9th Cir. Published - Court determined that BK Court can award money damages in objection to discharge proceeding

The panel adopted the BAP’s opinion as its own. The BAP held that, even after Stern v. Marshall, 131 S.Ct. 2594 (2011), the bankruptcy court had the constitutional authority to enter a final judgment determining both the amount of the Fords’ damage claims against the debtor Shawn Deitz, and determining that those claims were excepted from discharge. The BAP also held that the bankruptcy court did not err in concluding that the debt owed by Deitz to the Fords was nondischargeable under 11 U.S.C. §§ 523(a)(2)(A), (a)(4), and (a)(6).


The panel noted that dischargeability actions are central to federal bankruptcy proceedings and are necessarily resolved during the process of allowing or disallowing claims against the state, and that the dischargeability determination therefore constitutes a public rights dispute that the bankruptcy courts may decide.








In re Deitz (9th Cir. 2014)

"Small Chihuahua" creates a non dischargeable debt for the "Pugs"

A Missouri BK Court caught the Debtors in multiple "false statements" and found that they lacked credibility at trial when they defended a 523 cause of action based upon damages from their "small Chihuahua".  The Court found that they must have had a larger dog because there was remarkably damaged heavy metal doorknob which was chewed up (perhaps the small dog jumped??) and the look from the urine stained floors, damaged doors and doorknob that a large dog or dogs were locked in the house for a longer period of time. 


The Court analyzed the situation under 523(a)(2)(A) and found in favor of the Landlord...named Pugh (perhaps it is pronounced Pug).


If you like dog stories, check out the case.

Pugh v. Ennis (In re Ennis), 2014 Bankr. LEXIS 2674

United States Bankruptcy Court for the Western District of Missouri

June 17, 2014, Decided

Case No. 13-61122, Adversary No. 13-6044

5th Circuit - Published - Funds held by Chapter 13 Trustee in a Confirmed Plan, are required to be paid to the creditors per the plan

The 5th Circuit held that a Debtor who converted after the plan was confirmed, is NOT entitled to the funds held by the Chapter 13 Trustee.  Rather, the funds belong to the creditors in the confirmed plan.


The 5th Circuit analyzed the situation and determined that the plan was still effective and the Chapter 13 Trustee held the funds in Trust for the creditors.


** Under 9th Circuit approach, funds are not part of the Chapter 7 Estate, but the 9th Circuit never addressed the issue if the Chapter 13 Trustee should distribute funds to the creditors.


(In re Nash, 765 F.2d 1410 (9th Cir. 1985) (holding that any undistributed earnings paid to a Chapter 13 trustee pursuant to a confirmed plan must be returned to the debtor upon dismissal of the Chapter 13 case).







In re Harris

Hawaii is a beautiful state...but one Debtor's firm was denied their fees....Aloha! (2014 - unpublished Hawaii)

One must wonder if the law firm representing this debtor was surfing, enjoying a sunset or perhaps just attending a luau.  In any case, the firm's fees were denied....here are some of the errors made by the law firm:


1)  Failed to disclose a payment of $8,000.00 pre-petition by the Debtor
2) Failed to disclose a $4,000.00 post-petition payment by the Debtor (which they returned to the Debtor after it was "brought" to their attention.
3) Put a Debtor in a Chapter 13, but the Debtor did not qualify for the 13
4) Failed to appear for hearings but rather hired a "contract" attorney to appear but never disclosed the compensation to the contract attorney
5) Failed to affiliate with a competent Chapter 11 attorney


For those who remember Judge Markell and his epic opinions, the Court cited to In re Spickelmeir which stood in part for the proposition that requested compensation may be reduced if the court finds that the work done was excessive or of a poor quality...


The end result was...no fees.

In re Wegesend, 2014 Bankr. LEXIS 2902 United States Bankruptcy Court for the District of Hawaii

July 3, 2014, Decided

CASE NO. 13-01686, (Chapter 11)

As it applies to property of the estate, the Bankruptcy Code is intended to apply to property located anywhere...including outside of the U.S. (9th Cir. 2014) - Published

This is the second case which the 9th recently decided in this matter.

