Judge Hill (retired) - Decision Index

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Entry DateFile NameDecision Summary
10/21/04 h00399.pdf

In re: David L. Weiler and Edna Z. Weiler (Case No. 01-01776, Filed 04/12/01)

Court determined that Debtors held the livestock at issue in their feedlot pursuant to a custom feeding agreement. As such the cattle were held in bailment and not subject to the creditor bank's security interest. Defendants should not be equitably estopped to assert their property interest, and the arrangement was not a consignment sale as set forth in Iowa Code § 554.2326. The creditor bank's security interest in specified equipment was prior to the defendant bank's security interest.

10/21/04 h00398.pdf

In re: Rita S Martens (Case No. 02-02729, Filed 05/20/02)

Court found that Creditor's notice of right to rescind a credit transaction effective under TILA 15 U.S.C. § 1601-1662 and Regulation Z, 12 C.F.R. § 226.1-.1002 and triggered the three-day period to rescind the contract. Debtor's notice of cancellation served almost two years later was not effective and Creditor's mortgage was valid.

10/21/04 h00397.pdf

In re: Robert E Rullestad and JoAnn F Rullestad (Case No. 02-06615, Filed 12/03/02)

Court denied the motion to alter and amend judgment or for relief from judgment. Creditor's motion was untimely under Rule 9023, and Creditor failed to carry its burden to show excusable neglect under Rule 9024. The amount of the punitive damage award did not violate the due process clause.

09/08/04 h00396.pdf

In re: Destiny L Ruschmeyer (Case No. 02-01443, Filed 03/21/02)

Court followed the majority view that 11 U.S.C. § 727(a)(6) requires intentional conduct on the part of Debtors in refusing to obey an order of the court in order to revoke discharge. The court found the requisite conduct and revoked the discharge pursuant to 11 U.S.C. § 727(a)(6) & (d)(3).

08/18/04 h00395.pdf

In re: Ralph F Helt (Case No. 02-05297, Filed 09/25/02)

Court did not have subject matter jurisdiction under 28 U.S.C. § 1334, because the property was not property of the estate, and the determination of the validity of the mortgage would have no effect on the bankruptcy estate.

08/16/04 h00394.pdf

In re: Patreka Harrison and Larry Harrison (Case No. 01-04681, Filed 09/10/01)

The filing of a second complaint after the dismissal without prejudice of a pending action violated the automatic stay and the discharge injunction, 11 U.S.C. § 362 & 524 respectively, even though Creditor had previously received relief from stay. The second filing was a new action not within the scope of the consent order.

08/11/04 h00393.pdf

In re: Raymond John Wasteney and Nadine R Tierney-Wasteney (Case No. 02-03910, Filed 07/19/02)

Creditor's appraisal showed that Debtors undervalued and failed to disclose property. Value of all assets above the amount claimed exempt under Iowa Code 627.6(1), (3), (5), & (10) subject to turnover. ERISA does not preempt § 627.6(8). Guaranty is debt under § 561.21. Iowa Code does not specify how one homestead should be changed for another.

06/23/04 h00392.pdf

In re: John T. Wales (Case No. 01-06262, Filed 12/06/01)

Summary judgment granted on 11 U.S.C. § 727(a)(3) where Creditors made a prima facie showing that Debtor failed to keep adequate records, and he did not rebut the showing. Debtor was denied a discharge.

06/23/04 h00391.pdf

In re: Michael James Gale and Cynthia Denise Gale (Case No. 02-06762, Filed 12/12/02)

UST`s motion to dismiss pursuant to § 707(b) sustained. The court declined to adopt UST`s suggested publications as an objective standard of reasonable expenditures.

06/22/04 h00390.pdf

In re: Rodney Ray Suhr (Case No. 01-04713, Filed 09/10/01)

Checks made to livestock auction that were never presented for payment standing alone were insufficient to establish intent to deceive. Iowa Code §§ 714.1 & 8(14) is insufficient to establish intent to deceive. Promissory not is not a statement of financial condition. Debt not excepted from discharge pursuant to 11U.S.C. § 523(a)(2)(A) or (B).

06/21/04 h00389.pdf

In re: David Wesley Jolly and Elizabeth Ann Jolly (Case No. 03-05990, Filed 10/07/03)

UST`s motion for assessment of fines pursuant to § 110 sustained. Company that provided forms and advice for their completion were bankruptcy petition preparers. The court sanctioned respondents $2,500.00 for violations of § 110; ordered the fee refunded; and referred the matter to the Iowa Supreme Court Commission on the Unauthorized Practice of Law.

05/28/04 h00388.pdf

In re: David Scott Wolfe and Vicki R Wolfe (Case No. 02-05117, Filed 09/17/02)

UST`s motion to dismiss pursuant to § 707(b) sustained. Housing expense and arrangements are factors to be considered in the substantial abuse analysis, but no bright line amount is established as reasonable.

01/14/04 h00386.pdf

In re: Gerald Kenneth Lint (Case No. 01-05529, Filed 10/25/01)

Debt arising in dissolution of marriage property settlement not discharged. Decree imposed an in persona obligation on Debtor that was not extinguished when the corresponding lien was extinguished through foreclosure of the mortgage on the former marital home.

01/07/04 h00385.pdf

In re: Rod Ray Brown and Cindy Ellen Brown (Case No. 02-02894, Filed 05/28/02)

Debt, arising out of a home construction contract where workmanship was poor; damaged lumber used; Debtor acknowledged that numerous items needed corrected; and mechanic's lien attached to house because lumberyard did not credit payments to materials purchased for Creditors` house, was held nondischargeable pursuant to 11 U.S.C. § 523(a)(2)(A) & (a)(6).

01/05/04 h00384.pdf

In re: Marvin R. Mitchell and Marlene M. Mitchell (Case No. 02-02720, Filed 03/05/02)

Trustee awarded $4,042.50 in professional fees and $294.00 in expenses to prosecute contempt motion. The court utilized the lodestar method as set forth in In re Pothoven, 84 B.R. 579 (Bankr. S.D. Iowa 1988) to determine the reasonable amount of costs and fees.

12/27/03 h00383.pdf

In re: Michael Francis Cole and Stacy Kay Cole (Case No. 02-06385, Filed 11/19/02)

Creditor's motion for relief from stay denied for lack of standing. Pursuant to Fed. R. Civ. P. 21 as incorporated by Fed. Rule Bankr. P. 9014, Assignee added as a party only to object to the motion to avoid lien, but not to object to the motion to redeem. Motion to avoid lien denied, and objection to motion to redeem overruled. Debtor provided credible evidence of the fair market value of the equipment. Objection to exemption overruled.

12/17/03 h00382.pdf

In re: Marvin R. Mitchell and Marlene M. Mitchell (Case No. 02-02720, Filed 03/05/02)

Defendants` jury demand granted as to Counts IV and V pertaining to the alleged fraudulent conveyance of real estate in Wayne County, Iowa.

09/09/03 h00380.pdf

In re: Public Safety Group, Inc. (Case No. 02-04410, Filed 08/12/02)

Involuntary chapter 7 petition dismissed for want of prosecution 11 U.S.C. § 303(h). Corporate creditors did not appear at hearing through counsel. Remaining creditor's claim subject bona fide dispute. Costs and attorney fees were not awarded under § 303(i).

08/27/03 h00379.pdf

In re: Tammy Ricci (Case No. 01-03159, Filed 06/21/01)

Debt excepted from discharge under § 523(a)(6) because Debtor was not attempting to save the business when she converted the collateral and paid trust fund taxes on which she was personally liable. Debtor did not rely on advice of counsel. Funds were not acquired to pay United States taxes under § 523(a)(14).

06/20/03 h00378.pdf

In re: Rodney Ray Suhr (Case No. 01-04713, Filed 09/10/01)

Rehabilitative alimony, child support payments, attorney fees, suit money, health care expenses for the children, and certain expenses approved by the state court constituted alimony, maintenance, or support and were nondischargeable pursuant to § 523(a)(5). Debtor did not have the ability to pay the property settlement portion of the dissolution award, and it was not excepted from discharge pursuant to § 523(a)(15).

06/03/03 h00377.pdf

In re: Lawrence Daniel Steigerwald (Case No. 02-00061, Filed 01/07/02)

State court dissolution of marriage decree did not provide a lien on Debtor's homestead pursuant to Iowa Code § 598.21 (special declaration to the contrary of § 561.16) to secure wife's property settlement. Consequently, decree provided her only with judgment lien pursuant to § 624.23 which did not attach to the homestead. Claim was not antecedent debt pursuant to § 561.21, and Debtor was entitled to claim exemption. Motion to avoid lien granted pursuant to 11 U.S.C. § 522(f).

06/03/03 h00376.pdf

In re: Jeffrey D Bausback and Jamie E Bausback (Case No. 02-00825, Filed 02/25/02)

Debtors could not transfer Nebraska homestead exemption to Iowa under Iowa Code § 561.20. Wife was not liable for husband's debt under § 597.17. Wife could claim homestead exemption under § § 561.1 & 16. Homestead is not severable; therefore, Creditor and Trustee could not reach the homestead under § 561.21 notwithstanding husband's antecedent debt.

05/27/03 h00375.pdf

In re: Vicki Lynn Flores (Case No. 01-02776, Filed 06/01/01)

Genuine issues existed precluding summary judgment under Fed. R. Bankr. P 7056 on the lien priority, conversion, and constructive trust counts of the complaint. Plaintiff did not properly request permission to acquire derivative standing to proceed under 11 U.S.C. § 547, 549, 550 & 362(h). Defendants motion for summary judgment granted.

05/21/03 h00374.pdf

In re: Steven L. Wilson (Case No. 00-02951, Filed 08/11/00)

Debtor did not intend to deceive or injure Creditor. Debtor was not a fiduciary to Creditor based on the security interest in the Hartford Carlisle Savings Bank stock, or because of his position of bank officer. Debt not excepted from discharge under 11 U.S.C. § § 523(a)(2)(A), (4) or (6).

04/04/03 h00371.pdf

In re: Dennis Steven Freeman and Laura L. Freeman (Case No. 01-06490, Filed 12/19/01)

Debtors` contribution and load repayment to thrift savings plan not "reasonably necessary." UST`s § 707(b) motion to dismiss granted but stayed for 15 days to allow Debtors to convert if they chose.

03/12/03 h00370.pdf

In re: Dennis Lee Hockabout and Carol Lee Hockabout (Case No. 01-04616, Filed 09/06/01)

Pursuant to Fed. R. Bankr. P. 7056, the court granted summary judgment in favor of Creditor denying Debtors a discharge pursuant to 11 U.S.C. § 727(a)(2), (3) & (4). Debtors failed to answer requests for admission and pursuant to Fed. R. Bankr. P. 7036 the requests were deemed admitted. Debtors did not file a motion to withdraw admissions.

01/13/03 h00369.pdf

In re: Marc David Shonka and Margaret Marie Shonka (Case No. 00-01297, Filed 04/12/00)

Court would not allow benefit-of-the bargain damages based on fraud in the inducement when the underlying contract showed the intent by and provided the means for the plaintiff to evade income taxes on a stock investment. The court ordered Debtor to pay restitution and excepted the amount so ordered from discharge.

12/30/02 h00368.pdf

In re: Ryder Farms Inc of Missouri & Iowa (Case No. 02-03201, Filed 03/19/02)

Debtor's bad faith in filing the chapter 11 case constituted cause for dismissal under 11 U.S.C. § 1112. The court enjoined Debtor from filing for 180 days. See 11 U.S.C. §§ 349, 109(g), and 105. The court set a supersedeas bond of $3,000,000.00 for appeal.

11/13/02 h00367.pdf

In re: Marvin R. Mitchell and Marlene M. Mitchell (Case No. 02-02720, Filed 03/05/02)

Trustee's motion to extend time to file objections to exemption was timely under Rule 4003. His motion to extend time to file a complaint objecting to discharge or the dischargeability of a debt was untimely under Rules 4004 and 9006. Equitable considerations might require the exercise of the court's 11 U.S.C. § 105 powers to consider the merits of the motion. Evidentiary hearing was set to determine whether Trustee's reliance on an erroneously set deadline was reasonable.

10/15/02 h00366.pdf

In re: Donald L. Madsen (Case No. 00-04811, Filed 12/28/00)
In re: Madsen v. Madsen (Case No. 01-20033, Filed 03/22/01)

Ex-spouse's interest in Debtor's military pension was her sole and separate property and not a debt owed to her. The Uniformed Services Former Spouses Protection Act did not cap the amount of the pension that could be awarded to the nonmilitary spouse.

08/12/02 h00365.pdf

In re: Brian Keith Quick (Case No. 98-04868, Filed 11/04/98)
In re: Quick et al v. Quick (Case No. 99-99022, Filed 02/18/99)

The court determined that Debtor did not have the requisite intent to claim the proceeds from the sale of the marital home exempt under Iowa Code § 561.16 and .20. Iowa Code § 598.21 is a special homestead exemption. Iowa Code 598 did not provide a lien for ex spouse's attorney. Debts were nondischargeable under § 523(a)(5) and (a)(15).

07/02/02 h00364.pdf

In re: John Dennis Dameron (Case No. 01-03927, Filed 07/31/01)

The court determined that a bankruptcy petition preparer failed to comply with 11 U.S.C. &# 167 110. The court sanctioned her one hundred dollars for each violation and ordered her to return the fee she received from the debtors.

06/06/02 h00363.pdf

In re: T. K. Ventling and W. J. Ventling (Case No. 01-01153, Filed 03/19/01)

United States Trustee's § 707(b) motion sustained. Debtors given 15 days to convert.

05/30/02 h00362.pdf

In re: Donna Joan Stroud (Case No. 00-02930, Filed 08/09/00)
In re: parent and next friend of Jacob L. Stroud, a minor v. Stroud (Case No. 00-20160, Filed 10/04/00)

Debtor committed defalcation in a fiduciary capacity when she removed funds from her son's investment accounts to purchase a furnace for the home in which they lived. The debt was nondischargeable under 11 U.S.C. § 523(a)(4).

05/30/02 h00361.pdf

In re: Alfred K. Ryder and Mary Ann Ryder (Case No. 95-02000, Filed 07/06/95)

United States Trustee's motion to transfer venue of a chapter 11 case filed in Missouri Western to Iowa Southern granted pursuant to 28 U.S.C. § 1412 and Fed. R. Bankr. P 1014. Debtor's motion to transfer chapter 7 case to Missouri denied as untimely.

05/28/02 h00360.pdf

In re: Margaret A. Froehle (Case No. 01-00328, Filed 01/29/01)

Debtor's interest in her homestead was one of full ownership encumbered by a mortgage and a tax lien. The automatic stay of 11 U.S.C. § 362 prevented the tax certificate creditor from taking action to enforce its lien and acquire a tax deed. The court denied the motion for relief from stay and the objection to plan. Debtor could provide for payment of the taxes with interest through her chapter 13 plan.

05/01/02 h00359.pdf

In re: Robert B. Staib (Case No. 98-05541, Filed 12/28/98)
In re: National Bank of Commerce et al v. Staib (Case No. 00-20197, Filed 12/22/00)

Creditor's claims were excepted from discharge under § 523(a)(2)(B) and (a)(13) where Debtor used false financial statements to acquire financing for aircraft purchase. Debtor was convicted of bank fraud pursuant to 18 U.S.C. § 1014 and ordered to pay restitution pursuant to 18 U.S.C. §§ 3663 and 3664. Sale of aircraft was conducted in a commercially reasonable manner.

05/01/02 h00358.pdf

In re: Jason W. Osten (Case No. 00-03885, Filed 10/16/00)

Debtor's interest in payments as a beneficiary of his grandmother's life insurance policy were not exempt under Iowa Code § 627.6(8)(e). The payments were installments on a death benefit and constituted an account receivable not a pension, annuity, or similar plan.

03/27/02 h00357.pdf

In re: Tawna L. Broderick (Case No. 99-03605, Filed 09/22/99)
In re: Deere Harvester Credit Union v. Broderick (Case No. 99-99253, Filed 12/22/99)

Upon finding that Debtor failed to comply with § 521(2)(B); that Debtor made no attempt to pay on the debt or keep Creditor informed about the collateral; and that relief from stay would not provide an adequate remedy to Creditor because the collateral was sold, the court excepted the debt from discharge under § 523(a)(6).

03/22/02 h00356.pdf

In re: Jeannie Ann Sutherland (Case No. 00-02157, Filed 06/15/00)

The Court granted the United States Trustee's motion for sanctions against a bankruptcy petition preparer as defined by the Code who had violated the provisions of § 110. The court sanctioned her 100 dollars for each violation and ordered her to return the fee she received from Debtor. The court referred the matter to the Iowa Bar Association to consider the possible issue of the unauthorized practice of law.

11/15/01 h00355.pdf

In re: AccessAir, Inc. (Case No. 99-04498, Filed 11/29/99)

Fed.R.Bankr.P. 1019 requires a debtor upon conversion to chapter 7 to turn over assets and records to the trustee. Local Rule 10 augments the federal rule and identifies documents required by ther court. Fed.R.Bankr.P. 9001(5) authorizes the court to designate a representative for a corporate debtor. Under Iowa law, officers and directors of an insolvent corporation owe a fiduciary duty to its corporate creditors. They must also assist in the honest administration of the bankruptcy.

10/01/01 h00354.pdf

In re: Beverly A. Eickhoff (Case No. 00-02484, Filed 07/10/00)

The Court overruled Trustee's objection to exemption. ERISA allows a beneficiary to acquire a loan from plan assets secured by 50 percent of the vested interest. See ERISA § 408(b)(1), 29 U.S.C. § 1108(b)(1), and 26 C.F.R. § 1.401(a)-13(d)(2). The court cautioned that in the face of a vigorous objection a copy of the plan was necessary to determine that its anti-alienation provision was effective to except that plan from property of the bankruptcy estate. Debtor was ordered to account for loan proceeds.

09/26/01 h00353.pdf

In re: Alfred K. Ryder and Mary Ann Ryder (Case No. 95-02000, Filed 07/06/95)

Motion to Dismiss Case under 11 U.S.C. § 707 finding that Debtors did not establish adequate cause, and dismissal would be prejudicial to Creditors. Further, Debtors did not make a reasonable inquiry into the facts and existing law concerning the dismissal, and Rule 9011 sanctions were appropriate. Debtors were required to pay costs and attorney fees to parties objecting to the motion to dismiss.

09/11/01 h00352.pdf

In re: Mary Anne Donovan (Case No. 98-01376, Filed 03/30/98)

Creditors have standing to raise the issue of a violation of the automatic stay of § 362. Actions taken in violation of the stay are void not merely voidable. Tax sale procedure Iowa Code sections 445 through 448 examined. Appeal filed by OHP 20, L.C. and OHP1, L.C. 9/28/01 Appellant's Motion to Dismiss Appeal granted 12/11/01 __ Bankr. Rptr __ (S.D. Iowa 2001)

09/06/01 h00351.pdf

In re: Tami Jo Ramey (Case No. 98-05503, Filed 12/23/98)

The court denied Debtor's former attorneys' motion for allowance of attorney fees and expenses as a priority expense. Section 330 is unambiguous and precludes compensation of debtors' attorneys from estate assets. __ Bankr. Rptr __ (S.D. Iowa 2001)

08/07/01 h00350.pdf

In re: Alfred K. Ryder and Mary Ann Ryder (Case No. 95-02000, Filed 07/06/95)

The court denied Debtor's Motion to Reconsider Allowance of claims under 11 U.S.C section 502(j). Debtors had standing to raise the issue because the estate was solvent; however, they did not plead any of the Rule 60(b) elements that courts commonly consider when ruling on a motion to reconsider claims. Debtors were merely rehashing arguments that the court previously heard and rejected.

07/06/01 h00349.pdf

In re: Michael G. Masterson (Case No. 00-03328, Filed 09/08/00)

The court denied Debtor's claim of exemption under 627.6(8)(e) for Roth IRS. Section 627.6(f)(3) limits contributions to $2,000.00 per year. Whether the section is considered a restriction on transfer or an exemption under the Bankruptcy Code, the final result is the same.

03/27/01 h00348.pdf

In re: Howard W. Williams and Rosemarie P. Williams (Case No. 00-02274, Filed 06/23/00)

Iowa Code sections 627.8 and 627.9 must be construed together, and they provide protection to pensions received from the United States government.

