April 08, 2010

Circuit Court of Appeals Cases from Last Week

5th Circuit Court of Appeals, March 30, 2010
In the Matter of: Laughlin, --- F.3d ---, 2010 WL -------- (5th Cir. 2010)(for purposes of section 727(a)(2), 1) the court was required to look to Louisiana law in order to determine whether debtor fraudulently transferred "property" or an "interest in property"; and 2) under Louisiana law, a valid pre-petition renunciation of an inheritance interest was not a transfer of the debtor's property under section 727(a)(2)

April 8, 2010 in Other Circuit Briefs | Permalink | Comments (1) | TrackBack

March 28, 2010

Circuit Court of Appeals Cases from Last Week

Supreme Court, March 23, 2010
United Student Aid Funds, Inc. v. Espinosa, --- U.S. ---- (2010)(Order confirming chapter 13 plan cannot be attacked years later even though it contained improper provision discharging student loans - lender had sufficient notice)

2nd Circuit Court of Appeals, March 22, 2010
In re Johns-Manville Corp., --- F.3d ---, 2010 WL ------- (2nd Cir 2010)(objector-insurer not given constitutionally sufficient notice of the bankruptcy court's 1986 orders, so that due process absolved it from following them, whatever their scope)

2nd Circuit Court of Appeals, March 26, 2010
In re WestPoint Stevens, Inc., --- F.3d ---, 2010 WL ------- (2nd Cir 2010)(chapter 11 plan affirmed in part and reversed in part re distribution of securities but court of appeals lacks jurisdiction to review the sale order unless a stay had been entered or there was a challenge to the "good faith" aspect of the sale; and 2) in withdrawing the motion for "a stay of the closing of the sale," the parties' stay stipulation permitted the transfer of assets and the lien release, claim satisfaction, and distribution to occur as a single integrated transaction)

3rd Circuit Court of Appeals, March 22, 2010
In re Philadelphia Newspapers, LLC. , --- F.3d ---, 2010 WL ------- (3rd Cir 2010)(proposed bid procedure is affirmed as section 1129(b)(2)(A) unambiguously permits a debtor to proceed with any plan that provides secured lenders with the "indubitable equivalent" of their secured interest in the asset and contains no statutory right to credit bidding)

6th Circuit Court of Appeals, March 24, 2010
In re Westfall, --- F.3d ---, 2010 WL ------- (6th Cir 2010)(negative equity qualifies for protection from cramdown under the hanging paragraph of 11 U.S.C. section 1325(a) because negative equity financing constitutes a purchase money obligation under the UCC and thus the associated security interest satisfies the UCC's definition of a purchase money security interest)

7th Circuit Court of Appeals, March 25, 2010
Ojeda v. Goldberg, --- F.3d ---, 2010 WL ------- (7th Cir 2010)(bankruptcy court reversed where: 1) it clearly erred in finding that the creditor was unjustified in relying on the debtors' misrepresentations about the asserted continued ownership of McDonald's restaurants and by finding that the creditor did not establish a claim for fraudulently induced forbearance; and 2) the bankruptcy court committed an error of law in finding that only the unpaid interest and attorney's fees were non-dischargeable)

9th Circuit Court of Appeals, March 22, 2010
In re Marshall, --- F.3d ---, 2010 WL ------- (9th Cir 2010)(In an action based on defendant's purported tortious interference with a substantial inter vivos gift that plaintiff's late husband intended to give to her, judgment for plaintiff is reversed where a prior Texas probate court judgment should have been afforded preclusive effect because it was the earliest final judgment on matters relevant to the proceeding)

9th Circuit Court of Appeals, March 22, 2010
In re Taylor, --- F.3d ---, 2010 WL ------- (9th Cir 2010)(bankruptcy court reversed where court's determination of the value of the security interest in vehicle was clearly erroneous, because there was no evidence to support the finding that the value of the security interest equaled the amount of the original loan at the time the bank perfected its security interest)

