Opinions

 

All court opinions may be accessed at no charge via PACER through the "Written Opinions" link on the Reports page. You must, however, have an account to access the report via CM/ECF or PACER.

Access to opinions from 1997 to present, that are PDF searchable, unrestricted & unsealed, are also available through the Government Printing Office using the Advanced Search for Government Publications. There is no login required and publications are available free of charge.


Court's Web Site Opinions Database

The court's web site provides free access of some opinions, at the discretion of the judges, for the years 1998 to present. The results shown below are automatically displayed for all years, all judges, and all keywords/topics.

A search may be performed using the Search box above, or filtering by year, judge, and/or keyword/topic. To search for more than one judge and/or keywords/topics simultaneously, hold down the Ctrl key (or Command key) and select each item.

Keywords/Topic Date Title Description Judge
Adversary, Nondischargeability     04/02/2021     Jill Stevenson v. Educational Credit Management Corporation     

: Debtor filed an adversary proceeding seeking an undue hardship discharge of her student loans under Section 523(a)(8). Debtor is enrolled in a 25-year income contingent repayment program (ICRP). She has made the required ICRP payments for the past 15 years. If she continues making the payments for the next 10 years, her loan balance, which continues to accrue interest will be forgiven. Possible tax consequences will follow. The Court holds that, in the context of the Brunner test—which is used in the Tenth Circuit to determine whether a debtor has demonstrated undue hardship—ICRPs “repay” student loans. Applying the Brunner factors, the Court concludes that Debtor’s ICRP payment is not an undue hardship. Debtor’s student loans are excepted from discharge accordingly.

 

Judge David T. Thuma
Cause, Confirmation, Dismissal or Conversion, Good Faith, Subchapter V     03/26/2021     Thomas and Connie Young     

The Court held a final hearing on confirmation of the Debtors’ Subchapter V plan and on a motion to convert the case to chapter 7, filed by one of Debtors’ creditors. Debtors’ plan violated the best interest of creditors’ test, was not fair and equitable to classes of claimants rejecting the plan, and was not proposed in good faith, so it is therefore unconfirmable. Grounds exist to convert the case due to bad faith, diminution of the estate without likely rehabilitation, and gross mismanagement, but the Court will grant the alternative relief of removal of the Debtors from possession pursuant to 11 U.S.C. § 1185(a), as requested by the moving creditor and the Subchapter V trustee.

Judge David T. Thuma
Attorneys Fees, Chapter 13     03/19/2021     Robert James Abernathy and Tina Louise Abernathy     

Following confirmation of Debtors’ chapter 13 plan, Debtors’ attorneys applied for attorney fees, and the Court set the matter for hearing due to the amount requested. The Court finds and concludes that the representation was necessary and beneficial, though the amount of time spent on the case was high. Applying the § 330(a)(3) and Johnson factors, the Court grants the fee application in part.

 

Judge David T. Thuma
Claim Objection     03/16/2021     Pat N. Archuleta     

The Court sustained, in part, the chapter 7 Trustee and Debtor’s objection to creditor’s unsecured non-priority claim and allowed creditor’s claim in a reduced amount. Although creditor’s claim met the requirements of Bankruptcy Rule 3001 and, for the most part,  was entitled to the evidentiary presumption of the validity and amount of the claim, claimant satisfied her ultimate burden of persuasion only as to a portion of her claim. The parties gave conflicting testimony and incomplete documentary evidence in support of their positions.

 

Chief Judge Robert H. Jacobvitz
Dismissal, Laches     03/12/2021     Kit Carson Home & Museum, Inc.     

Pursuant to Section 1112(b) of the Bankruptcy Code, the Court has discretion to dismiss a chapter 11 case for cause. Cause for dismissal includes lack of corporate authority and bad faith. Debtor is a New Mexico non-profit corporation that was established in 2005 by a New Mexico Freemason lodge to operate a museum.   Pursuant to the corporation’s 2009 bylaws and a Resolution agreed upon by the corporation and the lodge in 2010, the lodge controlled the corporation by controlling the composition of its board of directors. In an apparent effort to eliminate the lodge’s control over the corporation, an invalidly comprised board of directors purported to amend the bylaws in 2019, changing the requirements for board composition. After the lodge sued the corporation in state court, another invalidly comprised board purported to amend the bylaws in 2020. The 2019 and 2020 bylaws were void. On the eve of a dispositive-motions hearing in state court, the board (comprised in accordance with the 2020 bylaws) filed bankruptcy on behalf of the corporation. The lodge moved to dismiss. The Court granted the motion, holding that: (1) the board as it was comprised on the petition date did not have authority to file bankruptcy on behalf of the corporation; (2) laches did not validate the void 2019 and 2020 bylaws, nor were the elements of this defense satisfied; and (3) the petition was filed in bad faith.

