Judge Jacobvitz's Opinions

INDEX TO OPINIONS                                                                                                                                        

 ATTORNEYS FEES

  1. The Court reduced the hourly rate for chapter 13 debtor's counsel from $250 to $200
    In re Romero., 2010 WL 964209 (Bankr.D.N.M. 2010, J. Jacobvitz)

CHAPTER 11

  1. Dismissal or Conversion Under 11 U.S.C. §1112(b)
    In re Melendez Concrete Inc., 2009 WL 2997920 (Bankr.D.N.M. 2009, J. Jacobvitz)

  2. Retention of Professionals - No Adverse Interest and Rule 2014(a) Requirements
    In re Platinum Oil Properties, LLC, 2009 WL 5201851(Bankr.D.N.M. 2009, J. Jacobvitz)

  3. Automatic Stay Post Confirmation
    In re Price, Case No. 05-10321 (Docket No. 374) (Bankr.D.N.M. 01/07/10, J. Jacobvitz)

DAMAGES

  1. Consequential Damages When Injury is Suffered by an Affiliate
    In re Integrated Technology Solutions, Inc., 417 B.R. 643 (Bankr.D.N.M. 2009, J. Jacobvitz)

DISCHARGEABILITY

  1. Addresses legal standard for non-dischargeability under 11 U.S.C. § 523(a)(2)(A), and when the principal is liable for fraud of an agent
    Southwest Financial Services of Las Cruces, Inc. v. Tarango, 424 B.R. 479 (Bankr.D.N.M. 2010)

  2. Inclusion of words "in trust' in security agreement is insufficient in and of itself to create fiduciary relationship within the meaning of 11 U.S.C. § 523(a)(4).  Liabilitly cannot be imputed to debtor who does not participate in alleged wrongdoing for purposes of non-dischargeability under 11 U.S.C. § 523(a)(6).  Opinion also discusses imputed liability under 11 U.S.C. § 523(a)(2)(A).  First New Mexico Bank v. David Bruton and Charlene Bruton, Adversary Proceeding NO. 09-1187, July 12, 2010

DISMISSAL

  1. Credit Counseling Taken Outside the 180-Day Period
    In re Crawford, 420 B.R. 833 (Bankr.D.N.M. 2009, J. Jacobvitz)

  2. Third Chapter 13 Case Dismissed Without Prejudice
    In re Gray, 2009 WL 3849710 (Bankr.D.N.M. 2009, J. Jacobvitz)

DISMISSAL OR CONVERSION

  1. Under 11 U.S.C. §1112(b)
    In re Melendez Concrete Inc., 2009 WL 2997920 (Bankr.D.N.M. 2009, J. Jacobvitz)

  2. Under 11 U.S.C. §1307(c), whether dismissal or conversion of debtor's chapter 13 case to chapter 7 was in the best interest of creditors and the estate
    In re Carol Ferri, 2010 WL 1418147 (Bankr.D.N.M. 2010, J. Jacobvitz)

EXEMPTIONS

  1. Court denies objection to claim of exemption. The objection was based on conversion of nonexempt assets to exempt form (a Roth IRA) shortly prior to commencement of the chapter 7 case while a creditor was in hot pursuit.
    In re Channon, 424 B.R. 895 (Bankr. D.N.M. 2010)

JUDICIAL ADMISSIONS DOCTRINE

  1. Lopez v. Lopez, 2009 WL 3754204 (Bankr.D.N.M. 2009, J. Jacobvitz)

JUDICIAL LIENS - AVOIDANCE

  1. In re Morgan, 2009 WL 3617613 (Bankr.D.N.M. 2009, J. Jacobvitz)

JURISDICTION

  1. Court did not have jurisdiction over debtor's state law claim against lender's counsel; debtor's bankruptcy case had already been dismissed.
    In re Kline, _B.R. _, 2009 WL 4406056 (Bankr.D.N.M. 2009, J. Jacobvitz)

  2. Court has jurisdiction to hear claim of the trustee to collect receivables that are property of the estate; does not decide whether the matter is a core proceeding.
    In re Texas Reds, Inc., 2010 WL 398912 (Bankr.D.N.M. Jan 14, 2010, J. Jacobvitz)

