Judge Deasy 2000 Opinions

Date Opinion Summary
12/22/00 In re Brailsford, 2000 BNH 056 (denying the Secretary of Veterans Affairs request for attorney’s fees and expenses related to a motion for relief on the grounds that they were not reasonable under the circumstances).
12/20/00 Citizens Bank of Massachusetts, Inc. v. Askenaizer (In re ZLGH Dev., Inc.), 2000 BNH 054 (denying defendant-creditor’s motion for partial summary judgment with respect to mechanic’s lien issues under RSA 447 as there were genuine issues of material fact regarding the description on the writ of attachment and whether work was performed within 120 days).
12/15/00 In re Camann, 2000 BNH 053 (denying former spouse’s motion to appoint a commissioner to sell non-real estate assets of the debtor’s corporation purportedly in accordance with the parties’ final divorce decree).
12/12/00 Marshall v. Kalantzis (In re Kalantzis), 2000 BNH 052 (denying a motion by the United States Trustee, as a substituted plaintiff, seeking the right to reopen discovery and the evidentiary record after the original plaintiff had rested and the defendant had moved for a directed verdict on the grounds that it would be unjust and would cause undue delay).
12/07/00 In re Sprague Floor Coverings, Inc., 2000 BNH 051 (denying Chapter 7 debtor’s counsel application for compensation and reimbursement of expenses to the extent that counsel sought payment from the bankruptcy estate).
12/01/00 In re CGE Shattuck, LLC, 2000 BNH 050 (deeming a claim timely filed under the excusable neglect standard of Federal Rule of Bankruptcy Procedure 9006(b)(1) and Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 395 (1993) when the late filing was due to a failure to notify the creditor of the Chapter 11 bankruptcy filing; allowing a creditor’s vote to be counted under the same excusable neglect standard when the reason for the late casting of the ballot was the Debtor’s failure to properly address the package containing the plan of reorganization and the ballot; denying the proponents of the plan of reorganization the right to file a late proof of claim on behalf of a creditor when the failure to file a timely proof of claim did not meet the excusable neglect standard; denying the right of a creditor who had no claim the right to vote on a plan).
12/01/00 Flanagan v. Flanagan (In re Flanagan), 2000 BNH 049 (excepting from discharge pursuant to 11 U.S.C. § 523(a)(5) the debtor’s obligations to pay child support and uninsured medical expenses and excepting from discharge pursuant to 11 U.S.C. § 523(a)(4) the debtor’s obligation to pay his former spouse one-half of a worker’s compensation award paid to him during the course of the parties’ divorce).
11/30/00 In re CGE Shattuck, LLC, 2000 BNH 048 (temporarily allowing a claim of a creditor for voting purposes under Federal Rule of Bankruptcy Procedure 3018(a)).
11/28/00 In re CGE Shattuck, LLC, 2000 BNH 047 (allowing a creditor to change its vote against a Chapter 11 plan of reorganization under Federal Rule of Bankruptcy Procedure 3019 and 11 U.S.C. § 1127(d) when the reason for the change of vote was a modification of the plan and denying the request of another creditor to change its vote under Federal Rule of Bankruptcy Procedure 3018(a) when the only “cause” for changing the vote was a change in ownership of the claim).
11/28/00 In re Heck, 2000 BNH 046 (determining that (1) the petition preparer failed to disclose his compensation within ten days of the debtor’s filing as required by 11 U.S.C. § 110(h)(1); (2) the petition preparer’s fee of $295 exceeded the value of his services in preparing a skeleton Chapter 13 petition; (3) 11 U.S.C. § 110(h) lacks a provision granting the Court authority to impose a fine for failure to timely disclose fees; and (4) the only method for pursuing sanctions would be for the Court to certify a violation of 11 U.S.C. § 110 to the district court pursuant to 11 U.S.C. § 110(i)).
