Re Maya, 374 B.R. 750 (Bankr. S.D.
Cal. 2007) For purposes of the "means test" analysis of § 707(b)(2) the
appropriate measuring point in time is the petition date. See
In re Walker,
(Bankr.N.D.Ga.2006); In re Littman,
(Bankr.D.Idaho 2007); In re Wilkins,
(Bankr. C.D.Cal.2007); In re Haar,
(Bankr.N.D.Ohio 2007); In re Kelvie,
(Bankr.D.Idaho 2007); In re Benedetti,
(Bankr.S.D.Fla.2007). However, abuse pre BAPCPA, based upon a debtor's
ability to pay still holdes under. In the pre-BAPCPA days in the
jurisdiction of the Ninth Circuit ability to pay was a ground sufficient
unto itself to support dismissal for "substantial abuse" (§ 707(b)(3)(B)).
In re Kelly,
908 (9th Cir.1988). BAPCPA lowers the
statutory standard to "abuse", and a number of courts that have considered
the role of ability to pay since BAPCPA became effective agree it may
support dismissal. In re Pak,
239 (Bankr.N.D.Ca.2006); In re
595 (Bankr. S.D.Fla.2007); In re
647 (Bankr.D.Del.2006); In re Mundy,
407 (Bankr.M.D.Pa.2007). But see In
497 (Bankr.E.D.Wis. 2006) where that
Circuit's law pre-BAPCPA was different from Kelly. This Court agrees
with the reasoning in Pak, and Henebury, and concludes that
ability to pay may support dismissal under § 707(b)(3)(B) after reviewing
the totality of a debtor's financial
In Re Wilkins,
370 B.R. 815 (Bankr. C.D. Cal. 2007) "means test" calculation payments due
on her secured property obligations, notwithstanding the fact that she
intends to surrender the property is proper. Debtor is entitled to deduct
the monthly payment on secured debt for property she intends to surrender.
In re Gallagher,Gallagher v. Dockery, Borrowitz &
Clark 13-->7-->13 conversion
bounce included the trustee asking for return of released funds due to the first conversion.
105(a) & 542 basis, held REVERSED. Illustrates a number of mechanisms: (1)
upon conversion from 13-->7, the chapter 13 trustee holds post petition earning and must refund it, (2) where
the debtor receives the refund while debtor is in a chapter 7, the debtor
may freely spend it, (3) upon reconversion 7-->13, if the debtor doesn't
the money, it
is not rightfully owed to the chapter 13 trustee. Also (4)" bankruptcy court
entered the Fee Order after entry of the Conversion Order albeit prior to
return of the Refund to the Debtors. Under these facts, the Chapter 13
Trustee was required to return the Refund to the Debtors. See In re Clements
, 495 B.R. 74, 76 (Bankr. E.D. Pa 2013) (where no order had been entered
denying plan confirmation, and º 503(b) attorneyÆs fees were not allowed
until postconversion, all postpetition assets had to be returned to the
debtors on conversion to chapter 7)"
In re Gregory Dewitt CANTRELL,
Debtor, Cal-Micro, Inc.; Cal-Micro, Inc., Employee Stock Option Plan; The
Pauline Countryman 1990 Trust, Appellants, v. Gregory Dewitt Cantrell,
Appellee.(punitives indicate fraud to the bk court) 111213+confirm+ 1 year =
no right to reinstitute adversary
Bank of China v. Huang (In re Huang)
275 F.3d 1171 (9th Cir 2002) : You need admitted "fraud facts" boiler plate
conclusions are insufficient. Archer: beware of novation of the fraud claim
into a contract claim -- that settles a fraud claim and folds it into the
settlement agreement (what about criminal language?) Settlement&Note v.
Consent Decree & Stipulation. (also CONSENT DECREE + facts admitting to
fraud + stipulation for entry of the decree upon default+ admisson of
realization that they are precluded from disputing the facts in any
subsequent legal proceedings.) & (if prior fraud judgement, attach it to the
settlement & Debtor admits that there was a full and fair adjudication & it
represents the final judgement. A settlement of
an obtained nondischargeability judgement should include a forebearance
agreement so that it will be honored by the creditor only so long
as debtor makes required installment agreements.
(prove-up hearing following a default judgement)
BOTTS L.L.P. ET AL v ASARCO LLC U.S. Supreme Court (decided June 15,
2015) §330(a)(1) permits a bankruptcy court to award attorney’s fees for
work performed, BUT NOT for defending a fee application in court. 5th
Circuit case from which appeal was launched
IN RE TRISTAR ESPERANZA PROPERTIES, LLC,
(PENSCO TRUST COMPANY; JANE O’DONNELL v. TRISTAR ESPERANZA PROPERTIES, LLC,
a California Limited Liability Company, Appellee. (9th Cir. 2015) No.
13-60023 BAP No. 12-1340 summary judgment in an adversary proceeding to
subordinate a creditor’s claim based on a minority interest in a chapter 11
debtor is affirmed. The panel held that the claim was subject to mandatory
subordination under 11 U.S.C. § 510(b) because it was a claim for damages
arising from the purchase or sale of a security of the debtor.
In re BOAZ SHAMAM,
(BOAZ SHAMAM v. DONALD MOTZKIN, ERIT SHAMAM; DAVID KEITH )
GOTTLIEB, Chapter 7 Trustee, ) (9th Cir BAP 2015)
BAP No. CC-14-1274-TaPaKi, BAP No. CC-14-1300-TaPaKi
Debtor., Bk. No. 11-19995-VK
(1) Short step court payment as a condition to
avoid dismissal of a case may not be a satisfying state of affairs. Default,
followed by obligation to pay $2,930.16 compensatory for the default,
(2) Partner Credit Cards, actual fraud. $34k, $3k
(3) Lawsuit for fraud, breach of fiduciary duty,
and breach of contract & for judgment removing the Debtor as an officer and
director of the Corporation
(4) A further state court default for $120,410.10
(5) After further inaction, the default is
reinstated and plaintiff asked for money based on state court judgement.
(6) it also indicated its intent to discharge the
Corporate Card debt under § 523(a)(4); as the Corporation was the holder of
that account, the requisite fiduciary relationship did not exist under
(7) default judgment against the Debtor, which provided that only $77,948.06
of the state court judgment was nondischargeable under § 523(a)(4). The
default judgment also awarded attorneys fees in the amount of $124,812.50,
plus post-judgment interest.
(8)To obtain a default judgment of
nondischargeability of a debt, a two-step process is required: (1) an entry
of default (typically by the clerk of court); and (2) a judgment by default.
Cashco Fin. Serv., Inc. v. McGee (In re McGee), 359 B.R. 764, 770 (9th Cir.
Failure to oppose motion to reinstate default is fatal.
In re TONYA CAROL HEERS, BAP Nos. NV-14-1468-DJuKu & NV-14-1469-DJuKu;
Bk. No. 2:13-bk-19887-LED ADV: 2:14-ap-01030-LED (TONYA CAROL HEERS v.
DARRELL PARSONS, JR.; AMERICAN CONTRACTORS INDEMNITY COMPANY)
Son of decedent, not happy that he was notified
timely of his father's death chooses another attorney to take over the
probate. Tax returns (both final and estate) would be necessary and
attorney debtor hires cpa firm. $439,621.61 of interest and penalties
became due, in addition to normal tax, for late filing.
Bullock v. BankChampaign, N.A., was cited for the
impact of defalcation. Bankruptcy court held that there was reckless
conduct. BAP affirmed.
Mastan v. James Harry Salamon and Jeanne Fixler Salamon (In re Salamon)
2015 Bankr. LEXIS (B.A.P. 9th Cir. 4/6/2015). Liens Extinguished on
Foreclosure Sale: §1111(b)(1)(A) #FIRST then §580b(a)(2).
Wellness Int’l Network, Ltd. v. Sharif,
___ U.S. ___, 2015 WL 2456619 (No. 13-935) (May 26, 2015) consent can be
implied as well as express & recommended that courts
require parties to
indicate at the outset of a proceeding whether they so consent, either by
district-wide rule or some
other mechanism, and by the same token that
in any event parties on their own so indicate to avoid confusion.)
re Gallagher) MATTHEW F. GALLAGHER;
MELISSA A. GALLAGHER, v. KATHY A. DOCKERY, Chapter 13 Trustee; BOROWITZ &
CLARK LLP 13-->7-->13 conversion bounce included the trustee asking for
return of released funds due to the first conversion. 105(a) & 542 basis,
held REVERSED. Illustrates a number of mechanisms: (1) upon conversion
from 13-->7, the chapter 13 trustee holds post petition earning and must
refund it, (2) where the debtor receives the refund while debtor is in a
chapter 7, the debtor may freely spend it, (3) upon reconversion 7-->13, if
the debtor doesn't have the money, it is not rightfully owed to the chapter
13 trustee. Also (4)" bankruptcy court entered the Fee Order after entry of
the Conversion Order albeit prior to return of the Refund to the Debtors.
Under these facts, the Chapter 13 Trustee was required to return the Refund
to the Debtors. See In re Clements , 495 B.R. 74, 76 (Bankr. E.D. Pa 2013)
(where no order had been entered denying plan confirmation, and § 503(b)
attorney’s fees were not allowed until postconversion, all postpetition
assets had to be returned to the debtors on conversion to chapter 7)"
In re: EARL JACKSON, JR. and CHERYL HODGES
JACKSON ; MOSES F. ABONAL; (ABONAL
PARALEGAL SERVICES, v. UNITED STATES TRUSTEE),
(9th Cir. BAP 2014) Bk. No. 13-29626
-WB; BAP No. CC-14-1091-DKiTa Judge Brand autopsy
on one of the most egregious petition preparer actions perpetrated. An
excellent example of the "attorney satellite theory" where the petition
preparer represents that they work for an attorney, but where the attorney
has never met the bankruptcy debtors, but had some distant past relationship
with the preparer.
Todd A Frealy v. Rick H Reynolds
(9th Cir. 2015) "Order certifying a question to the california Supreme
Court) Does § 15306.5 of the CA Probate Code impose an absolute cap of 25%
on a bankruptcy estate's access to a beneficiary's interest in a spendthrift
trust that consists entirely of
payments from a principal, or may the bankruptcy
estate reach more than 25% under OTHER sections of
the probate code
(example: CA Probate code §15301(a) which grants access to principal "due
and payable") Bankrupt was, upon father's death, immediately entitled to
$250k and to $100k per year for ten years. Bankruptcy trustee urged that §
15306.5; §15301(b); and §15307 are independent routes and that a 25% blanket
limit would not apply to all routes. Bankruptcy Court ruled for Debtor, BAP
affirmed, and now the 9th wants to hear from CA Supreme Court.
In re: Judy Ann Jensen
(Timothy P. Peabody v. Judy Ann Jensen; Richard A. Marshack Ch 7 Trustee)
(BAP 9th Cir 2015) (1) Substituting in on a chapter 11 requires an
employment app and a fee app, (2) Disgorgement requires application of the
Pioneer-Briones equitable balancing test, (3) Again, don't mix civil and
bankrutpcy practice, it is fraught with problems.
In re WILLIAM DAVID GOLDSTEIN and MOLLY K.
GOLDSTEIN (9th Bap 2015) CC-14-1346-
TaDPa 03/03/2015 Claims relating to long term modification actions and
mortage bad faith were Prepetition Claims
In Sullivan v. Harnisch (In re Sullivan),
522 B.R. 604 (9th Cir. BAP 2014), 15 days after a chapter 11 bare bones
filing, a creditor moved to dismiss for "bad faith filing" and "single
creditor dispute". Former Employer filed motion to dismiss. Bankrutpcy court
would not grant stay on appeal, but BAP did. Held, failure to consider
benefit to all the creditors makes this a bad faith dismissal.
In re Carolyn L Davis
(Carolyn L. Davis v. US. Bank, N.A.; OneWestBank; and Elizabeth F. Rojas)
(9th Cir. 2015) No. 12-60069, Bap No 11-1692. Chapter 12 debt limits are set
at time of filing AND includes in rem debt for property for which personal
debt may have been extinguished in a prior chapter 7.
IN RE: HOKULANI SQUARE INC.,
a Hawaii corporation, Debtor , BRADLEY R TAMM , Chapter 7 Trustee, Appellant , v .
UST .No. 11-60072, BAP No. 10-1468 OPINI ON Appeal from the Ninth Circuit Bankruptcy
Appellate Panel Pappas, Dunn, and Jury , January 26, 2015. $1.5 Million
credit bid is not to be included in compensation per §326(a), which
is "only for moneys disbursed"
In re: Yan Sui
(Yan Sui; Pei-YU Yang v. Richard A. Marshack Chapter 7 Trustee. (9th Cir BAP
2014) appeal challenging a bankruptcy court order barring filing petitions
without prior review. 13 pre-petition cases & 6 post-
petition cases, were
alleged by the trustee to be for nothing more than harrassment. Held,
there are other resort that could be had without blocking access to the
In re Michael Lynn Richter
(Bankr C.D. C.A. Jan 20, 2015) See Judge YUN - Redemption rights. Right of
Redemption is separate and apart from a right to cure a default in a chapter
13 plan. §1322(b)(3) and (b)(5)
§ 1322(c) (1),
limitation = REDEMPTION MUST OCCUR BEFORE SALE.!!!
