Lots O' Cases (in honor of St. Patrick's day a week ago)

Failure to show adequate exigent circumstances results in dismissal

Dixon v. LaBarge (In re. Dixon), 2006 Bankr. LEXIS 196 (8th Cir. B.A.P. Feb. 17, 2006)

Debtor submitted certification failing to certify exigent circumstances that would merit statutory waiver of pre-filing briefing requirement per §109 (h)(3)(i). Case dismissal affirmed.

Failure to make proper proof of claim argument waives right to appeal.

Burnett v. Resurgent Capital Services 2006 U.S. App. LEXIS 671 (9th Cir. Jan. 12, 2006)

In response to Debtor object to proof of claim, Creditor failed to offer proof of amount. Court sustained debtor's objections. On appeal debtor stipulated to the amounts and proofs of claim, failed to direct arguments to creditor's motion to amend, and conceded resolution of other objections. Court found no exceptional circumstances to allow consideration of waived arguments and therefore reversed.

Creditor fails to call into question the correctness of lower court rationale.

Miles v. Beneficial Massachusetts, Inc. 2006 U.S. App. LEXIS 2901 (1st Cir. Feb. 7, 2006)

District court's reimposition of automatic stay was proper where creditor failed to argue the impropriety of the court's decision to reimpose the stay based on what it estimated to be a change in underlying circumstances.

In pari delicto bars trustee's RICO claims.

Miles v. Beneficial Massachusetts, Inc. 2006 U.S. App. LEXIS 2901 (1st Cir. Feb. 7, 2006)

Court dismissed trustee's complaint alleging fraud by corporate officers on shareholders. The 2 primary legal positions relied on by the Court were: (1) no sttate (Georgia) provisions for "aiding and abetting" as a form of breach of fiduciary duty; and (2) doctrine of pari delicto bars RICO claims.

Patent infringement claim reversed.

Hazelquist v. Guchi Moochie Tackle Co., 2006 U.S. App. LEXIS 3101 (U.S. App. Feb. 9, 2006)

Creditor alleged patent infringement by debtor. Court reversed dismissal of claims finding the alleged acts to have occurred following defendant's discharge in bankruptcy.

Preferential payments affirmed with modification.

G.H. Leidenheimer Baking Co., Ltd. v. Sharp 2006 U.S. App. LEXIS 2826 (5th Cir. Feb. 7, 2006).

Payments to specific supplier/creditors failed to qualify under "ordinary course of business" defense and therefore remain recoverable preferences. Creditor claims were modified and the "advance payment" defense was successfully applied instead.

Creditor not allowed to buy insurance claim.

In re Shkolnikov 2006 Bankr. LEXIS 113 (1st Cir. BAP Feb. 6, 2006).

Creditor tried to purchase debtor's insurance rights from Chapter 7 estate. Court refused to authorize sale and found no appellate standing on the part of that creditor to challenge the court's order this despite the fact that a prior court had in fact granted the creditor relief from stay and assigned the insurance rights to it.

Land sale installment contract = executory contract.

O'Brien v. Ravenswood Apartments, Ltd., 2006 Bankr. LEXIS 195 (6th Cir. B.A.P. Feb. 17, 2006)

Court denied motion to compel bankruptcy debtor to make land installment contract payments finding that to assume or reject the contract within a specified time period is improper. The court likened the land installment contract to an "executory contract" within the meaning of §365 as the seller is obligated to deliver title once all payments are made and not before.

Trustee has absolute discretion to disburse trust funds.

U.S. Bank v. United Airlines (7th Cir. Feb. 13, 2006)

State law requires that a trust agreement define the duties of a trustee. Title to trust funds passes to the beneficiary as per the terms of the trust with the trustee having complete discretion to disperse the funds.

In re Bright 1st Cir. BAP (2006)

Retroactive relief from the automatic stay is an extraordinary measure and the circumstances that justify it are likely to be "far and few between." When a creditor seeks retroactive annulment of the automatic stay, it is the creditor's burden to demonstrate that its void actions should be validated "after the fact." The creditor must show extreme circumstances, with facts both unusual and unusually compelling.The bankruptcy court did not err in retroactively annulling the stay where the debtor failed to disclose her interest in the subject property in her bankruptcy schedules, failed to inform the Court and her trustee of her claim to sale proceeds, and delayed in invoking the protection of the automatic stay.

In re Concannon 9th Cir. BAP (2006)

Bankruptcy court did not err in finding that 506(d) cannot be used in Chapter 7 to "strip down" a wholly unsecured secured claim.

In re Tippett 9th Cir. BAP (2006)

Bankruptcy court erred in finding that automatic stay rendered void debtors' unauthorized postpetition transfer of property.

Andreini & Co. v. Pony Express Delivery Servs., Inc. (02/27/06 - No.05-13824)

Summary judgment for defendant/debtor allowing it to recover a wire transfer as an avoidable preference is reversed since plaintiff, an insurance broker, was not "the initial transferee" of the wire as defined in sec. 550.