New Cases - Week of September 27, 2004

October 1 , 2004
Case	Court	Holding

In re MSCP Holdings, Inc. (DBN Subscription Required)	Bankr. De	In a non-core, related to proceeding a dispute related to note executed as part of an agreement containing an arbitration clause should be adjudicated by arbitration.
In re US Office Products Company (DBN Subscription Required)	Bankr. De.	Where a check was paid by a debtor substantially after the payment date recited on the invoice, it was nevertheless in the ordinary course of business. The check was paid after the invoice payment date because the debtor had refused to pay on the contractual payment date, citing dissatisfaction with the goods and services. The vendor agreed to make modifications, and the debtor paid the invoice (by then overdue) promptly after the modifications were competed.
In re Pacific Gas & Electric Corp. (DBN Subscription Required)	Bankr. N.D. Cal.	In order to establish an informal proof of claim a putative creditor must prove: (1) presentment of a writing; (2) within the time for the filing of claims; (3) by or on behalf of the creditor; (4) bringing to the attention of the court; (5) the nature and amount of a claim asserted against the estate. Filings in prepetition State court litigation cannot constitute an informal proof of claim.
In re Enriquez (DBN Subscription Required)	Bankr. N.D. Cal.	A party opposing confirmation of a plan can, at the hearing on confirmation, raise new issues not addressed in its written objection if the plan proponent does not object to evidence pertaining to such issues and is not prejudiced (i.e., prevented from offering opposing evidence) by the introduction of such issues.

September 30, 2004
Case	Court	Holding

First Capital Asset Management, Inc .v . Satinwood, Inc., (DBN Subscription Required)	7th Cir.	Under certain circumstances, a bankruptcy estate may qualify as a RICO enterprise. The distinction between the level of control afforded the bankruptcy debtor under Chapter 7, as distinguished from that afforded under reorganization chapters may be relevant to the RICO analysis. However, even in the Chapter 7 context, a debtor wields a significant degree of control over the conduct of the affairs of the estate.
In re Copper (DBN Subscription Required)	6th Cir. BAP	The right to convert from Chapter 7 to Chapter 13 is not absolute and in extreme circumstances conversion can be denied. In the debtor's sixth Chapter 7 filing, the bankruptcy court did not err in denying a motion to convert on the grounds that the conversion would be futile since it was clear that the debtor lacked the requisite good faith to confirm a plan.
In re Deep Ellum Development, Ltd. (DBN Subscription Required)	Bankr. N.D. Tex.	Regardless of what an oversecured creditor and its counsel agree with respect to fees, the fees payable from the estate pursuant to 11 USC 506(b) are subject to a federal reasonableness standard using a lodestar analysis. The oversecured creditor bears the burden of establishing reasonableness. Although an oversecured creditor may determine that it is necessary and prudent to request its counsel to perform certain services with respect to a bankruptcy case, the belief does not establish that the fees are reasonable. Counsel for an oversecured creditor has the same obligations as counsel for a debtor to maintain descriptive billing records, avoid duplication of work and exercise billing judgment. Involvement of attorneys charging over $600 an hour was not warranted for the type of case involved. Reduction of the oversecured creditor's requested counsel fees by approximately 50% was warranted.
In re White (DBN Subscription Required)	Bankr. Ne.	In the absence of evidence regarding when a corporation became insolvent (triggering fiduciary duties to creditors), the court cannot grant judgment to a creditor under 11 USC 523(a)(4).

September 29, 2004
Case	Court	Holding

In re Nucentrix Broadband Networks, Inc. (DBN Subscription Required)	Bankr. N.D. Tex.	Where efforts of counsel resulted in 100% dividend and funds available for equity, a fee enhancement was warranted in the amount of 10% over the firm's normal hourly rates. However, where a professional's employment is approved under section 328, fee enhancements are not warranted.
In re Nucentrix Broadband Networks, Inc. (DBN Subscription Required)	Bankr. N.D. Tex.	Where a debtor reasonably relied on a landlord's representations regarding reduced rent, the landlord was precluded by promissory estoppel from receiving payment for administrative rent.

September 28, 2004
Case	Court	Holding

In re Willcox & Gibbs, Inc. (DBN Subscription Required)	Bankr. De.	Where there is evidence that a preference defendant might be unable to satisfy a preference debt in full if held liable, the bankruptcy court has "related to" jurisdiction over an action for indemnity or contribution brought by the preference defendant.

September 27, 2004
Case	Court	Holding

In re National Warranty Insurance Risk Retention Group
(DBN Subscription Required)

8th Cir.

The inconvenience to claimants arising from the need to liquidate 950,000 warranty claims individually (the bankruptcy law of the debtor's domicile did not permit class claims) was not sufficient reason to deny a section 304 request for an injunction barring actions in the United States.

In re G-I Holdings, Inc.
(DBN Subscription Required)

3rd Cir.

A party seeking appointment of a trustee must prove the grounds for such appointment by clear and convincing evidence.

The Bankruptcy Court did not err in denying an asbestos committee's request for appointment of a trustee based upon evidence that there was extreme acrimony between the debtor and the committee nd that the debtor had funded a lawsuit against the asbestos claimants attorneys.