D.C. Circuit Court of Appeals, March 26, 2010
Burns v. George Basilikas Trust, --- F.3d ---, 2010 WL ------- (D.C. Cir 2010)(Rule 9011(b)(2) sanctions reversed where requesting counseling from an unapproved credit counseling agency could satisfy 11 U.S.C. section 109(h)(3), and thus counsel did not violate that statute)

Thanks to Findlaw.com

March 28, 2010 in Other Circuit Briefs | Permalink | Comments (0) | TrackBack

March 24, 2010

Circuit Court of Appeals Cases from Last Week

5th Circuit Court of Appeals, March 18, 2010
In re Condor Ins. Ltd., --- F.3d ----, 2010 WL ------- (5th Cir. 2010)(bankruptcy court has jurisdiction to offer avoidance relief under foreign law in a Chapter 15 bankruptcy proceeding)

11th Circuit Court of Appeals, March 16, 2010
In re Delco Oil, Inc., --- F.3d ----, 2010 WL ------- (11th Cir. 2010)(bankruptcy trustee may avoid post-petition payments by the debtor under 11 U.S.C. sections 549(a) and 363(c)(2) as unauthorized transfers of cash collateral)

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March 24, 2010 in Other Circuit Briefs | Permalink | Comments (0) | TrackBack

March 19, 2010

Circuit Court of Appeals Cases from Last Week

U.S. Supreme Court, March 08, 2010
Milavetz, Gallop & Milavetz, P.A. v. US, --- U.S. --- (2010)(attorneys are debt relief agencies.  Restriction on speech in section 526(a)(4) is not unconstitutional since it does restrict discussion, only improper advice)

1st Circuit Court of Appeals, March 10, 2010
In re Am. Bridge Prod., Inc., --- F.3d ---, 2010 WL ------------- (1st Cir. 2010)(In a bankruptcy trustee's action against an appointed receiver for misfeasance statute of limitations did not run because the receiver had not rendered a final accounting or been discharged in either state or federal court)

4th Circuit Court of Appeals, March 12, 2010
In re Kirkland, --- F.3d ---, 2010 WL ------------- (4th Cir. 2010)(bankruptcy court did not have jurisdiction to determine the post-petition interest and collection costs to which the creditor was entitled as the result of a default on a student loan that occurred after the Chapter 13 estate was closed and the debtor discharged)

7th Circuit Court of Appeals, March 08, 2010
In re Ray, --- F.3d ---, 2010 WL ------------- (7th Cir. 2010)(dismissal of two Chapter 11 proceedings was correct, but the decision is vacated, as the law firm lacked standing where there is no evidence that one of the law firm's former attorneys ever informed the bankruptcy court that it was appearing on behalf of the firm and the record is devoid of any mention of the firm by the attorney or any other party)

Thanks to Findlaw.com

March 19, 2010 in Other Circuit Briefs | Permalink | Comments (0) | TrackBack

February 20, 2010

Circuit Court of Appeals Cases from Last Week

7th Circuit Court of Appeals, February 19, 2010
Miller v. LaSalle Bank Nat'l Ass'n, --- F.3d ---, 2010 WL --------- (7th Cir 2010)(technical error in recorded mortgage not sufficient to avoid lien under Indiana law)

8th Circuit Court of Appeals, February 16, 2010
American Prairie Constr. Co. v. Hoich, --- F.3d ---, 2010 WL --------- (8th Cir 2010)(request to recuse judge denied, order approving settlement agreement reversed where the parties did not come to a meeting of the minds with respect to an essential term)

9th Circuit Court of Appeals, February 16, 2010
US v. Edwards, --- F.3d ---, 2010 WL --------- (9th Cir 2010)(Defendant's sentence and restitution order for bankruptcy fraud affirmed where: 1) collateral estoppel did not preclude the restitution order because, although compensation to defendant's victims was the general issue in a bankruptcy settlement, the issue was not identical to the issue in the criminal proceedings; and 2) the sentence was not substantively unreasonable because the district court did not abuse its discretion when it considered defendant's history and circumstances)

