Opinions

In re Pfannenstiel, Case No. 09-31350-rld7, Adv. No. 09-3280-rld (July 23, 2010)

Reschedule trial, adequate cause Pro se debtor who sought to discharge his student loan debt did not appear for his trial and did not notify the court in advance he would not be able to appear. The day after the trial the debtor filed a letter seeking a new trial date but offering no explanation for his failure to appear. The court treated the letter as a motion and denied it for lack of adequate cause.

Ford-Torres v. O’Shea, Adv. No. 07-6084-fra, Case No. 07-60265-fra7 (July 21, 2010)

Dischargeability under §523(a)(6)
The court determined that certain claims in a case pending against debtor in federal district court were dischargeable and others were nondischargeable under §523(a)(6). The pending case alleges wrongful discharge, intentional infliction of emotional distress, intentional injury of an employee and battery.

In re Stubblefield, Case No. 09-38572-rld7 (June 21, 2010)

11 USC §707(b)(3)(B), abuse of chapter 7, totality of circumstances
The court held the debtor's case was an abuse of chapter 7. The debtor was a financially sophisticated woman whose income, while it had declined since 2007, was still substantial at the time of her bankruptcy filing and would allow her to propose a chapter 13 plan that would result in significant payment to creditors. The court considered the factors set forth in In re Price, 353 F3d 1135 (9th Cir 2004), in reaching this conclusion. The debtor’s ability to pay a substantial portion of her unsecured debt was of primary importance.

Simons and Gales v. Kolwitz, Case No. 07-62870-fra7, Adv. No. 08-6067-fra (May 27, 2010)

11 USC §523(a)(2)
After the debtor, Kolwitz, fell behind on a construction project for Simons and Gales, Simons and Gales terminated the project and denied debtor’s request for additional funds to continue the project. They sought to have their claim for damages related to the project excepted from discharge under §523(a)(2). The court held for debtor, because Simons and Gales had not presented evidence that any misrepresentation was material, intentional or made in writing.

In re Schulke, Case No. 09-65100 (May 4, 2010)

Motion to use tax refund, modified plan, chapter 13
The court denied the debtor's motion to use her tax refund of $4,000 for personal expenses rather than tender it to the trustee as required by her confirmed chapter 13 plan. In order to use the tax refund other than as provided in the plan, the debtor must file a modified plan.

Commercial and Residential Maintenance, Inc. v. Abblit, Case No. 09-61935-fra7, Adv. No. 09-6094-fra (December 21, 2009)

ORICO claim, subject matter jurisdiction, 11 USC §523(a)(4)

Debtor was convicted of stealing from his employer and required to pay restitution of $23,714. Employer sued debtor in state court and obtained a default judgment under ORICO for three times actual damages. Employer brought an adversary proceeding in bankruptcy court seeking a declaration that this debt was not dischargeable. The court granted summary judgment to employer.

In re Applebaum & Finley, Case No. 08-63391-fra7, Appellate No. OR-09-1134-MkHPa (December 18, 2009)

California bankruptcy-only exemptions

Debtors lived in California before moving to Oregon and filing for bankruptcy. They claimed exemptions under California’s exemption statute, applicable only to debtors in bankruptcy. The trustee objected to the exemptions and argued that the California statute was unconstitutional. The bankruptcy court ruled the statute constitutional and the BAP affirmed, with one judge dissenting.

United Services Associated v.Lupo, Adv. No. 08-6196-fra, Case no. 08-63556-fra13 (June 30, 2009)

Nondischargeability, §523(a)(4) - larceny, intentional interference with economic relations, punitive damages
Debtor’s former employer accused him of using his position in the company to steal customers and diverting payments from customers to himself. The court awarded $109,156 in damages based on lost profits and diversion of funds, and held the debt was nondischargeable as larceny or embezzlement. The court declined to award punitive damages

In re Schenk, Case No. 05-47887-elp13 (January 27, 2009)

Trustee and debtor had different understandings of how a plan provision worked for MBNA and other unsecured creditors. The court interpreted the ambiguous provision against debtor, who drafted the plan.

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