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Honorable Lee M. Jackwig - Decisions

Entry Date PDF File Decision Summary

In re: Mark Wade Curtis (Case No. 20-01414-lmj13, Filed 07/16/2020)
In re: Curtis v. Curtis (Case No. 20-30090-lmj, Filed 09/15/2020)

The Court determined that an award of attorney’s fees in the dissolution decree between the debtor and defendant ex-spouse was a domestic support obligation and therefore not dischargeable under 11 U.S.C. section 523(a)(5). Attorney’s fees awarded in connection with later contempt proceedings and the debtor’s obligation under a hold harmless agreement within the dissolution decree were not domestic support obligations and were subject to discharge.


In re: Larry C. West (Case No. 12-03377-lmj13, Filed 10/29/2012)

The debtor alleged that creditor had violated 11 U.S.C. section 362(a) automatic stay and sought damages under section 362(k). The Court found that, assuming the creditor willfully violated the stay, the debtor failed to demonstrate actual damages or grounds for punitive damages. In the absences of actual damages, a grant of attorneys’ fees was not proper.


In re: Steven L. Morrell (Case No. 10-05431-lmj7, Filed 11/07/2010)
In re: Earlham Savings Bank v. Morrell (Case No. 11-30032-lmj, Filed 05/02/2011)

In determining the amount of damages excepted from discharge under 11 U.S.C. section 523(a)(6) where the debtor had stripped parts off collateral, the Court considered the value of the converted property rather than the diminishment in value of the collateral.


In re: Jeffrey L. Hopkins and Diane L. Hopkins (Case No. 09-05835-lmj7, Filed 11/03/2009)

Creditor who attempted to collect after the debtors’ discharge was sanctioned for violation of 11 U.S.C. section 524(a)(2). Punitive damages were appropriate because the creditor acted with calculated disregard of section 524.


In re: John Robert Hattery (Case No. 10-05272-lmj7, Filed 10/27/2010)
In re: Hattery v. Hattery (Case No. 11-30003-lmj, Filed 01/19/2011)

Debtor’s obligation under hold harmless provision in dissolution decree between debtor and plaintiff ex-spouse was not dischargeable in chapter 7 pursuant to 11 U.S.C. section 523(a)(15).


In re: Ivan Brooks Thrapp and Margie Diane Thrapp (Case No. 08-00555-lmj7, Filed 02/22/2008)
In re: U.S. Trustee v. Thrapp (Case no. 09-30018-lmj, Filed 02/03/2009)

Discharge was revoked under 11 U.S.C. section 727(d)(1). The Court found that discharge would have been denied under 11 U.S.C. section 727(a)(2) had the U.S. Trustee learned of the debtors’ fraudulent transfer of a pontoon boat and trailer prior to the entry of discharge.


In re: Al Dwaine Larson (Case No. 08-04668, Filed 11/26/08)

Creditors' objection to Debtor's claim of a homestead exemption where Debtor and his non-filing spouse had changed the form of their ownership of the property after Debtor signed a guarantee agreement was overruled.


In re: Donald C. Braathun (Case No. 07-00771, Filed 03/19/07)

11 U.S.C. section 707(b) motion to dismiss was denied because U.S. Trustee had failed to carry its burden of proving that the debts were primarily consumer debts. Relying on its prior docket text ruling in Matter of Burrell, No. 08-00898-lmj (Bankr. S.D. Iowa Oct. 1, 2010), the Court also emphasized that U.S. Trustee had improperly treated the case as a joint filing when considering abuse under the bad faith prong of 11 U.S.C. 707(b)(3).


In re: Guy R. Pignotti and Rhonda S. Pignotti (Case No. 07-04109, Filed 11/30/07)

U.S. Trustee's 11 U.S.C. section 707(b) motion to dismiss on the grounds that a presumption of abuse arose under 11 U.S.C. section 707(b)(2)(A) because Debtors did not pass the statutory means-test and that the filing constituted an abuse under section 707(b)(3) was granted. The Court rejected Debtors' argument that relocating from eastern Nebraska to a larger home in western Iowa to accommodate the purported needs of their large household resulted in extraordinary commuting expenses constituted special circumstances to rebut the presumption of abuse. Also, the Court found that dismissal of the case was also appropriate on the 707(b)(3) ground because Debtors' actual monthly expenses were unreasonable given their household situation.


In re: Carolyn L. Vogt (Case No. 10-01330, Filed 03/19/10)
In re: Vogt v. Vogt (Case No. 10-30091, Filed 06/18/10)

Unsecured deficiency remaining after the sale of a repossessed vehicle was declared nondischargeable under 11 U.S.C. section 523(a)(15) because the state court's post-dissolution contempt order declared Debtor solely responsible for the deficiency. Aff'd Vogt v. Vogt, slip op., Case No. 4: 11-CV-00031 (S.D. Iowa, filed August 31, 2011).


In re: Mark A. Rold and Becky E. Rold (Case No. 07-04259, Filed 12/12/07)

11 U.S.C. section 707(b) motion to dismiss was granted. The Court concluded that Joint-Debtor could not claim that repayment of student loan debt constituted a special circumstance that rebutted the presumption of abuse.


In re: Timothy Paul Mattingly and Kimberly Ann Hammack Mattingly (Case No. 03-07434, Filed 12/22/03)

Trustee's motion to dismiss under section 707(b) was granted unless Debtors filed a motion to convert their case to a Chapter 13 case. Reductions in Debtors' expenses would result in a recovery of between $42,660.00 and $71,100.00 over a five year Chapter 13 plan.


In re: Stephen R. Stegall and Sharon J. Stegall (Case No. 05-09519, Filed 10/13/05)

Iowa Code section 627.6(1) did not permit Debtors to claim as exempt a replacement setting for an engagement ring acquired after Debtors' marriage.


In re: Dennis E. Campbell (Case No. 03-06108, Filed 10/14/03)

Debtor failed to establish by a preponderance of the evidence that the redemption value of a vehicle should be its wholesale value.


In re: Crestland Cooperative (Case No. 01-05005-lmj, Filed 09/26/01)

Creditor filed a claim in Debtor's Chapter 11 case and a claim in Debtor's subsidiary's Chapter 11 case. When the subsidiary's case was dismissed, Creditor attempted to amend its claim in Debtor's case to include the claim originally filed in the subsidiary's case. The Court agreed with the trustee's contention that any liability incurred by Debtor as a result of a contractual obligation of the subsidiary was a separate claim and denied Creditor's motion for leave to amend its proof of claim.


In re: Ken Jackson and Amy L. Jackson (Case No. 06-00763, Filed 04/28/06)

Debtor failed to file sixty days' worth of payment advices within forty-five days of the petition date so the Court dismissed the case sua sponte on the forty-sixth day. Upon a motion for relief from order, the Court reviewed the matter and held it would no longer dismiss deficient 11 U.S.C. section 521(a)(1)(B) cases sua sponte.


In re: Stephen E. Seye and Sheryal L. Seye (Case No. 02-02489, Filed 05/09/02)

Debtors originally executed a promissory note and security agreement providing them with a line of credit. Later Debtors executed a Small Business Administration note and security agreement. The Court declared the two transactions were so closely aligned that it acted as a single financing agreement; thus, Creditor had a purchase-money security interest.


In re: Phelan Rico Thomas (Case No. 03-01003, Filed 03/04/03)

When Chapter 13 debtors did not meet the three elements of economic duress, the Court held they could not assume the terms of a lease agreement because the lease termination agreement they entered into did not become voidable.


In re: David L Bailey and Julia B Bailey (Case No. 02-02229, Filed 04/25/02)

Court overruled trustees objection, allowing joint debtors the full exemption under Iowa Code Section 627.6(9)(b) for two vehicles under a statutory analysis involving the definition of `motor vehicle`. Though the vehicles were currently disassembled, with a negligible amount of work they could become operable.


In re: John N VanZandt (Case No. 02-01078, Filed 03/06/02)

Creditor filed a filed a Proof of Claim indicating it held an unsecured claim for a breach of a lease agreement when Chapter 13 debtor filed for bankruptcy 2 days prior to state court date. Under an examination of Iowa landlord-tenant law and the bankruptcy code, the Court held that the unsecured, non-priority claim of the Creditor was allowed at a reduced rate.


In re: Timothy Francis Hoover (Case No. 01-01322, Filed 03/23/01)

Defendant's daughter obtained a state court judgment against plaintiff, and plaintiff in turn obtained a state court judgment for indemnification against defendant. Defendant was co-conservator for his daughter. Defendant presented a conservatorship certificate of deposit to plaintiff for payment, and re-ceived a cashier's check in exchange. The conservatorship had in fact expired, and defendant did not turn over the funds to his daughter. Plaintiff sought to have its judgment declared non-dischargeable. Under FRBP 7052, plaintiff's case-in-chief must establish a prima facia case to defeat defendant's motion for a directed verdict. A creditor must prove all elements of the test to prevail on an 11 U.S.C. section 523(a)(2)(A) dischargeability action. Creditor must prove the debtor was acting in a fiduciary capacity with respect to that creditor for the debt to be nondis-chargeable under the defalcation prong of section 523(a)(4). The embezzled property must have belonged to the plaintiff for the defendant's debt to be nondischargeable under 523(a)(4). Creditor must prove the debtor was acting in a fiduci-ary capacity with res-pect to that creditor for the debt to be nondischargeable under section 523(a)(11).


In re: Arnold Dean Stumbo and Janice L Stumbo (Case No. 02-03315, Filed 06/19/02)

11 U.S.C. section 1208 does not permit a court to convert a Chapter 12 case to one under Chapter 11.


In re: Bradley Dean Allen and SherRee Lynn Allen (Case No. 00-04754, Filed 12/22/00)

Objection to homestead exemption by antecedent claim holder and trustee sustained. Under Iowa Code sections 561.7, 561.16, 561.20 and 561.21(1), after debtors moved from property A to property B, the debtors' move back to their property A after acquiring debt is not a change of homestead or a new homestead such as to defeat the antecedent debt provision of Iowa Code section 561.21(1).


In re: Raymond Paul DeRosear and Paula Joyce DeRosear (Case No. 00-01959, Filed 05/30/00)

11 U.S.C. section 707(b) motion to dismiss was granted because U.S. Trustee overcame statutory presumption in favor of granting Chapter 7 relief. Most of Debtor's allegations, regarding their financial situation were not readily supported by the record. Instances of Debtors' failure to provide timely, accurate, complete and consistent information were noted. 265 B.R. 196 (Bankr. S.D. Iowa 2001)


In re: Ronald Lee Woodward and Diane Mildred Woodward (Case No. 00-00819, Filed 03/14/00)

The Court did not take alleged substantial debt service on home into account in calculating reasonably necessary expenses in the context of an 11 U.S.C. section 707(b) motion. Debtors had not amended their statement of intention (from intention to surrender homestead to intention to retain homestead by reaffirming two mortgage debts against it) timely. Under the facts of the case, the Court would not have found the amendment credible had it been filed timely. 265 B.R. 179 (Bankr. S.D. Iowa 2001)


In re: Karlis A. Norkus and Peggy M. Norkus (Case No. 99-04147, Filed 11/01/99)

11 U.S.C. section 522(c) does not preempt Iowa Code section 561.21 and, therefore, trustee's section 561.21(1) objection to debtors' homestead exemption was sustained to extent antecedent debts were not satisfied after other property of debtors was subjected to execution and exhausted. Appealed to the Eighth circuit Bankruptcy Appellate Panel, November 3, 2000. Appeal dismissed by appellants, Norkus v. Berger, No. 0-6112SID, filed January 2, 2000. 256 B.R. 298 Bankr. S.D. Iowa 2000)


In re: Barbara L. Horstmann (Case No. 99-03314, Filed 08/30/99)
In re: Roberts v. Horstmann et al (Case No. 99-99230, Filed 11/19/99)

Chapter 7 trustee, as intervener, met burden of proof that creditor's claim was based upon judicial lien and could be avoided as preferential transfer under 11 U.S.C. section 547(b); trustee's motion for summary judgment granted. 255 B.R. 564 (Bankr. S.D. Iowa 2000)


In re: Kevin Clingan (Case No. 97-05062, Filed 11/05/97)
In re: Sheri Clingan v. Clingan (Case No. 98-98015, Filed 01/26/98)

Plaintiff sustained burden of proof and debtor was denied discharge under 11 U.S.C. sections 727(a)(2)(A), 727(a)(3), and 727(a)(4)(A). Plaintiff did not sustain burden of persuasion under section 727(a)(5). Regarding alternative ruling, debtor did not sustain burden of proof under 11 U.S.C. section 523(a)(15)(A) or (B) and $175,000 judgment arising from dissolution decree was nondischargeable. Appealed to the Eighth Circuit Bankruptcy Appellate Panel, September 7, 2000. Appeal dismissed by appellant, Clingan v. Clingan, No. 0-6101SIDM, filed October 30, 2000.


