New Cases For the Week of July 28, 2008 - August 1, 2008

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August 1, 2008

Case

Court

Holding

In re Mullarkey
(DBN Subscription Required)
3rd Cir. The lack of a jurisdictional finding under § 157(b)(3) does not, in itself, deprive a bankruptcy court of jurisdiction.
     
July 31, 2008

Case

Court

Holding

In re Carco Electronics
(DBN Subscription Required)
3rd Cir. A discovery order granting a trade secret protection from exposure is neither final nor appealable.
In re Winslow
(DBN Subscription Required)
Bankr. Maine A secured creditor's post-discharge credit reporting violated the discharge injunction.
In re Paul
(DBN Subscription Required)
10th Cir. In an adversary proceeding brought by former debtors after a bankruptcy discharge claiming that defendant violated a discharge injunction via a state court action, an order sanctioning defendant and enjoining her from pursuing the state court litigation is reversed where neither the bankruptcy court's findings, nor the facts of record on which they are based, demonstrated that defendant's facially permissible actions violated the discharge injunction.
     
July 30, 2008

Case

Court

Holding

In re American Remanufacturers, Inc.
(DBN Subscription Required)
Bankr. DE Valid setoffs are not avoidable as preferential or fraudulent transfers because setoffs are not transfers of property of the estate.
     
July 28, 2008

Case

Court

Holding

In re PW, LLC
(DBN Subscription Required)
9th Cir. BAP Outside a plan of reorganization, 363(f) of the Bankruptcy Code does not permit a secured creditor to credit bid its debt and purchase estate
property, taking title free and clear of valid, nonconsenting junior liens.
     
July 28, 2008

Case

Court

Holding

In Quigley Company
(DBN Subscription Required)
Bankr. S.D. N.Y.

Although Section 1109(b) appears to grant a broad right to all parties in interest to participate in the case, and arguably eliminates the requirement to demonstrate prudential standing, it has not been read so broadly. Section 1109(b) has been interpreted to mean that anyone who has a legally protected interest that could be affected by a bankruptcy proceeding is entitled to assert that interest with respect to any issue to which it pertains. A party in interest must still satisfy the general requirements of the standing doctrine.

Although a party in interest may object to confirmation of a plan, it cannot challenge portions of the plan that do not affect its direct interests. A party in interest cannot assert third party rights defensively to defeat confirmation even if confirmation would directly and adversely affect its own rights. Instead, the objecting party can only challenge the parts of the plan that directly implicate its own rights and interests.

These rules limit the standing of insurers to object to confirmation of a debtor's plan which deals with asbestos claims. Insurers can object to a provision of the plan that would assign the debtor's policy rights, and to trust distribution procedures as they affect the debtor/insured's duty to cooperate with the insurers. Insurers cannot, however, object to the plan based on how it affects the rights of third parties, even if those objections may provide grounds to defeat confirmation. These objections include issues relating to classification, treatment, solicitation and voting.

In re Arch Wireless, Inc
(DBN Subscription Required)
1st Circuit In proceedings arising after a bankruptcy discharge, in which a creditor argued that it did not receive proper notice of Chapter 11 bankruptcy proceedings, denial of corporate debtor's motion to hold creditor in contempt for pursuing its claims is denied where: 1) appellee was a "known creditor"; and 2) a known creditor's general awareness of a pending Chapter 11 reorganization proceeding is insufficient to satisfy the requirements of due process and render a discharge injunction applicable to the creditor's claims.
     

 

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