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New Cases For the Week of May 24, 2004 -
May 28, 2004
Brought to you by BKINFORMATION.COM
- The Source for Business Bankruptcy Information on the Internet
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May
27, 2004
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Case
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Court
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Holding
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In
re Valenti
(DBN Subscription Required) |
9th
Cir. BAP. |
The
180-day period to move for
revocation of confirmation for
fraud is a strict deadline,
even if the fraud is not
discovered until after the
deadline has passed. Section
105 is not a proper basis for
changing the deadline. Rule
60(b) is not a basis for
revocation. A timely request
for revocation of confirmation
cannot be amended, after the
180-day period has expired, to
add new grounds not pled
within the 180-day
period. Where a creditor
knows of a basis for
challenging confirmation and
fails to object, the creditor
cannot be permitted to use
that basis to claim fraud
under after confirmation.
Moreover, confirmation is res
judicata as to all issues that
could have or should have been
litigated at the confirmation
hearing. An issue
"could have" been
litigated at the confirmation
hearing if a party in interest
had the opportunity to
investigate and litigate it
and the debtor did not prevent
it from being litigated by
fraud, misrepresentation or
concealment. |
In
re Robbins
(DBN Subscription Required) |
9th
Cir. BAP |
A
creditor with an attachment
lien granted outside the
preference period has a right
to perfect its lien and that
such perfection can only be
made by entry of a state court
judgment. It is error to use
the automatic stay to thwart
that right permanently. |
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May
26, 2004
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Case
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Court
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Holding
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In
re BRAC Group, Inc.
(DBN Subscription Required) |
Bankr.
De. |
Where
defendant's failure to
responsibly participate in
adversary proceeding regarding
escrowed funds was partially
due to defendant's supervision
by a receiver, drastic
sanction of dismissal of
defenses was not
warranted. |
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May
25, 2004
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Case
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Court
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Holding
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PG
& E Corp. v. Public
Utilities Commission
(DBN Subscription Required) |
Cal.
1st App. |
Public
Utility Commission had
jurisdiction to enforce
financial conditions imposed
when PUC approved electric
utility's earlier petition to
reorganize under holding
company. |
In
re Geberegeorgis
(DBN Subscription Required) |
6th
Cir. BAP |
The
bankruptcy court did not abuse
its discretion in vacating
order dismissing debtor's
Chapter 13 case and allowing
debtor to resume payments
under his confirmed plan. |
In
re L.D. Brinkman Holdings,
Inc.
(DBN Subscription Required) |
Bankr.
N.D. Tx. |
For
federal court non-diversity
suits, the forum jurisdiction
is the United States for
personal jurisdiction
purposes. |
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May
24, 2004
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Case
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Court
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Holding
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In
re Channel Master Holdings,
Inc.
(DBN Subscription Required) |
Bankr.
De. |
While
success is not a prerequisite
to allowance of Committee
fees, neither is Chapter 11
license to perform services
and generate fees in a vacuum
without considering the
possibilities of recovery for
the professionals'
constituency. Where the
debtor was proposing a quick
sale of its assets for less
than half of what secured
creditors were owed, it was
unreasonable for Committee
counsel to spend more than
$5,000 analyzing and
challenging a KERP, since the
cost of the program was borne
by the secured
creditors.
A
fast tack bankruptcy requires
a firm to staff the case with
more senior people doing the
bulk of the work. Thus, where
the bankruptcy lasted only two
months, a decrease in
Committee counsel fees due to
such a factor was not
warranted. However,
where such senior staff are
necessary they should be able
to handle multiple areas of
bankruptcy expertise and
participation of multiple
senior attorneys in meetings
was excessive and warranted a
reduction in fees.
Time
spent in preparing fee
applications which comprised
9% of the time incurred was
not excessive. |
In
re Armstrong
(DBN Subscription Required) |
10th
Cir. BAP |
Bankruptcy
courts have inherent powers to
control the course of
litigation before them. That
power is supplemented by 28
U.S.C. § 1651(a) and 11
U.S.C. § 105(a). A litigant's
right of access to the courts
is neither absolute nor
unconditional. Federal courts
have inherent power to
regulate the activities of
abusive litigants by imposing
carefully tailored
restrictions appropriate for
the circumstances |
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