In re: Thousand Adventures, Inc. and George Hess (Case No. 97-03618, Filed 08/05/97)
In re: Lam et al v. Travel America, Inc. et al (Case No. 99-99177, Filed 09/10/99)

Intervention by right was not proper under Rule (a)(2) because applicant did not establish that claim for recovery of contract payments under FTC Holder Rule provision would be impeded or impaired by disposition of pending action. Permissive intervention was not proper under Rule 24(b)(2) because claim had no question of law or fact in common with the pending action, and would not be guaranteed a quicker resolution in this forum than in another. Intervention by right and permissive intervention were proper for constructive trust claim.


In re: Clarence Edward McReynolds and Martha Lu McReynolds (Case No. 99-04344, Filed 11/16/99)

11 U.S.C. section 707(b) motion to dismiss was granted because U.S. trustee overcame statutory presumption in favor of granting chapter 7 relief. Controlling circuit case law does not require trial court to find a debtor can repay a specific threshold of unsecured debt within three to five years. 253 B.R. 54 (Bankr. S.D. Iowa 2000)


In re: James A. Nepple (Case No. 99-03572, Filed 09/20/99)

Under controlling circuit law, under-secured portion of debt was treated as unsecured debt for the purpose of 11 U.S.C. section 109(e). On balance, debtor's unsecured debts exceeded the statutory limitation for Chapter 13 eligibility.


In re: Quad City Minority Broadcasters, Inc. (Case No. 99-02184, Filed 06/04/99)

Corporation administratively dissolved under Iowa law may be a chapter 7 debtor. 252 B.R. 773 (Bankr. S.D. Iowa 2000)


In re: Norman Eugene Lettington and Maxine Ann Lettington (Case No. 97-04083, Filed 09/05/97)

Creditor's allegations in support of motion to dismiss Chapter 7 case either failed to establish cause under 11 U.S.C. section 707(a) or fell under an 11 U.S.C. section 707(b) cause of action. The creditor lacked standing to bring the latter and neither the Court nor the U.S. Trustee could act upon the creditor's request or suggestion.


In re: Norman Eugene Lettington and Maxine Ann Lettington (Case No. 97-04083, Filed 09/05/97)
In re: Betts et al v. Lettington et al (Case No. 97-97284, Filed 12/09/97)

Defendants' Rule 52(c) motion granted and adversary proceeding dismissed because plaintiff failed to establish a prima facie case under 11 U.S.C. sections 5239a)(2)(A), 523(a)(2)(B), 523(a)(4) or 523(a)(6). Special circumstances made an award under 11 U.S.C. section 523(d) unjust.


In re: Donald Dean Sears and Daphne Alice Sears (Case No. 98-01073, Filed 03/13/98)

Homestead exemption within city plat included: house used as a home by the debtors and garage used to store one of the debtor's cars; one building worth no more than $300.00 and used in the debtors' business; and, subject to the one-half acre limitation and excluding the land upon which nonexempt buildings stood, three contiguous lots. 246 B.R 881 (Bankr. S.D. Iowa 2000)


In re: Sonya D. Longstreet and Darry K. Longstreet (Case No. 99-04016, Filed 10/22/99)

Federal Earned Income Credit is exempt under Iowa Code section 627.6(8)(a). 246 B.R. 611 (Bankr. S.D. Iowa 2000)


In re: Jan R. Robinson (Case No. 98-03851, Filed 09/02/98)

Trustee's objection to exemption overruled because Debtor had interest in pending worker's compensation cause of action, not in final agency approved contested case settlement, as of the petition date. Section 707(b) implications discussed. 246 B.R. 373 (Bankr. S.D. Iowa 1999)


In re: Diane C. Jepsen (Case No. 98-03272, Filed 07/27/98)
In re: Jepsen v. State of Iowa/Dept of Rev. & Finance (Case No. 98-98181, Filed 09/04/98)

11 U.S.C. section 305 abstention appropriate where plaintiff did not dispute her jeopardy drug stamp federal tax debt was nondischargeable but did challenge the validity and amount of that tax, where debtor had other avenues of relief, and where the bankruptcy estate had no stake in the outcome of the controversy.


In re: Louis McLain (Case No. 98-05303, Filed 12/09/98)
In re: Scholl v. McLain (Case No. 99-99029, Filed 03/01/99)

Former spouse failed to prove debt stemming from a reduction in child support, in return for debtor's agreement to pay spouse installments toward payment of marital debts, amounted to nondischargeable alimony, maintenance or support under 11 U.S.C. section 523 (a) (5). 241 B.R. 603 (Bankr. S.D. Iowa 1999) Rev'd Scholl v. McClain, slip op., docket No. 99-6-6-SI by BAP Panel (filed November 30, 1999). 241 B.R. 415 (B.A.P. 8th Cir. 1999)


In re: Danny J. Bircher and Connie Bircher (Case No. 98-05437, Filed 12/18/98)

Net capital gain from the sale of farm real estate was farm income under 11 U.S.C. section 101(18) (A). 241 B.R. 11 (Bankr. S.D. Iowa 1999)


In re: Douglas R. Devine and Natalie A. Devine (Case No. 98-04347, Filed 10/01/98)

Under facts of case, debtors' motion for reconsideration of section 707(b) "substantial abuse" dismissal was denied.


In re: Brian Lee Cron and Cheryl Anne Cron (Case No. 97-02831, Filed 06/16/97)
In re: Novus Services, Inc., a servicing agent for Greenw v. Cron (Case No. 97-97213, Filed 09/19/97)

Debtor overcame 11 U.S.C. section 523(a)(2)(C) presumption by proving the debt was dischargeable. 241 B.R. 1 (Bankr. S.D. Iowa 1999)


In re: Victor E. Norman and Penny L. Norman (Case No. 98-04463, Filed 10/07/98)

Reaffirmation agreement, executed after the general discharge was entered, could not be approved by the Court.


In re: Jennifer Lynn Johnson (Case No. 97-05414, Filed 12/01/97)

Debtor's interest in federal earned income credit for a particular tax year is property of estate under 11 U.S.C. section 541 even when the petition is filed before the end of the applicable tax year.


In re: Eric J. Ersland (Case No. 98-00695, Filed 02/24/98)

Case was dismissed without prejudice where debtor submitted final installment fee payment more than 180 days after filing his petition contrary to Fed. R. Bankr. P. 1006 (b) (2) and 9006 (b) (3). Debtor may seek return of the final installment upon written request to the Clerk's office but will remain liable for the amount. Compare LMJ #187.


In re: Norman Eugene Lettington and Maxine Ann Lettington (Case No. 97-04083, Filed 09/05/97)

To recover actual damages pursuant to section 362 (h), an injured individual must establish he was injured by violation of the stay and that the violation was willful. An award of costs and attorney's fees is inappropriate in the absence of an award of actual damages. To recover punitive damages, the debtors must establish the violation of the automatic stay amounted to egregious intentional misconduct.


In re: Walter Steven Brown and Diane Kay Brown (Case No. 93-00070, Filed 01/11/93)

Consideration of 11 U.S.C. section 362 (h) motion exceeded the Court's limited residual jurisdiction where alleged stay violation occurred after Court of Appeals affirmed the decision to dismiss the case but before the mandate issued, and where record lacked evidence of willful violation and actual injury. Reh'g denied Brown v. IRS slip op., Case No. 93-00070-C J (Bankr. S.D. Iowa, filed April 9, 1998). Aff'd Brown, v. IRS slip op., 4-97-CV-80314 (S.D. Iowa, filed May 26, 1998). Aff'd Brown v. IRS slip op., 98-2938 SIDM (97-CV-80314) (8th Cir., filed December 22, 1998).


In re: Jerald J. Knapp and Lisa Ann Knapp (Case No. 95-01771, Filed 06/14/95)
In re: Knapp et al v. United States of America (Case No. 95-95124, Filed 09/25/95)

Prepetition transfer of tax refund by the IRS to the VA for the application against an outstanding judgment was a valid setoff under 11 U.S.C. section 553.


In re: Florence Jean Smith (Case No. 95-01352, Filed 05/09/95)
In re: Greenwood Trust Company et al v. Smith (Case No. 95-95077, Filed 06/15/95)

Federal bankruptcy law and policy do not preempt Iowa Code Section 537.7103 (5) (e). Creditor sending debtor copy of the letter it sends debtor's counsel regarding reaffirmation of unsecured dischargeable debt amounted to an act to collect a debt under either 11 U.S.C. section 362 (a) (6) or section 524 (a) (2) and under Iowa Code section 537.7103 (5) (e). (Caution given about submission of reaffirmation agreements without 11 U.S.C. section 524 (c) (3) affidavit of the attorney of record for the debtor.) Aff'd Greenwood and Discovery v. Smith, 212 B.R. 599 (8th Cir. BAP 1997). Appealed to the U.S. Court of Appeals for the 8th Cir. from the opinion of the U.S. Bankruptcy Appellate Panel of 10/08/97. (Also included as consolidated appeals Montsko, Adv. 95-95078 and Lenahan, Adv. 95-95079.) Appeals dismissed by the U.S. Court of Appeals for the 8th Cir. (Civil Nos. Smith 97-6006; Lenahan 97-6007 and Montsko 97-6008.)


In re: Daniel Kenneth O'Brien and Bonnie Patricia O'Brien (Case No. 95-01291, Filed 05/03/95)
In re: Sears Roebuck & Co v. O'Brien (Case No. 95-95103, Filed 07/26/95)

Federal bankruptcy law and policy do not preempt Iowa Code Section 537.7103 (5) (e). Creditor sending debtor a copy of the letter it sends debtor's counsel regarding reaffirmation of unsecured dischargeable debt (in addition to information about its secured debt) amounted to an act to collect a debt under both 11 U.S.C. section 362 (a) (6) and Iowa Code section 537.7103 (5) (e). Aff'd Sears, Roebuck & Co. v. O'Brien, slip op., Case No. 3-97-CV-80053 (S.D. Iowa, filed March 31, 1998). Appealed to the U.S. Court of Appeals for the Eighth Circuit - May 7, 1998. Aff'd sears, Roebuck & Co., v. O'Brien, Case No. 98-2231 by U.S. Court of Appeals for the Eighth Circuit, 178 F.3rd 962 (8th Cir. 1999).


