New Cases - Week of October 4, 2004

New Cases For the Week of October 18, 2004 - October 22, 2004

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October 22 , 2004
Case	Court	Holding

In re ANC Rental Corp. et. al. (DBN Subscription Required)	Bankr. DE	If a summons is not served within 120 days after the filing of an adversary proceeding, the case must be dismissed unless the plaintiff shows good cause for the delay. Good cause includes evasion of service by the defendant or excusable neglect by the plaintiff, but conscious intentional delay by the plaintiff so that the debtor could deal with the case at a time when it had more time and resources is not good cause.

October 21 , 2004
Case	Court	Holding

In re McMullen (DBN Subscription Required)	1st Cir.	The bankruptcy court did not err in finding that the postpetition commencement of license forfeiture proceedings before a State board regulating realtors was not a violation of the automatic stay in the realtor's bankruptcy case.
Mourad v. Commissioner of Internal Revenue (DBN Subscription Required)	1st Cir.	A company's filing of a bankruptcy petition and the appointment of a trustee does not automatically terminate the election by the company's shareholders of "S Corporation" status under the Internal Revenue Code.

October 20 , 2004
Case	Court	Holding

In re Cox
(DBN Subscription Required)

8th Cir. BAP

A mortgage on a house in which a debtor resides and intends to reside is a consumer debt regardless of the fact that the debtor intends to ultimately sell the house and use the funds for retirement.

The bankruptcy court did not err in dismissing debtors' Chapter 7 case under section 707(b) where the court found that the debtor's mortage payment was excessive and that reducing the payment would have contributed to funding a Chapter 13 plan.

October 19 , 2004
Case	Court	Holding

In re Outboard Marine Corporation (DBN Subscription Required)	7th Cir.	A creditor who faxed its proof of claim to the trustee's counsel on the bar date rather than delivering it by mail to the post office box for the claims agent was not entitled to have the claim treated as timely. The bankruptcy court erred however in disallowing the claim. The claim should have been subordinated to timely filed claims.
In re Mason (DBN Subscription Required)	Bankr. N.D. Cal.	A debtor operating under a confirmed Chapter 13 plan is entitled to return collateral to a secured creditor and modify the plan to treat the creditor's claim as unsecured.

October 18 , 2004
Case	Court	Holding

In re APF Co., Inc. et. al. (DBN Subscription Required)	Bankr. De.	When an HMO asserted that it was entitled to a new value defense (based upon its alleged direct upon payment of third party healthcare provider claims) in an action to recover a prepetition offset of a capitation payment, the absence of evidence quantifying the third party claims paid by the defendant precluded summary judgment in favor of the defendant.
Pease v. Production Workers Union of Chicago and Vincinity Local 707 (DBN Subscription Required)	7th Cir.	A prevailing Litigator is entitled to defend his judgment on appeal on the basis of any ground preserved at the trial court level. Thus, where a prevailing litigant unsuccessfully contended at trial that the plaintiff was in Chapter 7 bankruptcy and lacked standing to prosecute a cause of action which had not been disclosed on his schedules or abandoned to him, the prevailing litigant was not required to file a cross appeal to preserve his right to argue standing on appeal.