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Please note: These opinions are not a complete inventory of all judges' decisions and are not documents of record. Official court records are available at the clerk's office.

Chief Judge James P. Smith

The debtor's Chapter 13 plan proposed to separately classify a non-dischargeable student loan debt and pay that debt more than other general unsecured creditors. The debtor would be eligible for a Public Service Loan Forgiveness Program if she made 120 consecutive payments without default on her student loan. This would allow the debtor to write off $50,000 in student loans. The plan as proposed would give the other unsecured creditors a 15 percent distribution. Without the separate classification, the distribution would be 20 percent, with an additional amount of $5,000, to the other unsecured creditors. The court held that this separate classification was not unfair discrimination under 11 U.S.C. § 1322(b)(1) and that the Chapter 13 plan could be confirmed over the trustee's objection.

The debtor's representative executed two promissory notes which were secured by a deed to secure debt. The debtor contended that the mortgagee's representative had stated that the debtor would not be required to repay the notes, but that one note would be repaid through the sale of certain real property owned by a third party and that the other notes. repayment would be treated as a distribution from a certain trust. The debtor later sought to rescind or cancel the notes. The court held that the debtor could not sue for breach of contract because the merger clause in the deed to secure debt prevented the debtor from asserting that the mortgagee's representative made fraudulent misrepresentations concerning repayment of the notes. The court held that the debtor could not rescind the notes and sue for fraud because the debtor was not able to return to the mortgagee the money it had received under the notes.

The debtor, as an individual and as president of a plumbing company, signed an indemnity agreement as an inducement for the creditor to issue surety bonds on behalf of the company. The company and the debtor agreed that all funds coming due on certain projects that the company was working on would be trust funds. The debtor, individually and on behalf of the company, received funds but failed to use the funds to pay the obligations on the projects. The creditor contended that, as a result of the debtor's failure to properly use the trust funds, it had to pay claims for which debtor was liable under the indemnity agreement and that the debtor's obligation was nondischargeable as the result of a fraud or defalcation while acting as in a fiduciary capacity under 11 U.S.C. § 523(a)(4). The court held that the debtor was acting in a fiduciary capacity because under the indemnity agreement he had agreed and declared that the funds due under the projects were trust funds to be held for payment of certain claims. The court did not reach, on the debtor's motion to dismiss, the question of whether the debtor's action was a defalcation.

In order to secure his debt, the debtor signed a UCC-1 financing statement giving the defendant a security interest in an aircraft. The defendant filed the UCC-1 with the clerk of superior court but not with the FAA. The debtor later surrendered the aircraft in full satisfaction of his debt and signed an aircraft bill of sale conveying the aircraft to the defendant. The defendant filed the bill of sale with the FAA some four months later. The court held that since the conveyance of the aircraft was not filed for recording with the FAA within thirty days after the bill of sale was signed, the transfer was deemed to have occurred when the conveyance was filed for record, which was within the preference period of 11 U.S.C. §547(b). The court, however, held that the trustee had failed to prove, on summary judgment, that the defendant had received more than he would have in a Chapter 7 liquidation.

Debtor retained no interest in real property that was the subject of a foreclosure sale prior to the petition date. The security deed had originally been granted to the lender's nominee (MERS). Prior to the foreclosure sale, MERS transferred its interest in the security deed back to the lender. Neither the transfer of the security deed nor the foreclosure sale were defective; therefore, the debtor's rights in the property were cut off when the highest bid was made at the foreclosure sale.

The Court confirmed a Chapter 11 plan over the objection of a secured creditor. The creditor was a participant in a syndicated loan agreement, which had designated an agent to vote on the plan on behalf of all lenders who were party to the agreement. The agent voted for the plan. Thus, the objecting creditor had agreed to the plan and its treatment under the plan through its agent.

In the absence of a timely objection from the creditor, a plan that provided for surrender of the creditor's collateral in full satisfaction was not a bar to confirmation when the schedules indicated the value of the collateral exceeded the debt and the creditor presented no evidence to the contrary.

Judge John T. Laney, III

The Chapter 7 trustee sought information and documents from the former law firm of several entities, including the debtor, owned and operated by nondebtor individuals, including information regarding related entities the law firm never represented. The law firm alleged attorney-client privilege, alleged work-product immunity, alleged that nondebtor entities were not proper targets of Rule 2004 examinations and for subpoenas demanding the production of documents. The Court denied the debtor's former law firm's motion to quash the Chapter 7 trustee's Supboena for Production of Documentary Evidence Under Bankruptcy Rules 2004(c) and 9016, and overruled the law firm's objection to the trustee's Motion for Bankruptcy Rule 2004 Examination and for Production of Documents Pursuant to Bankruptcy Rule 2004 and Bankruptcy Rule 9016. The owner-operators of the entities executed a broad waiver disclaiming any attorney-client privilege and granting the trustee the right to assert or deny and privilege. In holding that the work-product immunity had been waived, the Court adopted the reasoning in In re ANR Advance Transportation Company, Inc., 320 B.R. 607 (E.D. Wis. 2003). The Court further ordered that the examination and production of documents take place at the law firm's place of business and that the trustee pay for the costs of copying documents.

The debtor objected to the claim of creditor SN Servicing Corporation, the current mortgage holder on the debtor's residence, claiming the mortgage was made current in the co-signor's earlier bankruptcy case and claiming that all subsequent payments were made on time. The creditor argued that the mortgage at issue was a simple interest mortgage, a mortgage in which interest accrues daily and failure to pay on time results in an increase in interest rather than late charges. Thus, the co-signor's cure did not reinstate the original amortization schedule because the late payments leading up to that prior bankruptcy resulted in a higher principle. The Court agreed with the creditor and overruled the debtor's objection.

In an adversary proceeding seeking to determine nondischargeability of a debt, the Court granted in part and denied in part the wife-defendant's motion to dismiss complaint and granted the plaintiffs' motion to amend complaint. The Court granted the motion to dismiss the fraud allegation because the allegation did not meet the particularity requirement of Federal Rule of Civil Procedure 9 (made applicable to adversary proceedings through Bankruptcy Rule 7009); the Court denied the motion to dismiss the embezzlement, larceny, and willful and malicious injury allegations because taking the allegations at face value and construing all reasonable inferences in favor of the plaintiffs, the complaint properly alleged all three. The Court granted the plaintiffs' motion to amend because the plaintiffs had not done anything justifying denial, and refusing to grant leave to amend without reason is an abuse of discretion.