In re: Gale Ann Jordan (Case No. 95-01312, Filed 05/05/95)
In re: Carter v. Jordan (Case No. 95-95108, Filed 08/08/95)

Transcribed bench ruling comparing and contrasting 11 U.S.C. section 523 (a) (5) with 11 U.S.C. section 523 (a) (15).


In re: Charles F. Gerhart (Case No. 96-01440, Filed 04/16/96)

Federal Rule of Bankruptcy Procedure 4004(b) did not prevent United States Trustee from specifically requesting an extension of time to object to the general discharge on behalf of all parties in interest and facts of case warranted granting the extension as requested.


In re: Jeffrey R. Lucas and Holly Ann Lucas (Case No. 94-02449, Filed 09/28/94)
In re: First Community National Bank of Lenox/ v. Lucas et al (Case No. 94-94142, Filed 12/12/94)

Though judicial policy does not favor default judgment, facts of case did not support setting aside the judgment under Federal Rule of Bankruptcy Procedure 7055.


In re: Scott Alan Zimmerman (Case No. 95-00515, Filed 02/22/95)

Attorney for Chapter 7 debtor may seek compensation and reimbursement to the extent permitted by 11 U.S.C. section 330 (a) (4) (A).


In re: Paula Sue Flowers (Case No. 94-03044, Filed 12/02/94)

Omission of specific deadline for filing objections to discharge and complaints to determine dischargeability of debt in the form notice of commencement of case did not suspend the running of the 60-day limitation established by Federal Rules of Bankruptcy Procedure 4004 (a) and 4007 (c).


In re: Damien Gregory Dassie (Case No. 95-01536, Filed 05/25/95)

Reaffirmation of prepetition attorney's fee agreement not approved for failure to meet the requirements of section 524 (c) (2) and (3). Local bar date notice procedure found insufficient where attorney sought to have clients reaffirm prepetition attorney's fee agreement. Attorneys who make such request must request a hearing under section 524 (d).


In re: Wade A. McKee and Angela Lynn McKee (Case No. 94-02788, Filed 10/31/94)

Implicit cause found to extend the payment period to the full extent permitted by Rule 1006 (b) (2) where debtors the filing fee in full on the 180th day after the petition.


In re: Barry James Kreinbring and Damena Doreen Kreinbring (Case No. 94-02211, Filed 09/02/94)

Case was dismissed without prejudice and discharge entered in interim was revoked where debtors tendered payment more than 180 days after filing their petition contrary to Federal Rules of Bankruptcy Procedure 1006 (b) (2) and 9006 (b) (3).


In re: Kenneth Leon Etter and Penny Dee Etter (Case No. 94-02009, Filed 08/11/94)

Creditor's motion for extension of time for filing a reaffirmation agreement was denied based on the last sentence of Federal Rule of Bankruptcy Procedure 4004 (c) that permits a debtor, not a creditor, to file such a motion.


In re: Mike Benoit and Karla Benoit (Case No. 94-00263, Filed 02/07/94)

Debtors' motion to dismiss the pending Chapter 7 case in order to add the postpetition creditors in a refiled Chapter 7 case was denied. Since they failed to give the potential creditors opportunity to object to their motion as required by procedural due process, debtors did not establish cause for dismissal under section 707 (a).


In re: George L. Midkiff and Margie Joyce Midkiff (Case No. 93-01444, Filed 06/01/93)

Trustee's objection to debtors' exemption claim for worker's compensation settlement was sustained. Under the test adopted in In re Pettit, 55 B.R. 394 (Bankr. S.D. Iowa 1985), aff'd 57 B.R. 362 (S.D. Iowa 1985), the settlement agreement was not, for purposes of Iowa Code section 627.6 (8) (e), a "pension, annuity, or similar plan or contract," which must be in existence and a payment must be triggered by an event contemplated by that plan or contract. Aff'd, Midkiff v. Peterson No. 1-94-CV-80024, slip op. (S.D. Iowa, filed August 10, 1994).


In re: Larry Lee Lynch (Case No. 93-02300, Filed 09/10/93)

Iowa Code section 627.6 (9) (c) limits the debtor's earnings exemption under section 642.21 to $1,000.00, and that was the extent to which he could avoid the judicial lien held by the creditor.


In re: R. Mary Thomas-Gallet (Case No. 92-02452, Filed 08/12/92)

Creditor's motion to abstain from exercising jurisdiction and to dismiss as to the controversies between the creditor and the debtor scheduled in the Chapter 7 case found to be moot and denied where no adversary proceeding had been commenced under 11 U.S.C. section 523(a), the trustee had fully administered the Chapter 7 case, and the general discharge had been granted.


In re: Denise R. Spinner (Case No. 92-03465, Filed 11/18/92)

Case dismissed where Chapter 13 debtor failed to satisfy order to show cause why case should not be dismissed for failure to pay filing fee. Debtor's request to pay filing fee from plan payments held by the trustee, awaiting confirmation of the plan, denied as being at odds with the statutory scheme.


In re: (Case No. 92-02967, Filed 10/05/92)

Where no Chapter 13 plan had been confirmed and case was converted to Chapter 7 prior to hearing on order to show cause why case should not be dismissed for failure to pay filing fee, court found cause to extend time to comply to a period beyond 120 days but within 180 days as permitted by Federal Rule 1006(b)(2) of Bankruptcy Procedure. Debtor's request to pay filing fee from plan payments held by the Chapter 13 trustee was denied. 11 U.S.C. section 1326(a)(2) does not permit the trustee to pay the 28 U.S.C. section 1930(a)(1) filing fee. Administrative expense claims under 11 U.S.C. section 503 (b) do not encompass filing fees.


In re: Thomas D. Lynch and Tempie A. Lynch (Case No. 92-01357, Filed 04/27/92)

Motion to vacate order granting relief from stay denied because controversy was moot by operation of law. 11 U.S.C. § 362(c). Dicta emphasized objections to bar date noticed motion should be filed within the time frame set forth in the served notice, even if the underlying motion was not filed on the date originally submitted. Local Rule 14(b) and (d).


In re: Frank E. Duncan and Lupe Duncan (Case No. 91-01857, Filed 06/24/91)
In re: Duncan et al v. United States of America et al (Case No. 92-92020, Filed 01/15/92)

Debtors' motion for summary judgment granted. As a matter of law, failure to file amended Iowa return did not render unreported income nondischargeable under section 523(a)(1)(B)(i). State failed to present enough evidence to establish a genuine issue of material fact under section 523(a)(1)(C).

Note: 10-30041-lmj Lewis v IA DOR DNs 7, 12, 14 and DNs 13 and 16 - Minute Order < none; instead: Docket Text Order Regarding August 16, 2011 Hearing on Contested Cross-Motions for Summary Judgment (rendering Duncan v United States of America and Iowa Department of Revenue (Matter of Duncan), Adv. Pro. No. 92-92020-lmj (Bankr. S.D. Iowa, filed Aug. 5, 1992) no longer good law). For the reasons set forth on the record, the Court hereby Orders that: The plaintiff's motion is denied and the defendant's motion is granted, meaning the 2004 and 2005 taxes are nondischargeable pursuant to 11 U.S.C. section 523(a)(1)(B)(i). (The parties otherwise agree that the 2005 taxes are also nondischargeable pursuant to 11 U.S.C. section 523(a)(1)(A) and that the statutory tax lien for the 2004 and 2005 taxes remains valid and continues to attach to any property that the debtor owned prior to the filing of the related Chapter 7 case on November 2, 2009.) Accordingly, the plaintiff's complaint is dismissed. As required by any applicable federal rule or statute, the plaintiff shall serve this order on all appropriate parties (except those parties who are represented by attorneys who will receive notice of electronic filing). Audio Track 2; Appearances: Mr. Wanek for Plaintiff (Debtor), and Mr. Waters for Defendant (Iowa Department of Revenue). This order has been entered on the docket as directed by Judge Jackwig.


In re: Danny L. Mason and Denise R. Mason (Case No. 91-00882, Filed 03/27/91)

Although a Chapter 13 amended plan before confirmation must be filed when submitted, the debtors must otherwise comply with Local Rule 14(2)(C) by filing a motion to modify the plan, a bar date notice regarding the motion, a certificate of service and a proposed order granting the motion.


In re: Roger Gene VanHoff (Case No. 90-02940, Filed 11/13/90)

Iowa State Penitentiary was not precluded from withholding restitution payments from debtor's pay after Chapter 7 general discharge was entered.


In re: Michael Robert Stevenson and Jennifer Jane Stevenson (Case No. 91-00043, Filed 01/08/91)

Chapter 13 debtors may not separately classify student loans from other unsecured claims on ground that the student loans are nondischargeable. 11 U.S.C. §§ 1322(b)(1) and 1122.


In re: Joyce E. Heiser (Case No. 90-02059, Filed 08/09/90)

Failure to allege facts that would establish substantial cause justified denial of motion to file refused documents. Had substantial cause been alleged and established, a hearing on the merits of the objection to the motion for relief from stay would not have been warranted under Local Rule 14(g)(2)(A) because the objection to the motion for relief from stay failed to comply with the requirements of Local Rule 14(f)(2).


In re: Emily J. Halsband (Case No. 90-00914, Filed 04/05/90)

Pending motion to dismiss pursuant to section 707(b) satisfied "cause" standard in Fed. R. Bankr. P. 4004(b). Aff'd sub nom. Emily J. Halsband v. U.S. Trustee, No. 4-91-CV-80094 (S.D. Iowa, filed October 10, 1991).


In re: Steven Roger Penney (Case No. 88-02139, Filed 10/03/88)
In re: Linda Lou Hirsch (Case No. 89-00009, Filed 01/03/89)

Parties must adhere to briefing requirements set forth in any notice and order for trial or hearing. See Local Rule 14 (j).


In re: Joe A. Sciarrotta and Deborah D. Sciarrotta (Case No. 90-02207, Filed 08/24/90)

Pursuant to Local Rule 14(b)(2)(C), a 20 day bar date notice upon the trustee and the U.S. Trustee should accompany a motion to dismiss filed under section 1307(b) and Fed. R. Bankr. P. 1017(d).