"Gavel Rule" v. "Deed Delivery Rule" The rule
protects such purchasers “by avoiding an interpretation that turns
§1322(c)(1) into a federal vehicle for divesting them of property rights
acquired at foreclosure sales.” Connors 497 F.3d at 323;
Neither definition under
§101(5) is broad enough to include this redemption relationship between a
new third - party purchaser and a prior owner as a “claim.” What the auction
winner has is not "a right to payment". Not a “claim” unless the underlying
breach can give rise to a monetary remedy.
Arguing that the
foreclosure buyer is an entity that has no claims ( IS DANGEROUS).
108(b) could be the 3rd option. Trustee must CURE or PERFORM before the
period or 60 days after the order for relief. You have to deposit the
Foreclosure buyer was never listed or noticed.
(another reason to serve the world and tell everyone when you file
bankruptcy). Made no effort to contact the foreclosure buyer. Further,
plan didn't state plainly what it was trying to accomplish. [A] plan should
clearly state its intended effect on a given issue. Where it fails to do so
it may have no res judicata effect for a variety of reasons:
redemption involves the
plan inclusion of the foreclosure sale price and NOT the arrears.
At a minimum, the Plan needed to provide
(1) that the prepetition foreclosure sale be set
aside and Rustling Oaks’ Certificate of Foreclosure Sale rescinded
(2) sale proceeds
(3) HOA assessment lien be reinstated. received by all parties be refunded
back to Foreclosure buyer
No signal to un-do sale and take foreclosure sale
In re: PATRICK ROY LEWIS
(KALLMAN & COMPANY LLP, v. DAVID K. GOTTLIEB, CHAPTER 7 TRUSTEE; JUDITH
LEWIS )) BAP No. CC-13-1367-TaDKi, Bk. No. SV 11-
§ 363(i) sale superceding rules, esp community property right to purchase
McNeal. Bank of Amer. v. Toledo-Cardona, (11th Cir.
2014) No. 14-163 and Bank of Amer. v. Caulkett, No. 13-1421 (petition
granted Nov. 17, 2014) Chapter 7 lien-strip-off case that might
invalidate Dewsnup v. Timm, 502 U.S. 410 (1992)
In re: EDWARD E. ELLIOTT,
(EDWARD E. ELLIOTT v. DIANE C. WEIL) (9th Cir BAP 2014) BAP Nos.
CC-14-1050-KiTaD & CC-14-1059-KiTaDBk. No. SV 11-23855-VK;
Embellishes Law v. Siegel and holds that one who hides property cannot lose
exemption, however... (1) transfer of homestead abrogates declared
homestead. But loss of the declared homestead is not dispositive of his
right to a homestead exemption. Declared homestead exemption apply only in
the context of voluntary sales, whereas, declared homestead for purposes of
Article 5 was effectively abandoned or destroyed when he conveyed title to
the Buckingham Property to S. Central in 2006; it was not resurrected by his
reacquisition of title from LWI in 2012. The filing of a bankruptcy petition
constitutes such a “forced sale” to trigger the application of the automatic
homestead exemption. Conveyance of the Buckingham Property’s title to a
third party does not defeat his right to an automatic exemption, because continuous
residency, rather than continuous ownership, controls the Article 4
analysis. Accordingly, the automatic homestead exemption applies to
any interest in the property if the debtor
satisfies the continuous residency requirement set forth in CAL. CIV. PROC.
CODE § 704.710(c). HOWEVER, §522(g)(1) + recovery limits
In Re Gigi Ellis
(9th Cir. BAP 2014) nO cn-14-1052-pAjUkU BK No. 13-33612. Court may
recognize intervening events after the case being appealed from, including
conversion, dismissal & discharge to enable a holding of mootness. Shortened
Notice conditioned with a time limited service requirement may be relaxed by
substantial compliance, including Fed Ex; and debtor who stated that she
would not attend is held to know of the hearing.
Daniel W. ALLEN, Sr., Debtor. Advanced Telecommunication Network, Inc.,
(3rd Cir. 2014) Appellant.No. 13–3543. Decided: September 26, 2014:
(1) § 541 is internally consistent.
Subsection (a) provides that the estate includes property “wherever located
and by whomever held.” 11 U.S.C. § 541(a). If “recovers” is interpreted as
requiring actual possession, it would render the “wherever located and by
whomever held” language superfluous, since actual possession would mean that
no one but the trustee could ever possess estate property. Courts should
avoid interpretations of statutory language that render other portions of
the statute superfluous.
(2) ATN obtained a § 550 recovery order, thus
bringing the funds within its estate in the Florida proceedings. none
of the decisions cited by the New Jersey Federal Courts required a debtor to
recover actual tangible possession of the funds at issue in order to make
those funds part of the debtor's estate under § 541(a)(3). We will not
impose such a high hurdle, particularly where doing so would allow Allen to
continue avoiding the judgment against him.
(3) Section 727(e) provides in full:The trustee, a
creditor, or the United States trustee may request a revocation of a
discharge—(1) under subsection (d)(1) of this section within one year after
such discharge is granted; or(2) under subsection (d)(2) or (d)(3) of this
section before the later of—(A) one year after the granting of such
discharge; and(B) the date the case is closed. 11 U.S.C. § 727(e).
In re Solar Trust of America, LLC, (No. 12-11136, 2014 WL 4068635
(Bankr. D. Del. Aug. 18, 2014) the US Bankruptcy Court for the District of
Delaware held that a claimant submitting foreign materials with a proof of
claim must provide an English translation of those documents in their
entirety. Note ALWAYS provide TRANSLATIONS for any submitted foreign
documents for the court.
In re Brady, 2014 WL 1330020 (Bankr. E.D. Wash. 2014) Accessories (& their
security agreements) are Accessions to vehicles having vehicle security
RE: RUFENER CONSTRUCTION, INC., (9th Cir. 1995( Debtor. CARPENTERS
HEALTH AND WELFARE TRUST FUNDS FOR CALIFORNIA, et al., Creditors-Appellants,
v. Jerome ROBERTSON, Trustee-Appellee. No. 93-16098. Decided: May 8, 1995;
Section 1113(f) of the bankruptcy code limits the power of a bankrupt
company to unilaterally terminate or modify the terms of a collective
bargaining agreement. However, §1113(f) DOES NOT apply to bankruptcies filed
under Chapter 7 of the Code. Operating Engineers Trust Funds and the
Carpenters Trust Funds (hereinafter “Trust Funds”) filed separate claims
against the estate totaling almost $75,000 for employee benefit
contributions payable under collective bargaining agreements.
Liquidation uses §507, the provision that usually governs claims for wages
and benefits. §1113(f) “super-priority” status is not for Ch7.
In Re: Jeri L. PACE,
Debtor. (9th Cir. 1995) John E. HAVELOCK; John R. Strachan, Appellants, v.
Harold S. TAXEL, Trustee, Appellee. No. 93-56685. Decided: June 8, 1995.
In AK, January of 1985, the Corporations sold their assets, including the
liquor licenses, to two individuals and a newly formed corporation. As the
result of their attorneys' failure to include the two licenses in the UCC
filings at the time NPC acquired the Corporations' assets, LeMai and Pace's
purported security interest in the licenses was invalid.
In re Renee Michelle Schwalb
(DC NV 2006) BK-S-05-17766-LBR Judge Markell pens a fascinating history of
pawnbroking and the requirement that under Nevada law, holding an unrecorded
title is not effective under UCC-9.
LeMai and Pace filed a malpractice action
against their former lawyers in Alaska state court in October of 1987 Pace
did not amend his bankruptcy schedules of assets and liabilities to include
the law suit. In May of 1988, LeMai filed her own Chapter 7 petition in
bankruptcy in California, where she had moved following her divorce. LeMai
failed to include her Alaska state claim for legal malpractice as an asset
on her schedule of assets and liabilities.3
Believing LeMai's estate to be devoid of assets, the trustee allowed an
order of discharge to be entered in September of that year. Five months
later, the California bankruptcy court closed LeMai's case. When the
defendant attorneys in the state court action (“the Defendants”) learned of
LeMai and Pace's nondisclosures, they urged the Appellants to inform the
trustees in the two closed bankruptcies that the malpractice action
constituted an asset of their respective bankruptcy estates. The U.S.
Trustee in turn notified Harold S. Taxel (“Taxel”), former trustee in the
LeMai bankruptcy. Taxel successfully petitioned the California bankruptcy
court to reopen LeMai's case, and on February 7, 1991, the bankruptcy court
reappointed Taxel as trustee. Taxel immediately informed the Appellants
that LeMai's bankruptcy estate had been reopened, explained that her
interest in the legal malpractice action constituted property of the
bankruptcy estate, and warned that any further prosecution of the Alaska law
suit would constitute a violation of the Bankruptcy Code's automatic stay
provision. The Appellants ignored the warning and continued to prosecute
the Alaska case. Held: The BAP's conclusion that Taxel may recover his
costs and attorney's fees as damages under 11 U.S.C. § 105(a) is AFFIRMED
using the Pace precedent.
Latman v. Burdette
(Richard K. LATMAN; Bettina L. Latman, Plaintiffs-Appellants, v.
Virginia BURDETTE, Trustee, Defendant-Appellee, Bankruptcy Appeals Clerk,
Real-party-in-interest. v. Virginia Burdette, Trustee, Defendant-Appellant,
Bankruptcy Appeals Clerk, Real-party-in-interest. (9th Cir. 2004) Nos.
02-35538, 02-35545. Decided: April 29, 2004..Bankruptcy Court for the
Western District of Washington that had granted the bankruptcy trustee's
motion to surcharge the Latmans' bankruptcy exemptions to account for funds
not properly disclosed in the Latmans' bankruptcy filings. Held: bankruptcy
court's surcharge remedy was a permissible equitable remedy under the
Bankruptcy Code, and was not barred by election of remedies or res judicata.
Order of bankruptcy judge grantingthe Trustee's surcharge motion, ordering
(1) that the Latmans' § 522(d)(5) “wild card” exemption be surcharged
$7,000, to account for the proceeds of the pre-filing car and boat sale, and
(2) that the Latmans turn over $8,013.52 in cash to the Trustee, or have
this amount also charged against their “wild card” exemption, is upheld.
Lehtinen, 332 B.R. 404 (9th Cir. BAP 2005) United States Bankruptcy
Appellate Panel for the Ninth Circuit Date Filed: October 11th, 2005,
Status: Precedential; Docket Number: BAP No. NC-04-1534-BMAS, Bankruptcy No.
03-46972; Judges: Brandt, Marlar, and Smith, Bankruptcy Judges (Northern
District Suspend Attorney 3 months for sending substitute counsel for 341(a)
IN RE DEL MISSION LTD.No.
95-55658. 98 F.3d 1147 (1996) (In re DEL MISSION LIMITED, Debtor. STATE OF
CALIFORNIA EMPLOYMENT DEVELOPMENT DEPARTMENT; State of California
State Board of Equalization, Appellants, v. Harold S. TAXEL, Trustee for Del
Mission Limited, Appellee. United States Court of Appeals, Ninth
Circuit. Argued and Submitted August 9, 1996.
Decided October 23, 1996.
State Requirement to pay arrears as a condition of sale & transfer of
liquor license is void.
Schultze v. Chandler (9th Cir. July 18, 2014, amended August 1,
2014).malpractice claim for an unsecured creditors’ committee is a core
proceeding. Final purchase of debtor entity included liens not
recorded by DIP attorney or buyer attorney. (I) Core proceeding
because: (1) attorney’s employment & compensation approved by the bankruptcy
court; (2) attorney duties pertained solely to the administration
bankruptcy estate; & (3) the claim for malpractice was based solely on
actions for administration of the estate. (II) Committee counsel was held
not liable by the bankruptcy court because no duty was owed to
Plaintiffs individually (maybe and especially where they had differing
interests and differing ability to secure their property) because Committee
was represented as a whole, & not individual members.
In re Mark Dingley (Mark Dingley v. YELLOW EXPRESS, LLC) (9th Cir. BAP
Aug 2, 2014) Ill Advised chance taken that civil contempt would not be
covered by the stay. Creditor wins, but Debtor is encouraged to appeal, (imo
because no MRS) and creditor is duly warned by Judge Jury (really brilliant
analysis) that at the next opportunity, creditor will get slammed. Moral of
the story? Why didn't creditor attorney ask for relief from stay? Not smart,
even in my limited view.
