A. (Pfeiffer v. Aberdeen Finance Corp.) June 24, 2002, Case No. 01-10166, Adv. No. 01-1018, Chapter 7. ISSUE: Whether certain transfers by the debtors to the finance corporation were recoverable by the case trustee as either avoidable pre-petition preference payments under § 547(b) or as avoidable post-petition transfers under § 549(a)? RULING: While the pre-petition transfers were preferential under § 547(b), they were not avoidable by the case trustee because the payments fell under the normal course of business exception at § 547(c)(2). Further, the post-petition transfers were not avoidable under § 549(a) to the extent that the transfers were of one debtor’s post-petition wages, which were not property of the Chapter 7 bankruptcy estate.

1988 #11A

ESCHENBAUM, ROBERT L. AND DONNA M.: April 21, l988, Case No. 386-00023, Chapter 11. ISSUE: Whether a Chapter 13 bankruptcy, pending the effective date of Chapter 12, may be converted to Chapter 12. RULING: Motion to convert was granted. In re Erickson Partnership, 74 B.R. 670 (1987) (Erickson 1) - Section 302(c) allows conversion. Section 101(18) and (20) - The Court found that the Debtors do qualify to file under Chapter 12, and that they have established that they are "family farmers with a regular income". But see In re Erickson,, 856 F.2d 1068 (1988).

1999 #31

ETZEL, GAIL E. & JOHN H.  December 7, 1999.  Case No. 99-10262, Chapter 7.   ISSUE: Whether the relief requested in a creditor's "Objection to Discharge of Secured Interest" could be given? RULING: Due to procedural errors, the Objection was overruled without prejudice to the extent that it requested a determination of the non dischargeability of a debt, the denial of discharge, or a deferral of the entry of discharge. The Objection was allowed to stand as the creditor's additional objection to exemptions (the creditor had earlier joined the Trustee's objections to exemptions). 

1989 #10

FANNING, FRED AND BESSIE: April 25, 1989,. Case No. 386-00115, Chapter 12. ISSUE: Valuation of property. RULING: Court determined value of creditor's appraiser.

2004 #40

1995 #19

1989 #16

APPEAL RECORD:

July 14, 1989. MARTIN FRANK, JR. AND ERNESTINE FRANK. Case No. 89-10012. Notice of Appeal to District Court filed by Farm Credit Bank of Omaha from the Order entered July 6, 1989 dismissing involuntary petition; Memorandum Decision dated 7-5-89. APPEAL STATUS: Referred to Hon. Donald J. Porter 8-7-89. Reversed. Order reversing and remanding entered by Judge Porter 12-27-89 (Civ. 89-1027).

2001  #36

FRANZEN, LYNDON M. dba Franzen Freightways (Whetzal v. First International Bank), October 25, 2001.   Case No. 99-50153, Adv. No. 01-5008, Chapter 7.  ISSUE: Whether summary judgment should be granted regarding certain voidable preferential transfers and voidable post-petition transfers alleged by the Trustee where Defendant-Bank had raised the defense that the transfers were in the ordinary course of business? RULING: Summary judgment was granted to the Trustee as to certain pre-petition transfers that Defendant-Bank had admitted were not in the ordinary course of business and as to certain post-petition transfers that were not authorized by the Bankruptcy Code or the Court. Trial was ordered on the remaining issues, beginning with whether Defendant-Bank possessed a pre-petition right of setoff that precluded the avoidance of any of the pre-petition transfers.

1995 #7

1999  #4

GARRETT, JAMES E, SANDRA & VERNON (GARRETT RANCHES, INC.), Case No. 386-00024, Adv. No. 98-3013, Chapter 11.  ISSUE: Parties filed cross motions for summary judgment on Plaintiffs' complaint for declaratory relief regarding interpretation of a confirmed Chapter 11 plan. Jurisdiction as to all the relief sought was raised by the Court sua sponte (Defendant had raised some jurisdictional issues). RULING: Court abstained from jurisdiction pursuant to 28 U.S.C. § 1334(c)(1) because neither the plan nor confirmation order delineated any post-confirmation jurisdiction, the plan had already been substantially consummated and the main case had been closed, the parties had entered into a post-confirmation stipulation in a foreclosure action before the District Court, and the Bankruptcy Court did not have jurisdiction to interpret the effect of the confirmed plan (or the stipulation in District Court)on these plaintiffs who had not been Debtors in the Chapter 11 cases.

1999    #08

GEBUR, JEROME DEAN, March 18, 1999.  Case No. 98-40153, Chapter 7.  ISSUE: Whether the debtor could declare a homestead interest in a lien on his former homestead that he received when divorced? RULING: No homestead exemption was allowed for the debtor's lien or the proceeds from that lien. He quit claimed away his interest in the home pre-petition. His lien on the home did not qualify as proceeds of a homestead sale under S.D.C.L. ch. 21-19 and he did not convert the lien into an actual new homestead within one year of receiving it. Instead, he used the value of the lien to offset child support payments he owed.

1989 #19

GERTH, WILLIS R. August 1, 1989: Case No. 89-10062, Chapter 12. ISSUE: Can a debtor's Chapter 12 petition be dismissed because he is currently operating under a confirmed Chapter 11 plan? RULING: One may not be a debtor in two separate cases under different Chapters of the Bankruptcy Code. 116 B.R. 167 (Bkrtcy. S.D. 1989).

1991 #21

GERTH, WILLIS R. October 25, 1991: 91-10002, Chapter 12. ISSUE: Whether FmHA was entitled to setoff post-petition payments from pre-petition CRP contract against its pre-petition claim? RULING: CRP contract was executory contract that did not presumptively constitute a pre-petition debt owed by creditor to debtor. Thus, that requirement for setoff under § 553 was not satisfied. Court declined to follow that line of cases which hold a debtor and debtor-in-possession are not the same party when "mutuality of the debt" requirement under § 553 is considered.

APPEAL RECORD:

November 4, 1991. GERTH, WILLIS R., Notice of Appeal to District Court filed by ASCS/CCC from the final order denying the Motion for Modification of Stay and for Setoff entered October 25, 1991. STATUS OF APPEAL: Order affirming Bankruptcy Court entered by Judge Battey 2-6-92.

2000 #6

1993 #2

GOLDEN HILLS RESORT, INC.: March 5, 1993, Case No.92-50211, Adv. No. 92-5012, Chapter 11. ISSUE: Whether creditor had post-petition secured interest in Debtor-hotel's receipts? RULING: Creditor did not have a post-petition secured interest in debtor-hotel's receipts. By the terms of the mortgage, the creditor's secured interest in rents, profits, etc., did not vest until default and enforcement of the mortgage. The interest did not vest pre-petition because the creditor did not enforce the mortgage pre-petition. The interest could not be perfected post-petition under § 546(b) because no state law allowed the creditor's post-petition perfection to relate back to a time pre-petition so as to defeat the lien avoidance powers of the debtor-in-possession.

2004 #22

1995 #31

GRAY, KENDALL L. AND LAURI A.: August 10, 1995. Case No. 91-50133, Adversary No. 94-5016. ISSUE: Whether Defendant was entitled to summary judgment on claim regarding insurance commissions? RULING: Summary judgment was denied. A material question of fact existed on whether the Plaintiff had breached his contract with Defendant by selling policies for a new company that replaced Defendant's policies.

1996 #7

GRAY, KENDALL L. AND LAURI A.: June 3, 1996. Case No. 91-50133, Adversary No. 94-5016. ISSUE: Whether co-plaintiff-debtor was bound by employment terms agreed to by plaintiff-trustee and the plaintiffs' attorney and approved by the court? RULING: Employment order bound only co-plaintiff-trustee. Co-plaintiff-debtor was not a part of the employment agreement between the trustee and plaintiffs' attorney and had been given no opportunity to object to it. Co-plaintiff-debtor would be obligated to pay attorney pursuant to the terms of their separate agreement. Court could scrutinize that agreement only for reasonableness under § 329(b).

1998  #16

1998 #22

GREEN, WILLIAM M., Case No. 96-40590, Adversary No. 97-4016, Chapter 13. ISSUE: Whether creditor's amended proof of claim was timely where it was filed after Debtor's plan was confirmed, confirmed plan did not acknowledge an unresolved claim, and where creditor changed large claim from secured to unsecured? RULING: Amended claim was not timely. Most important, under § 1329, confirmed plan could not be modified to treat the amended claim because none of three allowed types of modification was applicable. The Court, however, agreed to value the amended claim to aid Debtor and the creditor if treating the claim outside the plan.

2000 #43

GREENWOOD, GERALD B., December 28, 2000, Case No. 00-50415, Chapter 13.  ISSUE: Whether Debtor's former attorney was entitled to requested compensation of $1,250 for services rendered before the meeting of creditors and the confirmation of a plan. RULING: Court concluded that attorney was entitled to compensation of $800 for preparing the petition, schedules, statement of financial affairs, and the initial proposed plan and meeting with debtor. The case had a limited number of creditors and no complex issues. The fact that the debtor was not easy to work with did not warrant a higher fee under the terms of the attorney and debtor's fee arrangement.

1995 #8

GRIDLEY, PATRICIA A.: March 27, l995, Case No. 91-40439, Adversary #93-4049, Chapter 7. ISSUE: Whether state court action that deprived the debtor of her interest in a trust was a voidable preference under § 547? RULING: The state court surcharge order against the debtor's interest in the trust was not a preference under § 547 because the debtor was not insolvent at the time of the transfer.

1995 #9

GRIDLEY, PATRICIA A.: March 27, l995, Case No. 91-40439, Adversary #93-4046, Chapter 7. ISSUE: Whether the debtor's pre-petition transfer of certain stock to her children was a fraudulent transfer under 11 U.S.C.  § 157(b)(2)? RULING: The debtor's transfer was not fraudulent under      § 157(b)(2), which incorporates any South Dakota fraudulent conveyance law.

1990 #8

GRIMES, WESLEY & DOLORES: March 29, 1990. Case No. 88-10053, Chapter 11. ISSUE:(1) Approval of professional fees and reimbursement of expenses for non-local debtors' counsel. (2) Approval of fees and expenses of farm management consultant who acts without court authorization. (3) Disgorgement of fees paid to bookkeeper and appraiser without court approval. RULING: (1) Fee application for attorney will be reduced due to the noncomplexity of the case and the availability of local counsel. Excess fees will be disgorged. (2) Fee application for farm consultant will be denied and fees paid to the consultant will be disgorged due to consultant's failure to receive approval for employment. (3) Fees paid to bookkeeper without prior approval must be disgorged and fees paid to appraiser without prior approval must be disgorged. 115 B.R. 639 (Bankr. D.S.D. 1990).

APPEAL RECORD

March 25, 1990. GRIMES, WESLEY & DOLORES. Case No. 88-10053. Notice of Appeal to 8th Circuit Court of Appeals filed by William F. Needler & William F. Needler & Associates, Ltd. from Order Affirming Disgorgement of Excess Compensation dated February 25, 1991. APPEAL STATUS: DISMISSED. Judgment from 8th Circuit Court of Appeals dismissing appeal entered   12-19-91.

APPEAL RECORD

April 9, 1990. GRIMES, WESLEY & DOLORES. Case No. 88-10053. Notice of Appeal to District Court filed by Lois A. Bellman & National Farm Management, Inc. from Order Directing Disgorgement of Excess Compensation dated March 29, 1990. APPEAL STATUS: Referred to Hon. Donald J. Porter  5-3-90. DISMISSED - Order dismissing appeal entered by Judge Porter     7-23-90.

APPEAL RECORD

April 9, 1990. GRIMES, WESLEY & DOLORES. Case No. 88-10053. Notice of Appeal to District Court filed by William F. Needler & William F. Needler & Associates, Ltd. from Order Directing Disgorgement of Excess Compensation dated March 29, 1990. APPEAL STATUS: Referred to Hon. Donald J. Porter 6-1-90. Affirmed. Memorandum Decision entered 2-25-91 by Judge Porter affirming bankruptcy court's decision. (Civ. 88-10053).

2005 # 24

GROETKEN, MICHAEL J. & JAMIE J.  June 15, 2005.  Case No. 05-40215, Chapter 7.  ISSUE: Whether Debtors were entitled to some pre-petition wages that were obtained by a creditor on the petition date under a garnishment and whether Debtors were entitled to any damages for the creditor’s violation of the automatic stay? RULING: The wages were property of the bankruptcy estate and were properly paid over by the garnishing creditor to the case trustee. Debtor could not exempt them. Debtors also failed to show that they had any damages from the creditor’s violation of the stay or that any violation had been wilful.

2002  # 21

HAGEN TRANSPORTATION SERVICES, (Swaney & Tiesler Trucking Adv.),    October 7, 2002, Case No. 00-40682, Adv. No. 02-4013, Chapter 7.  ISSUE: Whether Plaintiff-Trustee’s motion for summary should be granted? RULING: Motion was granted. Plaintiff-Trustee made a prima facie showing and neither Defendant was able to identify a disputed fact or question of law.

1997 #32

HAMANN, DAVID R. & PEGGY J. November 14, 1997. Case No. 97-10069, Chapter 7. ISSUE: Whether Debtors could have creditor's lien on exempt furniture removed pursuant to 11 U.S.C. § 522(f)? RULING: The creditor had a purchase money security interest that could not be removed under         § 522(f).

1989 #30

1991 #5

HAMMRICH, JUNIOR SEBASTIAN & JOYCE MARIE HAMMRICH, November 13, 1989: Case No. 87-10032, Chapter 12 ISSUE: Whether the debtor may be compelled to submit to discovery by creditor where no deposition or Bankr. R. 2004 examination had been ordered or noticed in compliance with Bankr. Rs. 2004, 7027-7037, or 7029? RULING: Debtor would not be compelled to submit to discovery by creditor where neither the creditor, case trustee, or other interested party had obtained order for Bankr. R. 2004 examination nor had sought deposition under Bankr. R. 7027-7037 deposition under Bankr. R. 7029.

1998  #15

HANDBOY, RAYMOND C. & MARVEL J., July 2, 1998, Case No. 97-50358, Chapter 13. ISSUE: Whether order regarding plan modification should be vacated? RULING: Order modifying a confirmed plan, which the Court had been told was only correcting a technical error, was vacated in part because the order contained a material change to the confirmed plan (date of first and last payments) that had not been properly noticed to creditors for objections.

2003   #11

HANKINS, LORRAINE M., May 9, 2003, Case No. 01-41241, Chapter 7.  ISSUE: Whether Debtor’s attorney should be compensated from the Chapter 7 bankruptcy estate for services rendered after the meeting of creditors? RULING: Debtor’s attorney’s request for compensation and reimbursement from the bankruptcy estate for services and costs incurred after the § 341 meeting was denied because these post-petition services did not benefit the bankruptcy estate.

1989 #4

HANSON, EARL AND RUBY, Case No. 386-00136, Chapter 12.

ASSMAN, HAROLD AND JIM, Case No. 87-30147, Chapter 12.

LOWER BRULE CONSTRUCTION, Case No. 87-30079, Chapter 11.

LEMMON, WARD AND NORMA, Case No. 88-10078, Chapter 12.

SCHINDLER, GARY & KATHLEEN, Case No.88-30036,Chapter 12.

SCHINDLER, DONALD & BONNIE, Case No.88-30037,Chapter 12.

March 8, 1989,

ISSUE: Court approval of professional compensation from estate funds. RULING: Travel Time - Professionals should be compensated at their full reasonable hourly rate of necessary travel hours, unless the travel fees become too large a percentage of the total fees applied for, exclusive of expenses and sales tax. (Because the geographic locations of the court points does not always coincide with the attorney's residence and because of the limited number of attorneys in the District who practice bankruptcy law, the debtor's ability to hire qualified counsel would be unduly chilled if travel was not fully compensable.

Mileage Expense - Section 330(b)(2) allows a professional reimbursement from the estate for "actual, necessary expenses". The Court allowed a mileage expense of 24 cents per mile, regardless of the economy of the auto driven. (This is the standard mileage rate the I.R.S. presently allows taxpayers for autos used in business).

Paraprofessional Billing - If paralegal work is to be compensable, the qualifications of the assistant should be established to justify the charge. Adequate Itemization - B.R. 2016. Problem of inadequately itemized applications is not limited to travel related fees and expenses - In re Pothoven, 84 B.R. 579, 584 (1988), citing In re Pettibone Corp., 74 B.R. 293 (Bkrtcy. N.D. Ill. 1987; In re S.T.N. Enterprises, Inc., 70 B.R. 823 (Bkrtcy. D. Vt. 1987); In re Doyle-Lunstra Sales Corp., 19 B.R. 1003, 1005 (D. S.D. 1982).

1999 #32

HANSON, BRETT RICHARD.  December 14, 1999.  Minnesota Case No. 98-42360, Adv. No. 99-4303, Chapter 7. ISSUE: Whether the plaintiffs were entitled to maintain a denial of discharge and a fraud-based non dischargeability complaint where their claims have never been scheduled and where they have never received formal notice of the case, but where they received actual notice of the case before the deadlines but still failed to file a timely complaint due alleged threats by the debtor? RULING: The complaint was dismissed on all grounds. Relief could not be granted under §§ 727 or 523(a)(2), (4), or (6) because the complaint was not timely. Relief could not be granted under § 523(a)(3)[unscheduled claims] because the plaintiffs had actual knowledge of the case in time to file a non dischargeability complaint and to file a proof of claim. The deadlines for filing a § 523(a)(2), (4), or (6) complaint, a § 727 complaint, or a proof of claim could not be extended under other equitable grounds because F.Rs.Bankr.P. 3002(c), 4004(b), 4007(c), and 9006(b)(3) limit how and when the applicable filing deadlines may be extended. 

2001 #19

HANSON, STEVEN D. & BONNIE M. April 9, 2001.  Cas No. 00-30078, Chapter 13.  ISSUE: Whether Debtors may claim as a portion of their exempt homestead a lien that one Debtor held on a former marital residence? RULING: The lien interest could not be exempted either as a homestead or as the proceeds of a homestead under S.D.C.L. § 43-45-3(2). The lien was a product of a divorce decree, not the proceeds of a voluntary sale or court-ordered sale under S.D.C.L. ch. 21-19 as required by § 43-45-3(2).

1996 #19

HARRIS, JOHN R. November 14, 1996, Case No. 96-40507, Chapter 13. ISSUE: Whether stay should be modified to allow state court action regarding some scheduled real property to continue? RULING: Stay was modified. While Debtor had scheduled the property, title was not in his name. State court could determine whether debtor or the creditors had any interest in the property and could protect debtor's homestead interest, if any, as readily as the bankruptcy court. The state court action had already been commenced and progress toward resolution had been made. Not all parties to the state court action were within the Bankruptcy Court's core jurisdiction. The debtor's Chapter 13 case would not be impeded by the state court action.

