2006 Decisions

Charles L. Nail, Jr.,  Chief Bankruptcy Judge

Numerical Listing

2006 DECISION SUMMARIES

Charles L. Nail, Jr., Chief Bankruptcy Judge

1.    October 2, 2006.  FULLER, REBECCA K. (Trustee Lee Ann Pierce v. Rebecca K. Fuller), Bank. No. 05-40690, Adv. No. 06-4064, Chapter 7.   356 B.R. 493 (Bankr. D.S.D. 2006).   ISSUE: Whether Plaintiff-Trustee was entitled to a judgment on the pleadings revoking Defendant-Debtor’s discharge where there was no dispute Defendant-Debtor had failed to comply with a turnover order but where Defendant-Debtor also alleged she did not have the financial ability to comply with the Order? RULING: Plaintiff-Trustee’s motion for judgment on the pleadings was denied. While Plaintiff-Trustee had established a prima facie case for the relief sought, the burden would shift at trial to Defendant-Debtor to show her failure to comply with the turnover order was not willful or intentional. For Defendant-Debtor to establish she did not have the ability to comply with the order, she would have to demonstrate that inability categorically and in detail; she would have to show she did not create the circumstances resulting in her inability to comply with the order; and she would have to show she made, in good faith, all reasonable efforts to comply with the order.

2.    November 1, 2006.  CHRISTENSON, DOUGLAS G. & ROBERTA J. (Lovald v. Van Ekeren), Bank. No. 06-50051, Adv. No. 06-5023, Chapter 7.  ISSUE: Whether trustee-plaintiff was entitled to summary judgment on his complaint for turnover of certain restaurant equipment? RULING: While defendants claimed to be secured creditors, nothing in the record suggested Debtors ever granted them a security interest in the restaurant equipment. Trustee-plaintiff was therefore entitled to summary judgment.
 

3.    November 16, 2006.  WIK, JON ERIC AND SHERRY LYNN (bench ruling).  Bank. No. 05-50615, Chapter 7.  Issue: Whether 11 U.S.C. § 706(c) provides an independent basis for converting a chapter 7 case to chapter 13? Ruling: On its face, § 706(c) says nothing about when a court may convert a chapter 7 case; it instead tells the Court only when it may not convert a chapter 7 case. The Court therefore agreed with those courts that have held § 706(c) does not provide an independent basis for converting a chapter 7 case to chapter 13 and denied Debtors’ motion to convert.

4.    December 14, 2006.  BOHN, DAWN MARIE (bench ruling).  Bankr. No. 06-40175, Chapter 7.  Issue: Whether Debtor could claim her right to receive up to $10,000 when her ex-husband sells her former homestead exempt as proceeds under S.D.C.L. § 43-45-3? Ruling: No. For there to be proceeds, there must have been a sale, and no sale had taken place. However, Debtor’s right to payment was personal property within the meaning of S.D.C.L. § 2-14-2(19) and could be claimed exempt under S.D.C.L. § 43-45-4, up to the amount of her remaining personal property exemption. The balance of the $10,000 and Debtor’s interest in the former homestead itself remained property of the estate and were thus subject to the trustee’s administration.