Minutiae to be given no weight in future excuses
to avoid RFS: Stay proceedings: (1) Stay does not apply to debtor's LLC's,
(2) proceeding addressing disobedience of a state court order made prior to
the stay was not meant to be suspended (especially where state proceeding
did not “‘attempt in any way to interfere with the property which had passed
to the control of the bankruptcy court; it sought merely to vindicate
its dignity which had been affronted by the contumacious conduct of a person
who ignored its order. - Here Debtor had been ordered to pay attorney’s fees
and costs to Appellants due to his noncooperation with discovery. therefore
no violation of the stay)
In Re TV,
LLC, A California Limited Liability Company, (CITY OF EL MONTE, for itself
and as successor-in-interest to the El Monte Community Redevelopment Agency
v. ISAAC ZFATY and ZFATY BURNS) (9th Cir 2014) No. 12-56445 2:12-cv-02222-PA
One who responds to a frivolous appeal and who seeks sanctions must provide
notice through a separately filed motion (maybe to let them know before
costs are incurred) under Fed.R.App.P 38 and Gabor v. Frazer, 78 F.3d 459
(9th Cir. 1996) Use of show cause hearing for contempt, launched without any
evidence will be denied, but the target of the show cause cannot get
sanctions for a frivolous appeal without a motion. (Let the courts know
early that its frivolous)
IMAGINE FULFILLMENT SERVICES, LLC. (Imagine Fulfillment Services, LLC v.
DC Media Capital, LLC,) (9th Cir. BAP Aug 6, 2014) in the Ninth Circuit, a
state court judgment was not a contingent debt.
Hart; Hart v. Southern Heritage Bank (6th Cir 2014) constitutional
authority to enter a final monetary judgment in a dischargeability action
under 11 U.S.C. § 523(a)(2)(B). Bank requested that the court amend the
order to include an entry of judgment on the amount of each non - disc
hargeable loan. The bankruptcy court did not exceed its authority by
entering a final monetary judgment, even though the decision precluded Hart
from pursuing counterclaims in state court. Hart filed counterclaims in
state court and intended to pursue them later, but Hart filed no
counterclaims in federal court at the discharge adversary proceeding. If the
bankruptcy court had entered a judgment that directly extinguished
counterclaims filed in state court, and those claims were separate and
independent from the bank ruptcy proceedings (like the counterclaim in Stern
), then the bankruptcy court arguably would have exceeded its authority. See
Stern , 131 S. Ct. at 26 11 . But, here, the bankruptcy court did not
address Hart’s state counterclaims directly because she had not filed any.
In addition, the bankruptcy court preserved for Hart an opportunity to
benefit from the state - court litigation between the Bank and Optimum by
reserving the possibility of an offset for Hart were Optimum to succeed.
In re William HILL and Kathleen Hill,
Debtors. 440 B.R. 176 (Bankr SD.CA 2010) Technical constructs permitting
chapter 20 lien strip without a chapter 13 discharge are detailed.
Drummond v. Welsh (In re Welsh), 465 B.R. 843 (B.A.P. 9th
Cir. 2012) Big Ticket is the Ticket for Chapter 13.
re KVN Corporation, Inc., (9th Cir BAP. 7/11/2014), Carveouts
“BAP” reversed denial of motion for approval of a stipulation between
trustee and secured creditor to liquidate fully encumbered property in
exchange for a carve out from the lien proceeds paid to the bankruptcy
estate. Held: carve-outs presumed improper, but the bad presumption
can be rebutted: (1) the trustee is performing basic duties; (2) benefit to
the estate due to distribution; (3) carve-out terms fully disclosed.
FDIC v. Siegel (In re Indymac Bancorp, Inc.), No. 12-56218 (9th Cir.
Apr. 21, 2014) $55 million tax refund paid to a bank holding company
on account of losses suffered by a defunct subsidiary IS a 11 U.S.C. §
541(a) asset of the holding company’s bankruptcy estate.
Controlled group upflow of tax attributes only allowed outside of
bankruptcy. Tax Sharing Agreement (“TSA”) created debtor
relationship. Argument: (1) federal common law establishes a
presumption that a parent company receiving a tax refund attributable to
the business operations of a subsidiary holds the refund in an implied
or constructive trust for the benefit of the subsidiary; (2) Trustee
presumptively rejected the TSA and thus the TSA is void ab initio. (3)
TSA violated federal banking law by retaining the Refund & created a de
facto loan by the Bank to an affiliated entity without collateral or the
payment of market interest—a violation of 12 U.S.C. § 371c.
Counter Argument: In response, (1) TSA altered the rights in any
tax refund, (2) no significant federal concerns or conflicts with state
common law—two necessary prerequisites to the application of any federal
common law principal, (3) it was error to assume that Bank was the true
and rightful owner of the Refund, & (4) rejection of the TSA was
immaterial as the rejection of the TSA merely constituted a breach
potentially entitling the FDIC to damages for breach of contract.
Holding: Focus was on Bob Richards-- & whether the TSA created a
debtor-creditor relationship (the Trustee’s position) or whether Bob
Richards created a presumptive agency relationship between Bancorp and
the Bank (the FDIC’s position). Held: the TSA created a debtor-creditor
relationship between Bancorp and the Bank. District Court affirmed.
DeNoce v. Neff (In re Neff),
505 B.R. 255 (9th Cir. BAP 2014). 727(a)(2)(A) LOOK BACK is not a “statute
of limitations” subject to equitable tolling but a “statute of repose”.
Fraudulent Transfer. 727
(a)(8) does not contain the two required
characteristics for a limitations period: (1) it does not prescribe a period
of time within which a plaintiff must pursue a claim, and (2) the time
period does not commence when a claimant has a complete and present claim
IN RE: THE MORTGAGE STORE, INC., MANO-Y&M, LTD., v. DANE S. FIELD,
Trustee; (9th Cir. 2014) No. 13-16020 Nos. CV 12-0653
JMS KSC; 10-03454 (Chapter 7) Adv. Pro. No. 10-90146 Since 550(a) does
not define the term "initial transferee" , how is the first transferee
determined? Use the Dominion Test (In Re: The Mortgage Store, Inc. Argument
that "one who receives and distributes funds on behalf of a principle is
causing the principal to be the "initial transferee". Examples include
escrow agents. (BAP held that escrow person was distributing as to his own
authority.) 9th circuit holds that In re Incomnet dominion test is the
proper one to apply. In re Incomnet, 463 F.3d 1073 holds also that "holding
legal title" to the funds is a significant factor. (3rd party is always
injured due to debtor's obligation to creditors" Initial transferees are
deemed to be in a position to "monitor" the debtor for fraud. Held,
"MANO is the initial transferee" and "MANO made no alternative arguments and
Donna Marie WALLS,, Plaintiff-Appellant, v. WELLS
FARGO BANK, N.A., Defendant-Appellee.
(9th Cir. 2002) No. 00-17036.
Jeanette RANDOLPH, Plaintiff-Appellant, v. IMBS, INC., Defendant-Appellee.
368 F.3d 726 (7th Cir.2004)
Barry Hammond v. Adam Ross Paul Inc.
(N.D. TX 6-18-2014) collectively, 143 phone calls were placed to Plaintiff’s
phone number (972) 285-6920, from the Defendant’s phone numbers (877)
838-5002, (877)838-5005, and (877) 838-5008, after Debtor received his discharge.
Defendants used an automatic telephone dialing system and a prerecorded
voice to deliver a message when contacting Plaintiff. Further:
Defendant Adam Ross Paul is a successor-in-interest to Defendant Anderson
Randolf Price LLC, and carries on the exact same business, collecting on
accounts that Anderson Randolf Price LLC previously collected on, with the
same individual principals, and the same phone numbers. The court finds that
there was no legitimate business purpose for creation of the new entity.
Accordingly, this court holds that Defendants Adam Ross Paul, Inc. and
Anderson Randolf Price, LLC are to be treated as one and the same for legal
purposes, under either alter-ego principles, corporate sham principles, or
other, similar veil-piercing principles. Held: Anderson Randolf Price
L.L.C., should pay Plaintiff $200.00 for each of 140 telephone calls,
totaling $28,000.00, to compensate Plaintiff for Defendants’ actions and
omissions in an attempt to collect a debt in willful violation of the
Litton Loan Servicing v. Robert Blendheim
(9th Cir 2014) No. 13-35354.Ocwen
Loan Servicing LLC appeals the district court's affirmance of the bankruptcy
court's orders regarding avoidance avoidance of a lien in a chapter 13 case.
[2:11-cv-02004-MJP] Q: Stripping of the
lien from the debtors property is only contingent upon successful completion
of the debtor’s chapter 13 plan, rather than upon discharge?
Crawford vs. LVNV Funding, LLC, 2014 Westlaw 3361226 (11th Cir.)
Just as LVNV would have violated the FDCPA by filing a lawsuit on stale
claims in state court, LVNV violated the FDCPA by filing a stale claim in
re Darrel V. SHANK, (Darrel V. SHANK, Plaintiff-Appellee, v. WASHINGTON
STATE DEPARTMENT OF REVENUE, EXCISE TAX DIVISION,
No. 85-4042. 792 F.2d 829 (9th Cir 1986) Background on Washington's sales
tax law, and in which it was held to be a trust fund.
Wu v. Markosian (In re Markosian) – 9th Cir. BAP (3/12/14). The
United States Bankruptcy Appellate Panel of the Ninth Circuit (the “BAP”)
has affirmed a bankruptcy court’s ruling that individual debtor’s
chapter 11 post-petition earnings which are property of the estate under §
1115 revert to him or her upon a subsequent conversion to chapter 7.
Clark v. Rameker 6/12/14 (2014) Inherited IRA is not exempt, &
not “retirement funds” per 11 U.S.C. §522(b)(3)(C).
Spokane Law Enforcement Federal Credit Union v. Barker (In re Barker),
(9th Cir. BAP March 28, 2014) disgruntled employee” failed to timely
file the credit union’s proofs of claim. Excusable neglect
standard not applied under Bankruptcy Rule 9006(b)(1) as to proofs of
claim in chapter 13 cases.
Mingueta, 338 B.R. 833 (Bankr. C.D. Cal. 2006) Budget and Credit
Counseling prior to filing was not done. Having neither obtained
credit counseling nor established grounds for a temporary or permanent
waiver of § 109(h)(1)'s credit counseling requirement, Mingueta was
ineligible to be a debtor when his chapter 13 petition was filed on
January 4, 2006. Accordingly, Mingueta's request for an exemption from §
109(h)(1)'s credit counseling requirement is denied and the case will be
dismissed without prejudice.
Boyle Avenue Properties v. New Meatco Provisions, LLC (In
Re New Meatco Provisions, LLC), (9th Cir BAP. 5/30/14)rejection of a
commercial lease retroactive to the date of the filing despite subtenant
of the debtor still in possession of the premises due to quick action,
no delay and expedited hearing request.
RONALD A. NEFF, v. DOUGLAS J. DENOCE, (In
re: RONALD A. NEFF) (9th Cir BAP 2/1/2014) Nos. CC-12-1664-KiTaD,
CC-13-1017-KiTaD, (cross appeals), Bk. No. 11-22424-VK. The key to
disability is inability to perform useful gainful work at the time of
filing of the current bankruptcy case. The homestead exemption can only
be denied by a bankruptcy judge. Sloppy records submission can
harm a case. Once Debtor produces and begins to carry the burden,
the creditor should clearly produce sufficient evidence to rebut,
and this was not done. CCP § 704.730(a)(3)(B) homestead exemption was
improperly denied. Transactions that were reversed without the
direct action of the trustee are not subject to § 522(g) limits of the
ability of a debtor to claim an exemption where the trustee has
recovered property for the benefit of the estate. Under § 522(g)(1), a
debtor may claim an exemption where the trustee has recovered property
under §§ 510(c)(2), 542, 543, 550, 551 or 553 only if (1) the property
was involuntarily transferred, and (2) the debtor did not conceal the
transfer or an interest in the property.
Richardson v. Melcher (In
re Melcher) (9th Cir. BAP April 11, 2014). Near-Vexatious
litigant that drained the estate to control Stonewall property that
should have normally went to trustee sale. Because Vexatious
Litigant status was not confirmed, the court ruled that a ban on the
debtor's filing pleadings could not be imposed. Held: Bankruptcy court
abused its discretion in not allowing the "Lack of Standing Motion"
because it failed to avail itself of 28 U.S.C. §1651(a), aka the “All
Writs Act,” which enabled bankruptcy courts, to issue all writs
necessary or appropriate in aid of their respective jurisdictions”.
The court cited DeLong v. Hennessey, 912 F.2d 1144, 1146 (9th Cir.
1990). The court cited factors from Safir v. U.S. Lines, Inc., 792
F.2d 19 (2nd Cir. 1986), that should have been considered.