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February 18, 2010

Circuit Court of Appeals Cases from Last Week

5th Circuit Court of Appeals, February 10, 2010
In re TransTexas Gas Corp., --- F.3d ---, 2010 WL ---------------- (5th Cir. 2010) (severance payment to former CEO are fraudulent transfers, and the CEO's repayment of the amounts received did not constitute an insurable "Loss" under the insurance policy.)

11th Circuit Court of Appeals, February 08, 2010
Robinson v. Tyson Foods, Inc., --- F.3d ---, 2010 WL ---------------- (11th Cir. 2010)(In an employment discrimination action brought by debtor during the Chapter 13, summary judgment for defendant on the ground of judicial estoppel is affirmed where debtor failed to disclose her employment discrimination suit to the bankruptcy court, and thus took inconsistent positions under oath with the intent of misleading the court)

February 18, 2010 in Other Circuit Briefs | Permalink | Comments (0) | TrackBack

February 05, 2010

Circuit Court of Appeals Cases from Last Week

6th Circuit Court of Appeals, January 25, 2010
B-Line, LLC v. Wingerter, --- F.3d ---, 2010 WL ---------- (6th Cir. 2010)(bankruptcy court reversed in holding that plaintiff's purchase of a creditor's claim against the debtors was not valid and bankruptcy court abused its discretion in determining that plaintiff's actions violated Rule 9011(b))

February 5, 2010 in Other Circuit Briefs | Permalink | Comments (0) | TrackBack

February 03, 2010

Illinois Judge Rules Unemployment is not a Benefit Under Social Security and Therefore is part of CMI

Brief by my associate, Roksana Moradi 

In re Kucharz, 418 B.R. 635 (Bkrtcy C.D. Ill, Oct 2009)

Issue:  Is unemployment compensation a “benefit received under the Social Security Act” and thus excluded from a Chapter 13 debtor's current monthly income?

Holding: No.   

The Debtor, Jonathan Kucharz, received unemployment compensation totaling $1,230.00 during the six-month period preceding his bankruptcy filing.  He disclosed the unem-ployment compensation but claimed “it as a benefit under the Social Security Act that, as such, does not need to be included in the calculation of his current monthly income.” The Chapter 13 Trustee disagreed and objected.

Current monthly income (CMI) is defined in Section 101(10A) as follows:

(B) includes any amount paid by any entity other than the debtor (or in a joint case the debtor and the debtor's spouse), on a regular basis for the household expenses of the debtor or the debtor's dependents (and in a joint case the debtor's spouse if not otherwise a dependent), but excludes benefits received under the Social Security Act, payments to victims of war crimes or crimes against humanity on account of their status as victims of such crimes . . .

The Social Security Act of 1935 (hereinafter “SSA”) “incentivized the states to adopt conforming laws to pay unemployment insurance benefits to their involuntarily unem-ployed citizens.”  Congress “rejected the alternative of a uniform national unemployment insurance system, preferring instead to preserve the autonomy of the states to adopt their own systems.”  The incentive for the states to act was a financial one, provided through the Federal Unemployment Tax Act (FUTA), 26 U.S.C. §§ 3301-3311.   FUTA imposes an excise tax on wages paid by employers.  An employer, however, is allowed a credit of up to 90% of the federal tax for contributions the employer pays to a state fund established under a federally approved state unemployment compensation law.  In order to protect the employer contributions against loss, the states are required to invest the funds with the U.S. Treasury. Id. The states' funds are deposited and held in an ‘Unemployment Trust Fund.’ 42 U.S.C. § 1104.”

