New Cases - Week of November 29, 2004

New Cases For the Week of November 29, 2004 - December 3, 2004

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December 3, 2004
Case	Court	Holding

In re Combustion Engineering, Inc.
(DBN Subscription Required)

3rd Cir.

When a section 524(g) prepack asbestos plan contains peremptory and neutrality language fully preserving all rights of insurance companies potentially affected by the plan, insurers' standing to appeal the confirmation order is limited to complaints about the adequacy of the protective language.

The bankruptcy court may erred in channeling non-derivative asbestos claims against non-debtors into an asbestos trust established under a plan. The courts "related to" jurisdiction to accomplish such a result was not apparent from the facts in the record, and the confirmation order was vacated and remanded for further fact finding. On remand, the Court of Appeals suggested, but did not hold, that the debtor's prepetition settlements with asbestos creditors who might well receive full, or nearly full, payment, while others would not, might violate equality of distribution procedures in the Bankruptcy Code.

Baillie Lumber Company, LP v. Thompson
(DBN Subscription Required)

11th Cir.

For the purposes of determining a debtor's alleged exclusive standing to pursue alter ago claims, the Court of Appeals certifies to the Georgia Supreme Court the question of whether a corporate entity has authority under Georgia law to bring an alter ego claim against a former principal.

In re Shore
(DBN Subscription Required)

10th Cir.

Where a prepetition State court fraudulent transfer judgment found, by clear and convincing evidence, that a transferee under UFTA's actual fraud provisions for "willful conduct and fraud" and imposed punitive damages, that judgment was entitled to collateral estoppel to establish liability in a later 523(a)(6) dischargeability action in the transferee/debtor's bankruptcy.

December 2, 2004
Case	Court	Holding

Sarver v. Experian Information Solutions (DBN Subscription Required)	7th Cir.	To prevail against a credit reporting agency on an FCRA claim based upon an inaccurate report of a bankruptcy filing, an individual must prove damages (e.g. a denial of credit) after he notified the credit reporting agency of the error. A denial of credit arising before such notification is not damages under the FCRA.
In re Fibermark, Inc. (DBN Subscription Required)	Bankr. VT	A one-night New York City hotel expense reimbursement request of $770 is not allowable in the absence of an explanation for why the expense was out of line with other lodging expenses on the same fee application. CALR expenses are denied due to lack of sufficient detail regarding the research.

December 1, 2004
Case	Court	Holding

In re T.H. Orlando Ltd. (DBN Subscription Required)	11th Cir.	Where a transfer transaction is necessary for the consummation of a confirmed Ch. 11 plan, the exemption from stamp or similar taxes contained in 1146(c) applies, even as to third-party transactions involving non-estate property.
In re Musolino (DBN Subscription Required)	11th Cir.	Property owned by a Chapter 13 bankruptcy debtor as tenancy by the entireties with a non-debtor under Florida law is not part of the bankruptcy estate and therefore cannot be reached by creditors

November 30, 2004
Case	Court	Holding

In re Furr's Supermarkets (DBN Subscription Required)	10th Cir. BAP	A preference defendant was entitled to new value credit for cookies which had value to the debtor when delivered, but had no value when they were later returned to the creditor after they had gone stale.
In re Tandycrafts, Inc. (DBN Subscription Required)	Bankr. DE	A cross-border Mexican trucking company that maintained a post office box in the United States to receive payments had sufficient minimum contacts with the United States to support constitutional bankruptcy jurisdiction in a preference action. Minimum contacts with the State where the bankruptcy was pending were not required. Service of process by first class mail to the post office box was proper.

November 29, 2004
Case	Court	Holding

Howard v. Surface Transportation Board (DBN Subscription Required)	1st Cir.	A bankruptcy court does not have the authority under section 1170 to adversely abandon the lines or trackage rights of a non-debtor, on the petition of a debtor railroad who owned those lines at the time of bankruptcy
In re Phillips (DBN Subscription Required)	8th Cir. BAP	The bankruptcy court did not err in imposing Rule 9011 sanctions against an attorney who electronically filed a bankruptcy petition that the debtor had not signed.
In re Savaria (DBN Subscription Required)	9th Cir. BAP	The postpetition filing of a late income tax return does not promote the tax debt to priority status.
In re Kyle (DBN Subscription Required)	9th Cir. BAP	The settled rule on trial transcripts on appeal is that failure to provide a sufficient transcript may, but need not, result in dismissal or summary affirmance and that the appellate court has discretion to disregard the defect and decide the appeal on the merits. An appellee stands on tenuous footing when arguing that a record is too incomplete to permit appellate review. While the assembly of the record is appellant's duty, appellate rules allow appellees to participate in the designation of portions of transcripts and other parts of the record.
In re Peralta (DBN Subscription Required)	9th Cir. BAP	First class mail service of process of a stay violation proceeding against a creditor who refused to return collateral after the filing of a bankruptcy was proper. Relief from the default judgment was not warranted.
In re Searles (DBN Subscription Required)	9th Cir. BAP	An adversary proceeding objecting to discharge survives conversion to chapter 13, and each successor trustee is automatically substituted as a party.
In re Rychalsky (DBN Subscription Required)	Bankr. DE	The section 727 60-day filing deadline under Rule 4004 is subject to equitable tolling and a trustee/plaintiff was entitled to leave to amend the complaint after the expiration of the deadline to add additional counts under section 727.