New Cases For the Week of May 10, 2010 - May 15, 2010

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May 14 , 2010

Case

Court

Holding

In Re DBSI, Inc.
(DBN)
Bankr. DE A secured creditor asserting a lien on real property leases in which a debtor holds an interest must record notice of its lien in the real property records in the counties where the leased premises are located. Mere recording of the lease itself is insufficient where the lease and related recorded documents contain no reference to the secured creditor's lien.
In re CLK Energy Partners
(DBN)
Bankr. WD LA An allegation that a transfer is avoidable under 11 USC 544(b) is insufficient under FRCP 8 where the allegation does not specify the non-bankruptcy specific law that the plaintiff seeks to apply via section 544(b).
     
May 12 , 2010

Case

Court

Holding

In re Sigma Systems, Inc.
(DBN)
Bankr. ED TX

18 USC 152(7) provides a civil RICO claim for fraudulent transfer or concealment of property in contemplation of bankruptcy. Such claims are subject to the Twombly and Iqbal pleading standards.

While an allegation of a fraudulent transfer effected a day after the fraudulent transfer look-back period would satisfy the pleading standards, the allegations in this case do not. The transfers were effected years before the bankruptcy. Moreover, since the debtor is a corporation and is not entitled to a discharge in the case, there is no plausible claim that the transfers were intended to obtain a discharge while concealing assets.

     
May 11 , 2010

Case

Court

Holding

In Re Downey Financial Corp.
(DBN)
Bankr. DE

When a D&O insurance policy provides direct coverage to both the debtor and the directors and officers, the proceeds of the policy will be property of the estate if depletion of the proceeds would have an adverse effect on the estate to the extent the policy actually protects the estate's other assets from diminution.

Where a liability insurance policy includes entity coverage, but there are no covered securities claims outstanding, courts have generally held that the insurance proceeds are not property of the estate.

When the liability policy provides the debtor with indemnification coverage but indemnification either has not occurred, is hypothetical, or speculative, the proceeds are not property of the bankruptcy estate.

     
May 10 , 2010

Case

Court

Holding

In re Ficken
(DBN)
10th Cir. BAP Income taxes generated on gains realized from the debtors’ post-petition sale of cattle are stripped of their priority and need not be paid in full through the Chapter 12 plan.
     

 

 

 

 

 

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