New Cases - Week of October 25, 2004

New Cases For the Week of October 25, 2004 - October 29, 2004

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October 29 , 2004
Case	Court	Holding

In re Kamai (DBN Subscription Required)	9th Cir. BAP	An order denying relief from the automatic stay on condition that the debtor make adequate protection payments, and without prejudice to the creditor seeking stay relief in the future, is a final order for purposes of appellate review. The bankruptcy court did not err in awarding an oversecured creditor attorney fees in connection with the creditor's relief form stay motion.
In re Mason (DBN Subscription Required)	9th Cir. BAP	A pre-existing disability can constitute the basis for an undue hardship discharge of a student loan. A partial undue hardship discharge of a student loan is authorized.
In re Kearns (DBN Subscription Required)	9th Cir. BAP	Cal. Commercial Code § 9604(a) clarifies (even for consumer loans) the "security-first" principle of Code of Civil Procedure § 726 by providing that mixed real and personal property security may, so long as the debt is not reduced to judgment, be pursued nonjudicially in any sequence without rendering unenforceable a real property lien.

October 28 , 2004
Case	Court	Holding

Bensel v. Allied Pilots Association (DBN Subscription Required)	3rd Cir.	The claims of pilots of TWA against the ALPA arising in connection with the integration of TWA pilots into American Airlines workforce were not time-barred.
Baker v. Kingsley (DBN Subscription Required)	7th Cir.	In the absence of proof of an intent to mislead employees, there is no fiduciary duty under ERISA of an employer to employees when the employer publishes positive assessments of the its health and the health of an ERISA plan but does not disclose the possibility of a bankruptcy filing and plan termination.
In re National Steel Corp. (DBN Subscription Required)	Bankr. N.D. Ill.	Preservation of the estate may include the continuation or liquidation of a debtor’s business. Where a putative administrative claim arises on account of postpetition performance of an unassumed prepetition contract, the fact that the contract was prepetition does not preclude administrative priority under section 503. However, the fact that the debtor did not assume the contract precludes the counterparty from asserting an administrative claim based upon the debtor's breach of the contract (as opposed to an administrative claim based upon a benefit received by the debtor).

October 27 , 2004
Case	Court	Holding

In re Kaufman (DBN Subscription Required)	Bankr. N.D. Ca.	A willful violation of the automatic stay warrants a six figure punitive damage sanction under 11 USC 362(h).

October 26 , 2004
Case	Court	Holding

In re Network Staffing Services, Inc.
(DBN Subscription Required)

Bankr. N.D. Tex.

Section 542(a) does not provide for entry of a money judgment.

A malpractice claim which was not disclosed in the disclosure statement accompanying a confirmed plan is not susceptible to dismissal under Rule 12(b)(6) and judicial estoppel principles where there is no factual basis to conclude that the plan proponent intentionally deceived the court regarding its knowledge of the existence of such claim. Moreover, since the claim would be prosecuted for the benefit of the creditors (rather than the benefit of the debtor), much of the equitable justification for judicial estoppel is lacking.

Where a malpractice claim is assigned to a liquidating trust under a confirmed plan, federal bankruptcy law preempts State law prohibiting the assignment of a malpractice claim.

The requirement to plead fraud with particularity applies only to "actual intent" fraudulent transfer claims, and not to constructive fraud fraudulent transfer claims.