CHRONOLOGICAL DIRECTORY OF OPINIONS & ORDERS AND JUDGMENTS ISSUED BY THE UNITED STATES
BANKRUPTCY APPELLATE PANEL OF THE TENTH CIRCUIT


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1. In re Jeys, 202 B.R. 153 (10th Cir. BAP 1996) (per curiam) (before Pusateri, Rose & Cornish, JJ.) (Appeal from the United States Bankruptcy Court for the District of Utah), appeal dismissed (10th Cir. 1996).

The Bankruptcy Appellate Panel, a non-Article III court, is not a "court of the United States" and, therefore, lacks authority under 28 U.S.C.§ 1915(a) to grant leave to appeal in forma pauperis. Accordingly, the debtor's motion for leave to proceed in forma pauperis was DENIED.

2. In re Vista Foods U.S.A., Inc., 202 B.R. 499 (10th Cir. BAP 1996) (per curiam) (before Pusateri, Rose & Boulden, JJ.) (Appeal from the United States Bankruptcy Court for the Western District of Oklahoma).

A bankruptcy court's order converting a Chapter 11 case to a case under Chapter 7 is a "final order" pursuant to 28 U.S.C.§ 158(a)(1). Accordingly, a motion for leave to appeal was DENIED as such leave is necessary only when an appeal is from an interlocutory order or decree.

3. Lucero v. Green Tree Fin. Servicing Corp. (In re Lucero), 203 B.R. 322 (10th Cir. BAP 1996) (Bohanon, J.) (before Bohanon, Pearson & Boulden, JJ.) (Appeal from the United States Bankruptcy Court for the District of New Mexico, reported at 199 B.R. 742).

A bankruptcy court judgment, avoiding a lien on a mobile home which had become affixed to real property, was REVERSED. The Chapter 13 trustee could not avoid the secured creditor's lien under 11 U.S.C.§ 544(a)(1) or (2) because U.C.C.§ 9-313(4)(d) allows a security interest in fixtures to be perfected by any method permitted by the Commercial Code. Since the creditor had perfected its lien with the New Mexico Motor Vehicle Division, its lien was perfected under§ 9-313(4)(d).  The creditor's lien was also not avoidable by the Chapter 13 trustee under 11 U.S.C.  C.§ 544(a)(3) because that section expressly states that a trustee does not have the rights of a bona fide purchaser with respect to fixtures.

4. Personette v. Kennedy (In re Midgard Corp.), 204 B.R. 764 (10th Cir. BAP 1997) (Clark, J.) (before McFeeley, C.J., and Pusateri & Clark, JJ.) (Appeal from the United States Bankruptcy Court for the Western District of Oklahoma).

A bankruptcy court order denying a motion for remand of a state court action was REVERSED and REMANDED. The Court's appellate jurisdiction is not barred under 28 U.S.C.§ 1334(c) or 1452(b), and order of the bankruptcy court denying remand was a "final order" under the collateral order doctrine or an appealable interlocutory order under 28 U.S.C.§ 158(a)(3).  The bankruptcy court's jurisdiction over the state court action was at most "related to" the debtor's Chapter 11 case under 28 U.S.C.§ 157. The bankruptcy court was required to abstain from hearing the state court action under 28 U.S.C.§ 1334(c)(2). The appellants' allegations of bias against bankruptcy court judge were unsupported by the record, and were potentially sanctionable under Fed. R. App. P. 38.  

5. In re Rivermeadows Assocs., Ltd., 205 B.R. 264 (10th Cir. BAP 1997) (Pearson, J.) (before Pearson, Boulden & Cornish, JJ.)   (Appeal from the United States Bankruptcy Court for the District of Wyoming).  

A bankruptcy court order dismissing an appeal for lack of prosecution pursuant to a local rule authorizing it to do so was AFFIRMED. A district court may properly delegate to a bankruptcy court the duty of monitoring compliance with federal and local rules governing appeals, including the power to dismiss an appeal which is not timely prosecuted.  Although a bankruptcy court lacks jurisdiction over issues appealed, where a local rule authorizes it to dismiss an appeal for lack of prosecution, it may do so.

6. In re Kopexa Realty Venture Co., BAP No. KS-96-45 (10th Cir. BAP filed  Feb. 28, 1997) (Boulden, J.) (before McFeeley, C.J., and Bohanon & Boulden, JJ.) (Appeal from the United States Bankruptcy Court for the District of Kansas).

The appellants' failure to obtain a stay pending appeal of a bankruptcy court order approving a sale of substantially all of the debtor's assets rendered the appeal of the sale order moot under 11 U.S.C.§ 363(m). The appellees' Motion to Dismiss Appeal as Moot was GRANTED and the appeal was DISMISSED.

7. In re Rivermeadows Assocs., Ltd., BAP No.WY-97-011 (10th Cir. BAP  filed March 19, 1997) (before McFeeley, C.J., and Bohanon & Robinson, JJ.) (Appeal from the United States Bankruptcy Court for the District of Wyoming).

Elections to have an appeal heard in district court, which were filed after the filing of entry of appearances and certificates of interested parties, were GRANTED and the appeal was transferred to the district court. 10th Cir. BAP L.R. 8001-1(e), which provides that parties filing documents prior to 30 days after service of notice of appeal waive the 30-day period to elect to have appeal heard in district court, does not apply when a party files documents required by either the Local Rules of the Bankruptcy Appellate Panel or by the Federal Rules of Bankruptcy Procedure.

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8. In re Furst,  206 B.R. 979 (10th Cir. BAP 1997) (per curiam) (before Bohanon, Pearson & Robinson, JJ.) (Appeal from the United States Bankruptcy Court for the District of New Mexico).

The Court DISMISSED an appeal for lack of jurisdiction because the appellant filed an untimely notice of appeal pursuant to Fed. R. Bankr. P. 8002. The fact that a holiday occurred during the period for filing the appeal did not affect the calculation of the 10-day period under Fed. R. Bankr. P. 9006(a). The doctrine of unique circumstances did not apply where the pro se appellant allegedly received erroneous advice from the bankruptcy court clerk of court's office regarding the time for filing the appeal.

9. In re Vista Foods U.S.A., Inc., 226 B.R. 284, 1997 WL 837774, BAP No. WO-96-37 (10th Cir. BAP filed April 3, 1997) (per curiam) (before Clark, Boulden & Robinson, JJ.) (Appeal from the United States Bankruptcy Court for the Western District of Oklahoma).

A bankruptcy court order converting a Chapter 11 case to a case under Chapter 7 was AFFIRMED because the court did not abuse its broad discretion under 11 U.S.C.§ 1112(b)(1), (2) & (3). Discussion of the burden of proof applicable to hearings under  § 1112(b).

10. Straight v. First Interstate Bank of Commerce (In re Straight), 207 B.R. 217 (10th Cir. BAP 1997) (Pusateri, J.) (before McFeeley, C.J., and Pusateri & Clark, JJ.) (Appeals from the United States Bankruptcy Court for the District of  Wyoming, reported at 200 B.R. 923), appeal dismissed, No. 97-8037 (10th Cir. filed March 13, 1998).

A bankruptcy court judgment holding that the defendant-bank did not have a security interest in an account receivable and avoiding a payment made to the bank during the 90-days prior to the filing of the debtors' bankruptcy case under 11 U.S.C.§ 547(b) was AFFIRMED.  The bankruptcy court's judgment that a tax lien was not avoidable under 11 U.S.C.§ 545(2) was AFFIRMED. Discussion of the interplay between 26 U.S.C.§ 6323(b) and 11 U.S.C.§ 522(c) & 545(2).

11. In re Cozad, 208 B.R. 495 (10th Cir. BAP 1997) (Cornish, J.)  (before Bohanon, Robinson & Cornish, JJ.) (Appeal from the United States Bankruptcy Court for the District of Utah).

In calculating impairment to an exemption under 11 U.S.C.§ 522(f)(2)(A), all liens on property must be added to the exemption that the debtor would be entitled to if there were no liens on the property, and that sum should be deducted from the value that the debtor's interest in the property would have in the absence of any liens. A lien under 11 U.S.C.§ 101(37) includes consensual and judgment liens. Thus, a bankruptcy court's order avoiding a creditor's lien under§ 522(f) was AFFIRMED because the lien impaired the debtor's exemption where the total amount of the liens and the debtor's exemption exceeded the debtor's one-half interest in the property. Fair market value was used to determine the value of the debtor's property.

12. Bank of Western Okla. v. Cantrell (In re Cantrell), 208 B.R. 498 (10th Cir. BAP 1997) (Pusateri, J.) (before Pusateri, Clark & Robinson, JJ.) (Appeal from the United States Bankruptcy Court for the Western District of Oklahoma).

The bankruptcy court's judgment finding a secured creditor's debt to be nondischargeable under 11 U.S.C.§ 523(a)(6) was AFFIRMED. The "willful" requirement under § 523(a)(6) requires a showing of conduct that is volitional and deliberate and over which the debtor exercises meaningful control, as opposed to unintentional or accidental conduct. No intent to injure is required to be shown. The "malicious" requirement under § 523(a)(6) can be established by showing that a debtor had knowledge of a secured creditor's rights and, without justification or excuse, proceeded to act in violation of those rights. It must be at least reasonably foreseeable that the debtor's acts would injure the creditor. The bankruptcy court is not required to fix the amount of the debt which it has determined to be nondischargeable.

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13. In re Rocky Mt. Refractories, 208 B.R. 709 (10th Cir. BAP 1997) (Robinson, J.) (Bohanon, J., dissenting) (before Bohanon, Robinson & Cornish, JJ.) (Appeal from the United States Bankruptcy Court for the District of Utah,  reported at 205 B.R. 307).

A bankruptcy court judgement requiring the payment of interest that had accrued on certain administrative expense claims during the debtor's Chapter 11 case at the same priority as underlying administrative expense claims after case was converted to Chapter 7 was AFFIRMED. Interest that accrues on Chapter 11 administrative expenses should not be subordinated in priority under the plain language of 11 U.S.C.§ 726(a)(5). Section 726(a)(5) does not apply to Chapter 11 claims that are fixed at the time of conversion.

14. In re Hatcher, 208 B.R. 959 (10th Cir. BAP 1997) (Boulden, J.) (before McFeeley, C.J., and Pearson & Boulden, JJ.) (Appeal from the United States Bankruptcy Court for the Eastern District of Oklahoma, reported at 202 B.R. 626), aff'd without opinion, 133 F.3d 932 (10th Cir. 1998).

Appeal from two orders: (1) order disallowing claim for postpetition attorney's fees; and (2) order denying confirmation of plan, which included ruling that 60-month Chapter 13 plan was not per se unreasonable. Regarding (1), the bankruptcy court order disallowing postpetition attorney's fees was AFFIRMED. Neither 11 U.S.C.§ 1322(b)(2) nor Nobelman v. American Sav. Bank, 508 U.S. 324 (1993) allowed such fees where contract between the parties expressly limited the allowance of fees, and attorney had already been allowed maximum amount of fees provided for under the contract. If 11 U.S.C.§ 506(b) applies in light of the interpretation of § 1322(b)(2) in Nobelman, the fees were not allowable because the contract prohibited further collection of fees. The fees were also not allowable under 11 U.S.C.§ 1325(a)(5)(B)(ii) and Rake v. Wade, 508 U.S. 464 (1993).  Regarding (2), the Court declined to review whether the 60-month Chapter 13 plan was per se unreasonable due to lack of appellate jurisdiction. An order denying confirmation of a Chapter 13 plan is not a "final order" as required under 28 U.S.C.§ 158(a). Although an order confirming a plan was subsequently entered prior to the decision on appeal, the creditor failed to appeal that order. Discussion of Lewis v. B.F. Goodrich Co., 850 F.2d 641 (10th Cir. 1988)(en banc).

14a. Dawson v. Unruh (In re Dawson), 209 B.R. 246 (10th Cir. BAP 1997)  (Robinson, J.) (before Pusateri, Boulden & Robinson, JJ.) (Appeal from  the United States Bankruptcy Court for the Northern District of Oklahoma).

A bankruptcy court order determining a debt to be nondischargeable under 11 U.S.C § 523(a)(3)(A) was AFFIRMED where the debtor did not list the creditor in his schedules, the bar date for filing proofs of claim had expired, and the creditor did not have knowledge of the Chapter 7 case. Discussion of appellate jurisdiction under 28 U.S.C.§ 158(a) and Lewis v. B.F. Goodrich Co., 850 F.2d 641 (10th Cir. 1988)(en banc).

15. In re Rambo, 209 B.R. 527 (10th Cir. BAP) (Pearson, J.) (before McFeeley, C.J., and Pearson & Boulden, JJ.) (Appeal from the United States Bankruptcy Court for the Western District of Oklahoma), aff'd without opinion, 132 F.3d 43  (10th Cir. 1997).

A bankruptcy court order sanctioning an attorney under Fed. R. Bank. P. 9011 was AFFIRMED because the attorney failed to provide an adequate record for appellate review. Discussion of appellate jurisdiction: (1) although the Chapter 13 case was dismissed, the Court had jurisdiction over the appeal because the issue on appeal was not dependent on the existence of the underlying bankruptcy case; (2) the dismissal of a previous appeal of the sanction order because it was interlocutory did not bar the appeal of same order when it became final.

16. In re Key, 209 B.R. 737 (10th Cir. BAP 1997) (Bohanon, J.)  (before Bohanon, Boulden & Matheson, JJ.)  (Appeal from the United States Bankruptcy Court for the District of Kansas).

11 U.S.C.§ 303 and Fed. R. Bankr. P. 1013 require the bankruptcy court to enter an order for relief if the debtor does not timely respond to an involuntary petition. Thus, the bankruptcy court's order dismissing an involuntary petition which was not properly pleaded was REVERSED.

17. Harris v. Beneficial Okla., Inc. (In re Harris), 209 B.R. 990 (10th Cir. BAP 1997) (Clark, J.) (Matheson, J. dissenting) (before Pusateri, Clark & Matheson, JJ.)  (Appeal from the United States Bankruptcy Court for the Western District of Oklahoma).

A bankruptcy court order denying the defendant's motion for summary judgement was AFFIRMED, but an order granting the plaintiff's cross-motion was REVERSED, and the case was REMANDED for further proceedings. Appellate jurisdiction and standards of review applied in considering Fed. R. Civ. P. 56(c) and Fed. R. Bankr. P. 56 orders are discussed, as are the applicable law and requirements of proof.

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18. In re Gantz, 209 B.R. 999 (10th Cir. BAP 1997) (Pearson, J.)  (before McFeeley, C.J., and Pearson & Cornish, JJ.) (Appeal from the United States Bankruptcy Court for the District of Wyoming).

A bankruptcy court order barring an attorney from collecting fees which had been disallowed against the debtor was AFFIRMED. After the debtor concluded payments under his Chapter 13 plan and received a discharge, his attorney attempted to collect fees which the bankruptcy court had disallowed. The bankruptcy court ordered the attorney to stop his collection efforts because the debt had been discharged. Although there was no prepetition debt to discharge under 11 U.S.C.§ 1328, the bankruptcy court was affirmed because the debtor was not liable for the fees as they were never allowed under 11 U.S.C.§ 330.

19. In re Hunt, 226 B.R. 284, 1997 WL 840832, BAP No. UT-97-006 (10th Cir. BAP filed July 16, 1997) (Pusateri, J.) (before Pusateri, Bohanon & Robinson, JJ.)  (Appeal from the United States Bankruptcy Court for the District of Utah), aff'd without opinion, 153 F.3d 727 (10th Cir. 1998).

A bankruptcy court order refusing to reopen a case was AFFIRMED as there was no way from appellate record to determine if bankruptcy court had abused its discretion. The order appealed provided no information about the bankruptcy court's rationale for refusing to reopen case, and the appellant had not provided a transcript of hearing. 10th Cir. BAP L.R. 8009-1(e) requires parties to include transcripts necessary for review in light of the standard of review to be applied to the issues before the court.

20. In re Love, 226 B.R. 284, 1997 WL 837795, BAP No. WY-97-001 (10th Cir. BAP filed July 17, 1997) (Cornish, J.) (before McFeeley, C.J., and Pearson & Cornish, JJ.) (Appeal from the United States Bankruptcy Court for the District of Wyoming).

A bankruptcy court order compelling the Chapter 7 debtor to cooperate with the trustee by obtaining appraisals and providing information was AFFIRMED. 11 U.S.C.§ 521(3) and (4) requires the debtor to cooperate with the trustee by supplying copies of motor vehicle titles and obtaining free appraisals of the vehicles.

21. In re Bechtoldt, 210 B.R. 599 (10th Cir. BAP 1997) (Matheson, J.)  (before Bohanon, Cornish & Matheson, JJ.)  (Appeal from the United States Bankruptcy Court for the District of Wyoming).

A bankruptcy court order denying the Chapter 13 trustee's objection to the debtor's claim of exemption in tools of trade under Wyoming law, which was the debtor's secondary trade, was AFFIRMED.

22. In re Southern Star Foods, Inc., 210 B.R. 838 (10th Cir. BAP 1997) (McFeeley, C.J.)  (before McFeeley, C.J., and Pearson & Boulden, JJ.) (Appeal from the United States Bankruptcy Court for the Eastern District of Oklahoma, reported at 201 B.R. 291), aff'd, 144 F.3d 712 (10th Cir. 1998).

A bankruptcy court order holding that unpaid workers' compensation premiums was not a claim entitled to priority as a "contribution to an employee benefit plan" under 11 U.S.C..§ 507(a)(4) was AFFIRMED.

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23. In re Smitty's Truck Stop, Inc., 210 B.R. 844 (10th Cir. BAP 1997)  (McFeeley, C.J.) (before McFeeley, C.J., and Pearson & Cornish, JJ.) (Appeal from the United States Bankruptcy Court for the District of Wyoming).

A bankruptcy court order requiring the debtor's attorney to disgorge all previously paid compensation and denying all future compensation from the debtor's estate was AFFIRMED. The attorney's failure to comply with the mandatory disclosure requirements of 11 U.S.C.§ 327 & 329 and Fed. R. Bankr. P. 2014(a) & 2016(b), first by providing no information regarding the existence or source of his retainer, and then by providing incorrect and inconsistent information in employment pleadings and fee applications, warranted the bankruptcy court's order disgorging fees that had been paid and denying future fees. Negligence or inadvertence on the part of an attorney does not excuse compliance with§ 329, and the bankruptcy court may deny or disgorge fees even in the absence of harm to the estate. Discussion of the fiduciary responsibilities of debtor's counsel.

24. In re Salina Speedway, Inc., 210 B.R. 851 (10th Cir. BAP 1997) (McFeeley, C.J.) (before McFeeley, C.J., and Clark & Robinson, JJ.)  (Appeal from the United States Bankruptcy Court for the Northern District of Oklahoma), appeal dismissed, No. 97-5119 (10th Cir. filed Dec. 17, 1997) .

A bankruptcy court order denying post-confirmation United States trustee quarterly fees under 28 U.S.C.§ 1930(a)(6) was AFFIRMED. The amendment to§ 1930(a)(6), which requires quarterly fees to be paid post-confirmation, applied where the Chapter 11 plan was confirmed after the amendment became effective. However, where the plan was confirmed and United States trustee did not object to the plan on the grounds that it did not provide for payment of quarterly fees, the trustee was barred under 11 U.S.C.§ 1141 and res judicata from recovering such fees. Requiring the reorganized debtor to pay the post-confirmation fees would impermissibly effect a plan modification which was prohibited under 11 U.S.C.§ 1127(b). Additionally, the fees did not arise by operation of law inasmuch as the bankruptcy court determines their allowance at the time of confirmation under 11 U.S.C.§ 1129(a)(12).

25. Health Midwest Office Facilities Corp. v. Zipper (In re Zipper), 226 B.R. 284, 1997 WL 837784, BAP No. KS-97-025 (10th Cir. BAP filed Aug. 21, 1997)  (Clark, J.) (before Clark, Bohanon & Cornish, JJ.) (Appeal from the United States Bankruptcy Court for the District of Kansas).

Appeal DISMISSED WITHOUT PREJUDICE because the orders appealed were not final as required by 28 U.S.C.§ 158(a)(1) as all causes of action regarding the proceeding had not been disposed of by the bankruptcy court. The Court also discussed the separate judgment requirement in Fed. R. Bankr. P. 9021 and the requirements of a notice of appeal under Fed. R. Bankr. P. 8001(a).

26. Stevens v. Stevens (In re Stevens), 226 B.R. 284, 1997 WL 837805, BAP No. WO-97-024(10th Cir. BAP filed Aug. 22, 1997) (McFeeley, C.J.)   (before McFeeley, C.J., and Pusateri & Boulden, JJ.) (Appeal from the United States Bankruptcy Court for the Western District of Oklahoma).

Appeal DISMISSED because the order denying summary judgment was not a final order as required by 28 U.S.C.§ 158(a)(1).

27. Joseph v. Lindsey (In re Lindsey), 212 B.R. 373 (10th Cir. BAP 1997)  (per curiam) (before Pusateri, Cornish & Matheson, JJ.)  (Appeal from the United States Bankruptcy Court for the District of Utah).

Appeal from a bankruptcy court order denying a request for a protective order was DISMISSED WITHOUT PREJUDICE because the order appealed was not final as required under 28 U.S.C.§ 158(a)(1). A party seeking to present an objection to a discovery order immediately to a court of appeals must refuse compliance, be held in contempt, and then appeal the contempt order. The bankruptcy court's order also was not reviewable under the collateral order doctrine or as an appealable interlocutory order under 28 U.S.C.§ 158(a)(3).

28. In re White, 212 B.R. 979 (10th Cir. BAP 1997)   (Robinson, J.) (before Pusateri, Bohanon & Robinson, JJ.)  (Appeal from the United States Bankruptcy Court for the District of Wyoming).

A bankruptcy court order (1) allowing a secured claim filed by the debtor's former spouse, and (2) disallowing in part and allowing in part the former spouse's unsecured priority claim was AFFIRMED.  The spouse's secured claim, based on her postpetition state court judgment in a divorce proceeding which had been commenced prepetition, was not avoidable under 11 U.S.C.  § 544. While§ 544 might operate to avoid a lien obtained in a divorce case commenced postpetition, it does not do so where the case was commenced prepetition. Under Wyoming law, when a divorce is commenced the spouses' respective property interests are vested, but subject to definition. When the state court entered its divorce decree, the former spouse obtained a lien and at no time prior could a hypothetical creditor have encumbered the property.  The bankruptcy court's conclusion that the state court's unsecured monetary award to the former spouse was "support" which was entitled to priority under 11 U.S.C.§507(a)(7) was not clearly erroneous, and its legal conclusion that the portion of that award which accrued postpetition was not allowable under 11 U.S.C.§ 502(b)(5) was also correct under the express language of that section. 

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29. In re Watkins, 226 B.R. 284, 1997 WL 603419, BAP No. WO-97-028 (10th Cir. BAP filed Sept. 25, 1997) (Pusateri, J.) (before Pusateri, Pearson & Boulden, JJ.) (Appeal from the United States Bankruptcy Court for the Western District of Oklahoma).

A bankruptcy court order allowing the debtor's claimed exemptions in certain farming equipment as "tools of the trade" under Oklahoma law and avoiding a secured creditor's lien in such items under 11 U.S.C.§ 522(f)(1)(B)(ii) was AFFIRMED.

30. In re Double J Cattle Co., 226 B.R. 284, 1997 WL 837762, BAP No. WY-97-029 (10th Cir. BAP filed Oct. 24, 1997) (Boulden, J.) (Clark, J. dissenting)   (before Clark, Boulden & Cornish, JJ.)  (Appeal from the United States Bankruptcy Court for the District of Wyoming).

A bankruptcy court order denying a Chapter 12 debtor's attorney's request for payment of fees and expenses was REVERSED because the court failed to apply the standards set forth in 11 U.S.C.§ 330(a)(1)(A) and (B) & (a)(4)(A)(ii).

31. In re C.K. Williams, Inc., 213 B.R. 1020 (10th Cir. BAP 1997) (Matheson, J.) (before Clark, Bohanon & Matheson, JJ.) (Appeal from the United States Bankruptcy Court for the District of Kansas), appeal dismissed (10th Cir. 1998).

A bankruptcy court order approving a proposed compromise and settlement over the objections of creditors was VACATED, and the matter was REMANDED to the bankruptcy court for further proceedings. Fed. R. Bankr. P. 7052, which is made applicable to contested matters under Fed. R. Bankr. P. 9014, requires the bankruptcy court to make specific factual findings. Because the bankruptcy court failed to make factual findings, there was nothing for the appellate court to review.

32. Redmond v. Federal Deposit Ins. Corp. (In re Ramsay), 226 B.R. 284, 1997 WL 837769, BAP No. KS-97-007 (10th Cir. BAP filed Nov. 21, 1997) (per curiam) (before Clark, Bohanon & Matheson, JJ.) (Appeal from the United States Bankruptcy Court for the District of Kansas).

A bankruptcy court order overruling an objection by the Chapter 7 trustee to a proof of claim filed by the Federal Deposit Insurance Corporation was AFFIRMED.

33. Antlers Roof-Truss & Builders Supply v. Storie (In re Storie), 216 B.R. 283  (10th Cir. BAP 1997) (Clark, J.) (before Clark, Robinson & Matheson, JJ.) (Appeal from the United States Bankruptcy Court for the Eastern District of Oklahoma).

A bankruptcy court order determining that certain debts owed by the Chapter 7 debtors were dischargeable was REVERSED, and the case was REMANDED for further proceedings. The bankruptcy court erred in determining that "defalcation" under 11 U.S.C.§ 523(a)(4) requires some sort of moral dereliction or intentional wrong. Rather, "defalcation" is a fiduciary-debtor's failure to account for funds that have been entrusted to it due to any breach of a fiduciary duty, whether intentional, willful, reckless, or negligent. The fiduciary is also charged with knowledge of the law and its duties. The burden of proof under§ 523(a)(4) is discussed. The case was remanded to the bankruptcy court to make findings of fact and conclusions of law as to whether the debtors were acting in a "fiduciary capacity" as required under§ 523(a)(4). 

34. In re Stewart, 215 B.R. 456 (10th Cir. BAP 1997) (Robinson, J.) (before Clark, Robinson & Matheson, JJ.) (Appeal from the United States Bankruptcy Court for the Northern District of Oklahoma, reported at 201 B.R. 996 and 204 B.R. 780), aff'd, 175 F.3d 796 (10th Cir. 1999).

Appeal of two bankruptcy court orders: (1) an order dismissing the Chapter 7 debtor's bankruptcy case under 11 U.S.C.§ 707(b); and (2) an order declaring§ 707(b) to be constitutional. Both orders were AFFIRMED.  The bankruptcy court did not err in: (1) allowing the United States trustee to commence a 11 U.S.C.§ 707(b) action based on the suggestion or request of a creditor; (2) determining that the debtor's case was a  "substantial abuse" under a "totality of the circumstances" test; or (3) in finding that the debtor's debts, consisting primarily of student loans and inter-family loans, were "primarily consumer debts." Although student loan debts are not per se consumer debts under 11 U.S.C.§ 101(8), if their primary purpose was for a personal, family or household purpose, such as maintaining a family's lifestyle in a particular manner, then they must be considered consumer debts under § 707(b). Debts are "primarily"consumer debts under§ 707(b) if more than half the dollar amount owed is consumer debt. The bankruptcy court also did not err in concluding that§ 707(b) is not unconstitutional under the equal protection and due process guarantees of the United States Constitution, and it is not void for vagueness. 

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35. Holaday v. Seay (In re Seay), 215 B.R. 780 (10th Cir. BAP 1997) (Boulden, J.)  (before Pusateri, Boulden & Robinson, JJ.) (Appeal from the United States Bankruptcy Court for the Western District of Oklahoma).

Appeal of two bankruptcy court judgments: (1) a judgment finding a debt to be dischargeable under 11 U.S.C.§ 523(a)(4); and (2) a judgment finding that the debtor's discharge should not be denied under 11 U.S.C.§727(a)(2)(A) or (a)(4)(A). Both judgments were AFFIRMED. A debtor does not act in a "fiduciary capacity" under§ 523(a)(4) based on a common law fiduciary relationship between members of a joint venture. Since there was no written agreement or statute creating a fiduciary relationship, the debtor was not acting in a "fiduciary capacity" and his debt was not excepted from discharge under§ 523(a)(4). Additionally, the creditor failed to prove the existence of a trust res as required under  § 523(a)(4). The bankruptcy court's findings that the debtor did not transfer property with an intent to defraud as required under§ 727(a)(2)(A), and that he did not make a false oath related to a material fact as required under§ 727(a)(4)(A), were not clearly erroneous.

36. The Employers Workers' Compensation Assoc. v. Kelley (In re Kelley), 215 B.R. 468 (10th Cir. BAP 1997) (Pusateri, J.) (before Pusateri, Boulden & Robinson, JJ.) (Appeal from the United States Bankruptcy Court for the Northern District of Oklahoma), appeal dismissed, No. 98-5008 (10th Cir. filed April 24, 1998).

A bankruptcy court judgement determining that a debt was not excepted from discharge under 11 U.S.C.§ 523(a)(4) and (6) was REVERSED in part, and the case was REMANDED for further proceedings. The debtor, an insurance agent who sold memberships in an employers' self-insurance group, used insurance premiums instead of remitting them to the plaintiff-insurance group. After the debtor filed Chapter 7, the insurance group sought to have the debt excepted from discharge under§ 523(a)(4) and (6) based on defalcation while acting in a fiduciary capacity, embezzlement or conversion. The bankruptcy court rejected the group's claims finding that the debtor was not acting in a fiduciary capacity, and that the elements of embezzlement and conversion had not been met. While the bankruptcy court's conclusion was correct, it failed to consider an Oklahoma statute which might have created the necessary fiduciary relationship.  Accordingly, the bankruptcy court's judgement was reversed in part and the case was remanded to the bankruptcy court to determine whether the statute applied.

37. In re Sims, 226 B.R. 284, 1997 WL 854793, BAP No. NM-97-022 (10th Cir. BAP filed Dec. 30, 1997) (per curiam) (before Clark, Pearson & Cornish, JJ.) (Appeal from the United States Bankruptcy Court for the District of New Mexico).

A bankruptcy court order appointing a trustee and eliminating the plan exclusivity period was AFFIRMED because the appointment of a trustee was in the best interest of creditors and other interests of the estate. Discussion of 11 U.S.C.§ 1104(a)(1) and (2). A strict cost-benefit analysis is not required in determining whether a trustee should be appointed under§ 1104(a)(2).

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38. In re Woods, 215 B.R. 623 (10th Cir. BAP) (Robinson, J.) (before Pusateri, Boulden & Robinson, JJ.) (Appeal from the United States Bankruptcy Court for the Western District of Oklahoma),  aff'd, 173 F.3d 770 (10th Cir.), cert. denied,528 U.S. 878 (1999). 

A bankruptcy court order granting a Chapter 11 trustee's motion to approve a sale of property postconfirmation, and denying a debtor's motion to require a bond and an accounting was AFFIRMED. The Court refused to consider certain issues related to the sale motion under the law of the case doctrine as a district court had already decided them. However, an order disallowing the debtors' request to bid at the sale did not violate due process as the debtors were afforded the protections of 11 U.S.C.§ 363 and the plan confirmation process. The fact that the trustee was not bonded at the time of the sale as required under 11 U.S.C.§ 322(a) did not invalidate the sale inasmuch as the debtors were bound under 11 U.S.C.§ 1141(a) to the provisions of a confirmed plan, which did not require the trustee to be bonded to conduct the sale, and case law interpreting§ 322(a) does not require a sale to be invalidated if a bond is not in place.

39. Andersen v. Higher Ed. Assistance Found. (In re Andersen), 215 B.R. 792 (10th Cir. BAP 1998) (Matheson, J.) (before McFeeley, C.J., and Cornish & Matheson, JJ.) (Appeal from the United States Bankruptcy Court  for the District of Kansas),  aff’d, 179 F.3d 1253 (10th Cir.), pet.  for rehearing en banc denied. No. 98-3049 (10th Cir. Filed Aug. 30, 1999)

A bankruptcy court order determining that a confirmed Chapter 13 plan containing a provision that the Chapter 13 debtor's student loan obligations were dischargeable as an "undue hardship" under 11 U.S.C.§ 523(a)(8)(B) was not binding as it was not a judicial determination of undue hardship was REVERSED, and the case was REMANDED for further proceedings. The creditor had notice of the confirmation of the plan and upon confirmation, the plan became binding on it and the issue of dischargeability under §523(a)(8)(B) was res judicata. The case was remanded to allow the bankruptcy court to determine whether the debtor was entitled to fees and costs under 11 U.S.C.§ 524.

40. Aspect Tech. v. Simpson (In re Simpson), 215 B.R. 885 (10th Cir. BAP 1998) (per curiam) (before Pearson, Robinson & Matheson, JJ.) (Appeal from the United States Bankruptcy Court for the Eastern District of Oklahoma).

A cross appeal was DISMISSED for lack of jurisdiction because the cross-appellant's notice of appeal was untimely under Fed. R. Bankr. 8002(a). Compliance with the timing requirements set forth in Rule 8002(a) is mandatory and jurisdictional, and the filing date of a notice of appeal is the date that it is received by the clerk of court, not the date that it is mailed. Extensions of time to file a notice of appeal are governed by Rule 8002, not Fed. R. Bankr. P. 9006, and, therefore, the cross-appellant could not seek an extension of time to file a notice of appeal as the time for requesting such an extension under Rule 8002 had expired.

41. In re Country Club Foods, Inc., 226 B.R. 284, 1998 WL 63558, BAP No. UT-97-033 (10th Cir. BAP filed Feb. 4, 1998) (Matheson, J.) (before McFeeley, C.J., and Pusateri & Matheson, JJ.) (Appeal from the United States Bankruptcy Court for the District of Utah).

A bankruptcy court order authorizing the Chapter 11 debtor's rejection of certain distributor agreements was AFFIRMED because the appellant failed to provide a record to the Court for review.

42. In re Sorrells, 218 B.R. 580 (10th Cir. BAP 1998) (Clark, J.)  (before McFeeley, C.J., and Clark & Pearson, JJ.) (Appeal from the United States Bankruptcy Court for the Western District of Oklahoma).

Leave was GRANTED under 28 U.S.C.§ 158(a)(3) to review an interlocutory order of the bankruptcy court denying a motion by the United States trustee to dismiss a case for lack of venue, the order was REVERSED, and the case was REMANDED to the bankruptcy court to allow it to determine whether the case should be dismissed or transferred to a judicial district in which venue was proper. If venue of a case is improper under 28 U.S.C.§ 1408, a bankruptcy court may not retain the case, but rather must transfer or dismiss the case to a district in which venue is proper under 28 U.S.C. § 1406(a) and Fed. R. Bankr. P. 1014. 28 U.S.C.§ 1412 is limited to providing for transfer of cases in which venue is proper in the first instance.

43. Savage v. Internal Revenue Service (In re Savage), 218 B.R. 126 (10th Cir. BAP 1998) (Cornish, J.) (before Clark, Pearson & Cornish, JJ.)  (Appeal from the United States Bankruptcy Court for the District of Wyoming), appeal dismissed, No. 98-8022 (10th Cir. filed July 8, 1998).

A bankruptcy court order finding that a portion of the debtor's tax debts were nondischargeable under 11 U.S.C.§ 507(a)(8)(A)(ii) and 523(a)(1)(A), and that the remainder of the debt was not excepted from discharge under 11 U.S.C.§ 523(a)(1)(B)(i) was AFFIRMED in part and REVERSED in part. Where the debtor did not file his tax returns for certain years in the proper place, the returns were not "filed" and, therefore, the tax debt for those years was nondischargeable under§ 523(a)(1)(B)(i). The debtor's tax returns for the remaining tax years were "filed," as they were filed in the proper place, and were "returns," even though the IRS had filed substitute returns as a result of the debtor's failure to file timely returns. Thus, the debtor's tax debt for those years was not excepted from discharge under§ 523(a)(1)(B)(i).

44. In re Theobald, 218 B.R. 133 (10th Cir. BAP 1998) (Boulden, J.) (before Pearson, Boulden & Cornish, JJ.)  (Appeal from the United States Bankruptcy Court for the District of New Mexico).

A bankruptcy court's order denying a secured creditor's motion requesting that the Chapter 7 debtors execute a deed on their mobile home and deliver it to the creditor in order to effectuate the surrender of the home was AFFIRMED. Although the debtors had filed a statement of intention, as required under 11 U.S.C.§ 521(2), which indicated that they would surrender the mobile home,§ 521(2) did not provide the creditor with any right to title in the property. Rather, that section is merely a notice provision, and the creditor was required to foreclose on the property in order to obtain title.