02/05/01 h00347.pdf

In re: Tami Jo Ramey (Case No. 98-05503, Filed 12/23/98)
In re: Snap-On Credit Corporation v. Ramey (Case No. 99-99034, Filed 03/12/99)
In re: Loren David Alexander (Case No. 99-00255, Filed 01/25/99)
In re: Snap-On Credit Corporation et al v. Alexander (Case No. 99-99054, Filed 04/16/99)

Creditor failed to sustain its burden under § 523(A) or (B) to prove that Debtor misrepresented herself as a corporate officer and thereby induced Creditor to enter into a lease agreement for automotive repair tools. Creditor also failed to prove its conspiracy and aiding and abetting theories.

01/08/01 h00346.pdf

In re: John Albert Woolley and Linda Sue Woolley (Case No. 98-05471, Filed 12/21/98)
In re: Shodeen et al v. Woolley et al (Case No. 99-99132, Filed 08/16/99)

Debtor's interest in spouse's ERISA qualified pension plan, that she received from a property settlement within 180 days of the filing of the bankruptcy petition, was not property of the bankruptcy estate, under 11 U.S.C. § 541(a)(5). Based on the U.S. Supreme Court's interpretation of ERISA, Debtor's interest would not have been property of the estate at the time of the petition; consequently, § 541(a)(5) did not reach forward to bring it into the estate.

12/07/00 h00345.pdf

In re: Campbell v. Voorhees (Case No. 99-99036, Filed 03/16/99)

Creditor failed to prove that Debtor intended to deceive Creditor into entering into a business relationship and incurring substantial debt. Therefore, the debt was not excepted from § 523(a)(2)(A) or (B).

12/05/00 h00344.pdf

In re: Jeffrey W. Voorhees (Case No. 98-05353, Filed 12/11/98)
In re: First American Bank, Webster City v. Voorhees (Case No. 99-99044, Filed 03/29/99)

Creditor failed to prove that Debtor's willful conversion of assigned development fees was also malicious and therefore nondischargeable pursuant to § 523(a)(6). Creditor also failed to prove that it was injured because Debtor paid off the loans secured by the converted collateral at a default rate of interest.

12/05/00 h00343.pdf

In re: Bong Nam Lambert (Case No. 00-00255, Filed 01/31/00)

Trustee's objection pursuant to Rule 4003 to Debtor's claim to homestead exemption was sustained. Trustee established a prima facie case of abandonment by showing that Debtor ceased actual occupancy of the residence. Debtor offered no evidence demonstrating a fixed, specific, and abiding intent to return to the residence.

11/22/00 h00342.pdf

In re: Billie Franklin Guske (Case No. 97-02457, Filed 05/27/97)
In re: Guske v. Guske (Case No. 97-97186, Filed 08/20/97)

Upon remand, a debt arising in dissolution property settlement was discharged under § 523(a)(15)(B). Although Debtor had the ability to pay a significant portion of the debt from fund not necessary for his maintenance and support, the benefit of the discharge to Debtor outweighed the detriment to Creditor/spouse who had never pursued collection of the debt, was in better health, and was better prepared for retirement. 243 B.R. 359 (B.A.P. 8th Cir. 2000)

09/28/00 h00341.pdf

In re: Franklin Dwight Carruthers and Sherry Diane Carruthers (Case No. 99-02691, Filed 07/12/99)

Debtors' yield and income estimates were not unreasonably optimistic as to be fatal to the feasibility of the plan under § 1225(a)(6). The formula approved in United States v. Doud (In re Doud), 869 F. 2d 1144 (8th Cir. 1989) proved an appropriate measure of present value for the bank's secured claim pursuant to § 1225(a)(5).

09/05/00 h00340.pdf

In re: Hendrikus J. Broerze (Case No. 00-00994, Filed 03/24/00)

Creditors cannot rely on a motion for extension of time to take the place of an objection to discharge. 4004(b) requires that such an objection must be made within 60 days of the first scheduled meeting of the creditors. Extension cannot be granted absent a showing of cause. Creditors must establish a reasonable level of due diligence.

08/24/00 h00339.pdf

In re: Tami Jo Ramey (Case No. 98-05503, Filed 12/23/98)
In re: Snap-On Credit Corporation v. Ramey (Case No. 99-99034, Filed 03/12/99)
In re: Snap-On Credit Corporation et al v. Alexander (Case No. 99-99054, Filed 04/16/99)

The court, applying the factors articulated in United States v. Larson, 760 F.2d 852,856-57 (8th Cir. 1985), denied Plaintiff's motion to continue.

08/08/00 h00338.pdf

In re: Larry R. Cochran (Case No. 83-01393, Filed 10/04/83)

Creditor, who assigned judgment for a debt discharged 15 years earlier, willfully violated the discharge injunction provided by § 524(a). Creditor was found to be in civil contempt and ordered to pay compensatory damages and attorney fees.

08/08/00 h00337.pdf

In re: John E. Petersen (Case No. 99-01765, Filed 05/06/99)
In re: Mullins et al v. Petersen (Case No. 99-99138, Filed 08/24/99)

Debtor/contractor who received proceeds from an insurance policy in the form of a check payable to Debtor, Creditor, and Mortgagee Bank was not a fiduciary for section 523(a)(4) purposes.

07/17/00 h00336.pdf

In re: Debra Ann Hobbs (Case No. 99-01551, Filed 04/23/99)
In re: Hobbs v. Hobbs (Case No. 99-99085, Filed 05/24/99)

Joint credit card debt is awarded to Debtor in dissolution decree nondischargeable pursuant to sections 523(a)(15) and (a)(2)(A).

07/14/00 h00335.pdf

In re: Alfred K. Ryder and Mary Ann Ryder (Case No. 95-02000, Filed 07/06/95)
In re: United States Department of Agriculture v. Ryder et al (Case No. 95-95137, Filed 10/13/95)
In re: Neiman et al v. Ryder et al (Case No. 98-98049, Filed 03/23/98)
In re: Neiman v. Ryder et al (Case No. 99-99094, Filed 06/04/99)

Stipulated settlement agreement filed without signatures. Specific performance within 21 days ordered. Notice of Appeal filed 8/3/00

07/14/00 h00334.pdf

In re: Tory Lint Construction, Inc. (Case No. 99-01005, Filed 03/19/99)

Trustee could not request turnover of escrow funds under section 543 or 542(a). Escrow agent was not a custodian under section 101(11). Conditions of the escrow agreement remained unfulfilled after its duration and the escrow was deemed abandoned. The funds were not estate property under section 541.

07/14/00 h00333.pdf

In re: David Lee Bohnstengel and Kathleen Cora Bohnstengel (Case No. 98-03996, Filed 09/10/98)
In re: FCC National Bank v. Bohnstengel et al (Case No. 98-98238, Filed 12/08/98)

Section 523(a)(2)(A) action more properly section 523(a)(2)(B). Creditor not deceived, therefore, debt discharged. Inadequate investigation by Creditor mandated award of costs and attorney fees to Debtor under section 523(d).

07/11/00 h00332.pdf

In re: David Wade Copeland (Case No. 00-01767, Filed 05/15/00)

Repeat filer's Ch. 13 petition was dismissed pursuant to section 1307(c) for nonpayment of fees and bad faith filing. Section 349 did not prevent the court from barring new filings for 2 years.

07/10/00 h00331.pdf

In re: Brian Keith Quick (Case No. 98-04868, Filed 11/04/98)
In re: Quick et al v. Quick (Case No. 99-99022, Filed 02/18/99)

Summary judgment granted on section 523(a)(5) issues that were uncontested, but denied where fact question existed concerning intent. Section 523(a)(15) issues must wait on resolution of (a)(5). No prima facie cases established for attorney lien.

06/28/00 h00330.pdf

In re: Patty Jo Capion (Case No. 98-02242, Filed 05/18/98)
In re: Jeffrey Dwayne Bowser (Case No. 98-04140, Filed 09/18/98)

An Iowa Debt Collection Practices Act, I.C. 537.5201 claim is property of the bankruptcy estate in a Chapter 13 case, but the court declined to exercise jurisdiction when the case was closed. The court does not have jurisdiction over a post-petition IDCPA claim. The court retains jurisdiction over a section 362 claim even after the case is closed. Compensatory damages, punitive damages, and attorney's fees awarded.

03/27/00 h00329.pdf

In re: AccessAir, Inc. (Case No. 99-04498, Filed 11/29/99)

Creditors claiming passenger facility charges cannot recover those funds by a motion for adequate protection. Adequate protection is mandated by the Code when requested by a creditor with an interest in property of the estate. It is not available to an unsecured creditor or to a party claiming the estate has no interest in its property. An adversary proceeding is the proper vehicle to recover property, determine an interest in property, or request an injunction or equitable relief.

02/23/00 h00328.pdf

In re: Sara Jo Myrick (Case No. 98-01099, Filed 03/16/98)
In re: Myrick v. Amerus Bank (Case No. 98-98118, Filed 06/19/98)

Under Iowa law the lien of mortgage continues until the debt is paid. Chapter 7 debtor lacked standing to exercise trustees avoidance powers pursuant to § 522(h), because the mortgages were voluntary transfers of property interests.

02/16/00 h00317.pdf

In re: Phelan Rico Thomas and Caryl Denise Thomas (Case No. 97-00706, Filed 02/19/97)

Pursuant to 11 U.S.C. § 362(h) Chapter 13 debtors proved that they sustained damages in the form of attorney fees incurred by responding to the United States' violations of the automatic stay. The award of attorney fees is consistent with 28 U.S.C. § 2412 and offset against the government's claims pursuant to 11 U.S.C. § 106(c).

01/19/00 h00326.pdf

In re: Roy Clinton Faust and Theresa Belle Faust (Case No. 98-00587, Filed 02/17/98)
In re: Universal Bank, N.A. et al v. Faust (Case No. 98-98099, Filed 05/22/98)

Creditor failed to prove requisite intent to deceive in § 523(a)(2)(A) complaint. The use of credit card to make minimum payments on other credit accounts is not automatically fraudulent credit card kiting.

01/09/00 h00070.pdf

In re: Jerome W. Neill and Sharon K. Neill (Case No. 88-01081, Filed 05/17/88)

Trustee entitled to abandon lawsuit in spite of offer to purchase by creditor. Under section 554 (a), Trustee met his burden of demonstrating the lawsuit was of inconsequential benefit and value to the estate.

12/13/99 h00325.pdf

In re: Dickinson & Company (Case No. 99-01039, Filed 03/23/99)

Debtor opposed involuntary chapter 7 petition as bad faith filing. Settlement negotiation posturing does not constitute cause for § 707 dismissal.

12/13/99 h00324.pdf

In re: Iowa Coal Mining Company, Inc. and United Fire & Casualty Co. (Case No. 97-01041, Filed 03/10/97)
In re: Star Coal Mining Company, Inc. and United Fire & Casualty Co. (Case No. 97-01042, Filed 03/10/97)
In re: Superior Coal Company and United Fire and Casualty Co. (Case No. 97-01040, Filed 03/10/97)

Involuntary chapter 7 petition dismissed under § 303 and § 305. Petitioning creditors negotiated as one entity and presented themselves to the court as one creditor with one claim. Debtor was in the best position to maximize the value of the assets for the benefit of the debtor and all the creditors. No costs, fees, or damages awarded. 242 B.R. 661 (S.D.Iowa 1999)

10/13/99 h00323.pdf

In re: Larry W. Conklin and Alyson F. Conklin (Case No. 99-00073, Filed 01/08/99)

Creditor's Motion to Extend Time to File Complaint was deemed timely when filed on the final day of the relevant period. Under Fed.R. Bankr.P. 9006(b)(3) and 4007(c), the court used its discretion to grant an extension of time to file, finding that the creditor acted in good faith, and that prejudice to debtor was minimal.

09/28/99 h00322.pdf

In re: Richard E. Shanahan (Case No. 96-04088, Filed 10/10/96)
In re: Union Pacific Railroad Company v. Shanahan (Case No. 97-97005, Filed 01/07/97)

Pursuant to 11 U.S.C. § 523(a)(2)(A), Debtor could not discharge that part of Creditor debt that had been obtained through "a false representation, or actual fraud." The court further held that § 523(a)(4) did not apply because Debtor owned the payments and therefore he could not embezzle his own property. Creditor's additional assigned claim was dischargeable because the underlying obligation did not involve actionable conduct by Debtor.

09/22/99 h00321.pdf

In re: Dealers Warehouse Company, an Iowa Corp. (Case No. 98-01476, Filed 04/06/98)

The court granted less compensation than was requested by the Unsecured Creditor Committee. The case was neither large nor complex and did not require specialized skills that could only be procured outside of the community. Local billable hourly rate allowed. The court disallowed compensation for services that did not benefit the estate, that were not actual, or that were duplicated.

09/08/99 h00320.pdf

In re: Geoffrey A. Jennings (Case No. 98-02909, Filed 06/29/98)

Debtor's homestead held exempt from Creditor's judgment lien. Debtor's homestead exemption acquired upon acquisition of title and retained because he maintained sufficient equitable interest in the property. Notice of Appeal Filed 9/17/99 Affirmed 11/26/99 Judge Wolle

08/25/99 h00319.pdf

In re: Marlin R. Johnson and Deedra J. Johnson (Case No. 98-04849, Filed 11/03/98)
In re: Johnson et al v. Davis et al (Case No. 98-98223, Filed 11/05/98)

Homestead sold at tax sale. Debtors/Plaintiffs filed for bankruptcy just before hearing on action for Forcible Entry and Detainer. Debtor's prayer that transfer be set aside pursuant to § 548 denied on basis that transfer was for "reasonably equivalent value."

06/01/99 h00318.pdf

In re: Tim Hockey (Case No. 97-02951, Filed 06/24/97)
In re: 310 Community Credit Union et al v. Hockey (Case No. 97-97208, Filed 09/18/97)

Used car salesman/Debtor's debt to credit union found nondischargeable under § 523(a)(2)(A). Debtor's representation that autos were being purchased for personal use was deceptive. Facts and circumstances showed an intent to resell the autos immediately, leaving the credit union in an unsecured position.

05/03/99 h00317.pdf

In re: Louis J. Rizzuti and Jackie A. Rizzuti (Case No. 97-05572, Filed 12/12/97)
In re: Michele L. Faller and Tim C. Faller (Case No. 97-05573, Filed 12/12/97)
In re: Richard Allen Mueller (Case No. 98-00396, Filed 02/04/98)

Trustee's objections to Debtors' homestead exemptions under 11 U.S.C. § 523(a)(2)(A) were overruled where Debtors converted nonexempt assets into exempt homesteads just prior to filing their bankruptcy petitions.

02/16/99 h00316.pdf

In re: Kurt Bales and Bridget Bales (Case No. 98-02048, Filed 05/05/98)

Petition filed in district where Debtors neither lived nor worked which used recently acquired post office box as the Debtor's street address resulted in dismissal of the petition without prejudice and an admonition of Debtor's counsel.

02/08/99 h00315.pdf

In re: Vernon Fred Stodden and Julia Stodden (Case No. 98-00218, Filed 01/21/98)

Employment security contributions due under the Iowa Employment Security Law, Iowa Code Chapter 96, were held to be "taxes" for the purpose of 11 U.S.C. § § 523(a)(1)(A) and 507(a)(8)(D).

02/08/99 h00314.pdf

In re: Caring Angels, Inc. (Case No. 98-01204, Filed 03/20/98)

Bank's voluntary transfer of Debtor's funds on deposit to the trustee extinguished Bank's later asserted right of setoff.

01/19/99 h00313.pdf

In re: Mary E. Broerman (Case No. 97-02569, Filed 06/02/97)
In re: AT&T Universal Card Services v. Broerman (Case No. 97-97203, Filed 09/09/97)

Section 523(a)(2)(A): Credit card debt found to be nondischargeable in case of 'credit card kiting." Debtor with less than $10, 500 in income per year made cash advances totaling $24,388.72 over a 17-month period which were used to make minimum payments on several credit cards.

01/16/99 h00312.pdf

In re: Iowa Jet Services, L.C. an Iowa Corporation (Case No. 98-05481, Filed 12/21/98)

Debtor in Possession's Motions for Turnover and to Use Cash Collateral were denied. Startup company provided no adequate protection for aircraft and had little possibility of rehabilitation. 11 U.S.C. § 1110 did not apply.

12/14/98 h00311.pdf

In re: Elise Nichelle Smith (Case No. 98-03099, Filed 07/13/98)

Court sustained Trustee's objection to Chapter 13 plan as there was no showing that discriminatory treatment of student loan debt was necessary for the debtor to complete the plan.

12/08/98 h00310.pdf

In re: William Joseph Ludwig and Joyce M. (B.) Ludwig (Case No. 97-02562, Filed 05/30/97)
In re: Liberty Savings Bank v. Ludwig et al (Case No. 97-97192, Filed 08/22/97)

523(a)(2)(A); 523(a)(2)(B); 523(a)(6): Debtors' renewed loan held nondischargeable under 523(a)(2)(B) and 523(a)(6). Statements on loan documents that previously provided financial information was correct constituted misrepresentations qualifying for the 523(a)(2)(B) exceptions to discharge. Conversion of collateral secured by Plaintiff for the purpose of satisfying other creditors met the requirements of 523(a)(6). Plaintiff did not establish nondischargeability under 523(a)(2)(A) because the Debtors' statements were respecting their financial condition.

10/29/98 h00309.pdf

In re: Chester L. Gatliff (Case No. 95-03267, Filed 10/27/95)
In re: Rhiner Bros. Plumbing Co., Inc. et al v. Gatliff (Case No. 96-96259, Filed 12/13/96)

Section 523(a)(2)(A): Debt found to be nondischargeable. Subcontractor's recommencing work and foregoing legal right to file mechanics liens after Debtor's construction company knowingly misrepresented that subcontractors would be paid was based on justifiable reliance.

07/30/98 h00308.pdf

In re: John M. Thornton (Case No. 94-02046, Filed 08/16/94)

Debtor sought to reopen the bankruptcy case to add creditors that were previously unscheduled. The Court found other cause for reopening the case; the Court ordered the case reopened, a trustee appointed, and Debtor to file an amended petition and schedules reflecting his true and correct name. The equitable doctrines of laches and judicial estoppel prohibit Debtor from reopening the case as to the debt to Recovery Specialists; that debt is nondischargeable.

07/30/98 h00307.pdf

In re: Dennis Lee Renfrew and Darcy Jo Renfrew (Case No. 97-05085, Filed 11/07/97)

This Court construes Iowa Code § 627.6(8)(e) as requiring debtor's "rights" in payments be on account of one of the triggering events, as opposed to the "payments" being on account of one of the events. Debtor's rights in the SAFECO Annuity payments were on account of the terms of a settlement agreement and were not triggered by a disability, and were not exempt.

07/30/98 h00306.pdf

In re: Dennis Harker (Case No. 97-04088, Filed 09/08/97)

Although this Court dismissed Debtor's earlier Chapter 13 case as a bad faith filing, the Court did not find cause for dismissing the instant Chapter 7 case.

07/30/98 h00305.pdf

In re: Milford R. Fonza and Julie R. Fonza (Case No. 96-04929, Filed 12/05/96)
In re: AT&T Universal Card Services v. Fonza (Case No. 97-97034, Filed 03/07/97)

Section 523(a)(2)(A) Debt found to be nondischargeable. Debtor maxed out the credit card limit within five months, knowing he did not have the ability to repay; his expectation of a class action settlement sufficient to pay the debt that was accumulating was not realistic.

06/10/98 h00303.pdf

In re: Michele L. Faller and Tim C. Faller (Case No. 97-05573, Filed 12/12/97)

The Court denied Creditor's Second Motion for extension of time in which to file a § 523 and/or § 727 complaint. No cause for a second extension was found where Creditor failed to use due diligence in pursuing discovery and there was no showing of unusual circumstances or complexity in the case. Creditor, who had filed state court action six months pre-petition, had opportunity to conduct discovery, had attended &3167 343 meeting, had been granted one extension of time, and 2004 exams, which had been scheduled to accommodate Creditor's counsel's schedule, were not held due to Creditor's counsel's unavailability.