In re: Richard Eugene Bartlett and Rita Ann Bartlett (Case No. 89-01841, Filed 08/23/89)

Seeking and maintaining employment were not the equivalent of creating or giving consideration to a trust. Employee Stock Ownership Plan was spendthrift trust under Iowa law and debtor's interest in the plan was excluded from the estate pursuant to 11 U.S.C. § 541(c)(2). Alternative analysis noted that, unlike Carver, there was no specific exemption under Iowa law for the plan; that ERISA did not preempt Iowa Code section 627.6(8)(e); and that debtor would not meet "reasonably necessary for the support test." 116 B.R. 1015 (Bankr. S.D. Iowa 1990)


In re: Ronald Dee Gouker and Debra Sue Gouker (Case No. 89-01735, Filed 08/08/89)

Nebraska Public Employees Retirement System was construed as a spendthrift trust under Nebraska law and debtor's interest in the fund was excluded from the estate pursuant to 11 U.S.C. § 541(c)(2). Alternative analysis noted that, unlike Carver, debtor could not utilize specific exemption under Nebraska because law of domicile (Iowa) controlled exemption issue; that ERISA did not preempt Iowa Code section 627.6(8)(e); and that further evidence would be required on "reasonably necessary for the support" test. 116 B.R. 1005 (Bankr. S.D. Iowa 1990)


In re: Kenneth Duane Layton and Sharon Marie Layton (Case No. 89-01865, Filed 08/24/89)

City of Omaha Employee Retirement System was construed as spendthrift trust under Nebraska law and debtor's interest in the fund was excluded from the estate pursuant to 11 U.S.C. section 541(c)(2). Alternative analysis noted that, unlike Carver, debtor could not utilize specific exemption under Omaha Code because law of domicile (Iowa) controlled exemption issue; that ERISA did not preempt Iowa Code section 627.6(8)(e); and that debtor would not meet "reasonably necessary for the support" test. 116 B.R. 995 (Bankr. S.D. Iowa 1990)


In re: Richard Dean Carver and Pamela Ann Carver (Case No. 89-01510, Filed 07/10/89)

IPERS construed as a spendthrift trust under Iowa law and excluded from the bankruptcy estate pursuant to 11 U.S.C. section 541(c)(2); however, debtor could reach her mandatory contributions and accumulated interest in IPERS as of the petition date because as a terminated employee she could seek refund of those amounts and, therefore, her interest in the fund did not benefit from the spendthrift character of the fund itself. Her interest was exempt from the estate by operation of Iowa Code section 97B.39 which provided a specific exemption for IPERS. 116 B.R. 985 (Bankr. S.D. Iowa 1990) 20 BCD 1353


In re: Larry D. Reynolds (Case No. 87-00758, Filed 03/23/87)

The realities of sua sponte imposition of monetary sanctions under Fed. R. Bankr. P. 9011 discussed. 117 B.R. 452 (Bankr. S.D. Iowa 1990)


In re: Harold Van Voorhis (Case No. 89-01328, Filed 06/15/89)

Motion for reconsideration of finding that Chapter 13 plan had been filed in good faith denied. Fact that IRS discovered after the confirmation hearing that it did not hold a priority claim was not a ground for reconsideration under Fed. R. Bankr. P. 9024. Note: In re LeMaire, 883 F.2d 1373 (8th Cir. 1989) was vacated and rehearing en banc was granted. See In re LeMaire, 898 F2d 1346 (8th Cir. 1990).


In re: Dennis C. Doty (Case No. 88-00102, Filed 01/20/88)
In re: Earl Melvin Schamerhorn (Case No. 88-00096, Filed 01/19/88)

Consistent with Hoyt (#153), debtor may not utilize section 506(d) to avoid lien on an otherwise valid fully secured or undersecured claim. Adversary proceeding brought pursuant to section 502(b)(1) and Rule 3007, not under section 506(d), is proper vehicle by which validity of claim may be challenged. 104 B.R. 133 (Bankr. S.D. Iowa 1989) Rev'd and remanded, No. 89-65-W (S.D. Iowa, filed July 20, 1990). [Appeal to Circuit Court dismissed by mandate issued 12/11/90] Note: Decision was rendered prior to U.S. Supreme Court's decision that Chapter 7 debtor could not "strip down" a creditor's lien on real property to judicially determined value of collateral. Dewsnup v. Timm, ____ U.S. _____, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992).


In re: Herbert E. Conrad (Case No. 89-00560, Filed 03/16/89)

FCB not entitled to relief from stay pursuant to section 362(d)(1) where evidence failed to establish a decrease in the actual value of the rental payments which constituted part of FCB's secured claim. However, Chapter 12 debtor directed to segregate or otherwise to account for the payments in accordance with section 1205(b)(4). Noted that FCB did not seek payments pursuant to sections 363 and 1205(b)(3).


In re: Victor C. Butz and Patricia Butz (Case No. 87-00439, Filed 02/20/87)

Compelling reasons existed to deny the FmHA the right to pursue an administrative offset of ASCS-CCC program benefits. 104 B.R. 128 (Bankr. S.D. 1989)


In re: Ronald W. Mehrhoff and Vanita C. Mehrhoff (Case No. 87-01150, Filed 04/29/87)

Compelling reasons existed to deny the SBA the right to pursue an administrative offset of ASCS-CCC program benefits. 104 B.R. 125 (Bankr. S.D. Iowa 1989)


In re: Ralph Bunche Lassiter (Case No. 88-02315, Filed 10/25/88)

For purposes of section 1325 (a) (5) (B) (ii), IRS' allowed secured claim was based on estate's interest in property and did not include property which had been exempted from the estate; however, in accordance with section 522 (c) (2) (B), debtor could not avoid IRS' lien in exempt property. 104 B.R. 119 (Bankr. S.D. Iowa 1989) Appeal withdrawn by the United States on September 8, 1989.


In re: James H. Wubben and Renea S. Wubben (Case No. 87-00810, Filed 03/26/87)

Status summary regarding certain government payments issues and decisions in this index.


Misc. Case No. Application to proceed in forma pauperis with respect to Chapter 7 filing fees denied.


In re: Jay C. Dacre (Case No. 87-00770, Filed 03/24/87)
In re: Midwest Grocers Credit Union (fka Super Valu Employees Credit Union) vs. Jay C. Dacre (Case No. 87-00129)

Under facts and procedural posture of case, debt held nondischargeable pursuant to section 523(a)(2)(A). NOTE: Decision was rendered prior to U.S. Supreme Court's adoption of a preponderance of the evidence standard for the burden of proof in dischargeability determinations. Grogan v. Garner, __U.S. __, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991).


In re: Donald E. Tuinstra (Case No. 86-02694, Filed 10/07/86)

Objection to trustee's sale of property overruled - - under facts of case, automatic termination agreement did not violate Iowa Code section 562.6.


In re: Dale Edward Kumbier (Case No. 86-02386, Filed 09/02/86)

Seizure of Debtor's property by IRS did not violate the Fourth Amendment under the facts of the case; sale of seized property was within discretion of IRS under the facts of the case; allocation by IRS of voluntary payments in absence of taxpayer direction did not violate the Fifth Amendment.


In re: Donald D. Spears and Phyllis M. Spears (Case No. 86-03019, Filed 11/07/86)

Value of creditor's allowed secured claim was neither increased nor decreased by contingent annual disability payments. Voluntary Dismissal of Appeal by FLB 5/23/89.


In re: Randy E. Pebbles and Rebecca Pebbles (Case No. 87-01454, Filed 05/29/87)

Under facts of case, payments received pursuant to settlement agreement were exempt under Iowa Code section 627.6 (8) (e). Debtors' plan was proposed in good faith. Under facts of case, lump sum payments to be received in future did not impact on confirmation findings.


In re: Clyde E. Hoyt and Sherry L. Hoyt (Case No. 88-01042, Filed 05/11/88)
In re: Candie J. Fick and Larry L. Fick (Case No. 88-00119, Filed 01/22/88)

Chapter 7 debtor can not avoid mortgage lien under 11 U.S.C. section 506(d). 93 B.R. 540 (Bankr. S.D. Iowa 1988) Rev'd and remanded, No. C 89-129-E (S.D. Iowa, filed July 20, 1990). Note: Decision was rendered prior to U.S. Supreme Court's decision that Chapter 7 debtor could not "strip down" a creditor's lien on real property to judicially determined value of collateral. Dewsnup v. Timm, _____ U.S. _____, 112 S. Ct. 773, 116 L.Ed.2d 903 (1992).


In re: Harold D. Brownlee and Ruth A. Brownlee (Case No. 86-03403, Filed 12/31/86)

Upon conversion from Chapter 12 to Chapter 7 property of the estate included postpetition preconversion property. 93 B.R. 662 (Bankr. S.D. Iowa 1988) Appeal dismissed, Brownlee v. Smith, Civ. No. 89-5-W (S.D. Iowa filed January 23, 1990).


In re: Le Roy Feldhahn (Case No. 87-01240, Filed 05/06/87)

Secured creditor did not have standing under 11 U.S.C. section 547 to bring an avoidance action against another secured creditor; request for marshalling must be brought as an adversary proceeding (following Matter of Mel-O-Gold, Inc., 88 B.R. 205 (Bank. S.D. Iowa 1988)). 92 B.R. 834 (Bankr. S.D. Iowa 1988)


In re: Marvin E. Billman and Virginia L. Billman (Case No. 87-01236, Filed 05/05/87)

I. Unsecured creditor is not entitled to more than the present value of its unsecured claim; II. Undersecured creditor did not establish that debtor was solvent at time of confirmation; III. Amortization of claim secured by real estate over 25 years with balloon payment at end allowed; IV. Resolved by parties; V. Debtors were not required to submit disposable income to plan payments where debtors were paying their only unsecured creditor in full as of the effective date of the plan; VI. Second lien holder's claim was adequately protected under facts of case. 93 B.R. 657 (Bankr. S.D. Iowa 1988)


In re: Bluridg Farms, Inc. (Case No. 87-00251, Filed 02/02/87)

I. Best interest of creditors test should be analyzed as of or close to the time of confirmation, rather than as of the petition date; II. 7-year payment term on maintained machinery was reasonable; III. Mortgage lien could be extinguished upon discharge; IV. Adequate protection under section 1205 not warranted where value of collateral had not declined; V. Feasibility determination continued pending amendments to include, among other things, price assumptions; VI. Debtors were not responsible for unreasonable delay as contemplated by section 1208. 93 B.R. 648 (Bankr. S.D. 1988)


In re: Samuel & Company Rathmel and Coramarie Rathmel (Case No. 87-02063, Filed 08/14/87)

I. Chapter 11 plan not confirmable under section 1129 (a) because not feasible. II. Dicta regarding cram down and absolute priority rule.


In re: Paul M. Hollinrake and Patricia L. Hollinrake (Case No. 86-03294, Filed 12/15/86)
In re: Arvin Van Waarduizen (Case No. 87-00008, Filed 01/02/87)

I. To extent mortgage lien exceeded value of real estate, lien would be void upon discharge; II. Lien on coal royalties pursuant to granting clause in mortgage attached upon execution of the mortgage and, based on the specific facts of the case, was perfected when the mortgage was filed with the county recorder; mortgage holder was not required to exhaust land first because royalties served as primary security and equitable doctrine of marshalling did not apply; and mortgage holders' interests in postpetition royalties were not cut off by section 522 (b). 93 B.R. 183 (Bankr. S.D. Iowa 1988)


In re: Wilfred Newell Snipes and Angelia Faith Snipes (Case No. 88-00668, Filed 03/28/88)

Receivables do not qualify as wages under Iowa Code section 627.6 (9)(c). Note: The Iowa Court of Appeals in Marian Health Center v. Cooks, 451 N.W.2d 846 (Iowa App. 1989) has now interpreted that compensation for independent contractors can be considered wages for Iowa Code § 627.6(9)(c). Judge Hill has also issued an opinion holding likewise in In re Sexton, 140 B.R. 742 (Bankr. S.D. Iowa 1992).


In re: American Securities & Loan, Inc. (Case No. 84-01230, Filed 08/10/84)
In re: RAY CHRISTIAN E (Case No. 87-00288)

§ 546 (e) prevented Ch. 11 trustee from utilizing the avoiding powers of § 547 (b).


In re: Terrence William Schuldt and Mary Lou Schuldt (Case No. 88-00157, Filed 01/26/88)

Facts in Nehring (#96) distinguished from facts of case - - trustee's objection to homestead exemption sustained pursuant to Iowa Code § 561.21(1). 91 B.R. 501 (Bankr. S.D. Iowa 1988)


In re: Dennis Leigh Sweet and Pauline Marie Sweet (Case No. 88-00793, Filed 04/13/88)
In re: Francis Earl Sweet and Norma Jean Sweet (Case No. 88-00794, Filed 04/13/88)

Prepetition dissolution and termination of partnership did not allow individual partners to claim exemption in partnership property where partnership debt had not been paid. Aff'd, Nos. 88-1629-E and 88-1630-E (S.D. Iowa, filed April 19, 1989).


