The Court was faced with competing motions for summary judgment regarding issues of whether assignments or the sale of certain consumer accounts owned by the debtor and purported to be assigned or sold to one of the principal creditors in debtor's Ponzi scheme were effective. The Court ruled that as a matter of law, a document that does not identify specific accounts and refers to the creditor as an investor and not as a purchaser does not effectively assign an account and does not transfer ownership. A facsimile transmission that is labeled "For information only - Not a Legal Document" has no legal force or effect.
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Title: Equity Trader-1 v. Cox (In re Equity Trader-1) | Date: Jan-28-2005 | Status: UNPUBLISHED (Judge Clark) | Case(s): 02-2472
Title: Jones v. Homecomings Financial Network and Residential Funding Corporation (In re Jones) | Date: Jan-24-2005 | Status: UNPUBLISHED (Judge Thurman) | Case(s): 04-2636
Defendants sought an order dismissing Counts 3-12 and 14 in the Plaintiff's Complaint for failure to state a claim upon which relief can be granted because, Defendants argued, the applicable statutes of limitation created a complete bar to Plaintiffs' recovery on those claims. Defendants further argued that the Wrongful Foreclosure claim was not ripe because Defendants had not conducted a foreclosure sale, and that the Objection to the Proof of Claim was not ripe because Defendants had not filed a proof of claim in this case. The Court found that 1) Debtor's wife could not utilize § 108(a) because she is not a debtor in this bankruptcy case; 2) Debtor himself could not utilize § 108(a) because that section was meant to benefit solely trustees or debtors in possession; 3) Debtor is not afforded the benefits of § 1640(e) because it is inapplicable to this case; and 4) Debtor's objection to proof of claim is unripe because neither Defendant had filed a proof of claim in this case. Accordingly, the Defendants' Motion to Dismiss Counts 3 through 12 and Count 14 of Plaintiffs' Complaint was granted.
Title: In re Norton, 2005 WL 150641 (Bankr.D.Utah) | Date: Jan-21-2005 | Status: PUBLISHED (Judge Boulden) | Case(s): 04-22581
Debtor's case was dismissed with prejudice barring the discharge of the Debtor's current debts in any future bankruptcy case under § 349(a) after the Debtor filed nine unsuccessful Chapter 13 petitions. The Court found that the Debtor's defiant and abusive conduct established “cause” under § 349(a). The opinion also distinguishes § 349(a) from other Bankruptcy Code provisions that allow for dismissal, and specifically examines what type of debtor misconduct warrants a “for cause” dismissal with prejudice under § 349(a) as allowed under Frieouf v. United States (In re Frieouf), 938 F.2d 1099 (10th Cir. 1991), cert denied, 502 U.S. 1091 (1992).
Title: Olsen Properties v. Geneva Steel (In re Geneva Steel) | Date: Jan-4-2005 | Status: UNPUBLISHED See 465.pdf (Judge Clark) | Case(s): 04-2804
This adversary proceeding came before the court on motions by debtor/defendant to dismiss and by plaintiff for summary judgment. Debtor entered into a postpetition contract with defendant USM to demolish its steel mill site and salvage scrap metals, among other things. USM entered into an agreement with plaintiff to sell to it certain salvaged items. Debtor declared its contract with USM to be in default and refused access to the items that had been sold by USM to plaintiff. On the countering motions, the court found that plaintiff’s complaint stated its claims sufficiently to satisfy the standard needed to avoid dismissal. The court also found that fact issues regarding ownership precluded summary judgment. Both motions were therefore denied. This case was heard together with 465.pdf, a related case.
Title: Olsen Properties v. Geneva Steel (In re Geneva Steel) | Date: Jan-4-2005 | Status: UNPUBLISHED Duplicate of 464.pdf (Judge Clark) | Case(s): 04-2804
This opinion was inadvertantly filed twice. See 464.pdf for summary.
Title: Texas Iron & Metals Co. v. Geneva Steel (In re Geneva Steel) | Date: Jan-4-2005 | Status: UNPUBLISHED See 464.pdf (Judge Clark) | Case(s): 04-2803
This adversary proceeding came before the court on motions by debtor/defendant to dismiss and by plaintiff for summary judgment. Debtor entered into a postpetition contract with defendant USM to demolish its steel mill site and salvage scrap metals, among other things. USM entered into an agreement with plaintiff to sell to it certain scrap iron and steel that it had salvaged. Debtor declared its contract with USM to be in default and refused access to the scrap metal that had been sold by USM to plaintiff. On the countering motions, the court found that plaintiff’s complaint stated its claims sufficiently to satisfy the standard needed to avoid dismissal. The court also found that fact issues regarding ownership of the scrap metal precluded summary judgment. Both motions were therefore denied. This case was heard together with 464.pdf, a related case.
