New Cases For the Week of
March 5, 2001 - March 9, 2001
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March 9,
2001
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Case
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Court
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Holding
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In
re Abernathy
(DBN Subscription Required) |
8th Cir BAP |
The bankruptcy
court erred in reducing the homestead exemption claim of a Missouri
debtor who owns a one third co-tenancy interest in a residence.
Under applicable State law, a joint tenant is entitled to claim the full
value the property as homestead so long as the other joint tenants are
not asserting competing homestead exemptions. |
In
re Brucher
(DBN Subscription Required) |
6th Cir. |
Joining four
other Circuits, the Court holds that a debtor may exempt an IRA under 11
USC 522(d)(10)(E), since an IRA has the essential attributes of a
retirement plan, and is thus "similar" to such a plan within
the meaning of the statute. |
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March 6,
2001
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Case
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Court
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Holding
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In
re Sanchez
(DBN Subscription Required) |
9th Cir. |
A
Chapter 7 debtor's attorney can collect reasonable fees for postpetition
work without violating the automatic stay or discharge injunction.
Collection of unreasonable fees would violate the stay or discharge
injunction if the attorney knows that the fees are
unreasonable. However, an attorney who, in good faith
collects fees for postpetition work from a Chapter 7 debtor does not
violate the stay or discharge injunction merely because a bankruptcy
court later determines that the fees were excessive. |
In
re Danny Thomas Properties II Limited Partnership
(DBN Subscription Required) |
8th Cir. |
A
drop dead provision in a plan (enabling a secured creditor to foreclose
without further delay if a postconfirmation default is not cured within
45 days) does not, per se, satisfy the requirement in 11 USC 1129(a)(11)
that confirmation will not be followed by further liquidation or
reorganization not contemplated in the plan. A drop dead provision
is not the equivalent of "liquidation," even for a single
asset debtor, since the debtor's existence will continue, albeit as a
shell.
Feasibility determinations must be firmly rooted in
predictions based on objective fact, and a plan that, on its face,
projects a shortfall in cash in Year 1 is not feasible or confirmable. |
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March 5,
2001
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Case
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Court
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Holding
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In
re Stenzel
(DBN Subscription Required) |
8th Cir. BAP |
For
homestead exemption purposes, a farmer/debtor did not "occupy"
farmland in which he held a remainder interest when he did not live on
the property and did not farm it. |
Cromwell
Field Assoc. v. The May Department Stores Company
(DBN Subscription Required) |
4th Cir. |
In
general, rejection of an unexpired lease does not terminate the lease,
but merely constitutes a pre-petition breach. An important exception to
this general rule is in the context of nonresidential real property
leases where the debtor is statutorily required to immediately surrender
the leased premises when the lease is rejected.
Nevertheless, even if a lease is thus terminated, a
lessor does not lose its claim against a lease guarantor by filing a
proof of claim in the debtor's bankruptcy. Neither rejection, nor the
filing of a proof of claim, limit the lessor's rights against the
guarantor. |
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