Bankruptcy Blog

Judge Halts Defendants' Bid to Avoid $116M Med-Mal Verdict

2006-10-10T07:51:00.000-07:00

ed. note: thanks to Gloria Norton of the DuPage County Bar Association for this piece

By Rebecca Riddick
Daily Business Review
10-06-2006

Even before a jury had completed its deliberations, two Tampa, Fla.-area medical practices filed for bankruptcy after they were hit with a $116.7 million malpractice verdict in favor of a quadriplegic who blamed them for his condition.

The Chapter 7 bankruptcy filings -- designed to avoid paying what attorneys called the largest medical malpractice award in state history -- temporarily halted the trial. But U.S. Bankruptcy Judge Paul Glenn took the unusual action of setting aside the defendants' petitions so the Hillsborough, Fla., circuit court jury could finish its work.

After the jurors reconvened Tuesday afternoon, they deliberated for three hours and returned a $100.1 million punitive damages verdict.

On Sept. 29, the Tampa jury reached a compensatory verdict that awarded 50-year-old Tampa resident Allan Navarro a total of $15.6 million for past and future medical bills, $616,000 for lost wages in the past and future, and $46.5 million for past and future pain and suffering. His wife was awarded $52.5 million for loss of her husband's services, comfort, society and attentions. Navarro's son, Scottie, was awarded $1.5 million for loss of his father's services, comfort, companionship and society.

Navarro was paralyzed after physician's assistant Mark Herranz, who attorneys said failed his state licensing test four times, and Dr. Michael Austin failed to realize he was experiencing a stroke when they treated him at Tampa's University Community Hospital-Carrollwood in 2000. Navarro was diagnosed with sinusitis and sent home.

According to his attorney, Jeffrey Goodis of Thompson Goodis Thompson Groseclose & Richardson in St. Petersburg, Austin does have medical malpractice insurance. He referred all other inquiries to the insurer, ProNational Insurance Co., in Birmingham, Ala. Company spokesman Frank O'Neil declined to comment.

Carrollwood Emergency Physicians and Franklin Favata & Hulls, Herranz's and Austin's employers, were also named defendants. Carrollwood Emergency Physicians and FF&H were represented by Brian Stokes of the Unger Law Group in Orlando. Herranz died less than a year ago and according to Navarro spokesman Paul Abercrombie, was also represented by Stokes.

As of late afternoon Tuesday, the Daily Business Review did not know whether Carrollwood Emergency Physicians, FF&H or Herranz had medical malpractice insurance coverage.

The verdict is the largest medical malpractice verdict in state history according to Navarro's attorney, Steve Yerrid of The Yerrid Firm in Tampa. Navarro was also represented by Richard Gilbert and David Dickey of the de la Parte and Gilbert Law Firm.

Dickey attributed the large verdict to multiple factors, including the age of Navarro's young child and the number of plaintiffs.

The case was filed in 2002 before caps were put in place by the Florida Legislature on noneconomic damages.

Late Monday night, Carrollwood Emergency Physicians and its affiliated group, Franklin Favata & Hulls, filed for Chapter 7 bankruptcy, interrupting the punitive damages portion of the case. The jury deliberations were temporarily halted while attorneys for Navarro argued the bankruptcy cases should be put on hold.

In its filing to the U.S. Bankruptcy Court of the Middle District of Florida, Carrollwood Emergency Physicians estimated its assets to be between $1 and $50,000, while it had over $100 million in debts.

In a response to the bankruptcy filing, plaintiffs attorneys alleged in bankruptcy court that the timing may have been intended to delay the punitive damages portion of the trial.

SYMPTOMS DESCRIBED

On Aug. 9, 2000, Navarro, who was a professional basketball player in his native Philippines, entered University Community Hospital-Carrollwood with a headache, nausea, dizziness, confusion and double vision. He described a personal medical history of hypertension, diabetes and elevated cholesterol plus a family history of strokes to the triage nurse. A different nurse than the triage nurse also noted he was unsteady on his feet.

When Navarro spoke with Herranz in the examination room, he mentioned the sudden onset of a headache earlier that day and that he had felt a "pop" in his head.

According to the 2005 second amended complaint, Herranz did not complete an adequate medical history of Narvarro, nor did he do a complete or adequate neurological exam.

Navarro spent about 5 1/2 hours at UCH-Carrollwood, during which time he had two CT scans of his brain and was diagnosed with "sinusitis/headache" by Austin, prescribed Vicodin for the pain and an antibiotic by the doctor and sent home. He was not told to watch for any stroke symptoms.

The suit alleged that Navarro presented classic stroke symptoms that Austin should have noticed. It further said that CT scans are not adequate diagnostic tools for ruling out the type of stroke Navarro had.

Early the next morning, Navarro woke with a severe headache, slurred speech, nausea, confusion and trouble walking. He was readmitted to the UCH-Carrollwood Emergency Room at 6:05 a.m. Upon his return, he was labeled "urgent," but doctors still had not diagnosed a stroke. It wasn't until he was transferred to Carrollwood's sister hospital, UCH-Fletcher, that afternoon that surgery was finally performed. By then, the stroke had already left him paralyzed with mental disabilities. During surgery, he slipped into a four-month coma. He is now confined to a wheelchair.

Goodis, Austin's attorney, said it was too soon to know what the defense's next move will be.

The Sept. 29 verdict held each Austin and Herranz 25 percent responsible and two physician groups -- Franklin Favata & Hulls and Carrollwood Emergency Physicians -- accountable for the remaining 50 percent.

Judge Halts Defendants' Bid to Avoid $116M Med-Mal Verdict

UST Audits coming this month (October)

2006-10-06T13:45:00.000-07:00

Jonathan C. Becker, Attorney at Law

Lawrence, Kansas

Effective October 17 per BAPCPA §603 at least 1 of every 250 cases will be audited. Notification letters will be sent by the UST. Recipients will have 21 days to produce the 4 categories of required documents:

(1) 6-months of payment advices

(2) 6-12 months of bank statements

(3) divorce decree

(4) packet of documents such as 2-4 years of tax returns, titles to property, deeds, etc.

The audit will result in one of 3 outcomes:

audit complete, no discrepancy: UST will not interfere with discharge

audit complete, discrepancy: UST may move to deny discharge

audit incomplete: UST will move to deny discharge

Said Mr. Becker, "a lot of attorneys are going to get caught by this. It may also result in disgorgement motions"

2006-10-05T08:47:00.000-07:00

In re Ellis, 339 B.R. 136 (Bkrtcy.E.D.Pa. 2006) DIANE WEISS SIGMUND, Chief Judge §§362(c)(3)(C)(i) and (ii) Debtor's motion to extend the automatic stay brought timely with 30 days of filing petition was denied on grounds of bad faith where debtor could not demonstrate change of circumstances from previous dismissed case. In re Virissimo, 332 B.R. 201 (Bkrtcy.Nev. 2006) LINDA B. RIEGLE, Bankruptcy Judge § 522(p) 11 U.S.C. § 522(p) is applicable even though Nevada does not allow the choice of federal exemptions. Because the debtors acquired their homes within the 1215 days before the filing they are limited to the $125,000 homestead set forth in that § notwithstanding the fact that the Nevada homestead is higher. In re Warneck, 336 B.R. 181 (Bankr. S.D.N.Y., 2006) CECELIA G. MORRIS, Bankruptcy Judge §362(c)(3)(C)(ii) The court found the second filing was in good faith as to all creditors where: - The Debtors' Second Filing was dismissed for failure to make payments pursuant to a proposed plan of reorganization that had not yet been confirmed, the provision in Section 362(c)(3)(C)(i)(II)(cc) - failure to "perform the terms of a plan confirmed by the court" - does not apply. - There is no evidence that the Debtors failed to file or amend their petition, or other documents in the Second Filing. There is also no record in the Second Filing of any motion to lift the automatic stay, and no evidence that the Debtors failed to provide court-ordered adequate protection to any party. - The Debtors have filed affidavits from their daughter, Amy Wade, and son-in-law, William Wade, stating that they are willing and able to fund the Debtors' plan in the amount necessary to complete a Chapter 13 plan. In re Ziolkowski 338 B.R. 543 (Bkrtcy.Conn. 2006) LORRAINE MURPHY WEIL, Bankruptcy Judge. § 362(c)(3) Debtor had a previous case that had been dismissed within a year of filing the seocnd case. The debtor's attorney filed a motion pursuant to § 362(c)(3)(B) prior to the expiration of the 30-day deadline in which hearing must be held. However, the attorney relied on the court clerk to calendar the actual hearing within the 30-day period. Clerk actually set the hearing at a date beyone the 30-day deadline. Court held error in relying on clerk was not sufficient grounds to order an extension of the stay. Motion was denied. "However, to say that the Clerk's Office should have scheduled the Motion for a hearing to be held prior to the Hearing Deadline is not dispositive here. The Debtors were the movants and it was their ultimate burden to insure that the Motion was timely scheduled. When the Notice of Hearing was not issued timely (i.e., within three days), it was incumbent on the Debtors' counsel to take action. A telephone call to the Clerk's Office probably would have produced the necessary corrective action."

attorneys say new law is not steering people to chapter 13-they expect resurgence in activity

2006-10-05T08:45:00.000-07:00

By ALAN WECHSLER, Business writer September 30, 2006 Almost a year after the U.S. Bankruptcy Law changed, the number of filings so far this year is little more than a third of the number filed in the same period in 2005. Lawyers acknowledge that the rules -- -- have kept some people from filing. But they say the rules aren't doing what they were supposed to, and they expect the numbers to pick up again in future. For instance, some lawyers say they are filing more Chapter 7s than Chapter 13s, though the new rules were supposed to encourage more Chapter 13s.

Mark J. Hodges v. CIT Group, 06 A 683

2006-10-04T15:52:00.000-07:00

Court: Northern District of Illinois

Division: Eastern

Judge: A. Benjamin Goldgar

BK Caption: In re Mark J. Hodges

BK No.: 05 B 62676 Adversary Opinion Issued: October 4, 2006

First Equity Card Corp. v. Kleit, 05 A 1982

2006-09-29T04:28:00.000-07:00

Issued: September 28, 2006 Judge: A. Benjamin Goldgar

Court: Northern District of Illinois

Division: Eastern

Estate v. Marcet, 05 A 00488

2006-09-27T15:49:00.000-07:00

Issued: September 26, 2006 Judge: John H. Squires Court: Northern District (Illinois)

anti-cramdown provision under BAPCPA §1325(a)

2006-09-26T12:12:00.000-07:00

entire sum loanedt for purchase of car + extended service contract is s protected by anti-cramdown provision of the code -- not just amount used to purchase vehicle itself

"TILL" formula formula governs interest paid to secured creditor (prime rate+risk factor)

In re Murray, 346 B.R. 237 (Bkrtcy.M.D.Ga. 2006) Creditor loaned money to debtors to purchase motor vehicle and pay for extended service contract. At time of filing the vehicle was valued at $8,612; balance owed to creditor was $10,498. Debtor's chapter 13 plan proposed cram-down, arguing that because the debt included the price of a service contract it was not a PMSI used for the purchase of a vehicle. Court held the hanging paragraph protects all of a loan secured only on a motor vehicle even if a portion was used for a service contract. Court also held that a PMSI falling within § 1325(a)(*) is a secured claim under § 506 and entitled to interest using the Till formula, notwithstanding language providing that sectiion 506 does not apply to a PMSI falling within 1325(a)(*).

BAPCPA: Court may not enlarge time limitations to meet new requirements

2006-09-26T11:28:00.000-07:00

Bankruptcy Court lacks discretion to enlarge the time limits under BAPCPA § 521(a)(1)(B)(iv)

In re Ott, 343 B.R. 264 (Bkrtcy.D.Colo. 2006) Debtor filed chapter 7 two days after effective date of BAPCPA. Debtor failed to file required "payment advices" (paystubs or other evidence of income) as required under BAPCPA per § 521(a)(1)(B)(iv) within 45 days of filing the petition as required under § 521(i). Debtor's counsel informed court he may have inadvertently failed to inform debtors that pay stubs had to be filed by a certain date. Case was dismissed automatically on the 46th day. Debtors moved for relief from judgment based on counsel's confusion over the filing requirements of BAPCPA. The court, observing that by passing BAPCPA Congress viewed debtors "as the moral equivalent of shoplifters" reluctantly held that the court had no discretion to retroactively extend the 45-day deadline. Citing Judge Keith Lundin's treatise on Chapter 13, the court observed that the dismissal is automatic and requires no order by the court. "BAPCPA is a complex and extensive statute that is, at times, unforgiving to debtors and to their counsel. Snares and traps are present throughout BAPCPA for unwary debtors. By the design of Congress, the Court is not in a position to extricate counsel and debtors from these perils."

