|
New Cases For the Week of April 23, 2001 - April
27, 2001
Brought to you by BKINFORMATION.COM
- The Source for Business Bankruptcy Information on the Internet AND BKCLAIMS
Marketplace - The Online Market For Bankruptcy Claims
|
April 27, 2001
|
|
Case
|
Court
|
Holding
|
In
re Larry's Apartment, LLC
(requires Adobe Acrobat to view) |
9th Cir. |
Bankruptcy
law permits an award of attorneys' fees for postpetition
litigation where the issues litigated are State law issues and
State law provides a right to attorneys' fees for litigation
of such issues. However, the bankruptcy court erred in
awarding attorneys' fees under an Arizona statute allowing
recovery of such fees in contract actions when the action
litigated was not a contract action.
Federal sanctions law, not State law,
governs in bankruptcy court. Accordingly, the court
erred in warding attorney fee sanctions under Arizona law.
|
Attorney
99-37 v. Barbara G. Stuart
(requires Adobe Acrobat to view) |
8th CIr. |
The
United States Trustee referred a possible disciplinary
violation to a State attorney review board. When the
attorney attempted to depose the United States Trustee, the
matter was removed to federal court and the subpoena quashed.
The court did not err in quashing the subpoena, since the
United States Trustee had not waived her sovereign immunity. |
In
re Vote
(requires Adobe Acrobat to view) |
8th Cir.
BAP |
The
Supreme Court's pre-Code holding in Segal v. Rochelle (that
property that is sufficiently rooted in the prebankruptcy past
and so little entangled in the debtor's ability to make a
fresh start is property of the estate) may be limited in
application to tax refund cases. Accordingly, the
bankruptcy court erred in holding that debtors' entitlement to
certain agricultural subsidy payments was property of the
estate when the legislation creating the entitlement did not
exist on the petition date, although the debtors did own the
subject land prepetition. |
|
|
|
|
April 25, 2001
|
|
Case
|
Court
|
Holding
|
Christopher
v. Kendavis Holding Company
(DBN Subscription Required) |
5th Cir. |
Adequate
notice is notice reasonably calculated, given the factual
circumstances, to inform claimants of a proceeding that
affects their rights. An individual creditor's mere general
knowledge of the pendency of a bankruptcy does not always
satisfy constitutional due process requirements with respect
to the discharge of the creditor's claim. Due process
requires, at the very least, a debtor to refrain from assuring
potential claimants that their rights will not be adversely
affected during bankruptcy proceedings. Consequently,
the court erred in holding that a an unrepresented individual
creditor with a claim arising from the debtor's rejection of a
pension plan was barred from asserting such claim
post-discharge, when the debtor, during the bankruptcy case,
had assured the creditor that the rejection of the pension
plan agreement would have no effect on the creditor's pension
rights. |
In
re Sholdra
(DBN Subscription Required) |
5th CIr. |
Although
a schedule amendment may be probative of a debtor's fraudulent
intent in a 727(a) action based on a false oath, such
amendments are not dispositive. |
In
re Leiberman
(Adobe Acrobat plug-in required to view) |
9th Cir. |
Cal.
Civ. Pro. Code 704.115(a)(1) does not provide an exemption for
a 10-year income stream arising from a retiring debtor's
covenant not to compete. The statute exempts only retirement
plans established or maintained by private employers, not
specific assets used by individuals for retirement purposes. |
In
re Rifino
(Adobe Acrobat plug-in required to view) |
9th Cir. |
In
this student loan dischargeability case, although the
bankruptcy court did not err in finding that the debtor's
monthly payments for cable TV, tanning and a new car, did not
disqualify the debtor for an undue hardship discharge, the
court did err in finding that the debtor's present financial
circumstances were likely to persist for a sustained period.
The debtor, who earned $27,000/year, held a master's degree in
social work. Evidence at the trial indicated that such
training qualified the debtor for positions ranging from
$47,000 to $65,000 per year. |
|
|
|
|
April 23, 2001
|
|
Case
|
Court
|
Holding
|
In
re Bryan
(DBN Subscription Required) |
9th Cir.
BAP |
The
bankruptcy court erred in granting summary judgment on a
nondischargeability complaint on the grounds that the
complaint was not timely filed. Local procedures enabled
papers to be filed in a drop box after the clerk's office
closed at 4:00 p.m., and the policy stated that papers filed
in the drop box would be dated the same day if filed before
the building closed at 6:00 p.m. An affidavit of
plaintiff's third party messenger stated that the complaint
was filed at 4:25 p.m., although the clerk's date stamp was
for the next day (the day after the 60-day 523(c) deadline
expired). These facts created a genuine issue of
material fact as to the timeliness of the filing of the
complaint, precluding summary judgment. |
|
|
|
|
|