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45. In re Buckner, 218 B.R. 137 (10th Cir. BAP 1998) (Boulden, J.) (Matheson, J., concurring) (before Boulden, Cornish & Matheson, JJ.)  (Appeal from the United States Bankruptcy Court for the District of Kansas, reported at 211 B.R. 46; see In re Buckner, 165 B.R. 942 (D. Kan. 1994)), appeal dismissed, No. 98-3126 (10th Cir. filed July 20, 1998).

The bankruptcy court's orders in two cases, which were consolidated for review on appeal, rejecting the government a right to setoff monies due to the debtors under the Conservation Reserve Program against monies that the debtors owed to it based on certain prepetition claims under 11 U.S.C.§ 553(a) was REVERSED.  In the first case, In re Buckner, the bankruptcy court abused its discretion in refusing to apply a district court order allowing the United States a right to setoff as law of the case. In the second case, Tuttle v. United States (In re Tuttle), the bankruptcy court erred in determining that the government's debt to the debtor under the Conservation Reserve Program arose postpetition. Since both the government's debt to the debtor and the government's claim against the debtor arose prepetition, the debt and claim were subject to setoff under§ 553(a).

46. In re Berry, BAP No. 98-003 BAP No. NM-98-003 (10th Cir. BAP filed March 5, 1998)  (before Clark, Pearson & Matheson, JJ.)  (Appeal from the United States Bankruptcy Court for the District of New Mexico), appeal dismissed, No. 98-2099 (10th Cir. filed Aug. 20, 1998).

The Court DENIED the appellant's motion for leave to appeal an interlocutory order  pursuant to 28 U.S.C.§ 158(a)(3) setting aside a final decree and reopening a bankruptcy case that had been inadvertently closed, and DISMISSED the appeal. 

47. Dixon v. I.R.S. (In re Dixon), 218 B.R. 150 (10th Cir. BAP 1998)  (Pusateri, J.) (before McFeeley, C.J., and Pusateri & Clark, JJ.)  (Appeal from the United States Bankruptcy Court for the Western District of Oklahoma, reported at 209 B.R. 535 & 210 B.R. 610).

A bankruptcy court order declaring that the government's claim had been discharged under 11 U.S.C.§ 1328(a) was AFFIRMED. The debtors' confirmed Chapter 13 plan provided for the government's claim as a priority claim under 11 U.S.C.§ 507(a)(8)(A), but the government was not paid because it did not file a proof of claim for its prepetition claim. 11 U.S.C.§ 1305(a) did not excuse the government's failure to file a proof of claim, as that section only applies to postpetition claims. The government's claim was a priority claim under§ 507(a)(8)(A) as it was a prepetition claim, notwithstanding the fact that the debtors were not required to file a tax return until the postpetition period. The government also could not claim that it had unilaterally decided that its claim would be subject to different treatment as 11 U.S.C.§ 1322(a)(2) requires an "agreement" of the debtor and government. Finally, the Court rejected the government's argument that its claim had not been discharged because the Bankruptcy Code does not expressly provide for the discharge of claims where a proof of claim has not been filed. Although there is no such provision, claims for which a proof of claim has not been filed are subject to discharge.

48. In re McCarn, 218 B.R. 154 (10th Cir. BAP 1998) (Bohanon, J.) (before Pusateri, Bohanon & Pearson, JJ.)  (Appeal from the United States Bankruptcy Court for the District of Wyoming).

Leave was GRANTED under 28 U.S.C.§ 158(a)(3) to hear an appeal from a bankruptcy court order denying confirmation of a Chapter 13. The bankruptcy court's order denying confirmation was AFFIRMED because 11 U.S.C.§ 1322(c)(1) prohibited the debtors from curing a mortgage default pursuant to 11 U.S.C.§ 1322(b) as their home was sold at a foreclosure sale prior to the commencement of the case. The debtors' right to redeem the property under Wyoming law did not affect the application of§ 1322(c)(1). A right of redemption is separate from a right to cure under§ 1322(b), and the filing of a bankruptcy case neither revives nor expands a right of redemption. 

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49. Morris v. First Nat'l Bank & Trust of Phillipsburg (In re Taylor), 226 B.R. 284, 1998 WL 123027, BAP No. KS-97-064 (10th Cir. BAP filed March 19, 1998)  (Clark, J.) (before McFeeley, C.J., and Clark & Matheson, JJ.) (Appeal from the United States Bankruptcy Court for the District of Kansas).

A bankruptcy court order avoiding a creditor's unperfected interest in the debtors' automobile under 11 U.S.C.§ 544(a)(1) was AFFIRMED. The creditor argued that its interest was not avoidable because it was not a transfer of an interest of the debtor in property as the debtors had claimed the vehicle as exempt. The creditor could not assert the debtors' exemptions as a defense to the§ 544(a)(1) action, and, even if it could, the defense would fail because property claimed as exempt is nevertheless property of the debtor as of the petition date.  The Court refused to address issues raised by the creditor related to the propriety of the bankruptcy court's decision under 11 U.S.C.§ 551 because the creditor lacked standing to appeal as it did not have a direct stake in the outcome of the matter.

50. First Nat'l Bank & Trust Co. of ADA v. Nemecek (In re Nemecek), 226 B.R. 284, 1998 WL 165168, BAP Nos. EO-97-051 & EO-97-054 (10th Cir. BAP filed April 2, 1998) (Pearson, J.)(before Pusateri, Pearson & Matheson, JJ.) (Appeal from the United States Bankruptcy Court for the Eastern District of Oklahoma).

A bankruptcy court order regarding claims under 11 U.S.C.§ 523(a) and 727(a) was VACATED, and the case was REMANDED to the bankruptcy court for entry of separate findings of fact and conclusions of law as required under Fed. R. Bankr. P. 7052. 

51. In re Egbert Dev. , LLC, 219 B.R. 903 (10th Cir. BAP 1998)  (Clark, J.) (before Clark, Pearson & Cornish, JJ.)  (Appeal from the United States Bankruptcy Court for the District of Wyoming).

A motion for summary disposition was GRANTED and the appeal was DISMISSED because it was moot as the debtor-appellant failed to obtain a stay pending appeal of the bankruptcy court's order granting relief from the automatic stay. Since the creditor-appellee had conducted its foreclosure sale, the Court could not grant any effective relief on appeal. The fact that the debtor had a right to redeem the property under Wyoming law did not provide the Court with jurisdiction over the appeal. Case law regarding former Fed. R. Bankr. P. 805 and 11 U.S.C.§ 363(m) was inapplicable to a foreclosure sale conducted after a creditor obtained relief from the automatic stay.

52. In re Karbel, 220 B.R. 108 (10th Cir. BAP 1998) (Robinson, J.)  (before Bohanon, Boulden & Robinson, JJ.)  (Appeal from the United States Bankruptcy Court for the District of New Mexico).

A bankruptcy court order refusing to vacate an order confirming the debtor's Chapter 13 plan due to inadequate notice was AFFIRMED. The debtor's service of his plan on a creditor at the mailing address provided by the creditor was proper under Fed. R. Bankr. P. 7004(b)(3), the creditor had actual notice of the debtor's plan prior to the entry of the confirmation order, and the notice that it received satisfied due process requirements. The bankruptcy did not abuse its discretion in refusing to grant relief under Fed. R. Bankr. P. 9024 and Fed. R. Civ. P. 60(b).

53. Sholer v. Carmichael (In re PKR, P.C.), 220 B.R. 114 (10th Cir. BAP 1998)  (Pearson, J.) (before Bohanon, Pearson & Cornish, JJ.)  (Appeal from the United States Bankruptcy Court for the District of New Mexico).

A bankruptcy court order avoiding a postpetition transfer pursuant to 11 U.S.C.§ 549(a) was AFFIRMED. The Court rejected the argument that the transfer was not a transfer of the debtor's property as the property was held by the debtor under a constructive trust.  The Court also rejected the argument that the transfer was properly made in the ordinary course of business under 11 U.S.C.§ 1108, as that section does not permit the payment of prepetition debts.

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54. In re Spriggs, 219 B.R. 909 (10th Cir. BAP) (per curiam) (before McFeeley, C.J., and Boulden & Matheson, JJ.)  (Appeal from the United States Bankruptcy Court for the District of Kansas), aff'd without opinion, 166 F.3d 343 (10th Cir. 1998).

A bankruptcy court order disallowing a portion of a creditor's proof of claim seeking fees and costs incurred when it foreclosed on the debtor's property in violation of the automatic stay under 11 U.S.C.§ 362 was AFFIRMED. Equitable principles as set forth in Job v. Calder (In re Calder), 907 F.2d 953 (10th Cir. 1990) did not apply under the facts of the case.

55. In re Hill, 226 B.R. 284, 1998 WL 208809, BAP No. KS-97-099 (10th Cir. BAP filed April 20, 1998) (Matheson, J.) (before Bohanon, Boulden & Matheson, JJ.) (Appeal from the United States Bankruptcy Court for the District of Kansas).

A bankruptcy court order denying the debtor's motion to avoid a lien pursuant to 11 U.S.C.§ 522(f)(1) was AFFIRMED. A purchase money security interest in household goods was not transformed into a nonpurchase money security interest as required under§ 522(f)(1)(B) by the creditor's refinance of the transaction. Under Billings v. Avco Colorado Indus. Bank (In re Billings), 838 F.2d 405 (10th Cir. 1988), the parties' intent determines whether a refinanced debt will retain is purchase money character. The debtor did not supply any record regarding the parties intent and, therefore, the bankruptcy court's decision was affirmed.

56. In re Montgomery, 219 B.R. 913 (10th Cir. BAP 1998)  (McFeeley, C.J.) (before McFeeley, C.J., and Bohanon & Cornish, JJ.)   (Appeal from the United States Bankruptcy Court for the District of Kansas). , aff’d, 224 F.3d 1193 (10th Cir. 2000).

A bankruptcy court order denying the trustees' motions in several consolidated cases for turnover of earned income credits was REVERSED and REMANDED. Earned income credits are property of the estate under 11 U.S.C.§ 541(a)(1) and, therefore, the Chapter 7 debtors were required to turnover to the trustees those portions of the credits attributable to the prepetition portion of the year in which they accrued.

57. Austin v. Buck (In re Buck), 226 B.R. 284, 1998 WL 190531, BAP No. WY-98-004 (10th Cir. BAP filed April 22, 1998) (Clark, J.) (before Pusateri, Clark & Robinson, JJ.) (Appeal from the United States Bankruptcy Court for the District of Wyoming).

A bankruptcy court judgment order overruling a creditor's objection to the debtor's discharge under 11 U.S.C.§ 727(a)(4)(A) was AFFIRMED. The bankruptcy court's findings that the debtor's false oaths were not made "knowingly" and "willfully with intent to defraud," were not clearly erroneous.

58. Forrest v. Internal Revenue Service (In re Forrest), , 226 B.R. 284, 1998 WL 211964, BAP No. WO-97-101 (10th Cir. BAP filed April 30, 1998) (Clark, J.)  (before McFeeley, C.J., and Clark & Pearson, JJ.) (Appeal from the United States Bankruptcy Court for the Western District of Oklahoma).

A bankruptcy court judgment denying the debtor's motion for summary judgment and granting the Internal Revenue Service's cross-motion for summary judgment on the debtor's 11 U.S.C.§§ 522(h) and 547(b) actions was AFFIRMED. Even if the debtor has the power to avoid a transfer to the IRS pursuant to§§ 522(h) and 547(b), 11 U.S.C. § 522(c)(2)(B), as interpreted in Straight v. First Interstate Bank (In re Straight), 207 B.R. 217 (10th Cir. BAP 1997)[10], the property in question will nonetheless be liable for the IRS's debt if it is secured by a properly filed tax lien.

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59. Berger v. Buck (In re Buck), 220 B.R. 999 (10th Cir. BAP 1998)  (Pusateri, J.) (before Pusateri, Clark & Robinson, JJ.)   (Appeal from the United States Bankruptcy Court for the District of Wyoming).

A bankruptcy court order refusing to excuse a debt from discharge under 11 U.S.C. § 523(a)(6) was AFFIRMED. The bankruptcy court, applying then-existing Tenth Circuit case law, applied a less stringent standard for nondischargeability under§ 523(a)(6) than now applies under Kawaauhau v. Geiger, 118 S. Ct. 974 (1998). Since the debt was found to be dischargeable under the less strenuous, pre-Kawaauhau test, it could not be nondischargeable under Kawaauhau. The Court was not able to review the bankruptcy court's factual findings related to the dischargeability of the debt under a clearly erroneous standard because the plaintiff-appellant had not provided it with a complete transcript of the proceeding below. Finally, the Court rejected the debtor's argument that the bankruptcy court's order granting the plaintiff an extension of time to appeal under Fed. R. Bankr. P. 8002(c) was an abuse of discretion.

60. Payne v. Clarendon Nat'l Ins. Co. (In re Sunset Sales, Inc.), 220 B.R. 1005  (10th Cir. BAP 1998) (Boulden, J.) (before McFeeley, C.J., and Pearson & Boulden, JJ.) (Appeal from the United States Bankruptcy Court for the Western District of  Oklahoma), aff’d, 195 F.3d 568 (10th Cir. 1999).

A bankruptcy court judgment determining that certain transfers made to the defendants were avoidable under 11 U.S.C.§ 547(b) was   AFFIRMED. The Court had jurisdiction to hear the appeal because former 11 U.S.C.§ 546(a) (amended 1994) did not bar the plaintiff's avoidance action as it was commenced within two years of a liquidating trustee's appointment. The Court rejected the defendants' arguments that the transfers were not an interest of the debtor in property made on account of an antecedent debt owed by the debtor because the transfers were made by a successor in interest to the debtor. Under Oklahoma law and 11 U.S.C.§ 541(a), the debtor obtained all of the assets and liabilities of the successor and, therefore, the transfers made by the successor were those of the debtor for purposes of§ 547(b). The bankruptcy court did err in allowing the plaintiff to present evidence of insolvency, even though insolvency was not asserted in his complaint, it applied the correct standard for determining insolvency under § 547(b)(3), and its findings regarding insolvency were not clearly erroneous.  Furthermore, the bankruptcy court did not err in applying the one-year reach back period under§ 547(b)(4)(B) as the transfers in question provided a "cognizable benefit" to guarantors and codebtors of the debts. 11 U.S.C.§ 547(c)(1) did not apply as all of the transfers in question were late payments and, therefore, were not "in fact" substantially contemporaneous. The Court rejected the defendants' argument that even though the payments were late, they were contemporaneous because the defendants continued to provide "value." The transfers were also not protected under 11 U.S.C.§ 547(c)(2) because the defendants did not meet their burden of proof under§ 547(c)(2)(C). Finally,  the bankruptcy court correctly found that the transfers were not protected under 11 U.S.C.§ 547(c)(4).

61. In re Higgins, 220 B.R. 1022 (10th Cir. BAP 1998) (Robinson, J.)  (before Pusateri, Robinson & Matheson, JJ.) (Appeal from the United  States Bankruptcy Court for the Eastern District of Oklahoma).

A bankruptcy court order denying the appellant's motion pursuant to Fed. R. Bankr. P. 8002(c) was AFFIRMED as the bankruptcy court did not abuse its discretion in refusing to grant the appellant a 20-day extension of the appeals period. Moreover, the Court lacked jurisdiction to review the bankruptcy court's orders regarding the allowance of the creditor's claim because the appellant did not file a timely notice of appeal therefrom. The appellant's motion for an extension of time did not serve to toll the 10-day period applicable to the orders regarding the allowance of her claim.

62. Aspect Tech. v. Simpson (In re Simpson), 226 B.R. 284, 1998 WL 296331, BAP No. EO-97-050 (10th Cir. BAP filed June 8, 1998) (Pearson, J.)   (before Pearson, Robinson & Matheson, JJ.) (Appeal from the United States Bankruptcy Court for the Eastern District of Oklahoma).

Two bankruptcy court orders, one holding a state court award for compensatory damages for conversion to be nondischargeable and one holding a state court award for punitive damages based on either conversion or breach of contract to be nondischargeable, was REVERSED in part and AFFIRMED in part, and the matter was REMANDED to the bankruptcy court. The bankruptcy court's finding that the judgment for conversion was based on the debtor's intent to harm the creditor was not clearly erroneous and, therefore, its finding that the compensatory damages awarded for conversion were nondischargeable under 11 U.S.C.§ 523(a)(6) was affirmed. The bankruptcy court erred, however, in finding that punitive damage awards are per se nondischargeable. Under Cohen v. de la Cruz, 118 S. Ct. 1212 (1998) and 11 U.S.C.§ 523(a)(2), punitive damages may only be dischargeable if the underlying compensatory damages are dischargeable. The bankruptcy court erred in making its ruling on the dischargeability of the punitive damages award prior to determining whether the compensatory damages award was dischargeable. It was impossible to determine from the appellate record whether the punitive damages award was attributable to the conversion cause of action or the breach of contract cause of action and, therefore, the case was remanded to the bankruptcy court for further proceedings as to the dischargeability of the punitive damages judgment. The bankruptcy court's implicit rejection of the debtor's argument under the "clean hands doctrine" was not clearly erroneous.

63. Haughey v. Haughey (In re Haughey), 226 B.R. 284, 1998 WL 296018, BAP. No. EO-97-076 (10th Cir. BAP filed June 8, 1998) (Matheson, J.) (before Pusateri, Robinson & Matheson, JJ.) (Appeal from the United States Bankruptcy Court for the Eastern District of Oklahoma).

A bankruptcy court order holding that an alimony obligation was not excepted from discharge under 11 U.S.C.§ 523(a)(15) because the debtor did not have the ability to pay it was VACATED, and the matter was REMANDED to the bankruptcy court for further proceedings. The bankruptcy court based its decision regarding dischargeability on a budget that the debtor had submitted that included child support obligations, the amount of which had been contested by the debtor in state court and were the subject of an appeal.  The bankruptcy court erred in failing to consider the effect of the debtor's appeal on the child support obligations. If the debtor prevailed, and his child support obligations were  reduced, his ability to pay alimony to his former spouse may be feasible.

64. In re Abraham, 221 B.R. 782 (10th Cir. BAP 1998)  (Cornish, J.) (before Pusateri, Robinson & Cornish, JJ.)  (Appeal from the United States Bankruptcy Court for the District of Wyoming).

A bankruptcy court order partially disallowing debtors' counsel's application seeking compensation and reimbursement of expenses, and enjoining counsel from postconfirmation collection of the disallowed fees from the debtors was AFFIRMED. The bankruptcy court did not abuse its discretion in disallowing the fees under 11 U.S.C.§ 330 as the services rendered did not benefit the estate. Moreover, the bankruptcy court did not err in finding that the services did not benefit the debtors personally and, therefore, the injunction against postconfirmation collection was appropriate.

65. Payne v. Clarendon Nat'l Ins. Co. (In re Sunset Sales, Inc.), 222 B.R. 914 (10th Cir. BAP 1998) (Boulden, J.) (before McFeeley, C.J., and Pearson & Boulden, JJ.) (Appeal from the United States Bankruptcy Court for the Western District of  Oklahoma), aff’d, 195 F.3d 568 (10th Cir. 1999).

A motion for stay pending appeal to the United States Court of Appeals for the Tenth Circuit, and a motion to recall or stay the mandate that had been issued by the Court were DENIED. The Court had properly issued a mandate in this appeal pursuant to 10th Cir. BAP L.R. 8016-3 and, therefore, it was not appropriate to stay the mandate. Additionally, extraordinary circumstances did not exist to justify the recalling of the mandate. Since the mandate had been issued the Court no longer had jurisdiction over the appeal. Thus, it could not consider the appellants' motion for stay pending appeal.

66. In re Cook, 223 B.R. 782 (10th Cir. BAP 1998)    (Pusateri, J.) (before Pusateri, Robinson & Cornish, JJ.)  (Appeal from the United States Bankruptcy Court for the District of Wyoming), appeal dismissed, No. 98-8098 (10th Cir. filed March 9, 1999).

A bankruptcy court order disqualifying an attorney as counsel for the Chapter 7 trustee and requiring the attorney to disgorge all of the fees and expenses that he had previously been paid from the estate was AFFIRMED. The bankruptcy court did not err in disqualifying the attorney, who represented the trustee in several related Chapter 7 cases as well as creditors of one of the debtors, as he had an actual conflict of interest that barred his employment under 11 U.S.C.§ 327(a) and (c). The bankruptcy court also did not abuse its discretion under 11 U.S.C.§ 328(c) in ordering the attorney to disgorge the fees and expenses that he had been paid because the attorney failed to disclose that he was retained by the creditor clients under a contingency fee contract that gave him a direct pecuniary stake in the outcome of the disputes between the estate and his creditor clients.

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67. Sherman v. Rose (In re Sherman), 223 B.R. 555 (10th Cir. BAP 1998)  (Bohanon, J.) (before McFeeley, C.J., and Bohanon & Boulden, JJ.)  (Appeal from the United States Bankruptcy Court for the District of Wyoming).

A bankruptcy court judgment dismissing a complaint seeking to avoid a transfer under 11 U.S.C.§ 548(a)(2)(B) (which has since been redesignated as 11 U.S.C. § 548(a)(1)(A)) was REVERSED and the matter was REMANDED. A tax sale held in accordance with Wyoming law was not for "reasonably equivalent value." The Court refused to apply the rule in BFP v. Resolution Trust Corp., 511 U.S. 531 (1994), because the tax sale in question was not similar to the mortgage foreclosure sale conducted in that case. 

68. In re Dewey, 223 B.R. 559 (10th Cir. BAP 1998)   (Boulden, J.) (before McFeeley, C.J., and Bohanon & Boulden, JJ.)  (Appeal from the United States Bankruptcy Court for the District of Wyoming), aff’d without opinion, 202 F.3d 281, 1999 WL 1136744, (10th Cir. filed Dec. 13, 1999).

A bankruptcy court judgment sustaining an objection to the debtor's Chapter 13 plan on the basis that it failed to provide for the objecting party's 11 U.S.C.§ 507(a)(7) priority claim was AFFIRMED. The Court had jurisdiction over the order appealed under 28 U.S.C.§ 158(a)(1) despite the fact that it was from an order denying confirmation of a plan because, since the appeal had been filed, the bankruptcy court had confirmed a plan which provided for the priority claim to the extent that it was allowed on appeal. The bankruptcy court did not err in finding that certain codebts of the debtor and the objecting party, the debtor's former spouse, were "support" and, thus, entitled to priority under .§ 507(a)(7). In analyzing the definition of "support" in§ 507(a)(7), the Court relied on the definition of that word as it has been developed in relation to 11 U.S.C.§ 523(a)(5), because the language of the two sections are nearly identical.

69. In re Blagg, 223 B.R. 795 (10th Cir. BAP 1998) (Robinson, J.)  (Matheson, J., dissenting) (before Pusateri, Robinson & Matheson, JJ.) (Appeal from the United States Bankruptcy Court for the Northern District of Oklahoma, reported at 215 B.R. 79), appeal dismissed without opinion, 198 F.3rd 257, 1999 WL 909885, (10th Cir. filed Oct. 19, 1999).

A bankruptcy court order granting a motion to dismiss for improper venue and for sanctions was AFFIRMED, and an order awarding the trustee fees and expenses was REMANDED for further proceedings. The bankruptcy court did not abuse its discretion in finding that the trustee's motion to dismiss the debtors' Chapter 7 case was timely filed under Fed. R. Bankr. P. 1014(a). Furthermore, the court did not err in determining that a salaried individual's place of business is not a "place of business" under 28 U.S.C.§ 1408. Rather, in individual debtor cases, venue lies in the place of the debtor's residence or domicile. Since venue was improper, the bankruptcy court could not retain the case, and it did not abuse its discretion in dismissing the case, as opposed to transferring it to the proper venue. The bankruptcy court did not abuse its discretion in ordering sanctions against debtors' counsel under Fed. R. Bankr. P. 9011 (pre-1997 version) for improperly commencing the case in an improper venue or for misrepresenting the law because the sanctions were warranted and the amount of the sanctions was appropriate. However, since the debtors did not have an opportunity to respond to the fees and expenses requested  by the trustee, the order allowing such fees and costs was remanded for further proceedings.

70. In re Kline, 226 B.R. 284, 1998 WL 637276, BAP No. NM-98-009 (10th Cir. BAP filed Sept. 14, 1998)  (Bohanon, J.) (before Clark, Bohanon & Pearson, JJ.)  (Appeal from the United States Bankruptcy Court for the District of New Mexico).

A bankruptcy court order requiring the pro se Chapter 11 debtor to make adequate protection payments to a secured creditor was AFFIRMED. The creditor was entitled to adequate protection, and the form of adequate protection, as defined in 11 U.S.C. § 361, was solely with the bankruptcy court's discretion. The bankruptcy court could have terminated the stay under 11 U.S.C.§ 362(d)(1) due to the debtor's failure to propose adequate protection. The creditor was not required to turn over rents that he had collected from the property because the debtor had not commenced a 11 U.S.C.§ 542 action and, even if she had, the creditor would have been entitled to the rents as adequate protection to compensate him for his investment in the property. The bankruptcy court was also empowered under 11 U.S.C.§ 105(a) to enter a drop-dead order, requiring that the automatic stay terminate if the debtor failed to comply with its order or confirm a plan by a date-certain, and it did not abuse its discretion in so doing.

71. In re Long Shot Drilling, Inc., 224 B.R. 473 (10th Cir. BAP 1998) (Boulden, J.) (before McFeeley, C.J., and Pusateri & Boulden, JJ.) (Appeal from the United States Bankruptcy Court for the Western District of Oklahoma).

Appeals from an order confirming a Chapter 11 plan and an order granting a motion to modify the confirmed plan were DISMISSED under the doctrine of equitable or prudential mootness. The appellant failed to obtain a stay pending appeal of either order, the plan was substantially consummated, and the Court was unable to provide effective relief without adversely affecting third parties who are not parties to the appeals. 

72. Maya v. Las Cruces Truck & Equip. Serv. (In re Maya), 233 B.R. 176, 1998 WL 721233, BAP No. NM-98-013 (10th Cir. BAP filed Oct. 15, 1998)   (Matheson, J.) (before Bohanon, Robinson & Matheson, JJ.)  (Appeal from the United States Bankruptcy Court for the District of New Mexico).

An appeal from a bankruptcy court order granting the defendant-creditor's motion for nonsuit or directed verdict where the plaintiff-debtor failed to prove that she sustained any damages as a result of the defendant's violation of the automatic stay was AFFIRMED.  The plaintiff failed to provide a sufficient record for the Court to review as required under Fed. R. Bankr. P. 8006 and 10th Cir. BAP L.R. 8009-1(a). As such, the Court was unable to determine whether the bankruptcy court's factual findings under 11 U.S.C.§ 362(h) were clearly erroneous.

73. Diviney v. NationsBank (In re Diviney), 225 B.R. 762 (10th Cir. BAP 1998)   (Pusateri, J.) (before McFeeley, C.J., and Pusateri & Boulden, JJ.)  (Appeal from the United States Bankruptcy Court for the Northern District of  Oklahoma, reported at 211 B.R. 951).

A bankruptcy court order entered pursuant to 11 U.S.C.§ 362(h), awarding actual and punitive damages and attorney's fees, was AFFIRMED. The bankruptcy court did not err in determining that the creditor had violated the automatic stay under 11 U.S.C.§ 362(a) in a case which had been dismissed and was reinstated. Although the stay terminated when the debtors' case was dismissed under 11 U.S.C.§ 362(c), it was automatically reimposed when the bankruptcy court entered its order reinstating the case. Furthermore, the creditor's defenses related to a pre-confirmation order regarding a relief from stay stipulation were invalid as the order did not survive confirmation of the debtors' Chapter 13 plan under 11 U.S.C.§ 1327(a). The Court discusses the "willful" standard under§ 362(h), and distinguishes it from a stricter interpretation of "willful" applied under 11 U.S.C.§ 523(a)(6). Applying the less strict standard, the Court determined that the bankruptcy court did not err in determining that the creditor's actions were "willful." In addition, the bankruptcy court's imposition of punitive damages under§ 362(h) was appropriate, and the damages assessed, although high, were not excessive. 

74. Chevy Chase Bank FSB v. Kukuk (In re Kukuk), 225 B.R. 778 (10th Cir. BAP 1998) (Clark, J.) (before Clark, Pearson & Robinson, JJ.) (Appeal from the United States Bankruptcy Court for the Western District of Oklahoma).

A bankruptcy court order determining that a credit card debt related to cash advance debt was nondischargeable under 11 U.S.C.§ 523(a)(2)(A) was REVERSED and the matter was REMANDED. The use of a credit card creates an implied representation of an intent to repay the card, but not of an ability to repay the card. Thus, a credit card debt, whether for purchases or for cash advances, will be nondischargeable under§ 523(a)(2)(A) if, under all of the circumstances of the case, the debtor's implied representation as to his or her intent to repay the card is fraudulent, i.e., if the debtor had no intent to repay at the time that each charge was incurred.

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75. In re BYOC Int'l, Inc., 233 B.R. 176, 1998 WL 780435, BAP No. WO-97-103 (10th Cir. BAP filed Nov. 10, 1998) (McFeeley, C.J.) (before, McFeeley, C.J., and Pusateri & Boulden, JJ.) (Appeal from the United States Bankruptcy Court for the Western District of Oklahoma).

A bankruptcy court order allowing a claim against the debtor's owner on the basis that the owner was an alter ego of the debtor was REVERSED and the matter was REMANDED. There was insufficient evidence to support the bankruptcy court's findings that the doctrines of alter ego or reverse-piercing of the corporate veil should apply. The bankruptcy court relied on judicial estoppel to allow the claim, and this doctrine is not recognized in the Tenth Circuit.  

76. Loyd v. Community First State Bank (In re Hannah),233 B.R. 176, 1998 WL 787745, BAP No. WO-98-020 (10th Cir. BAP filed Nov. 13, 1998) (Pusateri, J.)  (before McFeeley, C.J., and Pusateri & Boulden, JJ.) (Appeal from the United States Bankruptcy Court for the Western District of Oklahoma), appeal dismissed for lack of jurisdiction, No. 98-6468 (10th Cir. filed April 26, 1999).

A bankruptcy court order, issued on motions for summary judgment, declaring that the debtor's interest in a trust was not property of her estate under 11 U.S.C.§ 541(c)(2) was REVERSED and the matter was REMANDED. Insufficient facts were provided to the bankruptcy court to allow it  to decide whether the trust in issue was a spendthrift trust under Nebraska law and, therefore, summary judgment was not appropriate. 

77. Smolen v. Hatley (In re Hatley), 227 B.R. 757 (10th Cir. BAP 1998)  (Robinson, J.) (before McFeeley, C.J., and Robinson & Matheson, JJ.)  (Appeal from the United States Bankruptcy Court for the Northern District of  Oklahoma, reported at 227 B.R. 753), aff’d, 194 F.3d 1320, 1999 WL 728066, No. 99-5003 (10th Cir. filed Sept. 16, 1999).

A bankruptcy court order refusing to except a debt from discharge under 11 U.S.C.  § 523(a)(4) was AFFIRMED. The bankruptcy court did not err in determining the lack of a fiduciary relationship.

78. In re Jones, 233 B.R. 176, 1998 WL 870341, BAP No. WY-98-015(10th Cir. BAP filed Dec. 15, 1998) (Cornish, J.) (before Clark, Robinson & Cornish, JJ.)  (Appeal from the United States Bankruptcy Court for the District of Wyoming).

A bankruptcy court order denying a motion to reconsider an order allowing a claim against the debtors was AFFIRMED. The debtors' motion to reconsider was to be treated as a motion under Fed. R. Civ. P. 60(b) as made applicable to bankruptcy proceedings under Fed. R. Bankr. P. 9024. Under standards applicable to Rule 60(b), the bankruptcy court did not abuse its discretion in denying the motion to reconsider. The Court did not have jurisdiction to consider the merits of the underlying order allowing the creditor's claim because the time to appeal that order under Fed. R. Bankr. P. 8002(b) had expired as it was not tolled by the filing of the debtors' motion to reconsider.

79. In re Dickerson, 227 B.R. 742 (10th Cir. BAP 1998) (Boulden, J.)  before Boulden, Robinson & Matheson, JJ.) (Appeal from the United States Bankruptcy Court for the Western District of Oklahoma).

A bankruptcy court order sustaining an objection to the debtor's claimed exemption under Oklahoma law for funds received as a result of an earned income credit was AFFIRMED. The funds were not "earnings from personal services" as required under Oklahoma law, but rather were more akin to a tax overpayment, which have been held not be "earnings."

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80. Park v. Rider (In re Rider), 233 B.R. 176, 1998 WL 879507, BAP No. UT-98-001 (10th Cir. BAP  filed Dec. 15, 1998) (Pusateri, J.) (before Pusateri, Pearson & Cornish, JJ.) (Appeal from the United States Bankruptcy Court for the District of Utah).

A bankruptcy court order excepting from discharge the debtor's obligation to pay attorney fees, costs and other expenses to his former spouse for certain custody litigation pursuant to 11 U.S.C.§ 523(a)(5) was AFFIRMED.

81. In re Parrin, 233 B.R. 176, 1998 WL 893155, BAP No. KS-97-055 (10th Cir. BAP filed Dec. 22, 1998) (Bohanon, J.) (before Bohanon, Boulden & Cornish, JJ.)  (Appeal from the United States Bankruptcy Court for the District of Kansas),   aff’d without opinion, 201 F.3d 448, 1999 WL 1054675, (10th Cir. filed Nov. 22, 1999). 

A bankruptcy court order finding that a motion to compel the debtors to appear at an examination pursuant to Fed. R. Bankr. P. 2004 in an insider's bankruptcy case did not violate the automatic stay under 11 U.S.C.§ 362(a)(1) was AFFIRMED. The action in the insider's case was not an act against the debtors, and the debtors were required to appear at the 2004 examination under Fed. R. Bankr. P. 9001(5)(A).

82. In re Fross, 233 B.R. 176, 1999 WL 26886, BAP No. KS-98-030 (10th Cir. BAP filed Jan. 15, 1999) (Boulden, J.) (before Bohanon, Boulden & Cornish, JJ.) (Appeal from the United States Bankruptcy Court for the District of Kansas, reported at 220 B.R. 405). APPEAL FILED

A bankruptcy court order, ruling that the individual Chapter 11 debtors' retention of exempt property did not violate the absolute priority rule set forth in 11 U.S.C.§ 1129(b)(2)(B)(ii), was REVERSED. The debtors' ownership interest in exempt property was junior to the interests of unsecured creditors and, therefore, the debtors' plan was not confirmable, as it was in violation of the absolute priority rule.

83. Household Bank, N.A. v. Sales (In re Sales), 228 B.R. 748 (10th Cir. BAP 1999) (Clark, J.) (before Clark, Pearson & Robinson, JJ.) (Appeal from the United States Bankruptcy Court for the Western District of Oklahoma).

A bankruptcy court order denying the debtor's motion for attorney's fees and costs pursuant to 11 U.S.C.§ 523(d) was REVERSED and the matter was REMANDED for findings consistent with the opinion. The bankruptcy court erred in failing to make any findings as to whether the creditor's dischargeability action against the debtor was "substantially justified," and it was clear from the record that the creditor's position was not justified. Under Fed. R. Bankr. P. 7036, the creditor, who did not answer the debtor's requests for admissions, was deemed to have admitted that it did not investigate its dischargeability complaint and that there was no basis for the complaint.

84. In re Parsons, 233 B.R. 176, 1999 WL 41835, BAP No. NM-98-038 (10th Cir. BAP filed Jan. 22, 1999) (Bohanon, J.) (before Clark, Bohanon & Pearson, JJ.)  (Appeal from the United States Bankruptcy Court for the District of New Mexico).

A bankruptcy court order denying the debtors' motion to avoid a creditor's judgment lien in part pursuant to 11 U.S.C.§ 522(f) was REVERSED and the matter was REMANDED. Applying the valuations found by the bankruptcy court, the lien impaired the debtors' exemption under the formula set forth in§ 522(f)(2).

85. In re Davis239 B.R. 573 (10th Cir. BAP 1999) (Robinson, J.) (before McFeeley, C.J., and Clark & Robinson, JJ.) (Appeal from the United States Bankruptcy Court for the Eastern District of Oklahoma), reported at 218 B.R. 1777).

