"RECENT CASES OF INTEREST: Guest Contributor Wendell Sherk, NACBA State Chair, Missouri"
From the National Association of Consumer Bankruptcy Lawyers , please visit them at www.nacba.org
In re Bullard,#11-6009 (8thCir.BAP 6/14/11)
Collateral estoppel in prior guilty plea and state civil summary judgment did not prevent re-litigation of issue of willfulness under 523(a)(6) dischargeability complaint. Applies Arkansas collateral estoppel principles.
In re Beckham, #10-49316 (Bankr.E.D.Mo. 5/14/11) (Surratt-States, J)
Where property is sold by Sheriff for back real estate taxes to a third-party buyer, the owner may not cure the default and recover the property by filing a Chapter 13 prior to a state court confirmation hearing. The tax sale is final when called, as with non-judicial foreclosure sales.
In re Clifton,
#10-43681 (Bankr.W.D.Mo. 6/7/11) (Dow, J)
Collateral estoppel in prior state court judgment applied where fraudulent misrepresentation was a necessary element of the state court findings, and the elements proven closely tracked §523(a)(2)(A). Applies Missouri collateral estoppel principles.
In re Schultz, #11-40490 (Bankr.W.D.Mo. 6/14/11) (Dow, J)
Court declines to allow $200 additional operating expense allowance in the Ch. 13 means test for a motor vehicle over 6-years old with mileage exceeding 75,000, as allowed "generally" under the IRS Manual. The debtors' schedules showed their actual operating expenses were less than the operating expense allowance without the additional amount. The court concluded that reliance on the IRS Manual was not supported by the Supreme Court's decision in Ransom v. FIA Card Services, N.A., 131 S.Ct. 716 (2011)
In re Harris, #10-61610 (Bankr.W.D.Mo. 6/2/11) (Federman, J)
Court concludes that Child Tax Credit, Earned Income Tax Credit, and Making Work Pay Credit are no different from garden variety income tax refunds. As such, they are subject to administration by a Ch. 7 trustee on a pro rata basis even if the case is filed during the tax year.