The court said the legislative history is “inconclusive” and that “the combination of the historical link to the SSA and the element of federal-state collaboration on behalf of un-employment compensation gives rise to the ambiguity.”  The court determined that the “inquiry is more specific than whether there is merely an historical link between the SSA and unemployment compensation.  Unemployment payments are excluded only if they are properly characterized as benefits received under the Social Security Act.  It is not sufficient that the benefits are merely ‘related to’ or ‘envisioned by’ or ‘induced by’ the SSA. More is required. They must have been received under the SSA.”

The Court found the preposition under to be both “the cause of and the key to unlock the mystery. In the context of its usage in Section 101(10A), ‘under’ means ‘required by’ or ‘in accordance with’…Neither the SSA nor FUTA requires the states to enact an unemployment insurance program.  As determined by the Supreme Court, inducement is not coercion, and the unemployment insurance programs that were adopted in all 50 states are truly state, not federal, programs.  Unemployment benefits are paid as required by state law, not by the SSA. Thus, a purely textual analysis favors the conclusion that unemployment benefits are not received under the SSA.”

The Court did not stop there, “because the language of the provision is ambiguous, it is appropriate to also consider a contextual analysis…Chapter 13 plan payments are based, in part, on the income that a debtor is expected to receive during the term of the plan. The CMI calculation uses a 6-month lookback period as an indicator of future income, in-cluding earnings from employment.  So the CMI formula serves a predictive function… Unemployment compensation is a temporary, partial substitute for wages lost due to the involuntary unemployment of one who intends to return to the workforce. The theory behind CMI is premised upon the assumption that their recent earnings history is a valid predictor of how much debtors are likely to earn in the future.  Since unemployment benefits replace lost wages, including those benefits in the CMI calculation is consistent with the predictive purpose of the provision.  Excluding those benefits would be inconsistent with the statute's policy and purpose.  The fallacy of using $0 during periods of temporary unemployment as a predictor of future earnings once the debtor is reemployed seems obvious.”   Thus the Court concluded that a “contextual analysis weighs in favor of including unemployment benefits in a debtor's CMI.”

The Court ruled that unemployment compensation, received in the six months before bankruptcy, must included in CMI.   

February 3, 2010 in Other Circuit Briefs | Permalink | Comments (1) | TrackBack

January 24, 2010

Circuit Court of Appeals Cases from Last Week

2nd Circuit Court of Appeals, January 22, 2010
In re: Jackson, --- F.3d ---, 2010 WL --------- (2nd Cir. 2010)(settlement payment not exempt, "future earnings" under tort law was unpersuasive given the different purposes of tort law and bankruptcy law) 

4th Circuit Court of Appeals, January 22, 2010
United Rentals, Inc. v. Angell, --- F.3d ---, 2010 WL --------- (4th Cir. 2010)(payments here are an avoidable preference regardless of whether the transfers set in motion a chain of events that resulted in the debtor's recoupment of the amounts paid, no showing that such new value was given to the debtor as part of a contemporaneous exchange)

January 24, 2010 in Other Circuit Briefs | Permalink | Comments (0) | TrackBack

Statute to Sue Trustee Ran Says 7th Circuit

By Lara Boyko, UWLA Law Student

CIT Communications Finance Corporation v. Maxwell (In re marchFirst, Inc), 589 F.3d 901 (7th Cir., 2009)

Issue: Was suit against the trustee here properly dismissed where the complaint was filed after the statute of limitations had run?

Holding: Yes

In 2000, CIT leased telephone equipment to marchFIRST.  On April 12, 2001, marchFIRST filed a bankruptcy petition.  Maxwell was appointed trustee.  CIT then requested the return of its equipment. “Maxwell and his agents advised CIT to contact different individuals, each of which ‘stonewalled’ CIT.”  In addition, Maxwell missed the August 12, 2001 deadline for filing an inventory of CIT’s property as required by Section 704.  Three and a half months later, Maxwell filed a Statement of Financial Affairs denying that the debtor held or controlled any of CIT’s property.  Maxwell began liquidating the debtor’s property (which presumably included CIT’s property).  CIT filed an administrative expense claim in 2002 and sued Maxwell in 2007 for breach of fiduciary duties.  The statute of limitations is five years in Illinois.  Maxwell sought dismissal based on the statute but CIT argued that it did not discover Maxwell’s breaches until some time in 2002 and therefore the statute had not run.  The bankruptcy court dismissed and the district court affirmed. 

