Chief Judge Vaughn 2005 Opinions

Date Opinion Summary
11/29/05 In re Diamond, 2005 BNH 039 (after conversion to Chapter 7, allowing Debtor's counsel's prepetition fees of $9,020.55 because counsel's itemized statement revealed that most of the fees were accrued attempting to avoid bankruptcy rather than in contemplation of or in connection with the Chapter 13 bankruptcy filing).
11/28/05 Kotsopoulos v. Mater (In re Mater), 335 B.R. 264 (Bankr. D. N.H. 2005) (summary judgment denied because state court judgment for disability discrimination is not the equivalent of a willful and malicious injury under section 523(a)(6)).
11/23/05 Desmond v. ASR Acquisition Corp. (In re Desmond), 2005 BNH 036 (denying a motion to reconsider that was filed eleven days after the opinion was docketed because a motion is untimely filed if filed more than ten days after entry of judgment).
09/20/05 Desmond v. ASR Acquisition Corp. (In re Desmond) AND Robert Wolfe Assocs. v. Desmond (In re Desmond), 2005 BNH 032, 2005 WL 3116551 (declining to consolidate complicated adversary proceedings in which only one issue is common to the proceedings, the actions arose under separate legal theories, and the actions have neither common plaintiffs nor common defendants, concluding that the potential for prejudice and confusion outweighs any efficiency gains).
09/20/05 Gallagher v. Educ. Credit Mgmt. Corp. (In re Gallagher), 333 B.R. 169 (Bankr. D.N.H. 2005) (in student loan case, holding that under the “Seven Year Rule” of former 11 U.S.C. § 523(a)(8)(A) the seven-year period begins to run anew upon loan consolidation; denying in part defendant’s motion for summary judgment because a lack of information regarding the borrower’s past payments and current financial condition constitute material facts in dispute, thus preventing the Court from making a determination on the issue of “undue hardship;” and dismissing as defendants past assignor and potential assignee of student loan as improper and unnecessary parties).
09/12/05 Desmond v. ASR Acquisition Corp. (In re Desmond), 334 B.R. 78 (Bankr. D.N.H. 2005) ((1) denying in part Defendant corporation’s motion to dismiss, finding that (a) Plaintiff Debtor’s complaint alleges sufficient facts regarding the amount due Defendant and the extent of Creditor’s liens; (b) Plaintiff alleges sufficient facts to state its claim that Plaintiff is the owner or equitable owner of a judgment lien, currently in the possession of Defendant, attached to Plaintiff’s farm; and (c) Plaintiff’s claim that Defendant breached its promise to lend a certain sum is a core proceeding despite the claim’s basis in state law; (2) granting in part Defendant corporation’s motion to dismiss, finding that Plaintiff’s claim of equitable subordination is factually unsupported; (3) granting Defendant individual’s motion to dismiss, finding that Plaintiff’s complaint failed to state a claim against him; (4) denying Plaintiff’s second motion to amend the complaint, finding that (a) Plaintiff has not alleged sufficient facts to support a claim that he and Defendant corporation had agreed to reduce the amount of Plaintiff’s indebtedness; (b) Plaintiff’s state law claims of civil conspiracy against both the named Defendants and several unidentified defendants fails to state the factual allegations with necessary particularity and fails to give notice to the unidentified defendants; and (c) Plaintiff’s claim against Defendant individual for failure to pay promissory notes fails to state a claim; (5) with respect to Plaintiff’s third motion to amend the complaint, (a) denying Plaintiff’s claim that Defendant corporation’s claims should be equitably subrogated in favor of the claims of Debtor’s relatives’ estates, finding that the claims of these estates would more appropriately be brought in another forum or in a separate adversary proceeding in this Court, and (b) abstaining from hearing Plaintiff’s non-core, purely state law claims because it is in the interest or comity with state law and (6) ruling that the motion to intervene by the administratrix of the estates of the Plaintiff’s relatives is moot because the underlying causes of action are disallowed by this opinion). 