The Diaz Defendants concede that they waived any objection they could have

raised under Stern v. Marshall, 131 S. Ct. 2594 (2011), to the bankruptcy court’s entry of final judgment. See Exec. Benefits Ins. Agency v. Arkison, 702 F.3d 553, 566–70 (9th Cir. 2012), aff’d on other grounds, 573 U.S. ___ (2014).

(interesting that the parties conceded that they could waive the objection)

The panel affirmed the district court’s affirmance of the bankruptcy court’s judgment (1) invalidating the transfer to Alejandro Diaz-Barba and Martha Barba de la Torre (the

“Diaz Defendants”) of a Mexican coastal villa owned by debtors Jerry and Donna Icenhower and (2) requiring the Diaz Defendants to transfer the property to Kismet Acquisition, LLC, for the benefit of debtors’ bankruptcy estate.

The debtors transferred the property to H&G, a shell company they had purchased. After the debtors filed for bankruptcy, H&G sold the property to the Diaz Defendants. The bankruptcy trustee filed a fraudulent conveyance action seeking to avoid the sale of the villa to H&G as a fraudulent

pre-petition transfer. The bankruptcy trustee also filed an action seeking to avoid the sale to the Diaz Defendants on the basis that H&G was the debtors’ alter ego and that the sale was an unauthorized postpetition transfer.

The panel affirmed the bankruptcy court’s judgment on the postpetition transfer action. It held that the Diaz Defendants had waived any objection they could have raised to the bankruptcy court’s Article III authority to enter final judgment. The panel held that since the bankruptcy court’s judgment for Kismet was the same in both actions, the panel’s judgment rendered the fraudulent conveyance action moot.

The panel held that the bankruptcy court did not err by exercising jurisdiction over Mexican land. The panel held that the local action doctrine was preempted by statute and that 28 U.S.C. § 1334(e) granted the bankruptcy court  exclusive in rem jurisdiction over the villa interest. The panel also held that the bankruptcy court did not improperly apply  U.S. law extraterritorially because Congress intended extraterritorial application of the Bankruptcy Code as it applies to property of the estate. Given the bankruptcy court’s ruling that H&G was the debtors’ alter ego and its substantive consolidation of H&G with the bankruptcy estate,  the villa interest was property of the estate as of the petition date.

The panel held that the bankruptcy court did not abuse its discretion by failing to honor the contractual selection of a Mexican forum. The bankruptcy court also did not err by declining to abstain from ordering recovery of the property based on international comity because there was no true conflict of law. The panel held that Mexico was not a

necessary and indispensable party. Distinguishing In re Tippett, 542 F.3d 684 (9th Cir. 2008), the panel held that the

bankruptcy court did not err in applying U.S. law instead of Mexican law to determine whether the Diaz Defendants were good faith purchasers. Finally, the panel held that

bankruptcy court did not clearly err in finding that Martha Barba de la Torre purchased the villa in bad faith

In re Icenhower - 9th Cir. 2014

Supreme Court Grants Cert in the next Stern v. Marshall issue - July 1, 2014 - Wellness International Network, Limited, et al., Petitioners Case No. 13-935

On July 1, 2014, the Supreme Court granted Cert limiting Cert to Questions 1 and 3 as indicated in the petition.  Questions 1 and 3 are as follows:

1. Whether the presence of a subsidiary state property law issue in a 11 U.S.C. § 541 action brought against a debtor to determine whether property in the debtor’s possession is property of the bankruptcy estate means that such action does not  "stem[] from the bankruptcy itself” and therefore, that a bankruptcy court does not have the

constitutional authority to enter a final order deciding that action.


GRANTED CERT

2.  Whether Article III permits the bankruptcy courts to exercise the judicial power of the United States over claims against a debtor where the debtor has consented to the exercise of such judicial power by voluntarily filing for bankruptcy relief.