06/10/98 h00302.pdf

In re: Louis J. Rizzuti and Jackie A. Rizzuti (Case No. 97-05572, Filed 12/12/97)

The Court denied Creditor's Second Motion for extension of time in which to file a § 523 and/or § 727 complaint. No cause for a second extension was found where Creditor failed to use due diligence in pursuing discovery and there was no showing of unusual circumstances or complexity in the case. Creditor, who had filed state court action six months pre-petition, had opportunity to conduct discovery, had attended § 341 meeting, had been granted one extension of time, and 2004 exams, which had been scheduled to accommodate Creditor's counsel's schedule, were not held due to Creditor's counsel's unavailability.

06/03/98 h00304.pdf

In re: Harley R. Griffieon (Case No. 97-03649, Filed 08/08/97)

This Court construes Iowa Code § 627.6(8)(e) as requiring debtor's "rights" in payments be on account of one of the triggering events, as opposed to the "payments" being on account of one of the events. Although payments from the Debtor's ex-wife's Iowa Public Employees Retirement System account are triggered by the ex-wife's retirement based on age and length of service. Debtor's rights in those payments are on account of the terms of a dissolution decree, and are not exempt under Iowa law. Individual Retirement Account in which Debtor has access and control over the funds is not exempt under Iowa law.

04/20/98 h00301.pdf

In re: Superior Coal Company and United Fire and Casualty Co. (Case No. 97-01040, Filed 03/10/97)
In re: Iowa Coal Mining Company, Inc. and United Fire & Casualty Co. (Case No. 97-01041, Filed 03/10/97)
In re: Star Coal Mining Company, Inc. and United Fire & Casualty Co. (Case No. 97-01042, Filed 03/10/97)

Members of the Davis Law Firm were disqualified from representing the petitioning creditors in three involuntary bankruptcy cases. Without mandating which ethical standards will apply in all cases, the Court found that in these particular cases, both the Iowa Code of Professional Responsibility for Lawyers and the ABA's Model Rules of Professional Conduct were violated. The appearance of impropriety and one attorney's conflict of interest, imputed to his law firm, could not be rectified by imposition of a Chinese wall.

04/10/98 h00298.pdf

In re: Adella May Payton (Case No. 95-02237, Filed 07/27/95)

Under terms of a dissolution decree, Debtor was to receive a property settlement of $75,000, paid over several years; Debtor was to pay the debt on an $86,000 promissory note and to hold her exspouse harmless thereon. Defendant, Debtor's exspouse, paid off the debt remaining on the promissory note for which he was liable under terms of the security agreement. After Debtor filed bankruptcy, the Trustee sought turnover of the remainder of the property settlement from the ex-spouse. The Court found that, under Iowa law, Defendant would be entitled to a right of setoff that would affect the enforcement of the property settlement, as opposed to modifying terms of the dissolution decree. The Defendant's right of setoff under § 553 defeated the Trustee's cause of action for turnover of property of the bankruptcy estate and summary judgment was granted in his favor.

03/26/98 h00300.pdf

In re: Mark J. Winter and Penelope Winter (Case No. 97-02228, Filed 05/12/97)

The USA's debt under seven-year Production Flexibility Contracts arose pre-petition, although payments would be paid post-petition. The USA's claim against Debtors arose pre-petition. The FSA and CCC are both governmental agencies of the United States and stand in the same capacity for purposes of setoff. Relief from the automatic stay was granted for the USA to exercise its right to setoff under § 553.

03/25/98 h00299.pdf

In re: Ron Lourie (Case No. 97-00046, Filed 01/06/97)

The Court denied Trustee's Motion to Compromise in which the Trustee proposed to settle two matters, a motion for turnover of estate property and a complaint objecting to Debtor's discharge, for an amount far less than the value of the non-exempt assets not disclosed by Debtor.

01/26/98 h00297.pdf

In re: Denise Renee Peckham (Case No. 97-01117, Filed 03/13/97)

The issue before the court was whether Debtor's 3, 153.00 dollars Earned Income Credit was exempt as a "local public assistance benefit" under Iowa Code § 627.6(8)(a). Giving effect to the modifier "local," the Court found the plain language of the Iowa statute does not exempt the federal EIC.

12/23/97 h00296.pdf

In re: Gerald K. Gwinn and Sheryl A. Gwinn (Case No. 96-02948, Filed 07/25/96)

Debtor's Chapter 13 case was dismissed for bad faith filing. Debtors omitted assets from their bankruptcy schedules, provided false tax returns and altered checks, and gave false testimony in court. The USA/IRS' Motion for Sanctions against the debtors was granted and the record left open for determining the amount of monetary sanctions to be assessed.

08/28/97 h00295.pdf

In re: Robert Manuel Phillips (Case No. 91-00073, Filed 01/14/91)

Two groups of creditors objected to Trustee's Final Report on basis that their claims should be recognized as being secured by estate property. The Court found that their judgment liens, arising from a federal criminal restitution order, were not secured by property of the bankruptcy estate. The group with tardily filed claims had previously been determined to be entitled to priority at 11 U.S.C. § 726(a)(3). The Court found that the group of creditors with timely filed proofs of claim were entitled to the priority provided by § 726(a)(2). The Code does not provide for criminal restitution claims to be given elevated priority.

07/21/97 h00294.pdf

In re: Robert Hatcher and Ruth Ann Hatcher (Case No. 96-04248, Filed 10/21/96)

Section 1112(b): Debtors deeded their real property to Allison Financial Corporation. After exhausting their Iowa state court efforts to have the agreement reformed to reflect a mortgage of the home, they faced eviction proceedings and filed a chapter 11 bankruptcy. The principle of collateral estoppel, or issue preclusion, prohibits Debtors' relitigating the validity of the warranty deed and ownership of the property. The court found that debtors' bankruptcy case and plan of reorganization, which depended upon Debtors' keeping the land, were subjectively filed in bad faith and objectively futile. The case was dismissed for cause pursuant to § 1112(b). Affirmed by BAP 3/6/97 Appealed to 8th Cir. 4/9/98

07/21/97 h00293.pdf

In re: Jack E. Penman (Case No. 96-02645, Filed 07/03/96)
In re: Bensley v. Penman (Case No. 96-96201, Filed 10/08/96)

Plaintiff, debtor-Defendant's exspouse, filed a Complaint to determine Dischargeability of debt pursuant to § 523(a)(5) and/or (a)(15). Defendant failed to file a responsive pleading within the statutory time frame or to appear for the scheduled pretrial conference. Defendant was found to be in default after failing to give any good reason for his failures and the Court will hold an evidentiary hearing to establish the truth of the allegations in Plaintiff's complaint before entering a default judgment.

06/24/97 h00292.pdf

In re: Lois Marie Siverly (Case No. 95-01914, Filed 06/28/95)
In re: Sears, Roebuck and Co. et al v. Siverly (Case No. 95-95113, Filed 08/24/95)

Post-petition, sears mailed letters to Debtor's attorney, with a copy sent to debtor. Sears sought a declaratory judgment that iowa code § 537.7103 was either preempted by federal bankruptcy law or, in the alternative, was not violated by their actions. The court found that Sears' conduct was an act to collect a debt under Iowa Code § 537.7013 and violated DR-7-104(A)(1) of the ABA Code of Professional Responsibility and the ABA Rules of Professional Conduct. Federal bankruptcy law and policy do not preempt Iowa Code § 537.7103. Affirmed 4/16/98 N0. 3-97-CV-80175 Judge Wolle Affirmed 5/13/99 Nos. 98-2231 and 98-2407 (Consolidated) Cir. Court of Appeals

06/24/97 h00291.pdf

In re: Joseph Anthony Fasano and Linda Jo Fasano (Case No. 95-02689, Filed 09/06/95)
In re: Norwest Bank Iowa, N.A. v. Fasano (Case No. 95-95166, Filed 12/01/95)

Section 523(a)(2)(A): Case advance against credit card obtained by individual debtor within 60 days prepetition and used in his business was a consumer credit transaction, triggering the rebuttal presumption on section 523(a)(2)(C). The debt was found to be nondischargeable. Affirmed 5/15/95 No. 4-97 CV-90562 Judge Pratt

03/25/97 h00290.pdf

In re: Blake Alan James (Case No. 95-02892, Filed 09/26/95)
In re: James v. James (Case No. 95-95153, Filed 11/15/95)

Section 523(a)(15): Property settlement debt found to be nondishchargeable. Under § 523(a)(15)(A), Debtor failed to show his dire financial situation would continue into the indefinite future, lack of increased earning potential, and inability to pay on the debt in the future. Under § 523(a)(15)(B), the court considered several factors for the cost-benefit analysis and found the debt to be nondischargeable.

03/25/97 j00289.pdf

In re: Ray D. Smith (Case No. 95-02146, Filed 07/20/95)
In re: Wall v. Smith (Case No. 95-95144, Filed 10/19/95)

Section 523(a)(5): Based on circumstances at time of dissolution decree and language of dissolution decree, Debtor's assumption of unsecured debts for which the parties were jointly liable was intended to be in nature of support and therefore nondischargeable.

03/25/97 h00288.pdf

In re: Scott A. Palmerton and Tina M. Palmerton (Case No. 96-00222, Filed 01/22/96)

Payments under settlement agreement lacked a triggering event required under Iowa Code § 627.6(8)(e). There was no evidence that any portion of the payments were triggered by disability. Additionally, tort recoveries are not exempt as disability or illness benefits under Iowa Code § 627.6(8)(c).

03/21/97 h00287.pdf

In re: Robert A. DeLaughter (Case No. 95-02271, Filed 07/31/95)

Debtor's attorney was assessed sanctions under Rule 9011 and the Court's general equitable power of 11 U.S.C. § 105(a). More than four months' time and resources were expended as the Debtor filed unconfirmable plans and withdrew them at the confirmation hearings for which opposing counsel prepared and appeared. Debtor's counsel attempted to summarily decide domestic relations issues that are for a state court to resolve and are outside the jurisdiction of the bankruptcy court. Affirmed by BAP 10/27/97

10/09/96 h00286.pdf

In re: Steven Craig Souers and Mary Claire Souers (Case No. 93-00971, Filed 04/12/93)
In re: Rosen's, Inc. v. Souers et al (Case No. 96-96174, Filed 08/23/96)

Plaintiffs brought a complaint in effort to enforce earlier money judgment issued by this Court. A preliminary injunction issued preventing Steven and Mary Souers from harvesting, transferring, encumbering, or disposing of crops or proceeds thereof without 10-day notice to the other parties. Receiver not appointed. The court recommended that the district court withdraw reference and abstain from the proceeding because state law issues predominate Counts I and II; Count III is civil RICO action over which state courts have concurrent jurisdiction.

06/14/96 h00285A.pdf

In re: Dennis Harker (Case No. 95-01417, Filed 05/16/95)

Debtor filed his chapter 13 case as a litigation tactic to avoid posting an appeal bond in a Tax Court decision on appeal to the Eighth Circuit Court of Appeals. This court found the bankruptcy was filed in bad faith and was subject to dismissal or conversion for cause pursuant to § 1307(c). Affirmed- Wolle 9/6/96 - WL 905909 Affirmed by U.S. Court of Appeals 4/25/97 112 F.3rd 513 Cert. denied 118 S.Ct. 686 (1998) 1996 WL 90510 (S.D. Iowa June 14, 1996)

06/14/96 h00285.pdf

In re: Steven Craig Souers and Mary Claire Souers (Case No. 93-00971, Filed 04/12/93)
In re: Rosen's Inc. v. Souers et al (Case No. 93-93080, Filed 06/22/93)

Plaintiff and Intervenor were not creditors and lacked standing to object to Debtor wife's discharge. Debtor husband was denied a discharge where fraudulent intent was inferred from a culmination of five instances where he, under oath, knowingly made false statements material to the case. Plaintiff and Intervenor were awarded attorney fees and costs. Affirmed by Judge Vietor 9/30/97

03/26/96 h00284.pdf

In re: Helen G. McCord (Case No. 92-03031, Filed 10/08/92)

Motion and Objection constituted an amendable informal proof of claim despite the fact that such documents were filed prior to the Notice of Need to File Proof of Claim.

09/11/95 h00283.pdf

In re: John L. Henss (Case No. 93-02401, Filed 09/22/93)

The court found that the debt was prior in time to any homestead rights and the homestead was non-exempt as to that obligation. An ESOP was also held to be non-exempt as it was not "ERISA qualified", a spendthrift trust, nor excludable under Iowa Code § 627.6(8)(e). Appeal filed 10/11/95 Affirmed by J. Wolle 6/10/96 Affirmed by 8th Cir. 5/19/97

05/26/95 h00282.pdf

In re: Chapala International, Inc. (Case No. 94-01208, Filed 05/09/94)

Guarantor is equitably subrogated to secured position by virtue of payment of guaranty. Plan cannot be confirmed over the objection of a secured creditor whose claim is impaired.

05/11/95 h00281.pdf

In re: Stanley Joseph Messerschmidt and Mary Sue Messerschmidt (Case No. 95-00226, Filed 01/27/95)

Iowa Code § 554.9203(1)(a): Security interest does not attach to growing crops unless security agreement correctly describes real estate. Any interest which attaches upon harvest as "all farm products" is junior to prior secured interest. Debtors granted permission to use crop proceeds to pay loans and finance 1995 crops. Section 1325: Payments made directly to creditors create feasibility and classification problems.

05/01/95 h00280.pdf

In re: Paul Kemp (Case No. 94-01763, Filed 07/13/94)

Iowa Code § 627.6(8)(e): annuity arising from personal injury settlement is not exempt as no triggering event contemplated by the statute occurred which resulted in right to payment.

04/20/95 h00279.pdf

In re: Wade E. Spoonhaltz (Case No. 94-00531, Filed 03/03/94)

Section 523(a)(6); Iowa Code § 708.2(2): Conviction of criminal assault was not entitled to collateral estoppel effect on issue of malice. Issue of malice was not fully litigated in civil proceeding.

10/20/94 h00278.pdf

In re: Carbo Co (Case No. 94-02094, Filed 08/22/94)

Judge Hill disqualified himself from presiding based on his close social relationship with an officer of the debtor corporation.

10/19/94 h00277.pdf

In re: Cheryl L. Boughner (Case No. 93-00896, Filed 04/05/93)
In re: Kirk v. Boughner et al (Case No. 93-93099, Filed 07/12/93)

Section 727(a)(2)(A): Preponderance of the evidence is the proper standard of proof. 173 B.R. 406 (Bankr. S.D. Iowa 1994)

10/19/94 h00276.pdf

In re: William D Pierce and Debra K. Pierce (Case No. 93-01377, Filed 05/24/93)
In re: DuPuy et al v. Pierce et al (Case No. 93-93124, Filed 08/20/93)

Section 523(a)(2)(A): Continuing performance on a contract despite knowledge of alleged discrepancies does not entitle movant to summary judgment on element of reliance. 1994 WL 578444

09/30/94 h00275.pdf

In re: Khadija Michelle Ibrahim (Case No. 89-01866, Filed 08/24/89)
In re: Ibrahim et al v. Iowa College Aid Commission et al (Case No. 93-93168, Filed 12/01/93)

Fed. R. Civ. P. 36: Request for Admissions may be deemed admitted. Fed. R. Civ. P. 56(c): Admissions on file are an appropriate basis for entry of summary judgment.

09/30/94 h00274.pdf

In re: Robert B. Kelly (Case No. 93-01368, Filed 05/24/93)

42 U.S.C. § 407: Award from Social Security Administration for past disability benefits was exempt if funds retained the "qualities of moneys." A savings account was readily withdrawable and found to be exempt. However, a certificate of deposit did not retain the "qualities of moneys" and was non-exempt under section 407 and Iowa Code § 627.6(8)(a). John Deere Appeal filed 10/6/94 Affirmed by Judge Wolle 1/13/95 No. 3-94-CV-80185

06/21/94 h00273.pdf

In re: Bernhard Gerald Wiltfang and B. Bernadine Wiltfang (Case No. 86-00146, Filed 01/21/86)
In re: HUSZ ROBERT LAEL (Case No. 86-00113)

Section 523(a)(2)(A), section 523(a)(6): Plaintiff Iske failed to prove elements by a preponderance of evidence; Court awarded damages on counterclaim for breach of contract and conversion of property. Appeal filed 8/16/94 Dismissed with Prejudice 1/24/95

06/21/94 h00272.pdf

In re: Bernhard Gerald Wiltfang and B. Bernadine Wiltfang (Case No. 86-00146, Filed 01/21/86)
In re: THOMPSON JEROME CLAUDE (Case No. 86-00112)

Sections 523(a)(2)(A), and section 523(a)(6): Plaintiff failed to prove elements by a preponderance of evidence; Court awarded damages on counterclaim for breach of contract and conversion of property. Appeal filed 8/16/94 Dismissed with Prejudice 11/2/94

06/20/94 h00271.pdf

In re: William Thomas Monroe and Katherine Ann Monroe (Case No. 92-02565, Filed 08/25/92)
In re: Monroe et al v. HEAF et al (Case No. 93-93081, Filed 06/23/93)

Section 523(a)(8): Consolidation loan must have become due more than seven years before filing of petition despite the fact that the original loans became due more than seven years before.

04/26/94 h00270.pdf

In re: Lyle Stephen Koss and Virginia Ruth Koss (Case No. 93-01707, Filed 06/28/93)
In re: Koss et al v. Sallie Mae Loan Servicing Center et al (Case No. 93-93114, Filed 08/06/93)

The court denied Plaintiff's motion for default after weighing several factors and imposing conditions to compensation of Plaintiff's attorney fees and expenses.

04/18/94 h00269.pdf

In re: Robert Manuel Phillips (Case No. 91-00073, Filed 01/14/91)

Amenable informal proof of claim was not timely. Section 726: Claim should be allowed as a tardily filed claim as tardiness is not grounds for disallowance in Chapter 7. 166 B.R. 129 (Bankr. S.D. Iowa 1994)

04/15/94 h00268.pdf

In re: Keith E. McCammant (Case No. 91-03633, Filed 12/11/91)

Section 522(f)(1): Entitlement to an exemption and entitlement to lien avoidance are separate questions. Appeal filed by Debtor 4/25/94

03/18/94 h00267.pdf

In re: Charles Dennis Henderson (Case No. 92-02739, Filed 09/10/92)
In re: Henderson et al v. Henderson et al (Case No. 92-92230, Filed 12/02/92)

Motion for judgment on the pleadings treated as motion for summary judgment pursuant to Fed. R. Civ. P. 12(c). Debt was assigned and, therefore, dischargeable pursuant to § 523(a)(5)(A).

03/17/94 h00266.pdf

In re: Harold S. Unternahrer (Case No. 94-00038, Filed 01/07/94)

The court dismissed the case upon finding that the petition was filed in bad faith.

02/25/94 h00265.pdf

In re: Building Maintenance Serv Of Ia Inc (Case No. 90-00322, Filed 02/08/90)

The court amended its previous findings to provide for damages for attorney fees and to include additional findings of conduct as the basis for exemplary damages. Notice of Appeal by Plaintiffs filed 3/7/94 Withdrawal of Notice of Appeal 5/6/94

02/11/94 h00264.pdf

In re: Pamela A. Michelfelder (Case No. 92-00550, Filed 02/19/92)
In re: American Family Service Corporation v. Michelfelder (Case No. 92-92099, Filed 05/20/92)
In re: Theodore J. Michelfelder (Case No. 92-02456, Filed 08/12/92)
In re: American Family Service Corporation v. Michelfelder (Case No. 92-92221, Filed 11/10/92)

The court refused to exclude untimely filed witness lists as no prejudice resulted.

02/09/94 h00263.pdf

In re: Michael LeRoy Rote (Case No. 92-02401, Filed 08/07/92)

Section 362: while fraudulently transferred property is not property of the estate until recovered, actions to recover such property by a creditor are "actions to recover a claim against the debtor" and prohibited by the automatic stay. Court declined to award damages for violation of stay pursuant to § 362(h) as no injury was proven.

