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New Cases For the Week of March 29, 2004 -
April 2, 2004
Brought to you by BKINFORMATION.COM
- The Source for Business Bankruptcy Information on the Internet
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April
2, 2004
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Case
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Court
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Holding
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In
re Steenstra
(DBN Subscription Required) |
1st
Cir. BAP |
Because
the dismissal of a bankruptcy
case prior to confirmation
removes the protections
afforded by the Bankruptcy
Code, the funds held by a
Chapter 13 trustee after
administration of the estate
are not afforded protection
from levy. Although §
1326(a)(2) mandates that the
Chapter 13 trustee return such
funds to the debtor after
deducting allowed
administrative expenses, a
taxing authority is entitled
to levy such funds after
dismissal and prior to
disbursement by the trustee. |
Hyman
v. Tate
(DBN Subscription Required) |
7th
Cir. |
Even
if a collection agency might
have technically violated the
FDCPA when it sent a
collection letter to a debtor
in bankruptcy, there was no
liability for this violation
because the violation was a
bona fide error. |
Turner
v. Cook
(DBN Subscription Required) |
9th
Cir. |
A
Chapter 7 bankruptcy trustee's
acquiescence to the
continuation of an appeal of
an estate cause of action by
the debtor's attorney is
insufficient to confer
standing on the debtor or his
attorney. For such
permission to be effective,
the cause of action must be
formally abandoned by the
trustee. |
In
re Fleming Companies, Inc.
(DBN Subscription Required) |
Bankr.
DE |
A
putative equipment lessor was
not entitled to an
administrative claim as its
lease was actually a disguised
security agreement. |
In
re Fleming Companies, Inc.
(DBN Subscription Required) |
Bankr.
DE |
Section
365(d)(1) is construed in the
same manner as section
365(d)(3) such that a lease
obligation coming due
postpetition and pre-rejection
is entitled to administrative
priority. Thus, when a debtor
sold a building containing
leased equipment prior to
rejecting the lease agreement,
the debtor became liable to
purchase such equipment
pursuant to an acceleration on
sale clause in the lease.
Because the sale occurred in
the pre-rejection period, the
debtor's purchase obligation
to the equipment lessor was
entitled to administrative
priority even if the debtor
later rejected the lease. |
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April
1, 2004
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Case
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Court
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Holding
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Parker
v. Wendy's International, Inc.
(DBN Subscription Required) |
11th
Cir. |
Where
a debtor's failure to list a
litigation claim on her
schedules was inadvertent, and
the equities balance in favor
of her estate, judicial
estoppel does not bar pursuit
of the claim by her trustee. |
In
re Gulevsky
(DBN Subscription Required) |
7th
Cir. |
§523(a)(6)
does not allow for debts
procured by oral
misrepresentations of the
debtor's financial condition
to be found non-dischargeable
because this interpretation
would be incompatible with the
more specific provisions of
§523(a)(2)(B) |
In
re Roberge
(DBN Subscription Required) |
Bankr.
VT |
In
Vermont, estranged spouses may
each exempt the homestead in
which they reside,
notwithstanding that they are
in a joint bankruptcy case,
provided there has been a
thorough scrutiny of the facts
and a deliberate determination
that no fraud is being
perpetrated |
In
re UAL Corp.
(DBN Subscription Required) |
Bankr.
IL |
A
“lease” under § 365 must
be a “true” lease, as
opposed to a financing
instrument. Because
three of the four subject
"leases" were not
true leases, the debtor is
entitled to summary judgment. |
In
re Peregrine Systems, Inc. et.
al.
(DBN Subscription Required) |
Bankr.
DE |
Where
a non-competition agreement
with a shareholder of a merger
target was entered into as
part and parcel of the merger
and for no other purpose,
claims arising under the
agreement should be
subordinated pursuant to 11
USC 510(b) |
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March
31, 2004
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Case
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Court
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Holding
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In
re Sheridan
(DBN Subscription Required) |
1st
Cir. |
Disciplinary
proceedings inevitably place
the bankruptcy court itself in
an extremely awkward posture,
vulnerable to the public
perception (if not charge)
that the bankruptcy court is
inappropriately acting as
accuser, investigator,
prosecutor, and judge. Any
such perception can be further
allayed through recourse to
the de novo review conducted
before the district court.
After all, attorneys are
admitted to practice before
the district court, which
admission accords counsel the
derivative right to practice
before the bankruptcy court
within the district, by virtue
of the fact that the
bankruptcy courts function as
organizational units of the
district court. |
In
re Myers
(DBN Subscription Required) |
10th
Cir. |
Where
debtors filed two bankruptcy
petitions, and their executory
contract with a government
agency terminated as a result
of the first (Ch. 7) filing,
when they filed their second
(Ch. 12) filing there were no
mutual debts by and between
the debtors and the government
against which a second
governmental agency could
setoff. The postpetition
execution of a new executory
contract between the debtors
and a government agency could
not form the basis for setoff,
due to lack of
prepetition/postpetition
mutuality. |
In
re Rodeo Canon Development
Corp.
(DBN Subscription Required) |
9th
Cir. |
Bankruptcy
court may not allow sale of
property as "property of
the estate" without first
determining whether debtor in
fact owned the property. |
United
States v. McBride
(DBN Subscription Required) |
6th
Cir. |
Filing
a false involuntary bankruptcy
petition against another with
the intent to intimidate the
putative involuntary debtor is
a bankruptcy crime. |
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March
30, 2004
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Case
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Court
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Holding
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Decker
v. Advantange Fund Ltd.
(DBN Subscription Required) |
9th
Cir |
Unissued
stock in a debtor corporation
is not an interest of the
debtor in property. It
is merely equity in the
corporation itself. A share of
capital stock represents a
unit of ownership interest and
has no extrinsic value to the
corporation itself. Since an
action directed at recovery of
corporate stock could only
affect equitable ownership of
the corporation and would not
restore property to the estate
or avoid an estate obligation,
such a transfer is not subject
to avoidance under Section
548. |
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March
29, 2004
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Case
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Court
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Holding
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In
re Sims
(DBN Subscription Required) |
Bankr.
C.D. Ill |
Although
the debtor received and
quickly dissipated a
substantial insurance
settlement within one year of
her bankruptcy filing, there
was no evidence of fraudulent
intent to hinder, delay or
defraud creditors sufficient
to deny the debtor a
discharge. |
In
re Estill Medical
Technologies, Inc.
(DBN Subscription Required) |
Bankr.
N.D. Tex. |
A
creditor asserting an
ownership interest in the
debtor's technology should
have explicitly raised such
interest in connection which
the confirmation of the
debtor's plan, which treated
the creditor as a simple
unsecured crditor. |
In
re Masdea
(DBN Subscription Required) |
Bankr.
W.D. Pa. |
Summary
judgment was inappropriate on
a PACA creditor's fiduciary
defalcation claim against a
debtor since there was a
genuine issue of material fact
regarding whether debtor was a
"dealer" under PACA |
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