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New Cases For the Week of November 17,
2003 - November 21, 2003
Brought to you by BKINFORMATION.COM
- The Source for Business Bankruptcy Information on the Internet
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November
21, 2003
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Case
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Court
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Holding
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In
re Woodcock
(DBN Subscription Required) |
8th
Cir. BAP |
While
bankruptcy cases are closed
and reopening them has
significance, adversary
proceedings, like civil
actions, are not closed in any
meaningful way. They are
terminated or closed only for
statistical purposes. |
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November
20, 2003
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Case
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Court
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Holding
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Pacific
Gas and Electric Company v.
People ex rel California Dept
of Toxic Substances Control
(DBN Subscription Required) |
9th
Cir. |
A
reorganization plan proposed
under § 1123(a)(5) expressly
preempts otherwise applicable
non-bankruptcy laws only to
the extent that such laws were
already preempted before the
addition of the
"notwithstanding"
clause to § 1123(a) by
amendment in 1984. the
"notwithstanding"
clause to § 1123(a) was
merely a clarification and
confirmation of the preemptive
effect of a reorganization
plan that already existed
under the 1978 Bankruptcy
Code. That preemptive effect,
expressly stated in the
"notwithstanding"
clause of § 1142(a), was
limited to otherwise
applicable non-bankruptcy laws
"relating to financial
condition." |
In
re Morrissey
(DBN Subscription Required) |
9th
Cir. |
Although
a BAP decision is usually
reviewed by the Circuit Court
using a de novo standard, when
the decision is based on
appellant's violations of
appellate rules the standard
of review is abuse of
discretion.
When
imposing "sanctions for
non-jurisdictional, procedural
defaults and deficiencies in
the management of litigation,
the selection of the sanction
to be imposed must take into
consideration the impact of
the sanction and the
alternatives available to
achieve assessment of the
penalties in conformity with
fault.
Where
an attorney/debtor/appellant
filed an appellate brief that
was incomprehensible in
places, egregiously violated
the requirements of Fed. R.
Bankr. P. 8010, and the
appellant did not challenge
the BAP's findings to that
effect, the BAP did not err in
denying the appeal based upon
procedural grounds. |
In
re Conseco, Inc.
(DBN Subscription Required) |
Bankr.
N.D. Ill. |
Section
524(e) does not bar the
inclusion of consensual
releases of nondebtors in a
Chapter 11 plan. |
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November
19, 2003
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Case
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Court
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Holding
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In
re Winstar Communications,
Inc.
(DBN Subscription Required)
(unpublished) |
Bankr.
DE |
A
creditor which owed a sales
tax refund to a debtor on
account of a mistake regarding
the debtor's tax exempt status
could not offset such refund
against amounts owed to the
creditor by the debtor.
The creditor received the
sales tax, and obtained the
refund in an agency
capacity. Hence the
mutuality required for setoff
was lacking. |
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November
18, 2003
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Case
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Court
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Holding
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In
re The Phoenix Group
Corporation
(DBN Subscription Required) |
Bankr.
N.D. Tex. |
Counsel
to a debtor in possession
cannot be expected to perform
functions inconsistent with
the debtor’s fiduciary
duties and counsel’s own
fiduciary duties to the
estate. Counsel's
failure to pursue management's
improper and unsupported
positions did not warrant
denial of fees. |
In
re Alter
(DBN Subscription Required) |
Bankr.
C.D. Ill. |
Child
support debt determined
nondischargeable despite
adjudication of non-parentage. |
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November
17, 2003
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Case
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Court
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Holding
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In
re Klinger
(DBN Subscription Required) |
Bank.
N.D. Ill. |
A
judgment for a creditor in a
nondischargeability proceeding
under section 523 moots denial
of discharge relief requested
under section 727. |
O'Halloran
v. First Union National Bank
of Flordia
(DBN Subscription Required) |
11th
Cir. |
A
bankruptcy trustee cannot sue
a Ponzi perpetrator or anyone
else to recover for the Ponzi
scheme torts. Since the debtor
was the perpetrator of the
Ponzi scheme, it cannot suffer
injury from the scheme.
A trustee can however, pursue
a claim for embezzlement
against the debtor's bank and
the debtor's principal based
upon the bank's negligence in
paying funds from the debtor's
account. |
In
re Pillowtex, Inc.
(DBN Subscription Required) |
3rd
Cir. |
The
District Court did not err in
refusing to compel a debtor to
make lease payments under a
Master Services Energy
Agreement, when the Court
found that the Agreement was
not a true lease, but a
secured financing arrangement. |
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