02/09/94 h00262.pdf

In re: Stephen K. Thielking (Case No. 93-02574, Filed 10/12/93)

Section 362: While fraudulently transferred property is not property of the estate until recovered, actions to recover such property by a creditor are "actions to recover a claim against the debtor" and prohibited by the automatic stay. 163 B.R. 543 (Bankr. S.D. Iowa 1994)

01/31/94 h00261.pdf

In re: Steven Craig Souers and Mary Claire Souers (Case No. 93-00971, Filed 04/12/93)
In re: Souers et al v. Nevada Ready Mix et al (Case No. 93-93079, Filed 06/22/93)

Mechanics lien was not avoidable pursuant to § 522(b) as it was excepted from avoidance under § 547(c)(6). Lien was statutory and unavoidable under § 545(2) as it was perfected against bonafide purchasers. 163 B.R. 346 (Bankr. S.D. Iowa 1994)

01/25/94 h00260.pdf

In re: Kenneth Lynn Israel and Dee Ann Israel (Case No. 91-00091, Filed 01/15/91)

Sections 503(b)(1) and 346(d): Post-petition taxes not entitled to administrative expense status. Sections 1305 and 507(a)(7): post petition taxes allowable and entitled to status of unsecured priority claims.

01/10/94 h00259.pdf

In re: Raymond N. Kenkel and Evelyn Kenkel (Case No. 86-00832, Filed 03/26/86)

Judicial conduct did not require recusal. Section 350: Motion to reopen case denied where trustee could no longer bring action to recover fraudulently transferred property as two year period had long expired.

01/05/94 h00258.pdf

In re: Daniel Dewey Swanson and Dana Ann Swanson (Case No. 92-02774, Filed 09/15/92)
In re: Mercantile Bank of Illinois N.A. v. Swanson et al (Case No. 92-92238, Filed 12/14/92)

Section 523(a)(2)(A): Creditor failed to prove that Debtor intended to deceive the creditor at the time he received cash advance. Therefore, debt was dischargeable.

12/30/93 h00256.pdf

In re: Laton Carl Goodson and Wilma Louise Goodson (Case No. 87-01282, Filed 05/11/87)
In re: Goodson et al v. Edwards et al (Case No. 92-92060, Filed 03/26/92)

Intervening contract holders' interests declared void under theories of novation and equitable estoppel. Appellant's Appeal Denied June 3, 1994. J. Wolle Case No. 1-94-CV-80012

12/06/93 h00256.pdf

In re: Shull Enterprises (Case No. 93-01933, Filed 07/29/93)

Because lease was validly terminated prior to bankruptcy filing, court ordered relief from stay to allow lessor to obtain possession of property. Court declined to resurrect lease under equitable considerations.

11/16/93 h00255.pdf

In re: Sunset Amusement, Ltd (Case No. 91-00727, Filed 03/13/91)
In re: Neiman v. Corieri et al (Case No. 92-92117, Filed 06/23/92)

Trustee was not entitled to recover fixtures installed in leased premises due to unreasonable delay, failure to make offer to repair, and default.

11/16/93 h00254.pdf

In re: Pester Refining Company (Case No. 85-00340, Filed 02/25/85)
In re: WALKER JOSEPH E (Case No. 85-00192)

Earnings on Paying Agent Account not subject to garnishment by Ethyl Corp: 1. Funds subject to prior security agreement; and 2 Defendant had no interest in such funds.

11/15/93 h00253.pdf

In re: Joseph T. Courtney (Case No. 93-01056, Filed 04/21/93)

Section 1322(b)(1) provides an exception to the unfair discrimination standard for co-signed consumer debts.

09/29/93 h00252.pdf

In re: Kelly Sedivec (Case No. 93-01458, Filed 06/02/93)

Court granted relief from stay to allow the apportionment of Debtor's fault in a pending state court action in which Debtor was a third-party defendant.

09/29/93 h00251.pdf

In re: Ronald W. Witt (Case No. 92-02228, Filed 07/21/92)

Court refused to sever the equitable portion of pending lawsuit and granted trustee's motion to sell the entire asset. Abandonment was not proper as asset was not of inconsequential value and sale of the entire asset was in the best interest of estate.

09/29/93 h00250.pdf

In re: David C. Rosenberger (Case No. 90-00224, Filed 01/26/90)
In re: Daniel Earl Jones and Karen Ann Jones (Case No. 90-00240, Filed 01/30/90)

Section 523(a)(2)(A): Plaintiff failed to prove reliance upon Debtor's misrepresentation. Section 523(a)(6): Debtor's conduct did not rise to the level of "malice." Notice of Appeal filed Nov. 29, 1993 by Plaintiff Greyhound Affirmed June 3, 1994 J. Longstaff Case No. 4:94-CV-1004

08/25/93 h00249.pdf

In re: James John Thomas and Kathleen Louise Thomas (Case No. 92-00476, Filed 02/13/92)
In re: Thomas et al v. Iowa Dept. of Human Services et al (Case No. 92-92089, Filed 05/06/92)

Section 523(a)(5): AFDC reimbursement debt was nondischargeable. Section 362, section 522(c)(1): Interception of tax refunds violated stay but funds had since been claimed as exempt and were subject to state's claim.

08/23/93 h00248.pdf

In re: Stephen R. Krantz (Case No. 91-01599, Filed 05/31/91)
In re: Berger et al v. Darrell Loan et al (Case No. 92-92075, Filed 04/10/92)

Section 542(a): recovery from cause of action for fraudulent misrepresentation was subject to turnover.

07/30/93 h00247.pdf

In re: Thomas E. Mowrer and Melanie K. Mowrer (Case No. 92-01400, Filed 05/01/92)
In re: Mowrer et al v. Racoon Valley State Bank et al (Case No. 92-92183, Filed 09/17/92)
In re: Raccoon Valley State Bank v. Mowrer et al (Case No. 93-93044, Filed 04/07/93)

Iowa Code § 561.22: waiver of homestead exemption effective despite illegible portion and claim that debtor failed to understand rights. Failure to object to exemption claim did not bar creditor from disputing exemption when exemptions waived in prepetition agreement. Order granting Motion to Alter or Amend Judgment 10/1/93

06/30/93 h00246.pdf

In re: Midwest Power Concepts, Ltd Inc. (Case No. 92-01874, Filed 06/12/92)

Section 330(a): Court allowed debtor's attorney 15 cents per copy for photocopying costs. Court also allowed compensation for services related to the filing of a claim on behalf of a creditor upon the finding that such services benefited the estate.

06/16/93 h00245.pdf

In re: William Daniel Pedersen and Gayle Larae Pedersen (Case No. 90-00099, Filed 01/16/90)
In re: Hannan, Trustee v. Public Employees Benefit Services Corporation, Pla (Case No. 91-91194, Filed 09/23/91)

Governmental deferred compensation plan established under 26 U.S.C. § 457 is not excluded from property of estate by 11 U.S.C. § 541(c)(2). Plan was not a trust. 155 B.R. 750 (Bankr. S.D. Iowa 1993)

06/07/93 h00244.pdf

In re: Building Maintenance Serv Of Ia Inc (Case No. 90-00322, Filed 02/08/90)

Section 510(c): Equitable subordination denied upon finding of no inequitable conduct by claimant. Subordination agreement entitled Defendant to collect any deficiency out of first 350,000 dollars of claims to which Plaintiff would have been entitled. Damages awarded for conversion of collateral along with punitives for willful and wanton disregard.

05/25/93 h00243.pdf

In re: Rick Arthur Seibel (Case No. 88-00210, Filed 02/02/88)

Section 542: Personal injury litigation proceeds are property of the estate and subject to turnover as property the trustee could use or debtor might claim as exempt. Section 328: Attorney compensation is subject to court review. Absent a conflict with federal law, choice of law rules of the forum state apply. Law firm that distributed property of the estate to debtor without authorization held jointly and severally liable with debtor for funds.

05/24/93 h00242.pdf

In re: Dean Edwin Springer (Case No. 92-01239, Filed 04/16/92)

Iowa Code § 561.16: Debtor's claim of homestead exemption denied in property x where debtor had used property y as homestead and a lien had attached to property x while it was not being used as a homestead.

04/21/93 h00241.pdf

In re: Traci Lynn Braden (Case No. 92-00174, Filed 01/21/92)

Section 523(a)(9): State case law providing that immune parties could not be implead in products liabilities cases for the purpose of fault apportionment did not require summary judgment for defendant-debtor. Debtor's obligation found to be nondischargeable because of debtor's unlawful operation of vehicle while intoxicated.

04/16/93 h00240.pdf

In re: Jon D. Weets (Case No. 92-01075, Filed 04/03/92)
In re: Weets v. Lage-Weets et al (Case No. 92-92163, Filed 07/06/92)

Section 523(a)(5): Debts intended as alimony nondischargeable; but debt for business loan dischargeable even though labeled as "alimony not dischargeable" in bankruptcy.

04/05/93 h00239.pdf

In re: Travis Yourdon (Case No. 90-03311, Filed 12/31/90)

Section 541: Portion of debtor's income tax refunds attributable to prepetition portion of taxable year in property of the estate.

03/08/93 h00238.pdf

In re: Rose Way, Inc. (Case No. 89-01273, Filed 06/08/89)
In re: McCuskey v. Signal Capital Corporation (Case No. 92-92124, Filed 07/02/92)

section 546(a)(1): Appointment of a trustee under any chapter starts two-year statute of limitations for actions limited by § 546. Reversed by Judge Longstaff 10/19/93 8th Cir. court of Appeals reversed District Court; Remanded to Bankruptcy Court for dismissal 10/24/94

02/08/93 h00237.pdf

In re: Sondra Kay Krehbiel (Case No. 91-02777, Filed 09/20/91)

Section 109(e): Chapter 13 trustee failed to carry burden of proof on whether debtor's unsecured, nonprioity, noncontingent, liquidated debts exceeded eligibility limits.

02/02/93 h00236.pdf

In re: John Patrick Nelson and Jerrilee Ann Nelson (Case No. 91-00676, Filed 03/08/91)

Section 506(a): The extent to which a tax claim is secured is determined with reference to the estate's interest in exempt as well as nonexempt property.

01/11/93 h00235.pdf

In re: Daniel J. Reinhart (Case No. 89-02722, Filed 12/04/89)
In re: Michael Lane Clark and Jennifer Clark (Case No. 90-00069, Filed 01/11/90)

Section 523(a)(6): Debt arising out of mere breach of contract absent any showing that the purpose of the breach was to cause is dischargeable.

01/06/93 h00234.pdf

In re: Equity Truck Leasing, Inc. (Case No. 92-03152, Filed 10/20/92)

Section 363: Chapter 11 trustee's application to enter into long-term lease-purchase agreements for trucks in the ordinary course of business granted. Appeal filed 1/7/93 by Norwest Bank Iowa (Stipulation for dismissal of Appeal filed 5/27/93) 149 B.R. 120 (Bankr. S.D. Iowa 1993)

12/07/92 h00233.pdf

In re: First Continental Communications, Inc. (Case No. 91-02344, Filed 08/01/91)
In re: Des Moines Area Community College et al v. First Continental Communications, Inc. et al (Case No. 91-91222, Filed 10/29/91)

Iowa Code sections 684A and 280B: Recommendation that District Court certify questions of state law to Iowa Supreme Court. Questions involved application and constitutionality of previously unconstrued statute.

11/16/92 h00232.pdf

In re: Judith Anne Stader (Case No. 91-02910, Filed 10/07/91)
In re: Stadler v. Merchant's Firstar et al (Case No. 92-92002, Filed 01/02/92)

Section 523(a)(8) applies to non-student obligators of educational loans; therefore, such obligations are nondischargeable.

11/16/92 h00231.pdf

In re: William Leon Frieze and Peggy Carr Frieze (Case No. 91-02987, Filed 10/15/91)

Lease v. security agreement issue turns on which party has proprietary interest in property. Truck reefer is tool of the trade for exemption purposes.

10/06/92 h00292.pdf

In re: John F. Geneser (Case No. 90-02531, Filed 09/28/90)
In re: Jerry D. Summers and Linda K. Summers (Case No. 90-00211, Filed 01/25/90)

§ 727: Rejecting debtor's argument that he transferred property in trust, court found he had transferred car and truck to daughter for no consideration in order to avoid IRS seizure of the property.

08/03/92 h00229.pdf

In re: Richard R. Scharff and Ok Hee Scharff (Case No. 92-01506, Filed 05/08/92)

Section 362: Creditor exercising rights of recoupment without application to court violated stay. 143 B.R. 541 (Bankr. S.D. Iowa 1992)

08/03/92 h00228.pdf

In re: Aztec Concrete, Inc. and Martin Marietta Aggregate (Case No. 91-00152, Filed 01/22/91)
In re: Shodeen v. Davenport Cement Co. et al (Case No. 91-91199, Filed 10/03/91)

Section 547: Iowa law does not yield clear answers on priority issues; garnishing creditor who serves notice of garnishment prior to 90 days before bankruptcy did not receive preferential payment even though condemnation of funds occurred within 90 days.

07/14/92 h00227.pdf

In re: Earl William Albers (Case No. 90-03295, Filed 12/28/90)
In re: Albers v. Albers et al (Case No. 91-91054, Filed 03/21/91)

Section 523(a)(5): Debt found to be dischargeable divorce property settlement.

07/01/92 h00226.pdf

In re: Gerald Edward Brockman and Carmen Deborah Brockman (Case No. 91-00922, Filed 04/01/91)

Section 522(f): Debtor can avoid lien in personal property where lien and property have been awarded pursuant to divorce decree-- but only to the extent lien attached to interest of the debtor. See Macke, 136 B.R. 209.

06/22/92 h00225A.pdf

In re: Finley Fredrick Mondia (Case No. 91-01768, Filed 06/14/91)

Section 350(b): Motion to reopen case in order to reaffirm debts denied, where reaffirmation or an extension of time to reaffirm was not sought before discharge.

06/04/92 h00225.pdf

In re: Finley Fredrick Mondia (Case No. 91-01768, Filed 06/14/91)

28 U.S.C. 586: Chapter 13 trustee's percentage fee is calculated from all payments received by the trustee.

06/02/92 h00224.pdf

In re: Robert V. Brown and Sue A. Brown (Case No. 82-01857, Filed 12/27/82)

Section 503(b): Bankruptcy estate continues to exist in a chapter 13 case after confirmation of a plan. Costs and expenses of preserving estate given priority status under § 503(b). Section 510(c): Subordination. Aff'd Civial No. 4-92-70452 (S.D. Iowa Sept. 28, 1992) Judge Vietor Aff'd sub. nom. Security Bank of Marshalltown, Iowa v. Neiman, 1 F.3rd 687, 62 USLW 2102, Bankr. L. Rep. P75,361 (8th Cir. Iowa, August 2, 1993 No. 92-3443)

05/28/92 h00223.pdf

In re: Countryside Investment Company (Case No. 88-00554, Filed 07/25/88)
In re: Audie J. Brockert and Julie D. Brockert (Case No. 90-00061, Filed 01/11/90)

Summary Judgment: Principles of res judicata, merger did not preclude creditor from proceeding against additional collateral after foreclosing mortgage without taking a defiency judgment. Court had insufficient evidence to grant summary judgment on issue of commercial reasonableness of application of funds against debt.

05/14/92 h00222.pdf

In re: NICHOLS STANLEY RUSSELL (Case No. 82-00162)
In re: Gary Vance Lewellyn (Case No. 82-00766, Filed 05/24/82)
In re: HEATON ALAN L (Case No. 86-00050)

Section 547: Court denied Trustee and Securities Investor Protection Corp's motion to apportion 91 percent of preference litigation costs to FDIC because apportionment was not supported by statutory law or agreement between parties.

04/28/92 h00221.pdf

In re: Betty M. Karas (Case No. 91-02890, Filed 10/04/91)

Section 362: Hospital's claim that it did not have proper notice because of incorrect address on schedules was rejected. Hospital had actual knowledge of bankruptcy filing: Hospital held in contempt for collection efforts.

04/09/92 h00220.pdf

In re: Gregory Earl Sexton (Case No. 91-02204, Filed 07/29/91)

Iowa Code § 627.6(9)(c): Wages includes earnings that represent compensation for personal services.

03/30/92 h00219.pdf

In re: Ralph John Eaton (Case No. 91-00945, Filed 04/03/91)

Sections 521 and 707: Creditors not entitled to bring allegation under section 521 or 707, which are more properly addressed under sections 727 or 523.

03/30/92 h00218.pdf

In re: Holiday Associates Limited Partnership (Case No. 90-02617, Filed 10/10/90)

Section 1129: Confirmation denied because Plan not feasible and it violated absolute priority rule. section 362(d): Motion for Relief from Stay granted because effective reorganization not in prospect. 139 B.R. 711 (S.D. Iowa 1992)

02/06/92 h00217.pdf

In re: Aztec Concrete, Inc. and Martin Marietta Aggregate (Case No. 91-00152, Filed 01/22/91)

01/31/92 h00216.pdf

In re: Russell H. Buchanan (Case No. 89-02774, Filed 12/08/89)
In re: Reggie Tighe and Stacey Tighe (Case No. 90-00230, Filed 01/29/90)

Section 727: While defendant satisfactorily explained loss of assets, the court found he knowingly and fraudulently made a false oath re the case. Court also found debtor transferred and concealed assets with intent to defraud under the continuing concealment doctrine. Thus, debtor was denied discharge. Section 523(a): Statement regarding financial condition was oral, not in writing and therefore inadequate to find debt nondischargeable. Aff'd Civil No. 4-92-70182 (S.D. Iowa June 29, 1992) Judge Vietor

01/28/92 h00215.pdf

In re: Dana LaMar LisenBee (Case No. 91-01674, Filed 06/06/91)

§ 365: Secured creditor/lessor applied for assumption/rejection of car lease contract. Lease had been accepted. Court would not construe creditor's application as objection to plan treatment of creditor's claim. Aff'd Ford Motor v. Lisenbee Case No. 3-92-CV 80038 (S.D. Iowa filed 5/27/92) Hon. Charles R. Wolle

01/24/92 h00214.pdf

In re: Arthur M. Kagin (Case No. 88-00796, Filed 04/13/88)
In re: Harry E. Saxton and Ruth B. Saxton (Case No. 88-00191, Filed 01/29/88)

Sections 523(a)(2), (4) and (6): Plaintiff failed to prove fraud, falsity, embezzlement or willful and malicious conversion by preponderance of the evidence.

01/21/92 h00213.pdf

In re: Dwight A. Sterk (Case No. 91-01585, Filed 05/29/91)

Section 1325(a)(3): Plan not proposed in good faith when purpose was to discharge tort claim without effort at payment and where debtor was deceptive.

01/21/92 h00212.pdf

In re: Gregory A. Meyer and Wendy L. Meyer (Case No. 90-01592, Filed 06/15/90)

Adv. 192 Section 523(a)(8): Allocation of burdens and factors used to determine "under hardship" discussed in relation to student loans.

01/13/92 h00211.pdf

In re: Joseph F. Macke (Case No. 91-00178, Filed 01/24/91)

Section 522(f): Divorce decree lien unavoidable. 136 B.R. 209 (Bankr. S.D. Iowa 1992)

01/10/92 h00210.pdf

In re: Frederick A. Foreman (Case No. 91-01026, Filed 04/10/91)

Section 1322: Separate classification of student loan debts separate from other unsecured debts and payment of student loan debt with secured debts prior to other unsecured debt did not unfairly discriminate. 136 B.R. 532 (Bankr. S.D. Iowa 1992)

01/08/92 h00209.pdf

In re: Paula Jean Brown (Case No. 89-02403, Filed 10/27/89)
In re: Donna Marie Norris (Case No. 90-00028, Filed 01/05/90)

Section 523(a)(2): Statement re employment status and income level made on application for ADC is a statement respecting financial condition. Despite being true when made, it became false when debtor had continuing duty to update financial information, ADC overpayments were found to be a nondischargeable debt.

12/30/91 h00208.pdf

In re: Rose Way, Inc. (Case No. 89-01273, Filed 06/08/89)
In re: Curtis Duane Block (Case No. 90-00186, Filed 01/24/90)

F.R.C.P. 55: Bankruptcy Court recommended that default judgment be entered for failure to defend despite District Court referral of rate reasonableness issue to I.C.C.

12/30/91 h00207.pdf

In re: Glen Amos Miller and Patricia A. Miller (Case No. 90-01393, Filed 05/23/90)

Adv. 177 Section 106(c): Sovereign immunity bars court order requiring IRS to apply funds levied prepetition against the nondischargeable portion of their tax obligation.

12/18/91 h00206.pdf

In re: Johnson Co Abstract & Title (Case No. 90-01000, Filed 04/12/90)

Sections 327,330, and 331: Nunc pro tunc orders for compensation for services performed prefiling approved.