DENIED CERT

3.  Whether Article III permits the exercise of the judicial power of the United States by the bankruptcy courts on the basis of litigant consent, and if so, whether implied consent based on a litigant’s conduct is sufficient to satisfy Article III.

GRANTED CERT

Whether bankruptcy courts have the statutory authority to submit proposed findings of

fact and conclusions of law for de novo review by a district court in a "core" proceeding under 28 USC 157(b).

DENIED CERT

Jul 1 2014

Petition GRANTED limited to Questions 1 and 3 presented by the petition. 7-1-14 - Cert Granted See Prior Blog on Case - Wellness Blog 2013

9th Cir BAP Vacates and Remands Denial of Discharge back to BK Court to Make Specific Findings of Fact - 9th Cir. BAP - Unpublished 2014

It appears that the Court may have had a bad debtor on its hands and was frustrated with the actions taken by the debtor.  As a result, after a trial on the case, the Court denied the debtor a discharge under 727(a)(5), 727(a)(2) and 727(a)(4)(A).  The problem was that the Court did not make specific findings on the elements of the cause of action. 




727(a)(2) - the Court never determined that the assets that were concealed were property of the Estate.  The Debtor argued that the property belonged to a corporation.


727(a)(5) - Same Issue, the failure to explain the disposition of the assets....the question was were they property of the estate or the corporation.


727(a)(4)(A) - The Court needed to make a determination as to whether the debtor knowingly and fraudulently made a false oath (clearly the statement was false...but knowingly and fraudulently but more importantly the false oath pertained to a prior bankruptcy case and such false statement in the prior case were not actionable in the new case...citing to In re Carter, 125 B.R. 631, 634 (Bankr. D. Utah 1991)?)




In essence, the Court needed to make specific findings to support the denial of the discharge.  I'd suggest that the BK Court will make such findings the second time around.


In re Sethi - 2014 - 9th Cir. BAP

Foreclosure sale 5 minutes prior to filing bankruptcy withstands motion for summary judgment - 9th Cir. BAP Affirms - 2014 - Unpublished

Debtor filed his Chapter 13 case at 10:11 a.m. and the Bank foreclosed upon the Debtor's real property at 10:06 a.m.  Despite the time differential, the Debtor contended that the sale took place after the filing.  Unfortunately for the Debtor, he was unable to produce any evidence to reflect a different time of the foreclosure sale.  The Debtor submitted inadmissible evidence to support his position that the sale took place after the filing.  The BAP went through the burden of proof of the parties on a motion for summary judgment and its standard of review.  The Court affirmed.


The Debtor also appealed the denial of its motion to reconsider the order.  The BAP citied to Duarte v. Bardales 526 F.3d. 563, 567 (9th Cir. 2008) for the proposition that:

In order to justify relief under Rule 9023, the movant must show: “(a) newly discovered evidence,

(b) the court committed clear error or made an initial decision that was manifestly unjust, or (c) an intervening change in controlling law.” Id. (citing Duarte v. Bardales, 526 F.3d 563, 567 (9th Cir. 2008)).

The BK Court determined that it was not duly discovered evidence because the Debtor should have exercised reasonable diligence in obtaining the testimony about a potential issue as to the time of the sale.


The BAP Affirmed.


Query - Why didn't he file the day before?


Wackerman v. BofA et al

9th Circuit - Impositions of Sanctions by Bankruptcy Court - Affirmed - Failure to Transfer Real Property Located in Mexico (Published - 2014)

Contempt sanctions were issued by the bankruptcy court against a defendant for failing to a Mexican Villa to the Plaintiff.  Although the case just came down and I have not adequately reviewed, of interesting point is the reiteration that the Bankruptcy Court can issue contempt proceedings provide that notice is given and a statement of the burden.  Also, the Court examined the ability of the Debtor to actually comply with the order in light of Mexican Law.  Once again, the parties need to always examine who has the burden....



