RULING: The motions to intervene were denied. The trustee would adequately protect the movant-equity holder’s interest by insuring that the other equity holder’s claim was paid only in the correct amount and in the correct order of priority. The Court advised the parties that it would not alter the present equity positions in the Debtor through the pending adversary.

14.    May 18, 2005.  SCOBLIC, JAMES J. (First Dakota National Bank v. James J. Scoblic), Case No. 04-40923, Adv. No. 04-4071, Chapter 7.  ISSUE: Whether plaintiff-bank was entitled to summary judgment on its nondischargeability counts under § 523(a)(4) for fraud by a fiduciary or for embezzlement or under § 523(a)(6) for a debt arising from a wilful and malicious act where the bank had a secured interest in the corporate store’s inventory and where Debtor, who was a shareholder and officer of the corporate store, officer had not used inventory proceeds to pay back the corporate store’s notes to the bank? RULING: Debtor was not the bank’s fiduciary so relief under § 523(a)(4) for fraud by a fiduciary could not be granted. Present record also did not show Debtor’s requisite intent so as to allow the bank summary judgment for nondischargeability for embezzlement or for debt arising from a wilful and malicious act.

15.    May 18, 2005.  HOWARD, TWIYLA J. , Case No. 04-40424, Chapter 7.  ISSUE: Whether the chapter 7 trustee was entitled to an order directing the debtor to turn over a sum certain representing the amount by which the value of the debtor’s interest in certain personal property exceeded the debtor’s allowed exemption under S.D.C.L. § 43-45-4? RULING:The chapter 7 trustee was entitled to an order directing the debtor to turn over the sum of $2,515.00.

16.    May 25, 2005.  THEUNISSEN, KRISTI L., Case No. 04-10322, Chapter 7. ISSUE: Whether Debtor has to turn over to the bankruptcy estate her joint tenancy interest in a home that her mother gave in pre-petition where Debtor claimed she had no equitable or beneficial interest in the home and where Debtor’s mother said she created the joint tenancy only to ease the transfer of the home to her daughter upon her death? RULING: Based on the stipulated facts, the Court concluded that Debtor’s mother had actually intended to give her daughter a remainder interest in the home following the mother’s life estate. The deed was reformed to reflect that intention. Debtor was then ordered to turn over to the bankruptcy estate the value, on the petition date, of her remainder interest. The Court did not find that any constructive or implied trust existed.

17.    June 2, 2005.  STURGIS MEAT SERVICE, INC., Case No. 02-50012, Chapter 7.  ISSUE: Whether in making his distribution to unsecured creditors, the chapter 7 trustee could distinguish between those unsecured creditors whose timely filed claims arose out of service contracts with Debtor and those unsecured creditors whose timely filed claims arose out of other dealings with Debtor? RULING: Under 11 U.S.C. § 726(b), any distribution to unsecured creditors who timely filed proofs of claim, regardless of the basis of their claims, must be made on a pro rata basis.

18.    June 3, 2005.   CREDIT STORE, INC. (John S. Lovald, Trustee v. Platinum Financial Services Corporation), Case No. 02-40922, Adv. No. 04-4061, Chapter 7.  ISSUE: Whether Defendant was entitled to have a default judgment against it vacated under Fed.R.Civ.P. 60(b)? RULING: Defendant’s motion under Rule 60(b) was denied because it was not filed within a reasonable time after Defendant learned of the default judgment and also learned that Plaintiff would not voluntarily get the default judgment vacated.

19.    June 15, 2005.  GROETKEN, MICHAEL J. & JAMIE J., Case No. 05-40215, Chapter 7.  ISSUE: Whether Debtors were entitled to some pre-petition wages that were obtained by a creditor on the petition date under a garnishment and whether Debtors were entitled to any damages for the creditor’s violation of the automatic stay? RULING: The wages were property of the bankruptcy estate and were properly paid over by the garnishing creditor to the case trustee. Debtor could not exempt them. Debtors also failed to show that they had any damages from the creditor’s violation of the stay or that any violation had been willful.

