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Opinions

Case Title Date & Status Case Number(s) Judge & PDF Summary

Rushton v. Dean Evans Chrysler-Plymouth (In re Solar Energy Sales & Servs., Inc.), 4 B.R. 364 (Bankr.D.Utah)Styler v. Utah State Emps. Credit Union (In re Alvillar)


(Internal Ref: Opinion 13)

Jun-2-1980

PUBLISHED

78-1291, 79-0603

Judge Mabey

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The court considered the circumstances of two cases with respect to creditors' claimed entitlement to equitable liens on motor vehicles. Concluding that the circumstances of each case were insufficient to warrant equitable relief from the perfection requirements of Utah Code Ann. § 41-1-80, et seq., the court denied relief to both creditors and determined that the trustee's interest in the vehicles was superior.

Child v. Nilsson (In re Nilsson)


(Internal Ref: Opinion 12)

May-16-1980

UNPUBLISHED

76-0633

Judge Mabey

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Plaintiffs filed an action against debtor in state court, and debtor thereafter filed his chapter XIII petition without listing plaintiffs as creditors. Creditors did not become aware of the bankruptcy filing until after the deadline for filing claims had expired. Debtor filed an untimely motion to amend his schedules to add plaintiffs as creditors, which the court denied. The court then ruled that 11 U.S.C. § 93n was not a mandatory limitation of filing claims as held by some courts, and that equitable relief could be given to creditors, in the form of an extension of the proof of claim filing deadline, under exceptional circumstances. Finding such circumstances, the court determined plaintiffs' claim to be non-dischargeable under 11 U.S.C. § 35(a)(3).

Dickey v. Neal (In re Neal), 3 B.R. 330 (Bankr.D.Utah)


(Internal Ref: Opinion 11)

Mar-31-1980

PUBLISHED

78-0526

Judge Mabey

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Plaintiffs filed a non-dischargeability complaint against debtor, a contractor hired to build their house. The court ruled in favor of debtor, finding that debtor's receipt of payments from plaintiffs that he did not apply to a construction loan secured by the home did not amount to fraud or false pretenses. The court further found that there was no fiduciary relationship between the parties, and dismissed the complaint.

Robinson v. Novinski-Durando (In re Van Wyck)


(Internal Ref: Opinion 10)

Feb-12-1980

UNPUBLISHED

78-0324 and -0325

Judge Mabey

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Plaintiffs loaned money to debtors for the purchase of a mobile home from a third party. Although the seller held valid title, debtors did not retitle the mobile home in their own names. Plaintiffs asserted that this failure meant that debtors had no interest in the mobile home when they filed their petition. The court disagreed, finding that the Utah statute "deeming" title not to have passed until a new certificate is issued to the new owner did not render the purchase invalid as between the parties. Therefore, the debtors owned the mobile home at the time of filing and trustee could succeed to that interest to the extent it was not subject to a perfected security interest. The court reaffirmed its prior ruling to the effect that plaintiff's security interest was unperfected.

In re Iacovoni, 2 B.R. 256 (Bankr.D.Utah)In re SnelsonIn re MaternIn re MontoyaIn re CartwrightIn re BishopIn re EppersonIn re Love


(Internal Ref: Opinion 9)

Jan-18-1980

PUBLISHED

79-1214, -1223, -1261, -1266, -1265, -1267, -1280, and -1347

Judge Mabey

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In reviewing several chapter 13 plans proposed for confirmation by debtors, the court described the factors to consider in determining the 11 U.S.C. § 1325(a)(3) requirement that a plan be proposed in "good faith." The court held that good faith requires that the debtor propose a legitimate or substantial repayment of unsecured claims, which depends on the debtor's specific circumstances. Debtors are not required to make their "best effort," but are required to make a "good faith effort" to render meaningful repayment. The specific circumstances that should be considered include debtor's budget, potential future income and payment prospects, amount of debt and proposed percentage of payment, and the nature of debts sought to be discharged. A plan that proposes to make no payments to unsecured creditors cannot be confirmed.

Thomsen v. Davies (In re Davies)


(Internal Ref: Opinion 8)

Jan-11-1980

UNPUBLISHED

78-0723

Judge Mabey

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Plaintiff, who was convinced by debtor to purchase a significant amount of fine silver as an investment, filed suit against debtor after debtor lost all the silver while it was on loan to him by plaintiff. Noting the disparity between the parties' knowledge and experience, the court held that debtor had obtained the silver from plaintiff by false pretenses and false representations, with intent to deceive, which included reckless and knowing omission of material facts, under circumstances requiring disclosure. Therefore, plaintiff's claim was non-dischargeable under § 17a(2) of the Bankruptcy Act (11 U.S.C. § 35a(2)).

Neve-Welch Enters., Inc. v. Twelves (In re Tri-Power Elecs., Inc.)