A bankruptcy court order denying confirmation of the debtor's Chapter 13 plan and dismissing his case was AFFIRMED. The bankruptcy court's decision that the debtor's plan had been proposed in bad faith in violation of 11 U.S.C.§ 1325(a)(3) was not clearly erroneous, and its dismissal of the case under 11 U.S.C.§ 1307(c) for cause was not an abuse of discretion. The trustee in the debtor's earlier Chapter 7 case was a "party in interest" under 11 U.S.C.§ 1324, with standing to object to the debtor's plan.

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86. Joseph v. Lindsey (In re Lindsey), 229 B.R. 797 (10th Cir. BAP 1999)  (Cornish, J.) (before Pusateri, Pearson & Cornish, JJ.)   (Appeal from the United States Bankruptcy Court for the District of Utah).

A bankruptcy court order finding the appellant-plaintiff in contempt for failing to comply with a discovery order and dismissing his adversary proceeding with prejudice was AFFIRMED. Dismissal of the action due to the appellant-plaintiff's failure to respond to the appellee-debtor's discovery requests was appropriate under Fed. R. Bankr. P. 7037. The appellant-plaintiff did not have the right to refuse to answer the discovery requests under a Fifth Amendment privilege. The appellee-debtor's motion for sanctions under Fed. R. Bankr. P. 8020 was DENIED because the appeal was not frivolous.

87. Manchester v. Annis (In re Annis), 229 B.R. 802 (10th Cir. BAP 1999)  (Matheson, J.) (before Pusateri, Clark & Matheson, JJ.) (Appeal from the United States Bankruptcy Court for the Western District of Oklahoma), aff’d, 232 F.3d 749 (10th Cir. 2000).

A bankruptcy court order determining that the debtor's tax refunds were exempt "earnings" under Oklahoma Statute tit. 31,§ 1.1.A was REVERSED. Tax refunds are not "earnings."

88. King v. King (In re King), 233 B.R. 176, 1999 WL 83927, BAP No. KS-98-036 (10th Cir. BAP  filed Feb. 18, 1999) (Cornish, J.) (before Bohanon, Boulden & Cornish, JJ.) (Appeal from the United States Bankruptcy Court for the District of Kansas).

A bankruptcy court order determining that a debt for prepetition child support was nondischargeable under 11 U.S.C.§ 523(a)(5) was AFFIRMED. Child support payments are property of the child and, therefore, the debtor's former spouse's Chapter 7 case did not constitute an "assignment" of the payments under§ 523(a)(5)(A). The Court discusses the interplay between 11 U.S.C.§522(d)(10)(D) and 541(b)(1). Sanctions under Fed. R. App. P. 38 or Fed. R. Bankr. P. 8020 were not merited.

89. Tomlins v. BRW Paper Co. (In re Tulsa Litho Co.), 229 B.R. 806 (10th Cir. BAP 1999) (McFeeley, C.J.) (before McFeeley, C.J., and Clark & Bohanon, JJ.) (Appeal from the United States Bankruptcy Court for the Northern District of Oklahoma).

A bankruptcy court order dismissing a complaint seeking to avoid a preferential transfer was AFFIRMED. The bankruptcy court did not err in determining that the transfer fell within the ordinary course of business exception pursuant to 11 U.S.C.§ 547(c)(2).

90. Vann v. U.S. Dept. of Education (In re Vann), 233 B.R. 176, 1999 WL 111925, BAP No. KS-98-081 (10th Cir. BAP filed March 4, 1999)  (Matheson, J.) (before Clark, Bohanon & Matheson, JJ.)  (Appeal from the United States Bankruptcy Court for the District of Kansas).

The Court AFFIRMED a bankruptcy court order awarding the debtors sanctions pursuant to 11 U.S.C.§ 362(h) due to the Department of Education's willful violation of the automatic stay, and finding that the debtors' obligations to the Department of Education were not discharged pursuant to 11 U.S.C.§ 523(a)(8)(B) based on the terms of their confirmed Chapter 13 plan. The Court adopted the bankruptcy court's findings of fact and conclusions of law.

91. Snyder v. Janes (In re Janes), 233 B.R. 176, 1999 WL 128826, BAP No. KS-98-060(10th Cir. BAP filed March 5, 1999) (Bohanon, J.) (before McFeeley, C.J. and Bohanon & Matheson, JJ.) (Appeal from the United States Bankruptcy Court for the District of Kansas), appeal dismissed, No. 99-3114 (10th Cir. filed May 17, 1999).

A bankruptcy court order dismissing a complaint was AFFIRMED because the appellant failed to provide an adequate record for review.

92. In re Coats, 232 B.R. 209 (10th Cir. BAP 1999) (Robinson, J.) before Clark, Pearson & Robinson, JJ.) (Appeal from the United States Bankruptcy Court for the Eastern District of Oklahoma).

A bankruptcy court order denying a motion to avoid a judicial lien under 11 U.S.C.  522(f) was REVERSED and the matter was REMANDED. Under a recent amendment to Oklahoma law, judicial liens attach to a debtor's homestead; thus, the lien may be avoided under § 522(f). Section 522(f) preempts state law in determining whether a judicial lien impairs an exemption and may be avoided.

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93. In re Hughes, 233 B.R. 176, 1999 WL 232672, BAP No. EO-98-086 (10th Cir. BAP filed April 15, 1999) (per curiam) (before McFeeley, C.J., and Clark & Pearson, JJ.) (Appeal from the United States Bankruptcy Court for the Eastern District of Oklahoma).

For the reasons set forth in In re Coats, 232 B.R. 209 (10th Cir. BAP 1999), a bankruptcy court order denying the debtor's motion pursuant to 11 U.S.C. § 522(f) was REVERSED and the matter was REMANDED.

94. McCart v. Jordana (In re Jordana), 232 B.R. 469 (10th Cir. BAP 1999) (Pearson, J.) (before Clark, Pearson & Robinson, JJ.) (Appeal from the United States Bankruptcy Court for the Western District of Oklahoma). , aff’d without opinion,216 F.3d 1087, 2000 WL 783401 (10th Cir. filed June 20, 2000)

Bankruptcy court orders (1) denying the debtor's motion to avoid a judicial lien pursuant to 11 U.S.C. § 522(f), and (2) granting a motion for summary judgment and excepting a debt from the debtor's discharge under 11 U.S.C. § 523(a)(2)(A) and (B) were AFFIRMED. At to (1), under former Oklahoma law applicable in this case, judicial liens do not attach to exempt property. Thus, the lien was not avoidable under § 522(f). As to (2), the bankruptcy court held that a default judgment against the debtor collaterally estopped him from relitigating issues of fraud under § 523(a)(2)(A) and (B). The Court held that collateral estoppel applied to the default judgment. The issuance of the default judgment and its preclusive effect did not deprive the debtor of due process. The bankruptcy court also did not err in holding treble damages against the debtor to be nondischargeable under § 523(a)(2)(A).

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95. Bailey v. Ogden (In re Ogden), 251 B.R. 441, 1999 WL 282732, BAP No. UT-98-042 (10th Cir. BAP filed April 30, 1999) (Pusateri, J.) (Pearson, J., dissenting) (before Pusateri, Pearson & Cornish, JJ.) (Appeal from the United States District Court for the District of Utah).

A bankruptcy court order partially granting a trustee's motion for summary judgment, denying the debtor's discharge under 11 U.S.C. § 727(a)(3) and (a)(4)(A), was REVERSED and REMANDED. Although the bankruptcy court only ruled on two of the trustee's three causes of action, the order appealed was a final, appealable under as required under 28 U.S.C. § 158(a)(1). The bankruptcy court erred in granting summary judgment under § 727(a)(3) because there existed questions of fact as to whether the debtor failed to keep records or if he was justified in not doing so. Also, the bankruptcy court erred in granting summary judgment under § 727(a)(4)(A) because there existed questions of fact as to whether the debtor knowingly and fraudulently made a false oath.

96. In re Pomodoro Restaurant, 251 B.R. 441, 1999 WL 282735, BAP No. UT-98-045 (10th Cir. BAP filed May 3, 1999) (Robinson, J.) (before Pearson, Robinson, & Cornish, JJ.) (Appeal from the United States Bankruptcy Court for the District of Utah).

A bankruptcy court's orders denying a lessor's motion for relief from stay and granting the debtor's motion to extend its time to assume or reject a nonresidential real property lease were AFFIRMED. The Court refused to consider whether the lease was exempt from the automatic stay because the issue had been waived on appeal as it had not been raised before the bankruptcy court. The bankruptcy court's conclusion that "cause" did not exist for lifting the automatic stay under 11 U.S.C. § 362(d) was not an abuse of discretion as the debtor's case was not filed in bad faith. In addition, the bankruptcy court's adequate protection award was not clearly erroneous.

97. In re Christie, 233 B.R. 110 (10th Cir. BAP 1999) (Pusateri, J.) (before Pusateri, Bohanon, & Cornish, JJ.)  (Appeal from the United States Bankruptcy Court for the District of Wyoming).

A bankruptcy court order denying the debtors' motion to compel the Chapter 7 trustee to withdraw a tax refund intercept and for turnover of any funds intercepted was REVERSED and the matter was REMANDED. The estate was not entitled to the refund because it was obtained as the result of the debtors' payment of their taxes with postpetition earnings and a postpetition loan. As a result, the refund was not property of the estate under 11 U.S.C. § 541(a)(1), and the earnings that paid the taxes were was expressly excluded from property of the estate under 11 U.S.C. § 541(a)(6).

98. In re Fletcher, 251 B.R. 441, 1999 WL 379089, BAP No. EO-90-007 (10th Cir. BAP filed May 25, 1999) (per curiam) (before Pusateri, Clark, & Pearson, JJ.) (Appeal from the United States Bankruptcy Court for the Eastern District of Oklahoma).

For the reasons set forth in In re Coats, 232 B.R. 209 (10th Cir. BAP 1999), a bankruptcy court order denying the debtors’ motion pursuant to 11 U.S.C. § 522(f) was REVERSED and the matter was REMANDED.

99. Jubber v. Hatfield (In re Briggs), 251 B.R. 441, 1999 WL 513842, BAP No. UT-99-003 (10th Cir. BAP filed June 24, 1999) (Bohanon, J.) (before Bohanon, Robinson, & Cornish, JJ.) (Appeal from the United States Bankruptcy Court for the District of Utah).

A bankruptcy court judgment avoiding a transfer of two parcels of real property pursuant to 11 U.S.C. § 544(a)(3) was AFFIRMED. The trustee had the rights of a bona fide purchaser of real property because he did not have actual or constructive notice of the transfers on the debtor’s petition date. Although the real property was exempt under Arizona law and, therefore, immune from forced sale, the trustee’s sale of the property pursuant to 11 U.S.C. § 363(h) was appropriate because the debtor did not timely object to the sale.

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100. In re Olsen, 251 B.R. 441, 1999 WL 513846, BAP No. UT-98-088 (10th Cir. BAP filed June 24, 1999) (Cornish, J.) (before Bohanon, Robinson, & Cornish, JJ.) (Appeal from the United States Bankruptcy Court for the District of Utah).

A bankruptcy court order excusing the Chapter 7 trustee’s compliance with 11 U.S.C. § 704(7) was AFFIRMED. The debtor, who requested recordings of a Fed. R. Bankr. P. 2004 examination, did not show good cause for her request and, therefore, the bankruptcy court did not abuse its discretion in excusing the trustee from producing the recordings under § 704(7). The trustee also was not required to produce the recordings under the Freedom of Information Act, 5 U.S.C. § 552, because the debtor’s request was strictly personal and was not for information regarding government operations. Furthermore, the trustee was not a government agency under the 5 U.S.C. § 551, or under common law definitions of "agency."

101. In re Denton, 251 B.R. 441, 1999 WL 513840, BAP No. WO-98-084 (10th Cir. BAP filed June 24, 1999) (Boulden, J.) (before Boulden, Matheson, & Krieger, JJ.) (Appeal from the United States Bankruptcy Court for the Western District of Oklahoma).

A bankruptcy court order denying a motion to remove the Chapter 7 trustee was REVERSED and the matter was REMANDED, because the bankruptcy court failed to hold a hearing on the motion or to make findings of fact or conclusions of law as required under Fed. R. Bankr. P. 7052. The Court DISMISSED the appeal as it related to the portion of the bankruptcy court’s order denying the appellants’ motion to compel the trustee to turnover documents, because the Court lacked jurisdiction under 28 U.S.C.  § 158(a)(1), and leave to appeal under 28 U.S.C. § 158(a)(3) was not appropriate.

102. Rushton v. E & S Int’l Enterps., Inc. (In re Eleva, Inc.), 235 B.R. 486 (10th Cir. BAP 1999) (Cornish, J.) (before Bohanon, Robinson, & Cornish, JJ.) (Appeal from the United States Bankruptcy Court for the District of Utah).

A bankruptcy court judgment avoiding a transfer pursuant to 11 U.S.C. § 547(b) was AFFIRMED. 11 U.S.C. § 547(c)(4) was not a defense to the preferential transfer because the creditor extended new value to the debtor prior to the debtor’s transfer. Furthermore, the creditor’s forbearance of its right to stop shipment under state law was not "new value" under § 547(c)(4).

103. Mitsubishi Motors Credit of Am., Inc. v. Longley (In re Longley), 235 B.R. 651 (10th Cir. BAP 1999) (Krieger, J.) (before McFeeley, C.J., and Boulden & Krieger, JJ.) (Appeal from the United States Bankruptcy Court for the Northern District of Oklahoma).

A bankruptcy court judgment excepting a secured creditor’s claim from discharge under 11 U.S.C. § 523(a)(6) was REVERSED. The debtor, who relinquished title of the creditor’s collateral at gunpoint, did not "willfully" injure the creditor because there was no evidence that when he gave title he intended to injure the creditor’s lien interest.

104. In re King, 235 B.R. 658 (10th Cir. BAP 1999) (per curiam) (Appeal from the United States Bankruptcy Court for the Northern District of Oklahoma).

An Appellee’s election have appeal heard in the district court was GRANTED, and the appeal was transferred to the district court. An election to have an appeal heard by the district court, as opposed to the bankruptcy appellate panel, is jurisdictional and, therefore, the Court will review sua sponte whether a proper election has been made. The time for filing an election under 28 U.S.C. § 158(c)(1)(B) is thirty days from the date that the bankruptcy court serves the notice of appeal pursuant to Fed. R. Bankr. 8004.

105. In re Hartley, BAP No. WY-98-85(10th Cir. BAP filed July 19, 1999)  (before Clark, Bohanon, & Pearson, JJ.) (Appeal from the United States Bankruptcy Court for the District of Wyoming), appeals dismissed, Nos. 99-8067 & 99-8073 (10th Cir. filed Oct. 13, 1999).

Appellee’s request for sanctions pursuant to Fed. R. Bankr. P. 8020 was DENIED. 

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106.    In re John V. Francks Turkey Co., 251 B.R. 441, 1999 WL 565883, BAP No. UT-98-066(10th Cir. BAP filed Aug. 2, 1999) (Robinson, J.) (before Bohanon, Robinson, & Cornish, JJ.) (Appeal from the United States Bankruptcy Court for the District of Utah).

A bankruptcy court order confirming the debtor’s Chapter 12 plan was AFFIRMED. The plan provided the debtor’s secured creditor with the present value of its claim as required under 11 U.S.C. § 1225(a)(5)(B). The bankruptcy court did not abuse its discretion in allowing the debtor to pay the creditor over a 25-year period, and it properly applied a contract rate of interest. The bankruptcy court’s finding that the plan was feasible under 11 U.S.C. § 1225(a)(6) was not clearly erroneous.

107. In re Francks, 251 B.R. 441, 1999 WL 565893, BAP No. UT-98-064(10th Cir. BAP filed Aug. 2, 1999) (Robinson, J.) (before Bohanon, Robinson, & Cornish, JJ.) (Appeal from the United States Bankruptcy Court for the District of Utah).

A bankruptcy court order confirming the debtors’ Chapter 12 plan was REVERSED and the matter was REMANDED. Pursuant to 11 U.S.C. § 109(f), the debtors were ineligible for relief under Chapter 12 because they did not qualify as "family farmers" as that term is defined in 11 U.S.C. § 101(18)(A).

108. Patterson v. Washita State Bank (In re Denton), 236 B.R. 418 (10th Cir. BAP 1999) (Matheson, J.) (before Boulden, Matheson, & Krieger, JJ.) (Appeal from the United States Bankruptcy Court for the Western District of Oklahoma), motion for rehearing denied, BAP No. 98-053 (10th Cir. BAP filed Aug. 26, 1999).

The Court DISMISSED an appeal from a bankruptcy court order denying a motion to remand or for abstention due to lack of appellate jurisdiction. The order appealed was not a "final" order proper for appeal under 28 U.S.C. § 158(a)(1) or the collateral order doctrine, and leave to appeal the order under 28 U.S.C. § 158(a)(3) was not appropriate.

109. Abboud v. Abboud (In re Abboud), 237 B.R. 777 (10th Cir. BAP 1999) (Boulden, J.) (before Pusateri, Boulden, & Robinson, JJ.)   (Appeal from the United States Bankruptcy Court for the Northern District of Oklahoma, reported at 232 B.R. 793).

A bankruptcy court judgment allowing a proof of claim over the debtor’s objection was AFFIRMED. The creditor’s claim was based on a valid state court judgment, and the bankruptcy court was prevented under the Rooker-Feldman doctrine from reversing or vacating that judgment.

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110. In re Rivermeadows Assocs., Ltd., 237 B.R. 492 (10th Cir. BAP 1999) (Clark, J.) (before Clark, Bohanon, & Pearson, JJ.) (Appeal from the United States Bankruptcy Court for the District of Wyoming).

A bankruptcy court order disallowing certain claimants’ proofs of claims was AFFIRMED. The claims sought attorneys’ fees incurred in defending against an avoidance action commenced against each of the claimants by the Chapter 7 trustee. The basis for allowance of the fees was a contract provision allowing fees in the event that either party to the contract was required to enforce its provisions against another party. The avoidance action was not within the terms of the contract provision, as the trustee was not a "party" under the contract, he was not asserting a claim of the debtor under the contract, and he was not seeking to enforce contract provisions.

111. In re Dewey, 237 B.R. 783 (10th Cir. BAP 1999) (Bohanon, J.) (before Clark, Bohanon, & Pearson, JJ.)(Appeal from the United States Bankruptcy Court for the District of Wyoming).

A bankruptcy court order denying a final request for fees and costs by the Chapter 13 debtor’s attorney was AFFIRMED. The bankruptcy court did not err in determining that the debtor’s plan would not have been confirmable under the best interests of creditors test set forth in 11 U.S.C. § 1325(a)(4) if the attorney had disclosed his fees and costs at the time of the confirmation hearing. The bankruptcy court also did not err in refusing to treat its confirmation order as res judicata as to the plan’s feasibility. While the appellant’s argument was better characterized as an offensive use of collateral estoppel, the bankruptcy court did not abuse its discretion in failing to apply this doctrine given the circumstances of the case.

112. In re Young, 237 B.R. 791 (10th Cir. BAP 1999) (McFeeley, C.J.) ((before McFeeley, C.J., and Boulden & Matheson, JJ) (Appeal from the United States Bankruptcy Court for the Western District of Oklahoma). , aff’d on other grounds, 237 F.3d 1168 (10th Cir. 2001).

Two bankruptcy court orders, one confirming the debtor’s Chapter 13 plan and the other denying a motion for a new trial to vacate the confirmation order, were AFFIRMED. In so doing, the Court refused to consider whether a debtor may receive two discharges in one case by filing a Chapter 7 petition, obtaining a discharge, and then converting its case to Chapter 13 and obtaining confirmation of a plan. This issue would have been properly considered in an appeal from the order converting the debtor’s case. Since that order was not timely appealed under Fed. R. Bankr. P. 8002, the court lacked appellate jurisdiction to consider it. The bankruptcy court’s conclusion that the plan was filed in good faith as required under 11 U.S.C. § 1325(a)(3) was not in error. The proposal of a 3-year plan is not per se bad faith. Furthermore, the totality of the circumstances indicated that the debtor’s plan was proposed in good faith even though the appellant’s claim, which would be nondischargeable in Chapter 7, was to receive a de minimis payment under the plan. The bankruptcy court also did not err in determining that the debtor was devoting all of his disposable income to the plan as required under 11 U.S.C. § 1325(b)(1)(B). Finally, the bankruptcy court correctly decided that the appellant’s motion for a new trial to vacate the confirmation order was untimely because it was not filed within 180 days of the confirmation order as required by 11 U.S.C. § 1330(a). Section 1330(a) is the sole authority for revocation of a confirmation order, and Fed. R. Civ. P. 60(b), made applicable by Fed. R. Bankr. P. 9024 does not apply.

113. In re Trudeau, 237 B.R. 803 (10th Cir. BAP 1999) (Pearson, J.) (before Clark, Bohanon, & Pearson, JJ.) (Appeal from the United States Bankruptcy Court for the District of Wyoming), motion for rehearing denied, No. 98-21647 (10th Cir. BAP filed Sept. 29, 1999), appeal dismissed, No. 99-8096 (10th Cir. filed Feb. 14, 2000)

A bankruptcy court order holding that an earned income credit was property of the debtor’s estate under 11 U.S.C. § 541(a), and denying a claimed exemption in the credit under Wyoming law and 15 U.S.C. § 1673 was AFFIRMED.

114. Schottler v. Schottler (In re Schottler),251 B.R. 441, 1999 WL 766100, BAP No. KS-99-026 (10th Cir. BAP filed Sept. 28, 1999) (Matheson, J.) (before McFeeley, C.J. and Cornish & Matheson, JJ.) (Appeal from the United States Bankruptcy Court for the District of Kansas).

A bankruptcy court order determining that a debt owed by the debtor to his former spouse was nondischargeable under 11 U.S.C. § 523(a)(15) was AFFIRMED. The Court refused to address certain issues, finding that they had been waived on appeal as they had not been raised below. The Court also refused to consider certain facts which the appellant failed to request that the bankruptcy court take judicial notice of under Fed. R. Evid. 201(c).

115. Peterson v. Student Loan Marketing Assoc. (In re Peterson), 251 B.R. 441, 1999 WL 977069, BAP No. KS-99-022 (10th Cir. BAP filed Oct. 25, 1999) (Boulden, J.) (before McFeeley, C.J., and Boulden & Cornish, JJ.) (Appeal from the United States Bankruptcy Court for the District of Kansas).

A bankruptcy court judgment finding certain student loan debts nondischargeable under 11 U.S.C. §§ 523(a)(8) and 1328(a)(2) was REVERSED. The debts were discharged pursuant to a final order expressly discharging the debts. Although the final discharge order was contrary to §§ 523(a)(8) and 1328(a)(2), the creditor was bound by it because the order was served on the creditor and it failed to timely contest it.

116. In re Kopexa Realty Venture Co., 240 B.R. 63 (10th Cir. BAP 1999) (McFeeley, C.J.) (before McFeeley, C.J., and Boulden & Cornish, JJ.) (Appeal from the United States Bankruptcy Court for the District of Kansas).

An appeal from a bankruptcy court judgment denying a motion related to the attempted election of a Chapter 7 trustee was DISMISSED because the appellant, a general partner of the debtor who, under Fed. R. Bankr. P. 9001(5)(B), was considered to be the debtor, lacked standing to contest the validity of a trustee election. The appellant also had no standing to pursue the appeal as a creditor of the debtor because under 11 U.S.C. § 702(a)(3) he could not have participated in any election inasmuch as he was an "insider."

117. In re Clifton, 251 B.R. 441, 1999 WL 1018177, BAP No. EO-99-047 (10th Cir. BAP filed Nov. 4, 1999) (Pusateri, J.) (before Pusateri, Boulden, and Matheson, JJ.) (Appeal from the United States Bankruptcy Court for the Eastern District of Oklahoma).

A bankruptcy court order confirming the debtor’s Chapter 13 plan over the appellant’s objection was AFFIRMED. 11 U.S.C. § 1325(a)(3) was not explicitly raised in the bankruptcy court and, therefore, it could not be considered by the Court on appeal. The case was factually distinguishable from Pioneer Bank v. Rasmussen (In re Rasmussen), 888 F.2d 703 (10th Cir. 1989) (per curiam). Finally, the appellant’s argument that 11 U.S.C. § 1325(a)(4) was not met because he would be paid less under the debtors’ confirmed plan than he would in Chapter 7 in light of the fact that his debt would not be dischargeable in a Chapter 7 case was invalid.

118. In re Thompson, 240 B.R. 776 (10th Cir. BAP 1999) (Cornish, J.) (before McFeeley, C.J., and Boulden & Cornish, JJ.) (Appeal from the United States Bankruptcy Court for the District of Kansas).

A bankruptcy court order denying confirmation of the debtor’s Chapter 13 plan was AFFIRMED. The order appealed was a "final" order under 28 U.S.C. § 158(a)(1) inasmuch as it effectively denied a motion to avoid a lien on the debtor’s homestead. The debtor was collaterally estopped from contesting the validity of a lien in the bankruptcy court where a state court had expressly determined that the agreement giving rise to the lien was valid. The lien in question was not avoidable under 11 U.S.C. § 522(f) because it was not a "judicial lien" as that term is defined under 11 U.S.C. § 101(36).

119. In re Fox, 241 B.R. 224 (10th Cir. BAP 1999) (McFeeley, C.J.) (before McFeeley, C.J., and Boulden & Cornish, JJ.) (Appeal from the United States Bankruptcy Court for the District of Kansas).

An appeal from an order denying a motion to convert or dismiss a Chapter 11 case was DISMISSED because the Court lacked appellate jurisdiction. The order appealed was not a "final" order as that term is defined for purposes of 28 U.S.C. § 158(a)(1) or the collateral order doctrine, and it was not an appealable interlocutory order under 28 U.S.C. § 158(a)(3). The fact that the order appealed stated that it was entered pursuant to Fed. R. Bankr. P. 9021 did not make the order a "final" order for purposes of appeal.

120. Mather v. BancFirst (In re Guthrie), 251 B.R. 441, 1999 WL 1127623, BAP No. EO-99-018 (10th Cir. BAP filed Dec. 9, 1999) (Clark, J.) (before Pusateri, Clark, and Brumbaugh, JJ.) (Appeal from the United States Bankruptcy Court for the Eastern District of Oklahoma).

A bankruptcy court judgment in favor of the Chapter 7 trustee avoiding certain transfers pursuant to 11 U.S.C. § 547(b) was AFFIRMED. The parties stipulated that all of the elements of § 547(b) had been met, and the bankruptcy court’s conclusion that the creditor had not met its burden under § 547(c)(2)(B) was not clearly erroneous. The Court questions, but refuses to resolve in light of the parties’ stipulation, whether § 547(b)(5) is met when a creditor is fully secured by non-estate property.

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121. Adams v. Greenpoint Credit Corp. (In re Earls) 243 B.R. 101 (10th Cir. BAP 1999) (Pusateri, J.) (before Pusateri, Clark, & Brumbaugh, JJ.) (Appeal from the United States Bankruptcy Court for the Eastern District of Oklahoma) , aff’d without opinion, 232 F.3d 901, 2000 WL 1480265 (10th Cir. filed Oct. 6, 2000).

A bankruptcy court judgment in favor of the Chapter 7 trustee avoiding a transfer pursuant to 11 U.S.C. § 547(b) was AFFIRMED. Under Oklahoma law, a mobile home is a "vehicle" and perfection of an interest therein is accomplished by the filing of a lien entry form, not under the automatic perfection provisions of Article 9 of the Uniform Commercial Code, as adopted in Oklahoma. The creditor’s filing of a lien entry form several weeks after the debtor’s purchase of the manufactured home and within the 90-day preference period was an avoidable transfer under § 547(b).

122. In re Antonich, 251 B.R. 441, 1999 WL 1295498, BAP No. WO-99-031 (10th Cir. BAP filed Dec. 14, 1999) (Brumbaugh, J.) (before Pusateri, Clark, and Brumbaugh, JJ.) (Appeal from the United States Bankruptcy Court for the Western District of Oklahoma). , appeal dismissed, No. 00-6025 (10th Cir. filed Jan. 18, 2001).

A bankruptcy court order finding that a creditor’s written objection to the confirmation of the debtor’s Chapter 13 plan, filed prior to the expiration of the claims bar date, was not an informal proof of claim was AFFIRMED. The bankruptcy court did not abuse its discretion in finding that it would not be equitable to allow the objection to be treated as a timely-filed claim. Clark v. Valley Federal Sav. & Loan Ass’n (In re Reliance Equities, Inc.), 966 F.23d 1338 (10th Cir. 1992) discussed.

123. Rupp v. Christensen (In re Christensen), 251 B.R. 441, 1999 WL 1204456, BAP No. UT-99-036 (10th Cir. BAP filed Dec. 16, 1999) (Bohanon, J.) (before McFeeley, C.J., and Bohanon & Robinson, JJ.) (Appeal from the United States Bankruptcy Court for the District of Utah).

A bankruptcy court order granting the Chapter 7 trustee summary judgment in an action under 11 U.S.C. § 547(b) was AFFIRMED. A district court ruling setting aside a default judgment in the case did not prevent the case from proceeding under the collateral order doctrine inasmuch as the district court’s order was not a final decision on the merits of the case. Summary judgment was appropriate as the trustee met his initial burden of showing a lack of a genuine issue of material fact, and the appellant’s mere allegations of the existence of a disputed fact were not sufficient under the standards established under Fed. R. Bankr. P. 7056. Finally, based on the undisputed facts, the bankruptcy court did not err in avoiding the transfer in question under § 547(b) because under 11 U.S.C.

§ 547(e)(1)(A) and Utah law the debtor’s transfer of an interest in real property to his spouse occurred at the time that the spouse-appellant recorded the deed, which was during the 90-day preference period.

124. In re South Willow Creek Farm, 251 B.R. 441, 1999 WL 1244511, BAP No. UT-99-052 (10th Cir. BAP filed Dec. 20, 1999) (Bohanon, J.) (before McFeeley, C.J., and Bohanon & Robinson, JJ.) (Appeal from the United States Bankruptcy Court for the District of Utah).

A bankruptcy court order dismissing a Chapter 12 case on reduced notice to creditors was REVERSED and the matter was REMANDED. The bankruptcy court abused its discretion under Fed. R. Bankr. P. 9006(c)(1) in reducing the 20-day notice period set forth in Fed. R. Bankr. P. 2002(a)(4) where the record showed that no evidence of irreparable harm or clear prejudice was presented by the moving party. Three days notice of motion to dismiss a case was not "notice appropriate in the particular circumstances" under 11 U.S.C. § 102(1) or due process standards

125. In re Johnson, 251 B.R. 441, 2000 WL 104771, BAP No. WO-99-051 (10th Cir. BAP filed Jan. 31, 2000) (Matheson, J.) (before Pearson, Boulden, and Matheson, JJ.)(Appeal from the United States Bankruptcy Court for the Western District of Oklahoma).

A bankruptcy court order approving a settlement agreement was AFFIRMED. The automatic stay imposed under 11 U.S.C. § 362 did not prevent the Chapter 7 trustee from prosecuting a prepetition lawsuit, and the lawsuit was not abandoned by the trustee under 11 U.S.C. § 554. The debtor-appellant failed to provide an adequate record for review, requiring the bankruptcy court’s order to be affirmed. Based on the record provided, the bankruptcy court did not abuse its discretion in approving the settlement agreement under Fed. R. Bankr. P. 9019. The debtor-appellant’s other points of error were waived on appeal because he failed to raise them before the bankruptcy court.

126. Bailey v. Haxen (In re Ogden), 243 B.R. 104 (10th Cir. BAP 2000) (McFeeley, C.J.) (before McFeeley, C.J., and Bohanon & Robinson, JJ.) (Appeal from the United States Bankruptcy Court for the District of Utah), rev'd by implication, Bailey v. Big Sky Motors, Ltd (In re Ogden), 314 F.3d 1190 (10th Cir. 2002).

A bankruptcy court judgment granting the Chapter 7 trustee summary judgment, thereby avoiding a transfer under 11 U.S.C. § 547(b) and allowing its recovery against the defendant under 11 U.S.C. § 550, was REVERSED and the matter was REMANDED. The transfer was not totally avoidable under §547(b) because the debtor did not have an interest in all of the funds transferred to the defendant. As to the funds in which the debtor had an interest, the bankruptcy court erred in failing to apply the good faith defense in § 550(b) as the defendant was a subsequent immediate or mediate transferee, rather than an initial transferee. Conduit theory discussed.

127. In re Kopexa Realty Venture Co., 251 B.R. 441,2000 WL 148918, BAP No. KS-99-029 (10th Cir. BAP filed Feb. 11, 2000) (Boulden, J.) (before McFeeley, C.J., and Boulden & Cornish, JJ.) (Appeal from the United States Bankruptcy Court for the District of Kansas).

A bankruptcy court order declaring that certain subleases were terminated as a result of a sale of the debtor’s assets authorized pursuant to 11 U.S.C. § 363(f)(4), and an order denying a motion for reconsideration under Fed. R. Bankr. P. 9024 were AFFIRMED. The sale of the debtor’s assets, including a prime lease, terminated the prime lease and all subleases related thereto. Interested parties were not entitled to notice of the sale under Kansas foreclosure law, as that law was inapplicable to a § 363(f)(4) sale, and they were not denied due process because they had actual notice of the sale. The appeal was an impermissible collateral attack on the final order approving the sale.

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128. Pratt v. Tower Day Surgery Center (In re Pratt), 251 B.R. 441, 2000 WL 159055, BAP No. WO-99-056 (10th Cir. BAP filed Feb. 15, 2000) (Pearson, J.) (before Clark, Pearson, and Robinson, JJ.) (Appeal from the United States Bankruptcy Court for the Western District of Oklahoma),  appeal dismissed, No. 00-6112 (10th Cir. filed May 18, 2000).

A bankruptcy court judgment avoiding certain physicians’ liens in whole and in part under 11 U.S.C. §§ 522(h) and 545(2) and Oklahoma law was AFFIRMED.

129. In re Gregory, 245 B.R. 171 (10th Cir. BAP 2000) (Robinson, J.) (before Pusateri, Boulden, and Robinson, JJ.)(Appeal from the United States Bankruptcy Court for the District of Wyoming), aff’d without opinion, 246 F.3d 681, 2000 WL 1809081 No. 00-8019 (10th Cir. filed Dec. 11, 2000).

A bankruptcy court order sustaining the Chapter 7 trustee’s objection to the debtors’ claimed exemption was AFFIRMED. The trustee met his burden under Fed. R. Bankr. P. 4003(c) of showing that a pistol was not a "tool of the trade" under Wyoming law.

130. In re Albrecht, 245 B.R. 666 (10th Cir. BAP 2000) (Robinson, J.) (before Pusateri, Boulden, & Robinson, JJ.) (Appeal from the United States Bankruptcy Court for the District of Wyoming), aff’d, 233 F.3d 1258, 2000 WL 1773138 (10th Cir.).

A bankruptcy court order denying an application for the allowance of attorney’s fees and costs under 11 U.S.C. § 503(b)(1)(A) and refusing to approve a stipulation related to the application was AFFIRMED. Section 503(b)(1)(A) may not serve as a basis for awarding fees and costs to a professional whose employment is not approved under 11 U.S.C. § 327(a). The bankruptcy court did not abuse its discretion in refusing to approve a stipulation between the professional and the United States trustee related to the allowance of the application because the stipulation contravened governing law.

131. Groetken v. Davis (In re Davis), 246 B.R. 646 (10th Cir. BAP 2000) (Robinson, J.) (before McFeeley, C.J., and Bohanon & Robinson, JJ.) (Appeal from the United States Bankruptcy Court for the District of Utah), aff'd in part, vacated in part, 35 Fed. Appx. 826, 2002 WL 1044832
(10th Cir. filed May 24, 2002).

A bankruptcy court judgment holding a debt to be nondischargeable under 11 U.S.C. § 523(a)(2)(A) and awarding costs to the plaintiff-creditor was AFFIRMED. In ruling that the debt was nondischargeable, the bankruptcy court properly admitted certain evidence objected to by the debtor under Fed. R. Evid. 403. The allowance of costs was summarily affirmed because the debtor-appellate failed to provide an adequate record for review. The bankruptcy court’s order sua sponte imposing sanctions against the debtor under Fed. R. Bankr. P. 9011 was REMANDED for further proceedings, because the court failed to follow certain procedures meant to afford the debtor due process. Finally, the Court dismissed an appeal from the portion of the bankruptcy court’s order sua sponte imposing sanctions against debtor’s counsel, because the law firm was not named on the notice of appeal as required under Fed. R. Bankr. P. 8001(a).