11/29/91 h00205.pdf

In re: Alan Ray Buschmann and Kimberly Rae Buschmann (Case No. 91-00799, Filed 03/20/91)

Section 363: Trustee's sale of farmland free and clear of lien; Agricultural Credit Act.

11/25/91 h00204.pdf

In re: Barry Galen Ross (Case No. 90-01649, Filed 06/19/90)
In re: Brian S. Elias and Wanda J. Elias (Case No. 90-00171, Filed 01/22/90)

Section 523(a)(5): Factors for determining whether property settlement or alimony. Creditor won state court litigation declaring debt a property settlement. Debt not related to support payments.

11/22/91 h00203.pdf

In re: Joseph Marion Neill and Mickey Mary Neill (Case No. 90-02754, Filed 10/25/90)

Res judicata: Junior lienholder's claim not extinguished by res judicata where senior lienholder foreclosed and defendant/junior lienholder's cross-petition is that foreclosure was not addressed by the state district court. Affirmed USA v. Neill, No. 3-88-CV-80117 (S.D. Iowa, filed July 30, 1992) Judge Wolle

11/21/91 h00202.pdf

In re: George W. Bauswell and Lisa Ann Bauswell (Case No. 90-02827, Filed 10/31/90)
In re: Tucker v. Bauswell et al (Case No. 91-91010, Filed 01/17/91)

Section 523(a)(6): Collateral estoppel effect given to state court judgment for willful and malicious conduct. Summary judgment: debt nondischargeable.

11/21/91 h00201.pdf

In re: Gary L. Phillips and Phyllis Phillips (Case No. 91-02366, Filed 08/05/91)

Section 341 meeting: Meeting of creditors is an administrative, not judicial, proceeding whose presiding officer, the U.S. trustee, is not a "judicial officer." Reimbursement for the appointment of an interpreter (sign language), requires a prehearing request. 28 U.S.C. § 1827.

11/20/91 h00200.pdf

In re: William Carlton Falls and Lorie Lynn Falls (Case No. 91-00824, Filed 03/21/91)

Section 1325(b): Monthly expense of 60 dollars for dog food violated disposable income requirement. Section 1322(c): Plan proposing 48 month term instead of 60 month term was not proposed in bad faith.

11/18/91 h00199.pdf

In re: Edio D. Micozzi and Huquette P. Micozzi (Case No. 91-01021, Filed 04/09/91)

Motion for Relief from Stay: State court default judgment terminating debtors' rights in lease is res judicata. Terminated lease agreement can't be resurrected by filing bankruptcy. No equity in property and property not necessary to an effective reorganization; reorganization not in prospect. Motion to Convert: Case converted to Chapter 7 for failure to pay fees.

10/07/91 h00198.pdf

In re: Michael G. Strait and Nancy L. Strait (Case No. 90-01252, Filed 05/07/90)

Attorney entitled to fees for prepetition services: analyzing finances, advice and assistance on whether to file, preparation for filing, and representation at first meeting of creditors.

10/03/91 h00197.pdf

In re: Angela Marie Davis (Case No. 91-00768, Filed 03/15/91)

Section 541(a)(1): Earned income credit is property of the estate. I.C. § 627.6(8)(a): Earned income credit is exempt as a public assistance benefit. I.C. § 627(9)(c) does not affect a trustee's attempt to collect accrued wages and tax refunds.

09/26/91 h00196.pdf

In re: Scottish Links, Inc. (Case No. 91-01160, Filed 04/22/91)

Prepetition fees allowed, § 330(a)(1), for background research on Debtor's financial condition to determine whether to file bankruptcy; reasonable time to obtain information; and, reasonable time for drafting petition, statements, and schedules.

09/11/91 h00195.pdf

In re: Brent Michael Warner (Case No. 91-00492, Filed 02/20/91)

Chapter 13 plan confirmation denied because it failed to provide interest on secured claim, § 1325(a)(5); failed to require insurance on vehicle serving as collateral; and because retention of and payments on off-road motorcycle violated disposable income requirements of § 1325(b)(1)(B).

09/11/91 h00194.pdf

In re: Brent Michael Warner (Case No. 91-00492, Filed 02/20/91)

While Debtor lacked equity in insurance proceeds of totalled car, proceeds were necessary to reorganization to enable debtor to obtain a replacement vehicle.

09/06/91 h00193.pdf

In re: Craig E. Spitzer (Case No. 90-01647, Filed 06/19/90)

Payment of secured claim "outside" Ch. 13 plan is permissible. Disposable income increased over life of plan, once car payments were complete; thus, plan payments msut be increased. Car valued as of confirmation date for purposes of determining secured status.

08/30/91 h00192.pdf

In re: Kim M. Vyverberg (Case No. 90-01463, Filed 05/31/90)

Chapter 13 plan discharging student loan debt confirmed where bankruptcy was filed prior to the 1990 amendments, which restricted discharge of student loans in Ch. 13.

08/30/91 h00191.pdf

In re: Jeffrey David Sieglaff and Teresa Sue Sieglaff (Case No. 91-00473, Filed 02/19/91)

Chapter 13 plan may not classify student loan debt separately without reasonable basis. § 1322(b)(1).

08/27/91 h00190.pdf

In re: William L. Campbell and Mary L. Campbell (Case No. 89-02339, Filed 10/23/89)

Reasonable attorney's fees include fees attributable to extra time spent directly related to Debtor attorney's failure to respond for reasonable requests for action in the case.

08/01/91 h00189.pdf

In re: David C. Rosenberger (Case No. 90-00224, Filed 01/26/90)
In re: John Patrick Erlewine and Connie Jean Erlewine (Case No. 90-00179, Filed 01/23/90)

Fraudulent conveyance State law requires showing of prejudice in order to set aside conveyance as fraudulent. Turnover of property under § 542 denied without establishment of fraudulent conveyance.

07/30/91 h00188.pdf

In re: John Dean Flanery and Virginia K. Flanery (Case No. 83-00228, Filed 02/18/83)
In re: ANDERSON JANE ANN (Case No. 87-00248)

Validity, priority, and extent of liens determined for purposes of lien avoidance under § 506(d). Elements of § 506(a) discussed. Notice of Appeal filed 8/9/91 Dismissal of Appeal filed 8/19/91

07/30/91 h00187.pdf

In re: Robert C. Bruns and Julia D. Bruns (Case No. 89-01524, Filed 07/11/89)
In re: Dennis S. Woodburn and Jeane C. Woodburn (Case No. 90-00038, Filed 01/08/90)

Section 523(a)(6); debt held non-dischargeable as willful and malicious injury. Debtor sold inventory out of trust and misled creditors regarding sales and remission of proceeds. Co-debtor, who was aware of but did not participate, not willful and malicious.

07/29/91 h00186.pdf

In re: Charles Edward Ertzinger (Case No. 90-00403, Filed 02/15/90)
In re: Classic Carriers Corporation (Case No. 90-00222, Filed 01/26/90)

Fed.R.Bankr.P. 1009(a) permits amendment of schedules to add debt before case is closed and debt will be dischargeable in no asset Chapter 7 case.

07/29/91 h00185.pdf

In re: Arden L. Hughes and Karen E. Hughes (Case No. 90-02301, Filed 09/04/90)

Co-debtor held entitled to a farmer tools-of-trade exemption, I.C. section 627.6(11), even though employed full-time off farm for five years, where debtors intended to return to raising livestock when financially feasible.

07/29/91 h00184.pdf

In re: Michael Brent Cummins (Case No. 90-02435, Filed 09/20/90)
In re: Dennis A. Jensen and Cynthia A. Jensen (Case No. 90-00207, Filed 01/25/90)

Sections 523(a)(5), 541: debts in the nature of alimony, support, and maintenance: attorney fees, debts for which Defendant was ordered to hold Plaintiff harmless (but discharged as to third parties), and pension benefits. Ex-spouse's interest in pension benefits is not property of the estate.

07/25/91 h00183.pdf

In re: Charles Edward Tucker and Linda Kay Tucker (Case No. 90-02904, Filed 11/09/90)

Classification and discrimination in favor of unsecured student loan creditors denied for lack of reasonable basis under section 1322. Best interests of creditors test, section 1325(a)(4), not met. 130 B.R. 72 (Bankr. s.D. Iowa 1991)

07/15/91 h00182.pdf

In re: Jack Lee Eaton and Lupe Ann Eaton (Case No. 90-02428, Filed 09/18/90)

U.S. Trustee held not to have standing under section 1325(b). Section 1325(b)(1)(A) does not require present value.

05/03/91 h00181.pdf

In re: Rose Way, Inc. (Case No. 89-01273, Filed 06/08/89)
In re: Harlan Gene Johannes and Maxine A.B. Johannes (Case No. 90-00048, Filed 01/09/90)

Entry of default and order for judgment by reason of Defendant's default set aside pursuant to Fed.R.Civ.P.55(c) and Fed.R.Civ.P.60(b).

04/26/91 h00180.pdf

In re: Fitness World West, Inc. (Case No. 90-03112, Filed 12/06/90)

Motion for appointment of independent trustee granted pursuant to 11 U.S.C. § 1104(a)(1) and 1104(a)(2).

04/17/91 h00179.pdf

In re: Fitness World West, Inc. (Case No. 90-03112, Filed 12/06/90)

Application of Debtor-in-Possession to use cash reserves of estate, cash collateral of estate, property of estate and to incur indebtedness up to and including the amount of $200,000 to post appellate bond denied.

04/17/91 h00178.pdf

In re: Fitness World West, Inc. (Case No. 90-03112, Filed 12/06/90)

Appellant's motion for restoring automatic stay during pendency of appeal denied.

04/11/91 h00174.pdf

In re: Robert D. Wilson (Case No. 89-00805, Filed 04/13/89)
In re: Everett Henry Lyman and Edna Ellen Lyman (Case No. 89-00098, Filed 01/13/89)

Debtor's discharge denied under 11 U.S.C.§ 727(a)(8). Debtor received the benefit of a discharge in his prior Ch. 11 proceeding and is not eligible for a subsequent discharge in a Ch. 7 case filed within six years of the commencement of the prior Ch. 11 case. Aff'd 4:91-CV-80280 (S.D. Iowa 1991) August 28, 1991 Judge wolle

04/09/91 h00177.pdf

In re: Rose Way, Inc. (Case No. 89-01273, Filed 06/08/89)
In re: Kimberly Kay Dodd (Case No. 90-00121, Filed 01/17/90)

Trustee's complaint seeking the recovery of freight undercharges is a non-core proceeding "otherwise related" to a case under Title 11. The defendant's motion to dismiss pursuant to Fed.R.Bankr.P. 7012 denied.

04/05/91 h00173.pdf

In re: McIntosh & Co., Inc. (Case No. 90-02155, Filed 08/21/90)

U.S. Trustee's and creditor's motion to convert denied. Movants did not prove continuing loss or diminution to the estate and absence of a reasonable likelihood of rehabilitation pursuant to 11 U.S.C. § 1112(b)(1); inability to effectuate a plan pursuant to 11 U.S.C. § 1112(b)(2); unreasonable delay that is prejudicial to creditors pursuant to 11 U.S.C. § 1112(b)(3); and failure to pay fees and charges pursuant to 11 U.S.C. § 1112(b)(10).

04/05/91 h00172.pdf

In re: Jerry Lee Emerson (Case No. 90-02375, Filed 09/12/90)

Debtor's Ch. 13 plan, which included only state court criminal restitution obligations nondischargeable under 11 U.S.C. § 523 (a)(7), was not proposed in good faith under 11 U.S.C.§ 1325 (a)(3). Therefore, Ch. 13 case dismissed for cause under 11 U.S.C. § 1307(c). Note that effective 11/15/90, Congress amended 11 U.S.C.§ 1328(a) to make restitution included in a sentence on a debtor's conviction of a crime nondischargeable in a Ch. 13 case.

04/05/91 h00171.pdf

In re: Edward Wilwerding and Alma Wilwerding (Case No. 89-02125, Filed 09/28/89)
In re: Jack L. Thompson and Carolyn Jo Thompson (Case No. 90-00062, Filed 01/11/90)

11 U.S.C.§ 106(c) does not waive the sovereign immunity of the United States for Trustee's complaint brought pursuant to 11 U.S.C.§ 547(b). The court therefore lacks jurisdiction over the Trustee's complaint and the adversary proceeding was dismissed for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P.12(b)(1). 130 B.R. 294 (Bankr. S.D. Iowa 1991)

04/04/91 h00176.pdf

In re: Rose Way, Inc. (Case No. 89-01273, Filed 06/08/89)
In re: Sheri Lynne Timm-Thrane (Case No. 90-00115, Filed 01/17/90)

Trustee's complaint seeking the recovery of freight undercharges is a non-core proceeding "otherwise related" to a case under Title 11.

04/04/91 h00175.pdf

In re: Rose Way, Inc. (Case No. 89-01273, Filed 06/08/89)
In re: Sheri Lynne Timm-Thrane (Case No. 90-00115, Filed 01/17/90)

Filed rate case. The issue of the reasonableness of Debtor's filed rates referred to the primary jurisdiction of ICC for determination. The defense of reasonableness of rates may be raised as a defense to a collection action. Whether or not Defendant can introduce sufficient evidence of unreasonableness left to the expertise of the ICC.

04/04/91 h00166.pdf

In re: Fitness World West, Inc. (Case No. 90-03112, Filed 12/06/90)

Lease between Debtor/Lessee and Lessor terminated to the filing of Debtor's Chapter 11 petition. Debtor no longer had any interest in the leasehold at the time the petition was filed and this constitutes "cause" for granting relief from the automatic stay under 11 U.S.C. section 362(d)(1). Stipulation of Dismissal With Prejudice, Order, Civil No. 4-91-70221, Judge Vietor

03/29/91 h00170.pdf

In re: Guerin Enterprises, Inc. (Case No. 88-00960, Filed 05/03/88)

Creditor/attorney application for allowance of fees denied. Creditor/attorney failed to seek prior court approval required by 11 U.S.C. § 503(b)(3) and 11 U.S.C. § 504(b)(4).

03/29/91 h00169.pdf

In re: Henry Kivlahan and Patricia A. Kivlahan (Case No. 90-01462, Filed 05/31/90)

U.S. Trustee's motion for reconsideration and alternative motion for dismissal denied. Debtors have absolute right to convert ch. 7 case to a Ch. 13 case pursuant to 11 U.S.C. § 706(a).

03/29/91 h00168.pdf

In re: Cutty's, Inc. (Case No. 89-01097, Filed 05/17/89)

Application for allowance of compensation and expenses approved. Attorney qualified under 11 U.S.C. § 327(a) and met the fee disclosure requirements. Attorney's services benefited the Ch. 11 estate.

03/29/91 h00167.pdf

In re: Scottish Links, Inc. (Case No. 90-02243, Filed 08/28/90)

Motion to dismiss Ch.11 petition granted. Corporate resolution which authorized the filing of the Ch. 11 petition invalid and thus court has no jurisdiction over Ch. 11 case.

02/20/91 h00165.pdf

In re: Bernhard Gerald Wiltfang and B. Bernadine Wiltfang (Case No. 86-00146, Filed 01/21/86)
In re: HUSZ LORNA JEAN (Case No. 86-00114)

Plaintiffs' 11 U.S.C. section 523(a)(2)(A) and 11 U.S.C. section 523 (a)(6) complaint dismissed. The court incorporated the Grogan v. Garner 498 U.S. 279, 111 S. Ct. 654 (1991) standard which requires that plaintiff prove each of the elements of actual fraud by the preponderance of the evidence, rather than clear and convincing evidence. Defendants granted judgment against Plaintiffs on counterclaims of conversion and breach of contract. Joint dismissal on Appeal and Cross Appeal 12/30/91

02/12/91 h00164.pdf

In re: Rose Way, Inc. (Case No. 89-01273, Filed 06/08/89)
In re: Judith Janine Naylor (Case No. 90-00093, Filed 01/16/90)

Application to remove litigation from U.S. District Court to U.S. Bankruptcy Court granted. Causes of action in complaint constitute core proceeding and court has jurisdiction under 28 U.S.C. section 157(b). Plaintiffs, having filed a proof of claim in the case, were not entitled to a jury trial and thus Plaintiff's demand for a jury trial did not affect Bankruptcy Court's jurisdiction of the proceeding. Notice of Appeal filed 2/21/91 (Order allowing Defendant to Remove Litigation to the Bankruptcy Court is Vacated. Adv. No. 90-93 is transferred to U.S. District Court) (Civil No. 4-91-CV-70193 dated Dec. 30, 1991) Judge Vietor Order Dismissing all claims of David C. Rosenberger in Civil No. 4-90-CV-70238 and Adversary No. 90-93) (Civil No. 4-90-CV-70238 Dated Jan. 10, 1992) Judge Vietor

02/04/91 h00163.pdf

In re: Mark Raymond Anderson and Jeanne Marie Anderson (Case No. 90-00438, Filed 02/20/90)

Creditor attorney's application for compensation pursuant to 11 U.S.C. section 503(b)(3) and 11 U.S.C. section 503(b)(4) denied.

01/28/91 h00162.pdf

In re: oseph Marion Neill and Mickey Mary Neill (Case No. 90-00327, Filed 02/08/90)

Chapter 13 Debtors' attorney fee application denied. Chapter 13 case inevitable dismissal pursuant to 11 U.S.C. section 109(e) apparent from schedules. Fee application denied because Debtors' attorney provided no benefit to the Chapter 13 estate and obtained no results in the Chapter 13 case.

01/16/91 h00161.pdf

In re: Dennis D. Kraklio and Mary L. Kraklio (Case No. 85-01387, Filed 06/27/85)

Trustee's motion to dismiss Chapter 13 plan granted. Debtors' arrearage of $2700 after plan's 5-year period constitutes a material default by Debtors under 11 U.S.C. section 1307(c)(6).

01/15/91 h00160.pdf

In re: Pester Refining Company (Case No. 85-00340, Filed 02/25/85)

Defendant permitted to increase its unsecured claim by the amount of settlement in preference action.

12/28/90 h00159.pdf

In re: Countryside Investment Company (Case No. 88-00554, Filed 07/25/88)

Application for approval and payment of interim fees and expenses of special counsel employed pursuant to 11 U.S.C. section 327(e) approved. The court denied special counsel compensation for those services performed prior to court approval of employment.

12/26/90 h0158.pdf

In re: Rose Way, Inc. (Case No. 89-01273, Filed 06/08/89)
In re: Eric Norem and Gianna Norem (Case No. 90-00156, Filed 01/19/90)

Entry of default in judgment set aside pursuant to Fed.R.Civ.P.60 (b).

12/21/90 h00157.pdf

In re: Craig Irwin Mitchell and Cynthia Suzan Mitchell (Case No. 90-00895, Filed 04/04/90)

Debtors' motion to withdraw petition denied. Bankruptcy Court cannot revoke a discharge on motion by debtor. 11 U.S.C. section 727(d) and (e). Debtor must waive discharge before discharge order is entered. 11 U.S.C. section 727(a)(10) and Fed.R.Bankr.P.4004(c). Because Debtors' discharge cannot be set aside, no purpose would be served in dismissing the case. Therefore, Debtors' request for dismissal denied. 11 U.S.C. section 707(a).

12/10/90 h00156.pdf

In re: Pester Refining Company (Case No. 85-00340, Filed 02/25/85)
In re: WALKER JOSEPH E (Case No. 85-00192)

Defendant/appellant's motion for stay pending appeal without a supersedeas bond pursuant to Fed.R.Bankr.P.8005 is denied.

12/10/90 h00155.pdf

In re: Scottish Links, Inc. (Case No. 90-02243, Filed 08/28/90)

Debtor's application for employment of counsel denied. Proposed counsel represented interests adverse to the Chapter 11 estate which disqualified the counsel from representing debtor under 11 U.S.C. section 327.

11/26/90 h00154.pdf

In re: David C. Rosenberger (Case No. 90-00224, Filed 01/26/90)

Automatic stay terminated pursuant to Fed.R.Bankr.P. 4001(a)(2) and 11 U.S.C. 326(e).

