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New Cases For the Week of October 20,
2003 - October 24, 2003
Brought to you by BKINFORMATION.COM
- The Source for Business Bankruptcy Information on the Internet
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October
24, 2003
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Case
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Court
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Holding
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In
re Bever
(DBN Subscription Required) |
6th
Cir. BAP |
The
bankruptcy court did not err in allowing
the bankruptcy trustee's sale of the
debtor's $100,000 homestead back to the
debtors for $15,000 after first voiding a
secured creditor's $98,000 senior lien |
In
re Gerhardt
(DBN Subscription Required) |
5th
Cir. |
A
bankruptcy court's dischargeability
decision regarding an undue hardship
discharge is a question of law subject to
de novo review. Factual findings
pertinent to the discharge decision are
reviewed under a clearly erroneous
standard.
The Fifth Circuit adopts the Bruner
test for undue hardship discharges.
The bankruptcy court erred in granting
an undue hardship discharge to the debtor.
Nothing in the Bankruptcy Code suggests
that a debtor may choose to work only in
the field in which he was trained, obtain
a low-paying job, and then claim that it
would be an undue hardship to repay his
student loans. The debtor (a
professional cellist) could obtain night-school
teaching jobs, or even work as a music
store clerk. |
In
re Oyler
(DBN Subscription Required) |
6th
Cir. BAP |
A
debtor's choice to work in a low-paying
field is not by itself an indication of
bad faith, nor should it be used against a
debtor in an evaluation of undue
hardship. |
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October
22, 2003
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Case
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Court
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Holding
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In
re Lucas
(DBN Subscription Required) |
10th
Cir. BAP |
The
bankruptcy court erred in failing to
consider a creditor's constructive trust
argument after the court correctly
dismissed the creditor's
nondischargeability argument. |
Nesbit
v. Gears Unlimited, Inc.
(DBN Subscription Required) |
3rd
Cir. |
Substantive
consolidation is a federal common law
concept which extends beyond the
bankruptcy arena. The Circuit adopts
substantive consolidation principles for
the purpose of determining whether an
employer's affiliates should be considered
as a single entity for sex discrimination
claims. |
In
re Wright
(DBN Subscription Required) |
Bankr.
N.D. Ill. |
The
Due Process Clause does not provide an
equitable exception to the otherwise
strict terms of the chapter 13 claims bar
date because the Bankruptcy Code
incorporates at least six other potential
forms of relief. |
In
re Birting Fisheries, Inc.
(DBN Subscription Required) |
9th
Cir. BAP |
The
bankruptcy court has exclusive
jurisdiction to determine whether the
foreign judgment conflicted with
bankruptcy law or bankruptcy court orders. |
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October
21, 2003
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Case
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Court
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Holding
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International
Transactions, Ltd. v. Embotelladora Agral
Regionmontana, SA DE CV
(DBN Subscription Required) |
5th
Cir. |
The
district court erred in according comity
to the ruling of a Mexican insolvency
court as the party seeking comity failed
to demonstrate that the parties against
whom comity would be applied were afforded
notice and an opportunity to be heard in
the proceedings leading to the Mexican
court's decision |
U.S.
Department of Health & Human Services
v. Smitley
(DBN Subscription Required) |
4th
Cir. |
The
unconscionability standard for discharge
of HEAL loans is stringent, demanding more
than the "undue hardship"
standard for the discharge of educational
loans under § 523(a)(8)(B). The debtor
bears the heavy burden of proving
unconscionability. A debtor is
required to prove that he has attempted to
maximize his income by seeking or
obtaining stable employment commensurate
with his educational background and
abilities and that he cannot supplement
his income through secondary part-time or
seasonal work, (even if he is already
employed full-time).
Under the
totality of the circumstances, the
bankruptcy court erred in ordering the
discharge of the debtor's HEAL loans. |
In
re Rousey
(DBN Subscription Required) |
8th
Cir. |
Future
payments from the corpus of a rollover
Individual Retirement Annuity are
not"on account of age" where
debtors have unfettered discretion to
withdraw from the corpus at any time
subject only to modest early withdrawal
tax penalties. Accordingly, the
court did not err in denying the debtors'
claimed exemption under 522(d)(10)(E). |
In
re Hardin
(DBN Subscription Required) |
Bankr.
C.. Ill. |
A
debtor who has converted from Chapter 13
to Chapter 7 may not reconvert to Chapter
13. |
In
re Datavon, Inc.
(DBN Subscription Required) |
Bankr.
ND Tex. |
The
motive of a creditor seeking a substantial
contribution claim does not diminish the
benefits received by the estate from the
creditor. Accordingly, it is the
benefit, not the creditor's motivation for
providing the benefit, that is the
benchmark for a substantial contribution
claim. |
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