11/28/00 In re Moran, 256 B.R. 842 (Bankr. D.N.H. 2000) (Vaughn, C.J. and Deasy, J.) (determining under 11 U.S.C. § 110(h) that (1) the presumptive value of petition preparer services is $30 per hour; (2) petition preparers can prepare a petition in a routine individual or joint consumer case in five hours or less; and (3) petition preparers need to file an application seeking approval of fees with the Court when their fees exceed $150).
11/16/00 In re Camann, 2000 BNH 043 (approving adequacy of competing disclosure statements filed by debtor and his former spouse pursuant to 11 U.S.C. § 1125(a)(1)).
10/13/00 Schreiber v. Ryan (In re Kendall Real Estate, Inc.), 2000 BNH 040 (requiring turnover of a broker’s commission on the sale of real estate, net of costs of collection, on the grounds that the contract for sale of the listing real estate agency was not ambiguous and that the right to a commission collected by a defendant had been sold to the debtor and was, therefore, property of the estate; also denying the trustee’s claim to the portion of the commission collected by a co-broker on the grounds that the co-broker’s commission was never property of the estate; also denying the trustee’s claim to a commission from the sellers of the real estate on equitable grounds).
10/06/00 In re Gamache, 2000 BNH 039 (denying second mortgagee’s motion for relief from the automatic stay under 11 U.S.C. § 362(d)(1) and ordering adequate protection in the form of payments to the first mortgagee and adequate protection payments to the second mortgagee).
10/05/00 Schreiber v. Emerson (In re Emerson), 2000 BNH 037 (granting the debtors’ motion to dismiss and a co-defendant’s motion for summary judgment because the trustee failed to set forth any valid basis under 11 U.S.C. §§ 105, 549, or 550 under which he could recover money from the defendants on account of damage that occurred postpetition to two of the debtors’ airplanes, one of which had been preferentially and fraudulently transferred to the co-defendant prepetition).
10/05/00 Ford v. DeFoggi (In re Bolivar Group, Inc.), 2000 BNH 038 (granting the trustee’s motion for partial summary judgment on his claim under 11 U.S.C. § 547(b) as the defendant’s answer contained sufficient admissions to satisfy the elements of a preferential transfer).
09/22/00 Bilodeau v. Bilodeau (In re Bilodeau), 2000 BNH 035 (denying both a motion for summary judgment and a cross-motion for summary judgment involving 11 U.S.C. § 523(a)(5) on the grounds that issues arising under 11 U.S.C. § 523(a)(5) are factual matters that can not be decided on summary judgment).
09/22/00 In re Mans, 2000 BNH 036 (finding the debtor ineligible to be a debtor under Chapter 13 because his unsecured debt, including the unsecured portion of an undersecured creditor’s claim, exceeded the unsecured debt limit of $269,250 contained in 11 U.S.C. § 109(e)), appeal dismissed, Civil Action No. 01-3-B (D.N.H. Jan. 22, 2001).
09/20/00 In re CGE Shattuck, LLC, 254 B.R. 5 (Bankr. D.N.H. 2000) (denying approval of a creditor’s disclosure statement of a “commitment” that encouraged creditors to vote against the Debtor’s joint plan and proposed to pay a 50% dividend if the Debtor’s joint plan was defeated and the case was converted from Chapter 11 to Chapter 7 or the creditor’s motion for relief was granted by a date certain, on the grounds that the “commitment” was really a de facto plan of reorganization that did not comply with the provisions of Chapter 11 and was not a “sharing of collateral proceeds” within the holding of  In re SPM Mfg.Corp., 984 F.2d 1305 (1st Cir. 1993)).
09/08/00 Manakos v. BCC Investors, L.L.C. (In re Manakos), 2000 BNH 032 (determining the amount of creditor’s secured claim under 11 U.S.C. § 506(a) and finding the value of the property to be the midpoint between the adjusted fair values determined by opposing appraisers).
08/22/00 Grigas v. Sallie Mae Servicing Corp. (In re Grigas), 252 B.R. 866 (Bankr. D.N.H. 2000) (finding some, but not all, of the plaintiff-debtor’s educational loans dischargeable as an undue hardship pursuant to 11 U.S.C. § 523(a)(8) and holding that 11 U.S.C. § 523(a)(8) does not allow individual loans to be partially discharged, but does allow dischargeability to be determined on a loan-by-loan basis).
