DECISIONS - 1988

Irvin N. Hoyt, Chief Bankruptcy Judge

Alphabetical Listing

1988 DECISION SUMMARIES

Irvin N. Hoyt, Chief Bankruptcy Judge

1. January 4, l988: LEROY MILTON HORSLEY AND DARLENE JOY HORSLEY, DEBTORS, DARLENE JOY HORSLEY, MOVANT VS. THOMAS M. MAHER, CHAPTER 7 TRUSTEE, RESPONDENT. Case No. 385- 00071, Chapter 7. ISSUE: 11 U.S.C., Sections 105 and 541, B.R. 9013 and 9014. Is interest in a certain testamentary trust property of the bankruptcy estate? RULING: Future contingent interest of movant of testamentary trust is property of estate. 11 U.S.C 541(a)(1).

APPEAL RECORD

March 15, 1988: LEROY & DARLENE HORSLEY. Case No.385-00071. Notice of Appeal to District Court filed by Darlene Horsley from Judgment and Order entered 3-7-88 on Motion to Determine Whether Contingent Interest in a Testamentary Trust is Property of the Estate; Memorandum Decision 1-1-88. APPEAL STATUS: Referred to Hon. Donald J. Porter 4-6-88. Reversed. Order reversing Bankruptcy Court entered by Judge Porter 8-11-88 (Civ. 88-3015) 89 B.R. 51 (1988).

2. February 1, l988: FRANCIS GERARD GOC AND KATHIE LYNN GOC: Case No. 386-00045, Chapter 12. ISSUE: Section 506 - Valuation of real and personal property.

APPEAL RECORD

March 25, 1988: FRANCIS & KATHIE GOC. Case No. 386-00045. Notice of Appeal to District Court filed by debtors from the Judgment and Order entered 3-15-88 determining the value of the real estate and personal property; Memorandum Decision dated 2-1-88. APPEAL STATUS: Referred to Hon. Donald J. Porter 4-20-88. Dismissed. Order Dismissing Appeal entered by Judge Porter 10-25-88 (Civ. 88-3017).

March 31, 1988: Cross-Appeal filed by First National Bank from same Judgment and Order above determining the real estate valuation. APPEAL STATUS: Referred to Hon. Donald J. Porter 4-20-88. Dismissed. Order Dismissing Cross-Appeal entered by Judge Porter 10-25-88(Civ. 88-3018).

3. February 5, l988: LEROY JOHN RAUSCH AND PATRICIA EVELYN RAUSCH, Case No. 87-30100, Chapter 12. ISSUE: 11 U.S.C., Section 1205. Relief from automatic stay/adequate protection in the form of interest payments - re: Ahler's period. In re Ahlers, 794 F.2d 388 (8th Cir. 1986). RULING: In re Rennich, 70 B.R. 69 (Bkrtcy. D.S.D. 1987); U.S. Association of Texas v. Timbers of Inwood Forest Associates, Ltd., (Slip Op. No. 86-1602, decided 1-20-88). Motions denied.

4. February 19, l988: KEITH FISCHER AND CHARLENE FISCHER, Case No. 184-00114, Chapter 7. ISSUE: File a "First Amendment to Schedule A-3" after the case was closed. RULING: B.R. 1009; 11 U.S.C. 350(b); B.R. 5010; In re Common, 69 B.R. 458 (Bkrtcy. N.D. Ill. 1987); In re Scism, 41 B.R. 384, 11 C.B.C. 2d 137 (Bkrtcy. W.D. Okla. 1984) - Objection sustained without prejudicing the debtor's right to move to reopen the case for purpose of amending their Schedule A-3.

5. March 18, l988: JUNIOR SEBASTIAN HAMMRICH AND JOYCE: Case No. 87-10032, Chapter 12. ISSUE: In re Ahlers, 794 F.2d 388, 395 (8th Cir. 1987), 1988 WL 17016 (U.S. S.Ct. March 7, l988). Whether creditor FLB's request for adequate protection payments in the form of rental value must wait until the Ahlers foreclosure period has expired before debtor is required to make such payments? RULING: The Court held no. In re Billy E. Turner, 1988 WL 6412 (Bankr. W.D. Tenn. 1-29-88); Norton, Bankruptcy Law & Practice, Section 87.04 (1981). ISSUE: Whether FLB is entitled to payments of rent on its real estate collateral as adequate protection under Section 1205? RULING: The Court denied the adequate protection motion. 11 U.S.C. 1205; H. R. Conf. Rep. No. 99-958 99th Cong., 2d Sess. 49-50 (1986); Turner, supra; 3 Norton, Bankruptcy Law & Practice, Sections 87-03 and 87.05 Stay should not be lifted.