Title: In re Burningham | Date: Dec-10-2004 | Status: UNPUBLISHED (Judge Boulden) | Case(s): 04-24586
The United States Trustee brought a motion seeking disgorgement of fees and fines against petition preparer for assisting a pro se chapter 7 debtor to complete her petition, schedules and statement of financial affairs. The following issues were determined: First, it is a violation of § 110(g) for a petition preparer to collect a debtor's filing fee even if made payable to the U.S. Bankruptcy Court; however, in this case, the violation was sufficiently remedied and only a nominal sanction of $1 was issued. Second, the fee charged by the petition preparer is reasonable for the services rendered pursuant to § 110(h)(2). Third, there is insufficient evidence that the petition preparer received an additional $100 cash paid by the debtor as alleged by the United States Trustee and although the petition preparer did not report the courier fee on his Disclosure of Compensation, he remedied the problem by discontinuing the practice of using a courier and no fraud was perpetrated against the Court for either omission; however, the Court required disgorgement of the $20 courier fee to the debtor as required by the Code. Finally, based on the facts presented, no violation for the prohibition of practicing law without a licence for the petition preparer's explanation of the chapters of bankruptcy and no violation for filling out the schedules and statement of financial affairs. However, the Court did find that allowing a software program to select state exemptions for a debtor constitutes the unauthorized practice of law in violation of § 110(k).While the Court determined that the petition preparer violated some portions of § 110, it pointed out that the petition preparer made a tremendous effort to bring his company into compliance with the Bankruptcy Code and local practice which was a mitigating factor in issuing sanctions.
Title: In re Smith | Date: Nov-22-2004 | Status: UNPUBLISHED (Judge Thurman) | Case(s): 03-36469
Upon a motion brought by the United States Trustee, the Court ruled on dismissing a chapter 13 case with prejudice to the Debtors receiving any discharge on their scheduled debts pursuant to §349(a) of the Bankruptcy Code. The Court ruled that Debtors who had filed eight bankruptcy petitions over the preceeding nine years including chapter 7 petitions in 1995 and 2001 where discharges were obtained and had filed chapter 13 petitions in 1996, 1997, 1998, 2000, 2002 and 2003 where no significant activity or confirmation of plan had occured; who had failed to make any pre-confirmation plan payments except for the initial payment to the Trustee in the present case and were otherwise delinquent a total of five pre-confirmation payments to the Trustee in the present case, should have their case dismissed with prejudice from receiving any discharge for the debts listed on their schedules.The Court reviewed the history of §349(a) of the code going back to the Chandler Act of 1898 and determined that such history coupled with the plain meaning of that section all direct that a case may be dismissed with this type of prejudice under egregious facts. The Court adopted the Flygare (In re Flygare, 709 F.2d 1344 (10th Cir. 1983) for badges of bad faith as a beginning point of analysis. The Court further concluded that this type of dismissal with prejudice was consistent with the Tenth Circuit's decision in Frieouf (In re Frieouf, 938 F. 2d 1099, (10th Cir. (1991) which forbade denial to bankruptcy court access for more than 180 days, but authorized denial of discharge of scheduled debts for cause.
Title: In re Boyce | Date: Nov-18-2004 | Status: PUBLISHED 317 B.R. 165 (Bankr.D.Utah) (Judge Clark) | Case(s): 04-24409
United States Trustee filed a motion under 11 U.S.C. § 110, seeking fines or disgorgement of fees from a bankruptcy petition preparer ("BPP"). The court found that BPP's $195 fee was not excessive, and that BPP did not engage in the practice of law by responding to debtor’s basic questions about bankruptcy, or by using software to create debtor’s schedules and statements. In the alternative, the court found that BPP did not engage in unauthorized practice of law because he closely associated himself with a licensed attorney. However, the court joined the majority rule in finding that BPP violated § 110(g)(1) by accepting debtor’s filing fee in the form of a money order payable to the court. For that violation, BPP was fined $1.00.
Title: In re Villegas | Date: Oct-5-2004 | Status: UNPUBLISHED (Judge Thurman) | Case(s): 03-40485
The Court was presented with the issue of whether private school tuition was a reasonably necessary expense for chapter 13 Debtors where they were not paying their creditors 100% in their plan. The Court analyzed section 1325(b) of the Bankruptcy Code which requires that all income, less expenses that are reasonably necessary for the maintenance or support of the Debtors or their dependents be contributed to the plan. The Court determined that private school expenses are presumptively not reasonably necessary, but that such presumption can be rebutted by a showing of compelling circumstances. Such circumstances in this case included evidence that the children of the Debtors had always attended private schools, that the Debtors perceived that such education was superior to the local public schools, that the Debtors had voluntarily reduced expenses in other areas, that the vehicles of the Debtors were at least ten years old and that the Debtors were living with relatives to reduce living expenses. Finally, the Debtors had proposed a 55 month plan rather than a minimum 36 month plan, returning 32% to their creditors. Under these specific circumstances, the Court determined that the Debtors had shown compelling circumstances and the Court confirmed the Debtors'