08/26/05 In re Desmond, 331 B.R. 42 (Bankr. D.N.H. 2005) (granting the United States Trustee's motion to convert the Chapter 11 case to Chapter 7 finding that (1) the estate is administratively insolvent, the Debtor, having no earned income, and the insurance policy on the Debtor's main asset having been threatened to be canceled due to the Debtor's nonpayment of premiums; (2) the Debtor has paid no quarterly fees to the United States Trustee since the start of the case, which is not justifiable; and (3) the Debtor has not been able to effectuate a reorganization plan, and his continued delay in Chapter 11 is and will be prejudicial to creditors. 
08/18/05 In re May, 329 B.R. 789 (Bankr. D.N.H. 2005) (granting the Debtors' motion to avoid a judicial lien and the Debtors' amendment to their petition and schedules finding that (1) the Debtors have a standing to bring the motion because they had an interest in the property at the time the lien affixed, as well as at the time the motion was brought; and (2) the Debtors' entering into a purchase and sale agreement while still occupying the premises and then subsequently moving from the premises prior to the closing does not constitute an abandonment of the homestead). 
08/12/05 Robert Wolfe Assocs. v. ASR Acquisition Corp. (In re Desmond), 331 B.R. 38 (Bankr. D.N.H. 2005) (granting creditor Defendant's motion to dismiss Count II  finding that one cannot have an ownership interest in an individual and denying the Defendant’s request to dismiss Counts I, III and IV because the Plaintiff's complaint contains facts sufficient to justify its recovery based on the Defendant's fraud and/or misrepresentation, and the Defendant may not untimely raise the issue of the Plaintiff’s lack of standing to pursue its claim for restitution).
07/26/05 In re LaBonte, 328 B.R. 372 (Bankr. D.N.H. 2005) (granting the Debtor's request for amendment of schedules to increase the value of her homestead exemption and overruling the trustee's objection, finding that (1) RSA 477:44-IV clearly provides that a security interest created by Article 9 security agreement is subject to homestead rights unless such homestead rights are not waived; (2) the instrument by which the Debtor transferred a security interest is a purchase money security agreement, but not a purchase money mortgage, which is excepted from the homestead exemption). 
07/21/05 In re Latitudes Cafe, LLC, 2005 BNH 024 (denying the Debtor's motion to
07/01/05 Exceptional Properties, Inc. v. Georges (In re Georges), 2005 BNH 021 ((1) denying the Plaintiff's complaint under § 523(a)(2)(A) because there is insufficient evidence that the Defendant's representation of ownership of certain equipment caused damage to the Plaintiff; (2) but the debt owed to the Plaintiff in the amount of $361,087 is excepted from discharge under the § 523(a)(4) embezzlement count, finding that the circumstances, in which the Defendant was in possession of the property and that a significant amount of material was not accounted for,  indicates fraud; (3) denying the Defendant's discharge pursuant to § 727(a)(3) because the Defendant failed to keep adequate records sufficient to determine his business transactions concerning the operation of the pit; (4) denying the Defendant's counterclaim for mitigating damages since the Defendant himself probably caused the problem). 
06/02/05 In re Cote, 2005 BNH 018 (granting relief from the automatic stay in a Chapter 11 case in light of the reasoning of  U.S. Sav. Ass’n. of Texas v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365 (1988) because (1) there is no equity in the property and the proposed development of the property had fallen through; and (2) no other offers are pending and the case has been in Chapter 11 for over twenty months with no confirmable plan of reorganization, so reorganization is not in prospect). 
05/13/05 In re San Giovanni, 325 B.R. 343 (Bankr. D.N.H. 2005) (allowing the Chapter 13 Debtor to voluntarily dismiss his case when a Chapter 13 trustee's motion to dismiss or convert was pending because (1) the Debtor's failure to propose a feasible plan was the basis of the Chapter 13 trustee's motion, and there were no allegations of fraud, misuse of the bankruptcy system or “extreme circumstances” that would warrant denial of dismissal; and (2) the burden to denial of dismissal under § 1307(b) must be higher than denial of conversion under § 706). 