6. March 18, l988. DARYL KEITH HOGG AND DONNA RAE HOGG, No. 386-00062, Chapter 11. ISSUE: 11 U.S.C., Section 330; Application for attorney fees - excessive fees. B.R. 2016 - Recoverable fees; In re Pettibone Corp., 74 B.R. 293, 299 (Bkrtcy. N.D. Ill. 1987); Matter of Combined Craft Corp. 58 B.R. 819 (Bkrtcy. W.D. Wis. 1986) - Burden of proof; 11 U.S.C. 330, 1 Norton, Bankruptcy Law & Practice, Section 13.22 (1981) - comparable compensation for services in non-bankruptcy cases; 76 B.R. at 741 and 743 - Fees incurred pursuing adversarial trial; In re S.T.N. Enterprises, Inc., 70 B.R. 823 (Bkrtcy. D. Vt. 1987; In Re Jensen-Farley Pictures, Inc., 47 B.R. 557 (Bkrtcy. C.D. Utah, 1985); In re Taylor, 66 B.R. 390, (Bkrtcy. W.D. Pa. 1986); In re Watson Seafood & Poultry Co. Inc., 40 B.R. 436 (Bkrtcy. E.D.N.C. 1984); In re United Rockwool, Inc., 32 B.R. 558 (Bkrtcy, E.D. Va. 1983); In re International Coins & Currency, Inc., 22 B.R. 127 (Bkrtcy. D. Vt. 1982). Fees charged for travel time - should they be billed at full hourly rate or a reduced rate? RULING: Fees reduced. But see, In re Hanson, et al. - (March 8,1989) (386-00136).

7. March 18, l988: IN RE ZEMAN FARMS, INC., Case No. 87-30132, Chapter 12. ISSUE: 11 U.S.C., Section 506 - Valuation dispute on real estate. RULING: Value determined.

APPEAL RECORD

July 18, 1988. ZEMAN FARMS, INC. Case No. 87-30132. Notice of Appeal and Motion for Leave to Appeal to District Court filed by Travelers Insurance Company from Order Determining Valuation dated 5-11-88; Memorandum Decision 3-18-88. APPEAL STATUS: Referred to Hon. Donald J. Porter 7-28-88. Motion for Leave to Appeal granted by Judge Porter 7-28-88. Dismissed. Order of dismissal entered by Judge Porter 12-23-88 (Civ. 88-3040).

7A. March 23, l988: IN RE ZEMAN FARMS, INC., Case No. 87-30132, Chapter 12. This decision is a supplement to #7 above. ISSUE: 11 U.S.C., Section 506 - Valuation dispute on personal property. RULING: Value determined.

7B. March 25, l988: IN RE ZEMAN FARMS, INC., Case No. 87-30132, Chapter 12. This decision is a supplement to #7 and #8A above re: Treatment of Cash Collateral.

8. March 21, l988: IN RE BROKEN BOW RANCH, INC., Case No. 87-30137, Chapter 12. ISSUE: 11 U.S.C. Section 506(a) - Valuation dispute on real estate. RULING: Value determined.

APPEAL RECORD

April 29, 1988: BROKEN BOW RANCH, INC. Case No. 87-30137. Notice of Appeal to District Court filed by Federal Land Bank of Omaha from Judgment and Order of Valuation of Real Estate Improvements and Irrigation Equipment Fixtures Securing Federal Land Bank of Omaha Claim entered 4-18-88; Memorandum Decision 3-21-88. APPEAL STATUS: DISMISSED. Stipulation of Voluntary Dismissal of Appeal filed 6-9-88. Order Dismissing Appeal entered 6-13-88.

May 13, 1988: Notice of Cross-Appeal filed by FLBO from same judgment as above. APPEAL STATUS: Dismissed. Stipulation of Voluntary Dismissal of Cross-Appeal filed 6-9-88. Order Dismissing Cross- Appeal filed 6-13-88.

