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New Cases For the Week of October 13,
2003 - October 17, 2003
Brought to you by BKINFORMATION.COM
- The Source for Business Bankruptcy Information on the Internet
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October
17, 2003
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Case
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Court
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Holding
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In
re Swinney
(DBN Subscription Required) |
Bankr.
M.D. Ga. |
The
court has no discretion to retain a case
filed in the wrong venue. |
In
re Nordin
(DBN Subscription Required) |
8th
Cir. BAP |
The
bankruptcy court lacked authority to
extend the dischargeability filing
deadline when the motion to extend was
filed after the deadline expired.
A
creditor who had no notice of the bar date
should proceed under 11 USC 523(a)(3). |
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October
16, 2003
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Case
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Court
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Holding
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In
re Lason, Inc.
(DBN Subscription Required) |
Bankr.
DE |
Although
a secured creditor's rights to continue to
assert an interest in a segregated fund
containing the postpetition/preconfirmation
proceeds of its collateral were
effectively preserved in the debtor's
confirmed plan, the secured creditor was
not entitled to the funds. In
confirming the plan (which provided for
distribution of cash and stock to the
secured creditor) the court found that the
secured creditor was receiving property
equal to the amount of its claim.
Granting the creditor a right to the sale
proceeds collateral would have resulted in
a recovery greater than the amount of the
secured creditor's claim, a result
prohibited by 11 USC 506. |
In
re M&L Associates, Inc.
(DBN Subscription Required) |
Bankr.
N.D. TX |
Section
162.001(a) of the Texas Property Code
establishes that funds received by a
contractor are held in trust for payment
of subcontractors. In a a preference
action, a subcontractor can assert as a
defense that the funds it received were
not property of the estate becuase of the
trust aspect. However, the
subcontractor must show that the funds it
received were funds received by the
contractor on account of the project on
which the subcontractor worked.
Where the debtor has commingled funds from
several projects in its operating account,
the defense fails unless the subcontractor
can trace the funds. |
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October
15, 2003
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Case
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Court
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Holding
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In
re Communications Dynamics, Inc.
(DBN Subscription Required) |
Bankr.
DE |
When,
prepetition, an unsecured creditor
downloaded a D&B report noting another
creditor's security interest in a debtor's
assets, the unsecured creditor had
received an "authenticated"
notice of the secured creditor's lien,
thus placing the unsecured creditor on
notice of the lien and precluding setoff
by the unsecured creditor against the
debtor's accounts receivable.
However, a right of recoupment (which is
in the nature of a defense to the account
receivable) is not subordinate to a
secured creditor's lien, and the unsecured
creditor successfully established that its
rights under a master distribution
agreement were recoupment rights even
though the creditor's claims against the
debtor arose from different sales of
equipment than the debtor's claims against
the creditor. |
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October
14, 2003
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Case
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Court
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Holding
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In
re Wise
(DBN Subscription Required) |
10th
Cir. |
Spousal
maintenance payments paid to a debtor by
her ex-husband within 180 days after the
filing of her Chapter 7 bankruptcy
petition are not property of the
bankruptcy estate under 11 U. S. C. §
541( a)(5)( B). |
In
re Pennino
(DBN Subscription Required) |
8th
Cir. BAP |
When
there was no reasonable prospect for a
debtor's reorganization unless she
prevailed in her RICO Lawsuit pending in
federal district court, the bankruptcy
court did not err in abstaining from the
sixth bankruptcy case filed by the debtor. |
In
re Crowley Milner & Co.
(DBN Subscription Required) |
Bankr.
E.D. Mich. |
Global
"reservation of rights" language
in a confirmed Chapter 11 plan, purporting
to reserve the right to pursue "any
and all present or future rights, claims
or causes of action against any person
that arose before or after the
Commencement Date," was
insufficiently specific to preserve a
breach of fiduciary duty claims against
the debtors' former chief executive
officer based on the CEO's prepetition
conduct. |
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October
13, 2003
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Case
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Court
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Holding
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In
re Kindred Healthcare, Inc.
(DBN Subscription Required) |
Bankr.
DE |
For
purposes of calculating fees due by a
debtor in possession to the Office of the
United States trustee,
"disbursements" include all
payments made by or for a
debtor. A consolidated debtor family
which received first day authority to
continue using an integrated cash
management system owed UST fees based upon
disbursements by the parent made on behalf
of the individual debtor affiliates and
not based upon the fiction that the parent
was paying its own expenses. |
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