BAPCPA cap on homestead exemption

2006-09-26T10:39:00.000-07:00

combined cap on homestead exemption + 'safe harbor' cannot exceed state homestead exemption

In re Summers, 344 B.R. 108 (Bkrtcy.D.Ariz. 2006) Where debtors acquired home within 1,215 days before filing petition but part of the purchase price came from sale of a previous homestead acquired earlier than 1,215 days before filing, debtors argued that the "safe harbor" provision of §522(p)(2)(B) provided that the $125,000 cap does not apply any of the equity in their home. The court disagreed, saying the Code puts a cap of $125,000 in equity on the home purchased within 1,215 days before the filing, including the equity that came from the sale of a home purchased beyond that period, but the combined exemption could not exceed the $150,000 homestead exemption provided under Arizona law. In doing so the Court distinguished the contrary outcome in the case of In re Wayrynen because the Florida homestead exemption is unlimited.

In re Bufford, 343 B.R. 827 (Bkrtcy.N.D.Tex. 2006)

2006-09-25T15:54:00.000-07:00

Creditor holding PMSI in debtor's vehicle remains secured and entitled to "till" rate of interest under §506 SEE: BAPCPA §§ 1325(a)(5), 101(37), 502, 506) Debtor's proposed chapter 13 plan assumed that since car loan was a PMSI acquired for personal use within 910 days of filing petition, the debt could not be deemed a "secured claim" under § 506 and hence was entitled to interest of only 6.5%, while creditor argued that anti-cramdown provision also prevented modifying their secured status and prevented modification of the contractual interest rate of 17.9%. The court ruled that although the anti-cramdown language of § 1325(a) does not remove the claim from its secured status because secured status is determined by § 502, not § 506, and the anti-cramdown language protects the PMSI from cramdown, it does not prevent modification of the interest rate. Court ruled with the weight of authority that the interest rate is the "formula rate" provided by Supreme Court in Till v. SCS Credit Corp., 124 S.Ct. 1951 (2004); "The formula rate begins with the national prime rate and adjusts upward based on several factors, including the 'circumstances of the estate, the nature of the security, and the duration and feasibility of the plan.'" The court cited cases holding that the Till rate applies to "910" claims, including: In re Pryor 341 B.R. 648 (Bkrtcy.C.D.Il. 2006); In re DeSardi, 340 B.R. 790 (Bkrtcy.D.D.Tex. 2006); In re Brown, 339 B.R. 822 (Bkrtcy.S.D.Ga. 2006); In re Fleming, 339 B.R. 716 (Bkrtcy.E.D.Mo. 2006); In re Wright, 338 B.R. 917 (Bkrtcy.M.D.Ala. 2006); In re Robinson, 338 B.R. 70 (Bkrtcy.W.D.Mo. 2006); In re Johnson, 337 B.R. 269 (Bkrtcy.M.D.N.C. 2006).

In re Racette, 343 B.R. 200 (Bkrtcy.E.D.Wis. 2006)

2006-09-25T15:51:00.000-07:00

Court denies motion to strike prior filing dismissed for failure to satisfy pre-filing counseling requirement SEE BAPCPA §§109(h), 362(e)(3) Debtors filed prior chapter13 that was dismissed for failure to do credit counseling. They then filed a subsequent chapter 13 and moved for an order "striking" the prior and not "dismissing" it, in order to avoid the effect of a prior on the automatic stay, and to avoid negative consequences in seeking refinance of a mortgage. The court gave a litany of reasons why a prior case should not be deemed a mere "nullity" to be "stricken," including, would the filing fee and trustee's fees have to be refunded? Was the automatic stay in prior case a nullity, thus causing confusion on part of creditors? "The debtors' concerns to not outweigh all the mischief that could be inflicted on creditors, trustees and courts by adopting a policy of striking the petitions of ineligible debtors." The court cited as authority cases holding the same, including In re Taylor, __ B.R. __ (Bkrtcy.N.D.Cal. 2006); In re Tomco, 339 B.R. 145 (Bkrtcy.W.D.Pa. 2006); In re Ross, 338 B.R. 134 (Bkrtcy.N.D.Ga. 2006).

Universal Serv. Admin. Co. v. Post-Confirmation Committee of Unsecured Creditors of Incomnet Communications Corp. (09/20/06 - No. 03-56736)

2006-09-25T15:50:00.000-07:00

A decision by the bankruptcy appellate panel, holding that a non-profit corporation incorporated to collect, pool, and disburse the universal service support funds contributed by telecommunications carriers (USAC) was a transferee under 11 U.S.C. sections 547 and 550, is affirmed where USAC had "dominion" over a bankruptcy debtor's universal service support contributions and was therefore a transferee under section 550(a)(1).

In Re: Robert E. Harris (09/18/06 - No. 04-2164)

2006-09-25T15:48:00.000-07:00

Dismissal of debtor's appeal from orders of the bankruptcy court is vacated where the district court abused its discretion under Federal Rule of Bankruptcy Procedure 8001 when it dismissed based on debtor's failure to include in the designation of record on appeal a transcript of a bankruptcy hearing without first giving the debtor notice and opportunity to respond and without determining whether a lesser sanction would have been appropriate.

In re James J. Kelly (04 B 46826)

2006-09-21T21:47:00.000-07:00

Issued: September 20, 2006

Judge: John H. Squires

Bankruptcy Court: Northern District of Illinois

Division: Eastern

Unintended BAPCPA consequences

2006-09-20T09:11:00.001-07:00

John CaherNew York Law JournalSeptember 20, 2006

A Northern District of New York bankruptcy judge has refused to bail out Congress for an apparent drafting glitch in the new bankruptcy law that frequently results in creditors getting less under the "reform" measure than they got under the old version -- even though the clear intent of lawmakers and the president was to aid creditors. Chief Bankruptcy Judge Stephen D. Gerling in In re Rotunda, 06-60054, broke with the majority of his colleagues who have considered the same issue and said that if Congress is determined to replace judicial discretion with formulaic mandates, it can deal with the seemingly absurd results. "To allow a debtor with income above the state median to provide for zero payments to unsecured creditors in a chapter 13 plan ... when ... there remains sufficient funds to pay even a minimal dividend to them is contrary to the approach taken by this Court for over 20 years in considering chapter 13 plans," wrote Gerling of Utica. "Yet ... it is not for the Court to second guess Congress despite the fact that the statute, as written, may result in a confirmed plan that is contrary to the view expressed by President Bush." Gerling's decision is rooted in the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005.

In re Farrar-Johnson and Nelson, 06-3089

2006-09-18T20:33:00.000-07:00

Issued September 15, 2006

Bankruptcy Court Northern District of Illinois

Division Eastern

Judge A. Benjamin Goldgar

2006-09-18T15:51:00.000-07:00

5th Circuit

Margolies v. Deason (09/11/06 - No. 05-10928)

Dismissal, as time-barred, of all claims brought by certain shareholders of a company, relating to defendant's alleged self-dealing and fraud, which resulted in the collapse of the company, is reversed in part where the district court improperly concluded on summary judgment that a reasonable plaintiff should have known that transactions sufficiently raised the specter of fraud as to place him on inquiry notice.

9th Circuit

Hebbring v. U.S. Trustee (09/11/06 - No. 04-16539)

The Bankruptcy Code does not, per se, disallow voluntary contributions to a retirement plan as a reasonably necessary expense in calculating a debtor's disposable income, but rather requires courts to examine the totality of the debtor’s circumstances on a case-by-case basis to determine whether retirement contributions are a reasonably necessary expense for that debtor.

Federal Circuit (09/11/06 - No. 806)

In a case involving a suit, purportedly under the Tucker Act, by a former bankruptcy judge alleging that the denial of his reappointment as a bankruptcy judge was in violation of his due process rights and certain regulations, the government's petition for a writ of mandamus from certain rulings of the Court of Federal Claims is granted where the court should not have exercised jurisdiction over the suit and the requirements for the writ of mandamus were met.

Cases ahoy

2006-09-11T03:19:00.000-07:00

2nd Circuit Liberte Capital Group, LLC v. Capwill (09/05/06 - No. 05-3510) An order finding insurers in contempt of court for violations of previously issued injunctions in a receivership case over the assets of former viatical settlement companies and their trustees is affirmed where there was no abuse of discretion in the order since a Delaware suit violated prior district court orders, and the inclusion of a party was solely for the improper purpose of defeating diversity. 7th Circuit In Re: Globe Building Materials (09/08/06 - No. 05-3738) Summary judgment for bankruptcy trustee in a suit by the State of Wisconsin to enforce a wage lien on the bankrupt company's assets after a liquidation sale had occurred is affirmed where the lien was avoidable since the state statute did not create a right of enforcement against a bona fide purchase"

Judge Black' s New Standing Orders

2006-09-08T10:48:00.000-07:00

New Standing Order 17 New Standing Order 18

In re Fink, 05 B 42371/Baccala Realty v. Fink, 06 A 00903

2006-09-07T10:00:00.000-07:00

Issued: September 5, 2006
Judge: John H. Squires

2006-09-07T09:04:00.000-07:00

1st Circuit

Pratt v. General Motors Acceptance Corp. (09/01/06 - No. 05-2453)
Judgment that car financing company did not violate a chapter 7 discharge injunction by declining to discharge its lien on the debtors' automobile until they paid the remaining balance due on their pre-petition car loan is reversed where the facts of the case rendered the company's refusal to release its lien objectively coercive in violation of federal bankruptcy law.

3rd Circuit
In re: Scarborough (08/28/06 - No. 04-4298)
In the context of the anti-modification protection afforded in Chapter 13 bankruptcy proceedings by 11 U.S.C. section 1322(b)(2), a mortgage secured by property that includes, in addition to a debtor’s principal residence, other income-producing rental property is secured by real property other than the debtor’s principal residence, and, thus, modification of the mortgage is permitted.

8th Circuit
Neal v. Kansas City Star (08/29/06 - No. 06-1878)
A bankruptcy court judgment sealing a former municipal judge's creditor list is reversed where: 1) the list was not "scandalous" pursuant to section 107(b)(2); and 2) the list was not a "governmental matter made confidential by statute or regulation" and thus, the bankruptcy court abused its discretion in relying on Fed. R. Bank. P. 9018 to seal the list of creditors.

In re Aura, Inc., 06-01853

2006-09-07T06:09:00.000-07:00

Issued: 9/1/2006 Judge: Eugene R. Wedoff

2006-09-04T07:45:00.000-07:00

1st Circuit

Dahar v. Jackson (08/18/06 - No. 05-2702)

Judgment setting aside certain property transfers made to defendant in a bankruptcy action is affirmed where the transfers were constructively fraudulent.

2nd Circuit In re: Layo v. First Nat'l Bank of N. NY (08/15/06 - No. 04-0369) Reversal of bankruptcy court decision and finding that a confirmed Chapter 13 bankruptcy plan is res judicata preventing a debtor from avoiding a mortgage on his property where the mortgage lien, which had been recorded in the land records, was identified in the Chapter 13 plan, is affirmed where the Trustee had both a motive and opportunity to confirm the status of real estate liens affecting the debtor's estate at or before the time that the plan was confirmed. 7th Circuit Black v. Educ. Credit Mgmt. Corp. (08/16/06 - No. 05-1102) Claim for collection costs associated with student loans and computed according to Department of Education regulation 34 C.F.R. section 682.410(b)(2) is allowed to continue where the regulation was neither arbitrary nor capricious. 9th Circuit Unified W. Grocers, Inc. v. Twin City Fire Ins. Co. (08/14/06 - No. 05-15986) Summary judgment for an insurance company in a coverage dispute is reversed where: 1) the district court erred in finding no genuine issue as to whether there was a covered claim that was not inseparable from allegations of willful conduct; 2) a genuine issue of material fact remained as to the extent that an underlying complaint sought restitution of money wrongfully acquired by the insured; and 3) the district court erred in holding that an exclusion precluded coverage for an officer.