9. March 22, l988: VAUGHN AND GENEVIEVE DOERR, Case No.86-00156, Chapter 12. ISSUE: 11 U.S.C., Section 506 -Valuation dispute. RULING: Court sought opinion of independent appraiser and adopted values of independent appraiser.

APPEAL RECORD

May 2, 1988: VAUGHN & GENEVIEVE DOERR. Case No. 186-00156. Notice of Appeal to District Court filed by debtors from Order Determining Value of Property of the Estate for Plan Purposes entered 4-21-88; Memorandum Decision 3-22-88. APPEAL STATUS: Dismissed. Joint Motion for Dismissal of Appeal filed by debtors and FLBO 6-14-88. Order of Dismissal entered 6-16-88.

10. March 23, l988: LEROY KRAGE dba KRAGE SIMMENTALS, VIOLET V. KRAGE ELTON, PLAINTIFF, VS. LEROY KRAGE dba KRAGE SIMMENTALS, DEFENDANT, Case No. 186-00144, Adversary No. 87-1014, Chapter 12. ISSUE: 11 U.S.C., Section 523(a)(5)(B) -whether a debt owed to an ex-spouse pursuant to a decree of divorce entered by a state court is in the nature of alimony, maintenance or support is nondischargeable? RULING: In re Neely, 59 B.R. 189 (Bkrtcy. D.S.D. 1986) - (Guidelines - derivatives of 8th Circuit Court of Appeals opinions of Draper v. Draper, 790 F2d 52, (1986); Boyle v. Donovan, 724 F2d 681 (1984); In re Williams, 703 F2d 1055 (1983)); Definition of Support - Scheible, Defining "Support" Under Bankruptcy Law, 41 Vand. L.R. 1, f.n. 25 (1988); Burden of Proof - Matter of Myers, 61 B.R. 891 (Bkrtcy. N.D. Ga. 1986); Debt considered to be support.

APPEAL RECORD

April 20, 1988: LEROY KRAGE. Case No. 186-00144, Adversary No. 87-1014. Notice of Appeal to District Court filed by debtor from Final Judgment of Nondischargeability and Order Vacating Judgment entered 4-18-88; Memorandum Decision 3-23-88. APPEAL STATUS: Referred to Hon. Donald J. Porter 6-6-88. Affirmed. Order affirming entered by Judge Porter 7-27-88.

August 5, 1988: LEROY KRAGE: Case No. 186-00144, Adversary No. 87-1014. Notice of Appeal to Eighth Circuit Court of Appeals filed by debtor from Order of United States District Court, Hon. Donald J. Porter entered 7-27-88. APPEAL STATUS: Referred to 8th Circuit Court of Appeals May 11, 1989. AFFIRMED: Memorandum Decision affirming the Order of U.S. District Court, Hon. Donald J. Porter, affirming the U.S. Bankruptcy Court, Hon. Irvin N. Hoyt, filed July 12, l989 (#88-5336).

April 13, 1990: Motion to Dismiss Appeal filed by debtor. Order Dismissing Appeal without prejudice entered by Hon. Donald J. Porter 4-16-90 (Civ. #89-1045).

11. April 11, l988: JAMES ANDERSON AND DOROTHY ANDERSON, Case No. 386-00044, Chapter 12. ISSUE: B.R. 9023 - Motion for reconsideration concerning relief from stay. RULING: Federal Rule of Civil Procedure, 59(b). Court declined to vacate the order. ISSUE: SDCL 53-3-8; SDCL 55-4-3 Power of co-trustees of express trust - - under South Dakota law does a sole trustee acting alone have the authority to modify the terms of a contract for deed held by a Trust? RULING: G. Bogart, The Law of Trusts and Trustees, Section 554 (Rev. 2nd ed. 1980 - Court ruled sole trustee did not have authority to modify the terms of the contract for deed held by the Trust.

11A. April 21, l988: ROBERT L. AND DONNA M. ESCHENBAUM, Case No. 386-00023, Chapter 11. ISSUE: Whether a Chapter 13 bankruptcy, pending the effective date of Chapter 12, may be converted to Chapter 12. RULING: Motion to convert was granted. In re Erickson Partnership, 74 B.R. 670 (1987) (Erickson 1) - Section 302(c) allows conversion. Section 101(18) and (20) -The Court found that the Debtors do qualify to file under Chapter 12; and that they have established that they are "family farmers with a regular income". But see In re Erickson, 856 F.2d 1068 (1988).