132. In re Kwiecinski, 245 B.R. 672 (10th Cir. BAP 2000) (Pusateri, J.) (before Pusateri, Boulden, & Robinson, JJ.) (Appeal from the United States Bankruptcy Court for the District of Wyoming).

A bankruptcy court order disallowing the Chapter 13 debtors’ claimed homestead exemption in one of two parcels of real property was REVERSED. No objection to the exemption was made in the time provided under Fed. R. Bankr. P. 4003(b) and, therefore, the exemption was valid under 11 U.S.C. § 522(l). The debtors’ claimed exemption was also valid under Wyoming homestead law.

133. In re Hamblin, 251 B.R. 441, 2000 WL 297069, BAP No. WO-99-059 (10th Cir. BAP filed March 22, 2000) (Matheson, J.) (before McFeeley, C.J., and Boulden & Matheson, JJ.) (Appeal from the United States Bankruptcy Court for the Western District of Oklahoma).

A bankruptcy court order imposing sanctions against the debtors’ counsel was REVERSED. Debtors’ counsel’s conduct was not so egregious so as to be subject to sanctions, and the bankruptcy court failed to afford counsel due process.

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134. Straight v. Wyoming Dept. of Transportation (In re Straight), 248 B. R. 403 (10th Cir. BAP 2000) (Pusateri, J.)(Boulden, J., dissenting) (before Pusateri, Boulden, & Robinson, JJ.)(Appeal from the United States Bankruptcy Court for the District of Wyoming), appeal dismissed, No. 00-8042 (10th Cir. filed Nov. 13, 2000).

A bankruptcy court order denying a state entity’s motion to dismiss the Chapter 7 debtor’s case against it on sovereign immunity grounds was REVERSED. The bankruptcy court was not bound under the law of the case doctrine by an earlier decision by the United States Court of Appeals of the Tenth Circuit that the state had waived its sovereign immunity under 11 U.S.C. § 106(b). Section 106(b) did not apply to the proceeding because the debtor conceded that her postpetition causes of action against the state under 11 U.S.C. §§ 362 and 525(a) were not property of her Chapter 7 estate, and this concession was supported by 11 U.S.C. § 348(f)(1). Furthermore, the state did not waive its sovereign immunity under common law principles of waiver. The law of the case doctrine also did not require the bankruptcy court to adhere to an earlier decision of the United States District Court for the District of Wyoming, holding that 11 U.S.C. § 106(a) constitutionally abrogates the state’s sovereign immunity. Upon independent analysis of new law on the topic, the Court, in a split decision, concluded that § 106(a) is an unconstitutional abrogation of the state’s sovereign immunity.

135. Parker v. Elkins Welding & Construction, Inc. (In re Elkins Welding & Construction, Inc.), 251 B.R. 441, 2000 WL 633223, BAP No. NM-00-004 (10th Cir. BAP filed May 17, 2000) (Clark, J.) (before Clark, Bohanon, & Matheson, JJ.)(Appeal from the United States Bankruptcy Court of the District of New Mexico).

A bankruptcy court order granting a creditor’s motion for summary judgment, thereby holding that the creditor’s lien in certain vehicles had priority over the lien of a competing lienholder, was REVERSED. Although creditor’s interest in the vehicles was noted on their titles, no written security agreement between the debtor and the creditor existed. Thus, the only way the creditor’s interest in the vehicles could "attach" under U.C.C. § 9-203 was by possession. The Court REMANDED the matter to the bankruptcy court to determine if the creditor "possessed" the vehicles in question.

136. In re Winters, 251 B.R. 441, 2000 WL 914181, BAP No. WY-00-006 (10th Cir. BAP filed June 26, 2000) (Clark, J.) (before Clark, Bohanon, & Cornish, JJ.) (Appeal from the United States Bankruptcy Court for the District of Wyoming).

A bankruptcy court order sustaining a Chapter 7 trustee’s objection to the debtor’s claimed exemption in two rings was REVERSED. The debtor claimed the rings as exempt under Wyo. Stat. Ann. § 1-20-105, which provides that exempt "necessary wearing apparel" may include wedding rings. Although the debtor was not married, it was uncontested that the rings in question were her mother’s wedding rings and, therefore, qualified as "wedding rings" that may be exempt under § 1-20-105. The Court REMANDED the matter to the bankruptcy court to determine whether the rings were the debtor’s "necessary wearing apparel."

137. Chandler v. State of Okla. (In re Chandler), 251 B.R. 872 (10th Cir. BAP 2000) (Clark, J.) (Matheson, J., concurring) (before Clark, Robinson, & Matheson, JJ.) (Appeal from the United States Bankruptcy Court for the Northern District of Oklahoma).

A bankruptcy court order denying the State of Oklahoma’s motion to dismiss an action brought against it by the Chapter 7 debtor pursuant to 11 U.S.C. § 523(a) was REVERSED. Straight v. Wyoming Dep’t of Transp. (In re Straight), 248 B.R. 403 (10th Cir. BAP 2000) [134],, decided after the bankruptcy court’s decision in this case, holds that 11 U.S.C. § 106(a) is not a valid abrogation of the State’s Eleventh Amendment sovereign immunity. The debtor’s § 523(a) action was a "suit" against the State, and there was no record that the State had waived its sovereign immunity under § 106(b) or by common law waiver. Because the debtor was not allowed to proceed against the State, the bankruptcy court erred in denying the State’s motion to dismiss. The matter was REMANDED to the bankruptcy court to enter an order dismissing the suit.

138. Merrill v. Merrill (In re Merrill), 252 B.R. 497 (10th Cir. BAP 2000) (McFeeley, C.J.) (before McFeeley, C.J., and Pusateri & Boulden, JJ.) (Appeal from the United States Bankruptcy Court for the Northern District of Oklahoma, reported at 246 B.R. 906 aff'd, 15 Fed. Appx. 766, 2001 WL 909157 (10th Cir. filed Aug. 13, 2001).

A bankruptcy court judgment excepting divorce-related debts from the Chapter 7 debtor’s discharge under 11 U.S.C. § 523(a)(4) and (5) was AFFIRMED. The bankruptcy court did not err in determining that it was collaterally estopped by a state court judgment from reconsidering that an investment account was a technical trust, that the debtor was a fiduciary for the beneficiary of the trust, and that he had wrongfully removed money from the trust. Applying these binding factual conclusions, the debt resulting from the debtor’s actions with regard to the trust was nondischargeable under § 523(a)(4). Furthermore, pursuant to Sampson v. Sampson (In re Sampson), 997 F.2d 717 (10th Cir. 1993), certain obligations owed to the debtor’s former spouse under a state court divorce decree were nondischargeable under § 523(a)(5) because they were intended by the state court to be "support," and the substance of the obligations was in the nature of support at the time of the divorce.

139. Tuloil, Inc. v. Shahid (In re Shahid), 254 B.R. 40 (10th Cir. BAP 2000) (Robinson, J.) (before Pusateri, Robinson, & Matheson, JJ.) (Appeal from the United States Bankruptcy Court for the Eastern District of Oklahoma).

Bankruptcy court orders assessing attorney’s fees against the Chapter 7 debtor in an action under 11 U.S.C. § 727 and determining the amount of the fees were REVERSED, and the matter was REMANDED. Admonishing debtor’s counsel for failing to comply with 10th Cir. BAP L.R. 8009-1(a), the court went on to consider the merits of the appeal. The fees in question were not taxable against the debtor because § 727 does not provide a basis for the allowance of such fees, and there was no contractual basis for the fees. Although the contract in question allowed fees incurred in a suit to collect on the note, the § 727 action was not such a suit.

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140. In re Hathaway, 271 B.R. 213, 2000 WL 1634770, BAP No. EO-00-034 (10th Cir. BAP filed Oct. 18, 2000) (per curiam) (before McFeeley, C.J., and Clark & Matheson, JJ.) (Appeal from the United States Bankruptcy Court for the Eastern District of Oklahoma).

The Chapter 13 debtors’ appeal of an order denying their motion to determine tax liability was DISMISSED for lack of jurisdiction inasmuch as the debtors did not file a timely notice of appeal from the order under Fed. R. Bankr. P. 8002(a). The debtors’ post-judgment motions were not filed in time to allow for the tolling of Rule 8002(a)’s 10-day period under Fed. R. Bankr. P. 8002(b). The Court AFFIRMED the bankruptcy court’s order denying the debtors’ motion for rehearing, holding that it did not abuse its discretion in so doing. If the motion was a motion for a new trial under Fed. R. Civ. P.59, made applicable in bankruptcy under Fed. R. Bankr. P. 9023, it was untimely. Alternatively, if the motion was brought pursuant to Fed. R. Civ. P. 60(b), made applicable in bankruptcy under Fed. R. Bankr. P. 9024, the debtors failed to plead sufficient grounds for relief thereunder.

141. In re K.D. Co., 254 B.R. 480 (10th Cir. BAP 2000) (Boulden, J.) (before Boulden, Robinson, & Cornish, JJ.)(Appeal from the United States Bankruptcy Court for the District of New Mexico).

A bankruptcy court order requiring a Chapter 11 debtor’s former general counsel to disgorge fees paid to it from the estate to pay the claim of another administrative claimant in accordance with the terms of a confirmed plan was AFFIRMED. The law firm’s appeal was not moot despite the conversion of the debtor’s Chapter 11 case to Chapter 7 because the competing claimant’s claim under the confirmed plan survived conversion, and he had the right to recover from the law firm. Disgorgement was proper because the valid confirmed plan so provided, and it was binding on all parties under 11 U.S.C. § 1141 and res judicata principles. Due process issues are also discussed.

142. Norwest Bank El Paso v. Van Tol (In re Van Tol), 255 B.R. 57 (10th Cir. BAP 2000) (Cornish, J.) (before Bohanon, Boulden, & Cornish, JJ.) (Appeal from the United States Bankruptcy Court for the District of New Mexico).

A bankruptcy court judgment holding that a bank had a perfected secured interest in capital retains issued to the Chapter 11 debtors by the Dairy Farmers of America, Inc. was AFFIRMED. The Dairy Farmers’ restrictions on assignment or transfer of the retains were invalid under U.C.C. § 9-318(4), as adopted in New Mexico. In so holding, the Court examined U.C.C. §§ 9-105 and 9-106.

143. In re Tapia, 271 B.R. 213, 2000 WL 1707254, BAP No. KS-00-015 (10th Cir. BAP filed Nov. 15, 2000) (McNiff, J.) (before McFeeley, C.J., and Clark & McNiff, JJ.) (Appeal from the United States Bankruptcy Court for the District of Kansas).

A bankruptcy court order granting a judgment creditor relief from the automatic stay under 11 U.S.C. § 362(d) to pursue state court litigation against the debtor was AFFIRMED, and a motion for sanctions pursuant to Fed. R. Bankr. P. 8020 was DENIED.

144. Lopez v. Long (In re Long), 255 B.R. 241 (10th Cir. BAP 2000) (Boulden, J.)(before Boulden, Cornish, and Matheson, JJ.)(Appeal from the United States Bankruptcy Court for the District of Kansas).

A bankruptcy court order dismissing the plaintiffs’ nondischargeability complaint against the debtor and an order denying the plaintiffs’ motions for reconsideration were AFFIRMED. The plaintiff-appellants’ notice of appeal was timely under Fed. R. Bankr. P. 8002(b) because their post-judgment motions, whether viewed as motions pursuant to Fed. R. Bankr. P. 9023 (incorporating Fed. R. Civ. P. 59(e) in bankruptcy) or Fed. R. Bankr. P. 9024 (incorporating Fed. R. Civ. P. 60(b) in bankruptcy), tolled the 10-day period under Fed. R. Bankr. P. 8002(a). Although the Court had jurisdiction to consider the appeal, the plaintiff-appellants failed to provide an adequate record as required under Fed. R. Bankr. P. 8009(b) and 10th Cir. BAP L.R. 8009-1(a), therefore mandating that the bankruptcy court be affirmed.

145. In re Drew, 256 B.R. 799, (10th Cir. BAP) (Pusateri, J.) (before Pusateri, Bohanon, and Michael, JJ.) (Appeal from the United States Bankruptcy Court for the District of Wyoming).

A bankruptcy court order (1) denying the Chapter 7 debtors’ motion to strike opposition to their claim objection, (2) allowing three tardily-filed claims of Wyoming Medical Center, and (3) allowing twenty seven claims tardily filed by the Chapter 7 trustee, was AFFIRMED in part and REVERSED in part. The portion of the order denying the motion to strike was summarily affirmed because the bankruptcy court did not err in holding that the Chapter 7 trustee had standing to be heard on matters concerning the allowance or disallowance of claims. The portion of the order allowing the Medical Center’s late-filed claims was also affirmed because such claims are allowed under 11 U.S.C. §§ 502(b)(9) and 726(a)(3). The bankruptcy court erred, however, in allowing the trustee’s late-filed claims because §§ 502(b)(9) and 726(a)(2) and (3) only apply to claims filed late by creditors under 11 U.S.C. § 501(a). Claims, such as those filed by the trustee under 11 U.S.C. § 501(c), may not be allowed if they filed late. Fed. R. Bankr. P. 3002 and 3004 are discussed.

146. In re Fross,271 B.R. 213, 2000 WL 1902000, BAP No. KS-00-028 (10th Cir. BAP filed Dec. 22, 2000) (Michael, J.) (before McFeeley, C.J., and Clark & Michael, JJ.) (Appeal from the United States Bankruptcy Court for the District of Kansas),
appeal dismissed, No. 01-3005 (10th Cir. filed Jan. 11, 2002).


A bankruptcy court order dismissing the debtors’ Chapter 11 case was AFFIRMED. It was uncontested that the debtors could not propose a plan that complied with the absolute priority rule as interpreted in In re Fross, 233 B.R. 176, 1999 WL 26886, BAP No. KS-98-030 (10th Cir. BAP filed Jan. 15, 1999) [82] The Court could not overturn Fross, and it was binding on the Court under the law of the case doctrine. Thus, the bankruptcy court’s dismissal of the case was proper.

147, Manchester v. First Bank & Trust Co. (In re Moses), 256 B.R. 641 (10th Cir. BAP 2000) (Clark, J.) (before McFeeley, C.J., and Clark & McNiff, JJ.) (Appeal from the United States Bankruptcy Court for the Western District of Oklahoma).

A bankruptcy court order denying a bank’s motion for summary judgment and granting the trustee’s motion for summary judgment in a 11 U.S.C. § 547(b) action was AFFIRMED. The transfer in question was a "transfer of an interest of the debtor in property" within the meaning of § 547(b). The earmarking doctrine never applies in a §  547(b) analysis, unless a co-debtor provides funds to the debtor to pay a co-debt. Even if the doctrine is applicable, the bankruptcy court did not err in rejecting it because the estate was diminished by the transfer and the debtor controlled the funds that were transferred. The bankruptcy court also did not err in rejecting the defendant’s 11 U.S.C. § 547(c)(1) defense, because no new value as defined in 11 U.S.C. § 547(a)(2) was provided, and the parties did not intend the transfer to be a contemporaneous exchange for new value.

148. Morris v. Vulcan Chemical Credit Union (In re Rubia), 257 B.R. 324 (10th Cir. BAP 2001) (Clark, J.) (McFeeley, C.J., dissenting) (before McFeeley, C.J., and Clark & McNiff, JJ.)  (Appeal from the United States Bankruptcy Court for the District of Kansas), aff'd, 23 Fed. Appx. 968, 2001 WL 1580933, No. 01-3020 (10th Cir. filed Dec. 12, 2001).

A bankruptcy court order dismissing a Chapter 7 trustee’s complaint for turnover was AFFIRMED. The trustee had no action against a credit union for turnover of postpetition payments that the debtor had made to the credit union on an exempt vehicle. Although the credit union’s lien on the vehicle was avoided and preserved for the benefit of the estate under 11 U.S.C. § 551, the trustee could not collect the credit union’s debt. Avoidance and preservation of the credit union’s lien only gave the trustee the lien position held by the credit union. The value of the lien position for the estate was measured by the value of the vehicle, limited to the amount of the debtor’s debt to the credit union on the petition date.

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149. Duty v. White (In re White), 271 B.R. 213, 2001 WL 52852, BAP No. KS-00-039 (10th Cir. BAP filed Jan. 23, 2001)
(McFeeley, C.J.) (before McFeeley, C.J., and Clark & Michael, JJ.) (Appeal from the United States Bankruptcy Court for the District of Kansas), appeal dismissed, No. 01-3115 (10th Cir. filed Nov. 7, 2001).


A bankruptcy court judgment granting a creditor’s motion for summary judgment and holding a debt to be nondischargeable under 11 U.S.C. § 523(a)(4) was AFFIRMED, but another related judgment calculating the amount of the debt was REVERSED and REMANDED. The debtor-attorney’s failure to reduce his contingency fee payment from a structured settlement to present value resulted in a nondischargeable debt under § 523(a)(4), even though the debtor did not understand that he was required to reduce his fee. The debtor was a fiduciary under § 523(a)(4) because the Kansas Rules of Professional Conduct impose a technical trust when an attorney is entrusted with a client’s funds, and the debtor committed a defalcation by recklessly or negligently failing to reduce his fee to present value.

150.  In re Fross, 258 B.R. 26 (10th Cir. BAP 2001) (per curiam) (before McFeeley, C.J., and Clark & Michael, JJ.) (Appeal from the United States Bankruptcy Court for the District of Kansas).

The Court entered an order granting a motion to stay the mandate pursuant to 10th Cir. BAP L.R. 8016-3(b) and a motion for stay pending appeal to the United States Court of Appeals of the Tenth Circuit pursuant to Fed. R. Bankr. P. 8017(b). The Court had jurisdiction to consider the motions despite the fact that the appellant had filed a notice of appeal with the Tenth Circuit. The motion for stay pending appeal was unopposed and, therefore, such a stay was appropriate. The Court also stayed the mandate because the issue appealed was substantial and there was good cause for the stay.

151.  Parker v. Elkins Welding & Construction, Inc. (In re Elkins Welding & Construction, Inc.), 258 B.R. 216 (10th Cir. BAP 2001) (Clark, J.) (before Clark, Bohanon, & Robinson, JJ.) (Appeal from the United States Bankruptcy Court for the District of New Mexico).

A bankruptcy court order granting a bank summary judgment in an action to determine the validity, priority and extent of competing liens was AFFIRMED. The competing creditor’s interest in the debtor’s vehicles did not attach because there was no written security agreement, and the debtor did not possess the vehicles within the meaning of N.M. Stat. Ann. §§ 55-9-203 and 55-9-305. Absent attachment, the creditor’s interest was unperfected and, therefore, the bank’s interest in the vehicles was superior.

152.In re Inkster, 271 B.R. 213, 2001 WL 169758, BAP No. WO-00-063 (10th Cir. BAP filed Feb. 21, 2001) (Boulden, J.) (before Pusateri, Boulden, and Krieger, JJ.) (Appeal from the United States Bankruptcy Court for the Western District of Oklahoma).

A bankruptcy court order vacating its earlier order allowing a creditor an extension of time to file a 11 U.S.C. § 523(a) complaint against the debtors was AFFIRMED. The appellant-creditor failed to provide the Court with an adequate record for review and, therefore, there were grounds for summarily affirming the bankruptcy court. Even on the poor record, however, the Court determined that the bankruptcy court did not abuse its discretion in concluding that under Fed. R. Bankr. P. 4007(c) "cause" for extending the deadline for filing a § 523(a) complaint did not exist. The creditor had not attended the debtors’ meeting of creditors or conducted discovery, and it did not cite any authority for the proposition that the debt in question was subject to exception from discharge.

153. Countryman v. Zimmerle (In re Zimmerle), 271 B.R. 213, 2001 WL 227414, BAP No. UT-99-075 (10th Cir. BAP filed March 8, 2001) (Pusateri, J.) (before Pusateri, Cornish, and Michael, JJ.) (Appeal from the United States Bankruptcy Court for the District of Utah).

A bankruptcy court judgment granting the debtor’s motion for summary judgment and dismissing a complaint brought pursuant to 11 U.S.C. §§ 523(a) and 727 was AFFIRMED. The appellant-creditor failed to provide an adequate record for review, thereby providing grounds for the Court to summarily affirm the bankruptcy court.

154.  In re Geneva Steel Co., 260 B.R. 517 (10th Cir. BAP 2001) (Michael, J.) before Pusateri, Cornish, & Michael, JJ.) (Appeal from the United States Bankruptcy Court for the District of Utah), aff'd, 281 F.3d 1173 (10th Cir. 2002).

A bankruptcy court order refusing to grant a creditor a continuance, and disallowing in part and subordinating in part the creditor’s claim against the Chapter 11 debtor was AFFIRMED. The creditor, a holder of notes issued by the debtor, filed a proof of claim against the debtor based on his ownership of the notes and his claim against the debtor for fraud related to the investment. The indenture trustee for the notes also filed a proof of claim on behalf of all note holders based on their ownership of the notes. The bankruptcy court did not err in subordinating the creditor’s fraud claim under 11 U.S.C. § 510(b). The creditor was a purchaser of the notes under 11 U.S.C. § 101(4) and Utah Code Ann. § 70A-1-201(32). The bankruptcy court also did not err in disallowing the portion of the creditor’s claim based on ownership of the notes to the extent that it duplicated the claim of the indenture trustee. That the debtor did not present evidence in objecting to the creditor’s claim based on ownership of the notes did not make the claim allowable. An objection to a proof of claim under 11 U.S.C. § 502(b) raising only legal issues is sufficient. Finally, the bankruptcy court did not abuse its discretion in refusing to grant the creditor a continuance.

155.  In re Tuttle, 271 B.R. 213, 2001 WL 331971, BAP No. KS-00-074 (10th Cir. BAP filed April 5, 2001) (Bohanon, J.) (before McFeeley, C.J., and Clark & Bohanon, JJ.) (Appeal from the United States Bankruptcy Court for the District of Kansas, reported at 259 B.R. 735), aff'd, 291 F.3d 1238 (10th Cir. 2002).

A bankruptcy court order holding the debtor personally liable for interest that accrued on a tax claim postpetition but prior to the confirmation of her Chapter 11 plan was AFFIRMED. Such "gap interest" is a tax liability that is nondischargeable under 11 U.S.C. §§ 507(a)(8), 523(a)(1)(A) and 1141(d)(2). The Internal Revenue Service was not barred from seeking collection of the nondischargeable gap interest from the debtor outside of the confirmed plan, even though the plan expressly stated that the debtor had satisfied all of her tax obligations thereunder. Finally, the Court refused to prevent the IRS from collecting the gap interest under 11 U.S.C. § 105.

156.  In re Black, 271 B.R. 213 2001 WL 359580, BAP Nos. UT-00-026 & UT-00-030 (10th Cir. BAP filed April 11, 2001) (Cornish, J.) (before Pusateri, Cornish, and Michael, JJ.) (Appeal from the United States Bankruptcy Court for the District of Utah).

Bankruptcy court orders disallowing in large part a proof of claim filed by the debtor’s divorce attorney for unpaid prepetition fees and costs and confirming the debtor’s Chapter 13 plan was REVERSED and the matter was REMANDED. The bankruptcy court erred in admitting parol evidence related to the debtor’s understanding of the parties’ unambiguous fee agreement. Furthermore, the bankruptcy court erred in ordering the attorney to collect from the debtor’s former spouse the difference of the amount allowed by the divorce court and the amount allowed in the bankruptcy court. Under Utah law, an attorney may not collect fees from the spouse, but rather must act through his or her client.

157.  In re Flores, 2001 WL 543677, BAP No. NM-00-069 (10th Cir. BAP filed May 23, 2001) (Robinson, J.) (before Bohanon, Boulden, & Robinson, JJ.) (Appeal from the United States Bankruptcy Court for the District of New Mexico).

A bankruptcy court order denying the debtor’s motion to reopen his dismissed Chapter 7 case pursuant to 11 U.S.C. § 350(b) was VACATED and the matter was REMANDED. Although the bankruptcy court did not abuse its discretion in ruling on the debtor’s motion without a hearing, the court did not provide any findings or conclusions related to its denial of the motion making appellate review impossible.

158.  In re Boldridge, 292 B.R. 711, 2001 WL 604190, BAP No. KS-01-005 (10th Cir. BAP filed June 4, 2001) (Bohanon, J.) (before McFeeley, C.J., and Clark & Bohanon, JJ.) (Appeal from the United States Bankruptcy Court for the District of Kansas).

A bankruptcy court order denying the Chapter 7 debtor’s motion to avoid a lien was AFFIRMED. A warehouseman’s lien held by the creditors was possessory and, therefore, 11 U.S.C. § 522(f) did not apply. Furthermore, the bankruptcy court did not abuse its discretion in denying the debtor’s motion for rehearing, whether that motion was viewed as a motion pursuant to Fed. R. Civ. P. 59, made applicable in bankruptcy under Fed. R. Bankr. P. 9023, or Fed. R. Civ. P. 60(b), made applicable in bankruptcy under Fed. R. Bankr. P. 9024.

159. The Cadle Co. v. Stewart (In re Stewart), 263 B.R. 608 (10th Cir. BAP 2001) (Clark, J.) (before McFeeley, C.J., and Clark & Bohanon, JJ.) (Appeal from the United States Bankruptcy Court for the District of Kansas), aff'd, 35 Fed. Appx. 811, 2002 WL 1038760 (10th Cir. filed May 23, 2002).

A bankruptcy court judgment refusing to deny the debtors a discharge under 11 U.S.C. § 727(a)(2)(A), (a)(3), (a)(4)(A) and (a)(5) was not clearly erroneous and, therefore, it was AFFIRMED.

160. In re Blagg, 271 B.R. 213, 2001 WL 725993, BAP No. NO-01-006 (10th BAP filed June 28, 2001) (per curiam) (before Boulden, Robinson, & Krieger, JJ.) (Appeal from the United States Bankruptcy Court for the Northern District of Oklahoma), aff'd, 43 Fed. Appx. 266, 2002 WL 1647845 (10th Cir. filed July 24, 2002).

On remand from this Court, see In re Blagg, 223 B.R. 795 (10th Cir. BAP 1998) [69] ("Blagg I"), the bankruptcy court entered an order awarding the Chapter 7 trustee attorney's fees and costs under Fed. R. Bankr. P. 9011 resulting from the filing of the debtors' case in an improper venue. The debtors sought reconsideration of the fee order, and for relief from the bankruptcy court's original judgment dismissing their case for improper venue. The bankruptcy court refused to reconsider the fee order or to vacate its order of dismissal, and the debtors again appealed. This Court AFFIRMED. First, drawing on the definition of "party in interest" under 11 U.S.C. § 1109(b), the Court held that the Chapter 7 trustee was a "party in interest" with standing to object to the venue of the debtors' case under Fed. R. Bankr. P. 1014(a)(2). Second, the bankruptcy court did not abuse its discretion in dismissing the debtors' case without prejudice to them refiling the case in a district with venue. Third, Blagg I was law of the case, and no exceptions to that doctrine were applicable. Fourth, the bankruptcy court did not abuse its discretion in issuing its fee order. Finally, the bankruptcy court did not abuse its discretion in denying the debtors' motion to vacate the dismissal order under Fed. R. Civ. P. 60(b), made applicable in bankruptcy under Fed. R. Bankr. P. 9024.

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161. In re Parker, 264 B.R. 685 (10th Cir. BAP 2001) (McFeeley, C.J.) (before McFeeley, C.J., and Clark & Bohanon, JJ.) (Appeal from the United States Bankruptcy Court for the District of Kansas), aff'd, 313 F.3d 1267 (10th Cir. 2002), cert. denied,, 540 U.S. 965 (2003).

A bankruptcy court order reopening a Chapter 7 debtor's no asset case and declaring that a previously unscheduled debt for legal malpractice was discharged was AFFIRMED. The bankruptcy court did not err in refusing to apply doctrines of laches or equitable estoppel to bar the reopening of the debtor's case under 11 U.S.C. § 350(b) approximately two years after it was closed. Furthermore, notwithstanding 11 U.S.C. § 523(a)(3)(A), the unscheduled prepetition debt was automatically discharged under 11 U.S.C. § 727(b) in the debtor's no asset case where no claims bar date was set. Equitable considerations did not impact the automatic discharge of the debt, and the debt would only be excepted from discharge if the creditor proved the application of 11 U.S.C. § 523(a)(3)(B). In rejecting the debtor's argument that her claim arose postpetition and, therefore, was not discharged, the Court adopted the majority view that a claim under 11 U.S.C. § 101(5) arises at the time of the debtor's conduct that gives rise to the claim. Since the debtor's malpractice occurred prepetition, the creditor's claim was a discharged, prepetition claim. Finally, the bankruptcy court did err in refusing to except the unscheduled debt from discharge under § 523(a)(3)(B), because the creditor failed to prove that the debt was nondischargeable under 11 U.S.C. § 523(a)(2), (4) or (6).

162. In re Iverson, 271 B.R. 213, 2001 WL 863444, BAP No. NM-01-018 (10th Cir. BAP filed July 31, 2001) (Michael, J.) (before Boulden, Cornish, & Michael, JJ.) (Appeal from the United States Bankruptcy Court for the District of New Mexico), appeal dismissed, No. 01-2277 (10th Cir. filed Jan. 2, 2002).

A bankruptcy court order allowing the debtor's former spouse a priority claim under 11 U.S.C. § 507(a)(7) was not clearly erroneous and, therefore, was AFFIRMED. Established Tenth Circuit law defining a "support" debt under § 507(a)(7) is applied, and such law allows a bankruptcy court to consider parol evidence in determining whether a debt created by a divorce agreement is "support." The Court refused to consider the appellant's estoppel argument, concluding that it was waived on appeal as a result of not being raised before the bankruptcy court.

163. Carter-Waters Oklahoma, Inc. v. Bank One Trust Co., N.A. (In re Eufaula Industrial Authority), 266 B.R. 483 (10th Cir. BAP 2001) (Boulden, J.) (before Pusateri, Boulden, & Krieger, JJ.) (Appeal from the United States Bankruptcy Court for the Eastern District of Oklahoma).

A bankruptcy court judgment dismissing a complaint under 11 U.S.C. § 510(c) without prejudice was AFFIRMED. The plaintiffs failed to show that the defendant-claimant had engaged in inequitable conduct and, therefore, they had no cause of action under § 510(c) as a matter of law. The degree of wrongful conduct required to be shown for insider and non-insider defendants is discussed.

164. In re Nichols, 265 B.R. 831 (10th Cir. BAP 2001) (Robinson, J.) (before McFeeley, C.J., and Clark & Robinson, JJ.) (Appeal from the United States Bankruptcy Court for the Western District of Oklahoma).

A bankruptcy court order denying the Chapter 7 debtor's motion seeking to avoid a lien under 11 U.S.C. § 522(f)(1)(A) was AFFIRMED. Section 522(f)(1)(A) did not apply because the interest sought to be avoided was not a "judicial lien" as defined under 11 U.S.C. § 101(36), but rather a "security interest" under 11 U.S.C. § 101(51).

165. Sloan v. Tirey (In re Tirey), 271 B.R. 213, 2001 WL 963996, BAP No. EO-01-025 (10th Cir. BAP filed Aug. 24, 2001) (Pusateri, J.) (before McFeeley, C.J., and Pusateri & Krieger, JJ.) (Appeal from the United States Bankruptcy Court for the Eastern District of Oklahoma).

A bankruptcy court order denying a debtor a discharge under 11 U.S.C. § 727(a)(4) and (a)(7) was VACATED and the case was REMANDED for additional findings of fact and conclusions of law. The bankruptcy court's order was incapable of review because the court failed to make findings of fact and conclusions of law as required under Fed. R. Civ. P. 52(a), made applicable in bankruptcy under Fed. R. Bankr. P. 7052.

166. Lowther v. Lowther (In re Lowther), 266 B.R. 753 (10th Cir. BAP 2001) (Robinson, J.) (before Pusateri, Robinson, & Krieger, JJ.) (Appeal from the United States Bankruptcy Court for the Western District of Oklahoma), aff'd, 321 F.3d 946 (10th Cir. 2002).

A bankruptcy court order excepting the debtor's obligation to a former spouse for divorce-related attorney's fees from discharge under 11 U.S.C. § 523(a)(5) was REVERSED. Although fees awarded in custody disputes are generally nondischargeable under § 523(a)(5) and Jones v. Jones (In re Jones), 9 F.3d 878 (10th Cir. 1993), "unusual circumstances" existed to discharge the fee debt. The debtor was ordered to pay her former spouse's attorney's fees in a custody dispute in which she was awarded custody of the couple's minor child. Requiring the debtor to pay the fee debt would impair her ability to support the child.

167. In re Buckner, 271 B.R. 213, 2001 WL 992063, BAP No. EO-00-073 (10th Cir. BAP filed Aug. 30, 2001) (Pusateri, J.) (before Pusateri, Boulden, & Krieger, JJ.) (Appeal from the United States Bankruptcy Court for the Eastern District of Oklahoma).

A bankruptcy court order allowing the Chapter 13 trustee to examine the debtors under Fed. R. Bankr. P. 2004 was AFFIRMED. The Rule 2004 examination order was a "final order" for purposes of appellate jurisdiction under 28 U.S.C. § 158(a)(1) where the examination was to be conducted after the confirmation of a Chapter 13 plan and no further action by the bankruptcy court was expected. Although there were issues as to the order appealed, the timeliness of the appeal under Fed. R. Bankr. P. 8002 and the pro se debtors' failure to provide an adequate record for review, the order that was timely appealed, denying a motion to limit the scope of a Rule 2004 examination, was not an abuse of the bankruptcy court's discretion in light of the broad scope of examinations permitted under Rule 2004.

168. Brasher v. Turner (In re Turner), 266 B.R. 491 (10th Cir. BAP 2001) (Krieger, J.) (before Pusateri, Boulden, & Krieger, JJ.) (Appeal from the United States Bankruptcy Court for the Western District of Oklahoma).

A bankruptcy court order refusing to except a debt for divorce-related attorney's fees from the Chapter 7 debtor's discharge under 11 U.S.C. § 523(a)(5) was AFFIRMED. The bankruptcy court applied the correct burden of proof under § 523(a)(5), and it did not abuse its discretion in refusing to admit certain billing records that had not been provided to opposing counsel prior to trial. The bankruptcy court also did not err in refusing to except the debt from discharge, because its conclusion that the appellant failed to prove that the divorce court's attorney fee award was related to a custody dispute and, thus, a debt in the nature of "support," was not clearly erroneous.

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169. Wardrip v. Hart (In re Hart), 271 B.R. 213, 2001 WL 1095321, BAP No. KS-01-019 (10th Cir. BAP filed Sept. 19, 2001) (Michael, J.) (before Clark, Bohanon, & Michael, JJ.) (Appeal from the United States Bankruptcy Court for the District of Kansas).

A bankruptcy court order denying a plaintiff's motion for summary judgment under Fed. R. Bankr. P. 7056, and a judgment dismissing the plaintiff's complaint filed pursuant to 11 U.S.C. § 727(a)(2)(A) and (a)(4) were AFFIRMED. The Court admonished plaintiff-appellant for failing to reference specific parts of the record supporting her claims of error. However, upon reviewing the record, the Court concluded that the bankruptcy court did not err in denying the plaintiff's summary judgment motion because factual issues related to the debtor's intent existed. The bankruptcy court also did not err in denying the plaintiff judgment under § 727(a)(2)(A) and (a)(4), because it applied the correct law and its findings of fact were not clearly erroneous.

170. In re Haworth, BAP No. WY-01-075 (10th Cir. BAP filed Nov. 7, 2001) (before Pusateri, Bohanon, & Michael, JJ.) (Appeal from the United States Bankruptcy Court for the District of Wyoming), appeal dismissed for lack of prosecution, No. 02-8001 (10th Cir. filed March 28, 2002).

Related Order 170b or 170c

An appeal from a bankruptcy court order denying the debtor's motion to dismiss her Chapter 7 case was DISMISSED for lack of jurisdiction under 28 U.S.C. § 158(a), because the order was not a "final" order, and leave to appeal the interlocutory order was not appropriate.

171. In re Miranda, 285 B.R. 344, 2001 WL 1538003, BAP No. NM-01-044 (10th Cir. BAP filed Dec. 4, 2001) (Robinson, J.) (before Bohanon, Robinson, & Michael, JJ.) (Appeal from the United States Bankruptcy Court for the District of New Mexico).