Schwartz-Tallard v. America’s Servicing Company (In
re Schwartz-Tallard), 751 F.3rd 966 (9th Cir. April 16, 2014)
Distinguishes rule of Sternberg v Johnston, 595 F.3d 937 (9th Cir.
2010), cert. denied 131 S. Ct. 102 (2010), and holds that fees
incurred in defending ASC’s appeal of the order enforcing the stay were
“actual damages” under Section 362(k)(1). Under Sternberg,
attorneys’ fees incurred in prosecuting a damages action will not serve:
(1) debtor breathing spell; and (2) to protect non violating creditors
from each other. Defending an appeal of stay violation order was
more like a shield.
Viet Vu, VIET VU and Mai Vu Debtor Appellants v. John T. Kendall,
Chapter 7 Trustee, Appellee. 245 B.R. 644 (February 8, 2000); BAP No.
NC-99-1523-RyMeR. Bankruptcy No. 92-50827-JRG-7. Pursuant to § 541 and
Ninth Circuit precedent, the Property became property of the estate as
of the Filing Date and any postpetition appreciation inured to the
benefit of the estate. Further, the assertion that there was "no
equity available to the estate once their postpetition mortgage payments
and improvements to the Property were reimbursed as an administrative
expense claim" was rejected. "[B]ecause Debtors had not yet sought
approval of their administrative expense claim, any amount that they
claimed was merely speculative. Further, Debtors provided no evidence
that the source of their payments was their postpetition income."
Gebhart, 621 F. 3d 1206 - Court of Appeals, 9th Circuit 2010
debtors filed for Chapter 7 bankruptcy at a time when the value of the
equity in their homes was less than the amount they were eligible to
claim under the state or federal homestead exemption. Discharge on
December 12, 2003. However, the bankruptcy case was not closed,
and on November 10, 2006, the Trustee asked the bankruptcy court to
approve the appointment of a real estate broker to sell the home for the
benefit of the estate. Held: (1) case was left open and trustee can act
even much later, (2) no abuse or estoppel for acts of the trustee, and
(3) post filing appreciation, even if much later inures to the estate.
In re: Santiago Omar Hernandez and Michelle Patrice Hernandez,
EC-12-1537-DJuMk (9th Cir. BAP 2013) Appeal of chapter 7 trustee objection
to exemption claim in Ms. Hernandez’s contingent beneficial interest in her
mother’s irrevocable trust. Debtor would have to survive her mother in order to receive a mandatory distribution of Trust principal. It
had both Crummey and Spendthrift provisions:
time a gift is made by any donor to a trust governed by this agreement, the
beneficiary of that trust shall have the immediate right to demand and
receive [sic] immediate amount that may be withdrawn shall be the amount of
the Internal Revenue Code section 2503(b) annual gift tax exclusion
remaining available to the donor for gifts made to the distribution rights
holder in the calendar year in which the gift is made. . . .”
Further, citing In Neuton v. Danning (In re Neuton),
922 F.2d 1379
(9th Cir. 1990), C.P.C. §§
15301-15307, [T]he Probate Code provides that
despite such restraints a creditor may obtain an “order directing the
trustee to satisfy all or part of the judgment out of the payment to which
the beneficiary is entitled under the trust
instrument,” so long as the payment does not “exceed[ ] 25% of the payment
that otherwise would by made to . . . the beneficiary.” [C.P.C.] §
15306.5. In other words, the spendthrift restriction fully protects only 75% of the interest in the trust. Because the
trustee enjoys the power of a hypothetical
judgment creditor, [§ ]
544(a)(1), we agree with the BAP that the remaining one-fourth is not
excluded from the estate pursuant to [§ ] 541(c)(2). In short, the
bankruptcy estate possesses an income interest in one-fourth of the payments
due to Neuton . . . The relevance of § 15306.5 is that it removes 25% of
[Neuton’s] interest in the trust from traditional spendthrift status.
Also the court cited Neutron as rejecting the idea that: C.P.C. § 15307 gave
the trustee a means beyond the 25% limitation of C.P.C. § 15306.5 to reach
any amount to which the debtor/beneficiary of a spendthrift trust was
entitled in excess of what he needed for education and support.
v. Siegel, Chapter 7 Trustee, __ U.S. __, 134 S.Ct. 1188, 2014 WL
813702 (March 4, 2014). Trustee who prevailed in a nondischargeability
action may not surcharge a debtor's exemptions making those funds
available to defray attorney’s fees incurred by Siegel in overcoming
Law’s fraudulent misrepresentations.
Benefits Ins. Agency v. Arkison
__ U.S. __, (June 12, 2014) Stern claims create statutory “gap,” but
which may be closed by severability feature with the balance of claims
not affected. (Appeal of the 9th Circuit Bellingham decision)
Brosio v. Deutsche Bank Nat’l Trust Co. (In re Brosio), BAP No.
NC-13-1119-KiDJu (9th Cir. BAP Mar. 7, 2014). Prevailing party
requires a Judge's finding. Changing your proof of claim is akin
to a dismissal.
In re Melbourne John CIOTTA, Jr., Linda Lee Ciotta, dba H & M Coatings,
(IN RE CIOTTA) 222 B.R. 626 (CD CA Bankr. 1998) No. LA 98-17122-ER
United States Bankruptcy Court, C.D. California, Los Angeles Division.
July 15, 1998. Debtors claim a $28,000 exemption for a prepetition
sexual harassment lawsuit, but shows no evidence of actual damages.
Bankruptcy judge very kindly allows debtor extra time to bring such
proof, even though it appears to have a de minimis probability.
Dale v. Maney (In re Dale), 505 B.R. 8 (B.A.P. 9th Cir. 2014)
excluding the husband’s inheritance proceeds from the chapter 13 estate
pursuant to 18 U.S.C. § 541(a)(5)(A) and 18 U.S.C. § 1306(a)(1) is
denied. Chapter 13 specific language trumps 541(a)(5)(A)’s 180-day
limit and is property of the estate.
In re Dennis J. Cook (9th Cir Bap 2008) Later inheritance from trust
is not part of the bankruptcy estate
In re Rader, 488 B.R. 406 (9th Cir. BAP 2013) Deficiency claim is
not properly disallowable simply because of failure to file suit. (1)
MRS should state that the relief from stay include the deficiency
judgement suit, (2) Judge can clarify whether Judge would prefer to have
deficiency tried as a state court action or adversary proceeding.
In re Fitness Holdings International, Inc. 714 F.3d 1141 (9th Cir
2013) Intercorporate loans can be recharacterized as equity investments in the
context of a fraudulent transfer action. Here, a corporation
"repaid" money to a sole shareholder for a purported loan.
In re Pavelich, 229 BR 777. BAP 9th Cir. 1999 violation of the
discharge injunction voids a postdischarge judgment
Blade Energy PTY LTD.; Claire Energy PTY
LTD.; Derek M. Willshee; James R. Zadko v. Jacqueline Rodriguez (In
re Jacqueline Rodriguez) (9th Cir. BAP December 19, 2013) BAP No.
CC-13-1256-DKiTa. Dismissal of plaintiff creditors' opposition to
discharge adversary proceeding with prejudice as a sanction for their
failure, through counsel, to comply with initial discovery rules and the
bankruptcy court’s local procedural rules is affirmed. “Early
Meeting of Counsel and Status Conference Instructions” (“Rule 26
Instructions” to meet at least 21 days before the status conference date
“Initial Status Conference” & comply with LBR 7026-1 was required.
Anil Sachan v. Benjamin Moonkang Huh (In re Benjamin Moonkang Huh),
506 B.R. 257 (9th Cir. BAP March 11, 2014) vicarious liability for fraud
in a discharge & Ninth Circuit BAP Rule 8012-2(a), (c) & (d)
In re Vassau, 499 B.R. 864 (Bankr. S.D. Cal. 2013) Preference to
oversecured senior creditor which can place junior undersecured
creditor in a better position IS a voidable transfer. Put another way,
but for the Transfers, Junior Lienholder would have a secured claim of X
and an unsecured claim ofY. Due to the Transfers, Junior Lienholder has
a secured claim of X plus $41,716.45 and an unsecured claim of Y minus
$41,716.45. (In theory, but for the existence of the junior
undersecured creditor, money paid to the senior oversecured creditor
would free up further property equity for availability to the
Defoor v. Rafel Law Group PLLC (In
re Defoor) (BAP 9th CIR 2014) discharge denied (727 (a)(5)) where
debtor did not account generally for the loss of pre-bankruptcy assets.
Debtor must respond to a level of comfort of the bankruptcy court. Cited
Retz v. Samson (In re Retz), 606 F.3d
1189, 1205 (9th Cir 2010), creditor has the initial burden of
showing that (1) owned assets near petition date, then (2) not owned at
petition date & (3) documents don't explain the loss. Vague answers
don't cut it. Bell v. Stuerke (In re Stuerke), 61 B.R. 623, 626 (9th
Cir. BAP 1986) (citing In re Chalik, 748 F.2d 616, 619 (11th Cir.
No double-dipping for damage awards where it was attempted to
obtain a fraudulent transfer judgement AND a judgement damage award for
thwarting collection cannot add on further damages. In Renda vs.
Nevarez, 223 Cal.App.4th 1231, 167 Cal.Rptr.3d 874 (2014).] See
immediately below. An $800,judgement prevented a further judgement
for damages to be added on.
Shapiro v. Henson (9th Cir. January 9, 2014), Ninth Circuit
held that the trustee’s turnover power is NOT restricted to recovery of
property from entities having only current possession. Debtor here
had a checking account with $6,955.19 and several outstanding checks
on the date of filing. The outstanding checks were voidable, the
estate was entitled to the full $6,955.19 amount at filing (minus any
exemptions) and any checks not cleared on filing day were avoided.
This case provides ANOTHER excellent motivation (and indeed,
justification) for debtors to clean out their bank accounts BEFORE
filing so that they can control and have certain knowledge of their cash
on hand at the day of filing. If it was bad practice to leave an
account in place on the day of bankruptccy petition filing, Shapiro v.
Henson makes it a TERRIBLE practice. Closing out bank
accounts just before petition filing clears a number of potential
Bendetti v. Gunness (In re Gunness)(9th Cir. BAP January 16, 2014),
imonies owed directly to ex-spouse's attorney is dischargeable pursuant
to 11 U.S.C. § 523(a)(5) and (15) because the debt did not relate to a
debt owed to a spouse, former spouse or child “of the debtor.”
Debtor was drawn into a dispute between debtor's husband's ex-spouse
based upon fraudulent transfer using California Rule of Court
5.158(b).which permits the joinder of a party holding an interest in
property alleged to be community property. Then, debtor filed for
bankruptcy relief, and brought an adversary proceeding for declaratory
relief that the judgment was not subject to either Sections 523(a)(5)
(support awards) or 523(a)(15) (non -support domestic relations
awards). For debts under 23(a)(5) or (a)(15) to apply, a familial
relationship must bethe debt must be for the benefit of a spouse, former
spouse or child of the debtor ; and in this case, the relationship
between the debtor and the debtor's husband's ex-wife was not such a
Rivera v. Orange County Probation Dep’t (In re Rivera),
Case No. CC-13-1476-PaKiLa (9th Cir. BAP June 4, 2014), county bill for
food, clothing, & medical care for incarcerated minor are
nondischargeable “domestic support obligations” of the parents per 11
U.S.C. § 523(a)(5).
v. Starkus (In Re Chionis), BAP No. CC-12-1501-KuBaPa, slip op.,
2013 WL 6840485 (9th Cir. BAP Dec. 27, 2013). discharge injunction under
11 U.S.C. § 524(a)(2). Creditor cites “no discharge” provisions
contained in the guaranty and proceeds, after discharge, to file small
claims court actions.
The bankruptcy court, based on a diverticulated
"technical" (delusional?) subjective belief, inferred that creditor did
not actually know that the discharge injunction applied to the debt.
Bankruptcy court cited Ninth Circuit Court of Appeals decision in
ZiLOG, Inc. v. Corning (In re ZiLOG, Inc.), 450 F.3d 996, 1007 (9th Cir.
2006), which required debtors to prove by clear and convincing evidence
that the alleged contemnor KNEW and INTENDED the action. ZiLOG was
distinguished as a technical "notices" case in which the debtor muddied
the water by sending confusing notices to employees about their
bankruptcy rights. Held, the debtor clearly showed the
appropriately clear and convincing evidence.
Janura et. al. v. Saridakis (In
re Saridakis), BAP Nos. 13-1028 and
13-1029-(consolidated), slip op., 2013 Bankr. LEXIS 5194 (9th Cir. BAP Dec.
10, 2013) discovery of a default judgment after BK trial won't
displace the BK courts special finding on dischargeability.
SALAHELDIN ABDELGADIR and AFAF WAHBI In re Abdelgadir (455 BR 896 – Bankr.