12. May 9, l988: MICHAEL ALLEN HERRICK, Case No. 184-00041 Chapter 11. ISSUE: 11 U.S.C., Section 503 - Whether a creditor is entitled to an administrative expense claim arising out of the debtor's rejection of a lease contract? Petition - herd liquidation period. RULING: In re Pickens-Bond Construction Co., 17 B.C.D. 261 (Bkrtcy. E.D. Ark. 1988); Section 503(b)(1)(A); In re Subscription Television of Greater Atlanta, 789 F2d 1530 (11th Cir. 1986); In re Thompson, 788 F2d 560 (9th Cir. 1986); Pickens-Bond, supra; In re Intran Corp., 62 B.R. 435 (Bkrtcy. D. Minn 1986); 3 Collier, Bankruptcy para. 503.34[ii] (15th Ed. 1987) - - The Court granted an administrative expense claim for the period beginning with the filing of the petition until the debtor disbursed his dairy herd. ISSUE: Herd Liquidation - Repossession Period - - allow administrative claim as it was a benefit to the estate. RULING: Court denied recovery on large bin as it did not benefit the estate after the sale of the cattle. Court allowed claim for the post-herd liquidation period as this benefited the estate.

13. May 16, l988: DALE ARTHUR RESEL, Case No. 386-00077, Chapter 11. ISSUE: Enforcement of a stipulation, or in the alternative, for the award of administrative expense status. RULING: Rule 9019 - Notice for approval issue - In re Bramham, 38 B.R. 459, 465 (Bkrtcy. D. Nev. 1984) (citing in Re Lloyd, Carr & Co., 617 F2d 882 (1st Cir. 1980)); In re Bell and Beckwith, 50 B.R. 422 (Bkrtcy. N.D. Ohio 1985)(citing In re Flight Transp. Corp. Securities Litigation, 730 F2d 1128 (8th Cir 1984)). Notice not property given - Court cannot enforce the terms of the memorandum appended to the motion. ISSUE: Administrative expense claim - are all parties in interest entitled to notice? RULING: In re Dakota Industries, Inc., 31 B.R. 23 (Bkrtcy D.S.D. 1983); 1 Norton, Bankruptcy Law & Practice, Section 12.04 (1981) -all parties in interest should have been given notice of an administrative expense request.

14. May 17, l988: KENNETH J. HOFER, dba FARMER, Case No. 386-00018, Chapter 7. ISSUE: 11 U.S.C. 541(a)(6) - Action to enforce a settlement - does the Bankruptcy Court have jurisdiction over the proceeding under Title 11? RULING: 28 U.S.C. 157(b)(3). 28 U.S.C. 1134 (a) and (b); 28 U.S.C. 157(a) and (c); 1 Collier on Bankruptcy, para. 3.01[v] (1987); 1 Norton, Bankruptcy Law & Practice, Section 5.31 (1981); In re Bobroff, 766 F2d 797 (3rd Cir. 1985); In re Fleet, 53 B.R. 833 (Bkrtcy. E.D. Pa. 1985) (citing Bobroff); Funding Sys. Asset Mgt. Corp. v. 3-M. Co., 72 B.R. 595 (W.D. Pa. 1987); In re Globe Parcel Service, Inc., 71 B.R. 323 (E.D. Pa. 1987) -This Court lacks subject matter jurisdiction to decide the action.