Once an alleged contemnor’s noncompliance with a court order is established, the burden shifts to the alleged contemnor to “produce[] sufficient evidence of [its] inability

comply to raise a question of fact.” United States v. Rylander, 656 F.2d 1313, 1318 (9th Cir. 1981), rev'd on other grounds, 460 U.S. 752 (1983). If the alleged contemnor does

not raise a question of fact through affidavits, and does not seek the opportunity to present its defense through live testimony, a court does not violate that party’s due process rights by holding it in contempt solely based on affidavits. 

See Thomas, Head, 95 F.3d at 1458

In re Jerry Icenhower

Attorney Fees Incurred by the Debtor in a Divorce Proceeding (simply a debt owed to the attorney) Discharged Because Former Counsel Could Not Meet its Burden (1st Circuit 2014)

Debtor, pre-petition, retained an attorney to proceed in a contentious divorce proceeding.  Counsel was paid an initial $25,000.00 retainer but billed over $60,000.00.  Due to the debt and other circumstances, the client filed bankruptcy.  Former Counsel sued the Client seeking a determination that the debt was not discharged based upon 523(A)(2)(a).  (i.e. the debt was incurred under false pretenses...perhaps a promise to pay)  Former Counsel lost at a bench trial, appealed the case to the BAP, lost and then filed an appeal the 1st Circuit.  The 1st Circuit affirmed.  The Court determined that the Counsel did not prove its case with a preponderance of the evidence.  It seemed like the Debtor was a bad apple and lacked candor but the Court stated:

The attorney argues pejoratively that the debtor

was shown to be a liar and that the debtor's "dishonest and

untrustworthy" testimony undermines the bankruptcy court's

factfinding. This argument is wide of the mark. The bankruptcy

court did not rest its decision on any illusions about the debtor's

veracity. To the contrary, the bankruptcy court found much of her

testimony to be self-serving and not deserving of credence. See

deBenedictis, 2013 WL 1342479, at *2.

Taking this lack of veracity into account, however, it

proceeded to find that the attorney's proof was not preponderant.

See id. at *7-8. We are not aware of any rule that mandates a

finding of nondischargeability against a party simply because her

testimony lacks candor. Although we do not countenance untruthful

testimony, a finding of nondischargeability requires more than a

showing that the debtor exhibited a serious character flaw. The

attorney, who had the burden of proof, made no such additional

showing here


IN RE KAREN A. BRADY-ZELL 1st Circuit 2014

A Nice Review of the FDCPA and 12(b)(6) Motions to Dismiss - Nevada 2014

Plaintiff filed a complaint alleging that the Defendant filed suit based upon a time-barred debt.  The Defendant filed a motion to dismiss alleging in part that the statute of limitations had not expired, that they were not a collection agency rather they were the owner of the debt and that the Plaintiff failed to dispute the debt within 30 days of the first communication.  The Court on a 12(b)(6) motion must determine if the factual allegations contained in the complaint together with all reasonable inferences state a plausible claim for relief. 


The Defendant's arguments may have had some validity but this was not a motion for summary judgment.  As a result, the majority of the causes of actions by the Plaintiff were sustained and only 1 cause of action was dismissed. 


The following is a brief statement by the Court on 12(b)(6) motions and an overview of the Act:




On a 12(b)(6) motion, the court must determine "whether the complaint's factual allegations, together with all reasonable inferences, state a plausible claim for relief." Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., 637 F.3d 1047, 1054 (9th Cir. 2011) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)).
When  [4] determining the sufficiency of a claim, "[w]e accept factual allegations in the complaint as true and construe the pleadings in the light most favorable to the non-moving party[; however, this tenet does not apply to] . . . legal conclusions . . . cast in the form of factual allegations." Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (citation and internal quotation marks omitted). "Therefore, conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss." Id. (citation and internal quotation marks omitted); see also Iqbal, 556 U.S. at 678 ("A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" (quoting Twombly, 550 U.S. at 555)).