In re: STEWART LARRY RANDY (Case No. 86-02174)
In re: O'DAYE SALISTER (Case No. 86-00281)

Primer on § 523(a)(2)(A) and (C) (credit card debt). 91 B.R. 489 (Bankr. S.D. Iowa 1988) Note: Decision was rendered prior to U.S. Supreme Court's adoption of a preponderance of the evidence standard for the burden of proof in dischargeability determinations. Grogan v. Garner, ____ U.S. ____, 111 S. Ct. 654, 112 L.Ed.2d 755 (1991).


In re: C. G. C. Stores, Inc. (Case No. 87-00516, Filed 02/27/87)

Piercing the corporate veil was not warranted by the facts.


In re: Kelly P. & Kathryn C. Dewulf and Kathryn C. Dewulf (Case No. 87-01579, Filed 06/12/87)
In re: RAMIREZ CLAUDIO ALONZO (Case No. 87-00178)

Under facts of case, creditor did not sustain burden of proving by clear and convincing evidence that debt was nondischargeable under § 523(a)(2)(A). Note: Decision was rendered prior to U.S. Supreme Court's adoption of a preponderance of the evidence standard for the burden of proof in dischargeability determinations. Grogan v. Garner, __ U.S. __, 111 S. Ct. 654, 112 L.Ed.2d 755 (1991).


In re: Leonard Logemann and Clarabell Logemann (Case No. 87-00188, Filed 01/28/87)

FLB claim was impaired under plan (deedback). Trustee's percentage fee applies to all impaired claims. 88 B.R. 938 (Bankr. S.D. Iowa 1988)


In re: Heights Ban Corporation (Case No. 86-02193, Filed 08/09/88)

Assignee of insider was deemed to be insider for purposes of § 1129 (a) (10). 89 B.R. 795 (Bankr. S.D. Iowa 1988)


In re: Linda S. Smith (Case No. 87-02145, Filed 08/27/87)
In re: HARTZ KENNETH RICHARD (Case No. 87-00263)

Under facts of case trustee failed to establish that the debtor intended to hinder, delay or defraud a creditor by her pre-petition sale of two vehicles for $7,000 and subsequent use of the proceeds to purchase life insurance policies to protect her two sons. 11 USC § 727 (a) (2) (A).


In re: Harold L. Wilson and Janet L. Wilson (Case No. 87-00438, Filed 02/20/87)
In re: PERRY EVERETT LEROY (Case No. 87-00094)

Motion for summary judgment seeking denial of discharge pursuant to 11 USC § 727 (a) (6) (A) for debtors' failure to attend § 341 meeting denied where material fact question as to intent and willfulness existed.


In re: Ronald W. Mehrhoff and Vanita C. Mehrhoff (Case No. 87-01150, Filed 04/29/87)

SBA motion to set off debt of ASCS-CCC against its claim denied based on a lack of mutual capacity between the two governmental units. 18 BCD 194 88 B.R. 922 (Bankr. S.D. Iowa 1988) Rev'd (capacity finding) and remanded (for further findings on the equity or setoff) sub nom. United States of America v. Mehrhoff, No. 88-1488-A (S.D. Iowa, filed March 21, 1989).


In re: Sidney D. Hotopp and Lois J. Hotopp (Case No. 87-00650, Filed 03/12/87)

FmHA waived right to claim setoff under facts of case - - proof of claim filed long before agency raised setoff issue indicated the claim was not subject to setoff.


In re: Donald Ray Wubbena (Case No. 87-02258, Filed 09/09/87)

Services rendered in connection with appeal and discharge and dischargeability did not benefit estate under facts and accordingly attorney fees requested for such services were not compensable under § 503 (b) (2).


In re: Linda Kay Fisher (Case No. 88-00702, Filed 04/01/88)

Pursuant to subsection 4 of fee schedules promulgated by Judicial Council, bankruptcy court could waive $20.00 fee (amending schedules) for cause.


In re: Wonderlich Farms, Inc. (Case No. 87-01497, Filed 06/03/87)

I. Trustee's fee is separate from payments to creditors pursuant to § 1225 (a) (5) (B); II. "value" of crop planted pre-petition had no effect on attachment of lien pre-petition; III. Butz followed; IV. Doud followed.


In re: DUKES RODGER A (Case No. 87-00830)

Under facts of case FmHA did not have a purchase money security interest (PMSI) in certain collateral - - it was not the seller of the property; it did not extend value prior to the debtors' acquisition of rights in the collateral; and the value extended satisfied claim and extinguished PMSI of third party.


In re: American Securities & Loan, Inc. (Case No. 84-01230, Filed 08/10/84)

Assets in possession of custodian were part of bankruptcy estate. Prior abstention order deemed to be pursuant to § 543 (d) (1) rather than § 305.


In re: C. G. C. Stores, Inc. (Case No. 87-00516, Filed 02/27/87)

Bank's application for administrative expense denied for services incident to appointment of state court receiver before Chapter 11 case filed but granted for services incident to appointment of trustee in reorganization case (reduced to prevent duplication). 11 USC subsections 503 (b) (1) (A), (b) (3) (D) and (b) (4) discussed.


In re: American Securities & Loan, Inc. (Case No. 84-01230, Filed 08/10/84)
In re: TENTINGER PATRICK E (Case No. 87-00296)

FCIC's motion to dismiss adversary proceeding as to FDIC in its corporate capacity denied. Chapter 11 trustee was not pursuing a debt of a failed bank but rather was seeking to recover sums the debtor may have transferred to the failed bank in a preferential or fraudulent manner.


In re: Michael Allan Broughton and Roberta A. Broughton (Case No. 85-01470, Filed 07/05/85)
In re: Michael Allen Broughton and Roberta A. Broughton vs. Iowa Department of Revenue and Finance (Case No. 88-00012)

Notice provided by Iowa Code § 422.25 (tax computation) constitutes "assessment" for purposes of 11 USC sections 507 (a) (7) (A) (ii) and 523 (a) (1) (A). Appeal dismissed upon compromise and stipulation.


In re: Leroy Northway and Bonnie Northway (Case No. 85-01928, Filed 09/05/85)
In re: Richard Max Villhauer and Mary Jo Villhauer (Case No. 88-00055, Filed 01/12/88)

No violation of the debtors' discharge, no grounds for injunctive relief and no contempt found where enforcement of in rem lien rights - - not collection efforts based on personal liability of debtors - - was pursued in state court after discharge in bankruptcy. Aff'd Melbourne Savings Bank, et al., No. 88-1458-B S.D. Iowa, filed December 28, 1988. Appeal dismissed upon compromise and stipulation.


In re: Stadiums Unlimited Incorporated (Case No. 88-00786, Filed 04/12/88)

Application to approve employment of attorneys for petitioning creditors in an action commenced under section 303 denied as unnecessary. Subsections 503 (b) (3) (A) and (b) (4) require notice and hearing with respect to the approval of certain costs as administrative expenses. But see section 503 (b) (3) (B).


In re: BROWN EVELYN VANDENBURG (Case No. 85-00849)

Claim based on debtor's failure to pay premium for issued crop insurance denied administrative priority because debt arose from transaction between creditor and individual (debtor) before petition was filed.


In re: David Dodder and Barbara Dodder (Case No. 87-00692, Filed 03/17/87)

Party challenging third party appraisal must clearly demonstrate that appraisal is fundamentally flawed; where carryover increased over life of plan, front loading did not mask any defect in the operation; final feasibility determination precluded by debtors' failure to provide price assumptions; Hunerdosse and Butz followed. Remanded to Bankruptcy Court for approval of stipulated settlement. U.S.A. on behalf of FmHA and CCC v. Dodder, Case No. 88-104-D-1 S.D. Iowa, filed Sept. 30, 1988.


In re: Donald W. Crozier and Shirley M. Crozier (Case No. 87-00081, Filed 01/12/87)

Under facts of case, creditor failed to establish fraudulent conversion of non-exempt property into exempt life insurance policies. However, court sustained objection to exemption as to debtor who frustrated discovery efforts of creditor. Aff'd (as to Shirley Crozier) and limited remand (as to Donald Crozier), In re Crozier, No. 88-1306-B (S.D. Iowa filed June 8, 1989). Clarification pursuant to limited remand in Civil No. 88-1306-B (Bankr. S.D. Iowa filed June 23, 1989). Aff'd (as to Donald Crozier), In re Crozier, No. 88-1306-B (S.D. Iowa filed July 26, 1989). Noter: House File 649 became effective at or about the time this order was filed but did not apply by operation of section 9, paragraph 2.


In re: Russell D. Rice (Case No. 87-01554, Filed 06/09/87)

Attorney who was unsecured prepetition creditor was not "disinterested" as required by 11 USC § 327(a); failure to disclose "interest" in § 327 application warranted disallowance of § 330 application for postpetition expenses; prepetition expenses for work in Ch. 11 allowed by distribution delayed pending availability of funds in converted Ch. 7 case.


In re: Stanley Wayne Perrine and Stephanie Louise Perrine (Case No. 86-03362, Filed 12/24/86)
In re: Iowa Power and Light Company vs. Stanley Wayne Perrine and Stephanie Louise Perrine (Case No. 87-00021)

Deferred judgment was not a final judgment that triggered the doctrine of collateral estoppel. Accordingly, summary judgment on issue of dischargeability was denied. Aff'd Iowa Power and Light Company v. Perrine, No. 88-108-W (S.D. Iowa, filed May 23, 1989).


In re: Harold H. Rief (Case No. 87-01426, Filed 05/28/87)

Bankruptcy Rule 9006 (a) applies to Bankruptcy Rule 8002 (a). Note: See Moore v. Hogan, 851 F 2d. 1125 (8th Cir. 1988)


In re: Custom Woodcrafters Company (Case No. 87-01583, Filed 05/04/88)

§ 327 application denied where attorney had represented debtor company and its principals.


In re: George Vernon Hunerdosse and Audrey E. Hunerdosse (Case No. 87-01435, Filed 05/28/87)

Butz offset analysis followed; program payments were not earnings from services performed; deficiency and diversion payments were not "proceeds" for purposes of the UCC; under facts of case security agreements were insufficient to give FmHA a security interest in "general intangibles" - - if had been sufficient, Halls would apply; FmHA had interest in prepetition crop-debtor did not meet requirements of 11 USC § 506 (c); Simmons lien avoidance upon discharge analysis followed - - noted value of exempt property would be deducted from allowed secured claim. Note: Chief District Court Judge Vietor ruled on the appeal in Hunerdosse and District Court Judge Wolle subsequently ruled on the appeal in Butz and Mehroff (#134).


In re: Victor C. Butz and Patricia Butz (Case No. 87-00439, Filed 02/20/87)

The FmHA was not entitled to CRP benefits under the rents and profits clause of the mortgage nor under administrative offset provisions; Halls discussed - - the FmHA did not establish an exception to the encumbrance prohibition. 86 B.R. 595 (Bankr. S.D. Iowa 1988) Rev'd (offset--capacity finding only) and remanded (for further findings on the equity of offset) sub nom. United States of America v. Butz, No. 88-366-A (S.D. Iowa, filed March 21, 1989).


In re: William W. Owens and Shirley A. Owens (Case No. 87-00681, Filed 03/16/87)

Part C - - under facts of case, creditor was not entitled to separate secured claim under Ch.12 plan for rental payments that might have ben received prior to confirmation.


In re: Ernest L. Wagner (Case No. 87-01916, Filed 04/25/88)

Consideration of abstention factors led court to conclude that dismissal of involuntary petition would better serve interests of creditors and debtor.