15. June 7, l988: FRANCIS VICTOR AND PAULINE KRUMP, Case No. 87-10230, Chapter 12; DENNIS DONNA VOELLER, Case No. 87-10254, Chapter 12; AND CRAIG AND REBECCA WENDLING, Case No. 87-10232, Chapter 12. 89 B.R. 821 (1988). ISSUE: Section 507(a)(7). Plan treatment of tax claimants - debtors' plans propose to pay entire amount of pre-petition tax claims in deferred cash payments without interest. RULING: Real Estate Taxes: Section 507 (a)(7); Matter of Stanford, 826 F.2d 353 (5th Cir. 1987); United States v. Neal Pharmacal Co., 789 F.2d 1283 (8th Cir. 1986); 11 U.S.C. 101(33) and 101 (47). South Dakota real estate taxes are subject to statutory liens - In re Brandenburg, 71 B.R. 719 (Bkrtcy. D.S.D. 1987); SDCL 10-19-1 and 10-19-2; Salvation Army v. Barnett, 124 N.W.2d 365 (S.D. 1963). Classification of claims (partially secured, undersecured, unsecured priority claims) - Stanford; 3 Collier on Bankruptcy para. 506.04[1] (15th ed. 1988). Under South Dakota law real estate taxes are superior to other liens except as against the U.S. and South Dakota - Kruse v. State, 38 N.W.2d 925, 926 (S.D. l949) (quoting Hughes County v. Henry, 202 N.W. 286, 288 (S.D. 1925). Section 122(a)(2) - priority tax claimants; Section 507(a)(7)(B) - priority status for unsecured government claims ); Matter of Herr, 80 B.R. 135 (Bkrtcy. S.D. Iowa 1987); In re Citrowske, 72 B.R. 613, 617 (Bkrtcy. D. Minn. 1987); 5 Collier on Bankruptcy, para 122.02 (15th ed. 1988); Norton Bankruptcy Law and Practice, section 91.06 (1981). A creditor fully secured by virtue of a statutory lien, qualifies to receive interest at the state statutory rate under Section 506(b) - Brandenburg; 3 Collier on Bankruptcy para. 506.05 (15th ed. 1988). Post-petition interest accruing on the fully secured tax claims continues as long as there is sufficient collateral value to pay the interest, or until the effective date of the plan - In re Snyder Farms, Inc., 83 B.R. 977 (Bkrtcy. N.D. Ind. 1988); In re Lenz, 74 2 B.R. 413 (Bkrtcy. C.D. Ill. 1987). I.R.S. Income Taxes: As general propositions the Court would point out that delinquent I.R.S. taxes are subject to statutory liens -26 U.S.C. 6321; 26 U.S. C. 6323; 11 U.S.C. 545.

16. 6-20-88: JOHN G. AND SANDRA L. SMITH, Case No. 384-00060, Chapter 11. ISSUE: FmHA's Objection to Confirmation and Cramdown. RULING: 11 U.S.C. Section 1129(a)(7)(A)(i) - By virtue of Creditor's stipulation Constituting Chapter 11 Plan, FmHA accepted the Second Amended Plan. Court confirmed plan.

17. 6-21-88: EDWARD L. AND PHYLLIS SWENSON, Case No. 87-30136, Chapter 12. ISSUE: 506 Valuation - Real Estate. RULING: Value determined.

18. 6-21-88: DUANE JOHN SLUNECKA AND ROBERT SLUNECKA, Case No. 87-30085, Chapter 12. ISSUE: 506 Valuation - Real Estate. RULING: Value determined.

APPEAL RECORD

July 1, 1988: DUANE SLUNECKA & ROBERT SLUNECKA. Case No. 87-30085. Notice of Appeal to District Court filed by Federal Land Bank of Omaha from Order for Valuation entered 6-23-88; Memorandum Decision 6-23-88. APPEAL STATUS: Dismissed. Dismissal filed by Federal Land Bank of Omaha 11-3-88.

19. 6-22-88: ROBERT AND ARLENE VANDER WERFF, Case No. 385- 00070, Chapter 11. ISSUE: Whether confirmation of the Debtors' plan relieves them of their pre-bankruptcy duty to comply with FmHA regulations regarding the farm collateral and use of collateral proceeds? RULING: 5 Collier on Bankruptcy para. 1142.01 and 01[2] (5th ed. 1988) and Section 1142(a) - regulations relate to "financial condition". The regulations and forms in question do not necessarily conflict with implementation of the plan.