The 7th Circuit affirmed.  The statute of limitations begins “at the time of the breach or when the plaintiff reasonably should be aware of its injury and its wrongful cause.”   Based on the timeline of events and sophistication level of CIT, it should have known that its injury was wrongfully caused during the summer and fall of 2001 during Maxwell’s refusal to cooperate and not between May 7, 2002, and December 12, 2002, as claimed.  Therefore the statute of limitations period started accruing in 2001, which is more than five years before CIT filed a complaint against the defendant.

January 24, 2010 in Other Circuit Briefs | Permalink | Comments (0) | TrackBack

January 18, 2010

Washington Judge Rules that Debtor May Bifurcate Claim on her Home when it is also a Boarding Home

In re Reyes, 09-17532 (unpublished)  (Bkrtcy. Wash. Dec, 2009)

Issue:  Can the chapter 13 debtor here bifurcate a secured claim on property that is her residence but she also operates as a boarding home? 

Holding:  Yes

Judge Karen Overstreet

This chapter 13 debtor seeks to bifurcate a secured claim on real property.  The five bedroom property is her home but she “has been taking in boarders since 1993.”  “The boarders who live at the Property share a common kitchen and receive food and meals from Debtor as part of their rental agreement. Each boarder is entitled to a furnished room and generally three hot dinners per week. Debtor shops for the tenants’ food and makes it available in the common kitchen. She also maintains the common areas in a clean and usable fashion and otherwise helps the boarders become acclimated to the neighborhood and Seattle.”  She also works full-time and the University of Washington as a lab tech.  The judge believed her testimony that the loan agent knew of the use of the property when the loan was made.  She also was swayed by the fact the use as a boarding home was for the past 16 years. 

Judge Overstreet ruled that the loan may be bifurcated.  “Any other construction of Section 1322(b)(2) would read the word “only” out of the statute.  Accordingly, the Court finds that Creditor’s lien is not protected by the antimodification provision of Section 1322(b)(2).”  She also ruled that the creditor did not have standing because it could not establish that it “has authority to hold the Note for the account of Creditor and of a valid chain of assignments from the original holder of the Deed of Trust to Creditor.”

January 18, 2010 in Other Circuit Briefs | Permalink | Comments (0) | TrackBack

D.C. Judge Rules Chapter 13 Debtor may Bifurcate Secured Claim on What was Her Residence Until She Moved

In re Roemer, --- B.R. ---, 2009 WL 5101762  (Bkrtcy.D.C. Dec, 2009)

Issue:  Can the chapter 13 debtor here bifurcate a secured claim on property that was her residence until she moved out before filing her petition? 

Holding:  Yes

Judge Ronald Swartz,

This chapter 13 debtor seeks to bifurcate a secured claim on real property.  The property was her home until some unstated number of months before she filed her case.  The loan documents provide that she will live in the property for “at least one year.”   She lived there about two years before she moved.  The court ruled that the debtor is permitted to bifurcate the claim.  He said that as of the date of the filing, the property was not her home.  As to the “mortgage date test,” i.e., are courts supposed to determine the issue of residence as of the date the mortgage is executed or not, the judge said that the terms of the mortgage prevail.  The bank here by contract agreed that its anti-modification protection would last only one year.  “Here, the mortgage instrument granted a security interest in property that after one year was not required to be occupied as the debtor's principal residence, and accordingly the mortgage instrument was not limited to being a security interest in the debtor's principal residence. Section 1322(b)(2) does not protect the mortgage from modification.”

