Judge Deasy 1999 Opinions

Date Opinion Summary
12/21/99 Dahar v. Bevis (In re Bevis), 242 B.R. 805 (Bankr. D.N.H. 1999) (granting defendant’s motion to dismiss plaintiff’s complaint to revoke defendant’s discharge pursuant to 11 U.S.C. §§ 727(d)(1) and (d)(2) on the ground that plaintiff’s complaint was time-barred by 11 U.S.C. §§ 727(e)(1) and (e)(2), and holding that the doctrine of equitable tolling is not applicable to 11 U.S.C. §§ 727(e)(1) and (e)(2) and that defendant’s failure to schedule an asset did not forestall the closing of her case for purposes of 11 U.S.C. § 727(e)(2)).
12/20/99 Banc of America Commercial Finance Corporation v. CGE Shattuck, LLC (In re CGE Shattuck, LLC), 1999 BNH 046 (denying creditor’s motion to lift the automatic stay on the following grounds, where the parties had stipulated that the creditor was undersecured: (1) debtor failed to meet its initial burden to produce evidence of lack of adequate protection under 11 U.S.C. § 362(d)(1); (2) property was necessary to an effective reorganization pursuant to 11 U.S.C. § 362(d)(2), despite confirmation issues concerning classification of the creditor’s deficiency claim and implications arising under Bank of America Nat’l Trust & Savings Ass’n v. 203 N. LaSalle St. Partnership, 526 U.S. 434 (1999); and (3) real property was not “single asset real estate” under 11 U.S.C. § 101(51B) and therefore relief was not available pursuant to 11 U.S.C. § 362(d)(3)), appeal dismissed, BAP No. NH 00-076 (B.A.P. 1st Cir. Mar. 15, 2001) (granting the debtor’s motion to dismiss the appeal because the bankruptcy court’s orders regarding valuation of the debtor’s property were not final appealable orders and did not meet any of the exceptions to the finality rule).
12/14/99 Ford v. Chen (In re Gahara), 1999 BNH 045 (avoiding the debtor’s transfer of money to a corporate creditor pursuant to 11 U.S.C. § 544(b)(1) and RSA 545-A:5(I) and authorizing the trustee to recover for the benefit of the debtor’s bankruptcy estate the money transferred pursuant to 11 U.S.C. § 550(a)(1)). 
12/10/99 Kopp v. Marro (In re Marro), 1999 BNH 044 (holding that plaintiff, who sought to have certain divorce-related obligations declared nondischargeable pursuant to 11 U.S.C. § 523(a)(15), had not met her burden of persuasion with respect to 11 U.S.C. § 523(a)(15)(A) and that, therefore, the obligations at issue are dischargeable).
12/07/99 In re Grant, 242 B.R. 800 (Bankr. D.N.H. 1999) (overruling creditor’s objection to confirmation of the debtor’s Chapter 13 plan because creditor does not have a security interest in the cancellation value of the debtor’s extended automobile warranty service contract or the unearned premiums on her credit life insurance and her credit accident and health insurance, unless and until the premiums are rebated or refunded to the creditor due to cancellation or termination of the contracts (which the creditor does not have the authority to do under the retail installment contract); therefore, the creditor is not entitled to have the value of the unearned premiums or the insurance contracts added to the value of the automobile collateral for purposes of 11 U.S.C. § 1325(a)(5)).
11/19/99 In re Drouin, 1999 BNH 041 (fining a bankruptcy petition preparer, doing business through an Internet bankruptcy site, a total of $1,000.00 for violating 11 U.S.C. §§ 110(b) and (c) due to his failure to provide his correct name and social security number, and certifying such violations to the U.S. District Court for the District of N.H. pursuant to 11 U.S.C. § 110(i)(1)). 
11/08/99 In re Belyea, 253 B.R. 312 (Bankr. D.N.H. 1999) (holding, pursuant to 11 U.S.C. §§ 105(a), 363(h), and 1303, that the Bankruptcy Court can order the partition of real property between the debtor and a non-debtor and, under the particular facts of this case, the debtor could partition real estate that he owned jointly with his sister through confirmation of his Chapter 13 plan, which contained a provision for partition, rather than through an adversary proceeding).