In re Charles and Dolores Rey, 04 B 35040

2006-08-24T15:51:00.000-07:00

Consolidated: with case ## 04-22548 and 06-4487

Issued: August 21, 2006

Judge: A. Benjamin Goldgar

non-self-calculating chapter 13 plan

2006-08-22T14:03:00.000-07:00

self-calculating chapter 13 plan

2006-08-22T13:57:00.000-07:00

In re Turnbull, 03 B 50383

2006-08-22T13:29:00.000-07:00

Issued August 11, 2006 Judge Jack B. Schmetterer

2006-08-21T10:32:00.000-07:00

Thank you Gloria Norton -- ed.

By Elizabeth Bennett
Delaware Law Weekly
08-21-2006

In a decision that could have far-reaching implications if more large American companies file for bankruptcy, the 3rd U.S. Circuit Court of Appeals ruled that multiple pension plans should be considered in the aggregate for purposes of reorganization under Chapter 11.

Circuit Judge Marjorie O. Rendell wrote the 41-page opinion for In re Kaiser Aluminum Corp. after arguments were heard in April by Rendell, Judge D. Brooks Smith, and Senior Judge Ruggero J. Aldisert. The opinion was entered July 26.

"The instant case raises a question of first impression among the courts of appeal: When a Chapter 11 debtor seeks to terminate multiple pension plans simultaneously under the reorganization test, should a court apply the test to each plan independently, or to all of the plans in the aggregate?" Rendell wrote.

The opinion proceeded to consider the arguments of the appellant, Pension Benefit Guaranty Corp., a federal corporation set up in the 1970s to cover failed pension plans. The court concluded that, in the absence of instructions from the U.S. Congress on the matter, to consider the plans in aggregate is the most logical, equitable method.

"I think it’s a pretty significant precedent," said Gregory M. Gordon, a partner with Jones Day in Dallas and lead attorney for Kaiser. "There are industries that are in financial distress. One is the auto parts industry, as well as automakers and the like, that have multiple pension plans. This is the only case at the level of the circuit court that rules on the issue."

A spokesman for the PBGC said its lawyer declined to comment "because plan aggregation is an issue in other current PBGC cases."

In her opinion, Rendell said the court needed to examine the text of the Employee Retirement Income Security Act "for indicia of congressional intent on the issue."

Rendell noted that in every similar case identified, bankruptcy courts have applied an aggregate analysis, "apparently without protest from the PBGC."

The PBGC spokesman took care to point out that Kaiser was not the first case "in which the PBGC has asserted that pension termination should be judged plan-by-plan," adding that it had done so in a 2005 case in Hawaii bankruptcy case captioned In re Aloha Airgroup Inc., among others.

The Kaiser matter, in which the aluminum manufacturer sought to terminate six of its pension plans, was first considered by Delaware’s Bankruptcy Court in early 2004, which allowed it to proceed as part of a reorganization, the 3rd Circuit opinion said.

The PBGC appealed that decision to the U.S. District Court for the District of Delaware. In March 2005, Judge Joseph J. Farnan affirmed the bankruptcy court.

In his decision, Farnan wrote that the pertinent statute -- Section 1341 of ERISA -- does not "expressly mandate an approach to take for an employee with multiple plans, and there is no binding precedent on point," and that absent such directives he did not find the Bankruptcy Court’s conclusion clearly erroneous. According to information on PBGC’s Web site, it was created under ERISA to insure the pensions of "more than 34 million workers and retirees in nearly 29,000 private-sector defined benefit pension plans under its single-employer insurance program."

As of September 2005, PBGC had a $22.8 billion deficit for its single-employer pension insurance program. Through its appeal, according to the 3rd Circuit opinion, the PBGC was seeking to reduce its liability for Kaiser’s pension plans. It pointed out that Kaiser could maintain the four smaller plans and still meet its obligations under reorganization.

The minimum funding required for these four plans was projected to be about $12.8 million between 2004 and 2009, less than 6 percent of the estimated $230 million required to fund all of the plans, the opinion explained.

Money for these plans was not the issue. The problem was that "[i]f we adopted the PBGC’s interpretation of Section 1341, we would be concluding that Congress required courts to apply the reorganization test on a plan-by-plan basis, but provided no guidance on the mechanics of this approach, making it essentially unworkable. We will not adopt a statutory construction that leads to such an anomalous result, especially where the aggregate approach represents an alternative that is ‘neither irrational nor arbitrary,’" the opinion said, citing a 2005 3rd Circuit case, DiGiacomo v. Teamsters Pension Trust Fund of Philadelphia and Vicinity.

Among other arguments, the PBGC also said it is neither fair nor equitable to cease paying pension benefits without economic justification.

"Faced with a choice of burdening some of the participants in Kaiser’s plans and burdening them all, the PBGC contends that equity weighs in favor of the former," the 3rd Circuit opinion said. "We are not unsympathetic to this view. There is undoubtedly a tension between treating similarly situated workers alike and doing the least that is necessary for the company to emerge from bankruptcy. However, we are persuaded that, on the whole, an aggregate approach is more in line with the objectives of the Bankruptcy Code."

The court went on to explain that as an equity court, the Bankruptcy Court is obligated to find the most fair and balanced result, but to terminate a pension plan on the basis of its size would be to necessarily favor one group of workers over another.

"Without some statutory basis or other principled rationale for this result, such disparate treatment smacks of arbitrariness," Rendell wrote. "This strikes us as an unfair result, and it is one that a bankruptcy court sitting in equity should not impose absent a clear mandate from Congress."

In addition, the 3rd Circuit opinion said that applying Section 1341 on a plan-by-plan basis would simply make employee organizations more reluctant to come to the table to make the alterations to collective bargaining agreements that are often required when a company is in distress.

"This would, in turn, lead to a higher number of liquidations and, by extension, a higher number of overall plan terminations. The result would be to leave all interested parties -- the PBGC, workers, retirees and creditors -- worse off as compared to the same number of reorganizations."

Rounding up, up, up!

2006-08-13T13:05:00.000-07:00

6th Circuit In Re: Cook (08/09/06 - No. 05-6613) In an action brought by the trustee of a bankruptcy estate, a judgment holding that a bank, in recording its interest as the assignee of a mortgage, did not violate an automatic stay of any proceedings against debtors after they filed for bankruptcy is affirmed where the bank did not transfer or attempt to perfect legal title to the debtors' property, but recorded only the bank's equitable interest in the property, which did not belong to the debtors. 7th Circuit Dick v. Conseco, Inc. (08/11/06 - No. 05-4352) Summary judgment for employer in an action over the effects of bankruptcy on employee benefits for a senior officer is affirmed where the employment contract was not executory for the purposes of 11 U.S.C. section 365(e)(1), thus the early termination clause in the contract was not invalidated and ended employer's obligations upon filing for bankruptcy. 11th Circuit Daewoo Motor Am., Inc. v. General Motors Corp. (08/11/06 - No. 04-15878) Dismissal of plaintiff's claims on the ground of international comity is affirmed over claims that: 1) the district court erroneously concluded that the order of the Korean bankruptcy court that approved the reorganization of plaintiff's Korean parent company did not violate the automatic stay of plaintiff's bankruptcy; 2) the order of the Korean court was not entitled to comity; 3) even if comity was appropriate, the order of the Korean court had no effect on the claims that plaintiff raised against the defendants; and 4) the California bankruptcy court erred when it dismissed the claim for unjust enrichment with prejudice.

bada bing, bada boom, bada Roundup

2006-08-07T07:11:00.000-07:00

7th Circuit

In Re: Thomas Consolidated Indus., Inc. (07/31/06 - No. 05-2729)

Dismissal of an adversarial suit in a bankruptcy as a sanction for the bankruptcy trustee's non-compliance with discovery orders and misrepresentations to the court is affirmed where the lower courts did not abuse their discretion in dismissing the action.

8th Circuit

US Commodity Futures Trading Comm'n v. NRG Energy, Inc. (08/04/06 - No. 05-2570)

An enforcement action to enjoin defendant from future violations of the Commodity Exchange Act was not barred by defendant's discharge in bankruptcy.

California Appellate Districts

Frazier Nuts, Inc. v. American AG Credit (08/02/06 - No. F047759)

Sustaining of demurrer and granting of summary judgment in favor of defendant, secured lender of almond processor, and against plaintiff growers are reversed where the plaintiff growers' claims to the proceeds from the processor's sale of almonds are prior in dignity to defendant lender's claim based on its security interest.

In re Jill Liquidating, Inc. (05-25909)

2006-08-04T12:32:00.000-07:00

Issued July 12, 2006 Judge John H. Squires

lose your job, file chapter 7, get a job, lose your chapter 7

2006-08-02T15:26:00.000-07:00

From Law.com
Courtesy of Gloria B.K. Norton

By John Council
Texas Lawyer
08-01-2006

A recent 5th U.S. Circuit Court of Appeals decision that gets tough on debtors who file for Chapter 7 bankruptcy protection may have some unintended consequences.

In a case of first impression in the nation, the 5th Circuit found that a bankruptcy court can consider post-petition events -- particularly a debtor's changed employment status -- when deciding whether to dismiss a Chapter 7 petition.

Bankruptcy courts traditionally have looked only at debtors' financial situations as of the day they filed their petitions in determining whether debtors qualify for debt relief -- a notion the 5th Circuit is moving away from, three bankruptcy attorneys say.

But the ultimate message of the 5th Circuit's July 20 decision in Cortez, et al. v. United States Trustee may be to encourage unemployed debtors who file for Chapter 7 to stay unemployed until the bankruptcy is final.

Debtors often favor Chapter 7 bankruptcy, because it allows them to clear their debts after liquidating their assets and distributing the proceeds among creditors.

Last year, Congress tightened the filing requirements for Chapter 7 in the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. Among other things, the act requires that before filing for Chapter 7 protection, debtors must determine if they pass a means test that evaluates their finances for the six-month period prior to the filing.

The Cortez decision involves Carlos Vincente Cortez and his wife, Suzanne Hallman Cortez, who filed jointly for Chapter 7 bankruptcy protection on April 8, 2004, in a U.S. Bankruptcy Court in the Northern District of Texas. The Cortezes had owed $176,000 in secured debt on their homestead and $85,719 in unsecured debt -- most of which consisted of credit card charges -- according to the 5th Circuit opinion.

At the time of the filing, Carlos was unemployed and Suzanne worked as a registered nurse. Their monthly expenses exceeded their monthly income, which qualified them for Chapter 7 relief under pre-reform laws, according to the opinion. But four days after they filed their bankruptcy petition, Carlos was offered a position making $95,000 a year as a human resources director of a company. He accepted the job. That income made the couple's monthly income higher than their monthly expenses, the 5th Circuit wrote.

After the Cortezes provided documents related to Carlos' new employment to Chapter 7 trustee John Spicer during a creditors' meeting on May 10, 2004, the U.S. trustee, William Neary, filed a motion to dismiss their petition under 11 U.S.C. §707(b), the statute that governs bankruptcy dismissals.

Neary asserted in a motion to dismiss that the Cortezes "appear to have the means to repay a substantial portion of their debts through a Chapter 13 plan" and that it would be "substantial abuse" under §707(b) to grant the Cortezes relief under Chapter 7, according to the 5th Circuit opinion.

Chapter 13 bankruptcy allows debtors to reorganize their finances and pay off debtors over a period of years -- a plan that is less desirable to some debtors.

U.S. Bankruptcy Judge Michael Lynn of Fort Worth denied the trustee's motion to dismiss concluding that "post-petition events should not be considered in deciding whether to dismiss a case under section 707(b)."

Lynn determined that he could only consider the Cortezes' financial circumstances as they existed on the date they filed their bankruptcy petition.

U.S. District Judge John McBryde of Fort Worth reversed Lynn, holding that the language of §707(b) makes clear "that post petition events are to be taken into account in ruling" on whether to dismiss a bankruptcy petition.

The Cortezes appealed that decision to the 5th Circuit.

The 5th Circuit affirmed McBryde's decision and remanded the case to Lynn for further consideration.