January 18, 2010 in Other Circuit Briefs | Permalink | Comments (0) | TrackBack

January 17, 2010

Chapter 13 Plan Cannot Force a Sale of Property by Co-Owner to Debtor

Brief by my associate and UWLA graduate Roksana Moradi

In re Dahlgren, 418 B.R. 852 (Bkrtcy N.J. Nov. 2009)

Judge Raymond Lyons

This chapter 13 Debtor's plan proposed to treat his “former paramour's interest in their jointly owned real property as a claim to be satisfied through the plan, leaving him as the sole owner.”  Confirmation of the plan was denied. 

The debtor and his girlfriend bought a farm to board horses and “there was an agreement between the two that the [girlfriend] would manage the properties, the Debtor would contribute capital and make improvements, and the two would both benefit from any profits.”  Later they separated and the girlfriend filed a partition action in state court.  Judgment was entered ordering the sale of the Farm, with the proceeds to be held in trust until “further determination by the court of the proper distribution thereof (which was later scheduled for April 9, 2009, the day the Debtor filed for bankruptcy).”  The property was in foreclosure at the time.  The girlfriend moved for dismissal of the bankruptcy “for reasons of bad faith filing in light of the totality of the circumstances pursuant to Section 1307(c) of the Bankruptcy Code… Alternatively, the [girlfriend] contends that the Debtor's plan should not be confirmed pursuant to Sections 1325(a)(3) and 1325(a)(7) of the Bankruptcy Code because the plan was not proposed in good faith and the petition was not filed in good faith.” 

The bankruptcy court looked at the motion to dismiss first; under Section 1307(c) the facts “must be assessed on a case-by-case basis in light of the totality of the circumstances.” And “whether the filing is fundamentally fair.”  The factors are “[T]he nature of the debt, including the question of whether the debt would be nondischargeable in a Chapter 7 proceeding; the timing of the petition; how the debt arose; the debtor's motive in filing the petition; how the debtor's actions affected creditors; the debtor's treatment of creditors both before and after the petition was filed; and whether the debtor has been forthcoming with the bankruptcy court and the creditors.” 

The girlfriend argued that the Debtor was solvent and the only reason he filed for bankruptcy was to avoid the sale of the Farm.  The Debtor testified “that he has filed for relief under chapter 13 in good faith, for the purposes of saving the Farm from mortgage foreclosure and the involuntary forced sale ordered by the state court and ‘to reorganize all of his debts in a meaningful manner.’” 

The Court denied the motion pointing out that “dismissal should be saved for “those egregious cases that entail concealed or misrepresented assets and/or sources of income, lavish lifestyles, and intention to avoid a large single debt based upon conduct akin to fraud, misconduct or gross negligence.”  The Court said “the Debtor did not engage in frivolous overspending prior to filing, and he can point to a serious injury to explain his current debt situation.  Although the timing of the Debtor's bankruptcy petition and apparent forum shopping are suspicious, the circumstances do not rise to the level of bad faith.  “Additionally, the court does not find that dismissal of the Debtor's case is in the best interest of the creditors or the estate, a consideration implicit in Section 1307 analysis…If this case were dismissed, the Debtor [is] facing imminent mortgage foreclosure, in which case they are likely to realize less profit from the sale than if they were to sell the Farm to a buyer such as the one procured by the Movant prior to the filing of this motion.  This scenario would result in the unsecured creditors losing equity under the plan.”   

As to confirmation of the plan, the Court found the “Debtor's plan to be patently unconfirmable based on his proposed treatment of the [girlfriend’s] interest in the Farm….The Debtor's proposed treatment of the Movant's interest in their mutually owned property is not permitted under Section 1322 and the Debtor has provided no authority to support the proposition that a Chapter 13 debtor has the right to divest a joint property owner of her interest in the property and fix that interest as a monetary claim.”  “[T]he Debtor has not cited any authority for the remedy he proposes-that an owner of real property may force his co-owner to sell the co-owner's interest to him, rather than to a third party.  It is conceivable that a state court might order such a remedy despite the lack of precedent, but the problem here is that the Debtor had the opportunity to request such a remedy in the pending state court action, but failed to do so. Bankruptcy does not afford him a second chance to seek novel relief that he missed in state court.”

