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New Cases For the Week of April 12, 2004 -
April 16, 2004
Brought to you by BKINFORMATION.COM
- The Source for Business Bankruptcy Information on the Internet
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April
16, 2004
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Case
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Court
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Holding
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In
re Nys
(DBN Subscription Required) |
9th
Cir. BAP |
The
"additional
circumstances" prong of
the three-part Bruner test
for an undue hardship
discharge of a student loan
requires that the court make a
predictive judgment as to the
likelihood that the debtor's
financial hardship will
continue for a significant
portion of the repayment
period.
Additional
circumstances are not defined
solely by their nature or by a
convenient label, but instead
by their effect on the
debtor's continuing inability
to repay over an extended
period of time. The
difference between
garden-variety hardship and
dischargeable student loan
debt is simply that the latter
requires a showing of
circumstances enabling the
court to predict the longevity
of the financial hardship, on
a case-by-case basis. |
In
re Wheatfield Business Park
LLC
(DBN Subscription Required) |
9th
Cir. BAP |
When
a creditor mistakenly
submitted its proof of claim
to the UST, that agency was
required by Rule 5005(c) to
note its date of receipt and
forward it to the Bankruptcy
Clerk. The UST's
decision to return the claim
to the creditor was in
derogation of that Rule, ad
the claim was entitled to be
treated as an informal proof
of claim. |
In
re Cheng
(DBN Subscription Required) |
9th
Cir. BAP |
Under
the equitable principle that a
court will not do inequity in
the name of equity, the
debtor's different capacities,
as debtor and as debtor in
possession performing duties
of the trustee, must be
considered when fashioning a
judicial estoppel remedy and a
remedy must be calibrated so
as not to harm bystanders. |
In
re Hayden
(DBN Subscription Required) |
9th
Cir. BAP |
If
state law provides that a
creditor's security interest
is superior to the rights of
any entity obtaining its
interest in the property prior
to the date the creditor takes
action to maintain or continue
perfection of its lien, the
creditor's post-petition act
to maintain or continue
perfection of the lien does
not violate the automatic
stay. |
In
re Colorado Springs Symphony
Orchestra Association
(DBN Subscription Required) |
Bankr.
Co. |
Normally,
workers who perform no direct
post-petition labor for the
debtor will have a hard time
supporting a claim for
administrative expenses. But
the very unique structure of
this particular collective
bargaining agreement led to a
different result. It was
significant that the agreement
involved was a union labor
contract to which § 1113 is
applicable. Normally, in this
Circuit, the analysis
exemplified by the case of In
re Mammoth Mart, Inc., is used
to examine a claim for
administrative expenses. But
the Court did not find that
analysis to be consistent with
the requirements of § 1113.
The Court discusses the
interaction of § 1113 with
§§ 503 and 507 and also
discusses the analysis used in
other circuits that have
adopted the Mammoth Mart test
when those courts examine
administrative expense claims
in the union labor contract
context. |
In
re Kevco, Inc.
(DBN Subscription Required) |
Bankr.
N.D. Tex. |
Because
the facts at issue in a
postconfirmation lawsuit were
essentially the same facts at
issue in a preconfirmation
dispute, the bankruptcy court
had postconfirmation
jurisdiction to adjudicate the
dispute. |
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April
15, 2004
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Case
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Court
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Holding
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In
re Repp
(DBN Subscription Required) |
9th
Cir. BAP |
For
due process purposes, a party
in interest is entitled to
expect that the bankruptcy
court will perform its
independent duty to confirm
only those plans that do not
contravene the Bankruptcy Code
and rules of procedure.