08/21/00 Absolute Financial Services, LP v. Kalantzis (In re Kalantzis), 2000 BNH 030 (rejecting per se rule that settlements of 11 U.S.C. § 727 objection to discharge actions can never be approved and adopting majority view that such settlements can be approved when fair and equitable, and holding that such settlements must at least give the United States Trustee and other creditors the opportunity to be substituted as plaintiffs before they may be found to be fair and equitable; denying creditor-plaintiff’s motion to approve settlement of its 11 U.S.C. § 727 action as not being fair and equitable).
08/15/00 Sherkanowski v. GMAC Mortgage Corp. (In re Sherkanowski), 2000 BNH 029 (holding that a mortgagee’s attorney violated 11 U.S.C. § 362(a)(1) by repeatedly postponing a foreclosure sale that had been scheduled prepetition and setting a hearing on the amount of attorney’s fees and expenses to be recovered by the debtor as actual damages for violating the automatic stay pursuant to 11 U.S.C. § 362(h); also holding that the mortgage servicer did not violate 11 U.S.C. § 362(a)(6) by sending monthly account statements listing the prepetition mortgage arrearage as an amount due).
06/13/00 In re CGE Shattuck, LLC, 2000 BNH 024 (denying creditor’s motion to reconsider the Court’s opinion and order dated April 24, 2000, wherein it found the value of the debtor’s property that purportedly secures the creditor’s claim to be equal to $1,300,000, on the ground that the creditor failed to show newly discovered evidence or a manifest error of fact or law), appeal dismissed, BAP No. NH 00-076 (B.A.P. 1st Cir. Mar. 15, 2001) (granting the debtor’s motion to dismiss the appeal because the bankruptcy court’s orders regarding valuation of the debtor’s property were not final appealable orders and did not meet any of the exceptions to the finality rule).
06/06/00 In re Shepherds Hill Development Co., LLC, 2000 BNH 021 (denying the trustee’s objection to the amount of an oversecured claim held by a secured creditor on the following grounds: (1) the mortgage’s failure to specify the default interest rate provided for in the note did not eliminate its effect with respect to the creditor’s secured claim; (2) pursuant to 11 U.S.C. § 506(b), the creditor is entitled to post-petition interest at an increased default rate, as envisioned by the note, since such a rate is equitable; and (3) pre-petition payments to the creditor pursuant to an option contract with a third party would not be subject to equitable subordination). 
06/06/00 In re Camann, 2000 BNH 022 (denying debtor’s motion to reject an alleged executory contract pursuant to 11 U.S.C. § 365(a) because the debtor had not entered into a contract enforceable under New Hampshire state law with his former spouse and/or son regarding the disposition of marital assets), aff’d, 2002 DNH 093.
05/02/00 In re Camann, 2000 BNH 018 (denying motion to employ special counsel pursuant to 11 U.S.C. § 327(e) because debtor failed to articulate a “specified special purpose” for special counsel’s services, because debtor contemplated using special counsel “in conducting the case,” and because debtor failed to demonstrate that special counsel’s services would be in “the best interest of the estate”).
05/02/00 Schultz v. United States (In re Schultz), 253 B.R. 135 (Bankr. D.N.H. 2000) (adopting the reasoning of Judge Vaughn’s decision in Young v. United States (In re Young), Bk. No. 97-10848-MWV, Adv. No. 98-1096-MWV (Bankr. D.N.H. May 5, 1999), and holding that pursuant to 11 U.S.C. § 108(c) and 26 U.S.C. § 6503(h)(2) the three-year look-back period contained in 11 U.S.C. § 507(a)(8)(A)(i) should be tolled during the pendency of the debtor’s prior bankruptcy case and during the additional six-month period during which the IRS is prevented from collecting debtor’s tax liability, which in this case resulted in priority treatment for some of the IRS’s claims).