11/05/90 h00153.pdf

In re: Ind. Loan Thrift Guaranty Corp. Ia (Case No. 89-00796, Filed 04/12/89)
In re: Todd C. Getty (Case No. 88-00190, Filed 01/29/88)
In re: Harry E. Saxton and Ruth B. Saxton (Case No. 88-00191, Filed 01/29/88)

The Court dismissed Plaintiff's complaint brought pursuant to 11 U.S.C. section 523(a)(2)(A) (Plaintiff did not prove false representation element nor reliance element), 11 U.S.C. section 523(a)(6) and 11 U.S.C. section 523(a)(4). 4-91-CV-70120, Mar. 8, 1991 Vacated and reversed - remanded to Bankr. Ct. Judge Vietor. (judgment against Plaintiff RCM--dismissing c/o on four counts and for his costs. Obligation is dischargeable -- see Dec. 214)

11/02/90 h00152.pdf

In re: Mark A. Sherod (Case No. 89-02007, Filed 09/13/89)
In re: Velta Jo Ketelsen (Case No. 89-00167, Filed 01/24/89)

Debtor's discharge denied pursuant to 11 U.S.C. section 727(a)(3). Debtor failed to keep or preserve records from which his financial condition or business transactions might be ascertained. The Court concluded that 11 U.S.C. section 727(a)(3) contains no intent requirement.

10/24/90 h00151.pdf

In re: Jean Elaine Green (Case No. 89-02402, Filed 10/27/89)
In re: Craig Lavern Forney and Laurette Ann Forney (Case No. 90-00026, Filed 01/04/90)

Plaintiff did not meet its burden of proof on 11 U.S.C. section 523 (a) (2) (A) and 11 U.S.C. section 523 (a) (2) (C) complaint. Therefore, debt owed by Defendant is dischargeable. The Court denied Defendant's request for costs and attorney's fees pursuant to 11 U.S.C. section 523 (d).

10/16/90 h00150.pdf

In re: oseph Marion Neill and Mickey Mary Neill (Case No. 90-00327, Filed 02/08/90)

The Court dismissed Debtors' Chapter 13 case pursuant to 11 U.S.C. section 109(e). Debtors' unsecured debt exceeded $100,000. The Court included disputed debts in its eligibility computations.

10/09/90 h00149.pdf

In re: Richard Vernon Weigel and Norma Jean Weigel (Case No. 90-00979, Filed 04/10/90)

Debtors' Chapter 13 case dismissed pursuant to 11 U.S.C. section 109(e). Debtors' unsecured debt exceeds $100,000. Debtors' undersecured debt treated as unsecured debt for purposes of determining Ch. 13 eligibility. Court used judicial estoppel doctrine in determining amount of undersecured debt.

10/09/90 h00148.pdf

In re: John M. Walsh and Sue E. Walsh (Case No. 88-02837, Filed 12/30/88)
In re: Jack E. Nichols and Charlotte A. Nichols (Case No. 89-00036, Filed 01/05/89)

Plaintiff's motion for summary judgment on section 523(a)(2) and section 523(a)(6) complaint dismissed. Collateral estoppel not applicable because prior state trial court actions do not utilize the clear and convincing burden of proof used by the Bankruptcy Court in determining dischargeability.

10/05/90 h00147.pdf

In re: Barbara K. Dubberke (Case No. 90-00380, Filed 02/13/90)

Debtor's Chapter 7 case dismissed pursuant to 11 U.S.C. section 707(b) substantial abuse. 119 B.R. 677 (Bankr. S.D. Iowa 1990)

10/01/90 h00146.pdf

In re: James D. Foust (Case No. 88-00795, Filed 04/13/88)
In re: Tommy L. O'Neall (Case No. 88-00193, Filed 02/01/88)
In re: John F. Foust (Case No. 88-01580, Filed 07/22/88)
In re: Ernest L. Banks (Case No. 88-00221, Filed 02/04/88)

Corporate veil pierced and defendants held individually liable for debts due to creditors. Debts due to creditors nondischargeable under 11 U.S.C. section 523(a)(2)(A) and 11 U.S.C. section 523(a)(6). 91-CV-50002 (Adv. 88-193 James Foust) Reversed 91-CV-50001 (Adv. 88-221 John Foust) Affirmed (1/21/94 -- Judge O'Brien, U.S. Dist. Ct.) 4/20/95 8th Circuit Court of Appeals Affirmed John Foust, Reversed James Foust

09/25/90 h00145.pdf

In re: Michael Dale Caldwell and Margaret Susan Caldwell (Case No. 88-02339, Filed 10/27/88)

ERISA profit sharing plan and savings plan property of the estate under 11 U.S.C. section 541. Profit sharing plan and savings plan not exempt under Iowa Code § 627.6(8)(e) -- not reasonably necessary for Debtors' support.

09/25/90 h00144.pdf

In re: Keith Joe Lingle and Donna Ranee Lingle (Case No. 89-00561, Filed 03/16/89)

ERISA retirement annuity is property of the estate under 11 U.S.C. § 541 and exempt under Iowa Code § 627.6(8)(e).

09/19/90 h00143.pdf

In re: Pester Refining Company (Case No. 85-00340, Filed 02/25/85)
In re: WALKER JOSEPH E (Case No. 85-00192)

Court determined value of creditor's reclamation claim under 11 U.S.C. section 546(c). Creditor not entitled to interest and costs on reclamation claim. Court did not specify source of funds to pay reclamation claim. If Debtor doesn't comply with Plan, creditor entitled to pursue those remedies available to it under state and federal law. Aff'd Civil No. 90-604-B (S.D. Iowa dated April 8, 1991) Judge Vietor Aff'd with modification No. 90-1457, 91-1946, 91-1985 filed 5/22/92) Wolman, Cir. Judge; Bright, Sr. Cir. Judge; Loken, Cir. Judge

09/11/90 h00140.pdf

In re: Daniel John Geneser and Margaretta A. Geneser (Case No. 88-00669, Filed 03/29/88)
In re: David Duane Warren and Jamie Lynne Warren (Case No. 88-00116, Filed 01/22/88)
In re: Donald A. Slater and Dee Ann Slater (Case No. 88-00177, Filed 01/28/88)

Creditor provided floor plan financing and had security interest in implements of implement store. Leasing company purchased implements from implement store and leased said equipment back to principal officer of implement store, and implements remained on implement store floor. Leasing company notified floor plan financing creditor of sale lease-back transaction. Implement store sold said equipment to another purchaser, with floor plan financing creditor providing retail financing for purchase. Floor plan creditor's motion for summary judgment on leasing company's negligence complaint granted. Floor plan financing creditor did not have a duty to leasing company.

09/10/90 h00142.pdf

In re: Steven R. Lewellin (Case No. 89-01296, Filed 06/12/89)
In re: Jeffrey S. Wilson and Andrea Wilson (Case No. 89-00111, Filed 01/17/89)

Defendant's obligation, pursuant to a dissolution decree, to make certain payments to creditors of Defendant and spouse is in the nature of support under 11 U.S.C. section 523 (a) (5) and non-dischargeable.

09/10/90 h00141.pdf

In re: Peter O. Holl and Jonete J. Holl (Case No. 89-00463, Filed 03/03/89)

Federal and state income tax on income received after Debtors' Chapter 11 filing, but before Chapter 7 conversion, is entitled to administrative expense priority under 11 U.S.C. section 503(b)(1)(B) (i).

09/10/90 h00139.pdf

In re: Classic Carriers Corporation (Case No. 90-00222, Filed 01/26/90)

Trustee's motion to set aside sale and for sanction denied.

09/10/90 h00138.pdf

In re: Richard Ernest Blazek and Deborah Ann Blazek (Case No. 89-02776, Filed 12/11/89)

Debtors' annuity is not exempt life insurance under Iowa Code section 627.6(6).

08/17/90 h00137.pdf

In re: David C. Rosenberger (Case No. 90-00224, Filed 01/26/90)

Involuntary Chapter 7 petition granted under 11 U.S.C. section 303.

07/16/90 h00136.pdf

In re: Billy Dale Tyree (Case No. 89-02678, Filed 11/29/89)

Debtor may claim homestead as exempt property under Iowa Code section 561 when Debtor's spouse is not the subject of a case under the Bankruptcy Code, and there are existing debts prior to the acquisition of the homestead.

06/15/90 h00135.pdf

In re: Stephen D. & Joanne M. Shuger and Joanne M. Shuger (Case No. 87-02184, Filed 09/01/87)
In re: SMITH ORA NATHAN JR (Case No. 87-00255)

Debt nondischargeable under section 523(a)(6). PIK certificates not eligible as security under Bank security agreement. "Lien Waiver" executed by Bank waived its security interest in crops under loan to C.C.C.

06/14/90 h00134.pdf

In re: Thomas Allen Cronk and Karen Marie Cronk (Case No. 90-00023, Filed 01/04/90)

Confirmation of Chapter 13 plan denied. Separate classification of student loans not permissible. Section 1322 (a) (3); section 1322 (b) (1). 131 B.R. 710 (Bankr. S.D. Iowa 1990)

06/11/90 h00133.pdf

In re: Aden Ray Stewart and Madeline Valiere Stewart (Case No. 89-02754, Filed 12/07/89)

Individual partners could not exempt partnership property. Individuals did form partnership under Iowa law and partnership did not terminate under partnership agreement.

06/01/90 h00132.pdf

In re: Roger P. Murphy (Case No. 88-02449, Filed 11/09/88)

Application for attorney compensation approved as adjusted for fees incurred that did not benefit the Chapter 11 estate.

05/22/90 h00131.pdf

In re: Gordon W. Bixby (Case No. 89-02859, Filed 12/19/89)

Section 522 (f) motion to avoid lien denied. Second agreement did not create a novation and therefore purchase money security interest in household good continued.

05/09/90 h00129.pdf

In re: Karen Ann Kinney (Case No. 88-01590, Filed 07/25/88)
In re: George W. Reynolds and Tracy L. Reynolds (Case No. 88-00220, Filed 02/04/88)

Debt not dischargeable pursuant to section 523(a)(2)(B). Creditor Bank's fraudulent conveyance action denied because Bankruptcy Trustee is proper party to maintain said action. Creditor Bank ordered awarded judgment for attorney fees.

04/25/90 h00129.pdf

In re: Rose Way, Inc. (Case No. 89-01273, Filed 06/08/89)
In re: Darren Lee Welder and Stephanie Marie Welder (Case No. 89-00133, Filed 01/18/89)

Plaintiff filed motion for summary judgment. The court granted summary judgment for defendant, who had not filed a cross-motion, but claimed it was entitled to summary judgment and orally requested summary judgment in hearing. Court found that Defendant substantially complied with perfection requirements of Iowa Code section 321.50 and therefore has a properly perfected security interest in vehicles, not subject to avoidance under section 544 (a). 113 B.R. 527 (Bankr. S.D. Iowa 1990)

04/11/90 h00128.pdf

In re: Lyle L. Carpenter and Jean M. Carpenter (Case No. 86-00109, Filed 01/15/86)

Creditor held in contempt for violating the section 524 discharge injunction, but determination of sanctions withheld.

04/11/90 h00127.pdf

In re: Cutty's, Inc. (Case No. 89-01097, Filed 05/17/89)
In re: Orlando Filbert Henry and Marcia Kay Henry (Case No. 89-00116, Filed 01/17/89)

Report and recommendation against abstention pursuant to 28 U.S.C. section 1334 (c). Approved in part and reversed in part Civil No. 4-91-70249 filed 4/26/91 (Judge Wolle)

03/23/90 h0126A.pdf

In re: Vernon Armstrong and Kristie Armstrong (Case No. 89-02904, Filed 12/21/89)

After contract vendee forfeits under real estate contract, and contract vendor complies with Iowa Code section 656, contract vendor is revested with both legal and equitable titles to real estate. Real estate is therefore not property of the estate under section 541 if contract vendee subsequently files Chapter 13 petition.

03/22/90 h00126.pdf

In re: Cynthia Jean Yetter (Case No. 89-01965, Filed 09/07/89)

Bank's garnishment amounted to a judicial lien at the time Debtor's petition was filed, the property subject to the garnishment is exempt property of Debtor, and the lien is avoidable under section 522 (f). 112 B.R. 301 (Bankr. S.D. Iowa 1990)

03/21/90 h00125.pdf

In re: Rose Way, Inc. (Case No. 89-01273, Filed 06/08/89)
In re: Double-D Leasing, Inc. (Case No. 89-01274, Filed 06/08/89)
In re: Double-D, Inc. (Case No. 89-01275, Filed 06/08/89)

Attorney fees denied under section 328 (c) and due to attorney's non-disclosure of conflicts of interest. Pre-petition fees related to Chapter 11 filing allowed as unsecured claim.

03/08/90 h00124.pdf

In re: Abc Repairs & Services, Inc. (Case No. 89-01819, Filed 08/21/89)

Debtor's motion for order enforcing automatic stay denied. State court proceedings on Bank's application for contempt against Debtor may proceed, but not interfere with assets of Debtor's bankruptcy estate.

03/05/90 h00123.pdf

In re: Patricia Lynne Richardson and Douglas Allen Richardson (Case No. 89-01235, Filed 06/05/89)
In re: Jack Eugene Barringer and Emogene Lavonne Barringer (Case No. 89-00129, Filed 01/17/89)

Plaintiff's motion for leave of court to withdraw deemed admissions granted under Fed.R.Bankr.P. 7036. Defendant's motion for summary judgment under Fed.R.Bank.O.7056 denied.

03/01/90 h00122.pdf

In re: Willard L. Newman, Sr. and Rosetta U. Newman (Case No. 89-00576, Filed 03/20/89)
In re: Michael A. Brummett and Sue Carol Brummett (Case No. 89-00044, Filed 01/06/89)
In re: Willard L. Newman and Susan E. Newman (Case No. 89-00577, Filed 03/20/89)
In re: Follis Snow 'n' Turf Service, Inc. (Case No. 89-00045, Filed 01/06/89)

Three co-defendants' debt entitled to discharge under section 523 (a) (2) (A). One co-defendant's debt non-dischargeable under section 523 (a) (2) (A). Note that for the fourth element of section 523 (a) (2) (A) actual fraud, the 8th Circuit does not require creditor's reliance to be proven reasonable.

03/01/90 h00121.pdf

In re: Rose Way, Inc. (Case No. 89-01273, Filed 06/08/89)
In re: Double-D Leasing, Inc. (Case No. 89-01274, Filed 06/08/89)
In re: Double-D, Inc. (Case No. 89-01275, Filed 06/08/89)

Chapter 11 interim fee application allowed. Section 331 application period reduced. Attorneys required to apply retainer against allowed fees.

02/12/90 h00120.pdf

In re: Pester Corporation (Case No. 85-00338, Filed 02/25/85)
In re: Pester Marketing Company (Case No. 85-00339, Filed 02/25/85)
In re: Pester Refining Company (Case No. 85-00340, Filed 02/25/85)

Union Claimants' severance pay claims are not priority claims section 507 (a) (1) and section 503 (b). Previous severance payments are payment in full for any section 507 (a) (3) severance payments due to Union Claimants.

01/24/90 h00119.pdf

In re: Max L. Faulkner and Marjorie W. Faulkner (Case No. 89-00721, Filed 04/04/89)

Non-wage earner not entitled to claim a tax refund exemption under Iowa Code section 627.6 (9) (c) where tax withholdings were derived solely from wages earned by spouse.

01/17/90 h00118.pdf

In re: Daniel John Geneser and Margaretta A. Geneser (Case No. 88-00669, Filed 03/29/88)
In re: Clair Leroy Lane, Jr. (Case No. 88-00133, Filed 01/25/88)

Plaintiff's Minnesota District Court judgment deemed nondischargeable under section 523 (a) (4) (embezzlement and section 523 (a) (6) (willful and malicious conversion). Default judgment did not have collateral estoppel effect. Court determined the extent judgment was nondischargeable.

01/12/90 h00117.pdf

In re: Bernhard Gerald Wiltfang and B. Bernadine Wiltfang (Case No. 86-00146, Filed 01/21/86)
In re: HUSZ LORNA JEAN (Case No. 86-00114)

Motion for limitation of evidence denied.

01/11/90 h00116.pdf

In re: Davenport Communications Limited (Case No. 89-01250, Filed 06/06/89)

Application of Unsecured Creditors Committee for order approving its employment of attorneys denied due to the law firm's previous representation of The Chapter 11 Debtor. "Chinese wall" proposed by Unsecured Creditors Committee deemed not effective in this case. 109 B.R. 362 (Bankr. S.D. Iowa 1990)

01/05/90 h00115.pdf

In re: Hugh W. Grimes (Case No. 88-02554, Filed 11/21/88)

Debtor's IRA not exempt under Code section 627.6 (6) (life insurance) or Iowa Code section 627.6 (8) (e) (pension).

01/04/90 h00114.pdf

In re: James D. Foust (Case No. 88-00795, Filed 04/13/88)
In re: John F. Foust (Case No. 88-01580, Filed 07/22/88)
In re: Ernest L. Banks (Case No. 88-00221, Filed 02/04/88)
In re: Tommy L. O'Neall (Case No. 88-00193, Filed 02/01/88)

Plaintiff allowed to amend its complaint to include section 523 (a) (2) (A) claim in addition to section 523 (a) (6) claim originally pled. Nearmyer v. Wiltfang (Matter of Wiltfang), 88-147-E, unpub. op. (S.D. Iowa, Jan. 18, 1989) is controlling.

01/04/90 h000113.pdf

In re: Patrick William Hill and Peggy Joan Hill (Case No. 88-00062, Filed 01/13/88)

Bank's credit card debt was dischargeable. Bank failed to prove by clear and convincing evidence all elements required to hold a credit card debt nondischargeable under section 523 (a) (2) (A). Specifically, Bank failed to prove that Debtors intended to deceive Plaintiff or that Debtors knowingly made a false representation to Plaintiff.

12/01/89 h00112.pdf

In re: Gerald L. Schaefer and Susan D. Schaefer (Case No. 89-00722, Filed 04/04/89)

Debtors' equipment is subject to a lien granted prior to 11/6/78. Therefore, the lien on the pre-code equipment cannot be avoided under section 522 (f). The language of note clearly manifested parties' intent that novation did not occur after 11/6/78.

11/29/89 h0111A.pdf

In re: Ralph A. Greenwood (Case No. 88-00468, Filed 03/04/88)

# 4970 in fees and # 250 in costs are "reasonable" fees and costs to be awarded for violation of B.R. 9011 and 28 U.S.C. section 1927 pursuant to May 4, 1989 order.

11/09/89 h00111.pdf

In re: Rose Way, Inc. (Case No. 89-01273, Filed 06/08/89)
In re: Double-D Leasing, Inc. (Case No. 89-01274, Filed 06/08/89)
In re: Double-D, Inc. (Case No. 89-01275, Filed 06/08/89)

Applications for interim allowance of fees denied with leave granted to file amended applications. As of date of hearing, Court was unable to assess the value of attorneys' services to the estate due to inaccuracies in schedules on file as of the date of hearing.

10/30/89 h00110.pdf

In re: Raymond N. Kenkel and Evelyn Kenkel (Case No. 86-00832, Filed 03/26/86)
In re: Beef Barons, Inc. (Case No. 86-00147, Filed 01/21/86)

Plaintiff's Federal District Court Judgment deemed non-dischargeable under section 523 (a) (4) (defalcation while acting in a fiduciary capacity), section 523 (a) (4) (embezzlement), and section 523 (a) (6) (willful and malicious conversion). To the extent of homestead mortgage payments made with wrongfully obtained funds, defendants/debtors' homestead is not exempt. Aff'd U.S. District Court Dec. 31, 1991, Civil No. 1-90-CV 70012 (Judge Vietor)

10/02/89 h00109.pdf

In re: Robert Lee Lane (Case No. 88-01063, Filed 05/13/88)
In re: Terry Dean Fry (Case No. 88-00175, Filed 01/28/88)

Creditor's Iowa District Court Judgment deemed nondischargeable under section 523 (a) (6) and Debtor's discharge denied under section 727 (a) (2) (A), 727 (a) (4) (A), and 727 (a) (3).

