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
Abstention     11/22/2022     Mitchell and Victoria Hawkes vs. Automated Recovery Systems of New Mexico, Inc., et al.     

Debtor removed state court action filed against it and two unrelated parties. The plaintiff filed a motion for the court to abstain from hearing the removed proceeding and remand it. The court ruled that the elements of mandatory abstention were not met for any of the claims, and that it was not advisable to abstain under the permissive abstention rules.

 

 Judge David T. Thuma
Nondischargeability, Reconsideration, Summary Judgment     11/10/2022     United States of America v. Alejandro Saavedra     

 On an order to show cause why judgment should not be entered against defendant that he intended to defraud the federal government,  based on a civil judgment against him under the False Claims Act, the court found that the prior jury finding that defendant “knowingly” filed false claims was sufficient for a finding of intent to defraud in a section 523(a)(2)(A) proceeding.non

 Judge David T. Thuma
BAPCPA, Chapter 13, Confirmation     11/08/2022     Jody Lee Beach and Rhonda B. Beach     

Creditor and chapter 13 trustee objected to confirmation of the above-median debtors’ chapter 13 plan. The trustee settled. The court confirmed the plan over the creditor’s objection, holding that, as amended to reflect the trustee’s settlement, the debtors were devoting their projected disposable income to the plan.

 

 Judge David T. Thuma
Conversion, Dismissal     10/31/2022     GandyDancer, LLC     

The UST filed a motion to convert or dismiss the chapter 11 case for continuing losses, inability to confirm a plan, and failure to timely file MORs. The Court found that the tardy filing of the MORs was excusable, that the estate’s losses were not substantial or continuing, and that debtor likely was able to confirm a plan of liquidation. Motion denied.The UST filed a motion to convert or dismiss the chapter 11 case for continuing losses, inability to confirm a plan, and failure to timely file MORs. The Court found that the tardy filing of the MORs was excusable, that the estate’s losses were not substantial or continuing, and that debtor likely was able to confirm a plan of liquidation. Motion denied.

 Judge David T. Thuma
Chapter 13, Dischargeability     10/21/2022     Iron Horse Welding, LLC v. Beach     

The Court tried the merits of this $16,859.98 embezzlement nondischargeability proceeding. Plaintiff asserted that Defendants used Plaintiff’s credit card without permission to pay their phone bill. Defendants argued that Plaintiff agreed to pay their phone bill, but that Plaintiff changed its story after Plaintiff’s owner and Defendants had a falling out. The Court ruled that Plaintiff did not carry its burden of proving that the charges were unauthorized and held in favor of Defendants.

 

 Judge David T. Thuma
Cause, Chapter 11, Dismissal or Conversion, Principal Residence     10/14/2022     Michael Jacques Jacobs     

“Cause” existed under § 1112(b) to dismiss or convert individual debtor’s chapter 11 case because debtor’s plan, filed more than two and a half years after debtor commenced the bankruptcy case, did not comply with the Code’s requirements for treatment of a claim secured only by debtor’s principal residence. To determine whether a plan violates the anti-modification prohibition in § 1123(b)(5) applicable to claims secured only by a debtor’s principal residence, the Court must look to the impairment provisions in § 1124. To “unimpair” a claim under § 1124(2), a debtor must cure all pre- and post-petition, pre-confirmation arrearages by the plan effective date. Consequently, a chapter 11 individual debtor may not cure arrearages on a claim secured only by the debtor’s principal residence by making installment payments over time. Such treatment impermissibly modifies the secured creditor’s claim in violation of § 1123(b)(5). Debtor’s plan did not provide for a cure of all arrearages by the plan effective date in violation of  § 1123(b)(5)’s anti-modification prohibition, and Debtor did not rebut the showing of “cause” by demonstrating unusual circumstances or a likelihood that he would be able to confirm a plan within a reasonable time. The Court determined that dismissal was in the best interest of creditors and the estate and dismissed the case.

 

 Chief Judge Robert H. Jacobvitz
Adversary, Corporate Veil, Fraud, Fraudulent Transfers     10/07/2022     Philip Montoya, Chapter 7 Trustee v. William S. Ferguson et al     

The Court tried the merits of this turnover/fraudulent transfer/veil-piercing/breach of duty proceeding and found in Plaintiff’s favor on Counts II, III, IV, V, VI, VII, and VIII. The Court found that Defendants fraudulently transferred property under 11 U.S.C §§ 548(a)(1)(A) and 548(a)(1)(B), as well as NMSA §§ 56-10-18(A)(1) and 56-10-18(A)(2). Further, the Court found that Defendant Ferguson breached his duty of loyalty to Debtor and Debtor’s creditors. Additionally, the Court determined that Motiva, Armageddon, Avatar, and DealerBank were the alter egos of Defendant Ferguson, therefore veil piercing was warranted. Last, the Court disallowed the claims of Defendants Ferguson, DealerBank, and Armageddon.

 Judge David T. Thuma
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

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