Appellate Panel, 9th Circuit, 2011) Published Opinion NV-11-1021-HJoJu
08/16/2011. When is "primarily a residence" triggered, AND what if the
residence is also a business?
Scarborough v. Chase Manhattan Mortg. Corp. (In re Scarborough), 461
F.3d 406, 411 (3d Cir.2006) (concluding that a claim secured by real
property that is, in part, not the debtor’s principal residence under
the terms of the mortgage, may be modified.) We conclude that a
mortgage secured by property that includes, in addition to the debtor's
principal residence, other income-producing rental property is secured by
other than the debtor's principal residence and, thus,
that modification of the mortgage is permitted.
Hughes v. Fukishima (In
re Raj Kamal Corporation), 11-36184, EC-12-1648-KiPaJu (BAP 9th Cir.
Dec. 17, 2013) attorney-client privilege, which is tenuous to non-existent
in bankruptcy cases anyway (as well as other privacy laws) fall to the
obligation under Rule 2014 of the Federal Rules of Bankruptcy Procedure to
disclose all connections with regard to any professionals performing work
with respect to any bankruptcy case
In re Brown,
2013 WL 6571675 (9th Cir. BAP Dec. 13,
2013) (unpublished). Debtor & Trustee, brought an action for wrongful
foreclosure under federal Consumer Protection Act & Fair Debt
Collection Practices Act (the "FDCPA"). But here, bank maintained
custody and control of the endorsed-in-blank note from loan origination.
Judgement for bank.
Sunbeam Products, Inc. v. Chicago American Mfg.,
LLC, 2012 WL 2687939 (7th Cir. July 9,
2012), Trademark is
not intellectual property for purposes of the bankruptcy code, but like any
contract, rejection in bankruptcy can result in prepetition damages. Compare
v. California Land Title Co (In re Beezley), 994 F.2d 1434 (9th Cir. 1993) - In a no asset case, courts can block re-opening to list creditor as a
The Law of Reopening Revisited (U.S. Trustee)
In re Monroy No. 10-60005 BAP No. 09-1175-PaHD Standard chapter 13 form
provisions are accepted over creditor objections (creditors must generate
consumer type reports to enable bankrupts
to keep up with payments,
amount owing, etc.)
v. P+P LLC Bankruptcy Appellate Panel votes 2-1 in favor of
abolishing the ABSOLUTE PRIORITY RULE in Individual Chapter 11 Cases.
BAP rulings are not binding on U.S. District Courts nor 9th Circuit Court of
DEBRUNNER v. DEUTSCHE BANK
(CA 6th - H036379)( Super. Ct. No. 1-09-CV157852) Another case holding that
non-judicial foreclosure trustees do not need a valid note with a verifiable
chain of title.
Mwangi v. Wells Fargo
(NV-09-1408-DHPa06/30/2010) Wells Fargo once thought it would be a good idea
to freeze the accounts of bankrupt debtors pending instructions from the
trustees, but has been corrected by BAP, however reversed by the District
Court of Nevada (affirming the bankruptcy trial court decision )
Warfield v. Salazar (In re Salazar)
(9th Cir. BAP March 14, 2012)
chapter 7 trustee may not take a tax refund ordinarily spent during a
chapter 13 simply because it is being converted to a chapter 7.
Mattson, No. 11-1478 (B.A.P. 9th Cir. April 5, 2012).the requirement of
section 1325(b) that all of the debtor's projected disposable be paid into
the plan during the applicable commitment period, is not incorporated into
section 1329 for plan modification
Black v. Bonnie Springs Family Ltd. P'ship
(In re Black), Case Nos.
12-1122-DJuKi and 12-1124-DJuKi (related appeals)(9th Cir. BAP Feb. 11,
2013). Nevada Vexatious property buyer:
Maney v. Kagenveama (In re Kagenveama), 541 F.3d 868 (9th Cir. 2008), to
seek a deviation from the 60 month commitment period, opinion as modified,
enabling less than 60 months where the debtors projected disposable income
was negative. (Original
Opinion) The Flores case (I) (temporarily)changed this at the 9th
Circuit BAP, was intially upheld by a 3 judge 9th circuit panel, and then
REVERSED by an en banc hearing & opinion: (1) BAP Opinion:
In Re Flores
(ANA FLORES V. ROD DANIELSON )(9th Cir. BAP) No 11-55452 Riverside
Bankruptcy Court Bankruptcy 08/31/2012. Applicable committment period for
less than a 100% plan need not be 5 years. ("[A] debtor under the new
‘disposable income' test may show a zero or negative number, yet may be
able to make the required showing that she actually has enough income
to fund a confirmable plan."). (2) Final en banc opinion
Flores v. Danielson - On rehearing en-bank, the 9th circuit reversed itself.
60 month chapter 13 plan mandatory even where there is zero income under the
projected income test.
In re Kamell, 451 B.R. 505, 508 (Bankr. C.D. Cal. 2011). As the bankruptcy
court aptly noted, "there is clearly more that could——in ‘good faith'——be
paid to their creditors."
In re Taylor:
(CASE NO. EDCV 11-1879-GHK 2012 ) Chapter 13 hearing with requirement to
"failure to make payments and failure to timely
file a secured debt payment history declaration, converted to Chapter 7 one day before; and
In Re Jacobson
(No 10-60040 CA 9th 2012)
Debtor's home sold at
a sheriff's sale to satisfy judgment, money not reinvested w/in 6 months
loses its exempt character. In combination with
Golden, 789 F.2d 698 (9th Cir. 1986), means that character will be lost
after 6 months either pre- or post- petition.
United Student Aid Funds, Inc. v. Espinosa,
130 S. Ct. 1367 (March 23, 2010). Chapter 13.
Owed 13k +4.5k. Student loan did not object
to plan. Lender seized income tax refunds. Held: The Bankruptcy
Court's confirmation order is not void.
Kekauoha-Alisa v. Ameriquest Mortgage
(In re Kekauoha-Alisa) ___ F.3d. ___, 2012 WL 987838 (9th Cir. 2012).
Foreclosure sale of secured lender, following a grant of stay relief, was
void for procedural irregularities under Hawaii law. (no mention of Stern v
In Re Humberto Cedano
Title disavowed as unimportant.
In Re Jack Sherman Jefferies
(BAP 2012) Awarded Equalization Payments for Divorce Property Split are not
sale proceeds for homestead protection.
In Re ANGEL LEPE, (BAP May 9, 2012) Bk. No. 10-60264 BAP No. EC-11-1349-
PaDMk. Chapter 13 can be filed, even if no cash flow problem, merely
todebtor may file chapter 13 for the sole purpose of avoiding a lien,
even if he is cash flow "solvent". Good examination of elements of good
In Re LOOP 76, LLC, (BAP Feb 23, 2012; Bk. No. 09-16799-RJH)
(Cross-Appeals) BAP Nos. AZ-11-1094-KiWiJu & AZ-11-1113-KiWiJu Third
party guarantor makes chapter 11 claims similar.
2012 LADJ DAR 6001 (9th Cir BAP 2012)(5/9/12) Different
treatment to Debtor
who has guarantee in a chapter 13 is permitted (like
Nathaniel Haynes v. EMC Mortgage Corporation (A131023 1stAppel Dist
2012) Deed of Trust is distinguished from Mortgage with respect to
California Civil Code section 2932.5 provision which requires the assignee
of a mortgagee to record the assignment prior to exercising a power to sell
real property. This provision does not apply to deeds of trust.
In re Deitz (9th Circuit BAP Docket No. EC-11-1427, April 23, 2012).
Stern v. Marshall does not limit the bankruptcy court's jurisdiction to
enter a final nondischargeable money judgment.
In re Higgins, 201 B.R. 965 (9th Cir. BAP 1996) A judicial lien in chapter 7
can be stripped even though there is no equity in the home. Aka
" Debtors who lack equity in home may avoid creditor's judicial lien against
property when lien impairs otherwise valid exemption".
Khachikyan, (BAP 2004) Credit card activity more than one
year before bankruptcy is generally not abuse.
In re William J. Beverly
(BAP 2007) Fraud Planned Openly is Fraud Punished. Also the pigs /
In re Arnold,
___ B.R. ___ (Bankr. C.D. Cal. 2012). Judge Kwan holds absolute priority
In re Milton Lee Vandevoort
(9th Cir BAP Sept 28, 2009) Trustee can intervene in state court
fraudulent conveyance suit, (perhaps without need for MRS)
v. Renteria (In re Renteria), B.R. (9th Cir. BAP, May 4, 2012).
Bankruptcy court may not deny confirmation of a plan under Bankruptcy Code
Section 1322(b)(1) just because the plan separately classifies and prefers a
codebtor consumer claim over all other unsecured claims.
In re Blixseth
(Samson v. Western Capital Partners, LLC), 684 F.3d 865 (9th Cir. 2012) Secured property
surrender/retention must be performed within the time frame or the stay will
be AUTOMATICALLY terminated. Moreover, property of the estate includes non-debtor interests in property recovered or recoverable through the
Bankruptcy Code's transfer and lien avoidance provisions. 11 U.S.C.section
541(a)(3),(4); Owen v. Owen, 500 U.S. 305, 308 (1991). Property of the
estate, therefore, includes property not identified or listed on the
bankruptcy schedules. Moreover, property of the estate includes non-debtor
interests in property recovered or recoverable through the Bankruptcy and
pledged to reduce a debt. Whether or not property is scheduled is
irrelevant for the purposes of this automatic termination.
Blixseth v. Yellowstone Mountain Club, LLC, et al., 742 F.3d 1215 (9th
Cir. 2014) Smearing a Judge will result in your being called on it.
v. United States, 566 U.S. ______, No. 10—875 (U.S. May 14, 2012).
federal income tax (capital gains) liability resulting from a postpetition sale of a
farm by an individual debtor in a Chapter 12 case is not "incurred by the
estate" under 11 U.S.C. section 503(b).
State of California Emp. Dev. Dept. v. Hansen, et. al. (In re Hansen)
(9th Cir. BAP, April 18, 2012).
Wolfe v. Jacobson (In re Jacobson), 2012 Westlaw 1382979 (9th Cir. April
23, 2012). Any home is at risk in a chapter 7
In re Creighton
(WL 541622 Bkruptcy D. Mass 2007) Reaffirming Car Lease Agreements.
In re Pratt
(CA 1st Cir 2006 -- No.
05-2453) Where Debtor gives
notice of intent to surrender; followed by Creditor's announcement to
refrain from repossessing; Creditors refusal to withdraw lien to allow
debtor to junk the vehicle (where state law requires a lien release as a
prerequisite to accept a vehicle for destruction), becomes objectively
announcement that it did not intend to repossess the "surrendered" vehicle
because it was of insufficient value, and then expressly conditioned its
release of the lien upon the Pratts' agreement to repay the loan balance in
full amounts to a demand for a "reaffirmation," which obviously never
purported to comply with the stringent "anti-coercion" requirements of
Bankruptcy Code section 524(c).
Reddy v. Gonzalez (1992) 8 Cal. App. 4th 118, 10 Cal. Rptr. 2d 55.
Judgement lien cannot attach to previous declared homestead. For
nondeclared homestead, a judgement lien may attach and homestead rights are
determined at time of sale.
In Re North Valley Mall
(CD CA June 21, 2010 -- Case No: 8:09-bk-19346-TA) Discusses
Till v. SCS Credit Corp., 541 U.S. 465, 479-80, 124 S. Ct. 1951, 1961
(2004), and its search for a "proxy" rate in lieu of a market by starting
with a risk-free or nearly risk free rate, noting that some courts had
adopted a 1-3% over prime adjustment. Issues of feasibility and of cramdown
interest rates are closely
intertwined. Discusses examples of how
to derive a "BLENDED" rate.
In re: Parks (9th Cir. BAP No. 11-60050, August 6, 2012) No voluntary
401K deduction for Line 55 of Form 22C. In other words, The United
States Bankruptcy Appellate Panel of the Ninth Circuit holds that a Chapter
13 debtor's voluntary postpetition retirement contributions are disposable
income under Section 541(b)(7) of the Bankruptcy Code.
In re Iida (Katsumi Iida v. Junichi Kitahara) (No. HI-07-1006-DKS, 9th
Cir. B.A.P. 2007) Method and Challenge to foreign debtor where proper
procedure is followed.
Maharaj, 681 F. 3d 558 (4th Cir. 2012). United States Court of Appeals
for the Fourth Circuit has ruled that the Absolute Priority Rule, as it
applies to Chapter 11 individual debtors was not impliedly repealed by the
BAPCPA's addition of 11 U.S.C. section 1115 and the Amendment of Section
In re TLC Hospitals. Inc., 224 F.3d 1008, 1011 (9th Cir. 2000).