10/26/99 Schreiber v. Emerson (In re Emerson), 244 B.R. 1 (Bankr. D.N.H. 1999) (holding that (1) the trustee did not meet his burden of proof under 11 U.S.C. §§ 727(a)(2), (a)(3), or (a)(5); (2) the trustee met his burden of proof under 11 U.S.C. § 727(a)(4)(A) warranting the denial of the debtors’ discharge; (3) the trustee met his burden of proof with respect to two of his claims under 11 U.S.C. § 547(b) warranting the avoidance of the debtors’ preferential transfers to insiders; (4) the trustee met his burden of proof with respect to one of his claims under 11 U.S.C. § 548(a)(1)(B) warranting the avoidance of the debtors’ fraudulent transfers; and (5) the trustee met his burden of proof on all of his claims under 11 U.S.C. § 544(b) and RSA 545-A:5(II) warranting the avoidance of the debtors’ fraudulent transfers to insiders), denying reconsideration, 244 B.R. 41 (Bankr. D.N.H. 1999).
10/26/99 In re McKibben, 1999 BNH 036 (approving fees and expenses of Chapter 13 debtor’s attorney in accordance with 11 U.S.C. § 330(a) and LBR 2016-2(c)).
10/15/99 HP Family Fed. Credit Union v. Oakley (In re Oakley), 1999 BNH 035 (denying plaintiff’s complaint seeking to except three debts from discharge pursuant to 11 U.S.C. § 523(a)(2)(B)).
09/23/99 Smith v. Anderson (In re Anderson), 1999 BNH 034 (finding three divorce-related debts owed to the ex-spouse plaintiff from the debtor to be in the nature of alimony, maintenance, or support and therefore nondischargeable pursuant to 11 U.S.C. § 523(a)(5) and finding that the plaintiff had not met her burden of persuasion under 11 U.S.C. § 523(a)(15)(A) with respect to two other divorce-related debts and therefore concluding that the two debts are dischargeable).
09/23/99 Fischbein v. Armstrong (In re Armstrong), 1999 BNH 033 (denying plaintiff’s complaint seeking to except from discharge under 11 U.S.C. § 523(a)(2)(A) an alleged obligation of the debtor to the plaintiff relating to a plumbing and heating subcontract).
09/23/99 Fischbein v. Armstrong (In re Armstrong), 1999 BNH 032 (denying plaintiff’s complaint seeking to deny the debtor’s discharge under 11 U.S.C. §§ 727(a)(2) and (a)(4)(A) for the debtor’s failure to disclose certain assets on his bankruptcy petition).
09/07/99 Garrity v. Hadley (In re Hadley), 239 B.R. 433 (Bankr. D.N.H. 1999) (holding that the defendant’s obligation to indemnify the ex-spouse plaintiff against payment of a joint marital debt, an obligation that arose from a divorce decree, is nondischargeable pursuant to 11 U.S.C. § 523(a)(15) and stating that the debtor bears the burden of production with respect to 11 U.S.C. § 523(a)(15)(A), the creditor bears the burden of production and persuasion with respect to all other elements of 11 U.S.C. § 523(a)(15), and the creditor bears the ultimate burden of persuasion with respect to 11 U.S.C. § 523(a)(15)(A)). 
08/05/99 In re Dore, 1999 BNH 028 (establishing a two-part standard for considering evidence in valuing property for the purpose of determining to what extent a lien may be avoided pursuant to 11 U.S.C. § 522(f)(2) and concluding that the debtor may partially avoid the creditor’s lien after valuing the debtor’s residence as of the petition date).
07/30/99 In re Conner, 242 B.R. 794 (Bankr. D.N.H. 1999) (holding that a provision contained in the debtor’s Chapter 13 plan stating that confirmation shall constitute a finding that the repayment of the debtor’s student loan creditors would be an undue hardship and that such debt shall be excepted from discharge in accordance with 11 U.S.C. § 523(a)(8) is impermissible and therefore precludes confirmation on the ground that such a provision does not satisfy the requirements of 11 U.S.C. §§ 523(a)(8) and 1325(a)(1), notwithstanding the fact that the relevant creditors did not affirmatively object). 
