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New Cases For the Week of September 7, 2004 -
September 10, 2004
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Click here to search prior New Opinion summaries.
September 10, 2004 |
Case |
Court |
Holding |
In re Liberate Technologies
(DBN Subscription Required) |
Bankr. N.D. Ca. |
Although a debtor’s business is
unsuccessful, dismissal of the debtor's bankruptcy case is appropriate, because the debtor has cash
well in excess of its liabilities and does not need bankruptcy
protection to avoid wasteful liquidation of its business assets. |
In re Brooks Hamilton
(DBN Subscription Required) |
Bankr. N.D. Cal. |
Sanctions were appropriate when a debtor's attorney contended that a secured creditor's claim, which was supported by a timely-filed proof of claim and which the confirmed plan stated would be paid in full, was not entitled to payment as a secured claim nor as an unsecured claim. |
United States v. Frontone
(DBN Subscription Required) |
7th Cir. |
Though assessment is a prerequisite to certain remedies that the IRS might seek, it is not a prerequisite to the IRS's making a claim in a bankruptcy proceeding, because the Bankruptcy Code gives priority to a tax claim that is "assessable" as well as to one that is actually assessed.
While the Bankruptcy Code is indeed a code of debtors' rights (hence the "fresh start" rationale), it is equally a code of creditors' remedies. What is most important is that it is the Code itself --not bankruptcy judges, district judges, circuit judges, or even Supreme Court Justices, exercising a free-wheeling "equitable" discretion -- that strikes the balance between debtors and creditors.
The bankruptcy court and district court erred by relying on equitable principles to determine that a liability owed by a debtor/taxpayer on account of the IRS's erroneous refund was dischargeable. |
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September 9, 2004 |
Case |
Court |
Holding |
In re Poland
(DBN Subscription Required) |
10th Cir. |
Although language in a plan of reorganization stating that repayment of a student loan is an undue hardship can result in discharge of the loan under res judicata principles, a plan which does not contain such language does not effect an undue hardship discharge. |
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September 8, 2004 |
Case |
Court |
Holding |
In re Nielsen
(DBN Subscription Required) |
9th Cir. |
Failure to list creditor in no-assets Chapter 7 bankruptcy does not justify revocation of discharge. |
In re Cambio
(DBN Subscription Required) |
1st Cir. BAP |
Where the facts relevant to a potentially nondischargeable debt in a no-asset case arose prepetition, the bankruptcy court lacked subject matter jurisdiction to enter a money judgment in a nondischargeability action. |
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September 7, 2004 |
Case |
Court |
Holding |
In re Colarusso
(DBN Subscription Required) |
1st Cir. |
The bankruptcy court had jurisdiction, and did not err, in selling real property free and clear of a pending adverse possession claim where the putative owner of part of the property received notice of the sale as a potential bidder. |
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