20. 7-7-88: ALVIN AND DELORIS BAUER, Case No. 87-10326, Adversary No. 87-1042, Chapter 12. ISSUE: Whether an offset of ASCS payments owed to Debtors against a debt owed by Debtors to SBA is avoidable in Bankruptcy, where all administrative procedures necessary to establish right of setoff were completed prior to the 90 day pre-petition period, but the actual payment of the setoff by check occurred with the 90 day period? RULING: Section 553(a) - governing creditor's rights. Section 101(50) - defines "transfer". In re Mason, 69 B.R. 876 (Bkrtcy. E.D. Pa. 1987); In re Jameson's Foods, Inc., 35 B.R. 433 (Bkrtcy. D.S.C. 1983); In re Matter of R & T Roofing Struct. & Commercial Fram., 79 B.R. 22 (1987); 2 Norton Bankruptcy Law and Practice, Section 32.01 (1981). Motion granted - setoff found to be voidable.

21. 7-8-88: ROGER STORM, Case No. 87-30022, Chapter 12. ISSUE: Objection to discharge. RULING: Overruled based on an inapplicable code section. - - Debtor'sobjection relied solely on Code Section 727. ISSUE: Relief from stay - Federal Land Bank. RULING: Relief granted - In re Little Creek Development Co., 779 F. 2d 1068, 1072 (5th Cir. 1986); In re Farmers and Merchants Bank and Trust, 28 B.R. 389 (D.S.D. 1983); In re Dabney, 45 B.R. 312 (Bkrtcy. E.D. Penn. 1985); In re Fazio, 41 B.R. 865 (Bkrtcy. E.D. Penn. 1984); In re Krisle, 54 B.R. 330 (Bkrtcy. 1985); Section 362 and Section 103(a); In re S Farms One, Inc., 73 B.R.103 (Bkrtcy D. Col. 1987); In re Ahlers, 794 R.2d 388 at 397-398 (8th Cir. 1986), rev'd. on other grounds - 108 S.Ct. 963 (1988). ISSUE: Confirmation - good faith requirement. RULING: Court found plan not confirmable. Section 1225(a)(3); In re Estus, 695 F.2d 311 (1982); In re 695 F.2d 311 (1982); In re Education Assist. Corp., 827 F.2d 1222 (1987); Matter of Davis, 68 B.R. 205 (Bkrtcy. S.D. Ohio 1986) - apply to Chapter 13 cases. Chapter 12 cases - Section 1225(a)(3) tracks the language of Section 1325(a)(3) verbatim - - In re Weldin-Lynn, 79 B.R. 409 (Bkrtcy. E.D. Ark. 1987); Collier on Bankruptcy para. 1225.02 (15th Ed. 1982); In re Foster, 84 B.R. 707 (Bkrtcy. D. Mon. 1988).

22. 9-13-88. CHARLES AND JEANETTE SCHOMAKER, Case No. 87-10040, Chapter 7. ISSUE: Leave to amend schedules and turnover. RULING: Rule 1009; In re Williamson, 804 F.2d 1355 (5th Cir. 1986); Lucius v. McLemore, 741 F.2d 125 (6th Cir. l984); Tignor v. Parkinson, 729 F.2d 977 (4th Cir. 1984). See 8 Collier on Bankruptcy para. 4003.03[2] (1988); See also Redmont v. Tuttle, 698 F.2d 414 (10th Cir. 1983); In re Doan, 672 F.2d 831 (11th Cir. l982). The Court ruled that the proposed amendment was timely and that claimed additional exemptions are allowed. AND Rule 4003(b) - allows objections to the amendment to be filed within 30 days after its filing. Rule 1009 - requires the debtor to give notice of the amendment to the trustee and "any entity affected thereby". COURT ruled proper notice was not given so the amendment will not become effective until any objection is filed and denied, or the thirty day period has passed without objection. TURNOVER - Rule 7001(1) - Turnover was also denied because of lack of proper notice and for the reason that it was not brought as an adversarial action.

23. September 22, l988. TRI-COUNTY WATER ASSOCIATION, INC., Case No. 87-30105, Chapter 13. 91 B.R. 547 (1988). ISSUE: Interim compensation of attorney's fees - objection by FmHA on two grounds: (1) they assert they hold a security interest in "virtually all" of Debtor's assets, and that fees cannot be paid from its collateral; and (2) that fees may not be paid until Debtor's counsel's services have resulted in a tangible benefit to the estate. RULING: Court denied the request.

24. September 28, l988. LEE SCOTT LARSON, Case No. 88-30004, Chapter 7. ISSUE: What state law governs claim of exemptions when the Debtor is domiciled outside of South Dakota? RULING: Section 522(b)(A). The Court ruled that North Dakota is the governing state law and directed the Debtor to amend his Schedule B-4 to claim the exemptions as allowed under North Dakota law.