07/22/99 Bower v. Deickler (In re Deickler), 1999 BNH 026 (holding that (1) debtor’s obligations to former spouse for attorney’s fees related to post-divorce custody and support dispute are non-dischargeable under 11 U.S.C. § 523(a)(5); (2) debtor did not properly assert a homestead exemption under RSA 480:1 in personal property award; (3) debtor may claim valid homestead exemption under RSA 480:1 in her share of equity in marital home awarded during divorce; (4) former spouse was entitled to setoff his obligations to debtor against her obligations to him pursuant to 11 U.S.C. § 553 and RSA 515:7; and (5) former spouse could seek order from divorce court requesting that former spouse be ordered to record quitclaim deed to marital home).
07/22/99 In re Edwards, 236 B.R. 124 (Bankr. D.N.H. 1999) (outlining the standard to be applied in determining whether a debtor’s motion to vacate a discharge order should be granted pursuant to FRBP 9024 and FRCP 60(b)(6) for the purpose of allowing an enforceable reaffirmation agreement under 11 U.S.C. § 524(c)(1) and granting debtor’s motion to vacate his discharge order for such a purpose, but noting that such motions will not be routinely granted).
06/24/99 Judge v. Lomas (In re Lomas), 1999 BNH 024 (awarding damages to plaintiff consisting of reasonable attorney’s fees as a sanction under 11 U.S.C. § 362(h) for violating the automatic stay).
06/21/99 In re Beeman, 235 B.R. 519 (Bankr. D.N.H. 1999) (denying creditor’s motion for relief from the automatic stay after finding that the debtors still had the right to cure and reinstate their home mortgage pursuant to 11 U.S.C. § 1322(c)(1) following a foreclosure auction but before the foreclosure sale was complete, and noting that § 1322(c)(1), as added by the Bankruptcy Reform Act of 1994, statutorily reverses the holding of In re Hazleton, 137 B.R. 560 (Bankr. D.N.H. 1992) as applied to Chapter 13 debtors).
06/18/99 Judge v. Lomas (In re Judge), 1999 BNH 022 (awarding sanctions under FRBP 7037 and FRCP 37(a)(4)(A) upon defendants’ motion to compel discovery for plaintiffs’ failure to timely and to adequately respond to defendants’ interrogatories).
05/18/99 In re Hurt, 234 B.R. 1 (Bankr. D.N.H. 1999) (holding that as a matter of law an attorney in fact can commence a bankruptcy case under a power of attorney so long as the debtor qualifies as a debtor under 11 U.S.C. § 109, the commencement of the bankruptcy case is within the scope of authority granted by the power of attorney, and such action by the attorney in fact does not constitute the practice of law and further holding that certain minimum procedural requirements must be met to insure that the filing is proper in a particular case).
05/14/99 In re Donnell, 234 B.R. 567 (Bankr. D.N.H. 1999) (denying creditor’s motion to compel debtors to surrender collateral following the failure of debtors to perform their stated intention pursuant to § 521(2)(B) because fashioning such a remedy under the Court’s § 105 power would not be appropriate in this case and suggesting that relief from the stay may be a more appropriate remedy). 
04/28/99 Ford v. Clement (In re Beckmeyer), 1999 BNH 010 (abstaining from hearing the plaintiff’s claim pursuant to the Court’s discretionary abstention power under 28 U.S.C. § 1334(c)(1) because the proceeding involved only issues of state law, federal jurisdiction not available without the bankruptcy case, the proceeding was non-core, and it would be more efficient to hear the proceeding in state court).
04/19/99 Schreiber v. Stephenson (In re Emerson), 235 B.R. 702 (Bankr. D.N.H. 1999) (denying defendants’ motion for summary judgment on the trustee’s preferential and fraudulent transfer claims under 11 U.S.C. §§ 544, 547, and 548 and RSA 545-A:4 and 5 because there was enough evidence to get to trial on the issues of whether the defendants were insiders, whether the debtors had an interest in the collateral transferred to the defendants, and whether the debtors received less than reasonably equivalent value).