Bankruptcy Setoff: Code section 553 provides for setoff, preserving certain rights
that exist under relevant non-bankruptcy law.
Recoupment 2007 Outline
In re Bush,
CASE NO. 01-08453-H7 (US BK SDCA Feb 11, 2002) cites Birman v. Loeb, 6
Cal.App.4th 502,516-18 (1998); Kruger v. Wells Fargo Bank, 11 Cal.3d 352
(1974), for the proposition that California law recognizes the equitable
right to setoff.
STATE BOARD OF EQUALIZATION v. WIRICK
STATE BOARD OF EQUALIZATION,
Plaintiff and Respondent, v. Stanley WIRICK, Defendant and Appellant. No.
C036346. -- October 30, 2001
Grogan v. Garner, 498 U.S. 279 (1991) Bankruptcy Code is silent as to the burden of proof
that the standard of proof for the dischargeability exceptions in 11 U.S.C.
523(a) is the ordinary preponderance-of-the-evidence standard. ... Bankruptcy Court found that all of the elements required to
establish actual fraud under 523 had been proved and that the doctrine of
collateral estoppel required a holding that the debt was therefore not
dischargeable. In re Garner, 73 B. R. 26 (WD Mo. 1987).
In re Hull,
251 B.R. 726 (B.A.P. 9th Cir. 2000) Debtor's community property
interest under Washington law in the income of his nondebtor spouse is part
of his "disposable income" and must be counted in calculating whether he
meets the test of section 1322(a)(1) and section 1325(b)(1)(B). Thus, unless there was a prenuptial agreement indicating otherwise, your
client really does have disposable income of $2,800 per month.
Goodrich v. Briones (In re Schwarzkopf), 626 F.3d 1032 (9th Cir. 2010)
Self settled trust held: Trust (1) is an invalid trust and that Goodrich's
action to invalidate it is not
time-barred. We also hold that trust (2)
is Settlor's alter ego. Costs are awarded to appellant BK trustee Goodrich.
MICHAEL ACKERMAN V JOSE EBER (9th Cir 10-56772 2012) Los Angeles
District Court Bankruptcy 07/09/2012. Federal Arbitration Act, 9 U.S.C.
1 et seq. ("FAA"), and the United States Bankruptcy Code, 11 U.S.C.
sectionsection 101 et seq.2 Arbitrator findings for section 523(a)(2) fraud,
section 523(a)(4) fiduciary duty , and section 523(a)(6), intentional acts
IS arbitration of dischargeability inherently conflicts with the goals of
centralized resolution of bankruptcy issues, preventing piecemeal
litigation, and the power of a bankruptcy court to enforce its own orders."
KLESTADT & WINTERS, LLP V DONNA CANGELOSI 10-16970 N/A Bankruptcy 03/06/2012
Strict interlutory finality is more loose with either BAP appeals or
District Court appeals from a bankruptcy case.
In re: Jennifer Biggar, Donna Martinez, Martin Clark, Debtors. HESSINGER AND ASSOCIATES, Plaintiff-Appellant, v. U.S. TRUSTEE, Defendant-Appellee. No. 95-16780 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT 110
F.3d 685; 1997 U.S. App. LEXIS 9987; 97 Cal. Daily Op. Service 2365; 97
Daily Journal DAR 4238, November 7, 1996, Argued, Submitted, San
Francisco, California, March 31, 1997, Filed Agreement for installment
contract for pre-petition legal services is not kosher.
In re Creighton,
(Bkrtcy.D.Mass.,2007) In re JOHN E. CREIGHTON, Debtor. No.
In re Angel Lepe
9th BAP May 9, 2012.
CHAPTER 13 GOOD FAITH CASE FOR LIEN STRIP
In re July Thuy VU
Unpublished 9th Cir BAP case affirming the use of the addenda in chapter 13
Ragland vs. U.S. Bank, N.A., 2012 Westlaw – –
(Cal.App.): damages for changing its mind and foreclosing anyway.
In re Trasiac (280 BR 791 – Bankr.
Court, D. Massachusetts, 2002) Employment of Paralegal by Bankrupt estate
requires (1) approval of employment and (2) approval of amount.
United States v. Nordic Vill. Inc.,
503 U.S. 30, 33-34 (1992), without clear indicaiton of waiver of sovereign immunity, the bankruptcy trustee cannot recover
from government for post-petition transfers.
Taylor v. Freeland & Kronz,
503 U.S. 638 (1992) Supreme Court held that a debtor who had exempted an
asset with an "unknown" value had exempted the entire asset because the
trustee failed to object to the exemption during the thirty-day post
341(a) meeting of creditors.
v. Reilly, 130 S. Ct. 2652 (2010) ,
Supreme Court (same justice) held that the debtor could only exempt the
dollar amount she had actually claimed, rather than the asset itself, even
though she intended to exempt the entire asset.
Bendon v. Reynolds
(In re Reynolds), BAP No. CC-11-1433-HPaD, (9th Cir. B.A.P. August 24, 2012)
Good Treatment of Trust Provisions
- BFP v. Resolution Trust Corp., 511 U.S. 531
(1994), while confining its ruling to carving out a special rule for the forced sale
circumstances of a foreclosure, it disapproved an earlier circuit holding
that "reasonably equivalent value" could be no less than 70% of fair market
- Durrett v. Washington National Insurance, 621
F.2d 201, 203-04 (5th Cir. 1980). BFP reasoned that the
of a foreclosure rendered the price received per se reasonable, as long as
the sale was non- collusive and conducted in accordance with state
Taylor v. Freeland & Kronz, 503 U.S. 638
(1992) Listed as exempt property the expected proceeds from her pending
employment discrimination suit & Trustee was late in objecting. The
Supremes held that a debtor who had exempted an asset with an
"unknown" value had exempted the entire asset because the trustee failed to object to the
exemption during the thirty-day period following the conclusion of the
341(a) meeting of creditors.
Schwab v. Reilly, 130 S. Ct. 2652 (2010)
Holding in Taylor v. Freeland & Kronz should be balanced against this
opinion. The author of both opinions — opined that the
debtor could only exempt the dollar amount she had actually claimed, rather than the
asset itself, even though she intended to exempt the entire asset. Since the
trustee found a
buyer for the asset willing to pay more than the amount claimed, the debtor
lost the asset.
In re Bellingham Insurance Agency, Inc.
Bellingham Insurance Agency, Inc. v. Peter H.
Arkinson, Trustee( 9th Cir. Dec 4, 2012) No. 11-35162; Affirming the district court's
affirmance of the
bankruptcy court's summary judgment, the panel held that a non-Article III
bankruptcy judge lacks constitutional authority to enter a final judgment in
a fraudulent conveyance action against a nonclaimant to the bankruptcy
estate, but that the nonclaimant here waived its right to an Article III
hearing. BK judges generally don't have fraudulent transfer jurisdiction
over 3rd parties).
In re Marriage of Branco
(1996) Cal. App. 4th, 1621 Upon marriage, a sole property debt can
become a community property debt.
Prudential Mortgage Capital Company v. Namir
Faidi, No. 10-20134, Chapter 7, 5th
Cir.; 2011 U.S. App. LEXIS 13059 Fraud and nondischargeabilty upheld.
- O'Donnell, et. al. v. Tristar Esperanza
Properties, LLC (In
re Tristar Esperanza Properties, LLC),
BAP No. CC-12-1340-KlPaDu (9th Cir. BAP Mar. 8, 2013). We agree with the
bankruptcy court that permitting a former equity holder to recover the value
of an equity based claim on par with general unsecured creditors is the sort
of bootstrapping thatsection 510(b) mandatory subordination is designed to prevent. Rejecting appellant's argument
that "damages arising from the purchase or sale" of a security does not
encompass contract-based awards to withdrawing LLC members, we AFFIRM.
In re Chappell,
373 B.R. 73, 79, 81 (B.A.P. 9 th Cir. 2007) We address whether postpetition
appreciation of exempt property is to be treated the same under the federal
exemption scheme as under a state's exemption scheme. We conclude that
controlling Ninth Circuit authority involving state homestead exemptions,
which holds that the bankruptcy estate is entitled to postpetition
appreciation in excess of the maximum value permitted to be exempted under
the statutory authority invoked by the debtor, applies with equal force to
exemptions taken under the federal exemption scheme. The factual differences
between existing Ninth Circuit authority regarding state exemptions and the
federal exemption now in question constitute a distinction without
significant difference as to postpetition appreciation. We thus also
conclude that a debtor's entitlement to postpetition appreciation is limited
to the maximum value of the exemption permitted under the
exemption statute invoked. ()AMICUS)
- In re Bolden, 327 B.R. 657, 667 (Bankr. C.D. Cal. 2005). In essence, the
debtor must demonstrate that the property is of no "material benefit" to the
estate to obtain an order of abandonment. In Bolden, the bankruptcy
court ordered the debtor to leave homesteaded to facilitate Trustee sale of
over-encumbered house for IRS lien holder.
In re Lochrie,
78 B.R. 257 (9th Cir. B.A.P. 1987) 523(a) (3) supports (2)(4)(6) and cannot
create an exception to discharge on its own. Court must examine
underlying causes (2)(4)(6) before finding discharge exception.
In re Ellwanger,
89 B.R. 95 (9th Cir. B.A.P. 1988) Daughter slips deed to mom in favor of
daughter-- fraud on the daughter is charged. Husband of decedent Martin
McBroom brought an action under § 612 of the California Probate Code. This
section imposes a penalty of twice the value of the property that had been
withheld, embezzled, or concealed from the estate. The hearing on this
action resulted in a penalty of $240,000 against the Ellwangers & the
Ellwangers file bankruptcy.
In re Ellwanger,
105 B.R. 551 (9th Cir. B.A.P. 1989) - Debts later held to be dischargeable.
Congress clearly addressed the question of excepting noncompensatory damages
from discharge and determined that only governmental units can avail
themselves of the exception. The language of § 523(a)(2) and § 523(a)(7)
when read in harmony compels the conclusion that Congress intended
noncompensatory damages to be excepted from discharge only where they are
owed to a governmental entity. See generally Suter, 59 B.R. at 947.
Similarly, § 523(a)(2)
as an exception to discharge impairs the debtors fresh start and should be
read no more broadly than necessary to effectuate the policy against debtors
avoiding debts incurred as a result of their actual fraud. The award of a
judgment under Probate Code § 612 is a form of punishment to the debtor and
is not compensation for injury to the estate. The estate had recovered the
residence by virtue of the probate court's order, and thus has been made
whole. To allow collection of an additional $240,000 in nondischargeable
debts would result in a windfall to the estate. Section 523(a)(2) & (7) when
read together intend the former, that the creditor be made whole, and
clearly do not intend the later, that the estate receive a windfall. See
generally Id. The estate has been adequately compensated by recovery of the
residence. Because the judgment debt arising from application
of Probate Code § 612 is in the nature of a private penalty and is not
compensation for injury to the estate, the debt falls squarely within the
purview of § 523(a)(7). Since the estate is not a governmental entity as
required by § 523(a)(7), the debt is dischargeable. As a result, it is not
necessary for the bankruptcy court to determine whether the debt in
nondischargeable under § 523(a)(4) or (6).
In re Combs, 101 B.R. 609 (9th Cir. B.A.P. 1989) Dischargeability at
petition date, not later on....Issues: (1). Whether the bankruptcy court
erred in applying the facts in existence on the date of the dischargeability
hearing, and not the date of the filing of the bankruptcy petition, for
purposes of determining dischargeability, & (2). Whether the court
committed reversible error when it characterized the payments under the
divorce decree as money owed on a property settlement, and not spousal
support. Death of spouse which triggered support in another
entity (her estate) should not be allowed . The bankruptcy court had
granted the debtor's motion and ruled that the former wife's death caused an
assignment by operation of law and that the debt, therefore, was
dischargeable pursuant to 11 U.S.C. § 523(a)(5)(A) (irrespective of its
nature as support or property settlement).
In Re Fox ; IN RE FOX 725 F.2d 661 (1984); In re Reginald Charles FOX,
Sr., Debtor, ALL AMERICAN OF ASHBURN, INC., Plaintiff-Appellant, v. Reginald
Charles FOX, Sr., Defendant-Appellee. No. 83-8643 Non-Argument Calendar.
United States Court of Appeals, Eleventh Circuit. February 24, 1984. - Each
side pays its own attorneys fees (and therefore fees will not be used to
punish the losing party).
Pinellas County Property Appraiser v. Read (In re
Read), 692 F3d 1185 (11th Cir. 2012) ,
Ad Valorem & Real Property Tax Challenges must be challenged by the deadline
outside of bankruptcy under 505(a)(2)(C) of the Bankruptcy Code.
Wells Fargo Bank, N.A. v. Texas Grand Prairie Hotel Realty, LLC (In the
Matter of Texas Grand Prairie Hotel Realty, LLC), No. 11-11109 (5th Cir.