  3. Court has subject matter jurisdiction over claims between third parties and rules that mandatory abstention does not apply; Court sua sponte permissively abstains.
    The Scoular Company v. Dalhart Consumers Fuel Association, Inc. and 7-H Cattle Feeders, Inc., 2010 WL 1795269 (Bankr.D.N.M. May 3, 2010, J. Jacobvitz)

  4. Court’s exercise of personal jurisdiction over Defendant does not violate the Fifth Amendment.
    Texas Reds, Inc. v. Miller, 2010 WL 1711112 (Bankr.D.N.M. April 26, 2010, J. Jacobvitz)

LIMITATION OF ACTIONS

  1. Limitations period was revived under New Mexico revival statute.
    In re Texas Reds, Inc., 2010 WL 398918 (Bankr.D.N.M. Jan 15, 2010, J. Jacobvitz)

PROFESSIONALS - CONFLICT OF INTEREST

  1. In re Platinum Oil Properties, LLC, 2009 WL 5201851(Bankr.D.N.M. 2009, J. Jacobvitz)

PROFESSIONALS - RULE 2014(a) DISCLOSURE

  1. In re Platinum Oil Properties, LLC, 2009 WL 5201851(Bankr.D.N.M. 2009, J. Jacobvitz)

PROPERTY OF THE ESTATE

  1. Unscheduled causes of action remained property of the estate after the case was closed.
    In re Wright, 2009 WL 3633811 (Bankr.D.N.M. 2009, J. Jacobvitz)

REAFFIRMATION AGREEMENTS

  1. Reaffirmation Agreements are unenforceable if attorney fails to make all three certifications as required under 11 U.S.C. § 524(c).  Court has no power to render the agreement enforceable by approving it.   Creditor may not exercise remedies under 11 U.S.C. § 521(d) or § 362(h) where debtor has taken all required steps to reaffirm the debt, notwithstanding the unenforceability of the agreement.    In re Perez, Case No. 7-10-11417, July 12, 2010.

SALE OF ASSETS § 363

  1. Court denies approval of a sale of assets by a chapter 11 debtor as not being a reasonable exercise of the debtor’s business judgment.
    In re Premier Concrete, Inc., 2010 WL 1780046 (Bankr.D.N.M. May 4, 2010, J. Jacobvitz)

STANDING

  1. By Creditor in Chapter 7 Case
    In re Runnels Broadcasting Systems, LLC. 2009 WL 4611447 (Bankr.D.N.M. 2009, J. Jacobvitz)

STAY - ANNULMENT

  1. Annulment of stay denied when sought solely to defeat a claim for damages for willful violation of the stay.
    In re Kline, USBC, DNM, Adversary No. 09-1035 (Bankr. D.N.M., 03-04-2010, J. Jacobvitz)

STAY VIOLATION

  1. Knowledge of loan servicer (agent) can be imputed to lender (principal) for purposes of determining whether lender willfully violated the stay
    In re Kline, 420 B.R. 541 (Bankr.D.N.M. 2009)

  2. When failure to dismiss an action commenced in technical violation of the stay becomes a willful violation of the stay
    In re Kline, __ B.R. __, 2010 WL 519820, (Bankr. D.N.M. 2010, J. Jacobvitz)

SUMMARY JUDGMENT

  1. Motion Not Properly Supported by Evidence
    Cago Inc. v Slade, Adversary No. 08-1065 (Docket No. 17) (Bankr.D.N.M. 09/18/09, J. Jacobvitz)
    Los Alamos National Bank v. Martinez, Adversary No. 08-1143 (Docket No. 28) (Bankr.D.N.M. 01/08/10, J. Jacobvitz)
    Northern New Mexico School Employees Federal Credit Union v. Moya, Adversary No. 09-1155 (Docket No. 8) (Bankr.D.N.M. 04/02/10, J. Jacobvitz)
    Wright v. Vanderbilt Mortgage and Finance, Inc., Adversary No. 09-1048 (Docket No. 59) (Bankr.D.N.M. 03/18/10, J. Jacobvitz)

WAIVER

  1. Acceptance of payment after expiration of the cure period waived right to terminate a real estate contract based on failure to cure by timely making the payment that was accepted.
    In re Draper., 2010 WL 963987 (Bankr.D.N.M. 2010, J. Jacobvitz)