The 5th Circuit, in an opinion written by Judge Carolyn Dineen King and joined by Judges Carl Stewart and James Dennis, found that §707(b) does not contain language limiting consideration of ongoing developments in a debtor's financial situation. Section 707(b) suggests that bankruptcy courts can consider subsequent developments in a debtor's financial condition -- excluding charitable contributions -- when determining whether to dismiss a Chapter 7 petition.

"Given that post-petition events should be considered up until the date of discharge, we remand this case to the district court with the instructions to return it to the bankruptcy court," King wrote.

The opinion "will tell someone who's lost a job before a bankruptcy, 'don't get a job before bankruptcy is over,' " says Behrooz Vida, a partner in Bedford's Venable & Vida who represents the Cortezes. "It's just so contradictory. That's the problem."

On remand, Vida believes his clients will still be able to qualify for Chapter 7 bankruptcy -- especially since Carlos is unemployed again, and the judge will view the Cortezes' 2-year-old case by the less strict pre-bankruptcy reform act standards.

But Vida believes Cortez will impact post-reform Chapter 7 cases filed by unemployed people, because trustees likely will move to dismiss cases in which a debtor becomes employed during the pendency of a bankruptcy.

"I would have to tell a client if you get a job, you may end up in a 13. By that I mean anyone who [should] qualify as a 7," Vida says.

Jane Limprecht, a spokesperson for the U.S. Trustee Program, declines to comment on the opinion.

MEANS TESTING

Some lawyers believe Cortez is part of an overall trend at the 5th Circuit putting the cases of debtors who pursue Chapter 7 protection through a more rigorous examination before granting them bankruptcy relief.

For example, in 2001's Zibman, et al. v. Tow, the debtors argued that proceeds from the pre-petition sale of their homestead should be protected from creditors in a Chapter 7 proceeding. Texas Property Code §41.001 gave them protection because it prevents seizure of proceeds from the sale of a homestead for six months after the sale of the property, the debtors maintained. But the 5th Circuit ruled that the debtors had to reinvest those proceeds in another homestead within that six-month period for the money to be protected.

In Cortez, the court looked forward in time to determine whether the debtors qualified for Chapter 7 protection, says Hal Lusky, a consumer bankruptcy attorney with Dallas' Lusky & Associates.

"We have always, historically, looked at bankruptcy as being a snapshot in time," Lusky says. "And the 5th Circuit has been chipping away at that pretty regularly."

Areya Pronske, an Irving consumer bankruptcy solo, says means testing -- which, under the 2005 bankruptcy reforms, requires debtors to evaluate the past six months of their finances before qualifying for Chapter 7 -- will combine with the Cortez opinion to make for rough going for some debtors.

"There's some irony here because of 707(b) and means testing," Pronske says. "They want to go back six months [with means testing], but now they want to go forward" with §707(b) analysis, she says, referring to the 5th Circuit.

"There seems to be something inherently unfair about that," Pronske says.

Trustees always inquire about debtors' employment status, says Corky Sherman, a Chapter 7 trustee in the Northern District of Texas and a partner in Dallas' Sherman & Yaquinto.

"It's a boilerplate question. But now it's an even more important question" because of Cortez, Sherman says.

But Sherman does not believe Cortez will have much of an effect on the thousands of debtors seeking Chapter 7 protection in the 5th Circuit's jurisdiction, which includes Texas, Louisiana and Mississippi.

"I would say ... a very small percentage of people are going to be unemployed for five or six months and then get a job that drastically alters their ability to get a Chapter 7 bankruptcy," Sherman says. "It just doesn't happen very often."

Carey Ebert, a Chapter 7 trustee in the Northern District of Texas who also is vice president of the National Association of Consumer Bankruptcy Attorneys, fears Cortez will lead to absurd results.

"You could win the lottery on the day after filing [and a trustee] can't look at that," Ebert says. But a person who has the good fortune of getting a job after filing could have his or her Chapter 7 petition dismissed, she says. "Isn't that ridiculous?"

technorati tags:bankruptcy, 5thcircuit, substantialabuse, BAPCPA

In re Demonica (06 B 00094)

2006-08-02T08:03:00.000-07:00

Issued July 31,2006

Judge Manuel Barbosa

2006-08-01T16:45:00.000-07:00

3rd Circuit

In re: Kaiser Aluminum Corp. (07/26/06 - No. 05-2695)

When an employer in Chapter 11 bankruptcy seeks to terminate multiple pension plans voluntarily under the "reorganization test," Congress intended the bankruptcy courts to apply the test to all of the plans in the aggregate, as opposed to each plan independently.

5th Circuit

Bridgeport Tank Trucks v. Lien Agent (07/25/06 - No. 05-41141)

Section 506(b) does not permit appellants' recovery of attorney's fees and costs, as part of their oversecured statutory materialmen's lien claims against a bankruptcy debtor's oil and gas wells.

6th Circuit

In re: Dow Corning Corp. (07/26/06 - No. 04-1608)

There is a presumption that default interest should be paid to unsecured claim holders in a solvent debtor bankruptcy case. Further, unsecured creditors can collect attorneys' fees, costs and expenses from solvent debtors where they are permitted to do so by the terms of their contract and applicable non-bankruptcy law.

7th Circuit

In re: McKinney (07/25/06 - No. 06-2538)

Appeal from the bankruptcy court is dismissed where the presumption that a procedural change is to be applied retroactively falls away when the statute making the change specifies that the statute shall not apply to pending cases.

In re Vastag (05 B 31035)

2006-07-31T11:36:00.000-07:00

Issued July 24, 2006 by Judge Jack B. Schmetterer

Fed Survey (Beige Book)

2006-07-28T11:10:00.000-07:00

FRB: Beige Book--Full report--July 26, 2006

Economy Growing but more Slowly

2006-07-28T11:08:00.000-07:00

Economy Shows Signs of Slower Growth

In re marchFirst, Inc., et al. (01-24742 )

2006-07-26T06:35:00.000-07:00

Issued: February 16, 2006 Judge: John D. Schwartz Ed. Note: It's more than a case -- I lived the adventure.

In re UAL v. U.S. Bank et al. (03 A 03927)

2006-07-25T22:00:00.000-07:00

Issued 07/21/2006 Judge Eugene R. Wedoff Underlying Bankruptcy In re UAL Corp., 02 B 48191

In re Arguin, 04 B 40369

2006-07-25T21:59:00.000-07:00

Issued July 24, 2006

Judge John H. Squires

Faster than a speeding bullet ... it's the case roundup!

2006-07-25T06:45:00.000-07:00

5th Circuit US Trustee v. Cortez (07/20/06 - No. 05-10459) Bankruptcy court should consider post-petition events in deciding whether to dismiss a case for substantial abuse under sec. 707(b). 8th Circuit Miller v. NLVK, LLC (07/21/06 - No. 05-3651) The grant of debtor's request to set aside a property transfer resulting from a foreclosure auction is reversed and remanded for the District Court to determine whether fair value was paid for the property in the first place. 11th Circuit Bank of New York v. Sunshine-Jr. Stores, Inc. (07/18/06 - No. 04-16650, 04-16651, 05-10031) Sanctions imposed by bankruptcy court on plaintiff for repeatedly refusing to obey several orders the court issued for benefit of debtor are affirmed over claims that: 1) plaintiff was not holding debtor's funds as a fiduciary and thus had no obligation to pay interest on those funds; and 2) sanctions against plaintiff were inappropriate on several grounds. Eastman Kodak Co. v. Atlanta Retail, Inc. (07/18/06 - No. 05-12327) Bankruptcy court order enjoining plaintiff from continuing to seek relief against defendant for violations of state law in another federal district court is reversed where plaintiff, as a creditor, is not barred from later bringing an action against a co-creditor based upon state law claims if, during the pendency of a bankruptcy, plaintiff creditor failed to raise such claims. DC Circuit Constellation Energy v. Fed. Energy Regulatory Comm'n (07/18/06 - No. 02-1367, 03-1285, 05-1094, 05-1154) Petitions for review of orders of the Federal Energy Regulatory Commission (FERC) arising from the bankruptcy of the California Power Exchange Corporation are denied where the Commission acted reasonably in all respects.

check out the 7th circuit case -- ouch!

2006-07-16T20:46:00.000-07:00

3rd Circuit

In re: Udell (07/10/06 - No. 05-2950)

Armed Forces code does not authorize discharge of educational obligation 5 years after debtor's departure from military service without a showing of "undue hardship" as defined in the Code.

7th Circuit

McCready v. eBay, Inc. (07/10/06 - No. 05-2450)

Dismissal of suit against eBay was affirmed and order to show cause was issued where: 1) plaintiff's claims were meritless; 2) plaintiff failed to state a claim for rescission; 3) court did not have jurisdiction over state law claims; and 4) plaintiff abused judicial process with frivolous litigation.

California Appellate Districts

Gottlieb v. Kest (07/10/06 - No. B178729)

Summary judgment for defendant based on judicial estoppel reversed where bankruptcy court did not adopt or accept the finding that the plaintiff failed to list certain claims as assets, eliminating any threat to judicial integrity. Judgment against plaintiff based on collateral estoppel is reversed where there was no privity, as plaintiff's interests in defending the cross-complaint differed significantly from the interests of his companies.

Rounding up, up, up!

2006-07-09T11:32:00.000-07:00

6th Circuit Lowenbraun v. Canary (07/06/06 - No. 05-6032) In a suit alleging libel, slander, and related claims brought against defendant, counsel hired by a bankruptcy trustee to investigate certain transfers from a bankrupt husband to his wife pursuant to their legal separation, judgment for defendant is affirmed where: 1) there was no error in denying a motion to abstain; 2) plaintiff's failure to offer evidence supporting allegation that defendant's actions were prompted by improper motives was insufficient to undermine the application of the Barton doctrine; and 3) defendant was entitled to immunity for both his judicial and extrajudicial statements. 7th Circuit Cannon-Stokes v. Potter (07/05/06 - No. 05-4605) Summary judgment for defendant U.S. Postal Service in a suit under the Rehabilitation Act is affirmed where plaintiff's denial of an identical administrative claim in bankruptcy proceedings triggered judicial estoppel of the current suit. United Air Lines v. HSBC Bank USA (07/06/06 - No. 05-1459) Bankruptcy court ruling that an agreement between United Air Lines and the City of Denver for the financing and operation of newly constructed facilities at the Denver airport was not severable and constituted a lease is affirmed where: 1) the contract was an inherently integrated bargain on its face; and 2) United conceded that the indivisible whole of the agreement constituted a true lease.

More Rounding Up Found Here

2006-07-06T07:53:00.000-07:00

In re Delta Air Lines, 2006 Bankr. LEXIS 554 (Bankr. S.D.N.Y. March. 23, 2006) Court denies setoff against prepetition claim From Weil, Gotshalk & Manges Bankruptcy Bulletin June 2006 HELD: lessor's claims against Delta (debtor) under 365(g) and 502(g) could not be offset against its obligations to the estate because under state law those credits were not a prepetition debt owed to the debtor -- and even if the credits could be considered a prepetition debt they still could not be offset against lessor's damage claim. the court concluded that the damage claim did not “arise before the commencement of the case under state law“ and therefore the code did not provide that it should be effective in bankruptcy. UPSHOT: the code does not create a right of setoff under state law but simply preserves setoff rights that already exist. ___________________ Ajaka v. Brooksamerica Mortgage Corp. (06/29/06 - No. 05-12105) (11th Cir.) Summary judgment for defendants in suit claiming violations of Truth in Lending Act is reversed where there is a question of material fact. Bracewell v. Kelley (06/30/06 - No. 05-11951) (11th Cir.) Exclusion of a federal payment for crop loss from a bankruptcy estate when the loss occurred before the creation of the estate, but the law creating the right to the payment was enacted afterwards, is affirmed where: 1) there was no legal or equitable right to the payment at the moment of creation; and 2) the assistance did not constitute proceeds from the property of the estate.

4th of July Round-up!

2006-07-05T02:50:00.000-07:00

4th (of July) Circuit

Fairchild Dornier GMBH v. Official Comm. of Unsecured Creditors (06/27/06 - No. 05-1930)

The bankruptcy court's recharacterization of a sale of parts is affirmed where: 1) recharacterization of claims is within the broad powers of a bankruptcy court; 2) recharacterization exists separately from the court's disallowance and equitable subordination powers; and 3) the factual determinations were not clearly erroneous and supported the court's recharacterization.