1993 #5

HARRISON, J. HOWARD & DARLENE F: May 21, 1993, Case No. 87-50250, Chapter 12. ISSUE: Whether written confirmation order that was entered two months after confirmation hearing and that confirmed a plan that was modified after the confirmation hearing without notice to creditors took precedence over the oral confirmation order where no party timely appealed the written confirmation order or otherwise sought to attack it? RULING: Oral confirmation order took precedence over written confirmation order where several procedural errors occurred prior to the entry of the written order, where the written order varied plan terms recognized by the oral order, and where the evidence did not support the conclusion that an interested creditor had consented to treatment of its claim other than as stated in the oral confirmation order and the debtors' original plan. Court ordered the reformation of the written confirmation sua sponte under F.R.Civ.P. 60(a).

APPEAL RECORD:

Affirmed. Order entered 11-1-93 by Judge Battey affirming bankruptcy decision (CIV. 93-5083).

1994 #5

HARTER, PATRICK CHRIS: March 24, 1994. Case No. 92-30070.  Chapter 12. ISSUES: Whether Debtor's proposed modification of his confirmed plan could be approved? RULING: Debtor's proposed modification of his confirmed plan could not be approved because Debtor did not show that the modification met the best interest of creditors test. The modification also could not be approved because Debtor had not proposed it in good faith. Lack of good faith was shown by Debtor's decision to offer unsecured creditors nothing more than disposable income despite possible excess sale proceeds and because Debtor had liquidated his farm and would not reorganize.

2004 #14

HENNIGS, DALE R., JR. & KARLA M.  (Lovald v. AGA, Inc.,) March 30, 2005.  Case No. 02-40692,Adv. No. 04-4015, Chapter 12.  ISSUE: Whether defendant-creditor was entitled to summary judgment on the plaintiff-trustee’s turnover action where no material facts were in dispute and where defendant sought to bar plaintiff-trustee’s claim based on equitable estoppel? RULING: The Court agreed with defendant-creditor that no material facts were in dispute but also concluded that defendant was not entitled to summary judgment as a matter of law. The facts did not support a finding of equitable estoppel. Other formal proceedings in the adversary and in the main case would be required to resolve remaining issues.

1993 #7

HENNING, JOHN & MARILYN: August 16, 1993. Case No. 88-10212, Chapter 12. ISSUE: Whether Debtors are obligated to pay disposable income under      § 1225(b)(1)(B)? RULING: Debtors' confirmed plan contained a disposable income provision that had a slightly different definition of disposable income and repayment term than provided by § 1225(b)(1)(B). The plan terms control. Moreover, Debtors' agreement to give FmHA a secured interest in chattels and to pay FmHA the value of the chattels over time did not supplant the plan's disposable income provision.

2007 #4

HERDING, JAMIE L., January 31, 2007, Case No. 05-42419, Chapter 7.  ISSUE: Whether the debtor could claim a homestead exemption in the marital home that he vacated pre-petition pursuant to a protection order where the debtor was not living in the home on his petition date, where the debtor had not sought to retain the home in his and his wife’s divorce action, and where the debtor disclosed in his Statement of Intention that he was going to surrender the house to the mortgage holder? RULING: The debtor was not permitted to claim a homestead exemption in the marital home. Though the debtor had involuntarily vacated the home, he thereafter exhibited no actual intent to return to that house and use it as his home.

1988 #29

HIGH ELK, WESLEY AND IMOGENE HIGH ELK: December 13, 1988, Case No. 88-30012, Chapter 7. ISSUE: Whether a wrongful death cause of action under South Dakota law survives the death of the claim holder so as to be assignable? RULING: Yes. Stipulation under which a wrongful death claim was assigned to a creditor is approved. City of Sturgis v. Walker, 116 N.W.2d 803 (S.D. 1962); Steckman v. Silver Moon Tours, 90 N.W.2d 170 (S.D. 1958).

1987 #2

HOFER, NORLAND BICKY AND SUSAN RAE HOFER, December 24, 1987. Case No. 87-10059, Adversary No. 87-1017, Chapter 7. ISSUE: Complaint to avoid lien on homestead. RULING: Complaint denied. SDCL 43-31-17.

1990 #5

HOFFMAN FARMS, MILTON HOFFMAN AND JOEL AND SHEILA HOFFMAN: March 6, 1990. Case No. 87-10275, Chapter 12. ISSUE: Whether debtor may satisfy certain judgments of record prior to receiving a discharge. RULING: A debtor may not have judgments of record satisfied prior to receipt of a discharge. The Court will allow debtors to submit an order declaring the liens void. However, satisfying the judgments prior to discharge would be premature, as the liens could be reinstated in the event that the case is dismissed rather than discharged.

1994 #12

HOFFMAN FARMS, July 8, 1994. Case No. 87-10275, Chapter 12. ISSUE: Whether substantively consolidated Chapter 12 case should be dismissed or converted where post-confirmation the debtors used secured assets contrary to a creditor's authorization? RULING: The case was converted to Chapter 7 for fraud.

APPEAL RECORD

July 18, 1994. HOFFMAN FARMS, Case No. 87-10275. Notice of Appeal to District Court filed by debtor from Order Converting Case to Chapter 7, and Memorandum of Decision Re: Motions to Dismiss or Convert dated July 8, 1994. APPEAL STATUS: Affirmed. Judgment affirming bankruptcy court's decision entered by Judge Piersol 10-8-95.

2006  # 17

HOLWAY, ROBERT (VanLeuven v. Holway), January 21, 2004, Case No. 03-50144, Adv. No. 03-5009, Chapter 7.  ISSUE: Whether Plaintiff was entitled to summary judgment on her complaint objecting to Debtor’s discharge pursuant to 11 U.S.C. § 727(a)(4)?  RULING: Plaintiff was entitled to summary judgment, where Debtor failed to advance specific facts to create a genuine issue of material fact for trial and Plaintiff was entitled to judgment as a matter of law. Debtor’s misstatements and omissions in his schedules and statement of financial affairs constituted a pattern of reckless disregard for the accuracy of his schedules sufficient to warrant the Court’s denying Debtor’s discharge under 11 U.S.C. § 727(a)(4).

2005 #15

HOWARD, TWIYLA J., May 18, 2005, Case NO. 04-40424, Chapter 7.   ISSUE: Whether the chapter 7 trustee was entitled to an order directing the debtor to turn over a sum certain representing the amount by which the value of the debtor’s interest in certain personal property exceeded the debtor’s allowed exemption under S.D.C.L. § 43-45-4? RULING: The chapter 7 trustee was entitled to an order directing the debtor to turn over the sum of $2,515.00.

1990 #12

HOWE, STANFORD RAY: June 26, 1990 Case No. 586-00113, Chapter 11. ISSUE: Objection to proof of claim. RULING: Objector to proof of claim has the burden of going forward in support of his objection, but the ultimate burden of persuasion remains with the creditor filing the proof of claim.

2005 #3

HUBBARD, DAVID A.:  January 24, 2005.  Case No. 04-41055, Chapter 7. ISSUE: Whether a judgment held by a creditor who was listed on the debtor’s schedules of creditors and mailing list of creditors "in care of" an attorney who represented the creditor in the past was voided by the debtor’s discharge? RULING: A debtor must list each creditor on the debtor’s schedules of creditors and mailing list of creditors at the creditor’s own address, not that of an attorney who represented the creditor in the past. The claim of a creditor who was not properly listed may not have been discharged. Thus, the debtor’s motion to discharge the creditor’s judgment was premature.

2007  #10

1999 #25

HUGHES, JESSIE JOYCE & CARROLL LEE (homestead):  October 18, 1999.  Case No. 99-40302, Chapter 7.   ISSUE: Whether the debtor's homestead exemption was limited to $30,000 in value? [Note: The debtor essentially challenged the constitutionality of S.D.C.L. § 21-19-2.] RULING: State law limits the value of a homestead exemption to $30,000 when judgment creditors are present. The case trustee serves as the judgment creditor under bankruptcy law to similarly limit the amount of debtor's homestead exemption in bankruptcy cases. Further, the debtor failed to show that S.D.C.L. § 21-19-2 was unconstitutional.

1999 #26

HUGHES, JESSIE JOYCE & CARROLL LEE (personalty):  October 18, 1999.  Case No. 99-40302, Chapter 7.   ISSUE: If the trustee sells the debtor's homestead to realize on equity in excess of the allowed homestead exemption of $30,000, may the debtor declare part of the proceeds exempt under S.D.C.L. § 43-45-4? RULING: No. Exemptions are determined on the petition date. Sale proceeds obtained later by the case trustee if he sells the homestead do not become personalty that the debtor can exempt under § 43-45-4.

2005  #22

HUMBERT, ROBERT & LORRAINE,  June 28. 2005.  Case No. 05-40173, Chapter 7.  ISSUE: Whether creditors’ motion to reconsider Court’s earlier denial of a §707(a) dismissal motion should be granted? RULING: The Court did not change its earlier ruling. The Court did not find that cause for dismissal existed where better remedies were available to address the debtors’ alleged acts of bad faith.

2007 #6

2005 #28

HUMPAL, JOEL. A.,  August 11, 2005.  Case No. 05-40048, Chapter 7.  ISSUE: Whether Chapter 7 trustee’s stipulation with the debtors would be approved where stipulation provided the debtors would retain about $11,000 in non exempt personal property by paying the estate $6,000? RULING: The stipulation was not approved because the Court could not determine from the record whether the $6,000 "sale" price was fair and reasonable as an attempt to maximize estate assets.

1989 #33

HURN, CLARENCE J., December 12, 1989. Case No. 89-30038. Chapter 12. ISSUE: (1) Whether debtor may deduct special use tax liability (Internal Revenue Code § 2032A) from the value of estate property for liquidation analysis purposes? (2) Whether debtor may deduct certain income taxes in his liquidation analysis, and if so, in what amount. RULING: (1) Debtor may not deduct potential special use tax liability from the value of his estate due to the unlikelihood of its enforcement and its contingent nature. (2) Debtor may deduct those taxes attributable to his income, but not those of his wife because she is not a party to the bankruptcy, in debtor's liquidation analysis.

HUSKEY, DAVID K. & COLLEEN L., May 30, 2000.  Case No. 00-10009, Chapter 7.   ISSUE: Whether case should be dismissed for substantial abuse where Debtors acknowledged they would have disposable income of over $600 per month? RULING: Court concluded case should be dismissed for substantial abuse based on Debtors' ability to adequately fund a Chapter 13 plan with their monthly disposable income. Subsequently, Debtors voluntarily converted their case to Chapter 13.

2002 #26

IHNEN, DENNIS L. AND MARY KAY, December 3, 2002, Case No. 02-40459, Chapter 7.  ISSUE: (1) Whether each joint debtor is entitled to claim a $20,000 cash value in life insurance exempt? (2) Whether the debtors had properly declared exempt an annuity under South Dakota law where the annuity was not in payment status? RULING: (1) The joint debtors could only claim up to $20,000 total exempt under the plain language of S.D.C.L. § 58-12-4. (2) State law did not require the annuity to be in payment status to be declared exempt, but S.D.C.L. § 58-13-8 nonetheless limited the amount that could be declared exempt as discussed in In re McGruder, Bankr. No 00-30094, slip op. at 14 (Bankr. D.S.D. August 14, 2001).

2001 #4

IRON HAWK, ALVINA E., January 10, 2001, Case No. 00-30084, Chapter 7.  ISSUE: Whether the debtor's attorney's fees of $1,300 were reasonable under § 329(b)? RULING: The fees were deemed reasonable since the case took longer than average to prepare and because a somewhat unique land title issue had to be researched.

2003  #14

IVERS, VERNON E., JR. & CAROL S. IVERS, June 17, 2003.  Case No. 02-50111, Chapter 7.  ISSUE: Whether Debtor’s objection to Trustee’s proposed distribution should be sustained whether Debtor complained that the Trustee had not recognized amendments to her schedule of exemptions that her attorney had mailed to the Trustee but not filed and where the Trustee proposed to pay a creditor that Debtor said was not owed any money? RULING: Debtor’s objection was overruled. The Trustee’s final report and proposed distribution properly recognized Debtors’ claimed exemptions as they were filed; none of the amendments had been properly filed. Further, no one had timely objected to the claim about which Debtor had complained. Thus, the claim was allowed as filed.

1989 #20

JARRETT RANCH, INC., JARRETT ELEVATORS, INC.; DONALD & JEANNINE JARRETT and RONALD & JACQUELINE JARRETT. August 16, 1989. Case No. 88-10117, Adversary No. 89-1001. Chapter 11. ISSUE: Whether the Agricultural Credit Act of 1987 contains an implied private right of action for enforcement of the provisions of the Act. RULING: A private right of action may be implied under the Agricultural Credit Act of 1987.

1989 #21

JARRETT RANCH, INC., JARRETT ELEVATORS, INC.; DONALD & JEANNINE JARRETT and RONALD & JACQUELINE JARRETT. August 16, 1989. Case No. 88-10117, Adversary No.89-1001. Chapter 11. ISSUE: (1) Whether one may be awarded summary judgment where no formal motion has been made therefor. RULING: (1) Summary judgment may be awarded in the absence of a formal motion where notice has been provided, the interests of the parties and judicial economy would be served, and all requirements for summary judgment are met. ISSUE: (2) Whether waiver of rights under the Agricultural Credit Act is void as a matter of law. RULING: (2) Waiver of rights under the Agricultural Credit Act is not void as a matter of law. ISSUE: (3) Whether extension of previously waived rights estops lenders from later canceling such extension. RULING: (3) Lender, having extended previously waived rights, is estopped from later unilaterally withdrawing such extension. ISSUE: (4) Whether property to be completely liquidated may be appraised in numerous tracts. RULING: (4) Where entire property is to be sold, it must be appraised as one unit. ISSUE: (5) Whether value set forth by lender on IRS Form 1099 may be used in determining fair market value. RULING: (5) IRS Form 1099 may be used in establishing fair market value of real estate. ISSUE: (6) Whether method of sale proposed by lender complies with the Agricultural Credit Act. RULING: (6) Method of sale proposed by lender did not comply with the Agricultural Credit Act.

APPEAL RECORD

October 31, 1989. JARRETT RANCH, INC., Case No. 88-10117, Adversary No. 89-1001. Notice of Appeal to District Court filed by Farm Credit Bank of Omaha, Production Credit Association of the Midlands and the Federal Land Bank Association of Aberdeen from order denying motion for summary judgment and restating right of repurchase entered 8-16-89. APPEAL STATUS: Referred to Honorable Donald J. Porter 11-16-89. Reversed and Remanded to Bankruptcy Court. Order entered by Judge Porter 11-21-90 reversing Bankruptcy Court's decision granting summary judgment to plaintiffs and remanded to the Bankruptcy Court for further proceedings. (CIV. 89-1048).

1989 #31

JARRETT RANCH, INC., JARRETT ELEVATORS, INC.; DONALD & JEANNINE JARRETT and RONALD & JACQUELINE JARRETT. November 20, 1989. Case No. 88-10117, Adversary No. 89-1001. Chapter 11. ISSUE: Whether certain costs requested by prevailing party were recoverable after completion of an adversary action. RULING: (1) Costs may be taxed regardless of the fact that a notice of appeal has been filed. (2) Deposition transcript not read at trial may be taxed if it was reasonably necessary to preparation of the case and not purely investigative in nature. (3) Costs for witness mileage is not limited to 100 miles. (4) Copying costs are generally taxable, but must be sufficiently broken down and found to be reasonable. (5) Premium for letter of credit is properly taxable. (6) Long distance telephone and postage costs are not properly taxable. (7) Costs for computerized legal research is not properly taxable.

1998 #3

JENSEN, LYLE A. & CONNIE J. March 13, l998, Case No. 96-40080, Chapter 7. ISSUE: Whether pre-petition judgment was discharged under 11 U.S.C. § 524(a) and S.D.C.L. § 15-16-20? RULING: Debtors did not have any non exempt real property on the petition date to which creditor's pre-petition judgment attached as a lien. Therefore, judgment was discharged in bankruptcy under § 524(a) and could be discharged or satisfied by the county clerk of court pursuant to S.D.C.L. § 15-16-20.

2003 #16

JOHNSON, KERMIT R. August 15, 2003.  Case No. 03-10042, Chapter 7.  ISSUE: Whether Bank's motion to compel abandonment of some real property should be granted where equity may exist in it for the bankruptcy estate? RULING: The Bank's motion to compel abandonment was denied because it's mortgages on the property did not equal or exceed the value of the land, thus leaving equity for the bankruptcy estate. One mortgage claimed by the Bank had not been properly recorded, thus increasing the bankruptcy estate's equity.

2006  #20

2008   #5

JOHNSON, LONNY D. and NANCY J., Bankr. No. 04-40842, Chapter 13 (bench ruling, July 10, 2008). ISSUE: Whether the Court should approve the parties' agreement to settle Debtors' disposable income obligation for $19,000?  RULING: No. Referring to the Internal Revenue Service's national standards for food, clothing, and other items and the Internal Revenue Service's local standards for housing, utilities, and transportation to determine the reasonableness and necessity of Debtors' expenditures for those items, the Court estimated Debtors' disposable income was in excess of $40,000. Relying on Tri-State Financial, LLC v. Lovald (In re Tri-State Financial, LLC), 525 F.3d 649, 654 (8th Cir. 2008) (citations therein), which sets forth the four factors that must be considered in determining the reasonableness of a proposed settlement, the Court concluded the parties' settlement should not be approved.

JUHNKE, RICKY D. & GWEN M., December 20, 2004.  Case No. 04-41154, Chapter 7.  ISSUE: Whether a debtor may avoid a contractor’s excise tax lien pursuant to 11 U.S.C. § 522(f)(1)? RULING: A contractor’s tax lien is a statutory lien, not a judicial lien. Therefore, a debtor may not avoid such a lien pursuant to 11 U.S.C. § 522(f)(1), even if it impairs the debtor’s homestead exemption.

1998 #5

KIRWAN, JAMES T. & SHIRLEY M. April 6, 1998. Case No. 98-30003, Adversary No. 97-3011. Chapter 12.ISSUE: Whether Plaintiffs' adversary complaint was timely? RULING: Plaintiffs' fraud-based complaint was dismissed because it was untimely under F.R.Bankr.P. 4007(c) where Plaintiff had not requested an extension before the original time expired.

2001 #14

KIRWAN RANCH, February 23, 2001.  Case NO. 97-3004, Chapter 7.  ISSUE: Whether Court's earlier denial of Defendants' request for the Court to set certain deadlines regarding proofs of and claims and the Trustee's final report and distribution should be reconsidered? RULING: The Court treated Defendants' motion as one filed under Fed.R.Bankr.P. 7059 and Fed.R.Civ.P. 59(e), but did not grant the relief requested. All the concerns raised by Defendants were not related to the adversary proceeding but to the main case, where a separate order had been entered regarding the requested deadlines.

2000 #3

KIRWAN RANCH ADV. , January 12, 2000.  Case No. 97-30003, Adv. No. 99-3001, Chapter 7.  ISSUE: Whether Defendants were entitled to summary judgment?  RULING: Defendants' motion was denied. Some of the transactions of which the Plaintiff-Trustee alleged were fraudulent or preferential were within the reach-back period. Any earlier state court decision did not give rise to claim or issue preclusion. The Plaintiff-Trustee's preference claim was not barred merely because Debtor had never been formally issued the subject stock by Defendants as the Defendants obligated themselves to do in a land purchase deal.