20.    June 22, 2005.  HENNIGS, DALE R. & KARLA M (Lovald v. AGA, Inc.), Case No. 02-40692, Adv. No. 04-4015, Chapter 12.  ISSUE: Whether the trustee was entitled to recover sums withheld and retained by the defendant for storage fees for grain the defendant sold on Debtors’ behalf after the commencement of Debtors’ bankruptcy case? RULING: Pursuant to 11 U.S.C. § 549(a), the trustee was entitled to recover all sums withheld and retained by the defendant without Court approval.

21.    June 28, 2005.  KOTT, DAVID JOSEPH, Case No. 00-40679, Chapter 7.  ISSUES:(1) Whether a judgment held by a creditor who objected to Debtor’s motion to discharge judgments on the basis of Debtor’s alleged intent to defraud the creditor was voided pursuant to 11 U.S.C. § 524(a)(1)?(2) Whether a judgment held by a creditor who was not included on Debtor’s mailing list of creditors was voided pursuant to 11 U.S.C. § 524(a)(1)? RULINGS:(1) Because the creditor received timely notice of Debtor’s bankruptcy filing and did not object to Debtor’s discharge or to the dischargeability of its claim, its claim was discharged on November 15, 2000 (when the Court entered Debtor’s discharge). Its judgment was voided on that same date. (2) Because Debtor did not include the creditor on his mailing list of creditors, the creditor did not receive formal notice of Debtor’s bankruptcy filing, and the creditor’s claim may not have been discharged. It would therefore be premature to grant Debtor relief with respect to the creditor’s judgment.

22.    June 28, 2005.  HUMBERT, ROBERT & LORRAINE, Case No. 05-40173, Chapter 7.  ISSUE: Whether creditors’ motion to reconsider Court’s earlier denial of a §707(a) dismissal motion should be granted? RULING: The Court did not change its earlier ruling. The Court did not find that cause for dismissal existed where better remedies were available to address the debtors’ alleged acts of bad faith.

23.    July 8, 2005.  HORN, BILLY LEE (Jeff D.Roller v. Billy Lee Horn), Case No. 04-50299, Adv. 04-5015, Chapter 7.  ISSUE: Whether Debtor’s discharge should be denied under 11 U.S.C. § 727(a)(4)(A) for certain errors and omission on his schedule of personalty and his Statement of Financial Affairs? RULING: Debtor’s discharge was denied under § 727(a)(4)(A) because Debtor did not set forth correct information on his Statement of Financial Affairs regarding business entities in which he held an interest and because he did not disclose on his schedule of personal property a contingent interest in some patents. The information was material and the omissions and errors were made with the requisite reckless intent.

24.    July 20, 2005.  GRINNELL, JAMES F. & TAMMY L. (Trustee John S. Lovald v. Border Line, Ltd.), Case No. 04-41414, Adv. No. 05-4006.  Chapter 7.   ISSUE: Whether the debtors’ turnover of their store’s inventory to the former store owner constituted a fraudulent conveyance under 11 U.S.C. §§ 548(a)(1)(B) and 550(a)? RULING: The transfer was a fraudulent conveyance because the former store owner, who received the store realty and some equipment back after the debtors defaulted on the sale contracts, did not pay the debtors anything for the inventory. The Court calculated the value of the inventory on the transfer date based on the evidence presented and ordered the former store owner to reimburse the bankruptcy estate for that amount.

25.    July 21, 2005.  OLSON, JEAN D., Case No. 05-40226, Chapter 7.  ISSUE: Whether Debtor could claim exemptions under S.D.C.L. § 43-45-4 as a head of family where her unemployed, adult son lived with her and she supported him? RULING: Debtor was a head of a family since she and her son formed a family unit and she supported that family unit. The circumstances may have been viewed differently in a § 707(b) analysis.