7th Circuit

Summers v. UAL Corp. (06/28/06 - No. 05-4005)

Dismissal of class action against administrator of an Employee Stock Option Plan is affirmed: administrator did not act imprudently by failing to diversify in the face of the decline of UAL stock and the company's eventual bankruptcy.

8th Circuit

DeBold v. Case (06/26/06 - No. 05-3401)

In a bankruptcy case involving the allocation of settlement proceeds from a lawsuit between former partners of a failed joint venture, a decision adverse to a bankruptcy trustee is affirmed over claims that the BAP exceeded its scope of review by making findings of fact not found by the bankruptcy court and erred in its conclusions of law regarding an individual's entitlement to the settlement proceeds.

11th Circuit

Ajaka v. Brooksamerica Mortgage Corp. (06/29/06 - No. 05-12105)

Summary judgment for defendants in a suit claiming violations of the Truth in Lending Act is reversed where there is a question of material fact as to whether plaintiff had the motivation and intent to manipulate the judicial system such that judicial estoppel of his claims was appropriate.

Bracewell v. Kelley (06/30/06 - No. 05-11951)

Exclusion of a federal payment for crop loss from a bankruptcy estate when the loss occurred before the creation of the estate, but the law creating the right to the payment was enacted afterwards, is affirmed where: 1) there was no legal or equitable right to the payment at the moment of creation; and 2) the assistance did not constitute proceeds from the property of the estate.

Edgewater Medical Center v. Peter Rogan, et al. (04 A 2327)

2006-07-05T02:44:00.000-07:00

Underlying Bankruptcy: In Re Edgewater Medical Center, 02 B 7378

Adversary Opinion Issued: June 29, 2006

Judge: Bruce W. Black

Americans get up from their credit feast (for awhile)

2006-06-26T10:49:00.000-07:00

this year 27% of consumers plan to cut back on spending because of pressure from credit card bills

last year 16% planned to curtail spending for that reasons

this year 28% of surveyed shoppers said they felt "really confident"

2 months ago 36% said the same things

last year 54% felt "really confident"

Howard Delivery Service v. Zurich American Ins. Co.

2006-06-26T10:47:00.000-07:00

Unpaid workers' comp premia are not priority claims

Insurance carriers' claims for unpaid workers' compensation premiums owed by an employer fall outside the priority allowed by §507(a)(5). Although the question is close, such premiums are more appropriately bracketed with liability insurance premiums for, e.g., motor vehicle, fire, or theft insurance, than with contributions made for fringe benefits that complete a pay package, e.g., pension plans and group health, life, and disability insurance, which undisputedly are covered by §507(a)(5).

In re Rivera B.R. (Bkrtcy.D.NJ May 25 2006).

2006-06-26T10:35:00.000-07:00

Filing pre-signed declarations on behalf of creditor violates R 9011

Having certifications pre-signed for use in future motions for relief from stay violated Rule 9011 in 2 ways:

a) affiant could not truthfully say that they verified their statements after reasonable inquiry; and

b) the documents were filed for an improper purpose (viz. to mislead the court)

The court deemed the practice akin to that identified in In re Wenk, 296 B.R. 719 (Bkrtcy.E.D.Va. 2002); as the Wenk court pointed out, attorneys filing electronic petitions "represent to the court" that they have "secured an originally executed petition physically signed by the debtor." Failure to meet this standard was an unacceptable violation of R 9011.

Case Roundup du jour

2006-06-25T18:39:00.000-07:00

1st Circuit

Baena v. KPMG LLP (06/22/06 - No. 05-2868)

Dismissal of suit against an accounting firm that failed to notify corporate directors of irregularities in accounting is affirmed where the suit was barred by the in pari delicto doctrine since the wrongful actions of the corporate officers could be imputed to the company as a whole.

Sterling Consulting Corp. v. IRS (06/23/06 - No. 03-1809)

Sanctions order against the IRS is vacated where the order was reviewable and the behavior that triggered the sanctions was not arguably improper.

8th Circuit

Gulfcoast Workstation Corp. v. Peltz (06/23/06 - No. 05-2984)

In a chapter 11 bankruptcy case, judgment for a court-appointed plan administrator in his adversary proceeding seeking to avoid certain alleged preferential transfers is affirmed where the bankruptcy court properly found that a creditor failed to establish the third prong of the ordinary course defense, and abandoned its new value defense.

Trustee v. Real Estate Resource Management, et al. (04 A 4032)

2006-06-22T09:30:00.000-07:00

Underlying Bankruptcy: In re Polo Builders, Inc., 04 B 23758 Adversary Opinion Issued: June 21, 2006 Judge: A. Benjamin Goldgar

Vijay Patel v. Arvind Patel (04 A 3014)

2006-06-21T10:57:00.000-07:00

Bankruptcy: In re Arvind Patel, 04 B 12301 Issued: April 6, 2006 Judge: Susan Pierson Sonderby

Case Roundup! a Disney Production

2006-06-19T08:57:00.000-07:00

Supreme Court

Howard Delivery Serv., Inc. v. Zurich Am. Ins. Co. (06/15/06 - No. 05–128)

In the context of bankruptcy law, premiums owed by an employer to a workers' compensation carrier do not fit within 11 U.S.C. section 507(a)(5), which accords priorities, among unsecured creditors' claims, for unpaid contributions to "an employee benefit plan."

1st Circuit

U.S. v. Sayer (06/13/06 - No. 05-1917, 05-1918)

Judgment of the district court in a tax case involving a farm is vacated insofar as it includes foreclosure of the property and remanded for dismissal of the federal government's foreclosure claims where the federal government failed to satisfy a Maine tax lien on the property within the prescribed period, thus the tax lien took priority over the foreclosure.

Boyd v. Commissioner of IRS (06/13/06 - No. 05-2517)

Dismissal of a tax suit involving the distinction between a "levy" and an "offset" is affirmed where: 1) the tax court did not have jurisdiction over the case since there had been no determination by an IRS appeals officer; and 2) the procedural differences between levy and offset were not eliminated, thus the court's jurisdictional ruling had no adverse impact on plaintiffs' substantive rights.

9th Circuit

ZiLOG, Inc. v. Corning (06/15/06 - No. 04-15787, 04-15794)

A bankruptcy court's decisions are reversed as to: 1) grant of summary judgment to a bankruptcy debtor on female employees' sex discrimination claims; 2) discharge of the employees' statutory, contract and tort claims; 3) a permanent injunction against the employees' pursuit of those claims; 4) a determination that the women failed to show excusable neglect for not filing those claims on time; and 5) an award of sanctions.

11th Circuit

Guerra v. Fernandez-Rocha (06/12/06 - No. 06-10159)

Dismissal of adversary complaint, brought based on debtor's failure to comply with Florida's Financial Responsibility Act, is affirmed where the debt in issue is dischargeable in bankruptcy.

Case Roundup a Go Go

2006-06-12T15:17:00.000-07:00

1st Circuit

In Re New Seabury Co., LP (06/07/06 - No. 05-1526, 05-1588)

Order of dismissal is remanded with instructions to affirm the original order of the U.S. Bankruptcy Court denying debtor access to disputed funds where the plain language of a stipulation entered into by the parties as part of a reorganization plan does not support a conclusion that the funds were intended to be retained by the debtor.

3rd Circuit

In re: Oakwood Homes Corp. (06/09/06 - No. 05-2032 & 05-2033)

The language used in 11 U.S.C. section 502(b) does not clearly and unambiguously require discounting an interest-bearing obligation to present value in light of the words' plain meanings and the language used elsewhere in the Bankruptcy Code. Interest-bearing debt should not be discounted to present value after unmatured interest has been disallowed pursuant to section 502(b)(2).

In re Joseph William Giffune, Jr. (05 B 54583)

2006-06-06T08:40:00.000-07:00

Issued: May 31, 2006 Judge: John H. Squires

A few cases to consider

2006-06-05T08:17:00.000-07:00

1st Circuit

DiMaio Family Pizza & Luncheonette v. Charter Oak Fire Ins. (05/30/06 - No. 05-2459)

Summary judgement for defendant-insurer affirmed where:

1) the suit was time-barred;

2) plaintiff's institution of bankruptcy proceedings did not enjoin or abate action on the policy; and

3) defendant was not required to notify plaintiff of the applicable statute of limitations.

Cordero-Hernandez v. Hernandez-Ballestero (06/02/06 - No. 04-2435)

Dismissal of RICO and state law claims related to the purchase of a business is affirmed where there was no showing that defendants were in exclusive control of crucial information, and no demonstration that useful information would result from further discovery.

Federal Steel Creditors’ Trust v. Federal Pipe & Steel et al. (05 A 978)

2006-05-31T16:18:00.000-07:00

Bankruptcy: In re Federalpha Steel LLC, 03 B 43059 Opinion Issued: May 31, 2006 Judge: A. Benjamin Goldgar

stats on post-reform debtors

2006-05-31T10:05:00.000-07:00

source: National Foundation for Credit Counseling

average income $31,255

average debts $40,673

source: Institute for Financial Literacy

44% have incomes of less than $20,000 per annum

31% say source of financial distress is "illness or injury"

source: National Association of Consumer Bankruptcy Attorneys

80% can't repay creditors at all

Opinion: Lefelstein v. Donlevy (04 A 03135)

2006-05-30T12:18:00.000-07:00

Bankruptcy: In re Michael and Kelly Donlevy, 04 B 16320 Issued: May 25,2006 Court: Norther District of Illinois, Eastern Division

Judge: Jack B. Schmetterer

Needed: Candidates for BK Vice Chair. Act Now!

2006-05-30T09:37:00.000-07:00

Want to be part of the fast-paced world of Bankruptcy? Wish you could do more for the legal community? Do you have trouble getting noticed at the office? Well don't despair because now there's a vacancy for next year' sVice Chair of the DCBA Bankruptcy Committee. That's right, you too can:

host meetings and plan the annual seminar
entertain friends and business associates
chat knowledgably about Bankruptcy issues
rub shoulders with luminaries throughout the county
earn cash money (warning: no actual money paid)
and much, much , more

And the perks? How about feeling great about yourself? How about the recognition? Did I mention that the Chairperson gets a plaque? You read that right my friend. A plaque with their ... name ... on it.

So why not apply for this prestigious position right now; only one slot left so e-mail me at mmhedayat@hotmail.com and let's get ready for your position as next year's Vice Chair of the DCBA Bankruptcy Committee.

Disclaimer: Any similarity to previous committee pitches is purely coincidental. Practice Bankruptcy Law responsibly. Offer void where prohibited. Friends don't let friends practice Bankrtupcy Law.

Another Day, Another Case Roundup!

2006-05-30T09:18:00.000-07:00

3rd Circuit

In re: IT Group, Inc. (05/25/06 - No. 05-2191)

Dismissal of an adversary complaint filed by a bankrupt company's deferred compensation plan seeking secured, priority status for claims for benefits is affirmed over a claim that certain features of the plan obligated the corporation to fund a secular trust, outside the reach of creditors, for their exclusive benefit when a committee learned that the corporation was facing insolvency.

Seitz v. Detweiler, Hershey & Assocs., P.C. (05/26/06 - No. 05-2760)

A claim of negligence cannot sustain a deepening-insolvency cause of action. Summary judgment for defendants in an action brought by a bankruptcy trustee for an insolvent internet company against an accountant and his employer is affirmed where a malpractice claim failed since plaintiff could not establish harm or causation, and a deepening-insolvency claim failed because he could not establish a genuine factual issue to support an allegation that defendant engaged in fraudulent conduct.

4th Circuit

Duncan v. Duncan (05/24/06 - No. 05-1159)

Summary judgment in favor of defendant, in adversary proceeding brought to challenge the dischargeability of a judgment debt arising out of a state wrongful death action, is reversed where the issues decided in state court were not identical to and could not collaterally estop litigation of the controlling issue in the adversary proceeding.

Case Roundups; more fun than a bk attorney should have

2006-05-15T13:19:00.000-07:00

7th Circuit

Peeler v. MCI, Inc. (05/08/06 - No. 01-3019)

Denial of injunctive relief to landowner is affirmed but case is remanded for determinations as to: 1) whether to certify proceeding as class action; and 2) whether claim meets the amount in controversy requirement for jurisdiction.

