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New Cases For the Week of April 19, 2004 -
April 23, 2004
Brought to you by BKINFORMATION.COM
- The Source for Business Bankruptcy Information on the Internet
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April
23, 2004
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Case
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Court
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Holding
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In
re Trak Auto Corp.
(DBN Subscription Required) |
4th
Cir. |
The
bankruptcy court erred in
authorizing the debtor to
assign its lease in
contravention of a lease
clause limiting the use of the
premises to the sale of auto
parts. In the conflict
between 11 U.S.C. §
365(f)(1), which generally
allows a debtor to assign its
lease notwithstanding a
provision restricting
assignment, and §
365(b)(3)(C), which
specifically requires a
debtor-tenant in a shopping
center to assign its lease
subject to any provision
restricting use of the
premises, the more specific
provision controls. |
In
re Biloxi Casino Belle Inc.
(DBN Subscription Required) |
5th
Cir. |
The
bankruptcy court had
postconfirmation jurisdiction
over an insurance coverage
dispute between a secured
creditor and an insurer of an
asset of the debtor because
the secured creditor had
assigned its rights under the
insurance policy to a
liquidating trust formed under
the plan. Jurisdiction
therefore existed in
connection with
"implementation of the
plan." Absent such
assignment however,
postconfirmation jurisdiction
over the dispute would not
have existed merely because
the insured asset was property
of the debtor. |
In
re US Wood Products, Inc.
(DBN Subscription Required) |
Bankr.
De. |
A
transfer to a debtor in
payment of an antecedent debt
is not "new value"
within the meaning of 11 USC
547(a)(2). |
In
re Essential Therapeutics,
Inc.
(DBN Subscription Required) |
Bankr.
De. |
In
evaluating a "substantial
contribution" claim for
professional fees, creditors
are presumed to act in their
own self interest unless they
establish that their actions
are designed to benefit others
who would foreseeably be
interested in the estate.
Creditors' professionals
cannot receive a substantial
contribution claim where the
creditors' actions were
self-motivated or duplicative
of the actions of other
professionals. |
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April
22, 2004
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Case
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Court
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Holding
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In
re Lucre Management Group, LLC
(DBN Subscription Required) |
10th
Cir. |
Where
a bankruptcy court contempt
order for improper use of cash
collateral requires repayment
of the improperly used funds,
it is civil, not criminal, in
nature. |
In
re Ockerlund Const. Co.
(DBN Subscription Required) |
Bankr.
N.D. Ill. |
If
a debtor fails to establish
that post-petition financing
occurred in the ordinary
course of business under
§364(a), retroactive approval
(a “nunc pro tunc” order)
under § 364(b) and § 105(a)
is not allowed. The case law
under the 1898 Bankruptcy Act
countenancing retroactive
approval on equitable grounds
has been eviscerated under the
current Bankruptcy Code. Where
a debtor's president made
emergency advances to the
debtor without prior court
approval, the president was
not entitled to an
administrative claim nor t a
general unsecured claim, since
the non-administrative general
unsecured claims must
arise before the petition
date. |
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April
21, 2004
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Case
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Court
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Holding
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Pratt
v. Ventas
(DBN Subscription Required) |
6th
Cir. |
Under
the Supreme Court's ruling in Celotex
,(Celotex Corp. v. Edwards, 514 U.S. 300 (1995))
an injunction in a
confirmation order barring
claims against the debtor's
parent cannot be collaterally
attacked postconfirmation
(except on the grounds that
the bankruptcy court lacked
subject matter jurisdiction to
enter the injunction) in a
court presiding over the
claims against the parent.
Moreover, where the bankruptcy
court itself has ruled that it
had subject matter
jurisdiction to enter such an
order, the court presiding
over the third party claims is
precluded by res judicata from
readjudicating the issue of
subject matter
jurisdiction. The
bankruptcy court's ruling on
its own jurisdiction, even if
erroneous, can only be
challenged by appeal from the
bankruptcy court. |
Parker
v. Wendy's International, Inc.
(DBN Subscription Required) |
11th
Cir. |
Prior
Court of Appeals opinion
vacated. Although a debtor's
failure to disclose a cause of
action on his schedules can,
under some circumstances, be a
basis for judicial estoppel
barring the claim, where the
party pursuing the claim is
not the debtor, but is instead
the bankruptcy trustee--who
did not make any inconsistent
statements to the
courts--judicial estoppel does
not apply |
In
re Avila
(DBN Subscription Required) |
Bankr.
N.D. Ca. |
Where
a substantial equity cushion
protects an institutional
secured creditor, relief from
stay is denied even though the
debtor has wholly failed to
make payments to the creditor
under her confirmed Chapter 13
plan. |
In
re Galloway
(DBN Subscription Required) |
Bankr.
W.D. Pa. |
For
an IRA to be excluded from a
bankruptcy estate under Patterson
v. Shumate, it must
qualify as a trust under
applicable State law. In
the absence of proof of such,
the debtor's claim of
exclusion was denied. |
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April
20, 2004
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Case
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Court
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Holding
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In
re Alderete
(DBN Subscription Required) |
10th
Cir. BAP |
Although
the bankruptcy court erred in
granting the debtor only a
partial discharge of a student
loan when the debtor was
entitled to a full discharge,
the appellate court lacked the
authority to grant the debtor
such a full discharge, since
the debtor had failed to
appeal the bankruptcy court's
ruling. |
In
re Kinderknecht
(DBN Subscription Required) |
10th
Cir. BAP |
The
bankruptcy court erred in
declining to grant the
avoidance of a lien perfected
by a UCC-1 filing that named
the debtor only by his
commonly used nickname rather
than his proper name. |
In
re Wilson
(DBN Subscription Required) |
Bankr.
C.D. Ill. |
The
debtors' discharge was denied
based upon their omission of
material information from
their schedules and their
failure to bring the omissions
to the trustee's attention at
the creditors' meeting. |
In
re Maurer
(DBN Subscription Required) |
Bankr.
C. D. Ill. |
For
dischargeability purposes, the
fraud of one spouse is
generally not imputed to the
other spouse. |
In
re Hoffinger Indistries, Inc.
(DBN Subscription Required) |
Bankr.
E.D. Ark. |
President
of Debtor-In-Possession
ordered to turn over funds
improperly reimbursed for
expenses or paid to President
without authority |
In
re McCormack
(DBN Subscription Required) |
Bankr.
Conn. |
A
discharge entered during a
creditor's appeal of the
bankruptcy court's decision
not to deny the debtor a
discharge is valid due to the
creditor's failure to obtain a
stay pending appeal.
However, in order to protect
the rights of third parties
pending appeal, the bankruptcy
court enjoined the debtor from
using the discharge to obtain
credit until resolution of the
appeal. |
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