26.    July 28, 2005.  OLETZKE, ROGER LEE & DELORES ANNETTE, Case No. 86-10254, Chapter 12.  ISSUE: (1) Whether a creditor was bound by the terms of the debtors’ confirmed plan, which treated the creditor’s secured claim as "wholly undersecured"? (2) Whether a creditor’s lien was extinguished by confirmation of the debtors’ plan? RULING: (1) Where the creditor received proper notice of the debtors’ plan and the confirmation hearing, and did not appeal the order confirming the debtors’ plan, the creditor is bound by the terms of the debtors’ confirmed plan. (2) Where the creditor participated in the debtors’ case by filing a proof of claim, the creditor’s claim was expressly dealt with and provided for by the debtors’ plan, and neither the debtors’ plan nor the Court’s order confirming the debtors’ plan preserved the creditor’s lien, the creditor’s lien was extinguished upon confirmation of the debtors’ plan.

27.    August 4, 2005.  THE CREDIT STORE, INC., (John S. Lovald, Trustee, v. J.L.B. of Nevada & J.OL. B. Equities, Inc.), Case No. 02-40822, Adv. No. 04-4052, Chapter 7.  ISSUE: Whether Plaintiff-Trustee’s motion for summary judgment should be granted regarding alleged constructively fraudulent transfer of $61,000 from Debtor to Defendant? RULING: The Court granted Plaintiff-Trustee’s motion in part and denied in part. Court found there were no material facts in dispute regarding whether Debtor was insolvent on the petition date. A trial, however, will be held under § 548(a)(1)(B)(i) to determine whether Defendants gave Debtor something reasonably equivalent in value for the $61,000.

28.    August 11, 2005.  HUMPAL, JOEL A.,   Case No. 05-40048, Chapter 7.  ISSUE: Whether Chapter 7 trustee’s stipulation with the debtors would be approved where stipulation provided the debtors would retain about $11,000 in non exempt personal property by paying the estate $6,000? RULING: The stipulation was not approved because the Court could not determine from the record whether the $6,000 "sale" price was fair and reasonable as an attempt to maximize estate assets.

29.    August 22, 2005.  BERWALD PARTNERSHIP, Case No. 04-10273, Chapter 11.  ISSUE: Whether creditor who included attorneys’ fees and costs as part of its proof of claim pursuant to 11 U.S.C. § 506(b) had to file an application for fees under Fed.R.Civ.P. 2016(b) before the deadline for filing an administrative expense? RULING: The creditor’s request for attorneys’ fees and other costs under § 506(b) was part of the creditor’s proof of claim, not an administrative expense against the estate. Thus, the creditor did not have to meet any deadline that had been set for administrative expense claims. That the creditor filed an application for fees akin to an application under Rule 2016(a) was appropriate since Debtor had objected to the creditor’s claim on several grounds regarding the fees and costs requested under § 506(b).

30.    August 23, 2005.  PLISKA, JAY SCOTT (Lovald v. Home Federal Bank), Case No. 05-40058, Adv. No. 05-4036, Chapter 7.   ISSUE: Whether the chapter 7 trustee was entitled to recover a $200,000 post-petition payout to Debtor’s daughter, the named beneficiary, under a term life insurance policy Debtor owned on the date he filed his petition? RULING: The payout under Debtor’s term life insurance policy was not property of the estate. The chapter 7 trustee was not entitled to an order for turnover with respect to any portion of that payout. 

31.    August 24, 2005.  STOKKE, JAMES H. & SARAH M., Case No. 05-40158, Chapter 7.  ISSUE: Whether the case trustee’s proposed settlement should be approved where the debtors were going to pay the estate $4,000 for any equity in their house (above their homestead exemption) but where the value of the home was unknown, where the settlement did not advise secured creditors that the equity was being sold back to the debtors with all encumbrances attached, and where the debtors had apparently encumbered the equity post-petition to generate cash to pay the trustee? RULING: The settlement was not approved. While the Court did not require the trustee to avoid any lien on the equity that may have been placed on it by the debtors post-petition in violation of 11 U.S.C. 549(a)(2)(B), the Court did direct the trustee to file a sale motion that better described the actual sale of estate property to the debtors that the trustee proposed.

