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New Cases For the Week of November 27, 2000 - December
1, 2000
Brought
to you by BKINFORMATION.COM - The Source
for Business Bankruptcy Information on the Internet AND BKCLAIMS
Marketplace - The Online Market For Bankruptcy Claims
December 1,
2000
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Case
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Court
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Holding
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| In re O'Dowd |
3rd Cir. |
A
legal malpractice claim based mainly on events occurring years after the
filing of the plaintiff's bankruptcy was nevertheless property of the
plaintiff's bankruptcy estate, since the allegedly negligent events occurred
in connection with another legal malpractice claim which unquestionably
was property of the estate. |
| In re Dickinson |
10th Cir. |
The
60-day limitations period for dischargeability complaints covered by 11
USC 523(c) commences on the first date set for the meeting of creditors,
not the date the first meeting is actually held. |
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November 29,
2000
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Case
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Court
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Holding
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| Prestige Limited Partnership v. East Bay Car Wash Partners |
9th Circuit |
A
creditor which waives its real property lien under California's one form
of action rule by garnishing a debtor's bank accounts nevertheless
maintains an unsecured claim which can be asserted in the debtor's
bankruptcy. |
| In re Woods |
5th Cir. |
Although
Chapter 13 provides for a discharge of claims "provided for by the
plan," and such discharge provision can result in the discharge
without payment of late-filed claims entitled to priority treatment,
such discharge provision does not result in the discharge of late-filed
student loan claims, since such claims are expressly excluded form
discharge under 11 U.S.C. 1328(a). |
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November 28,
2000
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Case
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Court
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Holding
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| In
re Tolbert |
8th Cir. BAP |
Bankruptcy
court did not err in dismissing Chapter 13 filing where record showed
this was debtor's sixth filing since March, 1997, that each prior case
was dismissed for failure to file schedules and a plan and that this
petition failed to include schedules and a plan; portion of dismissal
order barring debtor from filing a new petition for 180 days was moot as
that period has now elapsed. |
| In
re Long |
10th Cir. BAP |
Although
the Fed. R. Civ. P. and Fed. R. Bankr. P. contain no provision for a
"motion for reconsideration, a motion denominated as such, filed 14
days after oral announcement of an order, and 3 days before written
entry of the order, was sufficient (under Fed. R. Civ. P. 59) to extend
the appellate deadline for a dismissal order until a ruling on the
motion. Likewise, a motion denominated as a Supplemental Motion
for Reconsideration, filed 13 days after the entry of the order, was
sufficient (under Fed. R. Civ. P. 60) to extend the appellate deadline
for the dismissal order. However, the appellant's failure to
include in the appellate record a copy of the dismissed complaint or
appropriate transcripts, precluded appellate review, warranting
affirmance of the dismissal order. |
| In re Jacoway |
9th Cir. BAP |
Even
though a debtor structured her rollover IRA in a manner that she was
able to make substantial pre-retirement withdrawals, her retirement plan
may nevertheless remain exempt under Cal. Code Civ. Pro. § 704.115(a),
since the statute requires only that the "primary" purpose of
a plan be for retirement. |
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November 27,
2000
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Case
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Court
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Holding
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| In re Pertuso |
6th Cir. |
There
is no private right of action (aside from a contempt proceeding) under
524(e).
Postpetition - predischarge solicitation of a
reaffirmation agreement is not a violation of the automatic stay.
The Bankruptcy Code preempts State law to the extent
that causes of action asserted under State law attempt to recover for a
violation of the Bankruptcy Code.
A class action asserting causes of action under 11 USC
524 and 362, and State law claims, for a creditor's alleged violations
of the reaffirmation provisions of the Bankruptcy Code was dismissed. |
| In
re Kemp |
8th Cir. |
Prepetition,
a court determined that the debtor was the biological father of a child
and ordered payment of child support to the child's mother, who was not
the debtor's spouse or ex-spouse.
Although 11 USC 523(a)(5) applies literally only to
debts owed to a "spouse, former spouse or child of the
debtor," the prepetition child support debt is nondischargeable,
since "it is the nature of the debt, not the identity of the
payee" that is determinative of nondischargeability. |
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