In re: Gerald Bruce Simmons and Patricia A. Simmons (Case No. 87-01035, Filed 04/17/87)

Real estate taxes were deducted from creditor's allowed secured claim; 10 year repayment term on claim secured by real estate and chattels was reasonable under the facts; Doud (FmHA aspect) followed; lien avoidance pursuant to 11 USC § 522 (f) (2) (A) and premised on Ia. Code § 627.6 (11) (b) limited to one year's consumption; actual lien avoidance in Ch. 12 conditioned upon entry of discharge. 86 B.R. 160 (Bankr. S.D. Iowa 1988)


In re: Paul D. Longfellow and Anita K. Longfellow (Case No. 86-02170, Filed 08/06/86)
In re: First National Bank In Lenox vs. Paul D. Longfellow and Anita K. Longfellow (Case No. 86-00282)

Plaintiff's counterclaim for affirmative relief was barred by virtue of the dismissal with prejudice of their state court action; claim for recoupment not established.


In re: Hawkeye Chemical Company (Case No. 86-03231, Filed 12/08/86)

Under facts of case, debtor did not meet burden that claim was unenforceable under 11 USC § 502 (b) (1).


In re: Royona Ranch, Inc. (Case No. 87-01118, Filed 04/27/87)

Claim secured by livestock could be paid out over 15 years if plan provided for a replacement lien and maintenance of herd levels at a value equal to or greater than the balance of the claim.


In re: Frank Charles Schwarz and Barbara Lucille Schwarz (Case No. 87-01115, Filed 04/24/87)

11 USC § 1225 (b) (1) (B) requires Ch. 12 debtors to commit disposable income for three years of plan. Amount of disposable income must satisfy best interest of creditors test at a minimum; actual amount to be determined on annual basis. 85 B.R. 829 (Bankr. S.D. Iowa 1988)


In re: Indru T. Hingorani and Dianna Sue Hingorani (Case No. 86-03354, Filed 12/23/86)

Under facts of case, motion for new trial and for amended findings and conclusions denied. (See Decision No. 63 and attached order.) Appeal dismissed Hingorani v. Taha, Civ. No. 88-294-E (S.D. Iowa, filed July 17, 1989).


In re: Richard W. Sowers and Judith L. Sowers (Case No. 85-01124, Filed 05/28/85)
In re: Richard W. Sowers and Judith L. Sowers vs. Federal Deposit Insurance Company (Case No. 85-00374)

Under facts of the case and by operation of 12 USC § 1823 (e), dragnet clause in mortgage could not be limited as to the FDIC. Debtor was entitled to postpetition, not prepetition, crop production expenses. 11 USC § 552 (b). Rev'd and remanded (dragnet clause issue) sub nom. Sowers v. FDIC, No. 88-293-B (S.D. Iowa, filed Feb. 9, 1989).


In re: Albert Heers (Case No. 88-00204, Filed 06/13/88)

Application for § 327 appointment denied where obligation owed by debtor for past legal services was secured by certain real estate.


In re: Charles George Frantum,&mary and Mary Ella Frantum (Case No. 87-01711, Filed 06/29/87)

Homestead purchased before bankruptcy was filed with funds from life insurance policy was not exempt from antecedent debt under Iowa Code § 511.37; Nehring applied.


In re: Jerome Dane Hutton and Frances Marie Hutton (Case No. 87-01029, Filed 04/16/87)

Objection to nonfarm debtors' claim of exemption in towing and tree trimming trucks as "tools of the trade" sustained per Van Pelt line of decisions; objection to life insurance policy purchased after the petition was filed with proceeds of policy that was exempt at time petition was filed overruled; under facts of case, the homestead was acquired prior to contracting debt. Aff'd Fox v. Hutton, No. 88-1341-A (S.D. Iowa, filed December 30, 1988). Aff'd Fox v. Hutton, 893 F.2d 1010 (8th cir. 1990).


In re: GRADY JAMES (Case No. 87-01254)
In re: United States of America vs. James Grady and Jane Grady (Case No. 87-00150)

11 USC § 523 (a) (7) (B) three year limitation did not apply to civil penalty imposed by Secretary of Agriculture.


In re: BARTHOLOMEW ROBERT RAY (Case No. 86-01092)
In re: Shirley Ann Bartholomen vs. Robert Ray Bartholomew (Case No. 86-00169)

Under facts of case certain obligations under dissolution decree were not in the nature of alimony, maintenance or support and therefore were not nondischargeable under 11 USC § 523 (a) (5); under facts of case and pursuant to Iowa Code § 624.23 - .24, plaintiff did not hold judicial lien in property - - hence Sullivan did not apply; Nehring applied; fees and expenses not allowed.


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. 84 B.R. 579 (Bankr. S.D. Iowa 1988) Appeal dismissed Paul & Gretchen Pothoven, Civ. No. 88-295-A (S.D. Iowa, filed July 1, 1988).


In re: Thomas Albert Carlson (Case No. 88-00110, Filed 07/25/88)

Upon rejection (by choice or by operation of law), nonresidential real property lease is no longer property of the estate and property must be surrendered to lessor. 11 USC § 364(d); new lease arrangement usually does not require court approval.


In re: Don Gordon Nehring and Arlene Gail Nehring (Case No. 87-00101, Filed 01/14/87)

Objection to homestead exemption by antecedent claim-holder sustained and motion to avoid "anticipated" lien denied, but motion for relief from stay to obtain judgment denied. 84 B.R. 571 (Bankr. S.D. Iowa 1988)


In re: DELFINO JAMES DOMINIC (Case No. 86-01259)

Part I - Moellenbeck; Part II - 1987 soybean plants were not proceeds of 1986 beans planted after the OFR; Part III - marshalling moot; Part IV - relief from stay denied due to slight equity cushion and 90% guaranty; Part V - motion for relief to proceed against co-obligors continued for hearing on Dataphase criteria; Part VI - nunc pro tunc appointment denied without prejudice. Aff'd Armbrust Farms, Ltd. v. Citizens State Bank, No. 88-38-W (S.D. Iowa, filed December 27, 1988). Appeal dismissed upon compromise and stipulation. (10/10/89)


In re: Robert J. Moellenbeck and Sandra C. Moellenbeck (Case No. 87-01258, Filed 05/07/87)

IRS estate tax lien may not be subtracted from amount of secured claim. 83 B.R. 630 (Bankr. S.D. Iowa 1988)


In re: Darrell D. Rief and Pamela K. Rief (Case No. 87-01429, Filed 05/28/87)
In re: Ronald E. Rief and Diane Rief (Case No. 87-01428, Filed 05/28/87)
In re: Harold H. Rief (Case No. 87-01426, Filed 05/28/87)

Application to sequester rents construed as motion for relief from stay to complete perfection of lien on rents and profits and granted where foreclosure action had been commenced and appointment of receiver was requested prior to bankruptcy filing. 83 B.R. 626 (Bankr. S.D. Iowa 1988) Appeal dismissed Rief v. Federal Land Bank of Omaha, (S.D. Iowa, filed Oct. 27, 1988 and Oct. 31, 1988).


In re: George P. Clearman and Jan R. Clearman (Case No. 82-01300, Filed 09/03/82)

"Contract rights" under security agreement did not include interest in or lien on rent proceeds.


In re: DUKES RODGER A (Case No. 87-00830)

Under the facts of the case, the debtors did not defeat FmHA's pre-enactment security interest nor its purchase money security interest. Intent of parties was expressed in clear and unambiguous language.


In re: SHIRLEY RHODA LOU (Case No. 87-01436)

Debtor's obligation to pay debt guaranteed by another must be addressed in plan; that debt may be nondischargeable in Chapter 7 is a factor considered in assessing debtor's compliance with § 1325 (a) (3).


In re: Larry D. Reynolds (Case No. 87-00758, Filed 03/23/87)

Bankruptcy court does not have the power to waive filing and docketing fees on appeal.


In re: Greig Ernest Sullivan (Case No. 86-02588, Filed 09/26/86)

Pursuant to § 522 (c) (1) homestead claimed exempt was liable for child support; quit claim deed given by ex-spouse to debtor did not extinguish judicial lien granted by dissolution decree - - homestead was not exempt to the extent of the value of the lien. 83 B.R. 623 (Bankr. S.D. Iowa 1988) Reversed and remanded, Sullivan v. Sullivan, No. 88-218-B (S.D. Iowa, filed Sept. 28, 1988).


In re: MEEKER ORVILLE W (Case No. 87-00978)

Adequate protection via fair market cash rent reduced by costs of receivership, taxes due and becoming due and insurance costs. No deduction allowed for cost of CRP seeding.


In re: Linda S. Smith (Case No. 87-02145, Filed 08/27/87)

Trustee's objection to exemption overruled and turnover application denied where life insurance policy was unmatured (insured was living and cash value would not equal face value until 2054) and where proceeds of sale of nonexempt vehicles were used to purchase exempt life insurance policy on eve of bankruptcy. Note: 1988 change in Iowa exemption laws.


In re: Stephanie Richele Rogers (Case No. 96-00860, Filed 03/11/96)

Dismissal with prejudice of complaint to determine dischargeability warranted under the facts of the case.


In re: Larry L. & Myrtle Annetta Ackerman and Myrtle Annetta Ackerman (Case No. 87-02463, Filed 10/02/87)

"Stacking" motor vehicle exemption permitted; utility trailer was tool of trade, not vehicle under facts presented.


In re: James Lyle Halls and Janice Colleen Halls (Case No. 87-00943, Filed 04/07/87)

Ch. 12 plan payment of claim secured by collateral consisting of livestock (25 percent) and used machinery (75 percent) could not be stretched beyond 7 years.


In re: Charles J. Jessen and Rhodetta K. Jessen (Case No. 87-01042, Filed 04/17/87)

Cash rent and proceeds from sealing crop were farm income under facts of case; idling acres and disclaiming portion of farm did not constitute gross mismanagement under §§ 1204 or 1208 under facts of case. 82 B.R. 490 (Bankr. S.D. Iowa 1988)


In re: James Michael Eversole and Sandra Kay Eversole (Case No. 87-00824, Filed 03/27/87)

"After-acquired property" clause in pre-enactment security agreement did not defeat motion to avoid lien in property acquired after the enactment of the Code. Extent of non avoidable pre-enactment lien is amount of adjusted pre-enactment debt or value of collateral, whichever is less.


In re: BODEN CLARKE E (Case No. 86-03323)

Under facts of case, annuity was reasonably necessary for debtors' support and therefore was exempt under Iowa Code § 627.6 (8) (e).


In re: Donald D. Spears and Phyllis M. Spears (Case No. 86-03019, Filed 11/07/86)

Dismissal of Ch. 11 case in existence on Nov. 26, 1986 for the sole purpose of refiling under Ch. 12 denied.


In re: Marlyn S. Jensen (Case No. 87-00707, Filed 03/18/87)

Operation of § 1225 (a) (5) (B) (ii) as it relates to FmHA loans, does not deny the debtor equal protection.


In re: COOPER RONALD D (Case No. 87-00828)

Under the facts of the case, Towns did not prohibit FmHA from raising objection to exemption but Peterman principle foreclosed consideration of objection.