32.    August 26, 2005.  SLEEMAN, GEORGE C. (Stacy Coffey v. George C. Sleeman).  Case No. 02-41307, Adv. No. 03-4007, Chapter 7.  ISSUE: Whether some property settlement debts arising from a divorce between the parties were nondischargeable under § 523(a)(15)? RULING: The debts were not discharged. Defendant-Debtor failed to show either that he did not have the ability to pay the debts or that he would benefit more from the discharge then Plaintiff would be harmed by the discharge of the subject debts.

33.    September 26, 2005.  BE VIER, MARK A. & JOLENE T.  Case No. 05-50209, Chapter 7.ISSUE: Whether Debtors’ Chapter 7 case should be dismissed for substantial abuse under § 707(b) where Debtors were making mortgage payments of $2,283.68 per month on a home valued at $378,000.00? RULING: The motion was granted and Debtors were given the option of converting to Chapter 13. The Court concluded that it would e a substantial abuse of the Chapter 7 process to let Debtors discharge unsecured debt when they were purchasing a home of such value.

34.    December 1, 2005.  WILLOUGHBY, DUANE EVERIST & NANCY ANN.  Case No. 05-41025, Chapter 7.  ISSUE: Whether pursuant to 11 U.S.C. § 522(f) Debtors could avoid certain liens held by Charles Mix County, Davison County, Hyde County, Lincoln County, Minnehaha County, and Pennington County? RULING: County aid liens are statutory liens and thus cannot be avoided pursuant to 11 U.S.C. § 522(f). Debtors’ motion was denied with prejudice as to the county aid liens held by Minnehaha County and Pennington. Because Debtors did not show the liens held by Charles Mix County, Davison County, Hyde County, and Lincoln County were not also statutory liens, Debtors’ motion was denied without prejudice with respect to the liens held by those counties.

35.  September 28, 2005.  SHISHNIA, JOHN J. Case No. 05-10073, Chapter 7.  ISSUE: Whether creditor had a perfected security interest in some scaffolding and bricks owned by Debtor and located at a State street address in Aberdeen where the security agreement and financing statement referenced personal property at a different address? RULING: The creditor’s secured interest was limited to the personalty at the address stated in the security agreement and financing statement. Though an address was not required in the collateral’s description, the creditor included it, and the address had the effect of limiting the collateral to the personalty located at the stated address.

36.  October 27, 2005.  TAYLOR, TOMELYN L. Case No. 05-10120, Chapter 7.  ISSUE: 1. What was the estate’s interest in a vehicle that was titled in Debtor and her sister’s name where Debtor contended her sister had given her money to apply on the car debt and her sister had also made some payments directly to the lender? 2. What was the estate’s interest in a bank account jointly owned by Debtor and her mother where Debtor contended that her mother had made all deposits into the account?

RULING: 1. Sections 43-2-16 and 43-2-17 of the South Dakota Code and Cudmore v. Cudmore, 311 N.W.23d 47, 49 (S.D. 1981), provide that Debtor and her sister own the vehicle as owners in common and take equal shares unless there is evidence that a joint tenancy was created and clear and convincing evidence that they intended to own the vehicle in proportion to their contributions. 2. Section 29A-6-103(1) of the South Dakota Code provides that while joint bank account owners are alive, the account belongs to each party in proportion to the net contributions by each to the sum on deposit. Thus, for the estate to have no interest in the account, Debtor or her mother must come forward with evidence showing only the mother made deposits into the account.

37.  October 12, 2005.  THOMAS, BRADLEY D., Case No. 05-10148, Chapter 7.  ISSUE: Whether the trustee’s turnover motion was untimely where the deadline for filing an objection to exemptions had expired? RULING: Under the turnover motion, the trustee sought property that the debtor had not declared exempt and the excess value property declared exempt where the value of the property exceeded the amount declared exemption. Since the debtor was being allowed his full exemptions as claimed, the trustee’s motion did not constitute an objection to exemptions and the deadline provided by Fed.R.Bankr.P. 4003(b) was not applicable.

