Desmond v. ASR Acquisition Corp. (In re Desmond), 334 B.R. 78 (Bankr. D.N.H. 2005) ((1) denying in part Defendant corporation’s motion to dismiss, finding that (a) Plaintiff Debtor’s complaint alleges sufficient facts regarding the amount due Defendant and the extent of Creditor’s liens; (b) Plaintiff alleges sufficient facts to state its claim that Plaintiff is the owner or equitable owner of a judgment lien, currently in the possession of Defendant, attached to Plaintiff’s farm; and (c) Plaintiff’s claim that Defendant breached its promise to lend a certain sum is a core proceeding despite the claim’s basis in state law; (2) granting in part Defendant corporation’s motion to dismiss, finding that Plaintiff’s claim of equitable subordination is factually unsupported; (3) granting Defendant individual’s motion to dismiss, finding that Plaintiff’s complaint failed to state a claim against him; (4) denying Plaintiff’s second motion to amend the complaint, finding that (a) Plaintiff has not alleged sufficient facts to support a claim that he and Defendant corporation had agreed to reduce the amount of Plaintiff’s indebtedness; (b) Plaintiff’s state law claims of civil conspiracy against both the named Defendants and several unidentified defendants fails to state the factual allegations with necessary particularity and fails to give notice to the unidentified defendants; and (c) Plaintiff’s claim against Defendant individual for failure to pay promissory notes fails to state a claim; (5) with respect to Plaintiff’s third motion to amend the complaint, (a) denying Plaintiff’s claim that Defendant corporation’s claims should be equitably subrogated in favor of the claims of Debtor’s relatives’ estates, finding that the claims of these estates would more appropriately be brought in another forum or in a separate adversary proceeding in this Court, and (b) abstaining from hearing Plaintiff’s non-core, purely state law claims because it is in the interest or comity with state law and (6) ruling that the motion to intervene by the administratrix of the estates of the Plaintiff’s relatives is moot because the underlying causes of action are disallowed by this opinion).
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In re Desmond, 331 B.R. 42 (Bankr. D.N.H. 2005) (granting the United States Trustee's motion to convert the Chapter 11 case to Chapter 7 finding that (1) the estate is administratively insolvent, the Debtor, having no earned income, and the insurance policy on the Debtor's main asset having been threatened to be canceled due to the Debtor's nonpayment of premiums; (2) the Debtor has paid no quarterly fees to the United States Trustee since the start of the case, which is not justifiable; and (3) the Debtor has not been able to effectuate a reorganization plan, and his continued delay in Chapter 11 is and will be prejudicial to creditors.
In re May, 329 B.R. 789 (Bankr. D.N.H. 2005) (granting the Debtors' motion to avoid a judicial lien and the Debtors' amendment to their petition and schedules finding that (1) the Debtors have a standing to bring the motion because they had an interest in the property at the time the lien affixed, as well as at the time the motion was brought; and (2) the Debtors' entering into a purchase and sale agreement while still occupying the premises and then subsequently moving from the premises prior to the closing does not constitute an abandonment of the homestead).
Robert Wolfe Assocs. v. ASR Acquisition Corp. (In re Desmond), 331 B.R. 38 (Bankr. D.N.H. 2005) (granting creditor Defendant's motion to dismiss Count II finding that one cannot have an ownership interest in an individual and denying the Defendant’s request to dismiss Counts I, III and IV because the Plaintiff's complaint contains facts sufficient to justify its recovery based on the Defendant's fraud and/or misrepresentation, and the Defendant may not untimely raise the issue of the Plaintiff’s lack of standing to pursue its claim for restitution).
United States Trustee v. Jarvis (In re Jarvis), 2005 BNH 027 (denying the plaintiffs’ motions seeking summary judgment under 11 U.S.C. §§ 523(a)(2)(A), 523(a)(6), and 727(a)(4) because genuine issues existed regarding the debtor’s intent).
In re LaBonte, 328 B.R. 372 (Bankr. D.N.H. 2005) (granting the Debtor's request for amendment of schedules to increase the value of her homestead exemption and overruling the trustee's objection, finding that (1) RSA 477:44-IV clearly provides that a security interest created by Article 9 security agreement is subject to homestead rights unless such homestead rights are not waived; (2) the instrument by which the Debtor transferred a security interest is a purchase money security agreement, but not a purchase money mortgage, which is excepted from the homestead exemption).
In re Latitudes Cafe, LLC, 2005 BNH 024 (denying the Debtor's motion to
Wrenn Associates., Inc. v. John J. Paonessa Co., Inc. (In re Wrenn), 2005 BNH 022, Court denied plaintiff’s Motion for Summary Judgement on defendant’s counterclaim because the counterclaim stated a claim on which relief could be granted. The issue of whether the nature of a personal relationship rises to the level of a confidential relationship sufficient to impose a constructive trust is a question of fact for trial. The nature of relationship, as opposed to the definition of relationship (i.e. business or personal) controls the outcome. The imposition of a constructive trust is not precluded simply because the parties have a business relationship., nor is it compelled simply because the parties have a personal or family relationship.
Francis v. Eaton (In re Eaton), 327 B.R. 79 (Bankr. D.N.H. 2005) (Even though the deadline to file an objection to the dischargeability of a debt in Bankruptcy Rule 4007 is not jurisdictional, the bankruptcy court does not have unlimited discretion to apply equitable principles to extend deadline to object to dischargeability. Discretion rooted in the general equitable powers granted by the Bankruptcy Code does not trump the express limitations on the exercise of that discretion by the language in FRBP 9006(b)(3) and 4007(c)).
Exceptional Properties, Inc. v. Georges (In re Georges), 2005 BNH 021 ((1) denying the Plaintiff's complaint under § 523(a)(2)(A) because there is insufficient evidence that the Defendant's representation of ownership of certain equipment caused damage to the Plaintiff; (2) but the debt owed to the Plaintiff in the amount of $361,087 is excepted from discharge under the § 523(a)(4) embezzlement count, finding that the circumstances, in which the Defendant was in possession of the property and that a significant amount of material was not accounted for, indicates fraud; (3) denying the Defendant's discharge pursuant to § 727(a)(3) because the Defendant failed to keep adequate records sufficient to determine his business transactions concerning the operation of the pit; (4) denying the Defendant's counterclaim for mitigating damages since the Defendant himself probably caused the problem).