 

Judge David T. Thuma
Damages, Dischargeability, Issue Preclusion     03/08/2021     Ivan P. Sergejev v. Jim M. Alderman et al     

The Court gave preclusive effect to a state court judgment entered after an evidentiary trial at which defendants failed to appear. Defendants participated in the litigation for 15 months, asserted a counterclaim, but then failed to appear at trial, with no advance notice or explanation for their failure to appear. Plaintiff presented testimony and other evidence at trial sufficient to satisfy his burden of proof, and the state court made a decision on the merits after making detailed findings of fact and conclusions of law. Plaintiff supported his motion for summary judgment with certified copies of the state court judgment and transcript from the state court trial. The state court judgment established all elements for willful and malicious injury under § 523(a)(6). Defendants willfully and maliciously damaged Plaintiff’s rental property without justification or excuse. The Court applied Cohen v. de la Cruz, 523 U.S. 213 (1998) to conclude that all damages enumerated in the state court judgment were non-dischargeable because they were directly traceable to the non-dischargeable conduct.

 

Discharge Injunction, Redemption, Res Judicata, Rooker-Feldman, Summary Judgment     03/05/2021     Brian Van Winkle et al v. Belleview Valley Land Co. et al     

Defendants moved for summary judgment on Plaintiffs complaint that Defendants violated Debtor’s discharge injunction for recovering funds associated with Debtor’s probate estate’s attempted redemption of property purchased by Defendants from a special master’s sale. Defendants believed their actions were shielded by a previous BAP regarding the same parties. Because the question of retention or remittance of funds applied to a failed redemption attempt is different than the issue of repeated foreclosures addressed by the BAP, summary judgment for Defendants was not warranted but may be appropriately granted for Plaintiffs as to liability.

 

Judge David T. Thuma
Exemptions     02/18/2021     Tammy Leigh Morris     

The Court allowed Debtor’s claim of exemption in a residence in two modular buildings under § 522(d)(1) that creditor seized pre-petition by levying on a judgment. Creditor argued the exemption applies only to property where a debtor lives on the petition date and debtor did not live in the buildings on the petition date. Creditor also argued that as a matter of law Debtor could not use the modular buildings as a residence within the meaning of the exemption statute because such use would violate the New Mexico Administrative Code. Debtor agreed the buildings were sold for storage purposes only and not to be used for a residence, and the buildings lacked some ordinary necessities of a home. The Court applied a three-part test applicable  to situations in which a debtor’s physical absence from property on the petition date is involuntary and overruled Creditor’s objection.

 

Chief Judge Robert H. Jacobvitz
Adversary Proceedings - Procedural Matters, Fraudulent Transfers     02/12/2021     Phillip J. Montoya v. Audrey Goldstein     

11 U.S.C. Section 550(a)(1) allows a case trustee to recover property that is subject to an avoidable transfer claim from an “initial transferee.”  In the Tenth Circuit an initial transferee is someone who has a beneficial interest in, or possesses dominion or control over, the property.  A person who acts as a “mere conduit” for a transfer is not an initial transferee. In this case, Defendant (the daughter of Debtor’s then owner and president) worked for Debtor as a “runner” when she was 17 years old. Debtor wrote 3 checks payable to Defendant, who was instructed to deposit them into her father’s personal or business accounts. Defendant endorsed the checks and deposited them as instructed. Defendant was a mere conduit of the funds between Debtor and her father; she was not an initial transferee. This otherwise uncomplicated disposition was affected by two procedural matters that worked against Defendant: (1) the fact that Defendant failed to plead the conduit theory as an affirmative defense, and (2) the fact that Defendant admitted and stipulated that the funds were “transferred” to her. To avoid an unjust and legally erroneous outcome, the Court granted Defendant’s day-of-trial motion to amend her pleadings to include the conduit defense and set aside the stipulation which, arguably, could be construed as a concession of liability under Section 550(a)(1).       

Judge David T. Thuma
Attorneys Fees, Claim Objection     02/09/2021     Marilyn B. Cavanaugh     

The Court sustained, in part, Debtor’s objection to mortgage-creditor’s claim for pre-petition attorneys’ fees and costs, finding that mortgage-creditor failed to satisfy its ultimate burden of proof. The redactions in the invoices and lack of other evidence resulted in disallowance of about 60% of the amount claimed.  Mortgage-creditor’s heavily redacted attorney fee invoices prevented the Court from evaluating the reasonableness of fees and costs under applicable nonbankruptcy law by reviewing the invoices. Mortgage-creditor did not offer any evidence of customary flat fee foreclosure arrangements nor explain what work was performed to earn the requested fees. 

Chief Judge Robert H. Jacobvitz

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