Bankruptcy court orders denying a Chapter 13 trustee's request for fees under 28 U.S.C. § 586(e) on payments made in cases that had been dismissed or converted prior to confirmation was AFFIRMED. 11 U.S.C. § 1326(a) and (b) mandate that all pre-confirmation payments received by the Chapter 13 trustee, less administrative expenses, be returned to the debtor upon dismissal or conversion of a case. Fees allowed under § 586(e) are not administrative expenses under 11 U.S.C. § 506(b). The Court contrasts § 1326 with 11 U.S.C. § 1226(a), which expressly allows the Chapter 12 trustee to deduct non-administrative expense fees from payments received pre-confirmation.

172. Zubrod v. Kelsey (In re Kelsey), 271 B.R. 776 (10th Cir. BAP 2001) (Krieger, J.) (before Boulden, Cornish, & Krieger, JJ.)
(Appeal from the United States Bankruptcy Court for the District of Wyoming).

A bankruptcy court judgment avoiding the Chapter 7 debtor's prepetition transfer of cash from a joint bank account to his nondebtor spouse under 11 U.S.C. § 548(a)(1)(B) was AFFIRMED. The cash withdrawn from the joint bank account and transferred to the nondebtor spouse was a transfer of property of the debtor. Also, the bankruptcy court did not err in determining that the nondebtor spouse failed to give "value" for the transfer within the meaning of 11 U.S.C. § 548(d)(2)(A). Finally, the appellate record supported avoiding transfer under 11 U.S.C. § 548(a)(1)(A), because the uncontroverted facts showed that the transfer was made with an intent to hinder, delay, or defraud creditors.

173. In re Swanson, 285 B.R. 344, 2001 WL 1640009, BAP No. WY-01-021 (10th Cir. BAP filed Dec. 21, 2001) (Cornish, J.) (before Boulden, Cornish, & Krieger, JJ.) (Appeal from the United States Bankruptcy Court for the District of Wyoming).

A bankruptcy court order denying a motion to modify the automatic stay was AFFIRMED because the appellant failed to provide the Court with an adequate record for review.

174. In re Duncan, 271 B.R. 196 (10th Cir. BAP 2002) (Boulden, J.) (before Boulden, Cornish, & Krieger, JJ.) (Appeal from the United States Bankruptcy Court for the District of Wyoming), rev'd, 329 F.3d 1195 (10th Cir. 2003).

A bankruptcy court order requiring the Chapter 7 trustee to turn over $10,000 to the debtor pursuant to the debtor's valid homestead exemption under Wyoming law was AFFIRMED. 11 U.S.C. § 522(g)(1) did not bar the debtor from claiming a homestead exemption, even though the trustee avoided the debtor's prepetition transfer of the homestead property to himself and his nondebtor spouse as tenants in the entireties as a fraudulent transfer, because the trustee did not "recover" the debtor's separate, undivided interest in the entireties property under 11 U.S.C. § 550. The Court discusses the debtor's interest in property held as a tenant by the entireties, noting that such interest is property of the estate under 11 U.S.C. § 541(a)(1).

175. In re Midkiff, 271 B.R. 383 (10th Cir. BAP 2002) (Cornish, J.) (before Boulden, Cornish, & Krieger, JJ.) (Appeal from the United States Bankruptcy Court for the District of Wyoming), aff'd, 342 F.3d 1194 (10th Cir. 2003).

Bankruptcy court orders vacating the Chapter 13 debtors' discharge and allowing the Chapter 13 trustee to treat a postpetition federal income tax refund as disposable income were AFFIRMED. Although Fed. R. Bankr. P. 7001(4) requires the commencement of an adversary proceeding to revoke a discharge under 11 U.S.C. § 1328(e), an adversary proceeding need not be commenced if a discharge entered by mistake is vacated pursuant to Fed. R. Bankr. P. 9024. The debtors' discharge was mistakenly entered and thus could be vacated under Rule 9024, because it was entered prior to the debtors' receipt of the tax refund which their confirmed plan stated would be distributed to creditors. The refund was property of the estate under 11 U.S.C. § 1306(a), and it was subject to distribution under the terms of the confirmed plan. The debtors were bound by the confirmed plan under 11 U.S.C. § 1327(a), and the refund was disposable income under 11 U.S.C. § 1325(b)(1)(B).

176. In re Hough, 285 B.R. 344, 2002 WL 518687, BAP No. WO-01-059 (10th Cir. BAP filed Jan. 8, 2002) (Clark, J.) (before McFeeley, C.J., and Pusateri & Clark, JJ.) (Appeal from the United States Bankruptcy Court for the Western District of Oklahoma), appeal voluntarily dismissed, No. 02-6048 (10th Cir. filed June 18, 2003).

A bankruptcy court order granting the Chapter 13 debtor's former spouse relief from stay under 11 U.S.C. § 362(d) to seek enforcement of a divorce court judgment was AFFIRMED. The bankruptcy court did not abuse its discretion in determining that "cause" existed to lift the automatic stay.

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177. Cobb v. Lewis (In re Lewis), 271 B.R. 877 (10th Cir. BAP 2002) (McFeeley, C.J.) (before McFeeley, C.J., and Clark & Michael, JJ.)
(Appeal from the United States Bankruptcy Court for the District of Kansas).

A bankruptcy court order allowing judgment creditors to amend their complaint under Fed. R. Bankr. P. 7015 to add a cause of action under 11 U.S.C. § 523(a)(2)(A) was AFFIRMED, but the bankruptcy court's summary judgment excepting the creditors' debt from discharge was REVERSED. The summary judgment was entered in error because collateral estoppel did not bar the debtor from relitigating whether a state court judgment should be excepted from discharge under § 523(a)(2)(A). Relying on 28 U.S.C. § 158(a)(3), Fed. R. Bankr. P. 8001(b) and 8003(c), the Court granted the creditors leave to appeal the interlocutory order allowing them permission to amend their complaint. The bankruptcy court did not abuse its discretion in allowing the creditors to amend their complaint under Rule 7015, because the debtor was not prejudiced by the addition of the § 523(a)(2)(A) cause of action which arose out of the same facts as the causes of action originally plead by the creditors.

178. In re Morgan, 285 B.R. 344, 2002 WL 191995, BAP No. WO-01-070 (10th Cir. BAP filed Feb. 7, 2002) (Pusateri, J.) (before McFeeley, C.J., and Pusateri & Boulden, JJ.) (Appeal from the United States Bankruptcy Court for the Western District of Oklahoma).

A bankruptcy court order avoiding pursuant to 11 U.S.C. § 522(f)(1)(B) a nonpossessory, nonpurchase-money security interest in tools of the trade claimed to be exempt under Oklahoma law was REVERSED and the matter was REMANDED. The bankruptcy court erred in avoiding the secured creditors' lien prior to ruling on its objection to the Chapter 7 debtors' claimed exemption which was timely filed under Fed. R. Bankr. P. 4003(b). The secured creditor had not waived its argument based on the exemption objection on appeal by failing to first seek reconsideration of the bankruptcy court's judgment under Fed. R. Civ. P. 59, made applicable in bankruptcy under Fed. R. Bankr. P. 9023.

179. In re Lowther, 285 B.R. 344, 2002 WL 199836, BAP No. WO-01-081 (10th Cir. BAP filed Feb. 8, 2002) (Clark, J.) (before McFeeley, C.J., and Pusateri & Clark, JJ.) (Appeal from the United States Bankruptcy Court for the Western District of Oklahoma), aff'd, 52 Fed. Appx. 476, 2003 WL 31745059 (10th Cir. filed Dec. 9, 2002).

A bankruptcy court order denying the Chapter 7 debtor's application seeking a contempt citation against her former spouse for violating her discharge by seeking enforcement of a prepetition lien against homestead property was AFFIRMED. The former spouse's lien on the homestead was not affected by the debtor's discharge under 11 U.S.C. § 727(b), which only discharges prepetition "debts." Furthermore, the spouse's acts to enforce the lien were not a violation of 11 U.S.C. § 524(a)(2), which only enjoins acts to collect a discharged debt as a personal liability of the debtor, not a lienholder's in rem action against property securing a lien. The spouse's failure to perfect his lien under Oklahoma law and to file a proof of claim in the debtor's Chapter 7 case did not affect the existence and validity of his lien. A lien will not be void under 11 U.S.C. § 506(d) due solely to the lack of a filed proof of claim, and a secured creditor is not required to file a proof of claim under Fed. R. Bankr. P. 3002(a). Other arguments related to the validity of the spouse's lien were rejected, including that the spouse was required to object to the debtor's claimed homestead exemption in the property. Under 11 U.S.C. § 522(c), property subject to a lien, even if exempt, is liable for a prepetition debt, unless the lien is avoided. No action to avoid the spouse's lien had been commenced at the time that the bankruptcy court entered its order.

180. Sloan v. Tirey (In re Tirey), 285 B.R. 344, 2002 WL 499296, BAP No. EO-01-025 (10th Cir. BAP filed March 26, 2002) (Pusateri, J.) (before McFeeley, C.J, and Pusateri & Clark, JJ.) (Appeal from the United States Bankruptcy Court for the Eastern District of Oklahoma).

After remand from this Court, see Sloan v. Tirey (In re Tirey), 271 B.R. 213, 2001 WL 963996, BAP No. EO-01-025 (10th Cir. BAP filed Aug. 24, 2001) [165], the bankruptcy court supplemented its findings of fact and conclusions of law in support of its judgment denying the debtor's discharge under 11 U.S.C. § 727(a)(4) and (a)(7). This supplemented judgment was AFFIRMED, because the bankruptcy court applied the correct law and its findings of fact were not clearly erroneous.

181. Armstrong v. Potter (In re Potter), 285 B.R. 344, 2002 WL 463704, BAP No. UT-01-27 (10th Cir. BAP filed March 27, 2002) (Michael, J.) (before Pusateri, Bohanon & Michael, JJ.) (Appeal from the United States Bankruptcy Court for the District of Utah).

The Court RETAINED JURISDICTION over the appeal and REMANDED the case to the bankruptcy court for the limited purpose of entering an order on a motion for reconsideration. The motion for reconsideration, that was filed within ten days of a minute entry dismissing an adversary proceeding, was treated as a motion for a new trial under Fed. R. Civ. P. 59, made applicable in bankruptcy under Fed. R. Bankr. P. 9023. The bankruptcy court entered a separate, final order dismissing the adversary proceeding after the filing of the motion for reconsideration, but did not address the post-minute entry motion. The Court, therefore, remanded the case to the bankruptcy court to allow it to rule on the motion for reconsideration prior to ruling on the merits of the appeal. The effect that post-judgment motions have on the timing of an appeal under Fed. R. Bankr. P. 8002(b) is discussed. See Armstrong v. Potter (In re Potter), 285 B.R. 344, 2002 WL 31802978, BAP No. UT-01-027 (10th Cir. BAP filed Oct. 8, 2002), appeal dismissed, 101 Fed. Appx.770, 2004 WL 1173174, No. 02-4220 (10th Cir. filed May 27, 2004)

182. In re Armstrong, 285 B.R. 344, 2002WL 471332, BAP No. UT-01-39 (10th Cir. BAP filed March 28, 2002) (Bohanon, J.) (before Pusateri, Bohanon, & Michael, JJ.) (Appeal from the United States District Court for the District of Utah), aff’d,
99 Fed. Appx. 210, 2004 WL 1173142, No. 02-4081 (10th Cir. filed May 27, 2004).

A bankruptcy court order overruling objections to and approving a settlement agreement entered into by the Chapter 11 trustee for the debtor and the Chapter 7 trustee in the case of an affiliated debtor-partnership was AFFIRMED. The bankruptcy court properly considered the factors necessary to approve a settlement agreement under Fed. R. Bankr. P. 9019 and did not abuse its discretion in approving the settlement agreement proposed by the trustees.

183. State of Missouri v. Audley (In re Audley), 275 B.R. 383 (10th Cir. BAP 2002) (McFeeley, C.J.) (before McFeeley, C.J., and Cornish & Cordova, JJ.) (Appeal from the United States Bankruptcy Court for the District of Kansas), reported at 268 B.R. 279).

A bankruptcy court summary judgment excepting a debt from discharge under 11 U.S.C. § 523(a)(2)(A) was AFFIRMED. The Chapter 7 debtor was barred under the collateral estoppel doctrine from relitigating the dischargeability of a prepetition state court judgment holding the debtor liable for violations of Missouri's consumer protection statutes. Review of the constitutionality of the state court judgment was barred under the Rooker-Feldman doctrine.

184. In re Anderson, 275 B.R. 922 (10th Cir. BAP 2002) (Cornish, J.) (before McFeeley, C.J., and Cornish & Cordova, JJ.)(Appeal from the United States Bankruptcy Court for the District of Kansas).

A bankruptcy court order disallowing a creditor who filed an untimely proof of claim a distribution in the case was REVERSED. Although tardy, the creditor's proof of claim was filed before the Chapter 7 trustee "commenced distribution" within the meaning of 11 U.S.C. § 726(a)(1) inasmuch as it was filed prior to the entry of an order approving the trustee's final report.

185. Kelaidis v. Community First Nat'l Bank (In re Kelaidis), 276 B.R. 266 (10th Cir. BAP) (Pusateri, J.) (before Pusateri, Bohanon, & Michael, JJ.) (Appeal from the United States Bankruptcy Court for the District of Utah), appeal voluntarily dismissed, No. 02-4071 (10th Cir. filed June 3, 2002).

A bankruptcy court judgment disallowing a creditor's claim against the Chapter 13 debtors was AFFIRMED. The debtors, who had guarantied an insider corporation's debts to the lender-creditor, were not liable for a deficiency claim resulting from the lender's commercially unreasonable sale of collateral. Under Utah law, the commercially unreasonable sale barred the lender from asserting a deficiency claim and from foreclosing against the debtors' real property. The debtor-guarantors were not barred from attacking the reasonableness of the sale under the Utah version of Uniform Commercial Code § 3-605 because they were not accommodation makers of the underlying note. Even if the debtors were accommodation makers, they had the right to attack the reasonableness of the sale under Utah's version of Uniform Commercial Code §§ 9-501(3)(b) and 9-504(3).

186. Carbaugh v. Carbaugh (In re Carbaugh), 278 B.R. 512 (10th Cir. BAP 2002) (McFeeley, C.J.) (before McFeeley, C.J., and Cornish & Cordova, JJ) (Appeal from the United States District Court for the District of Kansas).

A bankruptcy court order granting the debtor's former spouse relief from the automatic stay to continue state court litigation against the debtor to determine her ownership rights in certain retirement plans, and an order sustaining objections by the spouse and the Chapter 7 trustee to the debtor's claimed exemption in the retirement plans and an investment account was AFFIRMED. The ERISA-qualifying retirements plan were not property of the estate under 11 U.S.C. § 541(c)(2) and Patterson v. Shumate, 504 U.S. 753 (1992), and therefore, they could not be exempted from the estate. The investment account also could not be claimed as exempt under 11 U.S.C. § 522(b), ERISA or Kansas law. Finally, bankruptcy court did not abuse its discretion by granting the spouse relief from the automatic stay for "cause" under 11 U.S.C. § 362(d)(1). A spouse's rights in an ERISA-qualifying retirement plan and "Qualified Domestic Relations Orders" are discussed.


187. Kittel v. First Union Nat'l Bank (In re Kittel), 285 B.R. 344, 2002 WL 924619, BAP Nos. WO-01-094 & WO-01-095 (10th Cir. BAP filed May 8, 2002) (Nugent, J.) (before Pusateri, Boulden & Nugent, JJ.) (Appeal from the United States Bankruptcy Court for the Western District of Oklahoma), appeal dismissed for lack of prosecution, No. 02-6247 (10th Cir. filed Jan. 6, 2003).


Various orders of the bankruptcy court were AFFIRMED, and the Appellants' request for sanctions was DENIED. A bank's claim against the Chapter 13 debtor for prepetition attorney's fees incurred in foreclosing on real property was allowable under the relevant contracts and a prepetition state court foreclosure judgment. The Appellants, the debtor and her spouse, were barred under principles of collateral estoppel from attacking the state court judgment, and that judgment was entitled to full faith and credit under the Constitution and 28 U.S.C. § 1738. The bank properly requested the awarded fees in its proof of claim against the debtor, under 11 U.S.C. § 502(a) and Fed. R. Bankr. P. 3001(f), its proof of claim served as prima facie evidence of the validity and amount of the claim, and the debtor failed to bring forth any evidence to attack the claim. 11 U.S.C. § 1322(b)(2) prohibited the debtor from modifying the secured bank's "rights" and, therefore, the bank was entitled to assert the full amount of its claim against the debtor. The bank was not required to comply with Fed. R. Bankr. P. 2016(a) in making a fee request, because that Rule only applies to fees requested for services rendered to a bankruptcy estate. The debtor's spouse's attack of an order granting the bank relief from the automatic stay to confirm its foreclosure sale was an improper collateral attack of a final order. Finally, the bankruptcy court did not err in refusing to confirm the debtor's Chapter 13 plan which, in light of the amount of the bank's allowed claim, was not feasible. Although orders denying confirmation of a Chapter 13 plan are not typically "final" orders subject to review under 28 U.S.C. § 158(a), the order in this case was final because it served to terminate the debtor's Chapter 13 case.

188. In re Lampe, 278 B.R. 205 (10th Cir. BAP 2002) (Cordova, J.) (before McFeeley, C.J., and Cornish & Cordova, JJ.) (Appeal from the United States Bankruptcy Court for the District of Kansas), aff'd, 331 F.3d 750 (10th Cir. 2003).

A bankruptcy court order overruling objections to the debtor-husband's claimed exemption in tools of the trade was AFFIRMED, but its order sustaining objections to the debtor-wife's same exemption was REVERSED. The debtors, who had temporarily ceased their farming operations, were entitled to claim farm equipment as tools of the trade under Kansas law. The debtor-wife had a sufficient interest in the equipment to claim an exemption therein. Burden of proof related to exemption objections under Fed. R. Bankr. P. 4003(c) discussed.

189. In re Armstrong, BAP No. UT-02-038 (10th Cir. BAP filed May 22, 2002) (before Pusateri, Bohanon, & Michael, JJ.) (Appeal from the United States Bankruptcy Court for the District of Utah), aff’d, 101 Fed. Appx., 766, 2004 WL 1173161, No. 02-4106 (10th Cir. filed May 27,

A notice of election to have appeal heard by the District Court, as opposed to the Bankruptcy Appellate Panel, was DENIED because it failed to comply with Fed. R. Bankr. P. 8001(e) and was untimely under 28 U.S.C. § 158(c)(1). The appeal was DISMISSED because the Appellant failed to pay filing fees.

190. In re Cowdin, 292 B.R. 711, 2002 WL 1300704, BAP No. WO-01-080 (10th Cir. BAP filed May 30, 2002) (per curiam) (before Clark, Cordova & Brown, JJ.) (Appeal from the United States Bankruptcy Court for the Western District of Oklahoma).

A bankruptcy court order denying a creditor's motion to extend the deadline to file a complaint against the Chapter 7 debtors pursuant to 11 U.S.C. § 523(a)(2) was AFFIRMED. The motion was untimely under 11 U.S.C. § 523(c) and Fed. R. Bank. P. 4007(c) and 9006(b)(3). "Excusable neglect" under Fed. R. Bankr. P. 9006(b)(1) did not apply to allow a late-filed complaint, and the creditor's nondischargeability claim did not "relate back" to pleadings filed in the debtors' previous Chapter 13 case. Finally, 11 U.S.C. § 105(a) could not be used to expand the strict time periods set forth in Rule 4007(c).

191. In re Armstrong, BAP No. UT-02-011 (10th Cir. filed June 2, 2002) (before Pusateri, Bohanon, & Michael, JJ.)(Appeal from the United States Bankruptcy Court for the District of Utah), appeal dismissed, 99 Fed. Appx., 860, 2004 WL 1173148 No. 02-4101 (10th Cir. filed May 27, 2004).

Appeal was DISMISSED for lack of appellate jurisdiction because the Appellant's notice of appeal was not timely filed under Fed. R. Bankr. P. 8002(a).

192. In re Wynn, 285 B.R. 344, 2002 WL 1270176, BAP No. WO-02-010 (10th Cir. BAP filed June 7, 2002) (Boulden, J.) (before McFeeley, C.J., and Boulden & Nugent, JJ.) (Appeal from the United States Bankruptcy Court for the Western District of Oklahoma).

A bankruptcy court order disallowing an unsecured claim in its entirety was AFFIRMED. 11 U.S.C. § 502(b)(9) and Fed. R. Bankr. P. 3002(a) and 9006(b)(3) mandate unsecured creditors to file proofs of claim and, therefore, the bankruptcy court did not err in disallowing the claim. Furthermore, the creditor had not filed an informal proof of claim.

193. Daniels v. Clark (In re Clark), 2002 WL 1821600, BAP No. WO-01-026 (10th Cir. BAP filed Aug. 2, 2002) (Brown, J.) (before Clark, Cordova, & Brown, JJ.) (Appeal from the United States Bankruptcy Court for the Western District of Oklahoma).

The bankruptcy court's summary judgment in favor of the debtor, dismissing the plaintiff's claims under 11 U.S.C. § 523(a)(2)(A) and (a)(6), was AFFIRMED. A debtor's promise of future intention may be a false representation under § 523(a)(2)(A). But, the plaintiff failed to show that the debtor knew that his statement of future intention was false when made and, therefore, the bankruptcy court did not err in granting the debtor summary judgment. Summary judgment in favor of the debtor was also appropriate under § 523(a)(6) because the plaintiff failed to assert any facts supporting an intentional interference with contract action under Oklahoma law.

194. Dimeff v. Good (In re Good), 281 B.R. 689 (10th Cir. BAP 2002) (Clark, J.) (before Pusateri, Clark, & Bohanon, JJ.) (Appeal from the United States Bankruptcy Court for the District of New Mexico).

A motion to dismiss the appeal was GRANTED in part, and DENIED in part. The Court lacked jurisdiction under 28 U.S.C. § 158(a) over an appeal of orders for which no timely notice of appeal had been filed under Fed. R. Bankr. P. 8002. A motion for fees and costs under 11 U.S.C. § 523(d) did not toll the time to appeal a judgment dismissing causes of action under 11 U.S.C. §§ 523(a) and 727(a). Furthermore, the appeal of the judgment allowing the § 523(d) fees was untimely because the notice of appeal was filed more than ten days after the entry of a judgment allowing the fees. Fed. R. Bankr. P. 7054, 9001(7), 9002(5), 9021. The entry of a later identical judgment did not commence or recommence the time to appeal under Rule 8002 because it merely copied the first order allowing § 523(d) fees. The Court AFFIRMED the only order over which it had jurisdiction–the order denying a motion for reconsideration which was brought under Fed. R. Bankr. P. 9023 or 9024.

195. In re Schott, 282 B.R. 1 (10th Cir. BAP 2002) (McFeeley, C.J.) (before McFeeley, C.J., and Pusateri & Nugent, JJ.) (Appeal from the United States Bankruptcy Court for the District of Wyoming).

A bankruptcy court order denying the Chapter 7 debtors' motion seeking to hold a creditor in contempt for violating their discharge under 11 U.S.C. § 524(a) was AFFIRMED in part where a binding reaffirmation agreement existed. The bankruptcy court did not err in upholding the reaffirmation agreement, which the debtors did not argue was improper under 11 U.S.C. § 524(c), or in its interpretation of the agreement. The case was REMANDED in part allow the bankruptcy court to address certain charges made under the agreement.

196. In re Petroleum Production Management, Inc., 282 B.R. 9 (10th Cir. BAP 2002) (Cordova, J.) (before Bohanon, Cornish, & Cordova, JJ.) (Appeal from the United States Bankruptcy Court for the District of Kansas).

An appeal of an order denying a motion to reopen the debtor's Chapter 11 case was DISMISSED. Although the Appellant, a purchaser of the debtor's assets, had standing to request that the debtor's case be reopened, it lacked standing to appeal the order denying that request because it was not affected pecuniarily. Even if the Appellant had standing to appeal, the bankruptcy court did not abuse its discretion in refusing to reopen the debtor's case under 11 U.S.C. § 350(b).

197. In re Beach, 281 B.R. 917 (10th Cir. BAP 2002) (Clark, J.) (before Clark, Cornish, & Michael, JJ.) (Appeal from the United States Bankruptcy Court for the District of Kansas).

A bankruptcy court order requiring the Chapter 7 debtors to turnover their tax returns and any portion of a tax refund attributable to the prepetition year was AFFIRMED. The trustee's turnover requests was within the scope of his duties under 11 U.S.C. § 704(1), and the debtors had a duty to comply under 11 U.S.C. § 521(3) and (5) and Fed. R. Bankr. P. 4002(4). Refusal to turnover the tax returns could result in a denial of the debtors' discharge, subject them to criminal liability under 18 U.S.C. §§ 151(1), 151(9) and 3284, and to the imposition of sanctions. 26 U.S.C. § 6103 had no application to the trustee's request.

198. In re Vigil, 282 B.R. 234 (10th Cir. BAP 2002) (Michael, J.) (Boulden, Michael, & Cordova, JJ.) (Appeal from the United States Bankruptcy Court for the District of Wyoming), rev'd, 74 Fed. Appx. 19, 2003 WL 22024830, Nos. 02-8093 & 02-8094 (10th Cir. filed Aug. 26, 2003).

Bankruptcy court orders in two cases sustaining objections to the Chapter 7 debtors' claimed exemption in the cash surrender value of life insurance polices was AFFIRMED. The exemptions were properly disallowed under Wyoming law.

198A. Davis v. Chapman (In re Chapman), 292 B.R. 711, 2002 WL 1926137, BAP No. NO-02-025 (10th Cir. BAP filed Aug. 21, 2002)(Pusateri, J.) (before McFeeley, C.J., and Pusateri & Boulden, JJ.) (Appeal from the United States Bankruptcy Court for the Northern District of Oklahoma).

A bankruptcy court order excepting the debtor's former spouse's claim for attorney fees and costs from discharge under 11 U.S.C. § 523(a)(5) was AFFIRMED.

199. Garrett v. NEBHELP, Inc. (In re Garrett), 292 B.R. 711, 2002 WL 1926153, BAP No. WO-02-027 (10th Cir. BAP filed Aug. 21, 2002) (Pusateri, J.) (before Pusateri, Clark, & Cordova, JJ.) (Appeal from the United States Bankruptcy Court for the Western District of Oklahoma), aff'd, 64 Fed. Appx. 739, 2003 WL 21267791, No. 02-6304 (10th Cir. filed June 3, 2003).

A bankruptcy court judgement refusing to except the Chapter 7 debtors' student loan debt from discharge under 11 U.S.C. § 523(a)(8) was AFFIRMED. The bankruptcy court correctly found that repayment of the debt was not an "undue hardship."

200. In re Furr's Supermarkets, Inc., 283 B.R. 60 (10th Cir. BAP 2002) (Nugent, J.) (before Boulden, Cornish, & Nugent, JJ.) (Appeal from the United States Bankruptcy Court for the District of New Mexico).

A bankruptcy court order granting a Chapter 7 trustee's motion for an extension of time to assume or reject a nonresidential real property lease was AFFIRMED. The order, which calculated payments that the trustee was required to make to the lessor under 11 U.S.C. § 365(d)(3) for the period of time that the debtor occupied the property after its Chapter 11 case was converted to Chapter 7, correctly adopted the majority "proration" calculation method, as opposed to a "performance date" rule.

201. In re Bennett, 283 B.R. 308 (10th Cir. BAP 2002) (Clark, J.) (before Clark, Bohanon, & Nugent, JJ.) (Petition for Writ of Mandamus Directed at the United States Bankruptcy Court for the District of New Mexico).

The debtors and their attorney filed a notice of appeal from several bankruptcy court orders in which the judge refused to recuse himself from the debtors' Chapter 12 case. The notice of appeal was treated as a petition for writ of mandamus. As a court "established by an Act of Congress," jurisdiction existed under 28 U.S.C. § 1651(a) to consider the petition, and the petition was DENIED. The bankruptcy judge's refusal to recuse himself from the case was not an abuse of discretion under 28 U.S.C. § 455(a) and Fed. R. Bankr. P. 5004. Standards applicable to mandamus and recusal requests discussed.

202. Armstrong v. Potter (In re Potter), 285 B.R. 344, 2002 WL 31802978, BAP No. UT-01-027 (10th Cir. BAP filed Oct. 8, 2002) (Michael, J.) (Pusateri, J., dissenting) (before Pusateri, Bohanon, & Michael, JJ.) (Appeal from the United States Bankruptcy Court for the District of Utah), appeal dismissed, 101 Fed. Appx. 770, 2004 WL 1173174, No. 02-4220 (10th Cir. filed May 27, 2004).

APPEAL FILED

An appeal from a bankruptcy court order dismissing the plaintiff's adversary proceeding against the debtor was DISMISSED, and a bankruptcy court order denying the plaintiff's motion to recuse was AFFIRMED. The plaintiff, also a debtor, lacked standing to prosecute the appeal because a Chapter 11 trustee had been appointed in his case, he had failed to show that he was a "person aggrieved," and he had not moved to intervene in the proceeding under Fed. R. Bankr. P. 24. The order denying the plaintiff's recusal motion was appropriate under 28 U.S.C. § 455.

203. In re Myers, 284 B.R. 478 (10th Cir. BAP 2002) (Bohanon, J.) (before Bohanon, Boulden, & Nugent, JJ.) (Appeal from the United States Bankruptcy Court for the District of New Mexico).

APPEAL FILED

A bankruptcy court order denying a governmental agency's motion for relief from stay to affect a post-discharge setoff was AFFIRMED. The agency could not setoff its claim against the debtors against the debtors' claim against it and, therefore, there was no cause to lift the automatic stay. Because the debtors had received a discharge under 11 U.S.C. § 727(b), the agency had no "claim" under 11 U.S.C. § 101(5) and (12) against them to set off as required under 11 U.S.C. § 553(a).

204. Reeves v. Stewart (In re Stewart), 292 B.R. 711, 2002 WL 31422026, BAP No. WO-02-040 (10th Cir. BAP filed Oct. 29, 2002) (Pusateri, J.) (before Pusateri, Clark, & Cordova, JJ.) (Appeal from the United States Bankruptcy Court for the Western District of Oklahoma).

A bankruptcy court order granting a motion under Fed. R. Bankr. P. 7052 in an adversary proceeding commenced under 11 U.S.C. § 523(a)(2)(A) and granting judgment in favor of the debtor was AFFIRMED. The Appellant-creditor failed to show that any of the bankruptcy court's findings of fact in support of its order and judgment were clearly erroneous. The Appellant's argument that her claim against the debtor was nondischargeable under 11 U.S.C. § 523(a)(2)(B) was rejected because it had not been raised below and, therefore was waived on appeal.

205. In re Miller, 284 B.R. 734 (10th Cir. BAP 2002)(Michael, J) (before McFeeley, C.J., & Bohanon and Michael, JJ.)(Appeal from the United States Bankruptcy Court for the District of Utah).

A bankruptcy court order allowing a claim of the debtor's former spouse as a unsecured priority claim under 11 U.S.C. § 507(a)(7) was AFFIRMED. Applying the tests used under 11 U.S.C. § 523(a)(5), the Court held that the claim was in the nature of alimony and support entitled to priority under § 507(a)(7).

206. Salazar v. Bekaert (In re Crestview Funeral Home, Inc.), 292 B.R. 711, 2002 WL 31794155, BAP No. NM-02-046 (10th Cir. BAP filed Dec. 13, 2002) (Pusateri, J.) (before Pusateri, Cornish, & Nugent, JJ.) (Appeal from the United States Bankruptcy Court for the District of New Mexico).

A bankruptcy court's directed verdict against the debtor under Fed. R. Bankr. P. 7052 was AFFIRMED because the Appellant failed to provide an adequate record for review.

207. Salazar v. McCormick (In re Crestview Funeral Home, Inc.), 292 B.R. 711, 2002 WL 31793997, BAP No. NM-02-044 (10th Cir. BAP filed Dec. 13, 2002) (Pusateri, J.) (before Pusateri, Cornish, & Nugent, JJ.) (Appeal from the United States Bankruptcy Court for the District of New Mexico).

A bankruptcy court's order denying the debtor's emergency writ of habeas corpus was AFFIRMED. Bankruptcy courts lack jurisdiction to issue writs of habeas corpus, and even if jurisdiction existed, the debtor failed to prove that he was entitled to such a writ under 28 U.S.C. § 2256 (repealed).

208. In re Kleinfeldt, 287 B.R. 291 (10th Cir. BAP 2002) (Bohanon, J.) (before Bohanon, Boulden, & Cornish, JJ.)(Appeal from the United States Bankruptcy Court for the District of Wyoming).

A bankruptcy court order denying the Chapter 7 debtor and his nondebtor spouse's motion for turnover of a tax refund was AFFIRMED. The nondebtor spouse, a homemaker, was not entitled to any of the refund and, therefore, the entire refund was property of the debtor's estate under 11 U.S.C. § 541(a)(1). Tax refunds are defined.

209. In re Baker, __ B.R. __, 2003 WL 90453, BAP No. NM-02-018 (10th Cir. BAP filed Jan. 10, 2003) (Nugent, J.) (before Pusateri, Cornish, & Nugent, JJ.) (Appeal from the United States Bankruptcy Court for the District of New Mexico).

A bankruptcy court order confirming a Chapter 11 plan of reorganization was AFFIRMED. The bankruptcy court's findings of fact supporting its conclusion that the plan was feasible under 11 U.S.C. § 1129(a)(11) were not clearly erroneous.

209A. Lea County State Bank v. Eunice Public Schools (In re Sims), 294 B.R. 198, 2003 WL 131806, BAP No. NM-02-069 (10th Cir. BAP filed Jan. 16, 2003) (Michael, J.) (before Bohanon, Michael, & Nugent, JJ.) (Appeal from the United States Bankruptcy Court for the District of New Mexico).

After the dismissal of the debtors' Chapter 13 case, a creditor sought to garnish the funds that had been paid to the trustee during the case. The debtors, however, had previously served the trustee with a notice of assignment, assigning the funds to their attorney. The bankruptcy court's order holding that the debtors' assignment was valid and, therefore, precluded the creditor from garnishing the funds was AFFIRMED.

210. In re Miller, 288 B.R. 879 (10th Cir. BAP 2003)(Cornish, J.) (before Pusateri, Cornish, & Nugent, JJ.)Appeal from the United States Bankruptcy Court for the District of New Mexico).

A bankruptcy court order reducing the fees of the Chapter 12 debtors' attorney, and requiring that the fees be paid as an administrative expense through the confirmed plan was AFFIRMED. The bankruptcy court did not err in reducing the hourly rate of the debtors' attorney under 11 U.S.C. § 330. Furthermore, the debtors' confirmed plan provided for the payment of the fees as an administrative expense, as opposed to being paid directly to the attorney.

211. In re Schott, __ B.R. __, 2003 WL 729070, BAP No. WY-02-073 (10th Cir. BAP filed March 3, 2003) (Clark, J.) (before Pusateri, Clark, & Cornish, JJ.) (Appeal from the United States Bankruptcy Court for the District of Wyoming), appeal dismissed, No. 03-8028 (10th Cir. filed Sept. 21, 2004)

A motion to dismiss the appeal was DENIED, and the bankruptcy court's orders were AFFIRMED. The Appellants' corrected notice of appeal, filed eleven days after the entry of the order appealed and designating a second order for appeal, was a proper motion to amend the timely-filed notice of appeal. The motion to amend was granted because Fed. R. Bankr. P. 8001(a) does not require that orders appealed be designated, and there was no prejudice to the Appellee by the prompt correction of orders appealed. The stricter rule for designating orders for appeal set forth in Fed. R. App. P. 3(c)(1)(B) is liberally construed in the Tenth Circuit. The Court refused to reverse the bankruptcy court's order, entered after a remand in In re Schott, 282 B.R. 1 (10th Cir. BAP 2002) [195]. The appeal was an attack of the Court's earlier controlling decision. The bankruptcy court did not abuse its discretion in refusing to amend its judgment under Fed. R. Bankr. P. 9023.

212. Webster v. TEC Resources, LLC (In re TEC Resources, LLC), __ B.R. __, 2003 WL 938818, BAP No. NO-02-056 (10th Cir. BAP filed March 10, 2003) (Clark, J.) (Cordova, J., concurring) (before McFeeley, C.J., & Clark and Cordova, JJ.) (Appeal from the United States Bankruptcy Court for the Northern District of Oklahoma).