The FDCPA creates civil liability for "any debt collector who fails to comply with any provision [of the Act] . . . with respect to any person . . . ." 15 U.S.C. § 1692k(a). The Act defines a debt collector as "any person . . . in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect . . . debts owed or due or asserted to be owed or due another." 15 U.S.C. § 1692a(6). This definition "'would include those who collect for others in the regular course of business.'" Romine v. Diversified Collection Servs., Inc., 155 F.3d 1142, 1146 (9th Cir. 1998)  [6] (quoting S. Rep. No. 95-382 (1977)). The FDCPA does not, however, apply to a "creditor," who is "any person who offers or extends credit creating a debt or to whom a debt is owed." 15 U.S.C. § 1692a(4). Notably, assignees of debt may be considered creditors only if the "'debt was not in default at the time it was assigned.'" Nool v. HomeQ Servicing, 653 F. Supp. 2d 1047, 1053 (E.D. Cal. 2009) (quoting Perry v. Stewart Title Co., 756 F.2d 1197, 1208 (5th Cir. 1985)). Thus, a person who collects a defaulted debt assigned or transferred "solely for the purpose of facilitating collection of such debt for another" is a debt collector, not a creditor. See 15 U.S.C. § 1692a(4).








Todorov v. Easy Loans Corp., 2014 U.S. Dist. LEXIS 84484
United States District Court for the District of Nevada
June 19, 2014, Decided; June 19, 2014, Filed
Case No. 2:13-cv-01264-MMD-GWF

At First Blush a Harsh Result in Failing to Advise the Court that the Debtor Passed Within 1 Month of Confirmation of a Chapter 13 - But Likely the Correct Result

A Colorado Bankruptcy Court was faced with a motion to reconsider a dismissal motion after a Chapter 13 plan was completed by payments made by the personal representative of the Debtor.  The Debtor had passed within the first month after confirmation, but no one told the Bankruptcy Court.  After the plan was completed, the Personal Representative filed a motion to waive the requirements of the financial management course.  The Court denied the motion and dismissed the case.  The Personal Representative then filed a motion to reconsider.


In the motion to reconsider, the Court analyzed the difference of Rule 1016 in a Chapter 13 case vs. a Chapter 7 case.  Rule 1016 provides in part that upon the death of a debtor the case can be dismissed or if it is in the best interest of the parties, the case may continue.  The Court focused upon the creditors as the parties vs. the personal representative who would have inherited the remaining assets of the deceased debtor.  If the case was dismissed, then the creditors would get paid more but on the other hand if the case was not dismissed then the representative would get the assets.


The Court appeared to be upset about the failure of the parties to inform the court of the death and chose to wait 3 years to then advise the Court.  The Court indicated that it would have been in a better position to analyze the situation if it was advised immediately. 


Based upon the Court's reading of the law, the Court denied the motion to reconsider.


A quick comment - this was a motion to reconsider and the Court did not seem to focus on why it should reconsider its prior order but rather analyzed the entire situation. 


In re Keith Fogel Ssn Xx 6566, 2014 Bankr. LEXIS 2734 Folder icon(Copy citation)
United States Bankruptcy Court for the District of Colorado
June 20, 2014, Decided
Case No. 10-38010 ABC Chapter 13

Supreme Court - Executive Benefits Case - Analyzed by a Ohio District Court (2014) - Granting a Motion to Withdraw the Reference

An Ohio District Court stayed a motion to withdraw the reference pending the decision by the Supreme Court in the Executive Benefits case.  The Ohio case had similar facts as to Executive Benefit in which the Trustee filed an adversary complaint to avoid a fraudulent transfer against a third party who was not a creditor....but....the third party made demand for a jury trial. 


The Ohio District Court determined that the case was a "Stern" claim and the bankruptcy court could submit proposed findings of act and conclusions of law.  The Court found that the Bankruptcy Court had jurisdiction to handle the pre-trial supervision of the case but granted the motion to withdraw the reference for permissive withdrawal under 157(d) ("for cause shown").  Although cause is not defined the court should look at  a variety of factors (1) core/non core; (2) legal/equitable claims; (3) efficient use of judicial resources and (4) effect of the ruling on uniformity in administering bankruptcy law. 