38.    December 2, 2005.  TOLSMA, HEATHER K. (Tolsma v. Student Loan Finance Corp.). Case No. 04-40986, Adv. No. 05-4042, Chapter 7.  ISSUE: Whether Plaintiff-Debtor’s complaint to determine the dischargeability of certain student loans should be dismissed for failure to state a claim upon which relief could be granted?  RULING:While Plaintiff-Debtor pled sufficient facts to support a finding Plaintiff-Debtor did not have the present ability to repay her student loans, she did not plead sufficient facts to support a finding she did not have the ability to repay those loans at some time in the near future. Defendant’s motion to dismiss for failure to state a claim upon which relief could be granted was therefore granted.

39.    December 6, 2005.  FULLER, REBECCA K. (Stepp v. Fuller).  Case No. 05-40690, Adv. No. 05-4068, Chapter 7.   ISSUE: Whether Plaintiff was entitled to summary judgment on his complaint to determine the dischargeability of his claim pursuant to 11 U.S.C. § 523(a)(9)? RULING: Plaintiff was entitled to summary judgment. Debtor admitted Plaintiff sustained serious personal injuries while a passenger in an automobile being driven by Debtor. Debtor also admitted she was cited for, was charged with, pled guilty to, was convicted of, and was sentenced for driving under the influence of intoxicants. Debtor failed to advance specific facts to create a genuine issue of material fact for trial. Plaintiff was entitled to judgment as a matter of law.

40.    December 14, 2005.  TRONVOLD, KEVIN L. & JOLYNN M. Case No. 03-40373, Chapter 7.  ISSUE: Whether the trustee’s proposed settlement of a personal injury claim should be approved? RULING: No party in interest objected to the trustee’s proposed settlement. Nothing in the record suggested the Court should not approve that settlement. The Court therefore granted the trustee’s motion. Questions regarding the proper distribution of the proceeds of the settlement could be addressed when the trustee filed her final report.

41.    December 16, 2005.  SCHAMBER, JACQUELINE FANCHON (Benjamin Schamber v. Jacqueline Fanchon Schamber).  Case No. 05-40658, Adv. No. 05-4069, Chapter 7.  ISSUE: Whether certain joint marital debts that Debtor was ordered to pay in the parties’ earlier divorce were dischargeable under either § 523(a)(15)(A) or § 523(a)(15)(B)? RULING: The debts were nondischargeable. Debtor was sitting on $13,000 of equity in her home and could use those funds to pay the subject debts, especially where the funds she used to purchase the house were originally intended by the parties to be used to pay the marital debts. That the house had been declared exempt as Debtor’s homestead did not alter the application of § 523(a)(15)(A). Consequently, Debtor did not show under § 523(a)(15)(A) that she had an inability to pay the subject debts. The record also showed that the benefit that Debtor would receive if the debts were discharged was no greater than the detriment Plaintiff would suffer if the debts were discharged. Consequently, Debtor was also not entitled to relief under § 523(a)(15)(B).

42.    December 23, 2005.  PETTIS, TAMMY JO.  Case No. 05-50434, Chapter 7.  ISSUE: Whether the Court should consider Debtor’s live-in boyfriend’s monthly income in determining Debtor’s monthly disposable income in connection with the United States Trustee’s motion to dismiss for substantial abuse under 11 U.S.C. § 707(b)?  RULING: When a motion to dismiss for substantial abuse is presented, the Court’s primary inquiry is whether the debtor has the ability to pay her creditors. The majority of courts appears to have decided a court should consider a live-in boyfriend’s or girlfriend’s income in determining a debtor’s "ability to pay" under 11 U.S.C. § 523(a)(15). The Court will do the same in determining a debtor’s "ability to pay" under § 707(b).

43.    December 23, 2005.  WILHELMSEN, KYLE A. & MELISSA K.  Case No. 05-30049, Chapter 13.  ISSUE: Parties presented evidence regarding the value of a 2001 Ford pickup for confirmation purposes. Debtors claimed the value was $13,500; the secured creditor claimed the value was $21,500.RULING: Court concluded the value of the pickup was $15,500 based upon a professional appraisal obtained by the creditor.