In re: Glenn Lee & Linda Clausen and Linda Claire Clausen (Case No. 87-01769, Filed 07/06/87)

Employee of farm corporation who had stored tractor and mixer and whose cessation from farming was more than temporary was not entitled to claim those items exempt under Iowa Code § 627.6 (11). 81 B.R. 519 (Bankr. S.D. Iowa 1988)


In re: GANAKES NICKOLAS G (Case No. 87-01268)

Lack of equity does not prevent avoidance of judicial lien impairing homestead exemption. 81 B.R. 518 (Bankr. S.D. Iowa 1988) 16 BCD 1293


In re: MOORE BRUCE (Case No. 86-01867)

Present value treatment of secured claims (§ 1129 (a) (7) ) and unsecured priority claims (§ 1129 (a) (9) (c) ) of taxing authority examined; basic do's and don'ts of a Chap. 11 plan explored. 81 B.R. 513 (Bankr. S.D. Iowa 1988)


In re: David Dodder and Barbara Dodder (Case No. 87-00692, Filed 03/17/87)

Debtors' leasehold interest, not the property itself, was property of the estate. An automatic stay pursuant to § 362 did not apply to real property in issue but was imposed pursuant to § 105.


In re: JAHNER JAMES ALLEN (Case No. 87-00796)

Camper could not be claimed exempt as a homestead; (Parts I and III follow Honomichl).


In re: Harlan Chapman and Marian L. Chapman (Case No. 87-00180, Filed 01/26/87)

Bank failed to establish constructive possession based upon "possession upon default" clause in security agreement; under facts of case, custom farmer qualified for § 627.6 (11) (a) exemption; under facts of case, spouse had only temporarily ceased farming and was eligible for farm exemptions.


In re: Paul M. Schafroth and Mary L. Schafroth (Case No. 87-00252, Filed 02/02/87)
In re: Russel Goldsmith and Janet Janet Goldsmith (Case No. 87-00253, Filed 11/01/88)

Debtors who were employees of family farm corporation were not thereby automatically ineligible for Chap. 12 relief. The debtors were engaged in farming and met the debt test. However, appropriate evidence on the income issue had not been presented. 81 B.R. 509 (Bankr. S.D. Iowa 1987)


In re: Chester L. Mattice, Jr. and Gloria J. Mattice (Case No. 86-03351, Filed 12/23/86)

FmHA did not have an enforceable security interest in CCC program payments; had a lien attached to the 1986 payments (approved before the OFR) no lien would have attached by operation of § 552 (b) to the 1987 payments (approval after the OFR); the 1986 payments were property of the estate, not exempt under § 627.6 (9) (c), but the property had been abandoned without objection. 81 B.R. 504 (Bankr. S.D. Iowa 1987) Aff'd United States v. Mattice, Case No. 88-22-W (S.D. Iowa, filed Oct. 3, 1988). Dismissal of Circuit Appeal by U.S. (filed 1/31/89).


In re: Richard John Honomichl and Suzette Kay Honomichl (Case No. 87-00866, Filed 03/31/87)

Camper which served as shelter and as means of conveying equipment was not a tool of the trade under ӳ 627.6 (10); non wager earner could not claim § 627.6 (9) (c) exemption in wages earned by spouse. 82 B.R. 92 (Bankr. S.D. Iowa 1987) 16 BCD 1288


In re: Oliver D. Rinker and Beverly B. Rinker (Case No. 87-00085, Filed 01/13/87)

Chapter 12 plan confirmed where non-farm income and pledge of cash value of life insurance policy for input expenses and debt repayment overcame feasibility concerns.


In re: Terry Ford Lincoln Mercury, Inc. (Case No. 87-00491, Filed 06/02/88)

County was proper party and county attorney was proper representative in action involving contempt of the automatic stay.


In re: BOLLMAN DORAN L (Case No. 87-01297)

Under facts of case, horses found to be related to a normal farming operation and held exempt pursuant to Iowa Code section 627.6 (11); gas tax refund and income tax refund held exempt pursuant to Iowa Code section 627.6 (9) (c).


In re: Stephen & Darlene Burke and Darlene Burke (Case No. 87-00168, Filed 01/22/87)

Income from leasing land on crop share basis and wages received from farming corporation for farm related activities were farm income under the facts of the case. 81 B.R. 971 (Bankr. S.D. Iowa 1987)


In re: Linda A. Hageney vs. Randal V. Hein (Case No. 86-00272)
In re: Indru T. Hingorani and Dianna Sue Hingorani (Case No. 86-03354, Filed 12/23/86)

Whether trust fund was property of the estate required additional evidence regarding the enforceability of the trust agreement under applicable non bankruptcy law. (See attached order on motion to reconsider and Dec. No. 105.)


In re: Donald D. Herr and Ruth A. Herr (Case No. 87-00198, Filed 01/27/87)

Chapter 12 priority claim not entitled to interest except to the extent required by the best interest of creditors' test. 80 B.R. 135 (Bankr. S.D. Iowa 1987) 16 BCD 1025


In re: Ed Scanlan (Case No. 87-00479, Filed 02/24/87)

Real estate contract is an executory contract and not a security agreement. 80 B.R. 131 (Bankr. S.D. Iowa 1987) 16 BCD 1230 Aff'd sub nom. Scanlan v. Spring, (S.D. Iowa, filed Nov. 28, 1988). See Brown v. First National Bank in Lenox, Civ. No. 87-808-A (S.D. Iowa, filed Jan. 5, 1988) (aff'd same holding); aff'd 844 F.2d 580 (8th Cir. 1988), cert. dismissed 109 S. Ct. 20 (1988).


In re: Lorraine Marie Sunderman (Case No. 86-03397, Filed 12/31/86)

1985 was relevant "taxable year" for eligibility issue where debtor filed Ch. 12 petition on December 31, 1986.


In re: Norman Phillip Brumbaugh and Charlotte Lee Brumbaugh (Case No. 87-01082, Filed 04/22/87)

Order appointing attorney vacated on negligence grounds.


In re: Dennis Edward Doud and Cheryl Ann Doug (Case No. 86-03396, Filed 12/31/86)

Iowa Code section 445.36 (2) (taxes payable to county) must yield to 11 USC sections 1222 (a) (2) and 1222 (b) (9).


In re: James Earl Halls and Marie Louise Halls (Case No. 87-00951, Filed 04/08/87)

Creditor that did not finance crop could not encumber cash payments made under government program; PIK certificates could not be assigned as security. 79 B.R. 417 (Bankr. S.D. Iowa 1987)


In re: Vaughn B. Faber and Patricia L. Faber (Case No. 87-00509, Filed 02/27/87)

"Costs of operations" were not deductible from gross receipts in computing gross income from trucking operation. Accordingly, more than 50% of debtors' gross income was derived from trucking rather than from farming. 78 B.R. 934 (Bankr. S.D. Iowa 1987) 16 BCD 651


In re: American Securities & Loan, Inc. (Case No. 84-01230, Filed 08/10/84)
In re: WOLF LAND CO INC (Case No. 86-00148)

State court receiver had no power to settle setoff and preferential transfer claims. 78 B.R. 930 (Bankr. S.D. Iowa 1987) 16 BCD 772 Aff'd Craig v. Douglas County Bank and Trust Co. 87-116-W (S.D. Iowa, filed October 11, 1988). Appeal to the Eighth Circuit dismissed on June 28, 1989 by the court upon its own motion for lack of appellate jurisdiction.


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)

Automatic stay did not extend to creditors' pursuit of claim against debtors' codefendant Bank in state court action.


In re: HEIN RANDALL V (Case No. 86-02266)

Under facts of the case, credit card debt, doctor bill and attorney fees were found to be nondischargeable pursuant to 11 USC § 523 (a) (5).


In re: Geneser Implement Store, Inc. (Case No. 86-00818, Filed 03/26/86)
In re: WEHRMAN TIMOTHY D (Case No. 86-00184)

Attorney representing both Chapter 7 debtor and officer of debtor did not have a conflict of interest. Absent notice requirements of BR 9019 and 2002 (a), proposed settlement or compromise is unenforceable. Trustee's application to compromise and settle claim failed to meet established criteria.


In re: Emery D. Clements (Case No. 86-00713, Filed 03/17/86)
In re: WRIGHT DEBORAH SUE (Case No. 86-00130)

Trustee's complaint based on 11 USC § 548 was barred by one-year statute of limitations but legal theory prevailed under 11 USC § 544.


In re: Florence F. Rogers (Case No. 86-03350, Filed 12/23/86)

Trustee's objection to homestead claimed as exempt property sustained where facts supported finding an intention to abandon the house in issue.


In re: Gary Michael Martin and Sharon Lee Martin (Case No. 86-03085, Filed 11/17/86)

Debtors who converted from Chapter 7 to Chapter 13 did not meet eligibility standards of 11 USC § 109 (e) - - unsecured debt found to exceed $100,000 despite amendments made to the schedules upon conversion. 78 B.R. 928 (Bankr. S.D. Iowa 1987)


In re: PETERSON LEE ALLEN (Case No. 86-03224)
In re: Dorothy Strand (aka Dorothy Peterson) vs. Lee Allen Peterson (Case No. 87-00013)

Judgment for compensatory damages was held nondischargeable under facts pursuant to 11 USC § 523(a)(6). Jury's refusal to impose exemplary or punitive damages had no bearing on willful and malicious standards of (1) wrongful act, (2) intentionally done,(3) necessarily producing harm and (4) without just cause or excuse.


In re: HAYES JESSE EARL SR (Case No. 86-01591)

11 USC § 547 action did not lie where transfer of funds did not occur within 90 days of the filing of the petition and, alternatively, where aggregate value of relevant property in primarily consumer debt case did not exceed $600.


In re: Bobbie Joseph Webb and Susan Kay Webb (Case No. 86-02827, Filed 10/21/86)

Motor boat may not be claimed exempt as motor vehicle under Iowa code § 627.6(10)(b). Appeal filed 10/08/87. Appeal dismissed 01/14/88


In re: David Michael Tomlin and Karla Jan Tomlin (Case No. 86-02515, Filed 09/16/86)
In re: United States of America vs. David Michael Tomlin and Karla Jan Tomlin (Case No. 86-00293)

Sufficiency of pleading under 11 U.S.C. §ċ 523 (a) (2), 727 (a) (2), 727 (a) (4) and 727 (a) (5) discussed.


In re: Walter Marlin Brown and Burdean Ruth Brown (Case No. 87-00046, Filed 01/08/87)
In re: Orville G. Wilson, Jr. and Ann M. Wilson (Case No. 87-00096, Filed 07/05/88)

Motion to dismiss FDIC's complaint to determine dischargeability on grounds of want of subject matter jurisdiction and lack of capacity denied. 78 B.R. 924 (Bankr. S.D. Iowa 1987)


In re: Loren E. Mondt (Case No. 87-00017, Filed 12/02/87)
In re: SKILES GARY GENE (Case No. 87-00028)

Where the sheriff's sale was stayed by filing of bankruptcy petition, property in issue remained property of the estate. Whether permitting receiver to remain in possession would be in best interests of creditors pursuant to 11 U.S.C. § 543 (d) could not be determined on the stipulated facts. Pending motion to convert based on Wamsganz noted.


In re: SMITH LYNN PAUL (Case No. 86-03391)

Under facts of case, custom farming work by debtor otherwise employed off the farm qualified him as a farmer for purposes of Iowa's exemption statute. 78 B.R. 922 (Bankr. S.D. Iowa 1987)


In re: Randy E. Pebbles and Rebecca Pebbles (Case No. 87-01454, Filed 05/29/87)

11 USC § 542 action deemed premature and abstention proper where issue of debtor's entitlement to settlement proceeds of insurance agreement was pending in state court. If it were determined that debtor held monies in trust for another, such funds would be property of the estate under 11 USC § 541 (a).


In re: Richard F. Petersen and Linda A. Petersen (Case No. 87-00970, Filed 10/06/88)

Motion for extension of time to file proof of claim pursuant to B.R. 3002 (c) (1) must be filed within 90 days of the first meeting of creditors.