2001 #13

KIRWAN RANCH ADV. (Lovald v. Kirwan), February 23, 2001.  Case No.   97-3004, Adv. No. 99-3001, Chapter 7.  ISSUE: Whether Court's earlier denial of two parties-in-interest's request for the Court to set certain deadlines regarding proofs of and claims and the Trustee's final report and distribution should be reconsidered? RULING: The Court treated the motion as one filed under Fed.R.Bankr.P. 7059 and Fed.R.Civ.P. 59(3). The original order was not modified since the movants had not identified any error by the Court.

1998  #6

KIRWAN, WILLIAM P. April 6, 1998. Case No. 98-30005, Adversary No.     97-3010. Chapter 12. ISSUE: Whether Plaintiffs' adversary complaint was timely? RULING: Plaintiffs' fraud-based complaint was dismissed because it was untimely under F.R.Bankr.P. 4007(c) where Plaintiff had not requested an extension before the original time expired.

2008  #1

2007 #3

KRAFT, JASON N. AND KELLY K. (bench ruling - March 15, 2007).  Case No. 06-10113, Chapter 7.  Issue: Whether Debtors could claim accrued but unpaid wages not subject to garnishment exempt under S.D.C.L. § 43-45-4? Ruling: Yes. S.D.C.L. §§ 21-18-53 and 43-45-14 are clear, certain, and unambiguous, and according to their terms, those sections would prevent a debtor from claiming his wages exempt under § 43-45-4 or any other statute other than S.D.C.L. §§ 21-18-51 and -52. However, a literal interpretation of §§ 21-18-53 and 43-45-14 would lead to absurd results. For example, a debtor who was being garnished could protect a specified portion of his accrued but unpaid wages - under §§ 21-18-51 or -52 - but a debtor who was not being garnished could not protect any portion of his accrued but unpaid wages. Similarly, a debtor who received his paycheck the day before filing a bankruptcy petition and deposited his paycheck in his checking account could - assuming he had not maxed out his exemptions under § 43-45-4 - claim those funds exempt, but a debtor who received his paycheck the day after filing a bankruptcy petition could not. The Court must presume the South Dakota legislature did not intend those results. In addition, notwithstanding §§ 21-18-53 and 43-45-14, a debtor may in fact protect his wages under at least two other statutes, S.D.C.L.      §§ 15-20-12 and 21-19-17. Those sections - even more clearly than        § 43-45-4 - appear to be in direct conflict with §§ 21-18-53 and       43-45-14. However, that conflict is readily resolved if §§ 21-18-53 and 43-45-14 are interpreted to apply only to wages subject to garnishment, so that a debtor may not use § 43-45-4 to exempt any wages he was not able to exempt under §§ 21-18-51 or -52. For these reasons, neither      § 21-18-53 nor § 43-45-14 bars a debtor from exempting under § 43-45-4 accrued but unpaid wages not subject to garnishment, to the extent permitted by that section.

2007   #11

KUHNEL, STEPHEN E. and ANGELA G., Bankr. No. 07-50232, Chapter 13 (bench ruling, December 6, 2007). Issue 1: Whether the Court could confirm a three-year plan when Debtors had above-median income and did not propose to pay their unsecured creditors in full? Ruling: No. Pursuant to 11 U.S.C. § 1325(b)(4), the Court could not confirm a plan of less than five years. Issue 2. Whether Debtors had committed their projected disposable income to making payments to their unsecured creditors? Ruling: No. A properly completed Form B22C determines a debtor’s disposable income. However, pursuant to 11 U.S.C. § 1325(b)(1)(B), Debtors were required to commit their projected disposable income. Under their plan, Debtors proposed to surrender a vehicle and their home. Thus, upon confirmation, Debtors would no longer be entitled to either an operation expense or an ownership expense for that vehicle, and they would not be making the monthly payments on either that vehicle or their home. Consequently, Debtors' projected disposable income was greater than both their disposable income and the amount Debtors proposed to pay their unsecured creditors under their plan.
 

1997 #8

LAMPHERE, FRITZ: March 12, 1997, Case No. 96-50074, Adversary Case Nos. 96-5015 and 96-5016, Chapter 7. ISSUE: Whether a creditor was entitled to summary judgment of non dischargeability for fraud where a state court had previously decided all issues relevant to the dischargeability complaint in a civil action but where the debtor now challenged the validity of the state court judgment because he alleges he was coerced to default in the state court action? RULING: The creditor was entitled to a summary judgment of non dischargeability where the state court had determined all relevant issues and where the judgment was final. The state court, not the bankruptcy court, was the appropriate place for the debtor to challenge the validity of the state court default judgment. If the debtor prevailed on rehearing in state court, he could seek reconsideration of the non dischargeability judgment from the bankruptcy court.

1998  #14

LANSDOWNE, HAL ARDEN & TRACY J., June 24, 1998, Case No. 97-40679, Adversary Case Nos. 97-4055, Chapter 7. ISSUE: Whether certain debts incurred during a divorce were dischargeable under § 523(a)(5)? RULING: Plaintiff failed in her burden to show that certain debts to third parties that Defendant-Debtor was ordered to pay pursuant to a divorce decree were non dischargeable under § 523(a)(5) because there was no evidence that the debts were divided based on anything but equality, there was no evidence of unequal ability to pay, and there was no evidence the debts were for basic living expenses or that one party had incurred the debts but the other party was ordered to pay them regardless. Debt to Plaintiff's attorney rising from a child support hearing, however, was declared non dischargeable since it was clearer that state court considered the parties' respective abilities to pay and the merit of the movant's claim.

2004 #26

LARSON CONCRETE CO., August 27, 2004, Case No. 00-10053, Chatper 7.  ISSUE: Whether Debtor’s objection to Trustee’s proposed distribution should be sustained where Debtor wanted Trustee to marshal assets in a manner that would have increased payments to unsecured creditors but not have paid judgment lien creditors as well? RULING: The objection was overruled. Debtor should have raised the issue sooner when the various real and personal property sale and proceed distribution motions were considered. The objection was also overruled because the marshaling of assets should never prejudice a secured creditor.

2004  #41

LARSON CONCRETE COMPANY: March 5, 2004, Case No. 00-10053, Chapter 7.  ISSUE: Whether Debtor’s principal was entitled to an administrative expense claim for a loan he made to Debtor pre-petition to pay a retainer to Debtor’s bankruptcy attorney just as the case was being commenced under Chapter 11? RULING: The principal was not entitled to an administrative expense claim. The principal claimed the loan was made pre-petition; therefore, he had an unsecured, pre-petition claim, not an administrative expense claim for repayment of a loan made, with court approval, during the Chapter 11 administration.

2002 #06

LARSON, DEBRA ANN (Larson v. Larson), March 15, 2002, Case No. 01-50166, Adv. No. 01-5010, Chapter 7.  ISSUE: Whether a credit card debt assigned to Debtor in a pre-petition divorce should be non dischargeable under     § 523(a)(15) where Debtor paid the amount of the debt existing on the date of the divorce decree, but where Debtor also continued to charge on the card, which resulted in a significant debt in her name and in her ex-husband’s name on the petition date? RULING: The debt was non dischargeable under § 523(a)(15) in the amount due on the petition date. Although Debtor had paid the credit card company the amount that was due at the time of the divorce, she was still obligated under the divorce decree to hold her ex-husband harmless from that creditor’s claim, which had grown to include the sum due on the petition date. Thus, the sum due on the petition date fell under § 523(a)(15). Further, Debtor did not meet her burden of proof under either exception provided by       § 523(a)(15).

1988 #24

LARSON, LEE SCOTT: September 28, l988, Case No. 88-30004, Chapter 7. ISSUE: What state law governs claim of exemptions when the Debtor is domiciled outside of South Dakota? RULING: Section 522(b)(A). The Court ruled that North Dakota is the governing state law and directed the Debtor to amend his Schedule B-4 to claim the exemptions as allowed under North Dakota law.

2006  #1

LEHMANN, THOMAS L. & REBECCA S., January 6, 2006.  Case No. 05-50830, Chapter 7.  ISSUE: Whether creditor was entitled to relief from stay and abandonment over objection of other creditor who wanted its own property interest protected? RULING: Relief and abandonment were granted since objecting creditor did not dispute that moving creditor’s allegation that there was no equity in the subject property. The Court asked the parties to cooperate to insure that the objector’s rental property, if any, was kept separate from the collateral being returned to the moving creditor.

1989 #4

LEMMON, WARD AND NORMA, Case No. 88-10078, Chapter 12.

LOWER BRULE CONSTRUCTION, Case No. 87-30079, Chapter 11.

HANSON, EARL AND RUBY, Case No. 386-00136, Chapter 12.

ASSMAN, HAROLD AND JIM, Case No. 87-30147, Chapter 12.

SCHINDLER, GARY & KATHLEEN, Case No.88-30036,Chapter 12.

SCHINDLER, DONALD & BONNIE, Case No.88-30037,Chapter 12.

March 8, 1989, ISSUE: Court approval of professional compensation from estate funds. RULING: Travel Time - Professionals should be compensated at their full reasonable hourly rate of necessary travel hours, unless the travel fees become too large a percentage of the total fees applied for, exclusive of expenses and sales tax. (Because the geographic locations of the court points does not always coincide with the attorney's residence and because of the limited number of attorneys in the District who practice bankruptcy law, the debtor's ability to hire qualified counsel would be unduly chilled if travel was not fully compensable.

Mileage Expense - Section 330(b)(2) allows a professional reimbursement from the estate for "actual, necessary expenses". The Court allowed a mileage expense of 24 cents per mile, regardless of the economy of the auto driven. (This is the standard mileage rate the I.R.S. presently allows taxpayers for autos used in business).

Paraprofessional Billing - If paralegal work is to be compensable, the qualifications of the assistant should be established to justify the charge.

Adequate Itemization - B.R. 2016. Problem of inadequately itemized applications is not limited to travel related fees and expenses - In re Pothoven, 84 B.R. 579, 584 (1988), citing In re Pettibone Corp., 74 B.R. 293 (Bkrtcy. N.D. Ill. 1987; In re S.T.N. Enterprises, Inc., 70 B.R. 823 (Bkrtcy. D. Vt. 1987), In re Doyle-Lunstra Sales Corp., 19 B.R. 1003, 1005(D.S.D. 1982).

2007 #8

2007   #9

2008   #2

MC GRUDER, JOHN D. & MARLENE J., August 14, 2001, Case No. 00-30094, Chapter 7.  ISSUE: Whether a certain annuity, on which several payments remained on the petition date, is excluded from the estate or whether Debtors may declare exempt the payments from the annuity?  RULING: The annuity benefits were not excluded from property of the estate under    11 U.S.C. § 541(c)(2) because the annuity was not a "trust" as required by § 541(c)(2). However, under S.D.C.L. § 58-12-4, Debtors could declare exempt a portion of the remaining annuity payments. The amount they could declare exempt was calculated by computing the number of months from the petition date to the last annuity payment date and multiplying it by the $250. Debtors could also request an additional exemption allowance based on need under § 58-12-9. A separate, evidentiary hearing on that issue was required.

1999 #21

MC LEOD, CARA. August 5, 1999.  Case No. 99-10083, Chapter 7.  ISSUE: Whether the debtor may exempt two pre-petition, transfers to insiders? RULING: Under § 522(g), the debtor may not exempt the pre-petition transfers if they were voluntary.

MC DANIEL ENTERPRISES, INC., April 9, 1991. Case No. 88-10199, Chapter 11. ISSUE: Whether the debtor's counsel met burden to show that compensation of services and reimbursement of expenses she sought were reasonable, actual, and necessary as required by 11 U.S.C. § 330(a)? RULING: Court held the counsel's agreement with the debtor to take one-half the compensation and the actual expenses, as set forth in her modified application, met § 330(a) and sufficiently reduced compensation to meet the Court's concerns about excessive time spent On the case, insufficiently documented entries, and a too-large minimum increment of time used to bill services. Court ruled fee applicants will now have burden to show that billing increment of time is reasonable. Actual time to render each service should be set forth on fee application.

2008   # 6

MC NARY, THOMAS W. & JANET M., July 18, 2008. Case No. 08-50120, Chapter 7.  ISSUE: Whether on the United States Trustee's motion for judgment on the pleadings, Debtors' chapter 7 case should be dismissed for abuse pursuant to 11 U.S.C. § 707(b)(3)? RULING: Yes. Debtors admitted having monthly net income of $162.00. Debtors also admitted giving their adult children $300.00 per month. If they committed those sums to paying their unsecured creditors, Debtors could pay $16,632.00, less chapter 13 trustee fees, over a 36-month period or $27,720.00, less chapter 13 trustee fees, over a 60-month period. Debtors thus had the ability to fund a meaningful chapter 13 plan.
 

1999 #6

MC TIGHE INDUSTRIES, INC., March 9, 1999.  Case No. 98-40440, Chapter 11.   ISSUE: What were the reasonable attorney's fees and costs to be awarded the debtor's counsel? RULING: Attorney was awarded $150.00 per hour for his legal services based on the complexity of the case, the comparable rates in the District, and his experience. Compensation at that rate was not allowed for basic bankruptcy research. Allowed cost for a fax was reduced to $.50 per page in the absence of supporting evidence for a higher charge.

2008   #7

MEFFERD, LARRY C. & JULIE A., September 23, 2008  Bankr. No. 08-30034, Chapter 7 (bench ruling, September 23, 2008). Issue 1: Whether under S.D.C.L. § 43-45-4, Debtors could exempt two accounts receivable, valued at "unknown" on their schedule B, by claiming a value of "all" exempt on their schedule C? Issue 2: Whether under S.D.C.L. § 43-45-4, Debtors could exempt their accrued but unpaid wages and their 2008 tax refund, valued at "unknown" on their schedule B, by claiming a value of "unknown" exempt on their schedule C? Ruling: No. While it may not always be possible to assign a precise value to an item of personal property for the purposes of schedule B, a debtor must specify the dollar amount being claimed exempt under S.D.C.L. § 43-45-4 on schedule C. A claim of "all" or "unknown" is inappropriate.

2002  #19

MEINDERS, ROY & JOY, September 6, 2002.  Case No. 00-40914, Chapter 13.  ISSUE: Whether a bank should be granted relief from the automatic stay to enforce a security interest it claimed in some vehicles owned by the debtors? RULING: In reviewing the debtors’ confirmed plan to decipher the treatment afforded the bank on its claim, the Court found several significant problems and errors with the confirmed plan and the debtors’ schedules. The Court exercised its § 105(b) powers to vacate the confirmation order, and it directed all parties to start anew. The bank’s motion for relief from the stay was denied.

2003 #06

2003 # 17

2006  #23

MEINDERS, RAY AND JOY.  November 7, 2006.  Case No. 00-40914, Chapter 13. ISSUE: Whether Debtors were entitled to a refund of statutory attorneys’ fees paid to the county post-petition as part of a setting aside of some tax deeds where Debtors failed to list the county as a creditor and also failed to ensure tax deeds were not issued after learning of tax certificates being issued and where the county issued the tax certificates after learning of the bankruptcy? RULING: The Court allowed the statutory attorneys’ fees as a reasonable and necessary administrative expense incurred by the bankruptcy estate. Thus, the county was not required to refund the money to Debtors.
 

1997 #25

MELLENBERNDT, WILLIAM C. September 18, 1997. Case No.  97-40270. Chapter 13. ISSUE: Whether confirmation order should be vacated where IRS filed its objection late and where the confirmed plan did not comply with      § 1322(a)(2)? RULING: The confirmation order was vacated. The late objection was due to excusable neglect and the confirmed plan did not meet Code requirements for the treatment of priority claims.

2001 #18

MENDEL, CLIFFORD E.  January 31, 2001.  Case No. 00-10159, Chapter 7.  ISSUE: Whether Debtor may declare exempt as his homestead a house in which he had not continually lived for the past several years, but had rented to others, and in which he was living on the petition date, but which he soon thereafter left to take employment elsewhere? RULING: Debtor was permitted to claim the house as his homestead. He lived there on the petition date and he had not done anything on that date that was inconsistent with that homestead claim. His new job and plans to move were not controlling.

1998 #19

MENDELSOHN, ROBERT D. & SUSAN R., Case No. 98-40099, Chapter 7. ISSUE: Whether case should be dismissed for substantial abuse? RULING: Case was dismissed. Debtors' expenditures were excessive. By curbing unnecessary spending, Debtors could substantially repay creditors through a Chapter 13 plan. College expenses for adult children living at home were not reasonable where creditors remain unpaid. Children's contributions were not quantified, and other expenditures were not reasonable or necessary.

2006  #11

MEYER, JAMES D. & KARMEN L. (Meyer v. Credit Collections Bureau), March 31, 2006.  Case No. 01-30117, Adv. No. 05-3007, Chapter 13.  ISSUE: On a summary judgment motion, whether creditor violated the automatic stay by instituting a post-confirmation garnishment to collect a post-petition debt? RULING: The creditor did not violate the automatic stay when it obtained a judgment for its post-petition debt but it did violate the stay when it commenced the garnishment action since the garnishment affected wages, which were property of the bankruptcy estate.

2004 #13

MILLER, LOREN D. & JEAN A. (CorTrust Bank v. Miller).  June 4, 2004.  Case No. 04-40136, Adv. No. 04-4016, Chapter 7.  ISSUE: Whether default judgment should be vacated under Fed.R.Civ.P. 60(b)(1) for excusable neglect where Defendants misinterpreted Fed.R.Bankr.P. 9006(f) and thus miscalculated the answer deadline? RULING: Though a mistake of law generally does not constitute excusable neglect, the default judgment was vacated where no bad faith or prejudice to Plaintiff was indicated and where the delay in the proceeding was very short.

2005 #4

MILLER, LOREN D. & JEAN A. CorTrust Bank v. Miller). March 4, 2005.  Case No. 04-40136, Adv. No. 04-4016, Chapter 7.  ISSUE: Whether Debtors’ discharge should be denied or whether Plaintiff’s claim should be declared non dischargeable where Debtors were unable to account for all funds of a closely held corporation (which was in a separate Chapter 7) and for all funds deposited into their personal account shortly before filing? RULING: Debtor-husband’s discharge was denied under 11 U.S.C. § 727(a)(3) because he failed to keep and produce records related to his personal checking accounts and records related to expenses Debtors claimed they paid for the closely-held corporation. No relief was ordered against Debtor-wife. Plaintiff had not plead § 727(a)(3) or any non dischargeability claim against her. The facts did not support a denial of Debtor-wife’s discharge under § 727(a)(2)(A), the one subsection of    § 727(a) that was plead against her.