A bankruptcy court summary judgment in favor of the reorganized Chapter 11 debtor in an adversary proceeding seeking to set aside an order approving a court-approved sale, and an order denying the plaintiff-Appellants' motion for rehearing were AFFIRMED. The Court lacked jurisdiction to review the order approving the sale because it was not timely appealed. But, in light of the Appellants' pro se status, the Court considered whether the sale order could be set aside as a void judgment pursuant to Fed. R. Bankr. P. 9024 and Fed. R. Civ. P. 60(b). The sale order was not set aside because the Appellants failed to show that it was entered as a result of fraud, or that the bankruptcy court lacked jurisdiction to enter the order.

213. In re Schicke, 290 B.R. 792 (10th Cir. BAP 2003)(Clark, J.) (Cordova, J., dissenting) (before Clark, Cornish, & Cordova, JJ.)(Appeal from the United States Bankruptcy Court for the District of Kansas) aff’d, __97 Fed. Appx. __249, 2004 WL 790295, No. 03-3114 (10th Cir. filed April 14, 2004).

A bankruptcy court order denying a creditor's motion to reopen the debtor's closed Chapter 7 case pursuant to 11 U.S.C. § 350(b) was AFFIRMED because reopening the case would afford the creditor no relief. The creditor sought to reopen the case to commence an adversary proceeding seeking to except its claim from discharge, even though the time for filing such a complaint had lapsed under 11 U.S.C. § 523(c) and Fed. R. Bankr. P. 4007(c). 11 U.S.C. § 523(a)(3)(B) did not extend the deadline to file a dischargeability complaint because the creditor had knowledge of the debtor's case through its attorney-agent. The debtor properly scheduled the creditor in the care of its attorney under Fed. R. Bankr. P. 1007(b), and the attorney's receipt of notice prior to the expiration of the deadline to file dischargeability complaints was imputed to the creditor. Given the facts of the case, such imputed notice was proper under 11 U.S.C. § 342 and did not offend due process.

214. In re Black, __ B.R. __, 2003 WL 1191733, BAP Nos. UT-02-065 & UT-02-066 (10th Cir. BAP filed March 14, 2003)
(McFeeley, C.J.) (before McFeeley, C.J., & Pusateri and Cordova, JJ.) (Appeal from the United States Bankruptcy Court for the District of Utah).

APPEAL FILED

Bankruptcy court orders disallowing a portion of a proof of claim and denying a motion for reconsideration were AFFIRMED because the parties had failed to provide the Court with an adequate record for review.

215. In re Moore, __ B.R. __, 2003 WL 1389066, BAP No. EO-02-078 (10th Cir. BAP filed March 20, 2003) (Nugent, J.) (before Boulden, Cordova, & Nugent, JJ.) (Appeal from the United States Bankruptcy Court for the Eastern District of Oklahoma).

Appeal of a bankruptcy court order denying a motion for reconsideration from an earlier order holding that criminal prosecution of the debtor was excepted from the automatic stay was DISMISSED as moot. The Court was unable to afford the debtor-Appellant any relief on appeal because he failed to obtain a stay pending appeal and, therefore, prosecution of the case went forward and he served his sentence. Even if the Court were to reverse the order appealed, it would not be a void judgment that could be used to expunge the debtor's criminal record.

216. In re Robinson, 294 B.R. 198, 2003 WL 1442465, BAP No. UT-02-043 (10th Cir. BAP filed March 21, 2003) (Pusateri, J.) (before McFeeley, C.J., & Pusateri & Cordova, JJ.) (Appeal from the United States Bankruptcy Court for the District of Utah). Related Order 216a

Appeal from a bankruptcy court order dismissing the debtor's Chapter 13 case with prejudice was DISMISSED as moot.

217. In re Black, 292 B.R. 693 (10th Cir. BAP 2003)(Pusateri, J.) (before McFeeley, C.J., & Pusateri and Cordova, JJ.)(Appeal from the United States Bankruptcy Court for the District of Utah).

APPEAL FILED

The bankruptcy court's order confirming the debtor's Chapter 13 plan was AFFIRMED, but a later order modifying the confirmed plan was REVERSED, and the case was REMANDED. The Appellant's points of error related to the confirmation order had not been raised in the bankruptcy court and, therefore, were waived on appeal. The order modifying the confirmed plan was in error because it provided payments that exceeded the time limits set forth in 11 U.S.C. §§ 1322(d) and 1329(c).

218. In re Kopexa Realty Venture Co., 294 B.R. 198, 2003 WL 21191108, BAP No. KS-02-042 (10th Cir. BAP filed May 21, 2003)
(Boulden, J.) (before Boulden, Michael, & Brown, JJ.) (Appeal from the United States Bankruptcy Court for the District of Kansas).

Appeal was DISMISSED for lack of appellate jurisdiction because it was moot, the Appellant lacked standing, and the relief sought was not appropriate for appellate review.

219. Lang v. Lang (In re Lang), 293 B.R. 501 (10th Cir. BAP)(McFeeley, C.J.) (before McFeeley, C.J., & Bohanon and Cornish, JJ.) (Appeal from the United States Bankruptcy Court for the District of Utah), motion for rehearing denied, BAP No. UT-01-097 (10th Cir. BAP filed June 24, 2003), appeal dismissed for lack of jurisdiction, No. 03-4154 (10th Cir. filed Oct. 1, 2003), , appeal of rehearing order dismissed, No. 03-4241 (10th Cir. filed July 8, 2004).

A bankruptcy court judgment, excepting the debtor's former spouse's claim from discharge under 11 U.S.C. § 523(a)(2)(A), was AFFIRMED in part and REVERSED in part. The Appellee's objection to the Appellant's designation of record under Fed. R. Bankr. P. 8006 was construed as a motion to strike, and was DENIED. The successor judge who was assigned to the adversary proceeding after trial had commenced did not err under Fed. R. Civ. P. 63, made applicable under Fed. R. Bankr. P. 9028. There was no error in holding the spouse's claim to be nondischargeable under § 523(a)(2)(A). Although bankruptcy courts have authority to award damages under § 523(a), the matter was remanded for a determination of the amount of compensatory damages. The bankruptcy court's award of punitive damages was reversed because applicable law did not support such an award and, in making the award, the bankruptcy court acted beyond the scope of a remand order from the Court of Appeals for the Tenth Circuit.

220. Rural Enterprises of Okla., Inc. v. Watson (In re Watson), 294 B.R. 198, 2003 WL 21241702, BAP No. WO-02-090 (10th Cir. BAP filed May 29, 2003) (Thurman, J.) (before Boulden, Nugent, & Thurman, JJ.) (Appeal from the United States Bankruptcy Court for the Western District of Oklahoma).

A bankruptcy court judgment excepting a debt from discharge under 11 U.S.C. § 523(a)(2)(B) was AFFIRMED.

221. In re Busch, 294 B.R. 137 (10th Cir. BAP 2003)(Cornish, J.) (before Pusateri, Cornish, & Nugent, JJ.)(Appeal from the United States Bankruptcy Court for the District of Utah).

A bankruptcy court order granting a motion for relief from the automatic stay under 11 U.S.C. § 362(d)(1) was AFFIRMED. The creditor's judicial lien against the property in question was not avoidable pursuant to 11 U.S.C. § 522(f).

222. In re Farwell, 294 B.R. 198, 2003 WL 21339356, BAP No. KS-02-086 (10th Cir. BAP filed June 10, 2003) (Cornish, J.) (before Clark, Bohanon, & Cornish, JJ.) (Appeal from the United States Bankruptcy Court for the District of Kansas).

Two orders of the bankruptcy court were summarily AFFIRMED because the Appellants failed to provide an adequate record for review.

223. In re Mayes, 294 B.R. 145 (10th Cir. BAP 2003) (Nugent, J.) (McFeeley, C.J., dissenting) (before McFeeley, C.J., & Boulden and Nugent, JJ.) (Appeal from the United States Bankruptcy Court for the Eastern District of Oklahoma).

A bankruptcy court order dismissing the debtor's motion to avoid the Cherokee Nation's judicial lien under 11 U.S.C. § 522(f) under the common law doctrine of tribal sovereign immunity was AFFIRMED. The avoidance motion, brought as a contested matter under Fed. R. Bankr. P. 4003(d) and 9014, was a "suit" against the Nation from which the Nation was immune, and the Nation had not waived its immunity from suit.

224. Salazar v. McCormick (In re Crestview Funeral Home, Inc.), 294 B.R. 198, 2003 WL 21383005, BAP No. NM-02-070 (10th Cir. BAP filed June 16, 2003) (Boulden, J.) (before Boulden, Michael, & Brown, JJ.) (Appeal from the United States Bankruptcy Court for the District of New Mexico).

A bankruptcy court judgment concluding that the Chapter 7 trustee was not personally liable for his acts in the debtor's case was AFFIRMED. The bankruptcy court did not abuse its discretion in making certain procedural rulings, and its findings of fact in support of its judgment were not clearly erroneous.

225. In re Duncan, 294 B.R. 339 (10th Cir. BAP 2003)(Michael, J.) (before Boulden, Michael, & Brown, JJ.)(Appeal from the United States Bankruptcy Court for the District of Wyoming).

A bankruptcy court order disallowing a nondebtor spouse's claimed homestead exemption in property that she did not own was AFFIRMED. Under Wyoming law, a person must have an ownership interest in the property claimed as exempt. Furthermore, there is no provision in the Bankruptcy Code allowing a nondebtor to claim an exemption in a bankruptcy case. 11 U.S.C. § 522(l) only allows a nondebtor to claim an exemption on behalf of the debtor.

226. In re Armstrong, BAP No. UT-03-17 (10th Cir. BAP filed June 18, 2003) (before McFeeley, C.J. & Nugent, J.)(Appeal from the United States Bankruptcy Court for the District of Utah), , aff’d, 99 Fed. Appx. 866, 2004 WL 1173431, No. 03-4170 (10th Cir. filed May 27, 2004).

Appeal DISMISSED because the Appellant failed to file his appellate brief after two motions seeking an extension of time to do so were denied.

227. In re Armstrong, 294 B.R. 344 (10th Cir. BAP 2003) (McFeeley, C.J.) (before McFeeley, C.J., & Bohanon and Cordova, JJ.) B(Appeal from the United States Bankruptcy Court for the District of Utah), .aff’d, 97 Fed. Appx. 285, 2004 WL 1173434, No. 03-4177 (10th Cir. filed
May 27, 2004).

A bankruptcy court order under Fed. R. Bankr. P. 3018(a) temporarily allowing a creditor's claim was AFFIRMED. The appeal was not an improper collateral attack of a final order confirming a Chapter 11 plan. The appeal was moot. The Rooker-Feldman doctrine, collateral estoppel, and 11 U.S.C. § 1129(b) are discussed. The order temporarily allowing the claim was not a void judgment because notice was proper under 11 U.S.C. § 342. Also, the order, entered by a bankruptcy judge who later recused herself from the debtor's case pursuant to 28 U.S.C. § 455, was not void because the Appellant-debtor failed to show bias prior to recusal. Adequate record for review, 28 U.S.C. § 753(f), Fed. R. App. P. 10(b)(2) and 10th Cir. BAP L.R. 8009-1(b) are discussed.

228. In re Broadband Wireless Int'l Corp., 295 B.R. 140 (10th Cir. BAP 2003)(Clark, J.) (before Clark, Nugent, & Thurman, JJ.) (Appeal from the United States Bankruptcy Court for the Western District of Oklahoma).

A bankruptcy court order partially disallowing a proof of claim against the Chapter 11 debtor was AFFIRMED. The proof of claim was not prima facie evidence of the validity of the creditor's claim under Fed. R. Bankr. P. 3001(f) because it did not assert a claim against the debtor, and the creditor failed to meet its burden of showing that he had a claim against the debtor. The content of proofs of claim under 11 U.S.C. § 501, the affect of the debtor's scheduling of a claim under 11 U.S.C. § 1111 and Fed. R. Bankr. P. 3003, and the burden of proof related to claim objections under 11 U.S.C. § 502 discussed.

229. In re Medical Management Group, Inc., __ B.R. __, 2003 WL 21487310, BAP No. WO-03-004 (10th Cir. BAP filed June 27, 2003) (Starzynski, J.) (before Clark, Nugent, & Starzynski, JJ.) (Appeal from the United States Bankruptcy Court for the Western District of Oklahoma).

A bankruptcy court order denying relief from the automatic stay to continue an administrative action against the debtor's former officer in state court was REVERSED. The order denying stay relief was a "final order" under 28 U.S.C. § 158(a)(1). 11 U.S.C. § 362(a) did not apply to the nondebtor officer, and the officer had not met his burden of proving that he was entitled to an injunction under 11 U.S.C. § 105(a).

230. Rushton v. Star Diamonds, Inc. (In re Eleva, Inc.), __ B.R. __, 2003 WL 21516983, BAP No. UT-02-051 (10th Cir. BAP filed June 30, 2003) (Bohanon, J.) (before McFeeley, C.J., & Bohanon and Michael, JJ.) (Appeal from the United States Bankruptcy Court for the District of Utah).

After the trustee-plaintiff obtained a preference judgment against a creditor, he recovered the transferred property and sold it for less than the amount of the judgment. The trustee then commenced an adversary proceeding against the creditor-transferee's alleged principal, seeking payment of the deficiency. A bankruptcy court order granting the principal summary judgment was AFFIRMED because the principal was not liable to the estate under 11 U.S.C. § 550(a) for the deficiency. Pursuant to § 550(d), the trustee was only entitled to a single satisfaction of the avoided transfer.

231. In re Robinson, 295 B.R. 147 (10th Cir. BAP) (Nugent, J.) (before McFeeley, C.J., & Boulden and Nugent, JJ.) (Appeal from
the United States Bankruptcy Court for the Northern District of Oklahoma), appeal voluntarily dismissed, No. 03-5130 (10th Cir. filed Oct. 10, 2003).

A bankruptcy court order sustaining an objection to the debtor's claimed homestead exemption and denying the debtor's motion to avoid a judgment lien against the homestead was AFFIRMED. The debtor failed to meet her ultimate burden of proof to show that she was entitled to an exemption under Oklahoma law. Fed. R. Bankr. P. 4003(c) and burdens of proof for exemptions discussed.

232. In re Picard, __ B.R. __, 2003 WL 21643436, BAP No. WY-03-016 (10th Cir. BAP filed July 14, 2003) (Michael, J.) (before Bohanon, Michael, & Brown, JJ.) (Appeal from the United States Bankruptcy Court for the District of Wyoming).

A bankruptcy court order authorizing the Chapter 7 trustee's sale of a truck was AFFIRMED. The truck was property of the estate under 11 U.S.C. § 541 as a result of the debtor's right to redeem it under Wyoming law. The bankruptcy court lacked jurisdiction under 28 U.S.C. § 157 to resolve a dispute between the objector-Appellant and the holder of a lien against the truck.

233. In re Sandoval, BAP No. UT-03-054 (10th Cir. BAP filed July 31, 2003)(before Michael, Brown, & McNiff, JJ.)(Appeal from the United States Bankruptcy Court for the District of Utah).APPEAL FILED

A petition for writ of mandamus was DENIED.

233A. In re Wedel, BAP No. KS-03-049 (10th Cir. BAP filed July 21, 2003) (before Cornish, Brown, & McNiff, JJ.) (Appeal from the United States Bankruptcy Court for the District of Kansas), appeal dismissed, 107 Fed. Appx. 824, 2004 WL 1386363, No. 03-3240 (10th Cir. filed June 22, 2004).

Appellants’ appeal was DISMISSED because it was not timely filed under Fed. R. Bankr. P. 8002(a).

233B. In re Wedel, BAP No. KS-03-050 (10th Cir. BAP filed July 21, 2003) (before Cornish, Brown, & McNiff, JJ.) (Appeal from the United States Bankruptcy Court for the District of Kansas), appeal dismissed, 102 Fed. Appx. 639, 2004 WL 1440151, No. 03-3242 (10th Cir. filed June 28, 2004).

Appellants’ appeal was DISMISSED because it was not timely filed under Fed. R. Bankr. P. 8002(a).

234. Morris v. Beach (In re Beach), __ B.R. __, 2003 WL 21827770, BAP No. KS-03-021 (10th Cir. BAP filed Aug. 7, 2003) (Bohanon, J.) (before Bohanon, Cornish, & McNiff, JJ.) (Appeal from the United States Bankruptcy Court for the District of Kansas).

A bankruptcy court order granting the Chapter 7 trustee's motion for default judgment in an adversary proceeding to revoke the debtors' discharge under 11 U.S.C. § 727(d) and a motion for sanctions was REVERSED and the matter was REMANDED. The motions were not supported by any evidence and, therefore, the bankruptcy court's order was in error.

235. In re Abbott, __ B.R. __, 2003 WL 22003359, BAP No. WY-02-058 (10th Cir. BAP filed Aug. 25, 2003) (Michael, J.) (Brown, J., dissenting) (before Boulden, Michael, & Brown, JJ.)(Appeal from the United States Bankruptcy Court for the District of Wyoming).

APPEAL FILED

A bankruptcy court order denying the Chapter 13 debtor's motion to reclaim a tax refund from the trustee was AFFIRMED. The tax refund could not be used to reduce the total number of payments the debtor was required to make under his confirmed plan because the express terms of the plan required the debtor to make 36 payments, and these terms were binding pursuant to 11 U.S.C. § 1327(a). The bankruptcy court did not err in interpreting the plan, and its interpretation was consistent with 11 U.S.C. § 1325(b)(1).

236. In re Commercial Financial Services, Inc., 298 B.R. 733 (10th Cir. BAP 2003) (Thurman, J.) (before Clark, Nugent, & Thurman, JJ.) (Appeal from the United States Bankruptcy Court for the Northern District of Oklahoma). aff’d, No. 03-5161 (10th Cir. Oct. 25, 2005)

A bankruptcy court order partially denying a final request for compensation made by an official committee's financial advisor pursuant to 11 U.S.C. § 330(a) was AFFIRMED.

237. Malloy v. Wallace (In re Wallace), 298 B.R. 435 (10th Cir. BAP 2003) (McFeeley, C.J.) (before McFeeley, C.J., & McNiff and Thurman, JJ.) (Appeal from the United States Bankruptcy Court for the Northern District of Oklahoma), aff’d, __99 Fed. Appx. __870, 2004 WL 1179380, No. 03-5153 (10th Cir. filed May 28, 2004).

Orders of the bankruptcy court granting a motion for entry of a default judgment nunc pro tunc against the Chapter 7 debtor were AFFIRMED. The debtor-Appellant had not shown that the default judgment should be set aside under Fed. R. Bankr. P. 7055, which makes Fed. R. Civ. P. 60(b) applicable. Fed. R. Bankr. P. 9024. The nunc pro tunc order also did not violate the debtor-Appellant's due process rights.

238. Bank One v. Kallstrom (In re Kallstrom), 298 B.R. 753 (10th Cir. BAP 2003) (Clark, J.) (Clark, Nugent, & Thurman, JJ.) (Appeal from the United States Bankruptcy Court for the Northern District of Oklahoma).

A bankruptcy court order refusing to approve a settlement agreement between a creditor and the Chapter 7 debtors in a proceeding against the debtors pursuant to 11 U.S.C. § 727(a) was AFFIRMED. The bankruptcy court did not abuse its discretion under Fed. R. Bankr. P. 7041 or 9019 in refusing to approve the settlement agreement. Proceedings under 11 U.S.C. § 523(a) are distinguished from § 727(a) proceedings.

239. Stillwater Nat'l Bank & Trust Co. v. Kirtley (In re Solomon), __ B.R. __ 2003 WL 22293789, BAP No. NO-03-006 (10th Cir. BAP filed Oct. 6, 2003) (Nugent, J.) (before Clark, Nugent, & Thurman, JJ.) (Appeal from the United States Bankruptcy Court for the Northern District of Oklahoma).

A bankruptcy court judgment avoiding the creditor's liens against the debtor's property pursuant to 11 U.S.C. §§ 544(b) and 548(a)(1)(B) was AFFIRMED. The creditor failed to give the debtor reasonably equivalent value in exchange for the transfers, and the bankruptcy court did not err in concluding that the debtor was insolent at the time of the transfers.

240. Fry v. Simmons (In re Fry), __ B.R. __, 2003 WL ______, BAP No. NM-03-028 (10th Cir. BAP filed Oct. 15, 2003) (Michael, J.) (before Clark, Michael, & Brown, JJ.) (Appeal from the United States Bankruptcy Court for the District of New Mexico).

A bankruptcy court judgment concluding that the debtor had no interest in the proceeds of a life insurance policy owned by his deceased former spouse was AFFIRMED. Oklahoma trust and contract law, and the parol evidence rule are discussed.

241. Cousatte v. Lucas (In re Lucas), 300 B.R. 526 (10th Cir. BAP 2003)(McFeeley, C.J.) (before McFeeley, C.J. and Bohanon & Michael, JJ.) (Appeal from the United States Bankruptcy Court for the District of Kansas).

An order dismissing a 11 U.S.C. § 523(a)(4) cause of action was AFFIRMED because the bankruptcy court did not err in concluding that the creditor-plaintiff had failed to prove that the debtor had embezzled funds. But, the matter was REMANDED to the bankruptcy court to determine whether some of the debtor's property was held in a constructive trust for the creditor-plaintiff and, therefore, was excluded from property of the estate under 11 U.S.C. § 541(a) and (d).

242. In re Snyder, 302 B.R. 113, 2003 WL 22535245, BAP No. UT-03-055 (10th Cir. BAP filed Nov. 4, 2003) (Cornish, J.) (before Bohanon, Cornish, & McNiff, JJ.)(Appeal from the United States Bankruptcy Court for the District of Utah), vacated and appeal voluntarily dismissed, 303 B.R. 212 (10th Cir. BAP filed Dec. 16, 2003).

A bankruptcy court order denying the debtors' motion to reopen their Chapter 7 case was AFFIRMED because the debtors failed to provide the Court with an adequate record for review. Fed. R. Bankr. P. 7052 and Fed. R. Bankr. P. 8009 are discussed.

243. In re Wyoming Alaska Co., 302 B.R. 113, 2003 WL 22535223, BAP No. UT-03-022 (10th Cir. BAP filed Nov. 6, 2003) (McNiff, J.) (before Cornish, Michael, & McNiff, JJ.) (Appeal from the United States Bankruptcy Court for the District of Utah).

A bankruptcy court order approving a settlement between certain nondebtor parties was REVERSED and REMANDED because the order was not accompanied by findings of fact and conclusions of law as required pursuant to Fed. R. Bankr. P. 7052. The debtor's law firm had standing to appeal the bankruptcy court's order on its own behalf because it was a "person aggrieved" by the settlement. Also, the bankruptcy court had subject matter jurisdiction to enter the order under 28 U.S.C. § 1334(b) because the settlement, although between nondebtors, involved property of the debtor's estate under 11 U.S.C. § 541(a)(1), affected the distribution of the debtor's assets, or affected the administration of the debtor's estate.

244. Garrett v. TEC Resources, LLC (In re TEC Resources, LLC), 302 B.R. 113, 2003 WL 22681382, BAP No. NO-03-033 (10th Cir. BAP filed Nov. 12, 2003) (McFeeley, C.J.) (before McFeeley, C.J. and Nugent & Brown, JJ.) (Appeal from the United States Bankruptcy Court for the Northern District of Oklahoma).

A bankruptcy court's order granting the defendant-debtors' motion for summary judgment and dismissing the plaintiff-claimant's complaint was AFFIRMED. The plaintiff's proof of claim against the debtors had been disallowed by a prior final order, and res judicata barred his attempt to reestablish the claim by way of an adversary proceeding. The bankruptcy court also did not err in denying the plaintiff's motion for rehearing under Fed. R. Civ. Procedure 59(e), made applicable in bankruptcy under Fed. R. Bankr. P. 9023.

245. In re Haddox, 302 B.R. 112, 2003 WL 22681412, BAP No. WO-03-048 (10th Cir. BAP filed Nov. 12, 2003) (Nugent, J.) (before McFeeley, C.J., and Nugent & McNiff, JJ.) (Appeal from the United States Bankruptcy Court for the Western District of Oklahoma).

A bankruptcy court order requiring the debtor's attorney to modify the debtor's confirmed Chapter 13 plan to purge language related to her student loan debt was REVERSED and the matter was REMANDED. Although the plan provision in question may have violated 11 U.S.C. § 523(a)(8), made applicable in Chapter 13 pursuant to 11 U.S.C. § 1328(a)(2), the bankruptcy court could not sua sponte order the modification of the debtor's confirmed plan under 11 U.S.C. § 1329(a). Furthermore, under Andersen v. UNIPAC-NEBHELP (In re Andersen), 179 F.3d 1253 (10th Cir. 1999) [see 39], the final order confirming the debtor's plan was binding under 11 U.S.C. § 1327(a) and res judicata as to all issues that could have or should have been raised prior to confirmation, even if it authorized plan provisions contrary to the Bankruptcy Code. The bankruptcy court could not invoke its equitable powers under 11 U.S.C. § 105(a) to require post-confirmation plan modification, because those powers may only be exercised within the confines of the Bankruptcy Code.

246. Fanning v. Russell (In re Russell), 302 B.R. 112, 2003 WL 22849435, BAP No. WO-03-063 (10th Cir. BAP filed Dec. 1, 2003) (per curiam) (before Clark, McNiff, & Thurman, JJ.) (Appeal from the United States Bankruptcy Court for the Western District of Oklahoma).

A bankruptcy court order denying the plaintiff-creditors' application for post-judgment relief was REVERSED and the matter was REMANDED. In Lang v. Lang (In re Lang), 293 B.R. 501 (10th Cir. BAP 2003), appeal dismissed for lack of jurisdiction, No. 03-4154 (10th Cir. filed Oct. 1, ) [219], this Court held that under 28 U.S.C. § 157 bankruptcy courts have subject matter jurisdiction to award monetary judgments in proceedings brought pursuant to 11 U.S.C. § 523(a). The bankruptcy court erred, therefore, in concluding that it lacked jurisdiction in the plaintiffs' § 523(a) action against one of the debtors to enter a monetary judgment and an order awarding the plaintiffs' attorney's fees. It also erred in concluding that it did not have jurisdiction to enter an order enforcing the judgment and fee order.

247. In re Investment Co. of the Southwest, Inc., 302 B.R. 112, 2003 WL 22900480, BAP No. NM-03-051 (10th Cir. BAP filed Dec. 8, 2003) (per curiam) (before Clark, Bohanon, & Thurman, JJ.) (Appeal from the United States Bankruptcy Court for the District of New Mexico).

A bankruptcy court's order compelling a secured creditor to release its liens against the Chapter 11 debtor in possession's real property was VACATED. The bankruptcy court's order was a final order pursuant to 28 U.S.C. § 158(a)(1). Even if the order was not final, the creditor's appeal would be considered a petition for writ of mandamus pursuant to 28 U.S.C. § 1651(a), and the petition would be granted because the bankruptcy court was without authority to enter its order. The order, which approved the debtor's sale of property free and clear of the creditor's liens thereon, was inappropriate because it did not comply with 11 U.S.C. § 363(f). Furthermore, the order was in error because it established the debtor's treatment of the creditor's claim without affording the creditor the protections of the Chapter 11 plan confirmation process and, in particular, the cram down provisions set forth in 11 U.S.C. § 1129(b).

248. Chavez v. Skehen (In re Chavez), 305 B.R. 381, 2003 WL 23120081, BAP No. NM-02-081 (10th Cir. BAP filed Dec. 18, 2003) (Michael, J.) (before Clark, Michael, & Brown, JJ.) (Appeal from the United States Bankruptcy Court for the District of New Mexico), appeal dismissed, No. 04-2026 (10th Cir. filed May 26, 2004).

A bankruptcy court judgment declaring certain tax entities' liens against the exempt proceeds from the sale of the Chapter 13 debtor's residence to be valid and refusing to avoid the liens was AFFIRMED. Certain issues raised by the debtor but not briefed were not addressed by the Court because they were deemed waived on appeal. The tax debt, allegedly incurred solely by the debtor's former spouse during their marriage, was a community debt of the couple under New Mexico law. Although the debtor could claim a homestead exemption in the sale proceeds, New Mexico law expressly states that the exemption is not effective against tax debts, such as the debtor's community tax debt. The debtor was not denied due process as a result of the imposition of the liens without separate notice to her. The bankruptcy court did not err in refusing to consider the debtor's arguments pursuant to 11 U.S.C. § 505 inasmuch as the debtor failed to present evidence contesting the validity of the tax debt.

249. In re Miller, 303 B.R. 471 (10th Cir. BAP 2003) (McFeeley, C.J.) (before McFeeley, C.J., and Nugent & Rasure, JJ.) (Appeal from the United States Bankruptcy Court for the District of Utah).

A bankruptcy court's order denying the debtor's motion pursuant to 11 U.S.C. § 706(a) to convert his Chapter 7 case to a case under Chapter 13 was REVERSED and the matter was REMANDED. Bankruptcy courts do not have the discretion, even when there is evidence of abuse of process, to deny a debtor's § 706(a) motion if the elements of that section are met. Section 706(a) gives debtors a one time right to convert from Chapter 7 to Chapter 13, provided that the debtor is eligible for relief under Chapter 13 pursuant to 11 U.S.C. § 109(e). Bankruptcy courts cannot use their equitable powers under 11 U.S.C. § 105(a) to circumvent the express language of § 706(a). 28 U.S.C. § 2075, Fed. R. Bankr. P. 1017 and 9013 cannot be used to invoke the bankruptcy court's discretion because to do so would impermissibly modify the debtor's rights under § 706(a).

250. In re Carlson, 303 B.R. 478 (10th Cir. BAP 2004)(Rasure, J.) (before McFeeley, C.J., and Nugent & Rasure, JJ.) (Appeal from the United States Bankruptcy Court for the District of Utah).

A bankruptcy court order sustaining an objection to the debtor's claimed homestead exemption under 11 U.S.C. § 522(b) was REVERSED and the matter was REMANDED. The owner of a mobile home may claim it as exempt under Utah Code Ann. § 78-23-3 even if he or she does not own the real property on which the home is situated.

251. In re Armstrong, 303 B.R. 213 (10th Cir. BAP 2004) (Nugent, J.) (before McFeeley, C.J., and Nugent & McNiff, JJ.)(Appeal from the United States Bankruptcy Court for the District of Utah).

A bankruptcy court order dismissing the debtor's Chapter 13 case pursuant to 11 U.S.C. § 1307(c) was AFFIRMED. The trustee in the debtor's earlier Chapter 11 case and a party who had filed a dischargeability action against the debtor in the Chapter 11 case were "parties in interest" who had standing under § 1307(c) to seek dismissal of the debtor's later Chapter 13 case. In defining "party in interest" in § 1307(c), the court used 11 U.S.C. § 1109(b). The bankruptcy court did not err in determining that the debtor's claim that he had an interest in certain trust assets was an improper collateral attack of the confirmation order in his Chapter 11 case. Finally, given the totality of the circumstances, the bankruptcy court's finding that the debtor's Chapter 13 case was filed in bad faith was not clearly erroneous. The factors used for determining a lack of good faith under 11 U.S.C. § 1325(a)(3) may be used in determining whether a case should be dismissed for cause under § 1307(c).

252. Hardeman v. Sadeghy (In re Sadeghy), 305 B.R. 381, 2004 WL 67226, BAP No. WO-03-045 (10th Cir. BAP filed Jan. 14, 2004) (per curiam) (before Clark, Brown, & Thurman, JJ.) (Appeal from the United States Bankruptcy Court for the Western District of Oklahoma).

A bankruptcy court's judgment avoiding the Chapter 13 debtor's prepetition transfer of real property to his son pursuant to 11 U.S.C. § 544(b) and Oklahoma fraudulent transfer law was AFFIRMED. The bankruptcy court correctly applied Oklahoma law, and its findings of fact, determining that the debtor transferred the property with an actual intent to hinder, delay or defraud his creditors, was not clearly erroneous. The appellant-son's points of error were either waived on appeal because they were not raised below, without merit because they gave rise to harmless error, or were without merit based on the record.

253. Gonzales v. United States (In re Silver), 303 B.R. 849 (10th Cir. BAP 2004) (Clark, J.) (before Clark, Michael, & Brown JJ.) (Appeal from the United States Bankruptcy Court for the District of New Mexico).

A bankruptcy court's amended judgment voiding tax liens against certain of the Chapter 7 debtors' personal property and postpetition tax liens against property held by nondebtor- transferees was AFFIRMED in part and REVERSED in part, and the Court RETAINED JURISDICTION in part pending receipt of a supplemental appendix. The Court retained jurisdiction over the portion of the amended judgment related to the validity of the tax liens against the debtors' art because there was not an adequate record for review. See Gonzales v. United States (In re Silver), 305 B.R. 381, 2004 B.R. 286742, BAP No. NM-03-042 (10th Cir. BAP filed Feb. 12, 2004) [260]. The portion of the amended judgment invalidating the tax liens against the debtors' stock pursuant to 26 U.S.C. § 6323(b)(1) was in error and, therefore, was reversed. The liens were valid, perfected liens that had not been avoided. Furthermore, the liens could not be invalidated under § 6323(b)(1) because the trustee was not a "purchaser" or the holder of a security interest in the stock under § 6323(h). The trustee's status as a hypothetical judicial lien creditor under 11 U.S.C. § 544(a)(1), who holds a "judicial lien" within the meaning of 11 U.S.C. § 101(36), does not make her a purchaser or the holder of a security interest for purposes of § 6323. The trustee could not claim to be a hypothetical bona fide purchaser under 11 U.S.C. § 545(2) because she did not bring a cause of action under that section. As the tax liens against the stock were valid and could not be avoided or invalidated, the secured claim based on those liens should not have been disallowed under 11 U.S.C. § 502(b)(2). The bankruptcy court did not err, however, in voiding the postpetition tax liens made pursuant to 26 U.S.C. § 6901 because they were filed in violation of 11 U.S.C. § 362(a)(6). Although the tax liens were filed against property held by nondebtor-transferees, it was undisputed that the liens served to collect the debtors' prepetition debts.

254. In re Armstrong, 305 B.R. 381, 2004 WL 73364, BAP No. UT-03-002 (10th Cir. BAP filed Jan. 16, 2004) (McNiff, J.) (before McFeeley, C.J., and Nugent & McNiff, JJ.) (Appeal from the United States Bankruptcy Court for the District of Utah).

A bankruptcy court order denying the Chapter 11 debtor's emergency ex parte motion seeking damages against certain individuals for their alleged violations of the automatic stay and the discharge injunction was AFFIRMED. The bankruptcy court effectively abstained from considering the merits of the debtor's motion pursuant to 28 U.S.C. § 1334(c)(1) because the debtor was attempting to circumvent a stay of litigation that had been imposed by the district court in a related adversary proceeding. The bankruptcy court had jurisdiction pursuant to 28 U.S.C. § 157 to consider the debtor's motion. Its decision to abstain from consideration of the merits was not an abuse of discretion because the motion was a clear indication of forum shopping.

255. In re Barnes, 307 B.R. 731, 2004 WL 102355, BAP No. NO-03-067 (10th Cir. BAP filed Jan. 21, 2004) (per curiam) (before Clark, McNiff, & Thurman, JJ.) (Appeal from the United States Bankruptcy Court for the Northern District of Oklahoma).

A bankruptcy court order denying the Chapter 7 debtor's claim of exemption in proceeds from the prepetition sale of her home was AFFIRMED. Arguments related to the bankruptcy court's decision to limit debtor's argument were waived on appeal because she failed to explain the arguments or support them in her brief. Even upon consideration, the record showed that the bankruptcy court did not abuse its discretion in refusing post-trial briefs. The bankruptcy court also did not err in denying the debtor's claimed homestead exemption in the proceeds under Oklahoma law. Finally, the bankruptcy court did not err in failing to consider 11 U.S.C. § 522(f) where the debtor had not served notice of such a request for relief on the holder of the lien sought to be avoided. Section 522(f) also did not apply because the debtor did not hold a valid exemption under 11 U.S.C. § 522(b) and Oklahoma law.

256. In re Armstrong, 304 B.R. 432 (10th Cir. BAP 2004) (McFeeley, C.J.) (before McFeeley, C.J., and Nugent & McNiff, JJ.) (Appeal from the United States Bankruptcy Court for the District of Utah).

