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Opinion summaries for cases

decided in District of Vermont 2nd


Circuit
In re Kadoch
Consumer case opinion summary, case decided on April 3rd, 2015, LexisNexis #0415-112

11 U.S.C.
522
522(f)
Ruling: Home occupied by debtor subsequent to divorce was an exempt homestead and not
subject to order for sale in divorce decree.
Issue: Was debtor's homestead subject to a divorce court's order for sale?
Holdings: [1]-A house which a chapter 7 debtor occupied after he was divorced from his wife
was his homestead, even though a Vermont court which entered a divorce degree ordered the
debtor to sell the house and divide the proceeds with his ex-wife; [2]-The debtor did not waive his
right to claim that $44,500...
Court: District of Vermont (Brown)

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GMAC Mortg., LLC v. Orcutt


Consumer case opinion summary, case decided on February 28th, 2014, LexisNexis #0714-009

11 U.S.C.
506
506(a)
Ruling: Bankruptcy court erred in relying solely on state law in finding mortgage to be invalid.
Issue: Was mortgage properly avoided as invalid based solely on state law?
Holdings: [1]-A bankruptcy court had statutory and constitutional authority to adjudicate a
mortgage's validity because the issue would have been resolved in the claims allowance process
and was an integral part of deciding appellant mortgagee's objections to appellee debtors'
homestead exemption and finding...
Court: District of Vermont (Reiss)

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In re Clark

Consumer case opinion summary, case decided on February 26th, 2014, LexisNexis #0314-073

11 U.S.C.
362
362(a)
362(a)(6)
Ruling: Single postpetition communication by creditor to debtor for clarification did not violate
stay.
Issue: Was creditor's post-petition telephone conversation with debtor an attempt to collect a
debt in violation of the automatic stay and if so, was imposition of sanctions warranted?
Holdings: [1]- Creditor did not violate 11 U.S.C.S. 362(a)(6) where there was just one postpetition communication between the parties, creditor did not make a demand for repayment of
the debt, creditor's inquiry was a request for clarification as to whether credit card and signature
loan debts were...
Court: District of Vermont (Brown)

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In re R. Brown & Sons, Inc.


Commercial case opinion summary, case decided on September 18th, 2013, LexisNexis #1013-020

11 U.S.C.
543
Ruling: Storage companies that held property levied by sheriffs were entitled to administrative
expense claim for fees.
Issue: Were storage companies that took possession of and stored debtor's property that had
been seized by sheriff's entitled to fees.
Holdings: [1]-Two sheriffs who were directed by Vermont courts pursuant to levy on assets
owned by a corporate debtor before the debtor declared chapter 11 bankruptcy were custodians
of the debtor's property because they had control of the property on the date the debtor declared
bankruptcy; [2]-Two...
Court: District of Vermont (Brown)

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In re Patterson
Consumer case opinion summary, case decided on November 13th, 2012, LexisNexis #1212-012

11 U.S.C.
522
522(f)

Ruling: Debtor could avoid lien on homestead property purchased with equity from former
marital residence.
Overview: The debtor's wife filed a divorce action in April 2011, and the debtor entered into a
property settlement agreement which required him to transfer his interest in the marital home to
his wife. The debtor withdrew funds from his IRA in May 2011 and...
Court: District of Vermont (Brown)

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In re Wise
Consumer case opinion summary, case decided on July 25th, 2011, LexisNexis #0811-097

11 U.S.C.
707
707(b)
Ruling: United States Trustee's motion to dismiss for presumption of abuse denied as time
barred and not justified by totality of circumstances.
Overview: In this case, the court first determined that the UST failed to file the statement of
presumed abuse within 10 days of the first date set for the meeting of creditors. Accordingly, the
motion to dismiss for abuse under 707(b)(1), based upon a...
Court: District of Vermont (Brown)

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Parker v. U.S. Bank Nat'l Ass'n (In


re Parker)
Consumer case opinion summary, case decided on March 18th, 2011, LexisNexis #0411-079

11 U.S.C.
502
Ruling: Bank not entitled to summary judgment on debtor's objection to proof of claim given
genuine issue of material fact.
Overview: It was undisputed that the bank was in possession of the original note. The debtor
originally executed the note in favor of a mortgagee, and the note was later endorsed by an
allonge in blank by an individual as attorney-in-fact for the mortgagee...
Court: District of Vermont (Brown)

