New Cases For the Week of November 27, 2000 - December 1, 2000

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December 1, 2000

Case

Court

Holding

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.

November 29, 2000

Case

Court

Holding

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). 

November 28, 2000

Case

Court

Holding

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. 

November 27, 2000

Case

Court

Holding

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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