A bankruptcy court order assessing sanctions against the Chapter 11 debtor for contempt was REVERSED and the matter was REMANDED. The sanctions imposed against the debtor were punitive and, therefore, were meant to punish the debtor for criminal, not civil, contempt. The bankruptcy court lacked jurisdiction to assess sanctions for criminal contempt because the Utah district court's local rules required that such matters be referred to it.

257. In re Armstrong, 305 B.R. 381, 2004 WL 166158, BAP No. UT-03-026 (10th Cir. BAP filed Jan. 27, 2004) (McFeeley, C.J.) (before McFeeley, C.J., and Nugent & McNiff, JJ.) (Appeal from the United States Bankruptcy Court for the District of Utah).

A bankruptcy court order assessing attorney's fees and costs against the Chapter 11 debtor as a result of his contempt was REVERSED and the matter was REMANDED. In a related appeal, In re Armstrong, 304 B.R. 432 (10th Cir. BAP 2004) [256], the Court determined that the bankruptcy court lacked jurisdiction to impose sanctions against the debtor for criminal contempt. For the same reasons, it lacked jurisdiction to assess fees and costs resulting from proceedings related to the debtor's contempt.

258. Ingram v. Womack (In re Womack), 305 B.R. 381, 2004 WL 221759, BAP No. KS-03-041 (10th Cir. BAP filed Feb. 4, 2004) (Cornish, J.) (before Bohanon, Cornish, & Starzynski, JJ.) (Appeal from the United States Bankruptcy Court for the District of Kansas) aff’d, No. 04-3074 (10th Cir. Jan. 27, 2005).

A bankruptcy court judgment excepting a debt from discharge pursuant to 11 U.S.C. § 523(a)(4) was AFFIRMED. The debtor, an attorney, was ordered by a state court to hold certain funds. This order created a fiduciary duty, and the debtor's failure to abide by that order was a "defalcation."

259. In re Armstrong, 305 B.R. 381, 2004 WL 224055, BAP No. UT-03-001 (10th Cir. BAP filed Feb. 4, 2004) (McFeeley, C.J.) (before McFeeley, C.J., and Nugent & McNiff, JJ.) (Appeal from the United States Bankruptcy Court for the District of Utah).

A bankruptcy court order denying the Chapter 11 debtor's ex parte motion to give effect to a Texas judgment was AFFIRMED. The bankruptcy court did not err in concluding that it lacked jurisdiction to consider the debtor's motion where the relief sought attacked a final order, an appeal of which was pending. Furthermore, the debtor failed to provide an adequate record for review.

260. Gonzales v. United States (In re Silver), 305 B.R. 381, 2004 B.R. 286742, BAP No. NM-03-042 (10th Cir. BAP filed Feb. 12, 2004) (Clark, J.) (before Clark, Michael, & Brown, JJ.) (Appeal from the United States Bankruptcy Court for the District of New Mexico).

A bankruptcy court judgment invalidating the United States' lien against certain personal property of the debtor was REVERSED. The record, supplemented pursuant to the Court's order in Gonzales v. United States (In re Silver), 303 B.R. 849 (10th Cir. BAP 2004) [253], showed that the bankruptcy court's judgment was clearly erroneous.

261. Lundahl v. Lewis et al. (In re Lundahl), BAP Nos. UT-04-003, UT-04-004, UT-04-005 (10th Cir. BAP filed March 11, 2004) (before McFeeley, C.J., and Michael & Nugent, JJ.) (Appeals from the United States Bankruptcy Court for the District of Utah), appeal dismissed, No. 04-4040 (10th Cir. filed Sept. 23, 2004). Related Orders 261b, 261c

Three appeals of bankruptcy court orders filed by the appellant were DISMISSED by the Court for failure to prosecute. The appellant's subsequent motions to reconsider the dismissal orders and recall the mandate were DENIED.

262. United Phosphorus, Ltd. v. Fox (In re Fox), 305 B.R. 912 (10th Cir. BAP 2004) (Bohanon, J.) (before Bohanon, Cornish, & Starzynski, JJ.) (Appeal from the United States Bankruptcy Court for the District of Kansas).

A bankruptcy court order dismissing a creditor's complaint against the Chapter 11 debtor's spouse pursuant to 11 U.S.C. § 548(a) was AFFIRMED because the creditor lacked standing to bring the action. The plain language of § 548(a) states that only trustees and thus, pursuant to 11 U.S.C. § 1107(a), debtors in possession, may bring fraudulent transfer actions. Creditors may not bring suits on behalf of the estate. The law of the case doctrine did not bar the bankruptcy court's decision, even though another bankruptcy judge of the same court had earlier entered an order authorizing the creditor's § 548(a) proceeding. After that order was issued, Hartford Underwriters Insurance Co. v. Union Planters Bank, N.A., 530 U.S. 1 (2000) was decided which, although decided under 11 U.S.C. § 506(c), effectively rejected the position taken by the first judge.

263. Lang v. Lang (In re Lang), 305 B.R. 905 (10th Cir. BAP 2004) (Michael, J.) (before Cornish, Michael & McNiff, JJ.) (Appeal from the United States Bankruptcy Court for the District of Utah) aff’d, 414 F.3d 1191 (10th Cir. 2005).

A bankruptcy court order denying the debtor's motion to extend the time to file a notice of appeal pursuant to Fed. R. Bankr. P. 8002(c)(2) and her motion for a stay pending appeal pursuant to Fed. R. Bankr. P. 8005 was AFFIRMED. Failure to comply with the deadline to file a notice of appeal due to the press of other business is not excusable neglect. Assuming that the order denying the debtor's request for a stay pending appeal was reviewable, the debtor failed to show that she was entitled to a stay. Furthermore, because the debtor was not allowed an extension of time to file a notice of appeal, the request for stay pending appeal was moot.


264. Zubrod v. Keffer (In re Keffer), 307 B.R. 731, 2004 WL 632875, BAP No. WY-03-071 (10th Cir. BAP filed March 26, 2004) (Weaver, J.) (before Michael, Thurman & Weaver, JJ.) (Appeal from the United States Bankruptcy Court for the District of Wyoming). appeal dismissed, No.04-8049 (10th Cir. filed Aug. 3, 2004).

A bankruptcy court judgment avoiding certain transfers pursuant to 11 U.S.C. § 548(a)(1)(B) was AFFIRMED. A prior bankruptcy court order denying the appellant's motion for summary judgment under Fed. R. Bankr. P. 7056 was not a "judgment" that was appealable pursuant to 28 U.S.C. § 158. The bankruptcy court's final judgment, avoiding the debtor's prepetition transfers of property to himself and his spouse as tenants by the entireties pursuant to § 548(a)(1)(B), was summarily affirmed because the appellants failed to provide an adequate record for review. Furthermore, arguments related to the propriety of the § 548(a)(1)(B) judgment were waived on appeal because the appellants failed to make any arguments relevant to § 548(a)(1)(B). Rather, the appellants' sole contention, that the transfers were appropriate prepetition exemption planning, was only relevant under 11 U.S.C. § 548(a)(1)(A).

265. Cadwell v. Joelson (In re Joelson), 307 B.R. 689 (10th Cir. BAP 2004) (Brown, J.) (Michael, J., concurring) (before Clark, Michael, & Brown, JJ.) (Appeal from the United States Bankruptcy Court for the District of Wyoming) aff’d, No. 04-8052 (10th Cir. Oct. 24, 2005).
PETITION FOR WRIT OF CERTIORARI FILED (U.S. Sup. Ct. No. 05-1121).

A bankruptcy court judgment excepting a debt from discharge pursuant to 11 U.S.C. § 523(a)(2)(A) was AFFIRMED because the debt resulted from the debtor's false oral statements that did not pertain to her financial condition. The phrase "statement respecting the debtor's . . . financial condition" in § 523(a)(2)(A) is narrowly interpreted to be a statement of a debtor's net worth, overall financial health, or ability to generate income. 11 U.S.C. § 523(a)(2)(B) is discussed as it relates to § 523(a)(2)(A).

266. In re Lundahl, BAP No. UT-04-021 (10th Cir BAP filed April 7, 2004) (before McFeeley, C.J., and Michael & Nugent, JJ.) (Appeal from the United States Bankruptcy Court for the District of Utah). appeal dismissed, No. 04-4093 (10th Cir. filed Sept. 16, 2004).

The Court DISMISSED an appeal for failure to prosecute.

267. Lang v. Lang (In re Lang), BAP No. UT-03-070 (10th Cir. BAP filed April 12, 2004) (before McFeeley, C.J., and Michael & Nugent, JJ.) (Appeal from the United States Bankruptcy Court for the District of Utah), appeal dismissed, Nos. 04-4131(10th Cir. filed Aug. 6, 2004).

The Court DISMISSED an appeal as untimely-filed under Fed. R. Bankr. P. 8002(a).

268. In re Hodes, 308 B.R. 61 (10th Cir. BAP 2004)(Starzynski, J.) (before Bohanon, Cornish, & Starzynski, JJ.) (Appeal from the United States Bankruptcy Court for the District of Kansas).

A bankruptcy court order denying the debtor's claim of exemption in the cash surrender value of a life insurance policy pursuant to 11 U.S.C. § 522(b) and Kansas law was AFFIRMED in part and REVERSED in part. The bankruptcy court correctly held that the Kansas exemption law did not apply to the debtor's life insurance policies inasmuch as they were issued within one year of the debtor's petition date. The bankruptcy court's conclusion that the debtor had "filed bankruptcy" within the meaning of the Kansas law, however, was in error because that provision includes only voluntary petitions, not involuntary petitions under 11 U.S.C. § 303 such as the one that had been filed against the debtor. The burden of proof under Fed. R. Bankr. P. 4003(c) for objecting to exemptions is discussed.

269. In re Novak, BAP Nos. KS-04-25, KS-04-026, KS-04-027, KS-04-028 (10th Cir. BAP filed April 14, 2004) (before McFeeley, C.J., and Michael & McNiff, JJ.) (Appeals from the United States Bankruptcy Court for the District of Kansas), appeals dismissed, Nos. 04-3170, 04-3171, 04-3178 & 04-3179 (10th Cir. filed Nov. 15, 2004).
Related orders 269b, 269c, 269d

Appeals from four bankruptcy court orders were DISMISSED as being untimely under Fed. R. Bankr. P. 8002(a). The Court could not extend the time to file notices of appeal under Fed. R. Bankr. P. 8002(c)(2). Furthermore, Fed. R. App. P. 4(c) did not excuse the untimely notices of appeal.

270. Clark v. Deere & Co. (In re Kinderknecht), 308 B.R. 71 (10th Cir. BAP 2004) (Thurman, J.) (before Bohanon, McNiff, & Thurman, JJ.) (Appeal from the United States Bankruptcy Court for the District of Kansas).

A bankruptcy court judgment refusing to avoid a creditor's interests in the debtor's property pursuant to 11 U.S.C. § 544(a)(1) was REVERSED. The creditor's financing statements, listing the debtor by his nickname, as opposed to his legal name, were insufficient to perfect its interests in the debtor's property and, therefore, the interests were avoidable under § 544(a)(1). In so doing, the court examines U.C.C. §§ 9-502(a), 9-503(a), 9-506(b), and 9-521.

271. Alderete v. Educational Credit Management Corp. (In re Alderete), 308 B.R. 495 (10th Cir. BAP 2004) (Clark, J.) (before Clark, Michael, & Brown, JJ.) (Appeal from the United States Bankruptcy Court for the District of New Mexico, reported at 289 B.R. 410), rev’d and remanded, 412 B.R. 1200 (10th Cir. 2005).

A bankruptcy court's judgment partially discharging the debtors' student loan debts pursuant to 11 U.S.C. § 523(a)(8) was AFFIRMED. After the bankruptcy court entered its judgment, Educational Credit Management Corp. v. Polleys (In re Polleys), 356 F.3d 1302 (10th Cir. 2004) was issued. Under Polleys, all of the debtors' student loan debts should have been discharged, not just the portion attributable to interest and attorneys' fees that had been discharged by the bankruptcy court. The debtors, however, did not appeal the portion of the bankruptcy court's judgment refusing to discharge the principal debt and, therefore, the Court lacked jurisdiction to reverse that portion of the judgment--it could only affirm the portion of the judgment that discharged the interest and fees. Because the entire debt should have been discharged, the Court refused to address the propriety of partial discharges under § 523(a)(8).

272. In re Gilchrist, 309 B.R. 404, 2004 B.R. 875522, BAP No. WO-03-095 (10th Cir. BAP filed April 23, 2004) (McNiff, J.) (before Clark, Nugent, & McNiff, JJ.) (Appeal from the United States Bankruptcy Court for the Western District of Oklahoma).

A bankruptcy court order denying the debtor's motion to dismiss her Chapter 13 case and granting the motions of the Chapter 13 trustee and a former Chapter 7 trustee to convert the case to Chapter 7 for "cause" pursuant to 11 U.S.C. § 1307(c) was AFFIRMED. The former Chapter 7 trustee was a "party in interest" who had standing to object to the debtor's motion to dismiss and request that her Chapter 13 case be converted to Chapter 7. The bankruptcy court did not abuse its discretion under § 1307(c) in converting the debtor's Chapter 13 case to Chapter 7, rather than dismissing the case.

273. In re Armstrong, 309 B.R. 404, 2004 WL 1040693, BAP No. UT-03-059 (10th Cir. BAP filed May 6, 2004) (McNiff, J.) (before Nugent, Brown, & McNiff, JJ.) (Appeal from the United States Bankruptcy Court for the District of Utah) appeal dismissed, Nos. 04-4123, 04-4127 (10th Cir. Mar. 22, 2005).

A bankruptcy court order approving settlement agreements between the Chapter 11 trustee and certain law firms pursuant to Fed. R. Bankr. P. 9019 was AFFIRMED, and the Appellee-trustee's motion to dismiss the appeal was DENIED.

274. In re Bartmann, 310 B.R. 663, 2004 WL 1057662, BAP No. NO-03-078 (10th Cir. BAP filed May 10, 2004) (McFeeley, C.J.) (before McFeeley, C.J., and Brown & Campbell, JJ.) (Appeal from the United States Bankruptcy Court for the Northern District of Oklahoma).

A bankruptcy court order converting the debtors' Chapter 11 case to Chapter 7 for "cause" pursuant to 11 U.S.C. § 1112(b)(1) was AFFIRMED. The bankruptcy court did not abuse its discretion in converting the case, as opposed to appointing a trustee pursuant to 11 U.S.C. § 1104.

275. In re Miller, BAP Nos. UT-04-043 & UT-04-044 (10th Cir. BAP filed May 10, 2004) (before McFeeley, C.J., and Michael & Nugent, JJ.) (Appeals from the United States Bankruptcy Court for the District of Utah), appeals dismissed, Nos. 04-4128 & 04-4129 (10th Cir. filed Oct. 20 & Oct. 25, 2004). Related Order 275b

Emergency motions filed by the debtor-appellant in two appeals were DENIED. The relief requested in both motions was not properly before the Court. To the extent the debtor-appellant was seeking a stay pending appeal under Fed. R. Bankr. P. 8005, he was not entitled to such relief. The Court sua sponte imposed filing restrictions against the debtor-appellant pursuant to 28 U.S.C. § 1651(a).

276. Rupp v. Kunz (In re Kunz), 309 B.R. 795 (10th Cir. BAP 2004) (per curiam) (before Nugent, Brown, & McNiff, JJ.) (Appeal from the United States Bankruptcy Court for the District of Utah), aff’d, No. 04-4117 (10th Cir. Jan. 26, 2005).

A bankruptcy court order dismissing an adversary proceeding pursuant to Fed. R. Bankr. P. 7012(b)(6) was AFFIRMED. The bankruptcy court did not err in determining pursuant to 11 U.S.C. § 541(c)(2) and Patterson v. Shumate, 504 U.S. 753 (1992) that the right to withdraw funds from an ERISA-qualified retirement plan was not property of the estate.

277. In re Armstrong, 309 B.R. 799 (10th Cir. BAP 2004) (Nugent, J.) (before Nugent, Brown, & McNiff, JJ.) (Appeal from the United States Bankruptcy Court for the District of Utah) appeal dismissed, Nos. 04-4123, 04-4127 (10th Cir. Mar. 22, 2005).

A bankruptcy court order imposing filing restrictions against the Chapter 11 debtor pursuant to 11 U.S.C. § 105 and 28 U.S.C. § 1651(a) was AFFIRMED. The bankruptcy court did not abuse its discretion in imposing the filing restrictions and, in fact, it had a clear duty to take actions necessary to regulate the litigious debtor's access to the court for the good of the parties and the court alike. The right of access to the courts is not absolute or conditional. The Court also issued a sua sponte order pursuant to § 1651(a) imposing filing restrictions conditioning the debtor's future litigation before it.

278. In re Kopexa Realty Venture Co., 310 B.R. 663, 2004 WL 1170526, BAP No. KS-03-082 (10th Cir. BAP filed May 25, 2004) (Cornish, J.) (before Clark, Cornish, & McNiff, JJ.) (Appeal from the United States Bankruptcy Court for the District of Kansas).

An appeal from a bankruptcy court's order granting a motion to participate in a hearing and an order denying a motion to amend the participation order was DISMISSED. The appellants lack standing to appeal because they were not "persons aggrieved" by the bankruptcy court's orders.

279. In re Kopexa Realty Venture Co., 310 B.R. 663, 2004 WL 1170565, BAP No. KS-03-083 (10th Cir. BAP filed May 25, 2004) (Cornish, J.) (before Clark, Cornish, & McNiff, JJ.) (Appeal from the United States Bankruptcy Court for the District of Kansas).

An appeal from a bankruptcy court's order approving a final report and an order denying a motion for reconsideration was DISMISSED. One of the appellants lacked standing to appeal because she was not a "person aggrieved" by the orders appealed. In addition, the appeal was moot because the remaining appellant failed to obtain a stay pending appeal and distributions had been made as provided in the approved final report. The order approving the final report was not void because the appellant was not denied due process. Even if the court considered the merits of the appeal, the bankruptcy court did not abuse its discretion in approving the final report, and the appellant's objections were no more than an improper collateral attack of earlier final orders. Furthermore, the appellant failed to present any grounds for reconsideration under Fed. R. Bankr. P. 9023 or 9024.

280. A.C. Rentals, Inc. v. Hough (In re A.C. Rentals, Inc.), 310 B.R. 663, 2004 WL 1182254, BAP No. WO-03-096 (10th Cir. BAP filed May 28, 2003) (Nugent, J.) (before Nugent, McNiff, & Thurman, JJ.) (Appeal from the United States Bankruptcy Court for the Western District of Oklahoma). Appeal Filed (10th Cir. No. 04-6212, Stayed)

A bankruptcy court judgment avoiding a lien against the debtor's real property pursuant to 11 U.S.C. § 544(a)(3) was AFFIRMED.

281. In re Miller, BAP No. UT-04-030 (10th Cir. BAP filed June 4, 2004) (before McFeeley, C.J., and Michael & Nugent, JJ.) (Appeal from the United States Bankruptcy Court for the District of Utah), appeal dismissed, No. 04-4157 (10th Cir. filed Oct. 25, 2004).

An emergency motion to reinstate appeal that had been dismissed for lack of prosecution was DENIED. A pro se party is not excused from complying with procedural requirements.

282. In re Crowder, 314 B.R. 445 ( 2004) (before Clark, Michael, & Nugent, JJ.) (Appeals from the United States Bankruptcy Court for the District of New Mexico).

A motion to dismiss appeals from a bankruptcy court order approving a sale of water rights pursuant to 11 U.S.C. § 363(m) was GRANTED and the appeals were DISMISSED. The appellants waived the argument that § 363(m) did not apply on the basis that there was not a good faith purchaser because they failed to attack the purchaser’s good faith standing below. Even if the appellants had preserved the issue of good faith for appeal, the record demonstrated that the bankruptcy court’s finding of fact that the water rights were purchased in good faith was not clearly erroneous.

283. Redmond v. Diversified Tech., Inc. (In re PII, Inc.), 314 B.R. 904, 2004 WL 1402691, BAP Nos. KS-03-068 & KS-03-072 (10th Cir. BAP filed June 22, 2004) (McNiff, J.) (Clark, J., concurring in part and dissenting in part) (before Clark, Cornish & McNiff, JJ.) (Appeals from the United States Bankruptcy Court for the District of Kansas, reported at 294 B.R. 380 (Bankr. D. Kan. 2003)).

A bankruptcy court order abstaining from hearing a wrongful garnishment cause of action pursuant to 28 U.S.C. § 1334(c)(1) was AFFIRMED, but its order denying a preference cause of action without prejudice was REVERSED and the matter was REMANDED.

284. Lang v. Lang (In re Lang), BAP No. UT-03-070 (10th Cir. BAP filed June 25, 2004) (before McFeeley, C.J., and Michael & Nugent, JJ.)
(Appeal from the United States Bankruptcy Court for the District of Utah), appeal dismissed, No. 04-4162 (10th Cir. filed Nov. 22, 2004).

Appellant’s motion for an extension of time to appeal an order of the Court to the Court of Appeals for the Tenth Circuit was DENIED because she failed to show “excusable neglect” or “good cause” within the meaning of Fed. R. App. P. 4(a)(5)(A).

285. First Nat’l Bank v. Davison (In re Davison), 2004 WL 2852352, BAP No. KS-04-013 (10th Cir. BAP filed June 29, 2004) (Bohanon, J.) (before Bohanon, Cornish, & Brown, JJ.) (Appeal from the United States Bankruptcy Court for the District of Kansas, reported at 296 B.R. 841 (Bankr. D. Kan. 2003)).

A bankruptcy court summary judgment denying the Chapter 7 debtors’ discharge pursuant to 11 U.S.C. § 727(a)(4)(A) was AFFIRMED where the debtors failed to deny the plaintiff’s circumstantial evidence that they knowingly and fraudulently made a false oath about a material fact.

286. In re Vaughan, 311 B.R. 573 (10th Cir. BAP 2004) (Brown, J.) (before McFeeley, C.J., and Brown & Campbell, JJ.) (Appeal from the United States Bankruptcy Court for the Western District of Oklahoma). APPEAL FILED 10th Cir. No. 04-6249, abated pursuant to 10th Cir. R. 33.1 Aug. 22, 2005)

A bankruptcy court order avoiding a judicial lien against the debtors’ exempt homestead pursuant to 11 U.S.C. § 522(f) was AFFIRMED. The lien, which was filed postpetition by a creditor with a nondischargeable claim against the debtors, was not immune from avoidance under § 522(f) because that section is not limited to prepetition liens. Furthermore, 11 U.S.C. § 522(c) expressly states that exempt property is liable for certain types of nondischargeable debts, but not debts excepted from discharge under § 523(a)(2). The creditor’s claim for fees and costs related to the § 523(a)(2) action was a prepetition claim and, therefore, to the extent that the lien was filed to collect that debt, it was for a prepetition debt that was avoidable under § 522(f). In so holding, the Court broadly interpreted “claim” in 11 U.S.C. § 101(5)(A). The Bank’s lien was not a consensual lien under 11 U.S.C. § 101(51), but rather a “judicial lien” within the meaning of 11 U.S.C. § 101(36) that could be avoided under § 522(f). The Court held that several of the Bank’s arguments had been waived on appeal because they had not been raised below. It also refused to reconsider a previous decision of another Panel of the Court, because that decision was controlling authority to which the Court was bound.

287. Saffa v. Wallace (In re Wallace), 314 B.R. 904, 2004 WL 1664060, BAP No. NO-04-022 (10th Cir. BAP filed July 19, 2004) (per curiam) (before McFeeley, C.J., and Clark & Brown, JJ.) (Appeal from the United States Bankruptcy Court for the Northern District of Oklahoma).

An appeal from a bankruptcy court order granting a motion for a preliminary injunction against the Chapter 7 debtor was DISMISSED for lack of jurisdiction because it was moot inasmuch as the preliminary injunction was no longer in effect as a permanent injunction had issued. See Saffa v. Wallace (In re Wallace), 316 B.R. 743 (10th Cir. 2004) [294] (appeal of permanent injunction).

288. In re Campbell, 313 B.R. 313 (10th Cir. BAP 2004) (Thurman, J.) (before Michael, Thurman, & Weaver, JJ.) (Appeal from the United States Bankruptcy Court for the District of Wyoming).

A bankruptcy court order denying a Chapter 13 debtor’s claimed homestead exemption was VACATED as a void judgment. The bankruptcy court lacked subject matter jurisdiction to enter the order because the parties agreed that it would have no affect on the debtor’s Chapter 13 case. In so holding, the Court held that the time to object to the debtor’s claimed exemption under Fed. R. Bankr. P. 4003(b) would recommence if the debtor’s Chapter 13 case were ever converted to Chapter 7 and, therefore, there was no reason for the bankruptcy court to determine the allowance exemption in the Chapter 13 case. Under 11 U.S.C. § 348(a), the conversion of case constitutes an order for relief and, therefore, a new meeting of creditors must be called under 11 U.S.C. § 341(a) and Fed. R. Bankr. P. 2003(a). The Rule 4003(b) objection period runs from the conclusion of the meeting of creditors, with no qualification that it be limited to the initial meeting. Accordingly, under Rule 4003(b), parties have thirty days from the conclusion of the meeting of creditors in the converted case to object to claimed exemptions. 11 U.S.C. § 522(l), which revests exempt property in the debtor, does not compel a different result because revested property, whether under § 522(l) or 11 U.S.C. § 1327(b), becomes property of the estate in the converted case under 11 U.S.C. § 348(f) if it is still in the debtor’s possession or control. Fed. R. Bankr. P. 1019(2), which resets certain time periods upon conversion but does not mention the Rule 4003(b) period, also does not compel a different result because that Rule is silent on exemptions and cannot override more explicit provisions. The recommencement of the Rule 4003(b) objection period is supported by principles of federal jurisdiction and policy considerations. Chapter 13 trustees have little incentive to object to exemption claims because such claims do not affect the Chapter 13 case, other than under the best interests of creditors test set forth in 11 U.S.C. § 1325(a)(4). Resetting the Rule 4003(b) period also is not unfair to debtors.

289. In re Davis, 314 B.R. 904, 2004 WL 1950423, BAP No. NO-04-029 (10th Cir. BAP filed Aug. 26, 2004) (Nugent, J.) (before Nugent, McNiff, & Thurman, JJ.) (Appeal from the United States Bankruptcy Court for the Northern District of Oklahoma).

A bankruptcy court order denying the debtor’s motion to avoid his former spouse’s lien against his exempt home pursuant to 11 U.S.C. § 522(f)(1) was AFFIRMED. Section 522(f)(1)(A) did not apply under Farrey v. Sanderfoot, 500 U.S. 291 (1991).

290. In re Campbell, 313 B.R. 871 (10th Cir. BAP 2004) (Nugent, J.) (before McFeeley, C.J., and Nugent & Brown, JJ.) (Appeal from the United States Bankruptcy Court for the Eastern District of Oklahoma).

A bankruptcy court order denying the debtors’ motion to convert their Chapter 13 case to Chapter 12 pursuant to 11 U.S.C. § 1307(d) was REVERSED and the matter was REMANDED. Although Chapter 12 had expired on the debtors’ petition date, the debtors were entitled to avail themselves of such relief because legislation was enacted extending Chapter 12 retroactively to a time prior to the debtors’ petition date. The bankruptcy court had authority to convert the debtor’s Chapter 13 case to Chapter 12 even though Chapter 12 had again expired at the time of conversion, provided that the debtors were eligible for such relief. The petition date was the only relevant date for determining eligibility for relief, under 11 U.S.C. § 348(a), conversion of the case to Chapter 12 would not alter the petition date, and because of the retroactive legislation, Chapter 12 relief was effective on the debtors’ petition date.

291. In re Busetta-Silvia, 314 B.R. 218 (10th Cir. BAP 2004) (Michael, J.) (before Michael, McNiff, & Thurman, JJ.) (Appeal from the United States Bankruptcy Court for the District of New Mexico, reported at 300 B.R. 543 (Bankr. D. N.M. 2003) & motion for reconsideration denied at 308 B.R. 537 (Bankr. D. N.M. 2004)).

A bankruptcy court order denying an a Chapter 13 debtor’s attorney’s application seeking approval of prepetition fees and costs as an administrative expense was REVERSED and the matter was REMANDED. 11 U.S.C. § 330(a)(4)(B) unambiguously states that attorneys who represent Chapter 13 debtors are entitled to reasonable compensation incurred “in connection with the bankruptcy case.” Unlike other provisions of the Bankruptcy Code, § 330(a)(4)(B) does not require that services be rendered postpetition. Since the fees and costs were allowable under § 330(a), they were administrative expenses pursuant to 11 U.S.C. § 503(b)(2) that were entitled to first priority under 11 U.S.C. § 507(a)(1) and to payment in full under 11 U.S.C. § 1322(b). Final orders under 28 U.S.C. § 158(a)(1) discussed.

292. In re Keener, 316 B.R. 766, 2004 WL 2255123, BAP No. WO-04-045 (10th Cir. BAP filed Sept. 20, 2004) (per curiam) (before Clark, Brown, & Thurman, JJ.) (Appeal from the United States Bankruptcy Court for the Western District of Oklahoma).

A bankruptcy court order partially disallowing a fee application of the Chapter 13 debtors’ attorney was AFFIRMED. The bankruptcy court did not abuse its discretion in disallowing a portion of the attorney’s fees under 11 U.S.C. § 330(a)(4)(A) & (B). The attorney did not provide an adequate record for review of the bankruptcy court’s findings of fact which partially compelled affirmance.

293. Nelson v. Stillwater Nat’l Bank & Trust Co. (In re Ireland), 316 B.R. 766, 2004 WL 2340040, BAP No. WO-04-049 (10th Cir. BAP filed Oct. 18, 2004) (Thurman, J.) (before McFeeley, C.J., and Brown & Thurman, JJ.) (Appeal from the United States Bankruptcy Court for the Western District of Oklahoma).

A bankruptcy court judgment avoiding a prepetition transfer pursuant to 11 U.S.C. § 547(b) was AFFIRMED. The debtor’s transfer of funds loaned to her by a bank to pay a limited liability company’s debt to the bank that she had personally guaranteed was a “transfer of an interest of the debtor in property” within the meaning of § 547(b) and 11 U.S.C. § 101(54). It was immaterial that the debtor never had physical control of the funds loaned to her by the bank, and the debtor’s personal loan, from which she procured the funds transferred to the bank, was not a renewal of the company’s debt to the bank.

294. Saffa v. Wallace (In re Wallace), 316 B.R. 743 (10th Cir. BAP 2004) (McFeeley, C.J.) (before McFeeley, C.J., and Clark & Thurman, JJ.) (Appeal from the United States Bankruptcy Court for the Northern District of Oklahoma).

A bankruptcy court default judgment, instituting a permanent injunction against the pro se Chapter 7 debtor, was AFFIRMED. Fed. R. Bankr. P. 7005(c) states that default judgments may be set aside under Fed. R. Civ. P. 60(b), made applicable in bankruptcy under Fed. R. Bankr. P. 9024. The default judgment was not a void judgment because the bankruptcy court had personal jurisdiction over the debtor when he was properly served with all relevant papers pursuant Fed. R. Bankr. P. 7004(b) and 7005. See Saffa v. Wallace (In re Wallace), 314 B.R. 904, 2004 WL 1664060, BAP No. NO-04-022 (10th Cir. BAP filed July 19, 2004) (per curiam) [287] (dismissing appeal from order instituting preliminary injunction).

295. In re Vessa, 2004 WL 2640350, BAP No. WY-04-012 (10th Cir. BAP filed Nov. 18, 2004) (Cornish, J.) (before Bohanon, Cornish, & Michael, JJ.) (Appeal from the United States Bankruptcy Court for the District of Wyoming), appeal dismissed, No. 04-8127 (10th Cir. July 27, 2005).

A bankruptcy court order granting a motion for relief from the automatic stay pursuant to 11 U.S.C. § 362(d) was AFFIRMED. The bankruptcy court did not abuse its discretion in finding “cause” to lift the stay where the debtor, as a principal of a corporation, transferred title of the movant-bank’s collateral to himself and dissolved the corporation without notifying the bank shortly after the bank filed a state court action against the corporation.

296. Gonzales v. Nabisco Div. of Kraft Foods, Inc. (In re Furr’s Supermarkets, Inc.), 317 B.R. 423 (10th Cir. BAP 2004) (Michael, J.) (before Bohanon, Cornish, & Michael, JJ.) (Appeal from the United States Bankruptcy Court for the District of New Mexico), appeal dismissed, No. 04-2352 (10th Cir. Feb. 18, 2005).

A bankruptcy court order reducing the debtor’s food supplier’s preference liability was AFFIRMED. It correctly applied 11 U.S.C. § 547(c)(4) to credit the supplier for new value that it had extended the debtor during the 90 days preceding the filing of its Chapter 11 petition in the way of new food product. The bankruptcy court properly refused to reduce that amount by the amount of credits that the debtor received when it returned out-dated food to the supplier. Although the debtor received a credit from the supplier for its return of food, it was undisputed that the food in fact had no value. Accordingly, the debtor’s return of the food was not an avoidable transfer subsequent to the supplier’s extension of new value that would result in the reduction of new value under § 547(c)(4)(B). Some issues were waived because they had not been raised below.

297. In re Laufenberg, 2004 WL 2731670, BAP No. KS-04-053 (10th Cir. BAP filed Nov. 30, 2004) (Michael, J.) (before Cornish, Michael, & Thurman, JJ.) (Appeal from the United States Bankruptcy Court for the District of Kansas).

A bankruptcy court order granting a creditor relief from the automatic stay pursuant to 11 U.S.C. § 362(d) was AFFIRMED. The bankruptcy court did not abuse its discretion in granting relief from the automatic stay where the debtors consented to such relief. The automatic stay in 11 U.S.C. § 362(a) does not apply to protect nondebtors, and debtors may stipulate to the lifting of the stay. The equitable doctrine of marshaling did not apply.

298. McCain Foods USA, Inc. v. Shore (In re Shore), 317 B.R. 536 (10th Cir. BAP 2004) (Cornish, J.) (before Cornish, Michael, & Thurman, JJ.) (Appeal from the United States Bankruptcy Court for the District of Kansas).

A bankruptcy court judgment excepting a debt from discharge pursuant to 11 U.S.C. § 523(a)(6) was AFFIRMED. The court did not err in applying the collateral estoppel to bar relitigation of a state court judgment.

299. In re Albrecht, 2004 WL 2852347, BAP No. UT-04-023 (10th Cir. BAP filed Dec. 9, 2004) (McFeeley, C.J.) (before McFeeley, C.J., and Bohanon & Brooks, JJ.) (Appeal from the United States Bankruptcy Court for the District of Utah).

An appeal from an order extending the time to object to the debtor’s discharge was DISMISSED because it was moot.

300. In re Mersmann, 318 B.R. 537 (10th Cir. BAP 2004) (Thurman, J.) (before Cornish, Michael, & Thurman, JJ.) (Appeal from the United States Bankruptcy Court for the District of Kansas, reported at 305 B.R. 42 (Bankr. D. Kan. 2004)). APPEAL FILED (10th Cir. No. 05-3013)

A bankruptcy court judgment (1) denying a motion by a student loan creditor pursuant to Fed. R. Civ. P. 60(b) and Fed. R. Bankr. P. 9024 to amend the debtor’s confirmed plan discharging otherwise nondischargeable student loan debt as an undue hardship under 11 U.S.C. § 523(a)(8); and (2) granting the debtor’s motion pursuant to Fed. R. Civ. P. 60(a) and Rule 9024 to amend a conflicting form order excepting the same debt from discharge, was AFFIRMED.