Mar. 1, 2013). 5th Circuit approach to cram-down interest rates is flexible.
In re Angie M. Garcia
(9th Cir. March 5, 2013) Vehicle can be exempted using California Civil
Procedure Code § 703.140(b)(5). that allows a debtor to exempt up to $18,350
in “any property.” & Garcia also moved to avoid the lien on the car pursuant
to 11 U.S.C. § 522(f)(1)(B) allowing debtors to avoid nonpossessory,
nonpurchase money liens on exempt property that is a tool of the debtor’s
trade" -- in this case a real estate professional's vehicle.
In re Welsch (9th Cir 2013) BAPCA forecloses inquiries as to social
security income or to payments to secured creditors. It makes no
difference how many possessions you have.
Conway v. Nat’l
Collegiate Trust (In re Conway), B.A.P. 8th Cir., No. 13-6016, 8/21/13).
Loan-by-Loan analysis of STUDENT LOANS is required. Really more of a partial
discharge exception argument when loans are NOT consolidated.
Carpenters Pension Trust Fund for Northern California v. Michael Gordon Moxley
Nol 11-16133 (Aug 20, 2013)
Core v. noncore, The district court also rejected
the Fund’s contention that Moxley had waived his right to discharge the debt in
bankruptcy by failing to contest the debt in arbitration.
Wolf v. Jacobson
(In re Myrna Jacobson) (9th Cir. 2012) This devistating
opinion is a warning for every chapter 7 bankruptcy relief seeker that any
property that is sold, especially in bankruptcy, must have the homestead
proceeds reinvested within 6 months or the homestead
protection in the homestead proceeds will be lost.
Bank of America v. LSSR , LLC (In re LSSR, LLC)
(BAP 9th Cir 2013) The manner of service in both designation and identity
entities served. "20 largest creditors. See Rules 4001(a)(1) and 9014(b). Rule 7004(b)(3) requires service on a
domestic corporation or a partnership to be made by mailing a copy of the
motion for relief from stay “to the attention of an officer, a managing or
generalagent, or to any other agent authorized by appointment or by law to
receive service of process . . . .” LBR 9013-3(c) moreover requires that the
proof of service “explicitly indicate how each person who is listed on the
proof of service is related to the case . . . .”
In re Feiler
218 F.3d 948 (9th Cir. 2000) Tax-Bankruptcy case
Int’l Tobacco Partners v. U.S. Dep’t of Agric. (In re Int’l Tobacco Partners),
(Bankr ED NY 2012) Detailed treatment on Identity and Functions of an Excise
United States v. Condel, Inc. (In re Condel, Inc.), 91 B.R. 79, 82 (9th Cir.
In re Stanmock, Inc. , 103 B.R. 228 (9th Cir. 1989)
In re Artisan
Woodworkers 204 F.3d 388 (9th Cir. 2000) post-petition interest is an
"integral part" of such a tax debt and therefore nondischargeable under 11
U.S.C. § 523(a)(1)(A).
In re Raiman, 172 B.R. 933 (9th Cir. B.A.P. 1994)
In re Bracey ,
77 F.3d 294 (9th Cir. 1996)
In re Leal 366 B.R. 77 (9th Cir. BAP 2007)
Fretz (IN RE: W. DAVID FRETZ) U.S. v. W. DAVID FRETZ (11th Cir. 2001) No.
D.C. Docket No. 99-01447-CV-J-NE March 23, 2001. Tax evasion findings will not necessarily carry the day in Bankruptcy
Court. However, nonpayment of taxes, with disregard can support a finding
of nondischargeability. Haas, 48 F.3d at 1158 ("[A] debtor's failure to pay his
taxes, alone, does not fall within the scope of section 523(a)(1)(C)'s
exception to discharge in bankruptcy."
WILLIAM M. HAWKINS , III , AKA Trip Hawkins, v .
THE FRANCHISE TAX BOARD OF CALIFORNIA
(9th Cir. 2014) No. 11-16276 D.C. No. 3:10-cv-02026 Filed September 15,
2014) Kathryn Keneally , Assistant Attorney General a "suggestive tax
evasion" presence into this bankruptcy case. Other cases have held that the
11 U.S.C. §523(a)(1)(C) cannot operate with an intent to discharge taxes
alone. Compare this case with
In re Fretz
in this cases page, citing
In re Haas, (llth Cir. 1995) 48 F.3d
1153, at 1158 ("[A] debtor's failure to pay his taxes, alone, does not fall
within the scope of section 523(a)(1)(C)'s exception to discharge in
bankruptcy.") In Haas, the sole question at issue in this case is whether a
debtor's failure to pay his taxes, without more, constitutes a "willful
attempt in any manner to evade or defeat such tax" under section
523(a)(1)(C). The court in Haas reasoned "The difficulty with the
government's "plain meaning" interpretation of section 523(a)(1)(C) is that
it effectively would make all tax debts nondischargeable. If every knowing
failure to pay taxes constituted an evasion of taxes under section
523(a)(1)(C), then discharge of tax liability would be available only to
those very few debtors who discovered their debts to the IRS in the course
of their bankruptcy proceedings." In Hawkins, I note the request for
29 petition of the government for a rehearing en banc
re: James Charles Vaughn v. U.S. (10th Cir 2014) No. 13-1189 (D.C. No.
1:12-CV-00060-MSK) An important case since it may become a companion to
Hawkins v. FTB on its way to the Supreme Court. The question is whether,
without a finding of specific intent, can be denied discharge under §
523(a)(1)(C). Bankruptcy court found that Taxpayer had both filed a
fraudulent tax return and willfully evaded his taxes. District court
declined to address the question of whether Appellant filed a fraudulent tax
return. Vaughn argued to the 10th Circuit that bankruptcy court’s finding
that Appellant willfully attempted to evade his tax obligations was
erroneously based on negligent, rather than willful, conduct. Vaughn argued
against Dalton v. IRS , 77 F.3d 1297 (10th Cir. 1996) to allow a “holistic”
review of the evidence before the bankruptcy court. (1) First, Appellant
argues that a finding of “willful evasion requires knowledge that a tax is
owed—not just knowledge of a possibility that the IRS might assess tax
liability sometime in the future.” (2) Second, Appellant argues his
“reliance on the advice of KPMG, his longtime tax advisor, that the BLIPS
transaction was an aggressive but ultimately legitimate tax position might
have been at worst unreasonable under the circumstances, making [Appellant]
negligent,” but not willful. (3) Third, Appellant suggests the recent 10th
Cir. opinion in Blum v. Commissioner , 737 F.3d 1303 (10th Cir. 2013), must
control our review of this case, that a decision to rely on KPMG’tax advice
is not blameless, but . . . does not rise to the level of intentional or
knowing conduct either.” (4) Finally, Appellant argues the bankruptcy
court’s order “couched all of its criticism of [Appellant’s] conduct with
terms generally used to describe negligent conduct.”
MATTER OF GUY E.
McGAUGHEY 24 F.3d 904 (7th Cir. 1994) (Nos. 93-2058, 93-2084. Tax Evader
/ Bankruptcy Fraudster that hides assets. An appeal from the district
court's order partially lifting an automatic bankruptcy stay will not be
affected by a finding of hiding assets which should otherwise operate under
§727(a)(2) with an adversary proceeding. The statement that "the court held
that probable cause existed to believe that Debtor's tax debt was
non-dischargeable because of willful evasion" should not have been stated or
relied upon. Therefore, giving due deference to the district court's
findings regarding Debtor's behavior, we must conclude that notwithstanding
any superfluous discussion of non-dischargeability, the court did not abuse
its discretion. The decision of the court to partially lift the automatic
stay is affirmed.
In the Matter Of:
Debtor.internal Revenue Service, Appellee, v. Constance Luongo, Appellant,
259 F.3d 323 (5th Cir. 2001)
In re Monument Auto Detail, Inc. (226 BR 219, 33 Bankr. 419 – Bankr.
Appellate Panel 9th Circuit, 1998) Most classic calamity case of the 90's.
Dye v. Brown (In re AFI Holding, Inc.), 530 F.3d 832 (9th Cir. 2008)
Underlying opinion 355 B.R. 139 (B.A.P. 9th Cir. 2006) held that (1) “cause” may
include a lack of disinterestedness; (2) the catch-all provision of 11 U.S.C.
§101(14)(E) defining a “disinterested person” is “broad enough to include a
trustee with some interest or relationship that ‘would even faintly color the
independence and impartial attitude required by the Code,’ BAP held that "We
hold that the bankruptcy court properly applied a totality-of-circumstances test
in making its determination that the trustee’s prior connections with insiders
negatively impacted the administration of the estate.
Focus Media, Inc. v. NBC (In re Focus Media, Inc. ) 378 F.3d 916 (9th Cir.
2004)We agree. The record does not depict a company with a few unpaid bills.
Instead, it depicts a company that had substantial amounts of unpaid bills and
no plans or ability to pay them. Finally, Focus does not contend that the
bankruptcy court's discovery sanction ruling prevented it from demonstrating
that it was paying off its debts.11 We therefore conclude that Focus failed to
create a triable issue of fact regarding whether it was generally paying its
debts as they became due.
Commodity Futures Trading Comm'n v. Weintraub, 471 U.S. 343 (1985) The
trustee of a corporation in bankruptcy has the power to waive the corporation's
attorney-client privilege with respect to prebankruptcy communications. (only)
The Code gives the trustee wide-ranging management authority over the debtor,
whereas the powers of the debtor's directors are severely limited. Thus the
trustee plays the role most closely analogous to that of a solvent corporation's
management, and the directors should not exercise the traditional management
function of controlling the corporation's privilege unless a contrary
arrangement would be inconsistent with policies of the bankruptcy laws.
Gilliam v. Speier (In re KRSM Props.) 318 B.R. 712 (B.A.P. 9th Cir. 2004)
Kim Allan SHARP,
Debtor, Plaintiff/Appellant, v. Fred J. DERY, Chapter 7 Trustee,
United States District Court, E.D. Michigan, Southern
Division. September 26, 2000.
Hedlund Roth v.
Educ. Credit Management Corp., No. 11-1233 (B.A.P. 9th Cir. Apr. 16, 2013),
overruled by Hedlund v. Education Resources
Institute, Inc., No. 12-35258 (9th Cir. May 22, 2013).
In re Susan M. Krieger
Krieger v. Educ. Credit Mgmt. Corp., No. 12-3592
(7th Cir. Apr. 10, 2013)
v. Wallace (In re Cass), BAP No.
CC-12-1513-KiPaTa (9th Cir. BAP, Apr. 11, 2013)(unpublished). Recorded abstract
of judgment attached to the proceeds from the sale of a debtor’s residence even
though the abstract was recorded after the debtor’s fraudulent transfer of her
interest in the residence to her daughter.
In Fourth Investments LP v. United States,
___ F.3d ___, 2013 U.S. App. LEXIS 11905 (9th Cir. 2013), California
recognizes a Nominee Theory of Property Ownership because California cases
have unambiguously recognized the existence of nominee ownership.
In re Idalia Roxanna Castillo
(CD BC 2013) 2:12-bk-15913 Therefore, the
a mount of Deutsche’s 1111(b)(2) secured claim should include post -petition
attorneys’ fees, but not post - petition interest. Attorneys' fees were
allowed on an UNDERSECURED creditor's fees where they made an 1111(b) election
In Re Griffin (BAP 9th Cir. 2013) 12-60046 Copy of a copy +
declaration is good enough to enable a motion for relief from stay.
U.S. v. Energy Resources
495 U.S. 545 (1990)
BEACHPORT ENTERTAINMENT Debtor, v HOWARD M. EHRENBERG, Chapter 7,
Trustee, (.In re Beachport Entertainment) (9th Cir. BAP 2005)
Dismissal for lack of papers and bk rules is unfair where (1) no opportunity
to contest the severity, (2) BAP was familiar with issues pertaining to the
case and did not appear hampered by two missing papers.
In the Matter of Marshall (9th Cir. 2013) No.09-55573
In re Arnold (Case No. 2:12-bk-15623-RK) Judge Kwan opinion on the
Absolute Priority Rule
Dill Oil Company,
LLC v. Arvin E. Stephens (In re Stephens), 704 F.3d 1279 (10th Cir., Jan.
15, 2013). 10th circuit weighs in on the absolute priority rule.
SCHWAB V. CIR . No. 11-71957 (9th Cir. 2013) Whole life
policies had surrender charges for surrendering the policy prior to a
contractually specified date. Upon surrender, the net cash value was
below zero. Held, income is realized upon surrender and surrender
penalties are only PART of the finding of value. Tax Court No.10525-07
Wells Fargo Bank, N.A. v. Texas Grand Prairie Hotel Realty, LLC (In
the Matter of Texas Grand Prairie Hotel Realty, LLC), No. 11-11109
(5th Cir. Mar. 1, 2013). 5th Circuit approach to cram-down interest
rates is flexible, with the bankruptcy court decides the formula to use
to determine the appropriate "cram down" rate under a plan, and the
bankruptcy court’s decision is reviewed for clear error rather than de
novo. In doing so, the Fifth Circuit rejected the universal application
of Till v. SCS Credit Corp., 541 U.S. 465 (2004), in chapter 11 cases.
