Opinions

 

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Court Opinions Database

The court's 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
Confirmation, Subchapter V     09/22/2022     Amavalise F. Jaramillo     

Before the Court was whether to confirm Debtor’s Second Amended Chapter 11 Plan. The Court took the matter under advisement to determine whether, under Tenth Circuit law, a subchapter V plan could be confirmed as a consensual plan if some classes of creditors do not vote. The Court concluded that it could. Tenth Circuit law provides that, so long as one impaired class actually votes in favor of a chapter 11 plan, other classes will be deemed to have accepted the plan for § 1129(a)(8) purposes if no one in the class voted. In this important respect, Debtor’s plan was confirmable under § 1191(a). However, the plan had other significant problems that prevented confirmation. The Court gave Debtor 30 days to file a third amended plan.confi

 

Judge David T. Thuma
Chapter 11, Injunctions     09/19/2022     S-Tek 1, LLC v. Surv-Tek, Inc.     

Debtor and guarantors filed a motion for temporary restraining order (“TRO”) requesting the Court to enjoin collection efforts against non-debtor guarantors until the final hearing on confirmation of Debtor’s chapter 11 plan. The plan contained a temporary injunction that would enjoin the creditor’s collection efforts against non-debtor third-party guarantors while Debtor made plan payments. The Court held a final evidentiary hearing on short notice and treated the request for TRO as a motion for preliminary injunction. After determining that it has authority to approve a temporary plan injunction, the Court reviewed the various tests courts apply to determine whether to approve such an injunction and then applied a modified traditional injunction standard. The Court concluded that it would not approve the proposed temporary plan injunction and therefore would not grant a preconfirmation injunction as a bridge to the plan injunction. The Court found that Debtor’s proposed plan would satisfy at most about one-third of the guaranteed obligation, the creditor’s sole recourse to recover the balance is to enforce the unsecured third-party guaranty, and there is a reasonable likelihood of irreparable harm to the creditor if the Court granted the requested injunctive relief. The Court ruled that the injunction should not issue even if it meant that Debtor would be unable to confirm a plan.

 

 

Chief Judge Robert H. Jacobvitz
Chapter 13, Conversion     09/08/2022     Gregory Paul Sofio     

Debtor sought to convert his chapter 7 case to chapter 13 upon learning that his largest debt was eligible for a chapter 13 super discharge. The Court determined that debtor’s indebtedness under two personal guarantees of notes that matured pre-petition without any payment by the principal obligor constituted liquidated, non-contingent debts in excess of the unsecured debt limit under § 109(e) applicable on the petition date, rendering the debtor ineligible for chapter 13 relief. Consequently, the Court denied the motion to convert from chapter 7 to chapter 13. 

 

Chief Judge Robert H. Jacobvitz
Adversary     08/31/2022     S-Tek 1, LLC v. Surv-Tek, Inc. et al.     

Guarantors of Debtor’s note did not have their liability reduced by the bankruptcy limitations on the amount of the allowed claim against the Debtor. Bankruptcy limitations on the allowed amount of a claim (such as limitations on post-petition interest or lease rejection damages) change the Debtor’s liability for the debt but do not affect the underlying indebtedness, which is what the Guarantors guaranteed. The Guarantors’ liability was also not reduced by the language of the guaranty, which stated that the Guarantors guaranteed the debt of the Debtor; Tenth Circuit precedent rejected such argument. Finally, parol evidence was not admissible to construe the guaranty because the Guarantors’ offer of proof regarding what evidence would show did not demonstrate a patent nor latent ambiguity. Thus, the Guarantors are liable for the full amount that would have been owed by the Debtor under non‑bankruptcy law had no bankruptcy case been filed.

