seal of the bankruptcy court
cir 3
In Re: Schaefer Salt Recovery, Inc., 06-4574 [Sept. 9, 2008]
Petitioner accused of deliberately filing frivolous petition to forestall foreclosure; bankruptcy court’s denial of sanctions and reconsideration is vacated and remanded. Reasoning: The bankruptcy court is a unit of the district court and therefore comes within the scope of sec. 451 – hence it had plenary authority to impose sanctions under 28 U.S.C. 1927.
cir 5
In the Matter of Soza, 06-21004 [Sept. 12, 2008]
Bankruptcy court’s decision to exempt an annuity, purchased a day prior to filing, from the debtor’s estate is reversed and remanded because 1) its purchase was not an intentional fraud but to decide whether the state-law based exemption should apply a lower standard should have been applied by the court; and 2) several “badges of fraud” were evident in the purchase so under a “totality of circumstances” test the transaction represented a payment made in fraud of a creditor.
cir 7
In Re: Willett, 07-1850 [Sept, 12, 2008]
Grant of debtor’s sec. 522 motion to avoid a lien on their residence is reversed and remanded because, for purposes of ruling on such a motion, the bankruptcy court should have valued the ch. 13 debtor’s interest in the real property as of the date that their interest became part of the bankruptcy estate.
cir 8
In re: M & S Grading, Inc., 07-3909 [September 09, 2008]
In a case arising out of the bankruptcy of an excavation company that participated in employee-benefit plans wherein the plans and their trustees claimed that debtor’s bankruptcy trustee improperly made payments to a bank instead of the plans, various rulings are affirmed where: 1) unpaid contributions owed to the plans were not employee contributions because the contributions were not withheld from employees’ paychecks; 2) thus, the unpaid contributions remained corporate assets and did not become assets of the plan; 3) trustee’s failure to assert a claim against the bank was justified and the district court did not abuse its discretion in denying plans’ motion to commence litigation against the bank; 4) there was no abuse of discretion in not granting an equitable subordination claim; and 5) plans’ motion for removal of the bankruptcy trustee was properly denied without a hearing.
cir 10
In re: Sandoval, 07-5165 [Sept. 11, 2008]
In the context of bankruptcy law, sec. 523(a)(7) does not render non-dischargeable a debt incurred by a debtor who has guaranteed a bail bondsman to make the bondsman whole in the event a criminal defendant jumps bail.
Categories: 28 U.S.C. 1927 · 451 · 522 · 523 · ED · IL · ND · case update · ch 13 · ch 7 · cir 10 · cir 3 · cir 5 · cir 7 · cir 8 · consumer · current-events · individual
7th Cir
Freeland Enodis Corp., 06-4178 [Sep. 2, 2008]
In ruling on multiple appeals arising out of bankruptcy Court holds that plaintiff trustee may avoid certain transfers by the debtor as fraudulent, but further findings are required with respect to the solvency of the debtor afterward (i.e. did the transfers render the debtor insolvent). Accordingly, summary judgment for trustee on the 547 and 548 claims is reversed and the matter is remanded for further findings on the trustee’s claims that the transferee entity was merely an ‘alter ego’ of the debtor.
8th Cir
Milavetz, Gallop & Milavetz v. US, 07-2405 [Sep. 4, 2008]
In a case challenging application of the BAPCPA, summary judgment for the plaintiff is affirmed in part and reversed in part where the Court found that while attorneys providing bankruptcy assistance are “debt relief agencies” under the BAPCPA, 526(a)(4) is unconstitutional as applied to them; nonetheless 528(a)(4) and (b)(2) are constitutional so the result is to restore the effect of the amended law (at least in part).
9th Cir
Burkhart v. Coleman, 06-15411 [Sep. 4, 2008]
In an action to quiet title, rulings that federal bankruptcy law does not preempt California protection of bona fide purchasers and that unauthorized post-bankruptcy sale of real property causes title to rest with the purchaser, not the bankruptcy estate, are affirmed where: 1) the bankruptcy estate failed to record title in the property; and 2) a bona fide purchaser bought and recorded title in the property.
Categories: BAPCPA · CA · IL · bad faith · bankruptcy · business filings · ch 11 · ch 13 · ch 7 · cir 7 · cir 8 · cir 9 · consumer · creditor · current affairs · current-events · debt relief agency · fraudulent transfers · individual · liability · opinion · research
3rd cir
Windt v. Qwest Communications, 06-4662, 06-4808 [June 10, 2008]
In a lawsuit brought by bankruptcy trustees of a Dutch company asserting various claims against defendants who were allegedly responsible for the company’s insolvency, judgment dismissing trustee-plaintiff’s complaint on forum non-conveniens grounds is affirmed where the district court did not abuse its discretion in: 1) affording low deference to plaintiffs’ choice of forum in view of Netherlands’ substantial interest in resolving a dispute concerning alleged mismanagement of a Dutch company by board members and officers of that Dutch company; 2) concluding that avoiding problems in the application of foreign law favored dismissal; 3) balancing the public and private interest factors implicated in the case; and 4) determining that the convenience of litigating the dispute in New Jersey was outweighed by the oppressive or vexatious effect on defendants.
8th cir
US v. Mitchell, 07-3136 [June 10, 2008]
Conviction upon defendant’s retrial for knowingly and fraudulently making a false statement under penalty of perjury in a bankruptcy case is affirmed where the circuit court declines to revisit a double jeopardy issue, and there was sufficient evidence to sustain his conviction.
ND IL ED
In re Weadley, 06-1854
Bibby Financial v. Weadley, 07-683
Issued June 11, 2008
Judge A. Benjamin Goldgar
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Cir 7 May 15, 2008
In re: Resource Tech. Corp., No. 07-1879
In a bankruptcy proceeding in which plaintiffs sought to be assigned a contract bankruptcy debtor had with a third party, bankruptcy court’s denial of a motion to compel the trustee to assume the contract and then assign it is affirmed where: 1) the court did not improperly consider whether the contract between the debtor and the third party had expired in order to determine if the trustee could assume the contract without being subject to sanctions under Rule 9011; 2) orders extending the time for the trustee to assume or reject the contract were not a basis to contend that the contract had not expired; 3) third party was not estopped from asserting that the contract had expired; and 4) there was no need for an evidentiary hearing to determine whether the contract had expired.
Cir 8 May 13, 2008
Tri-State Fin., LLC v. Lovald, No. 07-2430, 07-2433
In consolidated bankruptcy proceedings wherein the bankruptcy court denied a motion seeking recusal of the bankruptcy judge, approved a settlement negotiation, denied a motion for hearing on the settlement, and approved an award of attorneys’ fees, judgment is affirmed where: 1) the recusal motion was made untimely; 2) upon reviewing the totality of the circumstances, the bankruptcy court did not abuse its discretion in approving the settlement agreement or denying the motion for settlement hearing; and 3) because the fee award was only challenged on the basis of a conflict and not contested as to whether the amount was reasonable, the court did not abuse its discretion in its award of attorneys’ fees.
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Cir 8 May 14, 2008
In re: M & S Grading, Inc.,, No. 07-2434
In an appeal following a bankruptcy court’s denial of a motion to require a Chapter 7 bankruptcy trustee to show cause why he should not be found in contempt for failing to pay contributions ordered while the debtor’s case was in Chapter 11, the appeal is dismissed for lack of jurisdiction where: 1) the bankruptcy court’s order denying a motion to show cause was not a final appealable order; and 2) the order did not qualify as a collateral order, for purposes of the collateral order doctrine.
Categories: case update · cir 7 · cir 8 · opinion · research