04/24/00 In re Weza, 248 B.R. 470 (Bankr. D.N.H. 2000) (denying debtor’s claim of exemption pursuant to “Massachusetts Homestead Exemption of Spouse” because debtor was not entitled to claim such an exemption under 11 U.S.C. § 522(b)(2)(A) and New Hampshire RSA 480:1 nor under 11 U.S.C. § 522(b)(2)(B) and Massachusetts common law regarding tenancies by the entirety).
04/24/00 In re CGE Shattuck, LLC, 2000 BNH 017 (determining the value of the debtor’s property that purportedly secures the creditor’s claim to be equal to $1,300,000 through a discounted cash flow analysis after considering the assumptions and projections used by both parties’ appraisers), appeal dismissed, BAP No. NH 00-076 (B.A.P. 1st Cir. Mar. 15, 2001) (granting the debtor’s motion to dismiss the appeal because the bankruptcy court’s orders regarding valuation of the debtor’s property were not final appealable orders and did not meet any of the exceptions to the finality rule).
03/28/00 In re Shepherds Hill Development Co., LLC, 2000 BNH 012 (denying the movant’s request that its time for performance under a purchase agreement concerning the debtor’s property be extended on the ground that it had not been shown that the debtor, through the Chapter 11 trustee, breached the implied obligation of good faith and fair dealing inherent in all N.H. contracts as expressed in Centronics Corp. v. Genicom Corp., 132 N.H. 133 (1989)).
03/24/00 In re Shepherds Hill Development Co., LLC, 2000 BNH 011 (denying creditors’ and equity holders’ motion to vacate a previously entered court order approving the sale of the debtor’s development property free and clear of liens pursuant to 11 U.S.C. § 363(f) on the ground that the standard for vacating such orders as enunciated in In re WPRV-TV, Inc., 983 F.2d 336 (1st Cir. 1993) had not been met).
03/01/00 In re MacLean, 2000 BNH 010 (adopting the holding of In re Stewart, Bk. No. 99-10237-MWV (Bankr. D.N.H. Feb. 29, 2000) that, in light of In re Weinstein, 164 F.3d 677 (1st Cir. 1999), 11 U.S.C. § 522(c) preempts the pre-January 1, 1999 carve-out found in N.H. RSA 511:2(XIX) with the result that the debtor may exempt two IRAs in full notwithstanding the fact that most of his debts arose before January 1, 1999). 
02/08/00 In re Werden, 2000 BNH 007 (finding that (1) the debtor filed his Chapter 13 petition in good faith for purposes of 11 U.S.C. § 1307(c) and therefore holding that his case should not be dismissed, and (2) the debtor’s Chapter 13 plan was not feasible and therefore denying confirmation pursuant to 11 U.S.C. § 1325(a)(6)).
02/02/00 Ayoob v. Bresnahan (In re Bresnahan), 2000 BNH 006 (finding that the plaintiff had not met her burden of proof with respect to her complaint seeking to except a debt from discharge pursuant to 11 U.S.C. § 523(a)(2)(A)).
01/25/00 Muller v. Green (In re Green), 2000 BNH 005 (finding the debtor’s property settlement obligation to her former spouse nondischargeable pursuant to 11 U.S.C. § 523(a)(15)).
01/14/00 Douglas v. Douglas (In re Douglas), 2000 BNH 003 (granting in part and denying in part movant’s motion for relief under 11 U.S.C. § 362(d)(1)).
01/05/00 Morse v. Morse (In re Morse), 2000 BNH 002 (finding the debtor’s indemnification obligation to his former spouse nondischargeable pursuant to 11 U.S.C. § 523(a)(15)), appeal dismissed, Civil Action No. 00-72-M (D.N.H. June 2, 2000).
01/04/00 Osborne v. Rivela (In re Rivela), 2000 BNH 001 (finding that plaintiff had not met his burden of proof with respect to his complaint seeking to except a judgment debt from discharge pursuant to 11 U.S.C. §§ 523(a)(2)(A), (a)(4), and (a)(6)).