New Cases For the Week of January 21, 2002 - January 25, 2002

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January 25, 2002

Case

Court

Holding

In re Lawrence
(DBN Subscription Required)
11th Cir. Despite the debtor's limited retained powers under an offshore trust, the bankruptcy court did not err in finding that an offshore trust was governed by the laws of Florida (rather than the foreign laws specified in the trust instrument), and holding the debtor/settlor in contempt (incarceration and $10,00/day fine) until the trust assets were turned over.

January 21, 2002

Case

Court

Holding

Whitehouse v. Laroche
(DBN Subscription Required)
1st Cir. Creditors relying upon any of the twelve other exceptions to discharge prescribed in Bankruptcy Code § 523(a), including subsection 523(a)(7), may seek a nondischargeability determination in the bankruptcy court, but are not required to do so. Bankruptcy courts and nonbankruptcy courts alike are vested with concurrent jurisdiction over nondischargeability proceedings arising under Bankruptcy Code § 523(a)(7).  At their option, creditors seeking a nondischargeability determination need not submit to the jurisdiction of the bankruptcy court, but instead may invoke the jurisdiction of any appropriate nonbankruptcy forum either before or after the bankruptcy proceeding has been closed. The district court erred in finding that creditors who did not "timely" commence a dischargeability proceeding had forfeited their rights under 523(a)(7).
In re Cannon
(DBN Subscription Required)
6th Cir. Because funds that a trustee sought to recover under 11 USC 548 were escrow funds held in trust by the debtor for homebuyers, the trustee lacked standing to pursue fraudulent transfer claims.

Whether a particular cause of action belongs to the debtor so that it constitutes "property of the estate" depends upon state law. If the debtor could have raised a state claim at the commencement of the bankruptcy case, then that claim is the exclusive property of the bankruptcy estate and cannot be asserted by a creditor. If the cause of action does not explicitly or implicitly allege harm to the debtor, then the cause of action could not have been asserted by the debtor as of the commencement of the case, and thus is not property of the estate.  Whether a third party commits an independent wrong against the trust or participates in the trustee's breach of fiduciary duty, a trustee who has committed a breach of trust can nonetheless pursue a cause of action against the third party, although in this circumstance the beneficiary may as well. Ordinarily, this rule would permit the debtor's bankruptcy trustee to sue third parties who participated in a prepetition breach of trust.  However, because the third party was not a bona fide transferee for value, the transferred funds remain subject to the prepetition trust, and the recovery of the funds would benefit only the trust beneficiaries, and not the general unsecured creditors of the bankruptcy estate.  This fact eliminates the bankruptcy trustee's standing to seek recovery, since the bankruptcy trustee is authorized to act only for the benefit of the bankruptcy estate, and not for the benefit of third parties.

In re Poonja
(DBN Subscription Required)
9th Cir. A bankruptcy trustee may not surcharge a secured creditor after the creditor's claim has been disallowed.
 
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