The Court denied the requested confirmation of the plan.

January 17, 2010 in Other Circuit Briefs | Permalink | Comments (1) | TrackBack

January 16, 2010

Circuit Court of Appeals Cases from Last Week

5th Circuit Court of Appeals, January 08, 2010
In re Blast Energy. Servs. Inc., --- F.3d ---, 2010 WL ------------ (5th Cir. 2010)(actions the debtor took to substantially consummate the chapter 11 plan before the creditor could obtain a stay did not insulate the plan from an appellate challenge)

9th Circuit Court of Appeals, January 08, 2010
In re Ormsby, --- F.3d ---, 2010 WL ------------ (9th Cir. 2010)(summary judgment for non-dischargeability proper where debtor's conduct constituted larceny within the federal meaning of the term, denial of attorneys fees also proper)

Thanks to Findlaw.com 

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January 06, 2010

Circuit Court of Appeals Cases from Last Week

3rd Circuit Court of Appeals, December 31, 2009
In re W.R. Grace & Co., --- F.3d ---, 2009 WL ------------ (3rd Cir. 2009)(no subject matter jurisdiction to expand a preliminary injunction to include Montana actions - bankruptcy court does not have related-to-jurisdiction over a third-party lawsuit if that lawsuit would affect the bankruptcy proceeding only through the intervention of yet another lawsuit)

11th Circuit Court of Appeals, December 28, 2009
In re Baker,  --- F.3d ---, 2009 WL ------------ (11th Cir. 2009)(Keogh plan was not property of the estate - plan did not have to be maintained under ERISA for the debtor to claim an exemption under Florida law)

California Appellate Districts, December 29, 2009
Jasmine Networks, Inc. v. Sup. Ct.,slip Cal.App.4th 2009/h034441 (plaintiff does not lose standing to maintain an action under California Uniform Trade Secrets Act for misappropriation by filing a bankruptcy petition and selling the trade secrets during the bankruptcy)

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December 27, 2009

Circuit Court of Appeals Cases from Last Week

2nd Circuit Court of Appeals, December 24, 2009
Kirschner v. KPMG LLP, --- F.3d ---, 2009 WL ---------- (2nd Cir. 2009)(the Court of Appeals certifies questions to the Court of Appeals of New York re consequences of insider conduct and the "adverse interest" exception)

3rd Circuit Court of Appeals, December 22, 2009
In re Plassein Int'l Corp., --- F.3d ---, 2009 WL ---------- (3rd Cir. 2009)(in leveraged buy-outs, payments to shareholders of the acquired corporations not avoidable as fraudulent transfers because they were exempt settlement payments under section 546(e))

3rd Circuit Court of Appeals, December 22, 2009
In re 15375 Memorial Corp., --- F.3d ---, 2009 WL ---------- (3rd Cir. 2009)(Chapter 11 dismissed for lack of good faith where petitions served no valid bankruptcy purpose and were used primarily as a litigation tactic to protect debtors and their parent companies from liability in pending litigation)

7th Circuit Court of Appeals, December 21, 2009
In re marchFIRST, Inc., --- F.3d ---, 2009 WL ---------- (7th Cir. 2009)(plaintiff's claims dismissed because they accrued more than five years before it filed its complaint and its claims are barred by the five-year statute of limitations)

9th Circuit Court of Appeals, December 21, 2009
In the matter of: Harris, --- F.3d ---, 2009 WL ---------- (9th Cir. 2009)(action by a Chapter 7 debtor against the bankruptcy trustee is dismissed where: 1) the bankruptcy court had subject matter jurisdiction over plaintiff's state law breach of contract claim; and 2) the bankruptcy court's approval of the acts plaintiff alleged breached the contract entitled the defendants to derived quasi-judicial immunity)