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In re Turner
Consumer case opinion summary, case decided on February 3rd, 2011, LexisNexis #0311-019

11 U.S.C.
542
Ruling: Trustee entitled to turnover of tax refunds to the extent exceeding claimed exemption.
Overview: The trustee argued that the bankruptcy estate included the pro rata portion of the
debtors' 2009 tax refunds allocable to the debtors' earnings during the period of the 2009 tax
year prior to the petition filing date. The trustee sought turnover of...
Court: District of Vermont (Brown)

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In re Haskins
Consumer case opinion summary, case decided on March 25th, 2010, LexisNexis #0710-029

11 U.S.C.
1325
1325(a)
1325(a)(9)
Ruling: Debtors allowed to "cram down" secured claim in 910 vehicle which debtor used
primarily for business.
Overview: Debtors moved to value the collateral securing the claim at $ 11,450, to fix the
amount of the secured claim at that amount, and to treat the balance of the claim as a general
unsecured claim. Although the debtors took title to the vehicle jointly,...
Court: District of Vermont (Brown)

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In re Winter Mfg.
Commercial case opinion summary, case decided on March 2nd, 2010, LexisNexis #0510-126

11 U.S.C.
726
726(a)
726(a)(2)
726(a)(2)(C)
Ruling: Late filed proof of claim allowed due to lack of service of notice of case or bar date.

Overview: The debtor did not list the creditors on its schedules, and the creditors were not
served with notice of the bankruptcy case or the bar date for filing proofs of claim. One of the
creditors stated that she did not learn of the bankruptcy filing...
Court: District of Vermont (Brown)

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Ag Venture Fin. Servs. v.


Montagne (In re Montagne)
Consumer case opinion summary, case decided on November 13th, 2009, LexisNexis #0110-044

11 U.S.C.
502
Ruling: Creditor's proof of claim was properly filed and was allowed over objection of chapter 12
trustee.
Overview: The first issue was whether the creditor had standing to enforce the Note. The second
issue was whether its proof of claim was fatally defective. The third issue was whether the loan
was unenforceable pursuant to Vt. Stat. Ann. tit. 8, 2233. On...
Court: District of Vermont (Brown)

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In re R & G Props.
Commercial case opinion summary, case decided on July 6th, 2009, LexisNexis #0909-075

11 U.S.C.
361
Ruling: Creditor entitled to adequate protection including a lien on surplus rents for debtor's
continued use of cash collateral.
Overview: The issue was whether the creditor was entitled to adequate protection under 361
and, if so, in what form. The creditor argued that its position had diminished due to the debtor's
failure to make any payments since the filing of the bankruptcy...
Court: District of Vermont (Brown)

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In re Hutchins
Consumer case opinion summary, case decided on January 30th, 2009, LexisNexis #0309-132

11 U.S.C.
1325
1325(a)
1325(a)(3)
Ruling: Plan confirmed over objection of creditor whose failure to be properly secured was not
due to bad faith on part of debtor.
Overview: The bank argued that the debtor's failure to comply with Vt. Stat. Ann. tit. 23, 2042
and 2043, which required him to name the bank on the certificate of title and deliver the
certificate to the bank, deprived it of a properly perfected security...
Court: District of Vermont (Brown)

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Sensenich v. Ledyard Nat'l Bank


(In re Campbell)
Consumer case opinion summary, case decided on December 24th, 2008, LexisNexis #0209-005

11 U.S.C.
362
362(a)
362(a)(3)
Ruling: Creditor's destruction of estate property was a willful violation of stay.
Overview: The threshold issue was whether the sale orders somehow modified the automatic
stay as to the property that had been sold and debtor's personal property that remained in the
buildings after the real estate sale. The court found that reading...
Court: District of Vermont (Brown)

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In re R&G Properties, Inc.


Commercial case opinion summary, case decided on November 21st, 2008, LexisNexis #0109-080

11 U.S.C.
543
Ruling: Receiver in foreclosure action was not entitled to extension of exemption from turnover
requirements once term of original order expired.

Overview: The debtor executed a promissory note in 2000, and secured that note with a
mortgage on five mobile home parks it purchased. The note and mortgage were assigned to a
creditor, the creditor sued the debtor in state court after the debtor failed to...
Court: District of Vermont (Brown)