8th Circuit

Stallings v. Hussmann Corp. (05/12/06 - No. 05-1882)

The abuse of discretion standard applies to review of a district court's application of the judicial estoppel doctrine. Summary judgment reversed where district court abused its discretion in applying judicial estoppel and erred in granting summary judgment.

Lawsuit seeks to throw out provisions of BAPCPA

2006-05-15T13:07:00.000-07:00

Various attorney organizations are challenging the BAPCPA in Connecticut District Court on the grounds that it "illegally restricts the advice lawyers can give and makes it harder for clients to navigate the bankruptcy system." In particular the law suit alleges that the BAPCPA forces attorneys to advise their Clients a certain way, neutralizing their discretion. The Connecticut Bar Association and the National Association of Consumer Bankruptcy Attorneys asked the Court to issue a temporary rule exempting Attorneys from the BAPCPA's rules applying to document preparers, debt consolidation agencies, and attorneys.

Trustee v. 5841 Building Corporation et al. (04 A 3438)

2006-05-15T13:01:00.000-07:00

Bankruptcy: In re Chris Hansen, 02 B 33776 Full Adversary Caption: Joel A. Schechter v. 5841 Building Corp.; APMC Oil Co., Inc; and Richard Stiefel

Issued: May 12, 2006 Judge: A. Benjamin Goldgar

Yet another lesson for the unwary practitioner ...

2006-05-08T12:45:00.000-07:00

One neat trick pulled off in the bapcpa is the truncation of the automatic stay. That is, if a debtor has filed a case within the past year then the automatic stay on their current filing loses its force within 30 days unless the debtor secures a continuance under § 362(c)(3)(B) and (4)(B). Before representing such debtors however, remember that:

(1) the notice and hearing must take place within 30 days of filing

(2) debtor bears the burden of showing that the new case was filed in good faith and extention of the stay is justified

See: In re Baldassaro 338, B.T. 178 (Bkrtcy.D.N.H. 2006)

(3) debtor bears the burden of showing that if the case is a 7 discharge is likely, and if a 13 the plan will succeed

See: § 362(c)(3)(C)(i)(III)

Filings returning to pre BAPCPA levels

2006-05-08T11:54:00.000-07:00

Fun with bankruptcy cases

2006-05-08T11:17:00.000-07:00

Unsecured claim for insurance premium is priority

Howard v. Zurich American Insurance Co. __ F.3d __ (4th Cir. 2006) Insurer's claim for unpaid premium is entitled to priority under § 507(a)(4) and therefore reverses the decision of the district court and remands the case for such further proceedings as may be appropriate. The issue in this case is whether an insurance company providing worker's compensation to a debtor who has filed bankruptcy is entitled to priority for any unpaid premiums. Howard Delivery Service, Inc. (Howard) owns a freight carrier business, with its principal place of business in West Virginia. West Virginia worker's compensation statutes required Howard either subscribe to the State's Workers' compensation fund or opt out and become a self-insurer. Howard entered into a workers' compensation agreement with Zurich American Insurance Co. (Zurich), promising to reimburse all losses under workers' compensation polices up to $250,000. Howard filed for Chapter 11 bankruptcy. Zurich filed proofs of claim for insurance premiums in an unliquidated amount. Howard asked the bankruptcy court to estimate the unliquidated claims. Zurich amended its claims to $410,215.00, changing its claim for priority treatment to contributions to an employee benefit plan under Sec. 507(a)(4) of the Bankruptcy Code. Howard filed a written objection, claiming Zurich had no priority because unpaid insurance premiums were not contributions to an employee benefit plan. The Bankruptcy Court found that Zurich was not entitled to priority. The United States District Court for the Northern District of West Virginia (District Court) affirmed. The United States Court of Appeals for the Fourth Circuit reversed, finding the plain language of the statute stated unpaid premiums constituted contributions to an employee benefits plan. A concurrence agreed with the majority's ruling but relied upon a provision in the Employee Retirement Income Security Act of 1974 (ERISA). On appeal to the United States Supreme Court Howard will argue premiums are not contributions to an employee benefit plan as defined by Sec. 507(a)(4) and should not receive priority. Additionally Howard argues that it also not appropriate to look to ERISA to define the term employee benefit plan because ERISA's definitions were specifically designed for ERISA, not the Bankruptcy Code.

===================================== Tax return filed after SFR and assessment constitutes a "return" for discharge purposes

Gary Wayne Colsen v. USA __ F.3d __ (8th Cir. 2006)

In the context of bankruptcy proceedings, the honesty and genuineness of a filer's attempt to satisfy tax laws when filing IRS tax returns should be determined from the face of the form itself, not from the filer's delinquency or the reasons for it. The United States asserts that a 1040 form filed after the IRS has gone to the trouble and expense of preparing substitute returns and assessing the relevant tax liability serves no purpose under the tax laws and thus cannot have been an "honest and genuine endeavor" to satisfy the tax laws as Beard requires. The government's essential position is that because Mr. Colsen's 1040 forms were filed after the IRS's assessment, they do not evince an honest, genuine attempt to satisfy the law and thus he has not satisfied the requirement that returns be filed in order for tax liabilities to be dischargeable. But we have no evidence to suggest that the forms appeared obviously inaccurate or fabricated; indeed, Mr. Colsen's 1040 forms contained data that allowed the IRS to calculate his tax obligation more accurately: The information contained in the forms was honest and genuine enough to result in thousands of dollars of abatements of tax and interest.

Fetla’s Trading, Inc., et al v. Granet et al (05 A 00926)

2006-05-04T15:56:00.000-07:00

Bankruptcy:In re Fetla’s Trading Post, Inc., 04 B 12231 Issued: May 4, 2006 Judge: John H. Squires

And now a word from our sponsor ... or ... why Anna Nicole is double-d-licious

2006-05-03T16:17:00.000-07:00

Jack Ayer ABI Resident Scholar (Visiting Prof. of Law, NYU Law School)

If you can say “bankruptcy,” “probate” and “jurisdiction” all in the same sentence without your head falling onto your chest, then you may have the makings of a bankruptcy lawyer. If you followed the Anna Nicole Smith case, you might be in that group that, according to the folks over at “The Man Show,” are among the 86 percent of all men who have watched Porky’s (while only 81 percent have actually read a book). So it is perhaps not surprising that the dullest Supreme Court case of the year received the most attention. For those who haven’t followed the case, Anna won a bankruptcy judgment against her deceased husband’s son in the bankruptcy court. The district court cut the size of the judgment, but otherwise affirmed. The Ninth Circuit reversed, holding that it was a probate matter that didn’t belong in the Federal courts to begin with. The Supreme Court on Monday reversed the Ninth Circuit. The Ninth Circuit now gets a chance to sort out the remaining issues. “Anna Nicole Smith” brought up 615 hits on Google News as of mid-morning today, the day after the decision. “Poor, dumb-as-a-stick Anna Nicole Smith,” yielded only one hit (a New York Daily News editorial), but it echoed a general sentiment. “A victory for white trash everywhere,” exulted the Boston Herald. Any way you slice it, Anna (a.k.a. Viki) Nicole (a.k.a. Lynn) Smith (a.k.a. Marshall), more famed for her strong bones and healthy complexion, was the ironic eye at the center of the paparazi-powered hurricane that surrounded her and her quest for $474 million—no, make that $88 million—no $44 million—anyway, whatever it is she is entitled to get as a chunk of the estate of her ex-husband.As a former newspaperman, I followed the slurry of media coverage to discern at least the outline of the narrow issues in the case. David G. Savage in the Los Angeles Times may have put it most precisely. Anna “won a unanimous ruling from the Supreme Court, “ he said, “that cleared the way for her to claim as much as $500 million from her late husband's estate.” Many reports made it clear that the Supreme Court’s decision was only the end of the beginning, not the beginning of the end. But Savage, better than most, pinned down the reason. He noted that that there were competing lawsuits: the Texas probate matter and the California bankruptcy case. “The Supreme Court did not decide whether the Texas court or the federal bankruptcy court handed down the first decision,” he said. “Usually, when judges are dueling over who gets to decide an issue, the first ruling is honored in the end.” Pressing the envelope, Savage went further and tied in the one concept even more forbidding than the bankruptcy/probate alliance: the Internal Revenue Code. “The Internal Revenue Service often goes to federal court to seek taxes that are owed by an estate,” Savage pointed out. “For that reason, the Justice Department entered the case of Marshall v. Marshall on the side of the billionaire's widow.” At Knight-Ridder, David Montgomery added a hint of the broader implications of the decision. He pointed out that the case “could prompt lawyers to turn increasingly to the federal courts in estate cases,” in his article in the San Jose Mercury News. From a purely technical standpoint, the case is perhaps best understood not as a bankruptcy matter at all, but rather as a chapter in the history of federal jurisdiction—a point Justice Ruth Bader Ginsburg made tolerably clear in her majority opinion, limiting the scope of the probate exception (Justice John Paul Stevens, dissenting, would have gone further and expunged the probate exception altogether). The next stage (presumably back in the Ninth Circuit, whence it came to the Supreme Court) may well turn on nothing more than an issue of the fact—which opinion, state or federal, can be counted as “first” to dispose of the underlying issue.

Let the roundup begin ...

2006-05-02T12:54:00.000-07:00

1st Circuit

Nash v. Connecticut Student Loan Found. (04/26/06 - No. 05-2549)

Order denying discharge of education loans because of disability is affirmed where the plaintiff produced no evidence regarding her future inability to work.

5th Circuit

Int'l Interests, L.P. v. Hardy (04/26/06 - No. 04-21025) Questions of law are certified to the Supreme Court of Texas regarding: 1) choice of law issues in an action to recover a deficiency; and 2) proper application of the law governing calculation of the deficiency.

9th Circuit

Educ. Credit Mgmt. Corp. v. Nys (04/26/06 - No. 04-16007) A bankruptcy panel's reversal of a ruling against a creditor on her adversary complaint in bankruptcy court to have her student loans discharged is affirmed where the bankruptcy court erred in requiring the debtor to show exceptional circumstances beyond the inability to pay in the present and a likely inability to pay in the future.

Trustee v. Heller Financial Leasing , Inc. (05 A 1874)

2006-05-01T15:48:00.000-07:00

Bankruptcy Caption: In re JIII Liquidating, Inc., f/k/a Jernberg Industries, Inc. et al Bankruptcy No.: 02 B 25909 Issued: April 27, 2006 Judge: John H. Squires

In Re Capital Acquisitions & Management Corporation (05 B 12554)

2006-04-28T12:28:00.000-07:00

Issued April 27, 2006 Judge Pamela S. Hollis

John Hancock v. Litas (05 A 2637)

2006-04-24T14:44:00.000-07:00

Bankruptcy Case: In re Lee LitasBankruptcy, 05 B 34536

Issued: April 24, 2006

Judge: A. Benjamin Goldgar

Gregg Szilagyi, Ch 7 T(ee) v. JPMorgan Chase and Charter One (05 A 01717)

2006-04-24T13:04:00.000-07:00

Bankruptcy Case: In re Gilbert V. Johnson, 04 B 33054

Issued: April 18, 2006

Judge: Eugene R. Wedoff

round up, round up, who's got the round up?

2006-04-24T12:19:00.000-07:00

1st Circuit

Marrama v. Citizens Bank of Massachusetts (04/20/06 - No. 05-1858)

Summary judgment for defendant-creditor-bank and denial of chapter 7 discharge affirmed where plaintiff transferred assets within a year of filing with intent to defraud creditors.

4th Circuit

Hazelbaker v. Hope Gas, Inc. (04/18/06 - No. 04-2526)

Dismissal of appeal based on "statutory mootness" is confirmed with an eye towards the code's concern for finality of bk sales (sec. 363(m)). Appellant also failed to obtain a stay pending appeal (hence, mootness of the issue).

5th Circuit

Newby v. Enron Corp. (04/17/06 - No. 05-20219)

In a legal malpractice suit against a law firm involving statements made in a legal opinion regarding a transaction with later-bankrupt Enron Corporation, a remand order to state court is affirmed where the district court properly determined that the defendant-law firm's "apportionment complaint" failed, destroying the basis for federal jurisdiction. Ed. Note: Yes, the plaintiff's name is "Newby" - I can't make this stuff up.