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December 21, 2009

Circuit Court of Appeals Cases from Last Week

1st Circuit Court of Appeals, December 14, 2009
Haag v. US, --- F.3d ---, 2009 WL ---------- (1st Cir. 2009)(defenses to IRS request for judgment for unpaid taxes rejected where defenses are foreclosed by res judicata and are without merit)

1st Circuit Court of Appeals, December 14, 2009
Rederford v. US Airways, Inc., --- F.3d ---, 2009 WL ---------- (1st Cir. 2009)(action against airline by a former employee alleging violation under the ADA dismissed where: 1) plaintiff failed to pursue her employment discrimination claims through the bankruptcy proceeding; and 2) the district court did not err in rejecting plaintiff's contention that she nonetheless should be able to litigate her claims based on the doctrines of judicial estoppel and unclean hands)

5th Circuit Court of Appeals, December 15, 2009
In re Superior Offshore Int'l., Inc., --- F.3d ---, 2009 WL ---------- (5th Cir. 2009)(confirmation of debtor's Chapter 11 liquidation plan is affirmed where: 1) section 1123(a)(4) only required equal treatment of members within the same class; 2) the plan made all the disclosures regarding the Equity Subcommittee required by section 1129(a)(5)(A)(i); and 3) because a class of creditors voted in favor of the plan, the absolute priority rule unambiguously did not apply to those claims)

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December 10, 2009

Circuit Court of Appeals Cases from Last Week

11th Circuit Court of Appeals, December 03, 2009
In re Coady, --- F.3d ---, 2009 WL -------- (11th Cir. 2009)(discharge denied where: 1) debtor concealed an equitable interest in his wife's businesses; and 2) the doctrine of continuing concealment applies when a debtor kept his assets out of a creditor's reach during the look-back period through a sham ownership arrangement established more than one year before the bankruptcy petition was filed)

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December 05, 2009

Circuit Court of Appeals Cases from Last Week

1st Circuit Court of Appeals, November 24, 2009
Boston & Maine Corp. v. Massachusetts Bay Transp. Auth., --- F.3d ---, 2009 WL ---------- (1st Cir. 2009)(cleanup claims barred by 1983)

2nd Circuit Court of Appeals, November 23, 2009
O'Rourke v. US, --- F.3d ---, 2009 WL ---------- (2nd Cir. 2009)(IRS claim allowed where 1) the bankruptcy court's finding that a notice of deficiency was mailed to debtors was not clearly erroneous; 2) debtors identified no affirmative misconduct on the part of the IRS warranting an estoppel; and 3) their argument that the certified mail log was inadmissible was waived)

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November 23, 2009

Circuit Court of Appeals cases from Last Week

7th Circuit Court of Appeals, November 18, 2009
Boyer v. Crown Stock Distrib., Inc., --- F.3d ---, 2009 WL --------- (7th Cir. 2009)(judgment for trustee in fraudulent conveyance action is affirmed in part and reversed in part where: 1) bankruptcy court did not commit clear error in finding that the statutory condition for a fraudulent conveyance was satisfied; and 2) district court's ruling with respect to the dividend is reversed as the trustee is entitled to the dividend because it was an integral part of the leveraged buy-out)

9th Circuit Court of Appeals, November 20, 2009
Severo v. Comm'r of Int'l Rev., --- F.3d ---,  2009 WL ----------- (9th Cir. 2009)(IRS permitted to proceed with collection action relating to petitioners' 1990 tax liability because statute of limitations regarding collection was tolled during the pendency of petitioners' bankruptcy proceedings)

Thanks as always to Findlaw.com 

November 23, 2009 in Other Circuit Briefs | Permalink | Comments (0) | TrackBack