In
addition, Rule 7001's
requirement of an adversary
proceeding creates the
reasonable expectation that
an issue in a plan (in
this case student loan
dischargeability) which
requires an adversary
proceeding for adjudication
need not be responded to, and
will not be addressed by the
court, until there has been
proper service of a summons
and complaint pursuant to Rule
7004. |
In
re Gose
(DBN Subscription Required) |
9th
Cir. BAP |
A
California debtor may not
claim an exemption for a
personal injury claim which
has not been filed as of the
petition date absent proof
that such claim is necessary
for his support. |
In
re Hodes
(DBN Subscription Required) |
10th
Cir. BAP |
An
exemption statute protecting
the cash value of life
insurance policies issued more
than one year before a debtor
files bankruptcy fully
protects the cash value of a
policy issued within one year
of the filing of an
involuntary petition against
the debtor. |
Boston
Regional Medical Center, Inc.
v. Commonwealth of
Massachusetts Div. of Health
Care Finance and Policy
(DBN Subscription Required) |
1st
Cir. |
Amounts
owing by a debtor hospital
under Massachusetts general
law, chapter 118G, section 18,
to a state fund known as the
Commonwealth's Uncompensated
Care Pool are properly
considered to be "excise
taxes" enjoying priority
in bankruptcy under 11 U.S.C.
§ 507(a)(8)(e). |
In
re Insilco Technologies, Inc.
(DBN Subscription Required) |
Bankr.
De. |
Environmental
clean-up expenses that relate
to property that was not
property of the estate are not
entitled to administrative
priority. |
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April
14, 2004
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Case
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Court
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Holding
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In
re Bank of New England Corp.
(DBN Subscription Required) |
1st
Cir. |
Section
510(a) extinguished the Rule
of Explicitness in its classic
form.
States
are not free to adopt rules of
contract interpretation that
apply only in bankruptcy. |
Miller
v. United States
(DBN Subscription Required) |
9th
Cir. |
IRS
claim for unpaid gap period
interest was nondischargeable
by confirmed Chapter 11
bankruptcy plan, without
regard to whether that claim
was secured. |
In
re TWA, Inc.
(DBN Subscription Required) |
Bankr.
De. |
For
the purposes of section
547(c)(1) (contemporaneous
exchange for new value),
"new value" is
broadly defined to include any
consideration sufficient
to support a contract. |
UST
v. Wilson
(DBN Subscription Required) |
Bankr.
C.D. Il. |
Discharge
denied for false oath based on
several omissions on schedules. |
In
re Baum
(DBN Subscription Required) |
Bankr.
N.D. Tx. |
Debtors'
failure to reinvest shares
received from the
demutualization of an exempt
life insurance policy
eliminated their
"proceeds" exemption
in the shares. |
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April
13, 2004
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Case
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Court
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Holding
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In
re Treesource Industries, Inc.
(DBN Subscription Required) |
9th
Cir. |
Commercial
property lessor's claims for
damages, after rejection of
lease by order of bankruptcy
court, based on bankruptcy
trustee's failure to comply
with lease's removal and
restoration obligation were
properly found to be
unsecured. |
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April
12, 2004
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Case
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Court
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Holding
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In
re Joelson
(DBN Subscription Required) |
10th
Cir. BAP |
A
statement of financial
condition is a statement of a
debtor's net worth, overall
financial health, or ability
to generate income. The
Court adopts the
"narrow" definition
of a statement of financial
condition for purposes of
exceptions to discharge under
11 USC 523(a)(2). |
Nova
Information Systems, Inc. v.
Greenwich Insurance Co.
(DBN Subscription Required) |
11th
Cir. |
The
district court did not err in
holding that in a cruise line
bankruptcy the surety company,
which was ultimately
responsible for reimbursing
disappointed passengers who
paid with either credit card,
cash, or check should not bear
the entire risk of financial
loss in comparison to the
credit card processing company
which was responsible for
reimbursing disappointed
passengers who paid with their
Visa or MasterCard |
In
re Salem Services, Inc.
(DBN Subscription Required) |
Bankr.
N.D. Ill. |
Mere
negligence does not constitute
defalcation for purposes of
nondischargeability under 11
USC 523(a)(4) |
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