1991 #12

MINN-KOTA FARM AGENCY, INC., April 23, 1991. Case No. 90-10107, Chapter 11. ISSUE: Whether movant had met burden of establishing cause for dismissal of Chapter 11 case when an appeal of relief from stay and an adversary key to the debtor's reorganization were pending? RULING: No. The case was in its early stages in many respects and an appeal and a key adversary were pending. Consequently, movant needed to show that the debtor had no more than a "hopeless and unrealistic" prospect of rehabilitation. That showing was not made.

1992 #5

MINN-KOTA FARM AGENCY, INC.: March 27, 1992. Case No. 90-10107, Adversary No. 91-1001, Chapter 11. ISSUE: Whether debtor was entitled to turnover of rents collected by a creditor pursuant to an assignment of rents agreement that was separate from the mortgage debtor gave the creditor. RULING: Debtor was not entitled to a turnover of the rents because under the terms of the agreement, the creditor had a perfected interest in the rents upon debtor's pre-petition default.

APPEAL RECORD

August 5, 1992. MINN-KOTA FARM AGENCY, INC. Case No. 90-10107, Adv.    91-1001. Notice of appeal to District Court filed by debtor from Memorandum Decision re: Complaint for Turnover entered on 3-27-92. APPEAL STATUS: Referred to Judge Battey on 10-14-92. Dismissed. Order Dismissing case for lack of jurisdiction entered by Judge Battey on 12-7-92 (CIV. 92-1037).

2007 #10

MITCHELL, PAUL W. (Paul W. Mitchell v. Monica Iverson). April 30, 2007.  Case No. 05-50528, Adv. No. 06-5002, Chapter 7.  ISSUE: Whether Plaintiff-Debtor was entitled to summary judgment on a § 523(a) dischargeability action where Defendant-Creditor had obtained a judgment in state court based only on breach of contract? RULING: Summary judgment was entered for Plaintiff-Debtor. Where Defendant-Creditor had sought and obtained a default judgment against Debtor in state court that alleged only breach of contract, judicial estoppel precluded Defendant-Creditor from arguing in bankruptcy her late-scheduled claim against Debtor arose from fraud. The fact the default judgment had been obtained in violation of the automatic stay did not affect the application of judicial estoppel.
 

2007 #11

MITCHELL, PAUL W. (Paul W. Mitchell v. Anita Chittenden, et al.).    April 30, 2007.  Case No. 05-50528, Adv. No. 06-5006, Chapter 7.  ISSUE: Whether Defendants-Creditors were entitled to summary judgment on Plaintiff-Debtor's § 523(a)(3) action where they had obtained a pre-petition default judgment against Plaintiff-Debtor in Arizona? RULING: Summary judgment was denied. Under Arizona law, a default judgment, especially where the defendant makes no appearance in the action, is not entitled to preclusive effect. Therefore, Defendants-Creditors could not rely on the Arizona state court default judgment to establish in bankruptcy their late-filed claim against Plaintiff-Debtor arose from fraud and therefore was non dischargeable.
 

1989 #23

MOELLER, MARCUS & LEONA: October 13, 1989. Case No. 89-30022. ISSUE: Whether debtors, who have voluntarily dismissed their Chapter 11 case may shortly thereafter file for protection under Chapter 12. RULING: Filing for relief under Chapter 12 on the heels of a voluntary dismissal of their Chapter 11 case constitutes a de facto conversion from Chapter 11 to Chapter 12, which is not permissible.

APPEAL RECORD

October 27, 1989. MOELLER, MARCUS & LANA: Case No. 89-30022. Notice of Appeal to District Court filed by debtors from order granting Farm Home Administration's motion to dismiss entered October 17, 1989. APPEAL STATUS: Referred to Honorable Donald J. Porter 11-27-89. Affirmed. Order affirming Bankruptcy Court's decision entered by Judge Porter 2-14-90 (Civ. 89-3038).

2006  #9

MONTGOMERY, MONTY R. & SUSAN M., March 6, 2006.  Case No. 03-50416, Chapter 13.  ISSUE: Whether Debtors were entitled to modify their confirmed Chapter 13 plan over the objection of a creditor who had not timely filed a proof of claim and who wanted their claim now included in the modification? RULING: Debtors’ motion to modify their confirmed plan, which changed the treatment of a home mortgage claim, was granted. Since the objector had not timely filed a proof of claim, 11 U.S.C. § 1329(a) restricted Debtors’ and the creditor’s ability to now modify the plan to treat the claim. The unfiled claim, however, will not be discharged because it was not provided for by the plan. 11 U.S.C. § 1328(a)

2006  #12

MONTGOMERY, MONTY R. & SUSAN M., April 3, 2006, Case NO. 03-50416, Chapter 13.  ISSUE: On a motion for reconsideration, whether a general unsecured claim held by creditor who had notice of a case in time to file a proof of claim but who did not have notice of the case in time to participate in the confirmation process should be discharged upon completion of plan payments? RULING: Only debts "provided for" by a confirmed plan are discharged under 11 U.S.C. § 1328(a). For a claim to be "provided for" by a plan, the creditor’s claim must be recognized in the plan and the creditor must have had notice of the case in time to participate in the confirmation process. Since the creditor in this case was not served with the plan and did not receive notice of the case in time to file an objection to the plan, its claim cannot be deemed to have been provided for by the plan and will not be discharged.

1992 #4

MORRIS, MITCHELL E.: March 24, 1992. Case No.91-50242, Chapter 11. ISSUE: Whether a creditor was entitled to relief from the automatic stay where debtor failed to pay post-petition taxes but where debtor argued the property was necessary for an effective reorganization. RULING: The creditor was not entitled to relief for cause under § 362(d)(1) because debtor offered to pay post-petition taxes as adequate protection. The creditor was not entitled to relief under § 362(d)(2) because in the early stage of the case, debtor made a minimal showing that the property was necessary for reorganization.

1995 #13

MORRIS, MITCHELL E.: May 3, 19952. Case No. 92-30013, Adversary No.    94-3008, Chapter 7. ISSUE: Whether Debtor, as a general partner, was responsible for federal payroll taxes incurred on wages paid at a motel that the partnership tried to purchase? RULING: Debtor was responsible for the federal payroll taxes only on wages paid while the partnership had managerial control of the motel.

MORRISON, NICOLE M:  June 4, 2004. Case NO. 04-40185, Chapter 13.  ISSUE: Whether the debtor may make her regular monthly mortgage payments directly to the creditor while she is curing the arrearage through her plan where the creditor wanted the payments to be made through the trustee? RULING: Pursuant to § 1326(c) and relevant case law, the Court allowed Debtor to make her regular monthly mortgage payment directly to the creditor. Since the feasibility of her plan was marginal, however, the Court further ordered that should Debtor default on the direct payments, the creditor could file an affidavit of default and all subsequent payments would have to be made through the case trustee?

1990 #20

MORROW, JAMES & LAURA: October 25, 1990. Case No. 90-10073, Chapter 7. ISSUE: Whether costs may be awarded to the prevailing party on a contested matter? RULING: Pursuant to Local Bankr. R. 402, costs are not generally awarded to the prevailing party on contested matters in the bankruptcy courts of this District.

2004 #3

MURRAY, TAMARA L.:  January 21, 2004, Case No. 03-50393, Chapter 7.  ISSUE: Whether Debtor’s case should be dismissed for substantial abuse? RULING: Court ruled that case would be dismissed for substantial abuse unless Debtor voluntarily converted her case to Chapter 13. After pro ration of the family’s expenses based on the income each family member contributed, Debtor personally had just over $200 per month remaining with which she could fund a meaningful Chapter 13 plan. Social Security benefits that Debtor’s child and her non-filing husband’s child received were included in the family’s income analysis.

2002  #18

NEHLICH, LOREN J. & APRIL M:  August 12, 2002.  Case No. 02-10049, Chapter 7. ISSUE: (1)May a debtor claim an Individual Retirement Account ("IRA") exempt under S.D.C.L. § 43-45-16? (2) May a debtor claim a "Roth IRA" exempt under S.D.C.L. § 43-45-16? RULING:(1) A debtor may claim an Individual Retirement Account ("IRA") exempt under S.D.C.L. § 43-45-16. (2) A debtor may claim a "Roth IRA" exempt under S.D.C.L. § 43-45-16.

NELSON, DANIEL A. (Tidewater Finance Company v. Daniel A. Nelson)Plaintiff Decision.  June 30, 2008, Case No.07-40093, Adv. No. 07-4035, Chapter 7. Issue: Whether Plaintiff was entitled to summary judgment with respect to its complaint to determine dischargeability under 11 U.S.C.    § 523(a)(2)(A)?  Ruling: No. Plaintiff failed to point the Court to anything in the record to suggest Debtor-Defendant knew his statements were false at the times they were made. Moreover, while no defense to an insufficient showing is required, the only evidence in the record of what Debtor-Defendant knew or did not know at the times in question was that provided by Debtor-Defendant's affidavit, in which he denied knowing the statements were false at the times they were made. Thus, even if Plaintiff had pointed the Court to evidence in the record to suggest Debtor-Defendant knew the statements were false at the times they were made, a genuine issue of fact would have remained.
 

2008  #4

NELSON, DANIEL A. (Tidewater Finance Company v. Daniel A. Nelson)Defendant Decision.  June 30, 2008, Case No.07-40093, Adv. No. 07-4035, Chapter 7.  Issue: Whether Debtor-Defendant was entitled to summary judgment with respect to Plaintiff's complaint to determine dischargeability under 11 U.S.C. § 523(a)(2)(A)?  Ruling: Yes. The only evidence in the record of what Debtor-Defendant knew or did not know at the times he was alleged to have made the statements in question was that provided by Debtor-Defendant's affidavit, in which he denied knowing the statements were false at the times they were made. Plaintiff failed to advance specific facts to create a genuine issue of material fact regarding Debtor-Defendant's knowledge for trial. Specifically, Plaintiff did not point the Court to anything in the record to suggest, contrary to the declarations in his affidavit, Debtor-Defendant knew his statements were false at the times they were made.
 

1999 #9

NEUHARTH, LEROY EMIL,  March 19, 1999.  Case No. 97-30115, Adv. No.    98-3004, Chapter 7.  ISSUE: Whether the debtor's pre-petition assignment of a life insurance policy to a bank in lieu of further payment on a debt and in exchange for the release of other collateral, was valid on the petition date or otherwise subject to the Chapter 7 trustee's strong arm powers? RULING: The assignment was a true assignment that transferred essentially all ownership of the life insurance policy to the bank from the debtor. Under state law, the bank did not have to maintain an insurable interest for the assignment to remain valid. The debtor had no defenses to the validity of the assignment on the petition date that the trustee could raise under 11 U.S.C. § 558 and the trustee could not avoid it under § 544(a)(1) as a hypothetical judicial lien holder.

NEUHAUSER RANCH, INC.: September 7, 1989. Case No. 87-50123, Adversary No. 88-5005. ISSUE: Whether attorney fees as provided for in a contract may be recovered by the attorney in the prevailing party in an adversary proceeding. RULING: A contract which provided for the payment of the prevailing party's attorney's fees, costs and expenses is enforceable and The prevailing party may recover such amounts in an adversary proceeding.

1989 #24

NEUHAUSER RANCH, INC.: October 13, 1989. Case No.87-50123, Adversary No. 88-5005. ISSUE: Motion for terms against counsel for debtor. RULING: (1) Counsel's failure to determine whether damages claimed against creditor bank were well grounded in fact and warranted by law was sanctionable under Rule 9011. (2) Counsel's claims concerning the validity of creditor's bank's liens were not objectively the product of a reasonable inquiry, nor well grounded in fact or warranted by law, thus contravening Rule 9011.

1989 #24A

NEUHAUSER RANCH, INC.: October 19, 1989. Case No.87-50123, Adversary No. 88-5005. THIS IS A SUPPLEMENT TO DECISION 1989 #24 ABOVE. ISSUE: Whether terms should be imposed against debtor corporation as well as attorney for the debtor. RULING: Allocation of sanctions between attorney and client is usually warranted because an attorney presumably acts on behalf of his client and the client is accountable for the attorney's acts. Thus, debtor's participation in the pursuit of a frivolous claim against creditor is sanctionable.

NIELSEN, WAYNE A. & NINA C., January 26, 2000, Case No.  00-50015, Chapter 7.  ISSUE: Whether stay should be enforced to prevent further discovery in aid of execution by judgment creditor in state court where state court had already found Debtors in contempt for failure to comply with its orders? RULING: State court could continue to hear and enter any appropriate order regarding Debtors' alleged failure to comply with the state court's orders as long as the contempt action was criminal (punitive), not civil (forcing the contemnor to act), in nature. Stay remained in place regarding any further collection or discovery matters. Creditor could utilize the § 341 meeting and a Rule 2004 exam in the bankruptcy case to complete the discovery it had begun in state court.

2009    #1

NINAS, ROBERT R. & JANET M., January 20. 2009, Case No. 05-50342, Chapter 13.  Issue: Whether, on Debtors' motion, the Court's order granting in part and denying in part Debtors' motion to discharge judgments should be altered or amended? Ruling: The Court's order was amended only to better describe the nature of the judgment creditor's claim and to preserve Debtors' right to commence an appropriate adversary proceeding to determine whether that claim had been discharged. The Court concluded that issue and the related issue of whether the judgment creditor's liens had been voided were better resolved through an adversary proceeding, when neither the judgments nor the judgment liens were acknowledged, identified, or provided for in Debtors' chapter 13 plan, when Debtors' plan did not state what would happen to claims held by unsecured or undersecured creditors who did not timely file proofs of claim, and when neither the judgment creditor nor Debtors timely filed a proof for the claim.
 

2006   #13

OBERG, DEBORAH R., March 31, 2006, Case No. 05-40387, Chapter 13.  ISSUE: Following the conversion of a case from Chapter 7 to Chapter 13, whether the debtor’s attorney’s Chapter 7 fees may be paid as an administrative expense? RULING: Only the attorney’s Chapter 13 fees may be paid as an administrative expense. The attorney may file a proof of claim for any unpaid Chapter 7 fees.

OLETZKE, ROGER & DELORES: July 28, 2005.  Case No. 86-10254, Chapter 12.  ISSUE: (1) Whether a creditor was bound by the terms of the debtors’ confirmed plan, which treated the creditor’s secured claim as "wholly undersecured"? (2) Whether a creditor’s lien was extinguished by confirmation of the debtors’ plan? RULING: (1) Where the creditor received proper notice of the debtors’ plan and the confirmation hearing, and did not appeal the order confirming the debtors’ plan, the creditor is bound by the terms of the debtors’ confirmed plan. (2) Where the creditor participated in the debtors’ case by filing a proof of claim, the creditor’s claim was expressly dealt with and provided for by the debtors’ plan, and neither the debtors’ plan nor the Court’s order confirming the debtors’ plan preserved the creditor’s lien, the creditor’s lien was extinguished upon confirmation of the debtors’ plan.

2005  #11

ORTMAN, SHANE E. (Forrest C. Allred, Trustee v. Sioux Falls Federal Credit Union), April 15, 2005.  Case No. 04-10263, Adv. No. 04-1023, Chapter 7.  ISSUE: Whether a creditor, who had received more than $600 on a wage garnishment during the preference period, could utilize the exception provided by 11 U.S.C. § 547(c)(8), where the creditor paid over a small sum of the garnished funds to the debtor pre-petition to drop the sum retained below $600? RULING: The creditor could not use the preference exception provided by § 547(c)(8). The aggregate value of the garnished funds that the creditor received during the preference period exceeded $600. That the creditor voluntarily gave a small sum to the debtor, which dropped the total below $600, did not change the aggregate value transferred to the creditor.

2000 #2

OTTEN, DEBRA J. January 11, 2000.  Case No. 96-40513, Chapter 12.   Whether Applicant appraisal company was entitled to compensation and reimbursement of expenses pursuant to 11 U.S.C. § 330 and F.R.Bankr.P. 2016, where Debtor alleged that: (1) Applicant breached an agreement with Debtor’s attorney that a specific appraiser would testify on Debtor’s behalf at Debtor’s confirmation hearing; and (2) the appraiser who testified on Debtor’s behalf at Debtor’s confirmation hearing was not qualified to do so? RULING: Applicant appraisal company was awarded compensation and reimbursement of expenses pursuant to 11 U.S.C. § 330 and F.R.Bankr.P. 2016. Applicant was not obligated to have a particular appraiser testify at Debtor’s confirmation hearing. Neither Debtor’s Application for Employment of Appraiser nor the Court’s Order approving Debtor’s Application required Applicant to do so. Debtor would not be permitted to question the qualifications of the appraiser who testified on Debtor’s behalf at Debtor’s confirmation hearing. Debtor effectively represented in her Application for Employment of Appraiser that the appraiser was qualified. Debtor proffered the appraiser as an expert witness at Debtor’s confirmation hearing, and Debtor was not harmed by the appraiser’s testimony at Debtor’s confirmation hearing.

2000 # 11

OTTEN, DEBRA J.  March 28, 2000.  Case No. 96-40513, Chapter 12.  ISSUES: (1) Whether Applicant appraisal company may be reimbursed for attorneys fees and costs it incurred in preparing its application for compensation? (2) Whether Applicant appraisal company may be reimbursed for attorneys fees and costs it incurred in defending its application for compensation? RULINGS: (1) Applicant appraisal company was entitled to be reimbursed for attorneys fees and costs it incurred in preparing its application for compensation, where the debtor failed to prepare the necessary application. (2) Applicant appraisal company was entitled to be reimbursed for attorneys fees and costs it incurred in defending its application for compensation, where the debtor's objections to its application were not well-taken.

2006  #07

OTTESON, JACQUELINE L.:  February 1, 2006, Case No. 05-30005, Chapter 13.  ISSUE: If this case converted from Chapter 7 to Chapter 13, which fees of the debtor's counsel could be paid from the estate as an administrative expense? RULING: Under 11 U.S.C. § 330(a) and Lamie v. United States Trustee, 124 S.Ct. 1023 (2004), fees for a Chapter 7 debtor’s counsel cannot be paid from the bankruptcy estate. Instead, the attorney should receive his fees in full for his pre-petition work before the petition is filed, and the debtor is responsible to pay any fees for post-petition services. Since this case converted from a Chapter 7 to a Chapter 13, the unpaid fees for the debtor’s counsel’s Chapter 7 services became an unsecured claim against the Chapter 13 bankruptcy estate that could be paid to the extent funds were available to pay unsecured claims. Only the attorney’s fees for his Chapter 13 services and related expenses could be paid from the estate as a higher-priority administrative expense.

2001 #33

OUDERKIRK, PETER J. & TRACY A., August 13, 2001, Case No. 01-40240, Chapter 7.  ISSUE: Whether certain pre-petition judgments could be discharged under S.D.C.L. § 15-16-20? RULING: Some of the judgments listed by Debtors in their motion to discharge judgments were actually judgments against other entities, not Debtors. Those debts were not discharged in Debtors’ bankruptcy and thus, those judgments could not be discharged on the state court’s records. The two judgments that were against Debtors were discharged. 