25. September 30, l988. RONALD F. HONSTEIN, Case No. 88-30027, Chapter 13. ISSUE: Whether an I.R.S. lien for delinquent taxes may attach to sale proceeds of property classified under S.D. state law as a homestead exempt from certain process. RULING: United States v. Rogers, 103 S.Ct. 2132, 2146 (1983) and Herndon v. United States, 501 F.2d 1219, 1223 (1974). The Court ruled that an I.R.S. lien for delinquent taxes may attach to sale proceeds of property classified under S.D. state law as a homestead.

26. November 17, l988. SIOUX ALFALFA MEAL COMPANY. Case No. 87-40049, Chapter 7. ISSUE: Whether attorney is entitled to full amount of fees applied for. RULING: In re Tri County Water Association, Inc. 1988 Bankr. Lexis 1659 (Bkrtcy. D.S.D.) The Court ruled he is entitled to full fees, however, attorney Hughes is to deduct approved amount from prepetition retainer.

27. November 18, l988. ALVIN BAUER AND DELORIS LA RYNE BAUER. Case No. 87-10326, Adversary 87-1042, (reconsideration of opinion filed 7-7-89) ISSUE: Whether the application of ASCS-CCC benefits owed to the Debtors against an SBA claim against the Debtors constituted an avoidable improvement of position under Section 553(b). RULING: Rinehart. The Court Ruled that it did not. Question whether the perfection of the right to offset versus the date of the inter-agency transferal was the date of offset was left unanswered as irrelevant. 76 B.R. at 748; 88 B.R. at 1015, 1017; 7 C.F.R. §§13.1, 13.4(f), 13.6; 13 C.F.R. §140.5.

28. December 13, l988. LESLIE RAYMOND GONSOR. Case No.88-10040, Adversary 88-1020. 95 B.R. 123 (1988). ISSUE: Whether a judgment entered in South Dakota state court for assault and battery collaterally estops the Debtor from litigating the nondischarge-ability of the judgment under Section 523(a)(6). RULING: Yes. Gregor v. Ertz, (In re Ertz) 28 B.R. 1020 (1983); In re Pitner, 696 F.2d 447 (6th Cir. 1982).

29. December 13, l988. WESLEY HIGH ELK AND IMOGENE HIGH ELK. Case No. 88-30012, Chapter 7. ISSUE: Whether a wrongful death cause of action under South Dakota law survives the death of the claim holder so as to be Assignable? RULING: Yes. Stipulation under which a wrongful death claim was assigned to a creditor is approved. City of Sturgis v. Walker, 116 N.W.2d 803 (S.D. 1962); Steckman v. Silver Moon Tours, 90 N.W.2d 170 (S.D. 1958).

30. November 8, 1988. WEISZHAAR FARMS, INC. AND L.J. HOG CO., INC.. Case Nos. 88-10194 and 88-10195. Chapter 12. ISSUE: Whether the Court should grant a creditor's motion for relief from stay or motion to Dismiss where the bankruptcy was filed to prevent foreclosure pursuant to a drop dead clause after the debtor defaulted under a confirmed Chapter 11 plan. RULING: The Chapter 12 case was dismissed under the particular facts of this case - Section 1208(c); In re Ouverson, 79 B.R. 830 (Bkrtcy. N.D. Iowa 1987); In re Route 202 Corp., 37 B.R. 367 (E.D. Penn. 1984); 11 U.S.C. Section 1129(a)(11).

APPEAL RECORD

November 17, 1988. L.J. HOG CO., INC.. Case No. 88-10194 and WEISZHAAR FARMS, INC.. Case No. 88-10195. Notice of Appeal to District Court filed by debtor from Order dismissing Chapter 12 bankruptcy petitions and the automatic stays imposed by the filing of these two bankruptcy cases are dissolved dated 11-8-88; Findings of Fact and Conclusions of Law 11-8-88. Amended Notice of Appeal filed 11-21-88. APPEAL STATUS: Dismissed. Motion to Dismiss Chapter 12 Appeal filed by debtor 12-23-88. Order Dismissing Appeal entered 12-29-88.