United States Trust Co. v. New Jersey - 431 U.S. 1 (1977)United
States Trust Co. v. New Jersey - 431 U.S. 1 (1977)
in 1959, the Bankruptcy Court and the United States District Court had
approved a plan that left it with cash sufficient to continue operations
for two years, but with no funds for capital expenditures. A special
committee of the New Jersey Senate was formed to determine whether the
Port Authority was "fulfilling its statutory duties and obligations."
Trial court found that the 1962 New Jersey Legislature "concluded it was
necessary to place a limitation on mass transit deficit operations to be
undertaken by the Authority in the future so as to promote continued
investor confidence in the Authority. The statutory covenant of 1962 was
the result. The covenant itself was part of the bi-state legislation
authorizing the Port Authority to acquire, construct, and operate the
Hudson & Manhattan Railroad and the World Trade enter. "So long as any
of such bonds remain outstanding and unpaid, and the holders thereof
shall not have given their consent as provided in their contract with
the port authority, (a). . . and (b) neither the States nor the port
authority nor any subsidiary corporation incorporated for any of the
purposes of this act will apply any of the rentals, tolls, fares, fees,
charges, revenues or reserves, which have been or shall be pledged in
whole or in part as security for such bonds, for any railroad purposes
whatsoever other than permitted purposes hereinafter set forth."
"Permitted purposes" were defined to include (i) the Hudson & Manhattan
as then existing, (ii) railroad freight facilities, (iii) tracks and
related facilities on Port Authority vehicular bridges, and (iv) a
passenger railroad facility if the Port Authority certified that it was
"self supporting" or, if not, that, at the end of the preceding calendar
year, the general reserve fund contained the prescribed statutory
amount, and that all the Port Authority's passenger revenues, including
the Hudson & Manhattan, would not produce deficits in excess of
Shahverdi v. William Hablinski Architecture (In re Shahverdi), (9th
Cir. BAP June, 2013). Lump sum awards without specifying nature and
source simply won't support an finding of nondischargeability.
Appellee Fadel H owns property acquired in SP title transfer and
quitclaim from W in 2001. H did BK in 2011 and W does BK in 2011
claiming that her marital contribution rights give her an interest even
though it was W'.. As for any possible community interest, DCB contended
that although under CAL. FAM. CODE § 760 the presumption is that all
property acquired during a marriage is community property, CAL. EVID.
CODE § 662 provides a conflicting presumption that the owner of the
legal title to property is presumed to be the owner of the full
In re Lincoln (Bankr W.D. Tex. 2006). Question of
whether the claims cap under 11 U.S.C. §502(b)(6) applies to a lease
guarantor in bankruptcy. The proper interpretation of §502(b)(6)
is that there are only two requirements for the damages cap to apply: 1)
a claim of a lessor for damages; 2) resulting from the termination of a
lease of real property. The result is not to limit the liability of a
particular entity, but to limit the amount of damages the lessor may be
allowed against the bankruptcy estate.
In re Barbara Lois SCHNEIDER, Debtor, Appellant, and Mike Nolden,
Trustee in Bankruptcy, Appellee.
No. C-80-3698-MHP.,9 B.R. 488 (ND CA
1981)- method of computing the exemption: In determining the equity in
the homesteaded property left to the bankruptcy estate the debtor
deducts the total encumbrances of $65,000 from the value of the real
property which is $110,000. She then deducts the $30,000 homestead
exemption from her one-half interest in the joint tenancy which is
$22,500. This, of course, leaves no available equity to the bankruptcy
estate. The trustee computes the equity by deducting the exemption from
the total equity of $45,000 and then deducts the nondebtor's one-half
interest. This leaves a $7,500 equity in the estate.
v. Culp, 498 U.S. 42 (1990) Respondents were not entitled to a jury
trial. By filing claims against the bankruptcy estate, respondents
triggered the process of "allowance and disallowance of claims," thereby
subjecting themselves to the Bankruptcy Court's equitable power. In
contrast, a party who does not submit a claim against the estate is
entitled to a jury trial as a preference defendant, since the trustee
could recover the transfers only by filing what amounts to a legal
action. Lender will be entitled to a jury trial, but only if it has not
filed a pro of of claim against the estate. not a case where the trustee
is subject to the earlier perfection under 546 and because the 10-day
period under ? 547(e) runs from the date of attachment.
Bank v. Wolas , 112 S.Ct. 527 (1991).While § 547(c)(2), as
originally enacted, was limited to payments made within 45 days of the
date a debt was incurred, Congress amended the provision in 1984 by
deleting the time limitation entirely. That Congress may have intended
only to address particular concerns of specific short-term creditors in
the amendment or may not have foreseen all of the consequences of its
statutory enactment is insufficient reason for refusing to give effect
to § 547(c)(2)'s plain meaning. Also unpersuasive is Wolas' argument
that Congress originally enacted § 547(c)(2) to codify a judicially
crafted "current expense" rule covering contemporaneous exchanges for
new value, since other § 547(c) exceptions occupy some (if not all) of
the territory previously covered by that rule, and since there is no
extrinsic evidence that Congress intended to codify the rule in §
Owen, 111 S.Ct. 1833 (1991) Bankruptcy Code allows States to define
what property is exempt from the estate that will be distributed among
the debtor's creditors. Impairs the homestead exemption to which Don
otherwise would have been entitled? yes.
v. Home State Bank 501 US 78 (1991) Courts allow a discharged
mortgage to have the ability to be an IN REM claim. Debtor filed Chapter
7 and obtained a discharge which eliminated his personal liability.
Debtor then filed Chapter 13 just ahead of a foreclosure sale. The
district court & circuit court both held that the bankruptcy court
erred; & that the Code did not allow a Chapter 13 plan to modify a claim
where the debtor had no personal liability. Supreme Court held that a
mortgage lien, even where personal liability is discharged, remains a
"claim" against the debtor that can be rescheduled under Chapter 13.
Caterpillar Financial Services Corp. v.
Peoples Nat. Bank, N.A., 2013 WL
776813 (7th Cir.): Facts: A private corporation provided financing to a
coal mining company, which granted the private lender a blanket lien on
its assets. The coal mining company later acquired equipment under
several leases; the lessors were not affiliated with the private lender.
Still later, the mining company refinanced its equipment leases, with
funding provided by Caterpillar. The Seventh Circuit has held that
since a third creditor who asserted the benefit of a subordination
agreement was unable to produce the first creditor’s security agreement,
a second creditor’s lien moved up into the senior position.
In re Village at Camp Bowie I,
L.P., 2013 Westlaw 690497 (5th Cir.): Facts: A commercial borrower
defaulted on its real estate loan. The day before the foreclosure sale,
the borrower filed a Chapter 11 petition and eventually put together a
“cramdown” plan, under which it proposed to pay a group of unsecured
trade creditors in full, in three equal monthly installments. The debtor
claimed that the trade creditors constituted an “impaired consenting
class,” as required by the Bankruptcy Code. The borrower’s secured
creditor argued that the debtor’s tactics were undertaken in bad faith
and that the plan could not be confirmed. The bankruptcy court ruled in
favor of the debtor, and the Fifth Circuit affirmed. The Fifth
Circuit has held that the “artificial impairment” of a small consenting
class of unsecured creditors does not mean that a “cramdown” plan of
reorganization was propounded in bad faith.
In re Blixseth,
484 B.R. 360 (9th Cir. BAP Dec. 17, 2012) U.S. Bankruptcy Appellate
Panel of the Ninth Circuit Court of Appeals (the “BAP”) has ruled that
even though the law generally provides that intangible assets have no
physical location or are located where their owner resides, for purposes
of determining the proper venue of an involuntary chapter 7 petition
against a Washington resident whose principal assets were intangibles
comprising interests in Nevada entities, those assets were located in
In re MaGee, 2013 Westlaw 5310472 (9th Cir. BAP unpublished). The
Ninth Circuit Bankruptcy Appellate Panel (“BAP”) recently upheld
sanctions of $2,685 against a chapter 13 debtor’s attorney for advising
the debtor (“Debtor”) not to disclose a post-confirmation auto accident
claim. Practical, off the cuff answers can spell trouble.
In re Gasprom, 500 B.R. 598 (9th Cir. BAP 2013) Corporate debtor
property may not be immediately foreclosed upon despite a lack of
provisions that the debtor could avail itself of in the time period
between asset abandonment & closure of the case (ex: lien/security
interest avoidance, redemption, etc.) On re-opening the case, the
bankruptcy judge stated that any attempt to un-do the foreclosure would
be automatically denied without a hearing. Some commentators believe
that there was no abuse because under all circumstances, the result
would have been the same upon motion for relief from stay and the fact
that the original debtor (personally) would then lack standing to object
to actions by the trustee as to the bankruptcy estate.
In re Ng, BAP No. 11-1702 PaJuH (9th Cir.
B.A.P. September 7, 2012). Abuse BAP first observed that a bankruptcy
to dismiss a case under Section 707(b)(3)(B) is reviewed for an abuse of
that court's discretion, citing Price v. U.S. Tr. (In re Price), 353 F.3d
1135, 1138 (9th Cir. 2004). Identifying the non-exclusive list of factors
set forth in Price for considering abuse under the totality of the
circumstances, the BAP further noted that the U.S. Court of Appeals for the
Ninth Circuit has held that the primary factor in such a determination is
the debtors' ability to pay their debts as determined by the ability to fund
a chapter 13 plan. The BAP also explained that, in evaluating the totality
of the circumstances, the bankruptcy court should review the debtors' actual
income and expenses and may take into account both current and foreseeable
changes in their economic circumstances. Held: bankruptcy court did not abuse its
discretion in disallowing the Debtors' voluntary retirement plan
contributions and their pension loan repayments as adjustments to the income
available to repay their creditors.
Reswick v. Reswick (In re
Reswick), 446 B.R. 362 (2011) ruled with the well-reasoned
minority view that the
stay terminates in its entirety. Debtor allowed chapter 13 cases to
become dismissed witout payment of fees and subsequent ch 13 filings took no
special action to preserve the stay. Also:
In United States v. Nordic Vill. Inc., 503 U.S.
30, 33-34 (1992), the Supreme Court held that in the absence of clear
statutory authority waiving sovereign immunity, a bankruptcy trustee cannot
recover monetary damages from the government for post-petition transfers.
The court noted the established doctrine that waivers of sovereign immunity
must be unequivocally expressed and must be construed strictly in favor of
the government. The Court stated "Legislative history has no bearing on the
ambiguity point . . . . [T]he ‘unequivocal expression' of elimination of
sovereign immunity that we insist upon is an expression in statutory text.
If clarity does not exist there, it cannot be supplied by a committee
report." Id. at 37. In Lane v. Pena, 518 U.S. 187, 192 (1996), the Supreme
Court held that a Merchant Marine cadet who was discharged from the academy
in violation of the Rehabilitation Act cannot recover monetary damages from
the government because the 1986 amendments to the Act did not provide for
monetary damages against federal agencies. Accordingly, a damage award
against the United States must be limited to only so much as is authorized
by the statute waiving sovereign immunity, and if the statute does not
clearly provide for recovery for emotional distress, recovery should not be
Fo-Farmer’s Outlet, Inc. v. Daniell (In re Daniell), 2013 WL 5933657
(9th Cir. BAP 2013)](get the cite) dismissal of a non- dischargeability
complaint -- 523(a)(2)(A) and 523(a)(6). No leave to amend --
insufficient facts -- motion to dismiss under Federal Rule of Civil
Procedure (“F.R.C.P.”) 12(b)(6). Was this bad record keeping, or bad
pleading? Contact seems to have been by phone instead of in writing.
In re Khan, 11-57609-BB, CC-13-1297-DPaTa (BAP 9th
Cir. Dec. 17, 2013). Filing Pro Se, messing it up, and then asking for
it to be EXPUNGED!!! Ms. Tasheena Khan (“Debtor”) filed a
pro-se chapter 7 case in LA but without the required credit
counseling certificate. After hearing on why it should not be closed,
the court closed the case. Debtor filed a pleading in which she
urged the bankruptcy court to expunge her bankruptcy filing so that it
would no longer appear on her credit reports. Debtor appealed the
Expungement Order to the BAP.
Held: No basis for expunging
In re Irene Michelle
(9th Cir. March 14, 2014) No. 12-60052
Debtor is not precluded from recovering attorney's fees as damages for
defending against creditor's appeal of a finding that the Automatic Stay
had been violated