2000 #14

OUTKA, BERT & ROSALIE J.: April 13, 2000.  Bankr. No. 97-50491, Chapter 12.  ISSUE: Whether compensation sought by the debtors' counsel for post-petition services was reasonable? RULING: Compensation was reduced. Fees for preparing first plan, which failed to reflect the best interest of creditors test under § 1225(a)(4), and related costs were not allowed.

1990 #22

OVERBY, RICHARD & CAROL: October 14, 1990. Case No. 89-10129, Chapter 12. ISSUE: (1) Whether non-certified legal assistant may be compensated under 11 U.S.C. § 330(a) as a para-professional for legal services performed for the debtor? RULING: (1) No. Only certified legal assistants may be compensated under § 330(a) as a para-professional for legal services performed. ISSUE: (2) Whether hourly rate of $110.00 for legal services performed for the debtor was reasonable as required by 11 U.S.C. § 330(a)? RULING: (2) In consideration of the legal complexity of this case, the results obtained, the attorney's experience, reputation, and ability, the reasonable hourly rate in this case is $90.00.

2002 #13

PARKINSON, MARVIN E.W. (Keller v. Parkinson):  May 24, 2002.  Case No. 01-40938, Adv. No. 01-4035.  Chapter 7.  ISSUE: Whether former spouse’s claim against Debtor was non dischargeable under § 523(a)(15)? RULING: The claim was not dischargeable under either §§ 523(a)(15)(A) or (B). Under subsection (A), Debtor had not shown that he was unable to pay the debt, primarily because he had not maximized his income earning potential. Under subsection (B), Debtor had not shown that the benefit in his receiving a discharge would outweigh any detrimental consequences to his former spouse, especially where her income earning potential was lower.

1989 #33

PARMELY FARMS, H & M. December 12, 1989. Case No. 384-00055, Chapter 11. ISSUE: (1) Whether FmHA is estopped from enforcing its § 1111(B) election. (2) Whether the sale provisions in debtor's plan is sufficiently specific to preclude FmHA's § 1111(b) election. RULING: (1) Debtor's failure to properly incorporate FmHA's § 1111(b) election in its plan precludes it from attempting to estop FmHA's § 1111(b)(2) treatment. (2) FmHA is not precluded from making its § 1111(b) election despite     § 1111(b)(1)(B)(ii), where the sale provision in debtor's plan does not permit FmHA, an undersecured recourse creditor, to "credit bid" its claim.

APPEAL RECORD

February 8, 1990. PARMELY FARMS, H & M., Case No. 384-00055. Notice of Appeal filed by James Carlon from Order Denying Debtor's Motion to Enforce Provisions of their Chapter 11 Plan dated December 13, 1989. APPEAL STATUS: Referred to Hon. Donald J. Porter 3-28-90. AFFIRMED. Order affirming Bankruptcy Court entered by Judge Porter 8-9-90 (Civ. No.     90-3009).

1995 #44

PATTON, MELVIN L. AND SYLVIA P.: December 20, 1995, Case No. 95-40169, Chapter 13. ISSUE: Whether Debtors' income from Social Security was included in gross income when determining whether they were farmers as defined by § 101(20) and whether their case could be converted from a Chapter 13 to a Chapter 7 under § 1307(e)? RULING: Debtors' Social Security income was included in gross income when determining whether Debtors were farmers as defined by § 101(20). They did not qualify as farmers and their Chapter 13 case was converted to a Chapter 7.

2001 #7

PEARSALL, RICHARD J. & ARLA R., January 10, 2001, Case No. 00-30080, Chapter 7.  ISSUE: Whether the debtors' attorney's fees of $1,300 were reasonable under § 329(b)? RULING: Fees of $800 were deemed reasonable. The excess was ordered to be returned to the debtors as part of their available exemptions. The facts of the case did not warrant higher than usual fees. Though post-petition work regarding the dischargeability of a fraud-related debt was expected, those post-petition services could not be paid by the debtors pre-petition without running afoul of Snyder v. Dewoskin (In re Mahendra), 131 F.3d 750 (8th Cir. 1997). Attorney could seek compensation for post-petition work from debtors' post-petition, non bankruptcy estate assets.

1989 #3

PEARSON, LELAND AND GLENNIS: February 16, 1989, Case No. 87-30047, Chapter 12. ISSUE: Post-confirmation modification of the plan. RULING: The order confirming a Chapter 12 plan has res judicata effect as to matters which could have been raised prior to or at the time of confirmation. In re Cooper, 94 B.R. 550, (Bkrtcy. S.D. Ill, 1989); In re Olsen, 861 F.2d 188 8th Cir. 1988).

2009  #4

PERRY, MARYBETH, February 13, 2009, Case No. 06-50237, Chapter 7.  ISSUE: Whether a claim for unpaid child support was property of the estate within the meaning of 11 U.S.C. § 541 and was thus subject to turnover pursuant to 11 U.S.C. § 542?  RULING: No. Under South Dakota law, Debtor held the child support payments as trustee for her children. Debtor did not have an equitable interest in the child support arrearage. Thus, the arrearage was not property of the estate and was not subject to turnover.
 

2000 #8

PESICKA, BETTY ANN. E. - OVERRULED:  February 18, 2000.  Case No.      98-50348, Chapter 7. ISSUE: Whether Debtor could exempt under S.D.C.L.   § 3-12-115 an interest in her former husband's state retirement account that she had received in the divorce? RULING: Debtor's interest in the retirement account was not protected by § 3-12-115. The language of the statute covered only benefits to employees covered by the state retirement system and moneys of the retirement system. Her divorce-related interest did not qualify as either. 

2001 #17

PETERSON, JEFFREY L. & ROXANN L.:  April 25, 2001.  Case No. 00-50410, Chapter 13.   ISSUE: To what compensation is Debtors’ attorney entitled? RULING: Of the $3,576.37 in compensation for services, sales tax, and reimbursement of expenses sought by Debtors’ counsel, the Court awarded a total of $2,824.62. Deductions were made for several non professional services, one unnecessary service, and one instance of excessive time spent on a particular service. A general deduction of $300 was also made in light of the non complex nature of the case.

2004  #18

PETERSON, SCOTT A. (Peterson v. Dullerud):  July 1, 2004.  Case No.       02-10036, Adv. No. 02-10036, Chapter 7. ISSUE: Whether Debtor was entitled to have discharged under § 523(a)(3) certain judgments that he failed to timely schedule in his bankruptcy case? RULING: Debtor was entitled to have discharged the unscheduled debts because the requirements of § 523(a)(3) were met. However, only Debtor’s personal liability to the unscheduled creditors was discharged. If the unscheduled creditors held a valid lien on non exempt property, the creditors retained their liens since a discharge under § 523(a)(3) does not affect in rem rights.

2005  #42

2000 #33

PIPITONE, EVAN D:   September 8, 2000.  Case No. 00-50113, Adv. No.     00-5009, Chapter 7.   ISSUE: Whether Plaintiff's complaint under § 523(a)(15) was filed timely where the § 341 meeting was rescheduled due to a blizzard? RULING: No, the complaint was not timely. As provided by Fed.R.Bankr.P. 4007(c), the date on which the first meeting of creditors is set, not when the meeting is actually held, governs the deadline for filing a non dischargeability complaint under § 523(a)(15).

2005 #30

APPEAL RECORD

1989 #12

POEPPEL, HERMAN: May 10, 1989, Case No. 89-30035, Chapter 12. ISSUE: Whether the Bankruptcy Court should voluntarily abstain under 28 U.S.C. §1334(c)(1) from hearing a lender liability claim brought by the debtor against a creditor where the claim was pending in state court over two years prior to the debtor's filing bankruptcy. RULING: The Court held it would abstain to allow the state court to try the lender liability claims but it would not abstain or lift the stay regarding the lender's state court complaint to foreclose.

2007  #7

PORTER,JAMES WRIGHT (Nathan Johnson, et al. v. James Wright Porter):  September 28, 2007.  Case No. 06-10119, Adv. No. 07-1004, Chapter 7.  ISSUE: Whether Plaintiffs were entitled to summary judgment with respect to their complaint to determine dischargeability under 11 U.S.C. § 523(a)(6)? RULING: Plaintiffs were entitled to summary judgment. Debtor-Defendant was collaterally estopped from relitigating the issue of whether his commencing a state court action against Plaintiffs – in which the jury returned a verdict for Plaintiffs on Plaintiffs’ counterclaim for barratry – fell within the parameters of 11 U.S.C. § 523(a)(6), which excepts from discharge any debt for willful and malicious injury.
 

2006  #19

POWELL, SUSAN M.:  May 26, 2006, Case No. 05-41698, Chapter 7.  ISSUE: Whether S.D.C.L. § 54-8A-4 provides a basis for objecting to a debtor’s claim of exemption in an annuity pursuant to S.D.C.L. § 58-12-6? RULING: The trustee did not establish S.D.C.L. § 54-8A-4 provides a basis for denying the debtor’s claim of exemption. Her objection was therefore overruled.

2004 # 20

PRAVECEK, DENNIE L. & MANDEE R.:  July 21, 2004, Case No. 04-40643, Chapter 7.  ISSUE: Whether hearing on creditor’s relief from stay and abandonment motion should be delayed so that it could be resolved with the Chapter 7 debtors' complaint to determine whether creditor was cross-collateralized on certain vehicles? RULING: Debtors' motion to delay the hearing on the creditor’s relief from stay and abandonment motion was denied. Debtors had not declared either subject vehicle exempt and the trustee had not resisted the creditor’s motion. Accordingly, Debtors' standing to challenge the creditor’s relief from stay and abandonment motion was lacking.

1987 #1

PRESZLER, RALPH GERALD AND ELIZABETH MARCELLA PRESZLER: December 22, 1987, Case No. 182-00124, Chapter 11. ISSUE: 11 U.S.C., Section 503 - Determination of an administrative claim - distinction of post-petition and post-confirmation. RULING: Motion denied. Court ruled remedy lies within the state court jurisdiction.

2003  #18

PURDY, MICHAEL D. & JOELLEN S.:  September 4, 2003, Case NO. 03-40883, Chapter 7.  ISSUE: Whether mortgage company was entitled to relief from the automatic stay regarding its mortgage on Debtors' home where an unsecured creditor objected to the motion based on the alleged fraudulent nature of its claim against Debtors? RULING: The mortgage company's relief from stay motion was granted because there was no equity in the property for the bankruptcy estate and because granting the relief would not impact the objecting creditor's claim in any regard.

1990 #22

QUALE, SHIRLEY ANN: October 14, 1990. Case No.89-10185, Chapter 12. ISSUE: (1) Whether non-certified legal assistant may be compensated under 11 U.S.C. § 330(a) as a para-professional for legal services performed for the debtor? RULING: (1) No. Only certified legal assistants may be compensated under § 330(a) as a para-professional for legal services performed. ISSUE: (2) Whether hourly rate of $110.00 for legal services performed for the debtor was reasonable as required by 11 U.S.C. § 330(a)? RULING: (2) In consideration of the legal complexity of this case, the results obtained, the attorney's experience, reputation, and ability, the reasonable hourly rate in this case is $90.00.

1989 #8

RAPP, LELAND JOHN AND MARI MARGARET RAPP: April 10, 1989 Case No. 87-10354, Adversary No. 88-1031. ISSUE: Whether a bank received a preference when it agreed with the debtor prior to bankruptcy to receive the debtor's pickup and $2,000.00 in exchange for debt forgiveness on a note secured by the pickup and an unsecured note. RULING: Preference was found for the value of the pickup over the amount due on the secured note - Section 547.

1988 #3

RAUSCH, LEROY JOHN AND PATRICIA EVELYN RAUSCH: February 5, l988: Case No. 87-30100, Chapter 12. ISSUE: 11 U.S.C., Section 1205. ISSUE: Relief from automatic stay/adequate protection in the form of interest payments - re: Ahler's period. In re Ahlers, 794 F.2d 388 (8th Cir. 1986). RULING: In re Rennich, 70 B.R. 69 (Bkrtcy. D.S.D. 1987); U.S. Association of Texas v. Timbers of Inwood Forest Associates, Ltd., (Slip Op. No. 86-1602, decided 1-20-88). Motions denied.

1991 #19

REED, DONALD S. AND SHARON M.: August 7, 1991. Case No. 87-10312,Chapter 13.  ISSUE: Whether dismissal or conversion of Chapter 13 case was in best interest of the estate and creditors? RULING: Insufficient facts were presented to the Court to establish the best interest of the estate and creditors. The matter was continued until a date certain by which time the needed information should be available.

2001 #9

REEVES, ARTHUR DEAN & EMMA LU, January 23, 2001.  Case No. 99-30008.  ISSUE: Whether fees for Debtors' counsel should be denied or reduced due to the attorney's failure to disclose a potential conflict of interest? RULING: The conflict of interest became apparent post-petition. Debtors' counsel should have disclosed it in a supplemental to the earlier application to employ and his affidavit as the professional to be employed. No sanction was imposed for this first time error.

2001  #23

2001 #10

REEVES, THOMAS ZANE.   January 23, 2001.  Case No. 99-30061.  ISSUE: Whether fees for Debtor's attorney should be reduced or denied due to the attorney's failure to disclose a potential conflict of interest? RULING: Debtor's counsel knew he was concurrently representing a creditor of Debtor's on the petition date, but failed to timely disclose the potentially disqualify conflict under 11 U.S.C. § 327(c). Counsel's fees were denied except for certain pre-petition, non bankruptcy services and certain post-petition, bankruptcy services that were specifically authorized by the Court.

1990 #3

REINBOLD, WILFRED: February 5, 1990. Case No. 87-10311, Chapter 12. ISSUE: Whether debtor's actions (sale of mortgaged property and hiding and substituting collateral) constituted fraud under § 1208(d). RULING: Debtor committed fraud by (1) selling mortgaged property, (2) hiding certain collateral, and (3) substituting collateral with older, less valuable machinery. Other evidence of fraud included sham sale/lease back agreements and tampering with serial numbers. Motion for relief from stay and to convert to Chapter 7 granted.

APPEAL RECORD:

February 12, 1990. REINBOLD, WILFRED. Case No.87-10311. Notice of appeal filed by debtor from order entered February 5, 1990 converting debtor from a Chapter 12 to a Chapter 7 and granting relief from the automatic stay to Dewey County Bank. Order withdrawing appeal signed by Judge Hoyt 2-27-90. Motion to Reinstate Appeal filed by debtor 3-7-90. Order Reinstating Appeal entered 5-9-90.

APPEAL STATUS:

Referred to Hon. Donald J. Porter 7-10-90. Affirmed. Order entered by Judge Porter 12-18-90 affirming Bankruptcy Court's 2-5-90 order converting debtor's Chapter 12 case to a Chapter 7 CIV. 90-1029).

January 9, 1991. Notice of appeal filed by Debtor Wilfred Reinbold appealing above to 8th Circuit Court of Appeals. APPEAL STATUS: Stay pending appeal denied by Judge Porter 4-11-91. AFFIRMED.   District Court decision affirmed by 8th Circuit Court of appeals on 11-12-91.

1991 #11

REINBOLD, WILFRED. April 15, 1991. Case No. 88-30038, Chapter 7. ISSUE: Whether Chapter 7 Trustee's proposed private sale of certain personal property should be approved over objection of the debtor that property was not appropriately appraised? RULING: Court sustained objection to proposed private sale of certain personal property by Chapter 7 Trustee where only evidence of the property's value was by the potential buyer and where some of the property was sufficiently unique such that Trustee could not readily ascertain the value himself.

1991 #18

REINBOLD, WILFRED. July 19, 1991. Case No.87-10311, Chapter 7. ISSUE: Whether the debtor properly invoked his Fifth Amendment privilege against self-incrimination in response to an order for 2004 examination and a request for production of documents? RULING: No, the debtor did not properly invoke his privilege because he made a blanket assertion against answering any question and producing any document and thus he failed to establish that any such communication would be compelled, testimonial, and incriminating.

APPEAL RECORD: July 30, 1991. REINBOLD, WILFRED. Case No. 10311. Notice of appeal filed by debtor from Memorandum Decision Granting Trustee's Motions for Order Compelling Discovery dated July 19, 1991. APPEAL STATUS: Dismissed by District Court 1-5-93.

1988 #13

RESEL, DALE ARTHUR: May 16, l988, Case No. 386-00077, Chapter 11. ISSUE: Enforcement of a stipulation, or in the alternative, for the award of administrative expense status. RULING: Rule 9019 - Notice for approval issue - In re Bramham, 38 B.R. 459, 465 (Bkrtcy. D. Nev. 1984) (citing in Re Lloyd, Carr & Co., 617 F2d 882 (1st Cir. 1980)); In re Bell and Beckwith, 50 B.R. 422 (Bkrtcy. N.D. Ohio 1985)(citing In re Flight Transp. Corp. Securities Litigation, 730 F2d 1128 (8th Cir. 1984)). Notice not property given - Court cannot enforce the terms of the memorandum appended to the motion. ISSUE: Administrative expense claim - are all parties in interest entitled to notice? RULING: In re Dakota Industries, Inc., 31 B.R. 23 (Bkrtcy D.S.D. 1983);1 Norton, Bankruptcy Law & Practice, Section 12.04 (1981) - all parties in interest should have been given notice of an administrative expense request.

1995 #32

RICE, TOMMY O. AND DIANE ELLEN: August 14, 1995. Case No. 95-40057, Chapter 7. ISSUE: To what fees are the debtors' counsel entitled when a case is converted from Chapter 13 to Chapter 7? RULING: The debtor's counsel will be awarded only for services that benefited the estate. Pre-conversion services that unnecessarily prolonged the Chapter 13 will be denied. Compensation for services related to a dischargeability action are the debtors' personal responsibility, not the estate's. Post-conversion, the debtor's attorney may be compensated for attending the Chapter 7 § 341 meeting.

1995 #42

RICE, TOMMY O. AND DIANE ELLEN: December 19, 1995. Case No. 95-40057, Chapter 7. ISSUE: Whether Debtors' counsel was entitled to additional fees from the estate for services rendered after the case was converted to a Chapter 7? RULING: The attorney was not entitled to additional fees from the estate for services rendered after the case was converted to a Chapter 7. The services related to a sale of real property by the trustee where the attorney found a potential buyer. The attorney was not employed by the estate, he was not disinterested and so could not be employed retroactively, and some of his gratuitous services should have been performed by the trustee.

2007 #5

2000 #21

RIEGER, KANDIS K.  June 8, 2000, Case No. 99-30043, Chapter 7.  ISSUE: Whether Debtor's motion to dismiss her case should be granted where the discharge already has been entered? RULING: Debtor's motion to dismiss her case was denied. She already had received a discharge of debts. The discharge could not be revoked; Debtor would still be time-barred for several years from obtaining another Chapter 7 discharge. The fact that one debt in particular had been declared as dischargeable did not constitute cause for dismissal.

