2007 Judge Wizmur - Opinions
Judge Judith H Wizmur -- Opinions signed in 2007
Debtor filed tax returns as head of household. Division of Taxation sought to require her to amend her return to change her filing status as married, filing separate return. Tax assessment was over 3 years ago. The proof of claim did not assert tax liability against the debtor individually. Court declined to require debtor to amend her returns.
Chapter 13 trustee and unsecured creditor objected to above median income debtors' proposed 36 month plan as failing to satisfy projected disposable income requirement and as not extending over requisite term. Court determined that debtors whose schedules showed excess income but whose means test showed negative disposable income were not obligated to pay dividend to unsecured creditors. There is no minimum term for debtors with negative disposable income.
Court denied the debtor her discharge pursuant to section 727(a)(4). Debtor failed to disclose to court the existence of a lease purchase agreement prepared in connection with the sales contract for her home. Debtor sold the house for significantly less than it was originally listed for. Court determined debtor's actions were fraudulently taken.
Debtors moved to compel the mortgagee to disgorge legal fees that the debtors were required to pay as part of mortgage payoff when their home was sold. The claimed fees were incurred post petition for two motions for relief from the automatic stay, for filing proofs of claim and the mortgagee's attempts to get paid during the bankruptcy process. Lacking statutory authority, the court looked to the contractual language and allowed reduced fees.
Plaintiff nursing home sought nondischargeability determination for services rendered to debtor's mother. Plaintiff asserted that the debtor misappropriated funds while in a fiduciary status. Court found that the plaintiff failed to establish an intent to defraud.
The debtor sought damages for the manner in which her vehicle was repossessed and claimed that the defendant's failure to return the vehicle post petition violated the automatic stay. The debtor also sought to file a tort claim out of time. The court issued proposed findings of fact and conclusions of law that determined that the debtor failed to show extraordinary circumstances to justify filing a tort claim out of time.
Debtor sought reconsideration of decision denying her a discharge pursuant to section 727(a)(4). Court vacated the earlier order following presentation of additional medical evidence to support the debtor's contention that her illness led to her making poor business decisions and that she lacked the requisite fraudulent intent.
Plaintiffs claimed that the insurance company (1) breached an implied covenant of good faith and fair dealing by encouraging the debtor to expand its business while secretly intending to terminate its agency status; (2) breached an implied covenant of good faith and fair dealing by refusing to accept new policies during the 90 day notice termination period; (3) over reserved against the plaintiff's account; and (4) that the court should reconsider its earlier dismissal of other counts because the agency determinations were beyond the scope of referral.
The Chapter 7 trustee sought to recover alleged preferential payments. The defendant failed to rebut the presumption of insolvency and because the defendant received a payment where unsecured creditors would not have otherwise been paid, the trustee was able to establish all 5 elements of a preferential transfer. The defendant failed to establish a contemporaneous exchange exception, but there remained a question of whether new value was provided.
Plaintiffs moved for preliminary injunctive relief to stop an auction sale. The court denied the motion and denied a stay pending appeal. A sale free and clear of all interests and liens was granted.
Defendant challenged the plaintiffs' ability to amend their complaint to conform with the evidence. The court determined that the matters were tried pursuant to implied consent and allowed amendment under Rule 15(b).
No file: In re Curriden, No. 05-38352
The debtor and the trustee contend that the defendants conspired to defraud the debtor out of her proper share of the proceeds of the prepetition sale of her home. Plaintiffs allegedly fraudulent transfers and sought punitive and statutory damages. Plaintiffs also sought a determination of nondischargeability as to the purchaser of the home. The court found evidence of common law fraud, civil conspiracy and violations of the New Jersey Consumer Fraud Act and RESPA. The mortgage company was found to be vicariously liable.