(Internal Ref: Opinion 7)

Nov-29-1979

UNPUBLISHED

79-0467

Judge Mabey

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Plaintiff brought its own merchandise and sales people to debtor's business to participate in debtor's "close-out sale." All proceeds of the sale were deposited into debtor's account with bank, and debtor thereafter authorized bank to issue a cashier's check to plaintiff in the amount of plaintiff's sale proceeds. Debtor then filed bankruptcy and bank stopped payment on the cashier's check. Plaintiff filed a complaint in the bankruptcy for reclamation, and debtor responded that its obligation to plaintiff had been satisfied by bank's issuance of the check. The court agreed, noting that plaintiff's remedy must be sought from bank, the drawer and drawee of the check. The complaint was dismissed.

Kuehne v. Huff (In re Huff), 1 B.R. 354 (Bankr.D.Utah)


(Internal Ref: Opinion 6)

Nov-29-1979

PUBLISHED

78-0672

Judge Mabey

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In creditor's non-dischargeability action under 11 U.S.C. § 35a(2), the court held that creditor bore the burden of proving each element of the claim by clear and convincing evidence.

Harris v. Fed. Emps. Credit Union (In re Moore)


(Internal Ref: Opinion 5)

Nov-6-1979

UNPUBLISHED

79-0020

Judge Mabey

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Trustee sought to set aside credit union's execution and subsequent sale of debtor's vehicle as a preference under 11 U.S.C. § 96b. The court held that delivery of the vehicle to credit union pursuant to the execution, at a time when credit union was not aware of debtor's insolvency, created a lien, or "transfer," under 11 U.S.C. § 96a(2), which precluded superior liens. Trustee's complaint was dismissed.

Assocs. Commercial Corp. v. Green (In re Humphries), 1 B.R. 82 (Bankr.D.Utah)


(Internal Ref: Opinion 4)

Oct-1-1979

PUBLISHED

78-0342

Judge Mabey

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Recognizing that the exclusive way to perfect a lien on a motor vehicle in Utah is to obtain a notation of the lien on the certificate of title, the court nonetheless found that an equitable exception to such a rule, set forth in Commerce Bank v. Chambers, 519 F.2d 356 (10th Cir. 1975), applied to the facts presented. In Commerce Bank, the Circuit concluded that, if creditor has done all that was required of it to perfect a lien, it should not be penalized by the debtor's failure to obtain a notation on the title, under a statute similar to Utah's that made it the buyer's responsibility to obtain a new title. In the case before it, the court held that creditor had expended significant effort in its attempt to get debtor to register its lien, including providing all necessary information needed to do so. Therefore, creditor's lien was perfected, and its complaint for reclamation of the vehicle was granted.

Styler v. Scharf (In re Metal Tech Mfg., Inc.)


(Internal Ref: Opinion 3)

Sep-17-1979

UNPUBLISHED

78-0655

Judge Mabey

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The court considered the merits of creditor's statutory right to reclaim property sold to debtor, pursuant to Utah Code Ann. § 70A-2-702(2), in light of § 67c(1)(A) of the Bankruptcy Act. Since creditor's lien was not perfected, her claim was dependent upon the Utah statute, which the court held violated § 67c(1)(A), and trustee's lien was therefore superior.

Twelves v. Prod. Credit Assoc. (In re Indian Springs Farm & Ranch, Inc.) Mason v. Prod. Credit Assoc. (In re River Bottom Equip. Leasing Co.)


(Internal Ref: Opinion 2)

May-31-1979

UNPUBLISHED

77-0062 and -0063

Judge Mabey

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Creditor sold collateral to debtor and properly filed a financing statement under Utah Code Ann. § 70A-9-402. Debtor later filed a bankruptcy petition, and trustee filed a complaint seeking determination of all parties' interests in the collateral. Creditor asserted that its financing statement made its lien superior to that of the trustee, and the court considered whether creditor's description of the property in its financing statement was sufficient, under Utah Code Ann. § 70A-9-110, to "reasonably identify" what was covered. The court determined that a description of collateral that makes identification possible, upon reasonable inquiry, would be sufficient under the statute, and that a description of the collateral in the security agreement would be highly relevant to that issue. After the court determined which items of property held in storage were subject to creditor's lien, it determined that Utah law was unclear as to whether creditor could first foreclose on personal property and then on real property in a separate action, concluding that nothing in the statutes precluded separate actions.

Rental Elecs., Inc. v. SSC Corp. (In re SSC Corp.)


(Internal Ref: Opinion 1)

May-31-1979

UNPUBLISHED

78-0516

Judge Mabey

PDF icon 1.pdf

Creditor's security interest in leased collateral delivered to debtor in Utah was held to be unperfected under Utah law because (1) when the collateral entered Utah, it was not yet subject to a perfected lien in California, so the 4-month grace period under Utah Code Ann. § 70A-9-103(1)(d) did not apply, and (2) creditor's subsequent perfection in California was ineffective in Utah, under § 70A-9-103(1)(c), as creditor was always aware that the collateral would be located in Utah.

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