1995 #17

RKF TRUCK LINES LIMITED: June 7, 1995. Case No. 92-40226, Chapter 11. ISSUE: Whether the case should be dismissed where the debtor was no longer actively engaged in business and where the continuation of the case and related adversary proceedings would not likely recover any assets for unsecured creditors? RULING: The case was converted to a Chapter 7 proceeding so that a trustee could assess whether the case and/or adversary proceedings should continue. The case was not dismissed because the Court wanted to retain jurisdiction over the adversary defendants until the Chapter 7 trustee completed his review.

1993 #11

ROBERTS, RANDALL R.: October 27, 1993. Case No. 93-50083, Adversary No. 93-5010, Chapter 7. ISSUE: How are preference payments of less than $600.00 excluded from turnover under § 547(c)(7)? RULING: If a debtor with primarily consumer debts makes preferential payments to a single creditor within the preference period and if the preferential payments total less than $600.00, then the preferential payments are excluded from turnover pursuant to § 547(c)(7). If the aggregate preferential payments to a single creditor are over $600.00, the entire amount is subject to turnover, not just the amount over $600.00.

2005 #1

ROBINSON, GREGORY ANTONIO AND MELINDA ROBINSON (Robinson v. Fairbanks Capital Corp.):  January 27, 2005.  Case No. 04-51154, Adv. No. 04-4045, Chapter 13. ISSUE: Whether, pursuant to 11 U.S.C. § 1322(e), a chapter 13 debtor must pay "interest on interest" to cure a default under a mortgage and promissory note? RULING:  An agreement to pay "interest on interest" is permissible under South Dakota law. If the mortgage and promissory note include such an agreement, the debtor must therefore pay "interest on interest" to cure the default.

2005  #9

ROBINSON, GREGORY A. & MELINDA:  April 4, 2005.  Case No. 04-40674, Chapter 13.  ISSUE: Whether under 11 U.S.C. Section 1322(b)(2) the debtors in their plan may modify the mortgage on their residence where the mortgage also contained an assignment of rents clause? RULING: Under South Dakota law, the entitlement to rents runs with possession of the real property. Rents are not presumed to be given as collateral under a real estate mortgage unless specifically stated. Since this mortgage specifically included rents as additional collateral, the mortgage could be modified by the debtors under their proposed plan.

2004  #27

ROGERS, DUANE D.:  August 30, 2004.  Case No. 99-10071, Chapter 12.  ISSUE: Whether Debtor’s motion to incur debt should be granted where creditor objected because it had not been paid? RULING: Debtor’s motion to incur debt was approved because the purpose of obtaining the credit was to finish making plan payments to unsecured creditors. The objecting creditor, however, was not going to receive any of the borrowed funds because it had not timely filed a proof of claim. The objecting creditor’s claim also would not be discharged because the claim "was not provided for by the plan" as required for discharge under 11 U.S.C.      § 1228(a).

2004 # 5

ROSENOW, LINDA L.:  February 9, 2004.  Case No. 99-50365, Chapter 7.  ISSUE: Whether Debtor’s attorney was entitled to fees from the Chapter 7 bankruptcy estate for services rendered after the case converted from Chapter 13? RULING: Under the Supreme Court’s recent ruling in Lamie v. United State Trustee, 540 U.S. 526,(Jan. 26, 2004), a Chapter 7 debtor’s attorney may not be paid from bankruptcy estate funds. The Court held that this ruling will be applied to all services rendered by a Chapter 7 debtor’s attorney from the date of the decision forward. Since this debtor’s attorney Chapter 7 services were rendered before the Lamie decision, the Court, following its earlier decisions, allowed Debtor’s attorney to be compensated from the bankruptcy estate for basic Chapter 7 services, which include analyzing a debtor’s financial condition, rendering advice and assistance to a debtor in determining whether to file a petition in bankruptcy; preparing the petition, the schedule of assets and liabilities, and the statement of financial affairs; and representing the debtor at the § 341 meeting of creditors.

1995 #24

ROSE RANCH OPERATING PARTNERSHIP: July 21, 1995.  Case No. 90-30016, Chapter 12. ISSUES: Whether Debtors owed disposable income? RULING: Court determined Debtors owed $23,093.01 in disposable income.

1995 #25

ROSE RANCH OPERATING PARTNERSHIP: July 21, 1995.  Case No. 90-30016, Chapter 12. ISSUES: Whether Debtors' counsel was entitled to final compensation and reimbursement from the estate of $55,042.09? RULING: Debtors' counsel was allowed $45,958.87 in compensation and reimbursement from the estate. Deductions were made for non professional services performed by the applicant attorney and his paralegal. Objections to compensation for services related to Debtors' liquidation analysis were denied. The applicant attorney agreed to meet several other objections. The Court did not find that the total fees sought were excessive because the attorney kept accurate records, non professional services had been deducted, the reorganization was successful, and no party in interest complained that litigation was unnecessary during the course of the case.

1996 #14

ROWLEY, LEONARD A. & BEVERLY A.: July 29, 1996.  Case No. 87-40157, Chapter 12. ISSUE: What amount, if any, of disposable income did Debtors owe before they could receive a discharge under § 1228(a)? RULING: Debtors owe $183,231.23 in disposable income.

RUFF, CLAIRE S.:  August 16, 2004.  Case No. 04-40353, Chapter 7.  ISSUE: Whether the United States Trustee was entitled to summary judgment on his motion to dismiss Debtor’s chapter 7 case for substantial abuse? RULING: The United States Trustee was entitled to summary judgment. According to Debtor’s calculations, Debtor had monthly disposable income of $189.48. Debtor, however, failed to take into account the Court’s previous rulings that a debtor may not divert funds into a 401K account that would otherwise be available to pay creditors. Adding Debtor’s $185.00 401K loan repayment to Debtor’s admitted monthly disposable income gave Debtor monthly disposable income of $374.48. This would permit Debtor to pay his unsecured creditors $11,383.15 over a three-year period or $19,471.92 over a five-year period (after allowance was made for estimated attorney fees and the chapter 13 trustee’s fee). Either figure represented a significant portion of Debtor’s unsecured debt of $40,363.10. Thus, the Court concluded Debtor had the substantial ability to pay his creditors.

RUHNOW, DOUGLAS GORDON. July 10, 1989: Case No. 85-50195, Adversary     88-5022, Chapter 7. ISSUE: Whether an award of attorney's fees is appropriate under §523(d) after determining dischargeability of a non-consumer debt? RULING: The Court ruled the award of attorney's fees is appropriate. The debt here was intended to satisfy previous creditors of the debtor's defunct business. §523(d) award of fees is therefore inappropriate.

2002 #23

SAYLES, TODD H. & JILL R. November 5, 2002.  Case No. 01-41423, Chapter 11. ISSUE: Whether Debtors were farmers as defined by § 101(20) so as to preclude conversion of their Chapter 11 case to a Chapter 7 case pursuant to § 1112(c)? RULING: Debtors were not farmers as defined by § 101(20) so their Chapter 11 case was converted to Chapter 7. They did not meet the requirement of § 101(20) that 80% of their gross income in the year preceding their petition come from their farm.

1989 #15

SCHAFER, NORMAN L. AND CINDY: June 29, 1989: Case. No. 88-10208, Chapter 7. ISSUE: Whether tardy (6 days) objections to a proposed sale waives such objection? RULING: The Court found: (1) Procedural defects of no consequence were evident on the part of both parties and the Court will not default a party for failing to strictly comply with the technicalities of the Code, Rules and Local Rules. (2) There was no equity in the property (a steel bin), which could be sold closer to harvest time at a higher price. Thus the property should be abandoned to the secured party.

2005  #41

SCHAMBER, JACQUELINE FANCHON (Benjamin Schamber v. Jacqueline Fanchon Schamber).  December 16, 2005.  Case No. 05-40658, Adv. No. 05-4069, Chapter 7. ISSUE: Whether certain joint marital debts that Debtor was ordered to pay in the parties’ earlier divorce were dischargeable under either § 523(a)(15)(A) or § 523(a)(15)(B)? RULING: The debts were non dischargeable. Debtor was sitting on $13,000 of equity in her home and could use those funds to pay the subject debts, especially where the funds she used to purchase the house were originally intended by the parties to be used to pay the marital debts. That the house had been declared exempt as Debtor’s homestead did not alter the application of   § 523(a)(15)(A). Consequently, Debtor did not show under § 523(a)(15)(A) that she had an inability to pay the subject debts. The record also showed that the benefit that Debtor would receive if the debts were discharged was no greater than the detriment Plaintiff would suffer if the debts were discharged. Consequently, Debtor was also not entitled to relief under § 523(a)(15)(B).

2001 #27

SCHENKEL, CONSTANCE, June 26, 2001, Case No. 00-40956, Chapter 7.  ISSUE: Whether contract for deed holder, on real property that Chapter 7 debtor had not claimed exempt, could get discharged two mechanics’ liens that had been placed on the property subsequent to the contract? RULING: The contract for deed holder’s motion was denied. First, only Debtor’s personal liability to the mechanics’ lien holders was discharged; the general discharge order did not affect the validity of the pre-petition liens. Second, any determination of the validity, priority, or extent of the liens could only be determined through an adversary proceeding. Finally, the issues raised were more appropriately brought before a state court since no bankruptcy laws were at issue and the real property in question was not being administered by the Chapter 7 trustee.

1989 #4

SCHINDLER, DONALD & BONNIE, Case No.88-30037,Chapter 12.

SCHINDLER, GARY & KATHLEEN, Case No.88-30036,Chapter 12.

LEMMON, WARD AND NORMA, Case No. 88-10078, Chapter 12.

LOWER BRULE CONSTRUCTION, Case No. 87-30079, Chapter 11.

HANSON, EARL AND RUBY, Case No. 386-00136, Chapter 12.

ASSMAN, HAROLD AND JIM, Case No. 87-30147, Chapter 12.

March 8, 1989,

ISSUE: Court approval of professional compensation from estate funds. RULING: Travel Time - Professionals should be compensated at their full reasonable hourly rate of necessary travel hours, unless the travel fees become too large a percentage of the total fees applied for, exclusive of expenses and sales tax. (Because the geographic locations of the court points does not always coincide with the attorney's residence and because of the limited number of attorneys in the District who practice bankruptcy law, the debtor's ability to hire qualified counsel would be unduly chilled if travel was not fully compensable.

Mileage Expense - Section 330(b)(2) allows a professional reimbursement from the estate for "actual, necessary expenses". The Court allowed a mileage expense of 24 cents per mile, regardless of the economy of the auto driven. (This is the standard mileage rate the I.R.S. presently allows taxpayers for autos used in business).

Paraprofessional Billing - If paralegal work is to be compensable, the qualifications of the assistant should be established to justify the charge.

Adequate Itemization - B.R. 2016. Problem of inadequately itemized applications is not limited to travel related fees and expenses- In re Pothoven, 84 B.R. 579, 584 (1988), citing In re Pettibone Corp., 74 B.R. 293 (Bkrtcy. N.D. Ill. 1987; In re S.T.N. Enterprises, Inc., 70 B.R. 823 (Bkrtcy. D. Vt. 1987); In re Doyle-Lunstra Sales Corp., 19 B.R. 1003, 1005 (D. S.D. 1982).

1989 #4

SCHINDLER, GARY & KATHLEEN, Case No.88-30036,Chapter 12.

SCHINDLER, DONALD & BONNIE, Case No.88-30037,Chapter 12.

LEMMON, WARD AND NORMA, Case No. 88-10078, Chapter 12.

LOWER BRULE CONSTRUCTION, Case No. 87-30079, Chapter 11.

HANSON, EARL AND RUBY, Case No. 386-00136, Chapter 12.

ASSMAN, HAROLD AND JIM, Case No. 87-30147, Chapter 12.

March 8, 1989,

ISSUE: Court approval of professional compensation from estate funds. RULING: Travel Time - Professionals should be compensated at their full reasonable hourly rate of necessary travel hours, unless the travel fees become too large a percentage of the total fees applied for, exclusive of expenses and sales tax. (Because the geographic locations of the court points does not always coincide with the attorney's residence and because of the limited number of attorneys in the District who practice bankruptcy law, the debtor's ability to hire qualified counsel would be unduly chilled if travel was not fully compensable.

Mileage Expense - Section 330(b)(2) allows a professional reimbursement from the estate for "actual, necessary expenses". The Court allowed a mileage expense of 24 cents per mile, regardless of the economy of the auto driven. (This is the standard mileage rate the I.R.S. presently allows taxpayers for autos used in business).

Paraprofessional Billing - If paralegal work is to be compensable, the qualifications of the assistant should be established to justify the charge.

Adequate Itemization - B.R. 2016. Problem of inadequately itemized applications is not limited to travel related fees and expenses- In re Pothoven, 84 B.R. 579, 584 (1988), citing In re Pettibone Corp., 74 B.R. 293 (Bkrtcy. N.D. Ill. 1987; In re S.T.N. Enterprises, Inc., 70 B.R. 823 (Bkrtcy. D. Vt. 1987); In re Doyle-Lunstra Sales Corp., 19 B.R. 1003, 1005 (D. S.D. 1982).

1991 #14

SCHMIDT, DONALD E. AND HELEN M. June 11, 1991. Case No. 91-40183, Chapter 12. ISSUE: Whether Chapter 12 Debtors had completed all plan payments, including payments of disposable income to unsecured claim holders, and thus were entitled to discharge? RULING: Debtors failed to show that there was no disposable income available for unsecured creditors. Annual reports, as amended by Debtors at the hearing, indicated as much as $92,000.00 may be available. Insufficient evidence was presented on Debtors' borrowing ability and there was no clear evidence presented on the Debtors' financial needs for the coming year. Finally, Debtors failed to justify expansion of their farming operation.

1997 #20

SCHMIDT, MARJORIE ALVINA. August 1, 1997. Case No. 97-30009, Chapter 7. ISSUE: Whether Debtor could claim additional personal property exemption as either a head of a family or a single person under S.D.C.L. § 43-45-4? RULING: Debtor was not a single person because she was married on the petition date. Further, Debtor was not a head of a family because she did not have any dependents. Accordingly, Debtor could not declare any additional personal property exempt under S.D.C.L. § 43-45-4.

1997 #21

SCHMIDT, MARJORIE ALVINA. August 6, 1997. Case No. 97-30009, Adversary No. 3001. Chapter 7. ISSUE: Whether Debtor's IRA accounts were excluded from property of the estate under § 521(c)(2)? RULING: Debtor's IRA accounts were property of the estate and were not excluded under § 521(c)(2). The IRA accounts did not have a restriction on transfer enforceable by a state or non bankruptcy federal law.

1988 #22

SCHOMAKER, CHARLES AND JEANETTE: 9-13-88, Case No. 87-10040, Chapter 7. ISSUE: Leave to amend schedules and turnover. RULING: Rule 1009; In re Williamson, 804 F.2d 1355 (5th Cir. 1986); Lucius v. McLemore, 741 F.2d 125 (6th Cir. l984); Tignor v. Parkinson, 729 F.2d 977 (4th Cir. 1984). See 8 Collier on Bankruptcy para. 4003.03[2] (1988); See also Redmont v. Tuttle, 698 F.2d 414 (10th Cir. 1983); In re Doan, 672 F.2d 831 (11th Cir. l982). The Court ruled that the proposed amendment was timely and that claimed additional exemptions are allowed. AND Rule 4003(b) - allows objections to the amendment to be filed within 30 days after its filing. Rule 1009 - requires the debtor to give notice of the amendment to the trustee and "any entity affected thereby". COURT ruled proper notice was not given so the amendment will not become effective until any objection is filed and denied, or the thirty day period has passed without objection. TURNOVER - Rule 7001(1) - Turnover was also denied because of lack of proper notice and for the reason that it was not brought as an adversarial action.

1990 #14

SCHULDIES, RICHARD E. & DEANNA: June 27, 1990, Case No. 90-50001, Chapter 12. ISSUE: Whether debtors may file a Chapter 12 petition to treat the same debts as were previously treated in debtors' substantially consummated Chapter 11 plan. RULING: A debtor may not file a Chapter 12 to treat debts that were also debts in debtors' substantially consummated Chapter 11. Such would constitute an impermissible modification of the debtors' Chapter 11 plan under 11 USC § 1127(b).

APPEAL RECORD

June 27, 1990. RICHARD E. AND DEANNA SCHULDIES. Case No. 90-50001. Notice of Appeal to District court filed by Debtors from Order Granting FmHA's Motion to Dismiss entered 6-27-90. APPEAL STATUS: Referred to Hon. Richard H. Battey 9-19-90. REMANDED. Order entered by Judge Battey      12-17-90 remanding matter to Bankruptcy Court for further proceedings. (CIV. 90-5091). Motion to Dismiss Chapter 12 Case filed by Debtors on   1-11-91. Order dismissing case entered 1-16-91.

2001 #26

SCHULP, CARLENE R., May 18, 2001, Case No. 01-50124, Chapter 7.  ISSUE: Whether creditor’s motion to extend the time in which to file a discharge complaint should be extended where creditor and Debtor were in the midst of a divorce and the creditor wanted to preserve any divorce-related dischargeability actions? RULING: The motion was denied. Since the divorce was not final pre-petition, the creditor-spouse would not have any pre-petition claim that would be affected by the discharge. Under the law of this Circuit, a divorce-related claim does not come into existence until a dispositive order is entered.

1993 #9

SCHULTZ, JEFFREY P.: September 16, 1993. Case No. 91-50290, Chapter 11. ISSUE: Whether creditor met burden of proof on motion to convert case to Chapter 7? RULING: Creditor's motion to dismiss was denied. Debtor testified that his plan was feasible and Creditor did not offer any evidence to refute Debtor's testimony. There was no evidence of equity erosion so as to impair Creditor's unsecured claim. Court set deadline for Debtor to get his plan confirmed.

2004  #28

SCHULTZ, TONY DANIEL & SHERI MARIE (Lovald v. Schultz):  September 1, 2004.  Case No. 03-40141, Adv. No. 04-4023, Chapter 7.  ISSUE: Whether defendant-creditor had to return garnished wages (under Nebraska law) as a preferential transfer where a garnishment lien was created before the preference period and where the wages were earned outside the preference period but where the creditor did not receive the funds until in the preference period? RULING: According to the Bankruptcy Court case law for the District of Nebraska, garnished wages are transferred when the debtor acquires rights to them. Since that happened in this case when the debtor earned the wages outside the preference period, no preferential transfer occurred.

2006 #3

SCHWEINFORTH, DAVID A., January 26, 2006, Case No. 02-40446, Chapter 7.  ISSUE: In this case that was converted from Chapter 7 to Chapter 13 and back to Chapter 7, what fees for Debtor’s counsel could be paid from the estate? RULING: The attorney’s fees for Chapter 13 services were an administrative expense. His fees for Chapter 7 services -- both pre- and post-petition -- were a general unsecured claim against the estate. They would be paid with the other general unsecured claims. Payment of both claims was dependent on the availability of sufficient estate funds. To the extent the fees were not paid by the estate, they were discharged.