6th Circuit

Meoli v. Citicorp Trust Bank (04/20/06 - No. 05-1075)

Summary judgment to a creditor in a bankruptcy action is affirmed over a bankruptcy trustee's claim that the creditor's security interest in an affixed mobile home was unperfected under state law where, pursuant to a statutory amendment which applied retroactively, the security interest was properly perfected.

7th Circuit

Hower v. Molding Sys. Eng'g Corp. (04/19/06 - No. 05-1889)

Appeal of an order approving sale of a business is moot since the sale already occurred and there was no abuse of discretion in the court's denial of a stay of the sale pending or clear error in the court's determination that the sale was in good faith.

11th Circuit

Colton v. Verola (04/20/06 - No. 04-14662)

Reversal of decision that restitution obligation arising from defendant's Florida conviction for fraudulent transactions was dischargeable under Chapter 7 of the Bankruptcy Code is affirmed over claims that: 1) the Supreme Court's decision in Davenport "abrogated" its decision in Kelly; 2) the 1994 amendments to the Bankruptcy Code effectively preempted the Supreme Court's ruling in Kelly; and 3) the district court erred in failing to follow the test for determining whether restitution is "payable to and for the benefit of a government unit" for the purposes of 11 U.S.C. section 523(a)(7).

In re Patrick and Kim Del Monico (04 B 38235)

2006-04-20T19:31:00.000-07:00

Issued: April 19, 2006

Judge: A. Benjamin Goldgar

In re Neil Snowden (05 B 57906)

2006-04-20T19:27:00.000-07:00

Issued: April 14, 2006

Judge: Jack B. Schmetterer

Lester and Judith Munson v. James Whitmer (03 A 4790)

2006-04-20T19:25:00.000-07:00

Issued: April 27, 2005 Judge: Pamela S. Hollis

Bankruptcy Case: In re James P. Whitmer, 03 B 42061

O’Hare Midway Limousine Service v. Conroy (05 A 2058)

2006-04-19T08:21:00.000-07:00

Bankruptcy Caption In re Kevin G. Conroy and Rhea Jan Conroy

Bankruptcy Number 05 B 26056

Issued April 17, 2006

Judge: A. Benjamin Goldgar

Suggested Ch. 13 Plan Language (Section "G")

2006-04-18T01:09:00.000-07:00

Glen Stearns, Chapter 13 Trustee for the southwest suburbs recommends the use of the following language in Section G of plans filed with his office: late-filed claims Unsecured claims filed after the bar date are hereby disallowed and shall not be paid by the Trustee. direct payment by debtor of loans secured by personal property The debtor will make current monthly payments, as listed in debtor’s Schedule J directly to the following creditors holding claims secured by a perfected lien on debtor’s personal property: creditor:

collateral:

final payment due date:

fixed monthly payment: direct payment of student loans The debtor will make current monthly payments, as listed in debtor’s Schedule J directly to the following creditors for student loans that mature after 60 months from the date of filing: creditor: final payment due date:

fixed monthly payment: direct redemption of property taxes The debtor will redeem sold real estate taxes by reserving the amount listed in debtor’s Schedule J each month for the plans first ________ months. Debtor’s plan payment increases as shown in section D 1 upon redemption. redemption amount The debtor will pay past due real estate taxes directly by reserving the amount listed in debtor’s Schedule J each month for the plans first ________ months. Debtor’s plan payment increases as shown in section D 1 upon payment. past due amount increasing E 3 set payments after attorney fees have been paid Beginning with the ____________, 200___ disbursement, the set payment to [Creditor Name E3(a)] in Sec. E 3 (a) shall increase to $xxx per month and the set payment to [Creditor Name E3(b)] in Section E 3 (b) shall increase to $xxx per month. surrender of personal property that secures a debt Debtor hereby surrenders Description of Asset to Creditor Name. You may also include language regarding whether a deficiency claim shall be allowed or not.

NSC Creditor Trust v. BSI Alloys Inc.(04 A 01322)

2006-04-17T15:16:00.000-07:00

Bankruptcy Caption: In re National Steel Corporation

Bankruptcy No.: 02 B 08699 Issued: March 28, 2006 Judge: Jacqueline P. Cox

Bankruptcy Blogs -- how many do you read?

2006-04-17T11:30:00.000-07:00

BK Litigation Blog http://www.bankruptcylitigationblog.com/

Elizabeth Warren's Blog http://www.talkingpointsmemo.com/bankruptcy/

Milton and Mary Jones' Blog http://www.bpaperfree.com/index.php

BAPCPA Blog http://bapcpa.blogspot.com/

Kevin Chern's Blog http://blog.startfreshtoday.com/

Jonathan Ginsberg's Blog http://thebklawyer.com/thebkblog/?p=18

The Total BK Blog http://blog.totalbankruptcy.com/

Legal Helpers http://www.legalhelpers.com/blog/

BK and Restructuring http://www.bankruptcylawblog.com/

NY BK and Consumer Law http://www.drlcny.com/blog/

FL BK Law http://www.bankruptcyorlando.com/2006/02/index.html

Elizabeth Clark v. U.S. Dept. Of Education (05 A 01388)

2006-04-17T10:58:00.000-07:00

Bankruptcy Caption: In re Elizabeth Clark Bankruptcy No.: 03 B 51878 Date of Issuance: April 11, 2006 Judge: John H. Squires

In re Kmart Corporation, et al., 02 B 02474 (jointly administered)

2006-04-17T10:54:00.000-07:00

Adversary # 04 A 00126, 04 A 00094, 04 A 00087, 04 A 02898, 04 A 00158, 04 A 02775, 04 A 02865, 04 A 02785, 04 A 02874, 04 A 02102, 04 A 02436, 04 A 02005, 04 A 02479, 04 A 00145, 04 A 01970, 04 A 02072, 04 A 02118, and 04 A 02395 Issued April 11, 2006 Judge Susan Pierson Sonderby

What has happened to your fees since reform?

2006-04-17T05:24:00.000-07:00

Okay, it's been about 6 months since BAPCPA. Some have suspended chapter 7 practice, some chapter 13 work, and still others have stopped handling conumers altogether, playing directly into the hands of the finance and credit card companies (who after all wanted to thin the herd and leave more money on the table for themselves). Those who were occasional bankruptcy practitioners never recovered from the one-two punch of electronic filing and reform (RIP).

In short, I'm not sure who's still out there practicing in the bk courts (especially here in DuPage County) to answer this question but here goes nothing: what are you charging these days? for a 7? for a 13? All responses will remain anonymous unless you indicate otherwise. Send responses to me by clicking here. And to prove that you're not alone, whatever your would-be response, here are some anectodal responses from another informal survey:

Fees are up for me, about 40-60% depending on the complexity.The differential is because it does take more time to do mechanics of the filing (means test carefully, disclosures, etc.) Also, there is greater risk.

_____________________

Fees have increased about $500 a case for me to cover time of my doing property profiles and title issues. ____________________

Before The reform act I made an average after payment of filing fees of 1500.00 per chapter 7. Now I am getting about 2100 per personal chapter 7 case but out of that now 299.00 is filing fees and then there is the fee for credit reports and appraisals.

____________________

I have increased my Ch 7 fees to $1,500 from $800.00. I understand that closer to the big city, they’ve gone up to $2,000 for a seven.

____________________

I have raised my fees for a basic Chapter 7 from $775 to $1500, not including the filing fee. My secretary tells the potential clients upfront about the fee. I take a basic $250 retainer and they can take up to 90 days to pay the remainder. Most Attorneys that are still taking cases are around the same level.

______________________

I have raised fees. On average 40%. The chapter 13 fee is by local rule and it went from $1,800 to $3,000 but the judges are now stating that $3K is too much for some cases when they look at them. The point originally of a local rate was to stop the review.

_____________________

7 went up $500 from $1000 to $1500

_____________________

I am quoting at least $200.00 higher.

______________________

Almost doubled the fee, how ever my fee includes both counseling classes

______________________

Local rules are going to raise the fixed fee agreement in the southern division to probably somewhere around a bit over $3k. Presently at $2460 [13’s]. As for Chapter 7…I am asking for $1650.00 [costs included]---up about $300-500.00 from previous.

_____________________

$1,500 if they have money or less if desperate that week.The time and risk obviously are significantly higher but the people still are broke so who can afford to pay the fees. Remember the cc are telling clients what they should be paying,etc. It is not a free market and never has been except now we have more work,riskis greater,etc. We are still lucky and must adjust practices to stay in the game or go work for the government.

____________________

I raised fees about 50%

Case Roundup 2.0

2006-04-15T15:41:00.000-07:00

3rd Circuit

In re: Fruehauf Trailer Corp. (04/12/06 - No. 05-1374)

A decision in a bankruptcy case finding that payouts under an amendment to a pension plan would be a fraudulent transfer under 11 U.S.C. section 548 which the plan administrator could avoid is affirmed over claims of error regarding: 1) a determination that the administrator had a cognizable property interest in a pension plan surplus; 2) the proper test for fraudulent transfers; and 3) assignment of the burden of proof.

9th Circuit

Norfolk S. Ry. Co. v. Consol. Freightways Corp. (04/10/06 - No. 04-55717)

Dismissal of a complaint claiming that bankruptcy debtor, an interstate motor carrier, held certain funds in trust for plaintiff, an interline freight railroad, under the "interline trust doctrine" is affirmed since the creation of a new federal common law rule imposing a constructive trust for the payment of interline balances in bankruptcy was not justified.

Estate of Spirtos v. Estate of Spirtos (04/12/06 - No. 03-56405)

Section 323 vests the bankruptcy trustee with the exclusive right to sue on behalf of the estate.

Harrison v. Emerald Outdoor Adver., LLC (04/13/06 - No. 04-35647)

Bankruptcy Court held that a lease in tribal land had priority over deed of trust becaise it had been recorded in the BIA Title Plant first. Determination was reversed becaise state law must control to determine priority and under state's standard race-notice statute priority went to the recording in the county in which the land was located.

District of Columbia

Worldwide Moving & Storage, Inc. v. Dist. of Columbia (04/14/06 - No. 04-7184)

Dismissal (for lack of standing) of an action seeking to enjoin the District of Columbia from imposing a surety bond requirement on a federally licensed motor carrier or its employees is affirmed on grounds of Younger abstention where the dispute was being litigated in the local courts of the District of Columbia.

"Disposable Income" Means Post-Petition Income

2006-04-08T06:18:00.000-07:00

In re Hardacre, __ B.R. __, 2006 WL 541028 (Bankr. N.D. Tex. 3/6/06) The Code calculates disposable income based on a prepetition income history. By definition however, chapter 13 plans are funded with post-petition income. After taking a close look at the statute, Judge Nelms concluded that "projected disposable income" for purposes of 1325(b) is based on the debtor's post-petition income rather than their income during the prior 6 months. First, use of "projected" suggests Congress intended something other than the traditional notion of "disposable income" (since Congress acts intentionally when it uses different language in different sections of a statute). Second, the statute refers to projected disposable income "to be received;" that is, the opposite of pre-petition income. Finally, 1325(b)(1) requires the court to determine whether the debtor is committing all of their projected disposable income "as of the effective date of the plan." Again, the language indicates that the court should consider current income, rather than historical income. Upshot: monthly plan payment is based on actual income and expenses appearing in schedules "I" and "J" rather than the hypothetical disposable income calculated pursuant to §§1325(b)(2), (b)(3) and (b)(4).

Post BAPCPA filing statistics, plus a handy review

2006-04-07T03:47:00.000-07:00

Compared to the same periods in 2005:

This quarter 102,949 cases filed, down from 381,743

Overall filings down 73%

Chapter 7 filings down 80%

Chapter 13 filings down 53.6%

But ... filings are trending back up towards pre-BAPCPA levels

Quick Review

§109(h)(1) requires all individuals (regardless of chapter) to complete credit counseling within 180 days before filing. In some districts trustees are interpreting this section to mean that an individual cannot file the same day they complete the counseling

§109(h)(3) allows for a 30 day exemption from the credit counseling requirement for "exigent circumstances." In practice, it is extremely difficult to obtain this exemption. The issue is being litigated in some places, especially with respect to non-English speaking debtors

§109(h)(4) releases individuals from counseling requirement after they have been determined by a court (after notice and hearing) to be "incapacitated, disabled, or on active duty military in a military combat zone." Courts initially appear to be more receptive to motions seeking this exception than the §109(h)(3) exception, but even this exception is hard to establish.