09/28/89 h00108.pdf

In re: Pester Refining Company (Case No. 85-00340, Filed 02/25/85)
In re: WALKER JOSEPH E (Case No. 85-00192)

Plaintiff had a valid and enforceable right of reclamation under section 546 (c) which was subordinate to, but not extinguished by, perfected security interest in the reclamation product. Reclamation claim valued as of the date of the reclamation demand. Aff'd Civil No. 89-774_B (S.D. Iowa), filed Feb. 16, 1990 (Judge Vietor)

09/12/89 h00107.pdf

In re: Cutty's, Inc. (Case No. 89-01097, Filed 05/17/89)

Debtor's motion to use cash collateral denied. Debtor did not offer adequate protection, but instead asserted that cash collateral was worthless and thus the secured creditors' interest in the worthless cash collateral did not require adequate protection.

09/12/89 h00106.pdf

In re: Rose Way, Inc. (Case No. 89-01273, Filed 06/08/89)
In re: Double-D Leasing, Inc. (Case No. 89-01274, Filed 06/08/89)
In re: Double-D, Inc. (Case No. 89-01275, Filed 06/08/89)

Stipulation and agreement for adequate protection and reuse of cash collateral, financing and for interim financing between Ch. 11 Debtor and Creditor Bank approved. Specifically, cross collateralization provisions of this agreement approved.

08/30/89 h00105.pdf

In re: Rose Way, Inc. (Case No. 89-01273, Filed 06/08/89)
In re: Double-D Leasing, Inc. (Case No. 89-01274, Filed 06/08/89)
In re: Double-D, Inc. (Case No. 89-01275, Filed 06/08/89)

The pre-petition vehicle lease agreement between the Chapter 11 Debtor and lessor is a lease intended as security rather than a "true lease." The vehicles are property of the estate under section 541 and subject to the section 362 automatic stay. Lessor is not entitled to relief from the automatic stay under section 362 (d). Lessor is entitled to adequate protection under section 361. Stipulation for Dismissal and Order, filed 3/12/91, Civil No. 89-817-B (Judge Vietor)

07/25/89 h00104.pdf

In re: Central Steel Tube Company (Case No. 83-00856, Filed 06/14/83)
In re: The Donovan Wire & Iron Company (Case No. 83-00857, Filed 06/14/83)

Legal briefs and memoranda of law Appellee sought to make part of the record on appeal are outside the scope of B.R. 8006 and thus should not be included in the record on appeal.

07/25/89 h00103.pdf

In re: Stephen F. Sesker and Sandra L. Sesker (Case No. 87-03014, Filed 12/10/87)

Debtors are entitled to exemptions under Iowa Code section 627.6 (11) and lien avoidance under section 522 (f) on certain farm machinery and equipment. Debtors are entitled to an exemption under Iowa Code 626.6 (11) on certain livestock.

07/18/89 h00102.pdf

In re: Cheyenne River Corporation (Case No. 89-01372, Filed 06/20/89)

Debtor Corporation's Chapter 12 case dismissed for improper filing of Chapter 12 petition, failure of Debtor Corporation and its principal to appear as ordered to prosecute and administer this and prior related bankruptcy proceedings, and other actions by Debtor and its principal, evidencing bad faith on the part of the Debtor corporation and its principal and the absence of any intent to seek reorganization through the Bankruptcy process. The Ch. 12 case is dismissed with prejudice under section 109 (g) (1) for willful failure of the Debtor to abide by orders of the Court and to appear before the Court in the proper prosecution of this and previous cases.

07/05/89 h00101.pdf

In re: Robert Charles Shekelton, Jr. and Heidi Ann Shekelton (Case No. 88-00601, Filed 03/21/88)
In re: Clair Lane, Sr. (Case No. 88-00132, Filed 01/25/88)

Debtors' discharge denied under section 727 (a) (2) (A) and section 727 (a) (4) (A).

06/30/89 h00100.pdf

In re: Isaac A. Welling and Kim L. Welling (Case No. 89-00775, Filed 04/11/89)

Debtors' Ch. 13 case dismissed under section 1307 (c) (1), 1307 (c) (3), 1307 (c) (9), 1307 (c) (10), and 105 (a). The case is dismissed with prejudice under section 109 (g) for willful failure of the debtor to abide by orders of the court. 102 B.R. 720 (Bankr. S.D. Iowa 1989)

06/16/89 h00099.pdf

In re: Larry A. Wilkin and Sharon E. Wilkin (Case No. 87-00808, Filed 03/26/87)
In re: David A. Erickson (trustee) vs. United States of America (Case No. 88-00150)

Debtors' farm program deficiency payments are property of the estate -- FmHA did not meet set-off requirements and waived the right plus section 541 (a) (6) personal services earning exception not met. FmHA does not have a security interest in said payments for two reasons: 1) program payments are not "rents and profits" under the mortgage; and 2) program payments are not "proceeds" of crops under the Uniform Commercial Code.

06/16/89 h00098.pdf

In re: Harry E. Saxton and Ruth B. Saxton (Case No. 88-00191, Filed 01/29/88)

Debtor's contract rights in CRP payments are property of the estate if the contract is signed and approved by the government pre-petition. Post-petition CRP contract payments are "proceeds" under section 541 (a) (6) and thus property of the estate which Debtor must surrender to Trustee.

05/31/89 h00097.pdf

In re: Robert H. Meyer and Helena Meyer (Case No. 88-01699, Filed 08/09/88)

Objection to exemption overruled -- Debtor's cosmetic supplies qualified as exempt "tools of the trade" under Iowa Code section 627.6 (10).

05/31/89 h00096.pdf

In re: Pester Refining Company (Case No. 85-00340, Filed 02/25/85)
In re: GARDNER MERLIN DEAN (Case No. 87-00187)

Plaintiff entitled to recover section 547 (b) preferential payments because Defendant failed to prove section 547 (c) (2) ordinary course of business exception. Said recovery subject to offset for new value under section 547 (c) (4). Notice of Appeal 6/30/89 (Civ. No. 89-510-B) (Satisfaction of Judgment pursuant to a Settlement Agreement filed 3/5/90)

05/30/89 h00095.pdf

In re: Pester Refining Company (Case No. 85-00340, Filed 02/25/85)
In re: D & I LICKTEIG FARMS INC (Case No. 86-00150)

Complaint to avoid preferential transfer dismissed -- transfer met section 547 (c) (2) ordinary course of business exception.

05/12/89 h00094.pdf

In re: Arthur M. Kagin (Case No. 88-00796, Filed 04/13/88)
In re: Audry Lucille Dirisio (Case No. 88-00128, Filed 01/25/88)

Post-petition obtained life insurance policy is not exempt under Iowa Code section 627.6(6) because the debtor did not "own" a policy on the date of filing his Chapter 7 petition, thus making the policy property of the estate under section 541.

05/08/89 h00093.pdf

In re: Johnnie E. Ferrari and Mary Jane Ferrari (Case No. 87-02841, Filed 11/17/87)

PIK certificates can be assigned as security for cash or advances to finance making a crop but not to secure any preexisting indebtedness.

05/08/89 h00092.pdf

In re: H.M. Kirscher and Bonnie J. Kirscher (Case No. 87-02460, Filed 10/02/87)
In re: United States of America vs Harry M. Kirscher and Bonnie J. Kirscher (Case No. 88-00062)

Debtors' discharge denied under section 727 (a) (2) (A) and section 727 (a) (5).

05/04/89 h00091.pdf

In re: Ralph A. Greenwood (Case No. 88-00468, Filed 03/04/88)

Motion for sanctions sustained against attorney but denied against client. Atty's actions violated Bankruptcy Rule 9011 and 28 U.S.C. section 1927. Debtor entitled to costs and attorney fees arising from research, preparation and hearing time involved in the numerous proceedings giving rise to the motion for sanctions.

05/03/89 h00090.pdf

In re: Eugene A. Sorensen (Case No. 89-00387, Filed 02/24/89)

Motion to dismiss granted on three alternative grounds: 1) Debtor was not a "family farmer" under section 101 (17) (A); 2) Debtor was not a "family farmer with regular income" under section 101 (18); and 3) Debtor's petition was not filed in good faith.

05/01/89 h00089.pdf

In re: Central Steel Tube Company (Case No. 83-00856, Filed 06/14/83)
In re: The Donovan Wire & Iron Company (Case No. 83-00857, Filed 06/14/83)

Application to demonstrate implementation of confirmed plans denied-requested relief was moot and Court questioned whether section 1142 even applied. Request for payment of administrative expense denied - barred by the doctrine of res judicata. Aff'd Civil Nos. 89-116-D-2 and 89-117-D-2 (S.D. Iowa), filed Feb. 7, 1990. Amendment to Affirmance, filed Feb. 15, 1990 (Judge Vietor). (Appellate Ct. jmt. of 4/2/90 (90-1305 SI) vacated. Dist. Ct. directed to return mandate. Joint stipulation for dismissal of appeal granted 4/20/90.

05/01/89 h00088.pdf

In re: Central Steel Tube Company (Case No. 83-00856, Filed 06/14/83)
In re: WEGMULLER ROSEMARY A (Case No. 87-00213)

Motion for Summary Judgment granted-under section 1141(c) and the doctrine of res judicata, confirmation order divested Clinton Co. of its tax lien because lien rights were not preserved in the plan. Divestment did not violate either the due process or takings clause under the 5th Amendment. Under section 1127 (b), Clinton County lacked standing to seek modification. Under section 1144, Clinton County barred by the statute of limitations from seeking revocation of the confirmation order. AFf'd Civil Nos. 89-116-D-2 and 89-117-D-2, (S.D. Iowa), filed Feb. 7, 1990. Amendment to Affirmance, filed Feb. 15, 1990 (Judge Vietor). Appellate Ct. Jmt of 4/2/90 ((0-1305 SI) vacated. Dist. Ct. directed to return mandate. Joint stipulation for dismissal of appeal granted on 4/20/90.

04/19/89 h00087.pdf

In re: Roger Harris (Case No. 88-01927, Filed 09/07/88)

Past due child support payments cannot be included in a Chapter 13 plan unless Debtor obtains from recipient express written agreement to have the past due payments treated in the manner proposed in the plan. A plan proposing to defer back child support payments without the express written approval of the recipient violates section 1325 (a) (3)-not proposed in good faith.

04/18/89 h00086.pdf

In re: Gordon A. Streger and Marie E. Streger (Case No. 87-02755, Filed 11/09/87)

Confirmation of Chapter 11 plan denied on two grounds: 1) section 1129 (a) (10)-no impaired class accepted the plan; and 2) section 1129 (a) (3)-plan not proposed in "good faith" because debtor simultaneously pursued confirmation of plan and prosecuted previously undisclosed state court claim against creditor which was not "essential" to plan. Case dismissed on two grounds: 1) section 1112 (b) (2)-inability to effectuate plan since plan could not be confirmed; and 2) section 1112 (b) (3)- unreasonable delay.

04/14/89 h00085.pdf

In re: Stephen D. & Joanne M. Shuger and Joanne M. Shuger (Case No. 87-02184, Filed 09/01/87)

Bank did not have a perfected security interest in Debtor's interest in a non-spendthrift trust in spite of its security interest in Debtor's "general intangibles." The Court employed a two-step inquiry to determine the extent of the security agreement -- one objective, one subjective -- and concluded that while a trust interest is a "general intangible," Bank failed to meet its burden of proving the parties' intention to create a security interest in Debtor's trust interest.

04/13/89 h00084.pdf

In re: NICHOLS STANLEY RUSSELL (Case No. 82-00162)
In re: Paul R. Tyler (trustee) vs. Swiss American Securities, Inc. (Case No. 86-00050)

Complaint to avoid preferential transfer dismissed -- Debtor's transfer of 425,000 shares of stock was an avoidable preference under section 547 (b) but such avoidance is precluded because the transfer was a contemporaneous exchange under section 547 (c) (1) and a margin payment under section 546 (e). Aff'd Civil No. 89-367-B (S.D. Iowa), filed October 30, 1989 J. Vietor Aff'd by Court of Appeals No. 89-2952 filed April 1, 1991 (Judges Gibson, Heaney, Larson)

03/28/89 h00083.pdf

In re: Ronald Dean Harris and Frances L. Harris (Case No. 88-01853, Filed 08/26/88)

A debtor cannot waive statutorily granted exemption rights in personal property through either an express waiver provided for in the contract which creates the debt or an implied waiver arising from a consensual agreement to create a lien in the personal property.

02/27/89 h00082.pdf

In re: Tpm, Inc. (Case No. 88-01592, Filed 07/25/88)

Motion to dismiss granted on two alternative grounds: section 1112 (b) (2) -- inability to effectuate a plan; and section 1112 (b) (3) -- unreasonable delay by Debtor that is prejudicial to Creditor.

02/21/89 h00081.pdf

In re: Donna Diana Rankin (Case No. 88-00156, Filed 01/26/88)

Application for contempt granted in part, denied in part. Creditor's post-discharge pursuit of a prepetition contempt proceeding against Debtor, based on a failure to pay a debt which was subsequently discharged, violates the discharge injunction under section 524 (a) (2) as an act to "collect, recover or offset" such debt as a personal liability of Debtor, thus resulting in civil contempt. Court lacks jurisdiction over question of whether Creditor should be held in contempt for post-discharge initiation of modification proceedings in state court -- state court has jurisdiction over domestic relations subject matter.

02/16/89 h00080.pdf

In re: Pester Refining Company (Case No. 85-00340, Filed 02/25/85)
In re: RAMBOW ETTA MARDELL (Case No. 85-00203)

Application for section 553 setoff denied on two grounds: 1) barred by the doctrine of res judicata; and 2) lack of mutual debts. Bill of costs taxed using the following formula: (% of recovery on appeal X costs) for each party and then netting the 2 amounts.

02/16/89 h00079.pdf

In re: John Dean Flanery and Virginia K. Flanery (Case No. 83-00228, Filed 02/18/83)
In re: John Dean Flanery and Virginia K. Flanery vs. Guthrie County State Bank, First national Bank of Omaha, ... (Case No. 87-00248)

Motion for stay pending appeal granted. Applying 4-prong test, the Court found key factor to consider was movant's likelihood of success upon appeal. Because there was a split of authority on the issue on appeal, stay was appropriate.

02/08/89 h00078.pdf

In re: Central Steel Tube Company (Case No. 83-00856, Filed 06/14/83)
In re: The Creditors Committee of the Central Steel Tube Company vs. The Mutual Life Insurance Company of New York (Case No. 86-00215)

Defendant's motion for summary judgment on section 547 preference complaint granted on two grounds: 1) Plaintiff failed to meet its burden under section 547 (b) of proving preferential nature of payments; and 2) Defendant proved all three payments met exceptions to preference under section 547 (c). Defendant's motion for summary judgment on counterclaim against Debtor denied -- Debtor was not a party to the adversary proceeding and the counterclaim must be resolved in the case file.

01/30/89 h00077.pdf

In re: Kcc-Fund Ix (Case No. 88-00808, Filed 04/14/88)

Debtor's filing of plans of reorganization does not affect the court's ability to dismiss section 1112(b) or lift stay section 362. Section 1112(b) motion to dismiss granted on 3 "for cause grounds". 1. Lack of good faith in filing petition; 2. Section 1112(b)(2)--inability to effectuate a plan; and 3. Section 1112(b)(3) -- unreasonable delay by debtor that is prejudicial to creditors. Motion to lift stay overruled as being moot--under section 362(d)(2)(B), the Court adopts the "effective reorganization" test.

01/24/89 h00076.pdf

In re: Bernhard Gerald Wiltfang and B. Bernadine Wiltfang (Case No. 86-00146, Filed 01/21/86)
In re: HUSZ LORNA JEAN (Case No. 86-00114)

Ten day notice of appeal period under Rule 8002 (a) is computed by use of Rule 9006 (a) -- intermediate Saturdays, Sundays and legal holidays are excluded in the computation.

01/20/89 h00075.pdf

In re: Vytautas Talandis (Case No. 86-01640, Filed 06/05/86)

Fee application in dismissed Chapter 11 case denied for lack of jurisdiction. Debtor's former counsel failed to request the Court to retain limited jurisdiction regarding his fee application in the event Debtor's case was dismissed. As a result, the Order of Dismissal did not contain any provision providing for the Court's retention of limited jurisdiction to consider the fee application. 95 B.R. 108 (Bankr. S.D. Iowa 1989)

01/13/89 h00074.pdf

In re: Kcc-Fund Ix (Case No. 88-00808, Filed 04/14/88)

Motion to quash interrogatories denied on three alternative grounds: 1) lack of standing to raise issues for limited partners; 2) failure to comply with Local Rule 14 (e); and 3) interrogatories did not constitute an unauthorized solicitation of votes under section 1125 (b). Motion for sanctions denied.

01/12/89 h00073.pdf

In re: Michael Leroy Richter and Mary Louise Richter (Case No. 88-01679, Filed 08/05/88)

State and federal income tax refunds are property of the estate under section 1306 (a), thus making the exception to stay under section 362 (b) (2) inapplicable.

01/11/89 h00072.pdf

In re: Century Place Partnership (Case No. 87-02917, Filed 11/24/87)

Requested attorney fees reduced -- only those services benefiting the estate are recoverable from it.

01/10/89 h00071.pdf

In re: Donald E. Jones and Cynthia M. Jones (Case No. 87-02686, Filed 11/02/87)

Since case was still open, Debtors allowed to amend schedule A-3 six months after discharge to add unsecured debt, but debt is nondischargeable under section 523 (a) (3). Motion to set aside judgment lien denied -- Debtors failed to meet burden of proof under section 522 (f) (1).

01/09/89 h00069.pdf

In re: Eugene Paul Morrison (Case No. 88-00608, Filed 03/21/88)

Debtor not entitled to claim homestead exemption in property previously ordered sold in state court dissolution decree. The home was not Debtor's homestead under Iowa Code section 561.1. Assuming arguendo it was his homestead, pursuant to Iowa Code sections 561.16 and 598.21, the dissolution decree-ordered judicial sale makes the homestead laws ineffective to bar judicial sale of the homestead.

12/29/88 h00068.pdf

In re: Robert R. Pearson (Case No. 88-00778, Filed 04/11/88)

Debtor not entitled to exempt homestead because at the time petition was filed, Debtor was not occupying the claimed-as-exempt homestead and had no intention to occupy in the future.

12/29/88 h00067.pdf

In re: Bernhard Gerald Wiltfang and B. Bernadine Wiltfang (Case No. 86-00146, Filed 01/21/86)
In re: HUSZ LORNA JEAN (Case No. 86-00114)

Motion to strike jury demand sustained. Under either the summary/plenary test or the law/equity test, plaintiffs not entitled to trial by jury. Affirmed Civil No. 89-82-E (S.D. Ia filed sept 29, 1989) (Judge O'Brien)

12/23/88 h00066.pdf

In re: John Dean Flanery and Virginia K. Flanery (Case No. 83-00228, Filed 02/18/83)
In re: ANDERSON JANE ANN (Case No. 87-00248)

Chapter 7 debtor cannot avoid mortgage liens under section 506 (d). Reversed Civil No. 89-359-E and 89-360-E S.D. Iowa, filed July 29, 1990 (Judge O'Brien)

12/19/88 h00065.pdf

In re: Countryside Investment Company (Case No. 88-00554, Filed 07/25/88)

Per section 1112 (b), Chapter 11 case converted to Chapter 7 for "cause" including: 1) section 1112 (b) (1); 2) failure to comply with Local Bankr. Rule 6003; 3) continued operation in violation of state law; and 4) breach of fiduciary duties.

12/09/88 h00064.pdf

In re: Brian Eugene Pavelka and Deirdre Lee Pavelka (Case No. 87-03080, Filed 12/21/87)
In re: Ivol L. Stever, Iii. and Debbie K. Stever (Case No. 88-00057, Filed 01/12/88)

Under section 523 (a) (2) (B), new money advanced to Debtor in a refinancing arrangement held non-dischargeable.

11/29/88 h00063.pdf

In re: Marion L. Stransky and Winifred Stransky (Case No. 88-00289, Filed 02/12/88)

Assignment of a land contract vendor's interest in land is a "transfer of an interest in or lien on real estate" under Iowa Code section 554.9104 (j); pursuant to section 558.11, assignee can perfect its interest by recording in Co. Recorder's Office.

11/07/88 h00062.pdf

In re: Robert V. Brown and Sue A. Brown (Case No. 82-01857, Filed 12/27/82)

Adjudication of law points: I. Section 547 preference period in a converted case is calculated from the date of conversion. II. 1984 amendment removing 45-day requirement under section 547 (c) (2) (A) only applies to cases filed after October 7, 1984.