2005  #14

SCOBLIC, JAMES J. (First Dakota National Bank v. Scoblic).  May 18, 2005.  Case No. 04-40923, Adv. No. 04-4071.  ISSUE: Whether plaintiff-bank was entitled to summary judgment on its non dischargeability counts under § 523(a)(4) for fraud by a fiduciary or for embezzlement or under § 523(a)(6) for a debt arising from a wilful and malicious act where the bank had a secured interest in the corporate store’s inventory and where Debtor, who was a shareholder and officer of the corporate store, officer had not used inventory proceeds to pay back the corporate store’s notes to the bank? RULING: Debtor was not the bank’s fiduciary so relief under § 523(a)(4) for fraud by a fiduciary could not be granted. Present record also did not show Debtor’s requisite intent so as to allow the bank summary judgment for non dischargeability for embezzlement or for debt arising from a wilful and malicious act.

1992 #8

SEARCY, ARDELL FRANCIS & BERNETTE MAE: Case No. 87-10257, Chapter 12, and BRANDENBURG GERALD, LYNN AND VALERIA C.: July 17, 1992. Case No.       87-10162, Chapter 12 ISSUE: (1)Whether Court may award compensation to a Chapter 12 debtor's counsel after confirmation? (2) Whether Services related to a Chapter 12 discharge are compensable from the estate? RULING: (1) Court may award compensation and reimbursement to a Chapter 12 debtor's counsel for all post-confirmation services that benefit the estate. (2) Preparing and filing a Chapter 12 debtor's final report and account and providing notice of that report are required by the local rules. Consequently, these discharge related services are compensable from the estate because they benefit the administration of the estate. If discharge is contested, all subsequent services are not compensable from the estate because those services benefit only the debtor.

1997 #16

SEEFELDT, BRIAN & CARRIE: June 4, 1997. Case No. 96-10182, Adversary No. 96-1017, Chapter 11. ISSUE: Whether debts Debtor owed to third party based on a divorce decree were non dischargeable as to her former spouse under § 523(a)(15)? RULING: While Debtor would be personally discharged from the debts owed to the third parties, her spouse would retain the hold harmless protections that the divorce decree provided in from these debts and the debts would be non dischargeable as to him under § 523(a)(15). The Court did not require specific "hold harmless" language in the divorce decree for the debts to be of the type covered by § 523(a)(15). Further, under §§ 523(a)(15)(A) and (B), Debtor did not meet her burden of proving that she did not have the ability to pay these debts or that the benefits of a discharge for her outweighed the detriment her former husband would suffer if the debts were discharged as to him.

2004 #29

SHAULL, NATHAN:  March 5, 2004, Case No. 02-30051, Chapter 7.  ISSUE: Whether certain government farm program payments are property of the estate? RULING: Under Drewes v. Vote (In re Vote), 276 F.3d 1024 (8th Cir. 2002), government farm program payments related to a pre-petition crop year are not property of the bankruptcy estate if the legislation creating the payments was enacted post-petition. That decision controlled here, where the same facts existed. Accordingly, the funds were not property of the estate.

2005  #35

1998 #9

SHULTZ, WILLIAM C. & EVELYN: May 11, l998, Case No. 96-50121, Chapter 7. ISSUE: Whether Debtors should be held in civil contempt for the failure to pay estate for excess exemptions? RULING: Debtors were not held in civil contempt for their present failure to pay the estate for their excess exemptions. Their attorney had misadvised them that they no longer had to the pay the trustee, and their financial circumstances in 1997 did not permit them to comply with the order. Debtors remain obligated to pay the trustee.

1988 #26

SIOUX ALFALFA MEAL COMPANY: November 17, l988, Case No. 87-40049, Chapter 7. ISSUE: Whether attorney is entitled to full amount of fees applied for. RULING: In re Tri County Water Association, Inc. 91 B.R. 547 (Bkrtcy. D.S.D. 1988). The Court ruled he is entitled to full fees, however, attorney Hughes is to deduct approved amount from pre-petition retainer.

2006  #4

2005 #32

SLEEMAN, GEORGE C. (Stacy Coffey v. George C. Sleeman):  August 26, 2005, Case No. 02-41307, Adv. NO. 03-4007.  Chapter 7.  ISSUE: Whether some property settlement debts arising from a divorce between the parties were non dischargeable under § 523(a)(15)? RULING: The debts were not discharged. Defendant-Debtor failed to show either that he did not have the ability to pay the debts or that he would benefit more from the discharge then Plaintiff would be harmed by the discharge of the subject debts.

1988 #18

SLUNECKA, DUANE JOHN AND ROBERT SLUNECKA: 6-21-88 Case No. 87-30085, Chapter 12. ISSUE: 506 Valuation - Real Estate. RULING: Value determined.

APPEAL RECORD

July 1, 1988: DUANE SLUNECKA & ROBERT SLUNECKA. Case No. 87-30085. Notice of Appeal to District Court filed by Federal Land Bank of Omaha from Order for Valuation entered 6-23-88; Memorandum Decision 6-23-88. APPEAL STATUS: Dismissed. Dismissal filed by Federal Land Bank of Omaha 11-3-88.

1997 #10

SMITH, CRAIG R.: March 25, l997, Case No. 5-40637, Adversary Case No.  96-4024, Chapter 7. ISSUE: Whether second bank was subrogated to recorded lien on vehicle held by first bank whose lien was satisfied by funds supplied to the debtor by the second bank? RULING: While S.D.C.L.     §44-3-6 recognizes the general right of subrogation, the statute does not apply to liens on vehicles because S.D.C.L. Ch. 32-3 specifically governs the perfection and enforcement of liens on vehicles.

1988 #16

SMITH, JOHN G. AND SANDRA L.: 6-20-88. Case No. 384-00060, Chapter 11. ISSUE: FmHA's Objection to Confirmation and Cramdown. RULING: 11 U.S.C. Section 1129(a)(7)(A)(I) - By virtue of Creditor's stipulation Constituting Chapter 11 Plan, FmHA accepted the Second Amended Plan. Court confirmed plan.

1992 #10

SMITH, VERNELL E. AND CAROL J.: October 5, 1992. Case No. 87-30110. Chapter 12. ISSUE: Whether the debtors' counsel was entitled to compensation from the estate for post confirmation services that addressed a default by the debtors on their plan payments? RULING: The debtors' counsel was entitled to compensation from the estate for post confirmation services that addressed a default by the debtors on their plan payments because the services benefited the administration of the estate, were not excessive, and were not rendered when counsel knew the attempt to cure the default was futile or unreasonable.

1995 #26

SMITH, WILBUR JOHN AND BETTY JEAN: July 24, 1995. Case No. 87-30162, Adversary No. 94-3010. ISSUES: Whether a § 1111(b) election made in a related corporate bankruptcy case prevented RE&CD from releasing a mortgage that Plaintiffs-Debtors had given to secure the corporation's debt? RULING: Defendant-RE&CD's motion for summary judgment was granted. Debtors did not have a cause of action against RE&CD for refusing to release the mortgage Debtors had given to secure the corporation's debt. Under the terms of the modified § 1111(b) election in the corporate bankruptcy, the parties contemplated that the mortgage given by Debtors to RE&CD to secure the corporation's debt would not be released within ten years if the property was sold unless the corporation's debt to RE&CD was paid in full.

1995 #46

SMITH, WILBUR JOHN AND BETTY JEAN: December 22, 1995. Case No. 87-30162, Adversary No. 94-3010. ISSUE: Whether Court's July 31, 1995 decision regarding effect of § 1111(b) election in a related case should be amended? RULING: Court did not amend its decision. Court did clarify for counsel that it did not rule that § 1111(b) applied in this Chapter 12 case. Instead, they had ruled that Debtors had obligated themselves in the related Chapter 11 case and that those obligations affected their Chapter 12 real property.

APPEAL RECORD

January 2, 1996: WILBUR AND BETTY JEAN SMITH. Case No. 87-30162, Adversary No. 94-3010. Notice of Appeal to District Court filed by Plaintiffs Wilbur and Betty Jean Smith from Order Denying Plaintiffs' Motion to Reconsider and Motion to Amend Decision and Memorandum and Order dated December 22,1995. APPEAL STATUS: REVERSED AND REMANDED Judgment entered by District Court on 1-3-97 reversing and remanding Bankruptcy Court's decision.

ISSUE ON REMAND: See 1997 Decision #18 that follows

1997 #18

SMITH, WILBUR JOHN AND BETTY JEAN: June 19, 1997. Case No. 87-30162, Adversary No. 94-3010. ISSUE: Whether FSA's liens on Debtors' real property would be extinguished when they completed their Chapter 12 plan payments although the real property might be subject to a different lien arising from a modified § 1111(b) election in a related Chapter 11 case? RULING: FSA's liens on Debtors' real property arising from Debtors' confirmed Chapter 12 plan would be extinguished when Debtors completed their Chapter 12 plan payments. Any liens on the same real property arising from a modified § 1111(b) election in a related Chapter 11 case would have to be decided in a separate action under or related to the confirmed Chapter 11 case.

APPEAL RECORD: SMITH, WILBUR JOHN & BETTY JEAN.  Notice of appeal filed by John and Betty Smith on 6-27-97.  Cross-appeal filed by U.S.A./Rural Economic and Community Development on 6-30-97.   APPEAL STATUS:  DISMISSED.   Order Dismissing Appeals filed on 1-8-98 by Judge Kornmann dismissing appeal and cross-appeal.   

SNYDER, CHARLES J.:  March 16, 1999.  Case No. 98-30068, Adv. No.      98-3016, Chapter 7. ISSUE: Whether interim support order former wife obtained prior to divorce from Debtor was non dischargeable under § 523(a)(5)? RULING: Debt was for support and was, therefore, non dischargeable under § 523(a)(5).

1989 #2

SPECK, ROBERT AND LEONA: February 16, 1989, Case No. 87-30054, Chapter 12. ISSUE: Valuation Dispute. RULING: Court determined value.

APPEAL RECORD

March 30, 1989: ROBERT & LORNA SPECK. Case No. 87-30054. Notice of Appeal to District Court filed by debtors from Order Determining Value of Property entered 3-23-89; Memorandum Decision 2-16-89. APPEAL STATUS: Referred to Hon. Donald J. Porter 5-10-89. Affirmed by Judge Porter     9-19-89 (Civ. 89-3020).

2007 #12

2002 #12

STANFORD, DARCI & JOHN: May 17, 2002. Case No. 02-40129, Chapter 7.  ISSUE: Whether Debtors’ Chapter 7 case should be dismissed on Debtors’ motion? RULING: The case was not dismissed since creditors would benefit from the continued administration of the Chapter 7 proceeding. To protect some nonexempt assets, however, Debtors were given time to consider converting their case to a Chapter 13 proceeding.    

2000 #5

STANTON, THOMAS W. & MARY.  February 3, 2000, Case No. 99-50465, Adv. No. 99-5022, Chapter 7.  ISSUE: Whether the defendant's motion to dismiss the adversary should be granted where adversary complaint and subpoena were not served within ten days after the clerk issued the subpoena?  RULING: The motion was denied. Federal Rule of Civil Procedure 4(m), which applies to bankruptcy adversary proceedings through F.R.Bankr.P. 7004, gives a plaintiff 120 days after a complaint is filed to get it served. Thus, the plaintiff could request an alias summons and serve the complaint as long as her 120 days had not expired. Federal Rule of Bankruptcy Procedure 7004(e) does not impose dismissal of a complaint as a penalty if the complaint and original summons are not served within ten days.

2000 #16

STANTON, THOMAS W. & MARY:  May 3, 2000.  Case No. 99-50465, Chapter 7.  ISSUE: Is a state court judgment dismissing a cause of action as a discovery sanction entitled to collateral estoppel (issue preclusion) effect? RULING: The Court will give collateral estoppel (issue preclusion) effect to a state court judgment dismissing a cause of action as a discovery sanction, under the facts and circumstances of this case. Refusing to do so would effectively render nugatory S.D.C.L. § 15-6-37(b)(2)(C), as any party "sanctioned" by having their case dismissed could simply re-file their complaint. Moreover, the Court should not condone or excuse the behavior of litigants who abuse the processes and dignity of the court.

2000 #30

1994 #4

STEEN'S FEEDS, INC. February 22, 1994. Case No. 91-50339 Chapter 11. ISSUE: Whether movant's interest in certain money was sufficiently clear and undisputed so as to justify relief from the automatic stay and a compelled abandonment from the estate? RULING: Movant's request for relief from the automatic stay and for an order compelling the trustee to abandon certain money was denied. Trustee argued movant's interest in the money was subject to a preference action. Another creditor argued it should have a constructive trust on the money because Debtor had obtained it from the creditor fraudulently. The Court ruled the preference and constructive trust issues should be litigated before relief or abandonment were granted to movant.

1996 #21

STEINFURTH, MARK J. & SUSAN X. December 23, 1996. Case No. 96-40221, Chapter 11. ISSUE: Whether creditor had a perfected security interest in a vehicle where perfection occurred post-petition? RULING: Creditor's post-petition perfection of its security interest in a vehicle is either void as an act in violation of the automatic stay of § 362 or voidable under §§ 544 and 549(a).

APPEAL RECORD

January 9, 1997: MARK J. & SUSAN X. STEINFURTH: Case No. 96-40221. Adv. No. 96-4032. Notice of Appeal to District Court filed by debtors from Judgment entered 12-31-96. APPEAL STATUS: AFFIRMED. Order affirming JUDGMENT of the Bankruptcy Court entered by Judge Piersol 9-11-97 (Civ. 97-4004).

1998 #2

STERN, ARDEN LOREN & ARLENE ELSIE: 1-26-98, Case No. 91-40509, Chapter 12. ISSUE: 1. To what deficiency, if any, is a bank entitled when Debtors sell secured property post-discharge in compliance with a modified plan? 2. Can the bank's underlying state court judgment be discharged under S.D.C.L. § 15-16-20? RULING: 1. The bank is entitled to any deficiency on its secured claim after the security is sold post-discharge. The modified plan did not alter the amount of the secured claim owed to the bank, only how it would be paid (either direct or after a sale of security). Although the sale provision kicked in, it did not diminish the amount of the secured claim due. 2. Only that portion of the state court judgment represented by Debtors' unsecured claim in bankruptcy could be discharged under S.D.C.L. § 15-16-20. That portion of the state court judgment represented by the secured claim could not be discharged until the secured claim is paid in full.  

2000 #7

STERN, ARDEN L. AND ARLENE E.:  January 26, 1998,  Case No. 91-40509, Chapter 12.  ISSUE: Whether case should be reopened to allow a secured creditor to move to dismiss the case because Debtors had not made post-plan payments? RULING: Motion was denied. There was no relief that the Court could grant the creditor if the case were reopened. Creditor could not move to modify, discharge of unsecured claims could not be revoked, and dismissal of the case would not void the confirmation order or the discharge of unsecured debts. Secured debt was not discharged and creditor could enforce that claim outside bankruptcy.

2005  #31

STOKKE, JAMES H. & SARAH M. August 24, 2005.  Case No. 05-40158, Chapter 7.  ISSUE: Whether the case trustee’s proposed settlement should be approved where the debtors were going to pay the estate $4,000 for any equity in their house (above their homestead exemption) but where the value of the home was unknown, where the settlement did not advise secured creditors that the equity was being sold back to the debtors with all encumbrances attached, and where the debtors had apparently encumbered the equity post-petition to generate cash to pay the trustee? RULING: The settlement was not approved. While the Court did not require the trustee to avoid any lien on the equity that may have been placed on it by the debtors post-petition in violation of 11 U.S.C. 549(a)(2)(B), the Court did direct the trustee to file a sale motion that better described the actual sale of estate property to the debtors that the trustee proposed.

1988 #21

STORM, ROGER: 7-8-88, Case No. 87-30022, Chapter 12. ISSUE: Objection to discharge. RULING: Overruled - based on an inapplicable code section. - - Debtor's objection relied solely on Code Section 727. ISSUE: Relief from stay - Federal Land Bank. RULING: Relief granted - In re Little Creek Development Co., 779 F. 2d 1068, 1072 (5th Cir. 1986); In re Farmers and Merchants Bank and Trust, 28 B.R. 389 (D.S.D. 1983); In re Dabney, 45 B.R. 312 (Bkrtcy. E.D. Penn. 1985); In re Fazio, 41 B.R. 865 (Bkrtcy. E.D. Penn. 1984); In re Krisle, 54 B.R. 330 (Bkrtcy. 1985); Section 362 and Section 103(a); In re S Farms One, Inc., 73 B.R. 103 (Bkrtcy D. Col. 1987); In re Ahlers, 794 R.2d 388 at 397-398 (8th Cir. 1986), rev'd. on other grounds - 108 S.Ct. 963 (1988). ISSUE: Confirmation - good faith requirement. RULING: Court found plan not confirmable. Section 1225(a) (3); In re Estus, 695 F.2d 311 (1982); In re Education Assist. Corp., 827 F.2d 1222 (1987); Matter of Davis, 68 B.R. 205 (Bkrtcy. S.D. Ohio 1986) - apply to Chapter 13 cases. Chapter 12 cases - Section 1225(a)(3) tracks the language of Section 1325(a)(3) verbatim - - In re Weldin-Lynn, 79 B.R. 409 (Bkrtcy. E.D. Ark. 1987); Collier on Bankruptcy para. 1225.02 (15th Ed. 1982); In re Foster, 84 B.R. 707 (Bkrtcy. D. Mon. 1988).

1989 #27

STORM, ROGER: October 13, 1989. Case No. 87-30022. Chapter 12. ISSUE: Whether debtor's former counsel's application for attorney's fees sufficiently justified the compensation sought. RULING: Attorney's application for fees showed no serious abnormalities, but Trustee's concerns re: explanation and justification should be more closely followed in the future.

1999 #18 

STRATMAN, JOHN:  July 9, 1999.  Caser No. 96-40778, Chapter 7.  ISSUE: Whether the debtor could discharge a judgment where, after the discharge had been entered, the creditor holding the judgment argued his claim arose from a "swindle"? RULING: The judgment was discharged. The deadline for filing a non dischargeability complaint for fraud had passed. Further, the debtor did not have any non exempt real property to which the judgment could have attached pre-petition.

1996 #20

STRATMEYER, GARY J.: December 2, 1996. Case No. 96-40354. Chapter 13. ISSUE: Whether case should be dismissed for lack of a good faith filing where Debtor filed a Chapter 13 petition soon after he filed an appeal of a state court judgment against him, where Debtor did not post a supersedeas bond in state court, and where Debtor did not propose to begin plan payments until the state court appeal was decided? RULING: The case was dismissed for lack of a good faith filing because Debtor did not come into the Chapter 13 ready to pay his creditors but instead proposed not to pay them until a state court appeal was decided.

1998  #23

STROMSETH, BRIAN E. & PATRINA J., Case No. 98-10118, Adversary No.     98-1015, Chapter 7. ISSUE: Whether Debtors were entitled to actual damages or punitive damages arising from Defendant's violation of the automatic stay? RULING: Evidence showed Defendant-water softening company violated the automatic stay when it continued a small claims action post-petition and when its principal confronted one debtor at his place of employment. However, Debtors did not establish any actual damages from these violations. Further, Debtors were not entitled to punitive damages because no egregious conduct on Defendant's part was established.