05/02/05 Banknorth v. Sanders (In re Cassar and Sanders), 325 B.R. 62 (Bankr. D.N.H. 2005) (denying complaint objecting to discharge of a debt pursuant to § 523(a)(2)(A) and (B) because (1) the loan application submitted by the Debtor is “a statement respecting the debtor's or an insider's financial condition,” which is excepted from the scope of § 523(a)(2)(A); (2) the Plaintiff’s reliance on the loan application is not justified since the Debtor’s tax returns were in the Plaintiff’s possession and the Debtor’s outstanding tax obligations could have been discovered by senses during a cursory glance under the reasoning of Stanford Inst. for Sav. v. Gallo, 156 F.3d 71 (1st Cir. 1998); (3) the fact that the Debtor readily produced her tax returns shows that the loan application was not made or caused to be published with the intent to deceive). 
04/08/05 Patton v. Town of Orford (In re Patton), 323 B.R. 311 (Bankr. D.N.H. 2005) (granting the Defendant's motion for summary judgment based on § 362(b)(4) and denying the Plaintiffs/Debtors’ cross-motion for summary judgment finding that (1) under the holding of Cournoyer v. Town of Lincoln, 790 F.2d 971 (1st Cir. 1986),  the town's enforcement of a zoning ordinance, when the debtors violated the junkyard statute but refused to abate the violation, is excepted from the automatic stay pursuant to § 362(b)(4); (2) the legal fees associated with the actions by the town to enforce the junkyard statute are, as costs of removal, also protected by § 362(b)(4); and (3) the doctrine of collateral estoppel bars the Debtors from relitigating the issue of a commercial reasonableness of the sale of the vehicles because this issue was fully and fairly litigated in state court). 
04/01/05 In re Desmond, 2005 BNH 009, 2005 WL 1244842 (denying the debtor’s motion to transfer venue of the Debtor’s affiliate Delaware LLC’s bankruptcy from Rhode Island to New Hampshire under Federal Rule of Bankruptcy Procedure 1014(b) finding that (1) the convenience of the parties and interest of justice supports the LLC’s stay in Rhode Island; (2) under Delaware law, the LLC is not dissolved upon the Debtor’s bankruptcy filing, rather the LLC’s existence shall continue upon cancellation of its certificate of formation; and (3) the Debtor is estopped from taking the position that the LLC dissolved upon the filing of his bankruptcy since he continued to do business on behalf of the LLC).
02/24/05 Hosely v. Bly (In re Bly), 2005 BNH 004 (ex-wife's complaint seeking an exception to discharge pursuant to § 523(a)(15) is granted because the Debtor has the ability to pay the debt, which he was obliged to pay pursuant to the divorce decree, and his failure to pay created a burden on the Plaintiff that should not have occurred).
02/23/05 Banknorth, N.A. v. Vrusho (In re Vrusho), 321 B.R. 607 (Bankr. D.N.H. 2005) ((1) granting the Plaintiff's motion for summary judgment because the Plaintiff's error of citing the wrong section number is not fatal, and the Defendant failed to answer interrogatories and to produce documents necessary for trial of the Plaintiff's complaint adopting the reasoning of In re Bartlett, 162 B.R. 73 (Bankr. D.N.H. 1993); (2) denying the Defendant's motion for summary judgment on the ground that res judicata will not be invoked in a complaint for an exception to discharge; and (3)awarding the Plaintiff $2,500 as reasonable expenses incurred in obtaining discovery pursuant to Rule 37 of the Federal Rules of Civil Procedure). 
01/21/05 Clarkeies Market, L.L.C. v. Associated Grocers of New England, Inc. (In re Clarkeies Market, L.L.C.), 322 B.R. 487 (Bankr. D.N.H. 2005)  (denying the first eight counts of the Plaintiff's complaint and deferring count IX to Judge Deasy, who is presiding over the case in chief, finding that (1) no agency and no fiduciary relationship existed between the parties; (2) the transaction at issue did not violate the provisions of the New Hampshire Consumer Protection Act; (3) the Defendant did not breach any covenant of good faith and fair dealing with respect to its contractual arrangement entered into with the Plaintiff; (4) an agency brokerage relationship did not exist; (5) there is no evidence that the information provided by the Defendant was not accurate, and the Plaintiff's reliance on the information could not be justified; (6) the Defendant was not negligent in providing due diligence; (7) there is insufficient evidence that the Defendant asserted any dominion or control over the Plaintiff other than a business relationship; (8) the request for a determination of the amount, validity and priority of the Defendant's lien is better suited to be determined in the claims allowance process in the Plaintiff's Chapter 11 proceeding).