Although the procedure used by the debtor to discharge the debt was improper, under Andersen v. UNIPAC-NEBHELP (In re Andersen), 179 F.3d 1253 (10th Cir. 1999), the creditor was barred under principles of res judicata, from attacking the confirmed plan. Furthermore, limitations in Poland v. Educational Credit Management Corp. (In re Poland), 382 F.3d 1185 (10th Cir. 2004) on the application of Andersen did not apply because the debtor’s plan contained an express “finding” of undue hardship. Andersen, despite being harshly criticized in Poland, was controlling authority because one panel of the Tenth Circuit cannot overrule the decision of another panel. It was irrelevant under the Andersen analysis that the “finding” of undue hardship was made when the debtor’s confirmed plan was amended pursuant to 11 U.S.C. § 1329. The debtor’s failure to serve the creditor with a summons and § 523(a)(8) complaint did not result in a denial of due process because, under Andersen, service of the various notices in accordance with Fed. R. Bankr. P. 2002 was sufficient. The Court made clear that the proper procedure for obtaining a hardship discharge under § 523(a)(8) was to commence an adversary proceeding, and it warned that Andersen should not be used as “a tool for Chapter 13 debtors to surreptitiously obtain a hardship discharge by confirmation.” In fact, the Court stated that through its holding and Poland, “Chapter 13 debtors are considered warned that the insertion of ‘undue hardship’ findings in a plan or confirmation order, or any order amending the plan or confirmation order, is never appropriate and may be grounds for setting such findings aside and/or sanctions.” See infra related appeals, Educational Credit Management Corp. v. Nelson (In re Nelson), 318 B.R. 532 (10th Cir. BAP 2004) [301]; In re Seiwert, __ B.R. __, 2004 WL 2896942, BAP No. KS-04-016 (10th Cir. BAP filed Dec. 14, 2004) [302]; Educational Credit Management Corp. v. Boyer (In re Boyer), __ B.R. __, 2004 WL 2896940, BAP No. KS-04-015 (10th Cir. BAP filed Dec. 14, 2004) [303].

301. Educational Credit Management Corp. v. Nelson (In re Nelson), 318 B.R. 532 (10th Cir. BAP 2004) (Thurman, J.) (before Cornish, Michael, & Thurman, JJ.) (Appeal from the United States Bankruptcy Court for the District of Kansas, reported at 305 B.R. 42 (Bankr. D. Kan. 2004) appeal dismissed, No. 05-3019 (10th Cir. March 29, 2005).

A bankruptcy court judgment discharging the debtors’ unpaid student loan debt based on a provision in their confirmed Chapter 13 plan stating that the debt was discharged was REVERSED. The confirmed plan did not contain an express “finding” of “undue hardship” under 11 U.S.C. § 523(a)(8) and, therefore, under Poland v. Educational Credit Management Corp. (In re Poland), 382 F.3d 1185 (10th Cir. 2004), the discharge provision was not binding on the student loan creditor. The debtors could only seek discharge of their student loan debt by commencing an adversary proceeding pursuant to § 523(a)(8), and proving undue hardship by a preponderance of the evidence. See supra related appeal In re Mersmann, 318 B.R. 537 (10th Cir. BAP 2004) [300]; & infra related appeals In re Seiwert, __ B.R. __, 2004 WL 2896942, BAP No. KS-04-016 (10th Cir. BAP filed Dec. 14, 2004) [302]; Educational Credit Management Corp. v. Boyer (In re Boyer), __ B.R. __, 2004 WL 2896940, BAP No. KS-04-015 (10th Cir. BAP filed Dec. 14, 2004) [303].

302. In re Seiwert, 2004 WL 2896942, BAP No. KS-04-016 (10th Cir. BAP filed Dec. 14, 2004) (Cornish, J.) (before Cornish, Michael, & Thurman, JJ.) (Appeal from the United States Bankruptcy Court for the District of Kansas, reported at 305 B.R. 42 (Bankr. D. Kan. 2004)). APPEAL FILED (10th Cir. No. 05-3024)

A bankruptcy court judgment discharging a portion of the debtor’s unpaid student loan debt based on a provision in her confirmed Chapter 13 plan stating that the debt was discharged was REVERSED. The confirmed plan did not contain an express “finding” of “undue hardship” under 11 U.S.C. § 523(a)(8) and, therefore, under Poland v. Educational Credit Management Corp. (In re Poland), 382 F.3d 1185 (10th Cir. 2004), the discharge provision was not binding on the student loan creditor. The debtor could only seek discharge of student loan debt by commencing an adversary proceeding pursuant to § 523(a)(8), and proving undue hardship by a preponderance of the evidence. See supra related appeals In re Mersmann, 318 B.R. 537 (10th Cir. BAP 2004) [300]; Educational Credit Management Corp. v. Nelson (In re Nelson), 318 B.R. 532
(10th Cir. BAP 2004) [301]; & infra related appeal Educational Credit Management Corp. v. Boyer (In re Boyer), __ B.R. __, 2004 WL 2896940, BAP No. KS-04-015 (10th Cir. BAP filed Dec. 14, 2004) [303].

303. Educational Credit Management Corp. v. Boyer (In re Boyer), 2004 WL 2896940, BAP No. KS-04-015 (10th Cir. BAP filed Dec. 14, 2004) (Cornish, J.) (before Cornish, Michael, & Thurman, JJ.) (Appeal from the United States Bankruptcy Court for the District of Kansas, reported at 305 B.R. 42 (Bankr. D. Kan. 2004)).

A bankruptcy court judgment discharging a portion of the debtors’ unpaid student loan debt based on a provision in their confirmed Chapter 13 plan stating that the debt was discharged was REVERSED and the case was REMANDED. The confirmed plan did not contain an express “finding” of “undue hardship” under 11 U.S.C. § 523(a)(8) and, therefore, under Poland v. Educational Credit Management Corp. (In re Poland), 382 F.3d 1185 (10th Cir. 2004), the discharge provision was not binding on the student loan creditor. The debtors could only seek discharge of student loan debt by commencing an adversary proceeding pursuant to § 523(a)(8), and proving undue hardship by a preponderance of the evidence. See supra related appeals In re Mersmann, 318 B.R. 537 (10th Cir. BAP 2004) [300]; Educational Credit Management Corp. v. Nelson (In re Nelson), 318 B.R. 532 (10th Cir. BAP 2004) [301]; In re Seiwert, __ B.R. __, 2004 WL 2896942, BAP No. KS-04-016 (10th Cir. BAP filed Dec. 14, 2004) [302].

304. Southeastern Medical Labs., Inc. v. Andarakes (In re Andarakes), 2004 WL 2905325, BAP No. WO-04-062 (10th Cir. BAP filed Dec. 16, 2004) (per curiam) (before Clark, Nugent, & Brown, JJ.) (Appeal from the United States Bankruptcy Court for the Western District of Oklahoma).

A bankruptcy court judgment dismissing a complaint against the Chapter 7 debtor was AFFIRMED. The plaintiff-creditor failed to prove embezzlement or larceny within the meaning of 11 U.S.C. § 523(a)(4), or that the debtor’s debt to it was a result of a “willful and malicious injury” within the meaning of 11 U.S.C. § 523(a)(6). Certain issues not raised in the bankruptcy court were deemed waived on appeal.

305. Taylor v. Hazboun (In re Hazboun), 319 B.R. 747, 2004 WL 3008941, BAP No. UT-04-033 (10th Cir. BAP filed Dec. 29, 2004) (per curiam) (before McFeeley, C.J., and Bohanon & Brooks, JJ.) (Appeal from the United States Bankruptcy Court for the District of Utah).

A bankruptcy court judgment awarding the Chapter 7 debtor attorney’s fees and costs pursuant to 11 U.S.C. § 523(d) was REVERSED. Test and standard of review for “substantial justification” discussed.

306. In re Yates, 2005 WL 50188, BAP No. WY-04-036 (10th Cir. BAP filed Jan. 11, 2005) (per curiam) (before Bohanon, Cornish, & Michael, JJ.) (Appeal from the United States Bankruptcy Court for the District of Wyoming).

A bankruptcy court order awarding the Chapter 13 debtors attorney’s fees resulting from a creditor’s willful violation of the automatic stay under 11 U.S.C. § 362(h) was VACATED and the matter was REMANDED to the bankruptcy court. Although the order did not set the amount of the fees, it was a “final” order over which the Court could exercise jurisdiction under 28 U.S.C. § 158(a)(1). Appellate review of the order, however, was not possible because the bankruptcy court did not make any findings of fact as required under Fed. R. Bankr. P. 7052 & 9014.

307. In re Schoenhals, 2005 WL 83836, BAP No. WO-04-070 (10th Cir. BAP filed Jan. 14, 2005) (per curiam) (before McFeeley, C.J., & Clark and Brown, JJ.) (Appeal from the United States Bankruptcy Court for the Western District of Oklahoma).

A bankruptcy court order disallowing a secured claim asserted against the Chapter 12 debtors was AFFIRMED. The creditor’s mechanic’s lien against the debtors’ tractor was extinguished when he

308. Society of Lloyd’s v. Harmsen (In re Harmsen), 320 B.R. 188 (10th Cir. BAP 2005) (Brooks, J.) (before McFeeley, C.J., & Bohanon & Brooks, JJ.) (Appeal from the United States Bankruptcy Court for the District of Utah), appeal dismissed, No. 05-4041 (10th Cir. May 24, 2005).

A bankruptcy court order dismissing creditor’s involuntary Chapter 7 petition, after trial, was AFFIRMED. The bankruptcy court properly applied the “totality of the circumstances” test, adopted in Bartmann v. Maverick Tube Corp., 853 F.2d 1540 (10th Cir. 1988), in connection with its finding that debtor was “generally paying his debts on time” under 11 U.S.C. § 303(h)(1), and such finding was not clearly erroneous. The facts that case was brought by a single creditor and no other creditors joined in were considered by bankruptcy court as part of its totality determination, and were not suggestive of application of the “Almost Per Se” rule, in violation of Bartmann. Creditor failed to meet its burden of demonstrating that debtor was not paying debts on time.

309. Tanner v. Barber (In re Barber), 326 B.R. 463 (10th Cir. BAP 2005) (McFeeley, C.J.) (before McFeeley, C.J., & Clark & Bohanon, JJ.) (Appeal from the United States Bankruptcy Court for the District of Wyoming).

A bankruptcy court’s summary judgment, finding creditors’ debts nondischargeable under 11 U.S.C. § 523(a)(2), was AFFIRMED. Debt that is nondischargeable under § 523(a)(2)(A) is not limited to the actual amount that debtor obtains through fraud, but includes punitive and compensatory damages. Where the bankruptcy judgment only determines that a debt is nondischargeable, and does not assess the amount of the debt, Fed. R. Bankr. P. 7008 and 7009 do not require that damages be pled with particularity in the adversary complaint.

310. Pritner v. Cofco Credit Co., LLC (In re Pritner), 323 B.R. 802, 2005 WL 705363, BAP No. WO-04-080 (10th Cir. BAP Mar. 21, 2005) (Nugent, J.) (before Nugent, McNiff, & Thurman, JJ.) (Appeal from the United States Bankruptcy Court for the Western District of Oklahoma), appeal dismissed, No. 05-6165 (10th Cir. Nov. 14, 2005).

A bankruptcy court judgment dismissing debtors’ complaint against creditor for violation of automatic stay was REVERSED and REMANDED. In a “no asset” Chapter 7 proceeding, creditor was not prejudiced by discharge of its pre-petition debt, even though debt was not scheduled and creditor did not receive notice of the bankruptcy proceedings. Pursuant to In re Parker, 313 F.2d 1267 (10th Cir. 2002), 11 U.S.C. § 523(a)(3)(A) does not except unscheduled debts from discharge in no asset cases where no proof of claim deadline is set. Moreover, equitable arguments, such as laches, similarly do not affect dischargability. Thus, under 11 U.S.C. § 524(a), creditor’s state court judgment on its debt was void as a matter of law. Debtors’ conduct is only relevant, on remand, in determining the extent of their remedies for creditor’s violation of the automatic stay, which must at least include repayment of wages that were garnished pursuant to a void judgment.

311. Musgrove v. Davis (In re Musgrove), 2005 WL 977076, BAP No. EO-05-002 (10th Cir. BAP Apr. 26, 2005) (Thurman, J.) (before McFeeley, C.J., & Nugent & Thurman, JJ.) (Appeal from the United States Bankruptcy Court for the Eastern District of Oklahoma).

A bankruptcy court order denying debtor’s request for relief from a stipulated judgment was AFFIRMED. The bankruptcy court did not abuse its discretion in denying debtor’s Fed. R. Civ. P. 60(b) motion, since debtor failed to present evidence to support his claim that his attorney acted without authority in entering the stipulated judgment.

312. AC Rentals, Inc. v. United States Trustee (In re AC Rentals, Inc.), 325 B.R. 339, 2005 WL 1220496, BAP No. WO-04-098 (10th Cir. BAP May 12, 2005) (Per Curiam) (before Clark, Brown, & McNiff, JJ.) (Appeal from the United State Bankruptcy Court for the Western District of Oklahoma).

A bankruptcy court order dismissing debtor’s Chapter 11 case was AFFIRMED. The bankruptcy court did not abuse its discretion in dismissing case pursuant to 11 U.S.C. § 1112(b), since debtor admitted “cause” under that section and failed to present evidence that conversion, rather than dismissal, was in the best interest of its creditors.

313. Whiting v. Gillman (In re Whiting), 325 B.R. 339, 2005 WL 1220494, BAP No. UT-04-052 (10th Cir. BAP May 19, 2005) (Brown, J.) (before Cornish, Nugent, & Brown, JJ.) (Appeal from the United State Bankruptcy Court for the District of Utah).

A bankruptcy court order authorizing sale of estate property to a third party was VACATED and the matter was REMANDED to the bankruptcy court. Approval of Trustee’s sale of debtors’ claims against third party to that third party did not include an independent evaluation of the settlement, as required by In re Kopexa Realty Venture, 213 B.R. 1020 (10th Cir. BAP 1997) and Fed. R. Bankr. P. 9019, where trial court determined only that Trustee had properly considered the factors. In addition, a finding of good faith was required where Trustee’s sale motion dictated bankruptcy court’s prior approval of purchaser as “good faith purchaser, satisfying the requirements of 11 U.S.C. § 363(m),” and trial court erred in failing to make any such finding with respect to actual purchaser. Remand for a determination of good faith is appropriate even when that issue is raised for the first time on appeal.

314. Myers v. Myers (In re Myers), 329 B.R. 358, 2005 WL 1324019, BAP No. KS-04-054 (10th Cir. BAP May 25, 2005) (Per Curiam) (before Bohanon, Cornish, & Brown, JJ.) (Appeal from the United State Bankruptcy Court for the District of Kansas).

APPEAL FILED (10th Cir. No. 05-3254)

A bankruptcy court order dismissing debtor’s Chapter 11 petition over appellant’s objection was AFFIRMED. Bankruptcy courts have broad discretion to either convert or dismiss cases under 11 U.S.C. § 1112(b), and debtor’s failure to file monthly reports required by Fed. R. Bankr. P. 2015(a)(3) was sufficient justification for dismissal.

315. Bartmann v. Malloy (In re Bartmann), 329 B.R. 358, 2005 WL 1324016, BAP No. NO-04-096 (10th Cir. BAP May 25, 2005) (Per Curiam) (before Nugent, Brown, & Thurman, JJ.) (Appeal from the United State Bankruptcy Court for the Northern District of Oklahoma).

A bankruptcy court order denying debtors’ motion for extension of time to file a notice of appeal from court’s prior easement order was AFFIRMED. Bankruptcy court did not abuse its discretion in finding that debtors’ counsel’s failure to read the appropriate rules was not “excusable neglect” under Fed. R. Bankr. P. 8002.

316. Bartmann v. Malloy (In re Bartmann), BAP No. NO-04-095 (10th Cir. BAP May 25, 2005) (Per Curiam) (before Nugent, Brown, & Thurman, JJ.) (Appeal from the United State Bankruptcy Court for the Northern District of Oklahoma).

A bankruptcy court order denying debtors’ motion for extension of time to file a notice of appeal from court’s prior order granting trustee’s objection to debtors’ amended schedule was AFFIRMED. In a related case, Bartmann v. Malloy (In re Bartmann), 329 B.R. 358, 2005 WL 1324016, BAP No. NO-04-096 (10th Cir. BAP filed May 25, 2005) [315] this court found that bankruptcy court did not abuse its discretion in finding that debtors’ counsel’s failure to read the appropriate rules was not “excusable neglect” under Fed. R. Bankr. P. 8002. The same reasoning applies here.

317. Countrywide Home Loans v. Davis (In re Davis), 325 B.R. 339, 2005 WL 1278096, BAP No. WO-04-057 (10th Cir. BAP May 26, 2005) (McNiff, J.) (before McFeeley, CJ, & Clark & McNiff, JJ.) (Appeal from the United State Bankruptcy Court for the Western District of Oklahoma).

APPEAL FILED (10th Cir. No. 05-6214)

A bankruptcy court’s summary judgment order allowing creditor’s adversary action to proceed was REVERSED and the case was REMANDED for dismissal. Where previous trial judge denied creditor’s request to either modify confirmation of debtor’s plan or require an adversary proceeding to determine validity of creditor’s lien, on the basis that they were barred by creditor’s failure to appeal or to otherwise timely seek relief from confirmation, principles of res judicata barred creditor’s subsequent adversary proceeding seeking the same relief.

318. InteliQuest Media Corp. v. Miller (In re InteliQuest Media Corp.), 326 B.R. 825 (10th Cir. BAP 2005) (Nugent, J.) (before Cornish, Nugent, & Brown, JJ.) (Appeal from the United States Bankruptcy Court for the District of Utah).

A bankruptcy court order denying debtors’ and their attorneys’ motion to compel on the basis of res judicata was AFFIRMED. Appellants sought to compel Trustee to pursue their attorneys’ fees and costs as surcharges against secured creditor’s collateral, pursuant to 11 U.S.C. § 506(c). All § 506(c) claims had previously been the subject of several post-petition stipulated waivers between Trustee and creditor These waivers were approved by the bankruptcy court, over appellants’ objections, in orders appellants did not appeal. Post-petition waivers of § 506(c) claims, approved and embodied in orders, are enforceable under principles of res judicata. Appellants’ claims for professional compensation were properly administrative expenses under 11 U.S.C. § 503, which are assessed against the estate as a whole, rather than § 506(c) surcharges, which are assessed against a secured party’s collateral for a particular benefit received by that creditor.

319. First Nat’l Bank v. Cribbs (In re Cribbs), 327 B.R. 668 (10th Cir. BAP 2005) (McNiff, J.) (before Clark, Nugent, & McNiff, JJ.) (Appeal from the United State Bankruptcy Court for the Western District of Oklahoma).

A bankruptcy court’s judgment that debt was dischargeable was AFFIRMED. Bankruptcy court’s findings under 11 U.S.C. § 523(a)(2)(B) that (1) debtor acted without intent to deceive, (2) that lender did not actually rely on debtor’s erroneous financial statement, and (3) that any reliance was not reasonable were supported by the record and not clearly erroneous. Intent is a subjective inquiry, and Central Nat’l Band and Trust Co. v. Liming (In re Liming), 797 F.2d 895 (10th Cir. 1986) does not impose an objective standard of recklessness.

320. Azwar v. Texas Guaranteed Student Loan Corp. (In re Azwar), 326 B.R. 165 (10th Cir. BAP 2005) (Nugent, J.) (before Clark, Nugent, & McNiff, JJ.) (Appeal from the United State Bankruptcy Court for the Western District of Oklahoma).

A bankruptcy court judgment discharging debtor’s student loan pursuant to the “undue hardship” provision in 11 U.S.C. § 523(a)(8) was REVERSED. Debtor failed to satisfy his burden to prove “undue hardship,” as defined in Educational Credit Management Corp. v. Polleys (In re Polleys), 356 F.3d 1302 (10th Cir. 2004). Specifically, debtor failed to provide evidence to establish that (1) his inability to pay his student loans was likely to persist, and (2) his efforts to repay the loans were in good faith.

321. Cline v. Cline (In re Cline), __ B.R. __, 2005 WL 1706119, BAP Nos. WO-04-069, WO-04-071 (10th Cir. BAP July 20, 2005) (Per Curiam) (before McFeeley, CJ. & Clark & McNiff, JJ.) (Appeal from the United States Bankruptcy Court for the Western District of Oklahoma). APPEAL FILED (10th Cir. No. 05-2310)

A bankruptcy court judgment excepting a portion of debtor’s divorce-related debt to his former spouse from discharge was AFFIRMED because both appellants failed to provide the court with an adequate record upon which to assess their claims of error. A designation of the trial court record is insufficient to satisfy the requirements of Fed. R. Bankr. P. 8006 and 8009(b) and 10th Cir. BAP L. R. 8009-1(b) that appellant present the record to the appellate court in appendices.

322. Metropolitan Life Insurance Co. v. Milk Palace Dairy, LLC (In re Milk Palace Dairy, LLC), 327 B.R. 462 (10th Cir. BAP 2005) (Boulden, J.) (before Bohanon, Cornish, & Boulden, JJ.) (Appeal from the United States Bankruptcy Court for the District of Kansas).

An appeal of a bankruptcy court order granting debtor’s request to purchase real property from a related entity was DISMISSED as moot. Appellant mortgage creditor did not obtain a stay on appeal. Since entry of the order appealed, the majority of the property on which appellant held liens had been sold to third parties, and the remainder had been transferred to a non-party trust charged with operating debtor’s dairy and, ultimately liquidation, under a confirmed plan of reorganization. The court is without jurisdiction to undo transfers to non-parties, and appellant’s relief requests all involve at least the potential for unknown and unacceptable results impacting innocent third parties. Therefore, the appeal is both constitutionally and equitably moot.

323. First State Operating Co. v. Holbrook (In re Lotspeich), 328 B.R. 209 (10th Cir. BAP 2005) (McFeeley, CJ.) (before McFeeley, CJ. & Clark & McNiff, JJ.) (Appeal from the United States Bankruptcy Court for the Western District of Oklahoma), appeal dismissed, No. 05-6284 (10th Cir. Feb. 13, 2006).

Bankruptcy court orders 1) approving asset sale, and 2) confirming plan of reorganization were REVERSED and REMANDED. Order approving sale of debtor’s real property to a third party was insufficient under 11 U.S.C. § 363(m) because it lacked findings as to whether the purchase was by a “good faith purchaser.” Lack of such findings precluded appellate review, and the sale order was reversed and remanded for findings on that limited issue. Order confirming plan violated absolute priority rule of 11 U.S.C. § 1129(b)(2)(B)(ii) because debtor retained an “interest in property,” as defined by Unruh v. Rushville State Bank, 987 F.2d 1506 (10th Cir. 1993), despite appellees’ contention that debtor’s interest was equitable only and without value. Therefore, the plan could not be confirmed under 11 U.S.C. § 1129(a) or crammed down under 11 U.S.C. § 1129(b) and it should not have been approved.

324. Carlin v. United States of America (In re Carlin), 328 B.R. 221 (10th Cir. BAP 2005) (Cornish, J.) (before Bohanon, Cornish, & Michael, JJ.) (Appeal from the United States Bankruptcy Court for the District of Kansas).

A bankruptcy court order finding debtor’s tax debt nondischargeable was AFFIRMED. Having signed and filed joint tax returns with her non-debtor spouse, debtor was jointly and severally liable for the resulting taxes, penalties, and interest, regardless of whether she would have been required to file a return based on her income alone. Those taxes were nondischargeable under 11 U.S.C. §§ 523(a)(1)(A) and 507(a)(8)(A)(ii) because they were assessed within 240 days before the filing of debtor’s petition. Moreover, the “240-day rule” does not include a “required return” element, and one cannot be read into the statute by the court. Neither could 11 U.S.C. § 105(a) be exercised to negate a specific legislative mandate, such as that contained in § 507(a)(8)(A)(ii).

325. Whiting v. Questar Gas Co. (In re Whiting), 329 B.R. 358, 2005 WL 1847172, BAP No. UT-05-019 (10th Cir. BAP Aug. 3, 2005) (Nugent, J.) (before Michael, Nugent, & Brown, JJ.) (Appeal from the United States Bankruptcy Court for the District of Utah).

A bankruptcy court order approving trustee’s settlement of debtors’ claims against individual third parties was AFFIRMED. The bankruptcy court did not abuse its discretion under Fed. R. Bankr. P. 9019(a) where approval of the settlement involved an evidentiary hearing, consideration of the standards for approval of settlements set forth in In re Kopexa Realty Venture, 213 B.R. 1020 (10th cir. BAP 1997), and detailed findings and conclusions that indicated the court had independently evaluated the facts. The 11 U.S.C. § 363(m) good faith purchaser requirement was inapplicable to the bankruptcy court’s approval of the settlement under Rule 9019.

326. Blue Ridge Bank and Trust Co. v. Cascio (In re Cascio), __ B.R. __, 2005 WL _____, BAP No. KS-05-016 (10th Cir. BAP Aug. 4, 2005) (Cornish, J.) (before Bohanon, Cornish, & Boulden, JJ.) (Appeal from the United States Bankruptcy Court for the District of Kansas).

A bankruptcy court order finding debtor’s obligation to lender dischargeable was AFFIRMED. Findings that financial statement provided to lender, although materially false, 1) was not reasonably relied upon, and 2) was not given by debtor with intent to deceive, were supported by the record and not clearly erroneous. Therefore, lender failed to establish nondischargeability under 11 U.S.C. § 523(a)(2)(B).

327. Willis v. Strother (In re Strother), 328 B.R. 818 (10th Cir. BAP 2005) (Brown, J.) (before McFeeley, CJ. & Brown & Thurman, JJ.) (Appeal from the United States Bankruptcy Court for the Eastern District of Oklahoma).

A bankruptcy court order discharging contractor’s liens on debtor’s homestead was AFFIRMED. Although debtor’s homestead exemption was defined by Oklahoma law, an “opt out” state pursuant to 11 U.S.C. § 522(b), debtor’s ability to avoid liens that impair that exemption was governed by 11 U.S.C. § 522(f), notwithstanding contrary state law. Owen v. Owen, 500 U.S. 305 (1991); In re Leonard, 866 F.2d 335 (10th Cir. 1989). Since contractor’s claim was a judicial lien rather than a statutory lien, it was properly discharged under § 522(f)(1)(A).

328. Wilkins v. Hamilton (In re Wilkins), 329 B.R. 358, 2005 WL 1926413, BAP No. KS-04-050 (10th Cir. BAP Aug. 11, 2005) (Cornish, J.) (before Bohanon, Cornish, & Boulden, JJ.) (Appeal from the United States Bankruptcy Court for the District of Kansas).

A bankruptcy court order dismissing debtor’s Chapter 13 case without prejudice was AFFIRMED. The list of conditions for dismissal in 11 U.S.C. § 1307(c) is not exclusive, and a Chapter 13 case may be dismissed if, under the totality of the circumstances, there has been an abuse of the provisions, purpose, or spirit of the Code. Where debtor not only gambled money beyond budgeted recreation funds in violation of trustee’s and court’s admonitions not to, but also lied about that gambling under oath, the trial court did not abuse its discretion by dismissing her case.

329. Rajala v. Majors (In re Majors), 330 B.R. 880, 2005 WL 2077497, BAP Nos. KS-04-093 and KS-04-097 (10th Cir. BAP Aug. 29, 2005) (Bohanon, J.) (before Bohanon, Cornish, & Boulden, JJ.) (Appeal from the United States Bankruptcy Court for the District of Kansas).

A bankruptcy court order denying trustee’s request for denial of discharge, but granting request for turnover of funds, was AFFIRMED. That debtor lacked the requisite intent, under either 11 U.S.C. § 727(a)(2)(B) or § 727(a)(4)(A), to deny her discharge was a finding of fact that was not clearly erroneous. Trustee simply failed to carry the burden to establish that debtor’s conduct, in failing to disclose a business-related checking account and in using post-petition accounts receivable monies for business-related purposes, involved intent to defraud, rather than debtor’s mistaken but subjective belief that her sole proprietorship business was separate from her personal bankruptcy estate. However, trustee was entitled to a money judgment for the value of the accounts receivable and the checking account, pursuant to 11 U.S.C. § 542, notwithstanding debtor’s claim of hardship because the funds were no longer in her possession.

330. Derringer v. Chapel (In re Derringer), 330 B.R. 880, 2005 WL 2216327, BAP No. NM-05-020 (10th Cir. BAP Sept. 6, 2005) (Michael, J.) (before Michael, McNiff, & Thurman, JJ.) (Appeal from the United States Bankruptcy Court for the District of New Mexico).

Bankruptcy court orders denying debtor’s motions for “judicial notice” and for relief under Fed. R. Civ. P. 59(e) were AFFIRMED. Debtor’s claims regarding the validity of appellees’ state court judgments granting them injunctive and monetary relief against debtor were barred by both res judicata and the Rooker-Feldman doctrine, which precludes federal courts from reconsidering or overruling final state court judgments. Debtor’s Rule 59 motion was properly denied for failure to raise any issues not previously considered by the bankruptcy court. APPEAL FILED (10th Cir. No. 05-2310)

331. Johnson v. Smith (In re Johnson), 330 B.R. 880, 2005 WL 2300370, BAP No. WY-04-087 (10th Cir. BAP Sept. 7, 2005) (Michael, J.) (before Clark, Bohanon, & Michael, JJ.) (Appeal from the United States Bankruptcy Court for the District of Wyoming).

Bankruptcy court orders finding that vehicle seller violated automatic stay, and ordering return of vehicle to debtors and delivery of its title without a lien notation were AFFIRMED. Award of damages for lost use of the vehicle was REVERSED. Award of attorney fees incurred in connection with debtors’ enforcement of the automatic stay was VACATED and REMANDED for further proceedings. Bankruptcy court’s findings that vehicle sales contract was neither executory nor terminated pre-petition, and that the vehicle was property of debtors’ estate were correct as a matter of law. Proper standard of proof of a claimed stay violation is “preponderance of the evidence,” and bankruptcy court’s factual findings supporting its legal conclusion that seller “willfully violated” the automatic stay, arising under 11 U.S.C. § 362(a)(4), were not clearly erroneous. Seller violated the stay by attempting to perfect its lien on the vehicle post-petition and by otherwise exercising control over the vehicle itself. However, debtors’ testimony that they drove their son’s car 2500 miles while the purchased vehicle was unavailable to them was insufficient, standing alone, to support bankruptcy court’s award of lost use damages in the amount of 37 cents per mile, absent any evidentiary basis showing either an agreement between debtors and their son for payment or the origin of the per mile figure. Finally, admission of a fees and costs statement, and the resulting attorney fee award, was reversible under Fed. R. Evid. 602, where debtors’ attorney did not testify in support of it. APPEAL FILED (10th Cir. No. 05-8089)

332. Loper v. Loper (In re Loper), 329 B.R. 704 (10th Cir. BAP 2005) (Karlin, J.) (before Clark, Brown, & Karlin, JJ.) (Appeal from the United States Bankruptcy Court for the Western District of Oklahoma).

Summary judgment in favor of debtor on her former husband’s complaint seeking non-dischargeability of her debt to him, pursuant to 11 U.S.C. § 523(a)(5), was REVERSED, and the matter was remanded for additional proceedings. Appellant’s affidavit in opposition to summary judgment, though self-serving, amounted to more than a “scintilla of evidence,” and was sufficient to create a genuine issue of material fact as to the parties’ intent that money awarded in their divorce decree as “alimony in lieu of property division” was in fact intended to be used for “support.”

333. McCoy v. Hardeman (In re Tahah), 330 B.R. 777 (10th Cir. BAP 2005) (Clark, J.) (McFeeley, CJ., concurring in result) (before McFeeley, CJ. & Clark & McNiff, JJ.) (Appeal from the United States Bankruptcy Court for the Western District of Oklahoma).

A bankruptcy court order disallowing that portion of debtor counsel’s fee application that was above the local guidelines’ presumptively reasonable fee was REVERSED and the matter was remanded for further proceedings. Attorney fee reasonableness is governed by 11 U.S.C. § 330(a)(3), and must include an independent evaluation of the propriety of fees sought. Bankruptcy court’s failure to make factual findings pursuant to § 330 prevented appellate review of the fee award.

334. O’Steen v. Buckner (In re Buckner), 337 B.R. 728, 2005 WL 2600625, BAP No. EO-05-034 (10th Cir. BAP Sept. 28, 2005) (McNiff, J.) (before Nugent, McNiff, & Thurman, JJ.) (Appeal from the United States Bankruptcy Court for the Eastern District of Oklahoma).

A bankruptcy court judgment discharging appellants’ claim against debtor, pursuant to 11 U.S.C. § 523(a)(2)(A), on the ground that debtor did not intend to deceive them was AFFIRMED. Intent is a question of fact reviewed for clear error, and an appellate court may not substitute its judgment for that of the trial court. Also, trial court was not required to discuss evidence not relevant to or probative of intent, and appellants failed to show either that their evidence was not considered by the trial court or that the result would have been different if it had.

335. Unified People’s Federal Credit Union v. Yates (In re Yates), 332 B.R. 1 (10th Cir. BAP 2005) (Thurman, J.) (before Nugent, Thurman, & Romero, JJ.) (Appeal from the United States Bankruptcy Court for the District of Wyoming).

A bankruptcy court order awarding attorney fees and costs to debtor for credit union’s wilful violation of automatic stay in Chapter 13 case was AFFIRMED. The provision in 11 U.S.C. § 362(a) that stays the exercise of control over estate property prohibits continued possession of estate property that was lawfully obtained prior to imposition of the stay, especially in light of the 11 U.S.C. § 542(a) requirement that creditors in possession of estate property upon the filing of a bankruptcy petition turn that property over to the trustee. In addition, 11 U.S.C. § 362(h) mandated an award of attorney fees and costs incurred in connection with creditor’s refusal to turn over debtor’s vehicle where creditor knew of the automatic stay and refused to comply with requests for turnover, despite creditor’s claimed subjective belief that it had a right to the property.

336. Unified People’s Federal Credit Union v. Yates (In re Yates), 337 B.R. 728, 2005 WL 2499488, BAP No. WY-05-017 (10th Cir. BAP Oct. 4, 2005) (Romero, J.) (before Nugent, Thurman, & Romero, JJ.) (Appeal from the United States Bankruptcy Court for the District of Wyoming).

A bankruptcy court order denying credit union’s request for turnover of funds paid to Chapter 13 trustee by debtor prior to conversion of case to Chapter 7 was AFFIRMED because court’s equitable powers under 11 U.S.C. § 105 cannot be used to override the specific requirement of 11 U.S.C. § 1326(f)(2) that trustee return payments to debtor upon conversion.

337. Hansen v. Green Tree Servicing, LLC (In re Hansen), 332 B.R. 8 (10th Cir. BAP 2005) (Nugent, J.) (before Nugent, Thurman, & Romero, JJ.) (Appeal from the United States Bankruptcy Court for the District of Wyoming).

A bankruptcy court judgment in favor of creditor in debtor’s avoidance action was REVERSED and remanded with instructions to vacate the judgment and dismiss debtor’s action, on the ground that Chapter 13 debtors do not have standing to bring avoidance actions under 11 U.S.C. § 544(a). Pursuant to 11 U.S.C. § 1303, Chapter 13 debtors have only those trustee powers granted in certain subsections of 11 U.S.C. § 363. Therefore, the avoidance powers of § 544 are exclusive to the trustee.

338. Kennedy v. Martinez (In re Kennedy), 336 B.R. 600, 2005 WL 2662328, BAP No. CO-05-033 (10th Cir. BAP Oct. 19, 2005) (Nugent, J.) (before McFeeley, CJ. & Clark & Nugent, JJ.) (Appeal from the United States Bankruptcy Court for the District of Colorado).

A bankruptcy court order sustaining trustee’s objection to debtors’ claimed exemption in annuity proceeds, under Colorado law, was AFFIRMED, since trustee successfully rebutted debtors’ claim that the annuity statute was an exemption, and debtors failed to produce the annuity contract, which precluded adequate review of whether the contractual provisions required by the statute had been met. APPEAL FILED (10th Cir. No. 06-1010)

339. Schubert v. Baum (In re Schubert), 337 B.R. 728, 2005 WL 2857937, BAP No. CO-05-023 (10th Cir. BAP Nov. 1, 2005) (Bohanon, J.) (before McFeeley, CJ. & Bohanon & Michael, JJ.) (Appeal from the United States Bankruptcy Court for the District of Colorado).

A bankruptcy court order imposing sanctions against debtor, related to an unsuccessful contempt motion against creditor, was REVERSED and remanded for further proceedings, because trial court failed both to describe the conduct upon which sanctions were based and to give an explanation for the sanctions, as required by Fed. R. Bankr. P. 9011(c)(3).

340. Weber v. Wells Fargo Auto Finance, Inc. (In re Weber), 332 B.R. 432 (10th Cir. BAP 2005) (Romero, J.) (before Nugent, Thurman, & Romero, JJ.) (Appeal from the United States Bankruptcy Court for the District of Wyoming).

A bankruptcy court order applying a “private party” valuation for debtors’ redemption of a vehicle under 11 U.S.C. § 722 was REVERSED and the matter was remanded for entry of judgment allowing redemption under a foreclosure standard of valuation, which best corresponded to the agreed “trade-in” valuation in this case.
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