In this case, the Court noted that in any instance the Bankruptcy Court's decision would have to be reviewed de novo by the District Court; that the Defendant has exercised her right to a jury trial and that the defendant did not consent to the jurisdiction of the bankruptcy court.  Accordingly, the Court granted the motion for permissive withdrawal of the reference.


Query:  Will District Court's be forced to handle more bankruptcy related cases?

Emerson v. Order & Alan J. Treinish

United States District Court for the Northern District of Ohio, Eastern Division

June 20, 2014, Decided

CASE NO. 1:13-mc-52

A Court may decline to utilize issue preclusion based upon a prior Judgment (Bankruptcy Court - Montana - 2014)

A refresher on collateral estoppel in the 9th Circuit as it applies to dischargeability proceedings especially under 523(a)(6). The Court has discretion to decline to give issue preclusion effect to prior judgments in deference of countervailing considerations of fairness (In re Lopez, 367 B.R. 99, 108 (9th Cir. 2007)).  The Court declined to utilize such preclusion because the Plaintiff must prove willful and malicious injury.  The 9th Circuit has stated that Courts must separately analyze both the willful and malicious prongs.  As the underlying judgment did not analyze such prongs, the Court determined that a factual dispute has arisen in the adversary case and denied the motion for summary judgment.

In re Etzel

United States Bankruptcy Court for the District of Montana

June 19, 2014, Decided

Case No. 13-61353-11 Adv No. 14-00001

Taking Testimony Prior to Following Suit - FRCP 27 - This is a Rule that is not Typically Utilized - (ED of Michigan - 2014)

Rule 27 permit a party to obtain discovery through the taking of depositions and production of documents to preserve testimony and evidence for the anticipated suit....


Here is the general law:

To satisfy the court that the testimony is needed to protect against a failure or delay of justice, the great weight of authority requires the petitioner to show that there is a risk of loss of the desired testimony. Penn. Mut. Life Ins. Co. v. United States, 68 F.3d 1371, 1374-75, 314 U.S. App. D.C. 320 (D.C.Cir.1995) (indicating that Rule 27 requires a showing that there is "an immediate need to perpetuate testimony" and that "petitioner must establish danger that testimony may be lost") (citations omitted); Ash v. Cort, 512 F.2d 909, 911 (3d Cir.1975) (indicating that Rule 27 only applies "in that special category of cases

where it is necessary to prevent  [*7] testimony from being lost"); In re Hopson Marine Transportation, Inc., 168 F.R.D. 560, 1996 WL 547467 (E.D.La. 1996) ("The rule was intended to apply to situations in which testimony might be lost to a prospective litigant unless taken immediately, without having to wait for a lawsuit or other legal proceeding to commence."); In re Application of Checkosky, 142 F.R.D. 4, 6-8 (D.D.C.1992) (indicating that the "purpose of Rule 27 is simply to preserve evidence that otherwise would be in danger of being lost" and that "most courts have held that a petitioner must make a particularized showing that the testimony needs to be taken in advance of the contemplated action"). The common situation in which a Rule 27 deposition is appropriate is where there is a risk that a witness will be unavailable at the time of trial, either because of age or infirmity. Penn. Mut., 68 F.3d at 1374; In re Petition of Banks, No. 93-C-6914, 1993 U.S. Dist. LEXIS 17109, 1993 WL 502379 (N.D.Ill. Dec. 6, 1993) ("Most petitions to perpetuate testimony have been granted when a witness is aged or gravely injured an in danger [of] dying.").1996 U.S. Dist. LEXIS 15784, [WL] at *2.

