Friday, December 27, 2013

NV Supreme Court - debtor must actually reside on real property in order to claim a homestead - certified question from NV BK Court

Judge Beesley certified a question to the Nevada Supreme Court which asked:

Can a debtor properly claim a homestead exemption for his interest in real property under NRS 21.090(1)([) and NRS Chapter 115 when debtor himself does not reside on the property but his minor children do? Put another way, does a debtor have to actually reside on the property that is the subject of a claimed homestead exemption under NRS 21.090(1)([) and NRS Chapter 115, or is it sufficient that a debtor's minor children reside on the property in order to qualify for the exemption?

The Nevada Supreme Court determined that a debtor must actually reside on the real property to claim the exemption.

In Nevada, "[i]t is axiomatic there can not be a homestead

absent residence[,] ... when a declaration of homestead is filed the declarant must be residing on the premises with the intent to use and claim the property as a homestead." In re Sullivan, 200 B.R. 682, 685

(Bankr. D. Nev. 1996), affd, 163 F.3d 607 (9th Cir. 1998).

In re Nilsson

A Not So Happy Christmas for a Law Firm Violating the Discharge Injunction ($27,000 worth of coal) - 9th Cir. BAP Published

The bankruptcy court held appellants Rediger Investment Corporation (“Rediger”) and its counsel, the Duringer Law Group, PLC (“Duringer Firm” and, jointly, the “Appellants”) in civil

contempt under 11 U.S.C. § 105(a) for violation of the 
automatic stay. As a result, it awarded sanctions against the Appellants, jointly and severally, in the amount of $23,072.09.  The BAP AFFIRMED.
Quite frankly, bad facts create bad results....this is a case which should have settled.  It is worth a read to understand the 105 contempt vs. 362.

Thursday, December 12, 2013

Judicial Estoppel - 9th Cir. - Published - Distinguishing Case From Prior Decision Entitled Ah Quinn

Plaintiff had filed for Chapter 7 bankruptcy petition and failed to list this employment discrimination action on her bankruptcy schedules. The panel held that the district court applied the correct legal rule, properly weighed the factors set forth in New Hampshire v. Maine, 532 U.S. 742 (2001), and did not otherwise err in concluding that plaintiff’s omission on her bankruptcy schedule was neither inadvertent nor mistaken, and that therefore judicial estoppel barred the action. 

The main issue was Evidence - with a capital E.  The Plaintiff provided no evidence to show inadvertence nor mistake.  Accordingly, no evidentiary hearing was needed and the Ah Quinn case was distinguishable.

2013 9th Cir. Dzakula v. McHugh


Tuesday, December 3, 2013

In a Published Decision, the 9th Circuit affirmed the determination that a fraud which would have served as grounds to deny a discharge could serve as grounds for the revocation of a discharge

The 9th Circuit affirmed the district court’ judgment, the panel held that a fraud that would have served as grounds for denying a chapter 7 bankruptcy discharge if it had been known at the time of the discharge could serve as grounds for the later revocation of that discharge.

The United States Trustee moved to revoke the discharge pursuant to 11 U.S.C. §727(d)(1), which provides that a chapter 7 discharge may be revoked if it was obtained through the fraud of the debtor and the requesting party did not know of the fraud until after the granting of the discharge.  The bankruptcy court found that the debtor’ misrepresentations of the value or existence of a number of assets in the schedules he filed and in the testimony he gave during the creditors meeting amounted to a violation of §727(a)(4)(A), which provides that a bankruptcy court should deny discharge if the debtor knowingly or fraudulently, in or in connection with the case, made a false oath or account.  The bankruptcy court granted the Trustee’ motion, and the district court affirmed.

The panel rejected the debtor’ argument that the concealment of his fraud, rather than the fraud itself, procured his discharge.  Adopting the reasoning of the Bankruptcy Appellate Panel and other circuits, the panel held that a material fraud, which would have resulted in the denial of a chapter 7 discharge had it been known at the time of such discharge, can justify subsequent revocation of that discharge under §727(d)(1).

9th Cir. In re Jones - Published