New Cases - Week of November 8, 2004

November 10, 2004
Case	Court	Holding

In re Hawkins (DBN Subscription Required)	9th Cir. BAP	An obligation derived from a general educational subsidy (requiring the debtor/physician to remain in-State and practice for five years after graduation) does not constitute a student loan or educational benefit within the meaning of § 523(a)(8) .
In re Bertola (DBN Subscription Required)	9th Cir. BAP	Whether fees may be awarded in bankruptcy proceedings generally depends, in part, on whether the case involves state or federal claims and whether the applicable law allows such fees. A prevailing party in a bankruptcy proceeding may be entitled to an award of attorney fees in accordance with applicable state law if state law governs the substantive issues raised in the proceedings. In cases under § 523(a)(2), however, "the determinative question . . . is whether the successful plaintiff could recover attorney's fees in a non-bankruptcy court. In a nondischargeability action based upon misappropriation of goods delivered under a bailment, the essential nature of the action was in tort and not in contract, and the award of fees was nor warranted.
In re Villar (DBN Subscription Required)	9th Cir. BAP	Where a debtor served a contested matter on a corporate creditor by mailing the moving papers to the creditors P.O. Box: "To Officer, General Manager, and Agent for Service of Process," the services was ineffective and deprived the creditor of due process. Nationwide service of process by first class mail is a rare privilege which should not be abused or taken lightly and, thus, the service has to be made to a specifically named officer. Concurrent service on the creditor's State court attorney was also ineffective in the absence of proof that the attorney was either explicitly or implicitly appointed by the creditor to receive service of process on its behalf.