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

Search This And Prior Case Summaries:

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. 
 
 
Copyright © 2001  [BKINFORMATION.COM]. All rights reserved.