In re: Donald W. Crozier and Shirley M. Crozier (Case No. 87-00081, Filed 01/12/87)

Farm wife employed off the farm contributed to the farming operation by keeping the books and doing some field work. She was entitled to claim exemptions under § 627.6 (11) (a) of the Iowa Code.


In re: DENNIS ALLAN A (Case No. 85-02514)

Surplus proceeds generated from sale of encumbered property that had been abandoned by the trustee was not property of the estate.


In re: COCKRUM RODGER OREN (Case No. 86-02998)

Motion to reinstate automatic stay and motion to dismiss Ch. 7 case for purpose of refiling Ch. 12 case denied.


In re: SCANLAN THOMAS D (Case No. 86-02870)

Failure to perfect pursuant to section 554.9312 (4) not fatal to purchase money security interest in lien avoidance action (Part III); pre-Code lien was not extinguished by rescheduling under the facts of the case (Part IV).


In re: BUTLER LESLIE (Case No. 86-02252)

Entire homestead was exempt pursuant to Iowa Code section 561.16 in case wherein debt of only one debtor was contracted prior to purchase of homestead.


In re: GOOCH KENNETH D (Case No. 86-02615)

General observations re phone hearing procedure.


In re: EBY CHARLES (Case No. 87-00227)

Apple personal computer was exempt as farm implement or equipment under Iowa Code section 627.6 (11). 76 B.R. 140 (Bankr. S.D. Iowa 1987) 16 BCD 539


In re: Dayle Eugene Erickson (Case No. 86-01823, Filed 06/25/86)

Farm debtor may claim semi-tractor, trucks and tractors exempt as implements and equipment pursuant to Iowa Code section 627.6 (11) (a). 76 B.R. 136 (Bankr. S.D. Iowa 1987)


In re: Donald D. Spears and Phyllis M. Spears (Case No. 86-03019, Filed 11/07/86)

Rents claimed under mortgage pledge of rents and profits held not to be cash collateral in which creditor had an automatic interest -- bankruptcy petition was filed before any foreclosure action was commenced and appointment of a receiver was requested and granted. 83 B.R. 621 (Bankr. S.D. Iowa 1987) Aff'd Farm Credit System Capital Corp. v. Spears, No. 87-569-A (S.D,. Iowa, filed Nov. 4, 1987).


In re: KNIGHT RICHARD LYNN (Case No. 87-00245)

IBM personal computer was exempt as tool of the trade under Iowa Code section 627.6 (10) for debtor who sold insurance. 75 B.R. 838 (Bankr. S.D. Iowa 1987)


In re: BRITTAIN MACK C (Case No. 87-00299)

Non farm debtors could not claim freightliner tractor exempt as "implement" or "tool of the trade"; 627.6 (10) contrasted with 627.6 (11).


In re: SUTHERLAND CHESTER F (Case No. 86-02736)

Although livestock and feed for livestock, were exempt pursuant to Iowa Code section 627.6 (11) (b), the liens on such items could not be avoided under 11 USC section 522 (f) (2) (B). Liens could be avoided to extent debtor established the exemption was for personal, family or household use under 11 USC section 522 (f) (2) (A).


In re: GOOCH KENNETH D (Case No. 86-02615)

Debtor has burden of proving that item, upon which lien avoidance is sought, is a nonpossessory, nonpurchase-money security interest.


In re: VAN PELT DOUGLAS LEROY (Case No. 86-02192)

Non farm debtors could claim neither car nor pickup exempt as "implements" or "tools of the trade"; 627.6 (10) contrasted with 627.6 (11). 83 B.R. 617 (Bankr. S.D. 1987)


In re: TORTAT FRANK H (Case No. 86-02721)

Liens on livestock, which may be claimed exempt pursuant to Iowa Code § 627.6 (12) (b) but not pursuant to § 627.6 (12) (a), cannot be avoided under 11 USC§ 522 (f) (2) (B).


In re: Walter Marlin Brown and Burdean Ruth Brown (Case No. 87-00046, Filed 01/08/87)

Relief from stay granted where resistance was based on affirmative defenses raised in replevin action in Fed.D.Crt.


In re: Dennis Edward Doud and Cheryl Ann Doug (Case No. 86-03396, Filed 12/31/86)

In Ch. 12 case, discount rate for conventional lender held to be the treasury bond yield with a remaining maturity matched to the average amount outstanding during the repayment period of the allowed claim plus 2% to account for risk. Special nature of three of the four FmHA loans required contract rate to be applied without an add-on risk. 74 B.R. 865 (Bankr. S.D. Iowa 1987) 16 BCD 1 Aff'd sub nom. United states v. doud, No. 87-577-B (S.D. Iowa, filed Dec. 7, 1987); aff'd 869 F.2d 1144 (8th Cir. 1989). Note: Voluntary Dismissal of Circuit Appeal by U.S. (9/6/88); Appeal by debtors was not dismissed. Note: Eighth circuit subsequently held limited resource loans should be paid market interest rate. In re Fisher, 930 F.2d 1361 (8th Cir. 1991) Note: Voluntary Dismissal of Circuit Appeal by U.S. (9/6/88); Appeal by debtors was not dismissed. Note: Eighth Circuit subsequently held limited resource loans should be paid market interest rate. In re Fisher, 930 F.2d 1361 (8th Cir. 1991).


In re: TOWNS MAX A (Case No. 86-02251)

1986 Amendments to Iowa Exemption Statute held to be retrospective; attorneys practicing in Southern District of Iowa put on notice that failure to comply with Bankruptcy Rule 4003(b) will preclude consideration to objection to exemption in a section 522(f) action. 74 B.R. 563 (Bankr. S.D. Iowa 1987)


In re: COPPI RONALD BARRY (Case No. 80-01579)

Debtors' motion to reopen bankruptcy case to discharge debt which had not been listed on the schedules and which had been the subject of subsequent state court action resulting in a judgment against the debtor was denied. 75 B.R. 81 (Bankr. S.D. Iowa 1987)


In re: Herman Gerald Kelderman (Case No. 83-01439, Filed 10/14/83)

Omission of creditor's claim from court file and from subsequent distribution order of trustee resulted in windfall to other unsecured creditors. Mistake, inadvertence, excusable neglect justified relief from the payment of dividends. Order for payment vacated and corrective measures directed to be done. 75 B.R. 69 (Bankr. S.D. Iowa 1987)


In re: Oliver D. Rinker and Beverly B. Rinker (Case No. 87-00085, Filed 01/13/87)

Debt arising out of a settlement of a will dispute was held to be a debt arising out of a farming operation for purposes of 11 U.S.C. § 101(17) (A) where the land, which was the subject of dispute, was integral to the crop production enterprise. 75 B.R. 65 (Bankr. S.D. Iowa 1987)


In re: INDEPENDENAT SALES CORP (Case No. 84-01971)

No exceptional circumstances justified nunc pro tunc appointment of debtor's attorney (§ 327); compensation for post petition services denied (§ 330); compensation for prepetition services allowed (§ 329). 73 B.R. 772 (Bankr. S.D. Iowa 1987)


In re: Marilyn Sue Woolridge (Case No. 86-03280, Filed 12/15/86)

Trustee's objection to confirmation of Chapter 13 plan sustained. Monthly expenses found excessive and, therefore, plan arrangements were not debtor's best effort.


In re: Robert A. Davis and Victoria L. Davis (Case No. 86-02414, Filed 09/03/86)

Repair shop in possession of debtors' motorcycle entitled to interest from the date of the petition but not entitled to storage fees under the facts of the case.


In re: Ray Everett Wilson (Case No. 87-01402, Filed 05/22/87)

"Oversight and ignorance on behalf of counsel" did not satisfy "extraordinary circumstances" test for nunc pro tunc appointment of attorney.


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)

Motion for summary judgment denied. Import of "while acting in a fiduciary capacity", as found in 11 U.S.C. section 523(a)(4), discussed.


In re: MORRIS ARDEN ROYCE (Case No. 85-02722)
In re: WAITS MARK D (Case No. 86-00068)

Debtors' signatures on closing statement which failed to list creditor's mortgage did not, under the facts of the case, warrant debt nondischargeable pursuant to 11 U.S.C. § 523(a)(2)(A). NOTE: Case was decided before Eighth Circuit rendered in re Ophaug, 827 F.2d 340 (8th Cir. 1987).

03/30/1987 No. 11

In re: IRWIN HAROLD J (Case No. 86-00645)
In re: Cynthia R. Irwin Mueller vs. Harold J. Irwin (Case No. 86-00131)

Obligations to pay $ 61,000 in 4 yearly installments commencing six years after dissolution decree found to be in the nature of a property settlement (dischargeable); obligation to pay spouse awarded custody of the children $ 450 per month if that spouse vacated home thereby allowing other spouse to rent the premises was in the nature of support (nondischargeable).


In re: Hawkeye Chemical Company (Case No. 86-03231, Filed 12/08/86)

Motion for mandatory withdrawal of the reference pursuant to 28 U.S.C. section 157(d) must be filed in district court. 73 B.R. 318 (Bankr. S.D. Iowa 1987) Note: Case was decided before Bankruptcy Rule 5011 went into effect in August, 1987.


In re: THORNDIKE SAMUEL W (Case No. 86-01699)
In re: Anita Thorndike vs. Samuel W. Thorndike (Case No. 86-00183)

Motion for summary judgment denied. Questions of material fact exist in the interpretation of the language of a dissolution decree.


In re: Arnold Ray Peterman and Winona Faye Peterman (Case No. 86-03304)

Bar date notice strictly enforced. 71 B.R. 624 (Bankr. S.D. Iowa 1987)


In re: O'DELL KEITH LESTER (Case No. 86-01165)
In re: SHUMATE CLAY EDWARD (Case No. 86-00233)

Chapter 7 debtors with no equity in subject property have standing to bring an adv. proceeding under 11 U.S.C. § 506(d).


In re: Howard Leroy Farrell and Dorothy Mae Farrell (Case No. 86-02242, Filed 08/14/86)

Midwest edition of NADA represented value of used car to be driven in Council Bluffs/Omaha area in accordance with 11 U.S. C. § 1325(a)(5)(B)(ii).


In re: Hawkeye Chemical Company (Case No. 86-03231, Filed 12/08/86)

Estate included insurance proceeds; application to incur debt with respect to such proceeds not proper -- construed as application to use cash collateral and granted. 15 BCD 985 71 B.R. 315 (Bankr. S.D. Iowa 1987) See also 73 B.R. 318


In re: BROWN RICHARD A (Case No. 85-02204)

No enforceable reaffirmation agreement; application seeking order requiring debtor to honor alleged intended reaffirmation denied.


In re: VAN VLIET MARTY (Case No. 86-02409)
In re: DEJONG BETH (Case No. 86-02408)

Debtors may not claim exemptions in partnership property.


In re: Belton Inns, Inc. (Case No. 86-00261, Filed 01/31/86)

Motion to sell by party other than debtor or trustee denied; motion for relief from stay granted. 71 B.R. 811 (Bankr. S.D. Iowa 1987)


In re: Donald D. Spears and Phyllis M. Spears (Case No. 86-03019, Filed 11/07/86)

Conversion from Chapter 11 filed before effective date of 1986 Act to Chapter 12 denied. 15 BCD 551 69 B.R. 511 (Bankr. S.D. Iowa 1987)


In re: SHELDON WILLIAM R (Case No. 86-01193)

Trustee's application to sell property (contemplated additional exemption for vehicles) denied.


In re: James Waldron and Sheryl Waldron (Case No. 85-01779, Filed 08/14/85)

Indebtness not consumer debt; no automatic stay against codebtor.