2005 #6

2005  #17

STURGIS MEAT SERVICE, INC.:  June 2, 2005, Case No. 02-50012, Chapter 7.  ISSUE: Whether in making his distribution to unsecured creditors, the chapter 7 trustee could distinguish between those unsecured creditors whose timely filed claims arose out of service contracts with Debtor and those unsecured creditors whose timely filed claims arose out of other dealings with Debtor? RULING: Under 11 U.S.C. § 726(b), any distribution to unsecured creditors who timely filed proofs of claim, regardless of the basis of their claims, must be made on a pro rata basis.

1991 #6

SWANSON, GERALD L. & CHERYL M.: March 18, 1991. Case No. 186-00286, Adversary No. 90-1012. Chapter 12. ISSUE: (1) Whether discharge order could be vacated due to mistaken, untimely request for discharge by the debtor? RULING: (1) Order of discharge was properly vacated under Bankr. R. 9024 where the debtor erroneously requested untimely entry of discharge. ISSUE: (2) Whether question of revocation of discharge order for fraud was ripe where alleged fraudulent sale had not been consummated and where discharge order was vacated. RULING: (2) Question of revocation of discharge order for fraud was not ripe for decision where alleged fraudulent sale had not been consummated and where discharge order was to be vacated.

1998 #8

SWANSON, LYNN KEITH, D/B/A MIDWEST TRANSFER: May 8, 1998. Case No. 97-10300. Chapter 7. ISSUE: Whether creditor was entitled to relief from the automatic stay to complete a state court garnishment action? RULING: Creditor was not entitled to relief from the automatic stay to complete the garnishment action. The garnished funds were property of the bankruptcy estate. The creditor did not have a garnishment lien under state law to protect.

1988 #17

SWENSON, EDWARD L. AND PHYLLIS: June 21, 1988, Case No. 87-30136, Chapter 12. ISSUE: 506 Valuation - Real Estate. RULING: Value determined.

2000 #17

SWENSON, CHARLES R. & KAREN L.: May 4, 2000. Case No. 99-10195, Chapter 13.  ISSUE: Whether fee application by debtors' counsel, wherein the amount requested exceeded the amount estimated in debtor's confirmed plan, could be allowed? RULING: Application was allowed in the amount requested but the sum in excess of the amount estimated in the debtors' plan had to be paid by the debtors after discharge. The debtors' attorney was also reminded to abide by the disclosure requirements of § 529(a) and Fed.R.Bankr.P. 2016(b). 

2002 # 16

SWENSON, DWAIN & LINDA:  July 15, 2002.  Case No. 02-40154, Chapter 7.  ISSUE: Whether the debtors’ case should be dismissed on the pleadings under § 707(b) for substantial abuse? RULING: The case was subject to dismissal under § 707(b) because the debtors had disposable income of $434.75, which would allow them to fund a meaningful Chapter 13 plan. At the debtors’ earlier request, the case was converted to Chapter 13 in lieu of dismissal.

2005  #45

SWIONTEK, ROXANNE R.:  October 31, 2006. Case No. 05-10146, Chapter 7.  ISSUE: (1) What portion of the debtor’s bank account on the petition date was estate property? (2) What portion of the debtor’s 2005 federal income tax return was property of the estate? (3) What amount of wages that the debtor had earned pre-petition but that remained unpaid on the petition date was property of the estate? RULING: (1) Whatever funds were in the bank account at the time the debtor filed her petition, those funds were property of the bankruptcy estate. The power to stop payment on outstanding checks also becomes a bankruptcy estate asset that was exercisable by the case trustee. (2) As the Court has long held, the debtor and the bankruptcy estate divide any federal income tax return for the year in which the petition is filed based on the date of filing. The nature or statutory basis for the refund does not alter that calculation. (3) Less mandatory deductions, all wages earned pre-petition but unpaid on the petition date are property of the bankruptcy estate. As the Court has previously held, S.D.C.L. § 21-18-53 precludes a debtor from exempting wages under S.D.C.L. § 43-45-4. The Court further concluded that S.D.C.L. § 15-20-12 is not an exemption statute recognized in bankruptcy in addition to § 43-45-4.

2006 # 05

TAPKEN, CHRISTIAN, J.:  January 31, 2006, Case No. 05-42109, Chapter 7.  ISSUE: Whether a creditor’s motion to extend the deadline to file a denial of discharge complaint should be granted over the objection of a party where the basis of her objection was unclear?  RULING: The motion to extend the deadline was granted. The creditor had shown cause for a reasonable extension. The objector had not made clear the basis for her objection and some of her legal presumptions regarding the impact of an extension were erroneous.

2005  #36

TAYLOR, TOMELYN L.:  October 27, 2005, Case No. 05-10120, Chapter 7.  ISSUE: 1. What was the estate’s interest in a vehicle that was titled in Debtor and her sister’s name where Debtor contended her sister had given her money to apply on the car debt and her sister had also made some payments directly to the lender? 2. What was the estate’s interest in a bank account jointly owned by Debtor and her mother where Debtor contended that her mother had made all deposits into the account?

1998 #4

TAYLOR, WAYNE DOUGLAS & PEGGY TAYLOR: March 19, 1998, Case No. 89-40349, Chapter 7. ISSUE: Whether county's aid lien for providing public defender services survived Debtors' bankruptcy? RULING: County's aid lien survived Debtors' bankruptcy. Lien could not be discharged under 11 U.S.C. § 524(a) and S.D.C.L. § 15-16-20 and could not be voided as a statutory lien under either 11 U.S.C. §§ 522(f) or 522(h). Whether the lien attaches to any post-petition (non bankruptcy) property is not within the Bankruptcy Court's jurisdiction.

2000 #32

TEBAY, CASE J.   September 7, 2000.  Case No. 00-40245, Chapter 7.  ISSUE: Whether under S.D.C.L. § 48-4-14 the debtor may declare exempt his interest in a sound system owned by a partnership in which he is a partner? RULING: Section 48-4-14 is not an exemption statute for individuals. Further, the debtor may exempt only his general interest in the partnership under S.D.C.L. § 43-45-4, not his interest in specific partnership property.

1998  #27

TEIGEN, WAYNE "TOM" AND PAMELA, Case No. 96-10055, Chapter 7. ISSUE: Whether payments made or to be made under a confirmed Chapter 11 plan, on a debt jointly owed by the Chapter 11 debtor and this Chapter 7 debtor, should be recognized by the Chapter 7 trustee in his proposed distribution? RULING: The Chapter 7 Trustee's objections to the creditors' full proofs of claims were sustained. The Court held that payments these creditors had or would receive under the confirmed Chapter 11 plan of the Debtors' co-debtor had to be recognized in the Chapter 7 case.

1997 #3

TESCH, RONALD J. AND KIM A. January 28, 1997, Case No. 96-10115, Chapter 12. ISSUE: Whether agreement between a creditor and the debtors was executory and could be rejected by the debtors under § 365(d) where a state court had entered a default foreclosure judgment on the agreement prepetition? RULING: Under state law, a default judgment is enforceable upon entry and is not stayed when an appeal is filed unless specifically ordered. The state court's judgment was by default and had not been stayed on the petition date. Therefore, the judgment was final and it replaced the agreement between the debtors and the creditors. The agreement was no longer executory and could not be rejected by the debtors under § 365(d).

2005 #16

THEUNISSEN, KRISTI L. May 25, 2005, Case No. 04-10322, Chapter 7.  ISSUE: Whether Debtor has to turn over to the bankruptcy estate her joint tenancy interest in a home that her mother gave in pre-petition where Debtor claimed she had no equitable or beneficial interest in the home and where Debtor’s mother said she created the joint tenancy only to ease the transfer of the home to her daughter upon her death? RULING: Based on the stipulated facts, the Court concluded that Debtor’s mother had actually intended to give her daughter a remainder interest in the home following the mother’s life estate. The deed was reformed to reflect that intention. Debtor was then ordered to turn over to the bankruptcy estate the value, on the petition date, of her remainder interest. The Court did not find that any constructive or implied trust existed.

2005   #37

THOMAS, BRADLEY D., October 12, 2005.  Case No. 05-10148, Chapter 7.  ISSUE: Whether the trustee’s turnover motion was untimely where the deadline for filing an objection to exemptions had expired? RULING: Under the turnover motion, the trustee sought property that the debtor had not declared exempt and the excess value property declared exempt where the value of the property exceeded the amount declared exempt. Since the debtor was being allowed his full exemptions as claimed, the trustee’s motion did not constitute an objection to exemptions and the deadline provided by Fed.R.Bankr.P. 4003(b) was not applicable.

2001 #30

THOMPSON, SAMUEL DORSEY, July 19, 2001, Case No. 01-50009, Chapter 7.  ISSUE: Whether the United States Trustee was entitled to a judgment on the pleadings regarding her motion to dismiss for substantial abuse where the pleadings showed Debtor had around $2,800 per month to fund a Chapter 13 plan? RULING: The motion was granted. The disposable income Debtor had available to pay creditors was calculated based on Debtor’s own exhibits regarding income and expenses. Further, there was no basis to consider Debtor’s soon-to-be ex-wife’s claims as priority claims when calculating the disposable income. Finally, even if one of the wife’s claims was treated as a priority claim, Debtor still had sufficient income to fund a Chapter 13 plan.

1997 #26

THYEN, DAVID J. & TAMMY L. September 17, 1997. Case No. 97-10030. Chapter 12. ISSUE: Whether the debtors' Chapter 12 plan was filed in good faith? RULING: The debtors' Chapter 12 plan was not filed in good faith because the debtors had not accurately scheduled their assets. The debtors were allowed to file a modified plan.

2000 #29

TIDWELL, RONALD E.   August 16, 2000.  Case No. 98-50422, Chapter 7. ISSUE: Whether a creditor's motion to reopen a case should be granted where the creditor sought relief regarding marital debts divided at the time of divorce from the debtor? RULING: The motion to reopen was denied. What the movant was seeking was, in essence, a non dischargeability declaration. The main bankruptcy case need not be reopened to commence a non dischargeability adversary proceeding.

2000 #39

TIDWELL, RONALD EDWARD.   November 29, 2000.  Case No. 89-50422, Adv. No. 00-5016, Chapter 7.  ISSUE: Whether deadline under Fed.R.Bankr.P. 4007(c) for filing a complaint under § 523(a)(c), which encompasses § 523(a)(15), may be extended for equitable reasons after the deadline has passed? RULING: Deadline under Rule 4007(c) may not be extended for equitable reasons after the deadline has expired. Under Fed.R.Bankr.P. 9006(b)(3), the ability to extend the deadline is limited to the procedure described in Rule 4007(c).       

2001  #24

TIDWELL, RONALD EDWARD.  June 13, 2001.  Case No. 98-50422, Chapter 7.  ISSUE: Whether certain credit card debts assigned to Defendant-Debtor in a pre-petition divorce were non dischargeable under 11 U.S.C.         § 523(a)(5)? RULING: The debts were non dischargeable under § 523(a)(5) because Defendant-Debtor’s obligation to pay the subject credit card debts were in the nature of support for Plaintiff, his former spouse. This conclusion was based on: Plaintiff’s inferior financial situation at the time of the divorce; Defendant-Debtor’s receipt of more property at the time of the divorce, some of which was to be sold with the proceeds applied to marital debt; the difficulty Plaintiff would have paying her basic expenses if she also had to pay the subject credit card debts; and the divorce court’s conclusion that Defendant-Debtor’s obligation to pay the credit card debts was enforceable through a contempt proceeding.

1995 #29

TIEDE, RICHARD H. AND DORIS K.: August 9, 1995. Case No. 95-40038, Chapter 7. ISSUE: (1) Whether the debtors could claim exempt as a homestead their interest in some contract for deed payments? (2) Whether the Trustee's failure to assume a contract for deed on some real property constituted an abandonment of the contract for deed to the debtors? RULING: (1) Debtors could not claim exempt their interest in some contract for deed payments under South Dakota's homestead laws because they had never occupied the real property as their homestead before the property was sold on a contract for deed. (2) The trustee's failure to assume the contract for deed did not constitute an abandonment of the contract. While the contract was deemed rejected under § 365(d)(1), the purchaser had the option under §§ 365(I) and 365(j) to treat the contract as terminated and seek damages or continue in possession, make the payments, and receive title. Property is not deemed abandoned under      § 554(c) until the case is closed.

2003  #23

2005 #12

TJEERDSMA, DALE A. (Trustee John S. Lovald v. Dale A. Tjeerdsma), April 28, 2005, Case No. 03-41073, Adv. No. 04-4074, Chapter 7.  ISSUE: Whether defendant-creditor was entitled to summary judgment regarding the case trustee’s complaint to determine the priority to some sale proceeds? RULING: Summary judgment was denied. Based on the present record, the key issue presented -- whether another defendant-creditor’s lien had ever been perfected -- had not been clearly raised and briefed by the parties.

2005  #38

1995 #4

TORGERSON, RONALD OWEN AND CHARLENE RAE: February 27, 1995, Case No.   94-10095, Chapter 7. ISSUE: Whether Debtors could claim annuity exempt where they obtained loans pre-petition from family members, gave security in vehicles, and used loan proceeds to purchase annuity? RULING: Debtors could claim annuity exempt. While funds were borrowed to purchase the annuity and while the loans were from family members, the transactions appeared to be at arms' length, the amount purchased was reasonable, and selling their vehicles outright to obtain funds may have deprived Debtors of needed transportation. Their action constituted legitimate pre-bankruptcy planning based on the evidence presented.

1996 #11

TORIGIAN, JOEL L. & DIANE J.: July 5, 1996, Case No. 95-10202, Chapter 7. ISSUE: Whether an expected refund of federal income taxes has value for the estate when a Chapter 7 case is filed before the end of the tax year? RULING: The expected federal income tax refund is valuable property of the estate although the tax year may not have ended when the Chapter 7 debtor filed his petition. The estate will receive that portion of the refund that is attributable to pre-petition earnings. The remainder is part of the debtor's post-petition earnings and is not property of the estate.

1995 #1

TRACY, THOMAS CARROLL AND THOMAS C. TRACY, INC., January 10,1995, (Jointly Administered), Case Nos. 94-10099 and 94-10100, Chapter 11. ISSUE: Whether bank account subject to a pre-petition IRS levy was estate property? RULING: The bank accounts were estate property. Under 26 U.S.C. § 6332(c), the bank had to hold the funds twenty-one days before surrendering them to the IRS. Debtor filed its petition within the twenty-one days. Debtor did not lose ownership of the accounts during the twenty-one days because the IRS continued to consider as income to Debtor the interest earned during the twenty-one days. IRS as entitled to adequate protection if Debtor used the funds.

1990 #11

TRASK CHAROLAIS. May 11, 1990. Case No. 586-00015, Chapter 11. ISSUE: Whether interim attorney's fees should be awarded before the pending Chapter 11 plan of reorganization is confirmed or the trustee's motion to dismiss is resolved. RULING: Interim fees would be allowed provided the method of payment of fees and costs would not be detrimental to the debtor's chance of successful reorganization.

1995 #12

TRAVERSIE, JERALD E. AND JOANNE E.: April 12, l995, Case No. 94-10110, Chapter 7. ISSUE: Whether creditor's judgment should be satisfied under 11 U.S.C. §524(a)(1) and S.D.C.L. § 15-16-20? RULING: Judgment should be satisfied since the debtors' personal liability for the debt had been discharged. Further, the creditor would not retain any right to enforce a judgment lien after bankruptcy because the debtors did not own any non exempt real property at the time of the petition to which a lien could attach.

1991 #8

TRAVIS, JAMES EARENFIGHT: April 5, 1991. Case No.90-10094, Chapter 11. ISSUE: Whether movant established year-old Chapter 11 debtor had an "inability to effectuate a plan" or had caused "unreasonable delay" that was prejudicial to creditors so as to establish cause for dismissal? RULING: Movant failed to establish that there was no more than a "hopeless and unrealistic possibility" that the debtor could propose a confirmable plan that met the new value exception to the absolute priority rule or that the debtor could not propose a feasible plan.

1991 #9

TRAVIS, JAMES EARENFIGHT. April 5, 1991. Case No. 90-10094, Chapter 11. ISSUE: Whether interim fees would be awarded to the debtor's attorney where benefit to the estate of the services was in question where the debtor may not have the ability to obtain confirmation of a plan? RULING: Interim fees were allowed for meeting with the debtor, preparing and amending schedules, and representing the debtor at the § 341 meeting of creditors. Whether a Chapter 11 plan was confirmed or not, the debtor's attorney bore burden of proving remaining fees requested for reorganization-related services benefited the estate.

1988 #23

TRI-COUNTY WATER ASSOCIATION, INC.: September 22, l988, Case No.       87-30105, Chapter 13. 91 B.R. 547 (1988). ISSUE: Interim compensation of attorney's fees - objection by FmHA on two grounds: (1) they assert they hold a security interest in "virtually all" of Debtor's assets, and that fees cannot be paid from its collateral; and (2) that fees may not be paid until Debtor's counsel's services have resulted in a tangible benefit to the estate. RULING: Court denied the request.

2003   #22

2004 # 9

TRI-STATE ETHANOL COMPANY, LLC (North Central Construction, Inc. v. Tri-State Ethanol, et al.):  May 10, 2004.  Case No. 03-10194, Adv. No. 03-1032.  Chapter 11.  ISSUES: Whether mechanics’ liens waivers signed by three contractors or subcontractors resulted in a re-prioritization of their liens behind a bank’s mortgage, which was filed after the contractors or subcontractors started their work on the construction sight? Whether a provision in the general contractor’s construction contract with Debtor precluded the general contractor and one subcontractor from filing any mechanics’ lien? RULING: The lien waivers did not affect the date that the mechanics’ liens originally attached. The contract did not preclude the filing of mechanics’ liens.

2005 #7

TRI-STATE ETHANOL COMPANY, LLC, March 14, 2005, Case No. 03-10194, Chapter 7.  ISSUE: Whether an evidentiary hearing on a post-petition, unsecured creditor’s request for an administrative expense claim under 11 U.S.C.   § 364(a) was necessary? RULING: An evidentiary hearing will be held to receive evidence on whether Debtor incurred the post-petition, unsecured credit in the ordinary course of its business under 11 U.S.C. § 364(a) such that court approval was not required.

2005 #13 

TRI-STATE ETHANOL COMPANY, LLC AND LOVALD V. TRI-STATE FINANCIAL, L.L.C., May 4, 2005, Case Nos. 03-10194 and Adv. No. 05-1006, Chapter 7.  ISSUE: (Adversary) Whether the movant, an equity holder in a Chapter 7 Debtor, should be allowed to intervene in an adversary proceeding where the Chapter 7 Trustee has asked the Court to declare that another equity holder’s post-petition, pre-conversion loans and advances to the Chapter 11 debtor should be considered an equity contribution or subordinated to other claims?