§727(a)(11) requires chapter 7 debtprs to obtain “debtor education” prior to discharge.

§1328(g)(1) requires chapter 13 debtors to obtain "debtor education" prior to discharge.

§111 governs how agencies may be approved by the United States Trustees and Bankruptcy Administrators to provide the counseling and education services.

Interim Rule 1007(b)(7) and 1007(c) require the filing of Official Form 23 and the debtor education certificate within 45 days after the first date set for the §341 hearing under chapter 7 and by the last plan payment or date of motion for discharge under chapter 13

Updated Filing Fees

2006-04-07T03:28:00.000-07:00

Click the above link to see the entire list of new fees.

For consumer practitioners the skinny is:

Chapter 7 filing fee now $299

Chapter 13 filing fee now $274

Adversary Proceeding now $250

Ed. Note: Notice a pattern? That's right -- the most pressure continues to be placed on Chapter 7 cases. Apparently consumer liquidation was the thorn in the side of the financing companies; and it only took millions of dollars worth of lobbying and a complete gutting of the law to bring them closure. I've said it before and I'll say it again: Democracy works.

Man bites dog! and other cases in the Roundup

2006-04-05T04:22:00.000-07:00

In re Pepper (10th Cir. BAP 2006) Non-contemporaneous lien avoidable Bankruptcy court did not err in finding that a lien perfected 7 months after execution due to recording agency's error constituted an avoidable preference despite the fact that the parties stipulated that they intended the transaction to be a "substantially contemporaneous exchange." Whoops. Ross H. Briggs v. John V. LaBarge, Jr. (8th Cir. BAP 2006) Conflict of Interest Bankruptcy attorney's dual representation of a debtor and a bank was an impermissible conflict of interest In re Sherman (9th Cir. 2006) Circumstances did not amount to "cause" for dismissal Circumstances contemplated by another statutory section applicable to Chapter 7 debtors cannot amount to "cause for dismissal" under 707(a). Howard Delivery Services, Inc. v. Zurich American Insurance, ___ F.3d ___ (4th Cir. 2005) Unsecured claim for unpaid workers' comp. insurance premia was priority Issues: Whether unsecured claim for unpaid insurance premia has priority. Whether the company providing worker's compensation insurance to debtor has priority claim to unpaid premia. Held: Yes. Claim is entitled to priority under § 507(a)(4). Since worker's compensation insurance constitutes an 'employee benefit' under ERISA it qualifies as such under 507(a)(4) and therefore premium payments have priority.

13 Reasons to file Chapter 13

2006-04-05T03:59:00.000-07:00

1) Debtor Educational Course can be completed before final plan payment versus 45 after 341 meeting in chapter 7

2) 0% pay-back to unsecured creditors (debtor's payments go to secureds and the Attorney -- as they should!)

3) No means test if case is converted to chapter 7. In the first place, 707(b)(3) says means test applies only to case filed "under Chapter 7 by an individual debtor whose debts are primarily consumer debts." Moreover, 348(b) does not invoke 707 in connection with conversions from 13 to 7.

4) Per 707(b)(3)(C) and (D), the Attorney's duty to perform "reasonable investigation" and "certify" that schedules are "not incorrect" applies only to cases filed "under Chapter 7." In fact, none of the new Attorney liability rules applies to Chapter 13 at all.

5) Minimize UST scrutiny, which will henceforth be focused on catching improper Chapter 7 cases.

6) Higher fees, including likelihood of post-filing fees collectible via fee petition.

7) Debtor can repay non-dischargeable taxes.

8) Per 524(i), if mortgage arrears are cured in a Chapter 13 plan, then upon discharge the debtor will have a cause of action against their mortgage company for misapplication of payments or improper fees and charges. Since there is no way for mortgage servicers to comply with this new statutory mandate, every Chapter 13 case involving a residential mortgage will give rise to such a cause of action.

9) Debts incurred to pay taxes are not discharged in 7 but are discharged in 13.

10) Obligations under a mairtal property settlement agreement that do not qualify as alimony are dischargeable.

11) Debtor can enjoy protection longer -- bar on refilling is from filing date to filing date, so as long as each case is carried for at least 2 years debtor can refile as needed.

12) Child support income not included in a 13, but is included in a 7

13) Filing fee is $274.00 versus $299.99.

Statement regarding completion of counseling

2006-04-03T17:57:00.000-07:00

If the debtor fails to submit the required certification, the Court shall close the case without granting a discharge. Notice will be sent to the debtor, trustee and all creditors on the case. The debtor can subsequently move to reopen the case to request that the discharge be granted. The fee to reopen the case must be charged. Since there has been some confusion regarding which document should be filed with the Court, if either the Official Form or a certificate furnished by a provider is filed, either will suffice for purposes of meeting this requirement through April 2, 2006. Effective Monday, April 3, 2006, the Official Form must be filed. Attach any certificates to the Official form. Use the event, Financial Management Course, to file the form. Call the ECF Help Desk at 312-408-7765 with questions.

In re Pearson v. Howard (03 A 02330)

2006-04-03T17:31:00.000-07:00

Bankruptcy Caption: In re George C. Howard, Jr., 03 B 16153 Date of Issuance: March 22, 2006 Judge: Schwartz

In re: United Airlines, Inc., et al. (03/31/06 - No. 05-3121)

2006-04-03T17:28:00.000-07:00

Decision allowing DIP to eliminate contractual pension rights of retired pilots is affirmed where pilots' ability to challenge future proceedings did not disturb creditor's rights or harm debtor's estate.

Ed. Note: Bankruptcy equivalent of "no harm no foul"

ABI Highlights

2006-04-01T14:55:00.000-08:00

The following are some highlights from this past week gathered by the American Bankruptcy Institute: Ed. Note: It all seems like pretty good news. Sorry Democrats. But hey, there's always '08! Go Hilary! Prepackaged Bankruptcies Companies are seeking an alternative to the increasingly expensive bankruptcy process by embracing pre-packaged deals that ensure a smooth process. Witness the Chapter 11 filing of bus manufacturer Blue Bird Corp.; after filing its pre-packaged bankruptcy in January the company was out a record 32 hours later and less $115 million in debt. Others are taking note. Initial jobless claims down to 302,000 First-time claims for jobless benefits unexpectedly fell last week as a buoyant labor market gave consumers the income to keep spending. Initial claims dropped by 10,000 to 302,000 for the week ended March 25. The four-week moving average fell to 310,750 from 312,250 a week earlier. This quarter the economy will expand at the fastest pace in more than 2 years and consumer confidence jumped to the highest level in almost 4.

Small Case Roundup

2006-03-28T09:07:00.000-08:00

8th Circuit Briggs v. LaBarge (03/24/06 - No. 05-6054) Bankruptcy Appellate Panel. An order granting a bankruptcy trustee's motion for an order denying attorney's fees and disgorgement of certain fees is affirmed where there was no error in a finding that a bankruptcy attorney's dual representation of a debtor and a bank was an impermissible conflict of interest. 9th Circuit Sherman v. Sec. & Exch. Comm'n (03/23/06 - No. 03-56601) A decision reversing a bankruptcy court's denial of a motion brought by the SEC to dismiss debtors' bankruptcy petition is reversed where, although the SEC had standing and the case was not moot, the bankruptcy petition could not, under established precedent, be dismissed for "cause" under 11 U.S.C. section 707(a). 11th Circuit Amend v. 485 Properties, LLC (03/22/06 - No. 04-14635) Based on prior decisions entered in this case and based on the Georgia Supreme Court's answer to the certified question about whether procuring cause is an element of a quantum meruit claim, the district court's grant of summary judgment on plaintiff's quantum meruit claim for brokerage services is affirmed.

More, more, more ... how do like it? how do you like it?

2006-03-27T12:16:00.000-08:00

New Higher BK Fees

2006-03-24T09:39:00.000-08:00

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

2006-03-23T03:51:00.000-08:00

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.

Bankruptcy Blog

Judge Halts Defendants' Bid to Avoid $116M Med-Mal Verdict

UST Audits coming this month (October)

attorneys say new law is not steering people to chapter 13-they expect resurgence in activity

Mark J. Hodges v. CIT Group, 06 A 683

First Equity Card Corp. v. Kleit, 05 A 1982

Estate v. Marcet, 05 A 00488

anti-cramdown provision under BAPCPA §1325(a)

BAPCPA: Court may not enlarge time limitations to meet new requirements

BAPCPA cap on homestead exemption

In re Bufford, 343 B.R. 827 (Bkrtcy.N.D.Tex. 2006)

In re Racette, 343 B.R. 200 (Bkrtcy.E.D.Wis. 2006)

Universal Serv. Admin. Co. v. Post-Confirmation Committee of Unsecured Creditors of Incomnet Communications Corp. (09/20/06 - No. 03-56736)

In Re: Robert E. Harris (09/18/06 - No. 04-2164)

In re James J. Kelly (04 B 46826)

Unintended BAPCPA consequences

In re Farrar-Johnson and Nelson, 06-3089

Cases ahoy

Judge Black' s New Standing Orders

In re Fink, 05 B 42371/Baccala Realty v. Fink, 06 A 00903

In re Aura, Inc., 06-01853

In re Charles and Dolores Rey, 04 B 35040

non-self-calculating chapter 13 plan

self-calculating chapter 13 plan

In re Turnbull, 03 B 50383

Rounding up, up, up!

bada bing, bada boom, bada Roundup

In re Jill Liquidating, Inc. (05-25909)

lose your job, file chapter 7, get a job, lose your chapter 7

In re Demonica (06 B 00094)

In re Vastag (05 B 31035)

Fed Survey (Beige Book)

Economy Growing but more Slowly

In re marchFirst, Inc., et al. (01-24742 )

In re UAL v. U.S. Bank et al. (03 A 03927)

In re Arguin, 04 B 40369

Faster than a speeding bullet ... it's the case roundup!

check out the 7th circuit case -- ouch!

Rounding up, up, up!

More Rounding Up Found Here

4th of July Round-up!

Edgewater Medical Center v. Peter Rogan, et al. (04 A 2327)

Americans get up from their credit feast (for awhile)

Howard Delivery Service v. Zurich American Ins. Co.

In re Rivera __ B.R. __ (Bkrtcy.D.NJ May 25 2006).

Case Roundup du jour

Trustee v. Real Estate Resource Management, et al. (04 A 4032)

Vijay Patel v. Arvind Patel (04 A 3014)

Case Roundup! a Disney Production

Case Roundup a Go Go

In re Joseph William Giffune, Jr. (05 B 54583)

A few cases to consider

Federal Steel Creditors’ Trust v. Federal Pipe & Steel et al. (05 A 978)

stats on post-reform debtors

Opinion: Lefelstein v. Donlevy (04 A 03135)

Needed: Candidates for BK Vice Chair. Act Now!

Another Day, Another Case Roundup!

Case Roundups; more fun than a bk attorney should have

Lawsuit seeks to throw out provisions of BAPCPA

Trustee v. 5841 Building Corporation et al. (04 A 3438)

Yet another lesson for the unwary practitioner ...

Filings returning to pre BAPCPA levels

Fun with bankruptcy cases

Fetla’s Trading, Inc., et al v. Granet et al (05 A 00926)

And now a word from our sponsor ... or ... why Anna Nicole is double-d-licious

Let the roundup begin ...

Trustee v. Heller Financial Leasing , Inc. (05 A 1874)

In Re Capital Acquisitions & Management Corporation (05 B 12554)

John Hancock v. Litas (05 A 2637)

Gregg Szilagyi, Ch 7 T(ee) v. JPMorgan Chase and Charter One (05 A 01717)

round up, round up, who's got the round up?

In re Patrick and Kim Del Monico (04 B 38235)

In re Neil Snowden (05 B 57906)

Lester and Judith Munson v. James Whitmer (03 A 4790)

O’Hare Midway Limousine Service v. Conroy (05 A 2058)

Suggested Ch. 13 Plan Language (Section "G")

NSC Creditor Trust v. BSI Alloys Inc.(04 A 01322)

Bankruptcy Blogs -- how many do you read?

Elizabeth Clark v. U.S. Dept. Of Education (05 A 01388)

In re Kmart Corporation, et al., 02 B 02474 (jointly administered)

In re Rivera B.R. (Bkrtcy.D.NJ May 25 2006).