Chief Judge Robert H. Jacobvitz
Adversary, Chapter 13, Summary Judgment     08/15/2022     Iron Horse Welding, LLC . Jody Lee Beach and Rhonda B. Beach     

Plaintiff brought an adversary proceeding, alleging that Defendants embezzled $136,342.67 and seeking a nondischargeable judgment. Defendants moved for partial summary judgment, arguing that most of the alleged instances of embezzlement were time barred. Plaintiff argued that all claims should be allowed because the discovery rule provided an exception to the four-year statute of limitations. The Court granted Defendants’ motion, reasoning that discovery rule did not save the claims because, had Plaintiff exercised ordinary diligence, it would have discovered the alleged embezzlement instantly.

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Judge David T. Thuma
Adversary     08/03/2022     Philip Montoya, Chapter 7 Trustee v. William S. Ferguson et al     

Defendants moved to exclude Plaintiff’s expert witness from testifying at trial, arguing that the expert was being paid a contingent fee, which disqualified him from testifying. Defendants also argued that the expert’s testimony should be excluded under the Daubert “junk science” rule. The Court overruled the contingent fee argument and deferred ruling on the Daubert argument until the conclusion of trial.

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Judge David T. Thuma
Adversary, Summary Judgment     07/15/2022     Philip Montoya, Chapter 7 Trustee v. William S. Ferguson et al     

Parties filed cross-motions for summary judgment. The Court denied both motions, reasoning material fact issues precluded summary judgment.

Judge David T. Thuma
Chapter 13, Extension of Time, Rooker-Feldman     07/01/2022     Michael Jacques Jacobs     

Debtor sought to vacate and reschedule the final hearing on the United States Trustee’s motion to convert or dismiss debtor’s chapter 11 case and related deadlines so that Debtor could pursue a newly filed Rule 60(b) motion to set aside foreclosure judgment filed in the state court foreclosure action. The Court denied the motion for a 45-day extension since it will just cause further delay in the bankruptcy case and likely be an insufficient time for Debtor to obtain a ruling on whether the state court foreclosure judgment is void or should be set aside, which, under the Rooker-Feldman doctrine, is an issue this Court may not consider. Debtor has had several years within which to seek to set aside the state court foreclosure judgment, and the basis for the “new developments” was known to Debtor since at least March of 2022.

 

 

Chief Judge Robert H. Jacobvitz
Chapter 13, Discharge, Miscellaneous, Professionals - Conflict of Interest     07/01/2022     Rhonda Lorie Otero Sedillo     

Requiring debtor’s counsel to sign the certification in support of a debtor’s chapter 13 discharge certifying that counsel has explained to the debtor the averments contained in the certification and that to the best of counsel’s knowledge and belief the debtor meets the discharge eligibility requirements does not violate the attorney-client privilege (the crime-fraud exception applies) or place the attorney in an untenable conflict of interest with his client to reveal information learned in confidence. The attorney’s alternative to signing the certification is to withdraw from representing the debtor. The debtor’s certifications in support of chapter 13 discharge aid the court in determining that a debtor is eligible for a chapter 13 discharge before the Court grants the discharge. The Court is amenable to revising its local form 4004-1 as part of its regular forms review process.

 

Chief Judge Robert H. Jacobvitz
Relief from Judgment     07/01/2022     Michael Jacques Jacobs     

Debtor sought relief under Rule 60(b)(2) (newly discovered evidence) and Rule 60(b)(3) (fraud or misconduct) from the Court’s memorandum opinion and order overruling objection to claim. The majority of the “newly discovered” evidence had been available to the Debtor since the trial in the state court foreclosure action over five years ago; consequently, it did not constitute newly discovered evidence sufficient to obtain relief under Rule 60(b)(2). The fact that Debtor only recently discovered the legal significance of the documents did not make the evidence “newly discovered.” The only truly new evidence regarding the cessation of business of the beneficial owner of the note would not change the Court’s decision, which was based on the preclusive effect of the foreclosure judgment entered in state court. Creditor’s conduct in connection with the bankruptcy did not constitute fraud or misconduct warranting relief under Rule 60(b)(3). Debtor should have addressed any perceived discovery violations during discovery. The Court denied Debtor’s motion for Rule 60 relief.

                                                                                     

 

Chief Judge Robert H. Jacobvitz

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