10/18/88 h00061.pdf

In re: Nancy Ann Clark Stillians (Case No. 87-02100, Filed 08/21/87)
In re: Victoria L. Herring vs. Nancy Ann Clark Stillians (Case No. 87-00251)

Plaintiff failed to meet her burden of proof on any of the exceptions to discharge of debt pursuant to sections 523 (a) (2) (A) and 523 (a) (6), and on any of the exceptions to discharge, pursuant to sections 727 (a) (2) (A), 727 (a) (4), and 727 (a) (7). In addition, Defendant was not entitled to costs and attorney's fees, pursuant to section 523 (d), because Plaintiff's position was "substantially justified."

10/06/88 h00059.pdf

In re: Fred Schnipkoweit (Case No. 87-02952, Filed 12/01/87)

Under section 506, FDIC's liens extend to entire value of farm machinery because Debtor has rights in all the collateral when he granted the liens.

09/30/88 h00058.pdf

In re: Richard Lee Sodawasser and Judy Kay Sodawasser (Case No. 88-00950, Filed 05/02/88)

Pursuant to Bankruptcy Rule 7001 (2), a proceeding to determine the validity, priority, or extend of a lien under section 506 is an adversary proceeding, and pursuant to Bankruptcy Rule 7003, must be commenced by filing a complaint.

09/30/88 h00057.pdf

In re: Gary C. & Lisa J. Foote and Lisa J. Foote (Case No. 87-02190, Filed 09/01/87)
In re: Credithrift of America, Inc. vs. Gary C. Foote and Lisa J. Foote (Case No. 87-00250)

Under section 523 (a) (2) (B), Defendants' debt held dischargeable because Plaintiff failed to prove each of the elements by clear and convincing evidence. In addition, pursuant to section 523 (d), Defendants were granted judgment for costs against Plaintiff because Plaintiff's position was not "substantially justified."

09/27/88 h00055.pdf

In re: Dallas A. Hunt (Case No. 87-02850, Filed 11/17/87)

Under Iowa Code section 627.6 (8) (e), Debtor's rights in payments under a pension and profit sharing plan and a 401 (k) "reasonably necessary" for Debtor's support. the determination of what is "reasonably necessary" is made on a case-by-case basis with the court considering numerous factors. Aff'd Civil No. 88-1607-A (S.D. Iowa, filed Jan. 19, 1989) 121 B.R. 349 (Bankr. s.D. Iowa 1988) 121 B.R. 352 (S.D. Iowa 1989)

09/23/88 h00054.pdf

In re: KEMPF ERNEST F (Case No. 86-00867)
In re: Ernest F. Kempf and Rosetta J. Kempf vs United States Internal Revenue Service and Iowa Department of Revenue (Case No. 86-00154)

Under section 523(a)(1), Plaintiffs' self-employment income tax from their unreported self-employment income was held nondischargeable. Under section 523(a)(1)(A), Plaintiffs' self-employment taxes are still assessable. Under section 523(a)(1)(B)(i), Plaintiffs did not file a return. Under section 523(a)(1)(C) Plaintiffs willfully attempted to evade or defeat their self-employment taxes for the years in question.

09/22/88 h00053.pdf

In re: Stephen F. Sesker and Sandra L. Sesker (Case No. 87-03014, Filed 12/10/87)

Lessee's voluntary surrender of possession of leasehold property to Debtors precludes lessee from relying upon remedy found in section 365 (h) (1) concerning rejection of an unexpired lease.

09/21/88 h00052.pdf

In re: James L. Jungmann (Case No. 87-03013, Filed 12/10/87)

I. Lien Avoidance is available in Ch. 12 but the actual avoidance will not occur until Debtor's discharge becomes effective, following Ferrari. II. Section 1225 (a) (5) (B) (ii) requires Debtor's payment in addition to the required present value payments to secured creditors, following Sesker. III. Debtor's proposal of paying 1% of the unsecured claims does not result in a lack of "good faith" filing under section 1225 (a) (3) if Debtor is applying all his disposable income over the life of the plan, pursuant to section 1225 (b) (1) (B). IV. CRP payments are in the nature of rental payments and are subject to a rents and profits clause under a mortgage.

09/12/88 h00051.pdf

In re: Countryside Investment Company (Case No. 88-00554, Filed 07/25/88)

Motion for preliminary injunction to enjoin the denial of a sales tax application denied. The Court lacked jurisdiction to issue the injunction because there was no substantive provisions of the Bankruptcy Code to enforce. Alternatively, a balancing of the four preliminary injunction factors weighed heavily against granting the injunction.

09/08/88 h00050.pdf

In re: Keith William Warth (Case No. 88-00580, Filed 03/17/88)

An individual debtor cannot claim ownership and an exemption in partnership property until the partnership has ceased activity and all partnership debts have been paid. Aff'd Civil No. 88-164-D-1 (S.D. Iowa, filed Jan. 19, 1989) J. Wolle Aff'd Warth v. Farmers Home Administration No. 88-164-D-1 (S.D. Iowa, filed Mar. 3, 1989) Debtor's Notice of Appeal filed 3/17/89. Appeal dismissed 8/10/89.

08/29/88 h00049.pdf

In re: Michael G. Erwin and Carine D. Erwin (Case No. 87-02868, Filed 11/19/87)
In re: George Herbert Spaulding (Case No. 88-00050, Filed 01/11/88)

Defendant's obligation, pursuant to a dissolution decree, to pay first and second mortgage payment plus taxes, insurance and upkeep on a home occupied by his former wife and their two children is in the nature of support under 523(a)(5) and thus non-dischargeable.

08/08/88 h00030.pdf

In re: Dale Sam Hale (Case No. 87-02556, Filed 10/14/87)
In re: Sally A. Huckfeldt vs Dale Sam Hale (Case No. 87-00243)

State court paternity action judgments for prenatal and postnatal care, child support, attorney fees, and court costs are "in the nature of support" under section 523 (a) (5) and thus nondischargeable. Adv. 0243

08/05/88 h00048.pdf

In re: Charles T. Gross (Case No. 84-00794, Filed 05/15/84)
In re: CURTIS STANLEY DEAN (Case No. 86-00027)

Motion for continuance and for extension of time granted -- filed in good faith and not to delay trial. Court has discretion to grant or deny motion, and one factor to consider is the Court's schedule.

08/04/88 h00047.pdf

In re: Republic Realty Corporation (Case No. 88-00032, Filed 01/08/88)

Application for employment and attorney fees denied. No extraordinary circumstances justifying nunc pro tunc order for employment. Court does not have jurisdiction to consider fee app in a dismissed Ch. 11 case when the Order of Dismissal does not provide for the retention of limited jurisdiction to consider the fee app.

08/04/88 h00046.pdf

In re: Republic Realty Corporation (Case No. 88-00032, Filed 01/08/88)

Application for attorney fees denied -- Court does not have jurisdiction to consider fee app in a dismissed Ch. 11 case when the Order of Dismissal does not provide for the retention of limited jurisdiction to consider the fee app.

07/29/88 h00045.pdf

In re: Bernhard Gerald Wiltfang and B. Bernadine Wiltfang (Case No. 86-00146, Filed 01/21/86)
In re: HUSZ LORNA JEAN (Case No. 86-00114)

Motion to amend complaint denied -- the amended complaint does not rely on the same facts in the original complaint and, thus, does not relate back pursuant to Rule 7015 (c) and 4007 (c). Rev'd Nearmyer, et al. v. Wiltfang, et al. Case # 88-1457-E (S.D. Iowa, filed Jan. 18, 1989) J. O'Brien

07/22/88 h00044.pdf

In re: Ideal Mechanical Contractors Co. (Case No. 88-00380, Filed 02/23/88)
In re: Ideal Mechanical Contractors vs The United States of America Department of Treasury and IRS (Case No. 88-00058)

Motion to set aside default judgment granted per Bankr. Rule 7055 -- default judgments looked upon with disfavor and interests of justice require Order to set aside.

07/21/88 h00043.pdf

In re: Republic Realty Corporation (Case No. 88-00032, Filed 01/08/88)

Motion to dismiss granted - corporate Debtor's pro se Ch. 11 petition improperly filed by non-attorney and lack of good faith in filing is "cause" to dismiss under section 1112 (b).

07/11/88 h00042.pdf

In re: MANAWA IMPLEMENT AND SERVICE INC (Case No. 86-01021)

Motion to dismiss under section 1112 (b) granted -- no objections were filed and "cause" exists.

07/11/88 h00041.pdf

In re: MANAWA IMPLEMENT AND SERVICE INC (Case No. 86-01021)
In re: Raylyn Ag., Inc. (Case No. 86-03345, Filed 12/22/86)

Motion to convert to Ch. 7 denied: movant was not a "party in interest" under section 1112 (b); sua sponte conversion was not necessary or appropriate under section 105 (a); and movant failed to prove any fraud in connection with the case under section 1208(d).

07/11/88 h00040.pdf

In re: Raymond N. Kenkel and Evelyn Kenkel (Case No. 86-00832, Filed 03/26/86)
In re: MANAWA IMPLEMENT AND SERVICE INC (Case No. 86-01021)
In re: Raylyn Ag., Inc. (Case No. 86-03345, Filed 12/22/86)

Motion for substantive consolidation denied -- movant failed to establish any of the four factual predicates and failed to meet its burden of demonstrating the prejudice from consolidation is outweighed by the greater prejudice from continued separation of the estates.

07/08/88 h00039.pdf

In re: Ltd Professional Building Services (Case No. 85-02693, Filed 12/09/85)

Objection to IRS claim sustained in part and overruled in part. Claimant has the burden of ultimate persuasion under section 502 (a). Aff'd Civil No. 89-606 A, (S.D. Iowa, dated December 4, 1989) Judge Wolle

06/29/88 h00038.pdf

In re: Mel-O-Gold (Case No. 87-02335, Filed 09/18/87)

Motion for marshaling denied -- request was improperly before the Court, and the elements necessary for marshaling not present in any event. Motion to abandon denied -- property sought was not property of the estate. However, Trustee ordered to distribute the property to creditor since it revested under section 349 (b) (3).

06/29/88 h00039.pdf

In re: Pester Corporation (Case No. 85-00338, Filed 02/25/85)
In re: Pester Marketing Company (Case No. 85-00339, Filed 02/25/85)
In re: Pester Refining Company (Case No. 85-00340, Filed 02/25/85)
In re: Petroleum Special, Inc. Of Iowa (Case No. 85-00341, Filed 02/25/85)

Motion to make minor modification granted -- Plan was not "substantially consummated" under sections 1127 (b), 1101 (2). No additional disclosure required because modification was sufficiently minor. Motion to comply with section 1225 and for continuance denied. Motion for additional hearing denied. Motion for order compelling KDHE to join Fina must be determined in an adversary proceeding.

06/28/88 h00036.pdf

In re: Gary F. Munck and Janet C. Munck (Case No. 87-02942, Filed 11/30/87)

Motion to lift stay denied -- Plan payments provide John Deere with adequate protection.

06/28/88 h00035.pdf

In re: Loren E. Kober (Case No. 86-01763, Filed 06/17/86)

Motion to subordinate claims denied -- Debtor failed to prove any inequitable conduct by secured creditors.

06/22/88 h00034.pdf

In re: Joseph L. Kenneally and Joan C. Kenneally (Case No. 87-03052, Filed 12/17/87)

Section 506 action must be commenced as an adversary proceeding.

06/22/88 h00033.pdf

In re: Sandra Larkin (Case No. 87-01950, Filed 07/31/87)
In re: AVCO Financial Services of Denison, Inc. vs Sandra Larkin (Case No. 87-00234)

Debt was nondischargeable -- creditor proved all elements under section 523 (a) (2) (B) by clear and convincing evidence.

06/21/88 h00032.pdf

In re: Sally Mary Huntoon (Case No. 88-00471, Filed 03/07/88)

Motion for relief from stay moot -- stay is no longer in effect after discharge is granted.

06/10/88 h00031.pdf

In re: Stephen F. Sesker and Sandra L. Sesker (Case No. 87-03014, Filed 12/10/87)

Section 1225 (a) (5) (B) (ii) requires the Debtor's payment of trustee's fees to be a payment in addition to the required present value payments to secured creditors.

06/06/88 h00029.pdf

In re: Stephen F. Sesker and Sandra L. Sesker (Case No. 87-03014, Filed 12/10/87)

Equities of the case required the court to treat Bank's objection to exemptions as timely filed, distinguishing Towns.

05/27/88 h00028.pdf

In re: Charles T. Gross (Case No. 84-00794, Filed 05/15/84)

Motion to lift stay and for adequate protection is denied. Debtor was authorized to use FDIC's cash collateral and equipment at all times, both pre-and post-confirmation. FDIC not entitled to adequate protection - confirmed plan does not so provide and section 363 (c) does not apply post-confirmation.

05/27/88 h00027.pdf

In re: Vytautas Talandis (Case No. 86-01640, Filed 06/05/86)

Motion for order to show cause denied. Debtor failed to show wrongful conduct by FmHA -- no willful violation of stay per section 362 (h).

05/06/88 h00026.pdf

In re: Johnnie E. Ferrari and Mary Jane Ferrari (Case No. 87-02841, Filed 11/17/87)

Motion to avoid lien granted - - pre-Code lien on farm implements and equipment extinguished by novation and replaced by post-Code lien.

04/29/88 h00025.pdf

In re: Ethel J. Dettman (Case No. 87-03065, Filed 12/18/87)

Motion to avoid lien on exempt automobile and mobile home homestead denied. 96 B.R. 899 (Bankr. S.D. Iowa 1988)

04/25/88 h00024.pdf

In re: Raymond N. Kenkel and Evelyn Kenkel (Case No. 86-00832, Filed 03/26/86)

Motion to modify scheduling order granted - - general discussion of purposes of discovery and court's control over such.

04/25/88 h00023.pdf

In re: Arthur Engle (Case No. 84-01097, Filed 07/10/84)

Motion to dismiss denied - - movant's unpaid claim not included in Debtor's Ch. 13 plan.

04/21/88 h00022.pdf

In re: Thomas R. Kelly and Sandra K. Kelly (Case No. 87-02718, Filed 11/04/87)

F.R. Civ.P 12 (e) motion for more specific statement overruled - - information sought not necessary to form a responsive pleading.

04/15/88 h00021.pdf

In re: Countryside Investment Company (Case No. 88-00554, Filed 07/25/88)

Security deposit under section 366 should bear a reasonable relationship to expected or anticipated utility consumption by a debtor.

04/07/88 h00020.pdf

In re: All Iowa Transport Services, Inc. (Case No. 85-00364, Filed 02/27/85)

Requests for nunc pro tunc orders denied -- parties failed to show any "extraordinary circumstances" which is required to get a nunc pro tunc order.

03/30/88 h00018.pdf

In re: Harold Unternahrer (Case No. 87-02795, Filed 11/12/87)

Real estate contract is an executory contract under Iowa law - - debtor must assume or reject the contract within 20 days.

03/29/88 h00019.pdf

In re: Paul Pothoven and Gretchen Pothoven (Case No. 86-02039, Filed 07/21/86)

Guidelines for attorney fee applications in this district set forth.

03/24/88 h00017.pdf

In re: Richard D. Flanery and Ruth E. Flanery (Case No. 87-00977, Filed 04/13/87)

Motion to reconsider denied - no manifest errors of law or fact and no newly discovered evidence.

03/24/88 h00016.pdf

In re: Bruce R. Simmons and Kathleen S. Simmons (Case No. 87-02982, Filed 12/04/87)

Motion to avoid lien granted -- 2 cows and 2 calves under section 522 (f) (2) (A), all farm equipment except pre-code-granted tractor lien under section 522 (f) (2) (B).

03/23/88 h00015.pdf

In re: United Sungro Seeds, Inc. (Case No. 87-03026, Filed 12/14/87)
In re: United Sungro Seeds, Inc. (fka United Seeds, Inc.) vs. Tom Kesler and Diane Tott, ... (Case No. 88-00030)

Creditor's judgment and garnishment levies are avoidable preferences under section 547 (b).

03/10/88 h00013.pdf

In re: Bruce Anthony Desilva and Deborah Diane Desilva (Case No. 87-02924, Filed 11/25/87)

Property in question is not "property of the estate" engaged in farming pursuant to section 541 (a) and thus not subject to section 362 (a) automatic stay.

03/10/88 h00012.pdf

In re: Jerome W. Neill and Sharon K. Neill (Case No. 86-03328, Filed 12/19/86)

Even though Debtors are "family farmers" pursuant to Ch. 12 section 101(18) (A), confirmation of plan denied and petition dismissed.

03/10/88 h00011.pdf

In re: Vern E. John and Gladys I. John (Case No. 87-02766, Filed 11/10/87)

Debtors are farmers under Ia. Code section 627.6 (11), and thus entitled to exempt farm machinery and equipment. In addition, pursuant to section 522 (f) (2) (B), debtors are entitled to void lien on said exempt property.

03/10/88 h00010.pdf

In re: ACE ENTERPRISES INC (Case No. 87-01405)

Pursuant to section 1112 (b), Debtor's Ch. 11 case dismissed "for cause."

03/04/88 h00009.pdf

In re: Belton Inns, Inc. (Case No. 86-00261, Filed 01/31/86)
In re: SALTER ROBERT A (Case No. 87-00238)

Pursuant to Bankruptcy Rule 9010 (c), motion to strike answers sustained in part, overruled in part.

02/19/88 h00014.pdf

In re: Robert V. Brown and Sue A. Brown (Case No. 82-01857, Filed 12/27/82)

Notice under section 364 is both a statutory and constitutional (procedural due process) requirement - failure to provide notice makes transaction void ab initio.

02/12/88 h00007.pdf

In re: William K. Appenzeller and Neomi Jean Appenzeller (Case No. 87-01969, Filed 08/03/87)

Debtors qualify as "farmers" and are entitled to the farm operation exemption of Iowa Code section 627.6 (11) (1987).

02/11/88 h00006.pdf

In re: OVERTON MICHELLE JENE (Case No. 86-00156)

Automatic stay extended to co-defendant Bank; since issue of fraud inextricably interwoven between state court action and adv. proc., state court fraud finding could collaterally estop this court from independently determining fraud issue. Aff'd Kline v Douglas Co. Bank Case No. 88-1729-A, (S.D. Iowa, filed June 27, 1989) Judge Wolle

01/21/88 h00008.pdf

In re: INTER-STATE NURSERIES INC (Case No. 84-01467)

Fee application denied without prejudice - discussion of necessary requirements and standards the courts will apply to future fee applications.

01/08/88 h00004.pdf

In re: Richard D. Flanery and Ruth E. Flanery (Case No. 87-00977, Filed 04/13/87)

Money proceeds from voluntary sale of exempt property is not exempt.

01/08/88 h00003.pdf

In re: Joni Dawn McNew (Case No. 87-01666, Filed 06/23/87)

Debtor's homestead not exempt from judicial lien granted by dissolution decree to debtor's former spouse.

01/08/88 h00002.pdf

In re: Robert V. Brown and Sue A. Brown (Case No. 82-01857, Filed 12/27/82)
In re: Donald F. Neiman (trustee) vs. Annabel Brown, Cental Veterinary Service, ... (Case No. 87-00109)

Venue. Preference Action "arises under Title 11." Preference action venue is properly in the Dist. Court where the case is pending pursuant to 28 U.S.C. 1409 (a). Section 1409 (b) exception is not applicable.

01/07/88 h00001.pdf

In re: SHEDIWY KATHERINE S (Case No. 87-01462)

Debtor's homestead not exempt from dissolution decree-granted judicial lien held by former spouse.

10/11/87 h00060.pdf

In re: Larry Sanders and Linda F. Sanders (Case No. 87-00495, Filed 02/26/87)

Under section 326 (b), a Chapter 12 standing trustee is not entitled to administrative expenses for services provided before the case was converted to Chapter 7.

09/27/87 h00056.pdf

In re: Robert W. & Jacqueline M Lloyd, Sr. and Jacquline M. Lloyd (Case No. 87-02280, Filed 09/11/87)
In re: KAHOE HAROLD K (Case No. 87-00256)

Under section 523 (a) (2) (A), Defendant's debt owed to Bank held nondischargeable because Bank proved all 5 elements of actual fraud by clear and convincing evidence.