PegaSync Techs., Inc. v. Patros

United States District Court for the Eastern District of Michigan, Southern Division

June 18, 2014, Decided; June 18, 2014, Filed

Case No. 14-MC-50440

Failing to Obtain a Stay and the Creditor Subsequently forecloses, the appeal must be dismissed as moot and a discussion of equitable mootness

An Alabama District Court did an excellent job in describing mootness in connection with a foreclosure sale.  The Court analyzed mootness due to a foreclosure and equitable mootness.  Although the Court cited to 11th Circuit cases, the Court by analogy cited to 11 USC 363(m) and stated that the 11th Circuit in analyzing the mootness doctrine is not limited to transactions covered under that subsection.   In focusing on equitable mootness, the Court noted that it is most commonly applied in Chapter 11 cases but courts have applied it in Chapter 7 cases where the trustee has already disbursed funds to creditors (citing the 5th and 4th Circuit).  

Davis v. Shepard

United States District Court for the Northern District of Alabama, Northeastern Division

June 18, 2014, Decided

Case No. 5:11-mc-3483-KOB

Appellate Standing of Bankruptcy Matters is More Restrictive

In a recent Chapter 7 District Court Decision out of New Jersey, the Appellant who was the managing member of a LLC was  deemed not to have standing to appeal a motion to remove the Appellee as Trustee.  In a somewhat convoluted case, the Debtor filed a Chapter 13 case and at the time of the filing owned at least a 51% interest in real property.  The remaining interest was owned by a LLC.  The Debtor filed an adversary case against the LLC to seek complete title to the Real Property.  Upon conversion to a Chapter 7, the Chapter 7 trustee was added as the real property in interest and a new managing member was appointed for the LLC.  The managing member, in his individual capacity, filed a motion to remove the Trustee which was denied.  The managing member appealed that decision.  The Court noted that the managing member was not a creditor of the Estate nor had a proprietary interest in the real property.  The Court found that in bankruptcy appeals, court have adopted the person aggrieved doctrine which marginal parties involved in proceeding, who, even though they may be expose to some potential hard incident to the bankruptcy court's orders are not directly affected by that order, lack standing to appeal.  In this case, the managing members only interest was that of a defendant in the adversary proceeding.  Accordingly, the Court dismissed the appeal on lack of standing. 

Forman v. Youngman

United States District Court for the District of New Jersey

June 17, 2014, Decided; June 18, 2014, Filed

Civ. No. 13-5877

Whether Gross Negligence by an Attorney is Cause Not to Convert a Chapter 11 to a Chapter 7? (Recent Oral Argument - 9th)

The 9th Circuit recently heard oral argument on a case involving alleged gross negligence on the part of a Chapter 11 attorney who failed to file a budget and the Debtor utilized approximately $16,000 in cash collateral without an order.  The case was converted to a Chapter 7 based upon the Debtor's failure to comply with a variety of court orders and the unauthorized use of the cash.  The Debtor blamed his counsel and retained new counsel.  Despite the retention of new counsel, the case was converted to a Chapter 7. 




On reconsideration by the Bankruptcy Court, the court also found as a legal matter that inadequate legal advice is no defense to a § 1112(b) dismissal or conversion. As the court noted, mistaken legal advice generally does not relieve a client of the consequences of acts or omissions. See Link v. Wabash R. Co., 370 U.S. 626, 634, 82 S. Ct. 1386, 8 L. Ed. 2d 734 (1962) (dismissal of adversary proceeding for failure to appear at scheduled status conference); Cannon-Stokes v. Potter, 453 F.3d 446, 449 (7th Cir. 2006) (failure to schedule employment cause of action in bankruptcy schedules resulting  [14] in judicial estoppel barring claims); In re DePugh, 409 B.R. 84, 107 n.13 (Bankr. S.D. Tex. 2009) (failure to attach assignments to Proofs of Claim). Accordingly, any failure by counsel to raise the cash collateral issue would not excuse the debtor or mitigate the existing cause for converting the case.


During oral argument the 9th Circuit seemed to agree that the inadequate legal advice is no defense.  I presume that the Court will affirm the District Court but if the gravity of the attorney's actions were so severe, I am hopeful that the Court will provide an analysis on what the Bankruptcy Court should do when it faces such a situation.  My take is that Debtors are also responsible for their actions (i.e. utilizing cash without an order) and their agents' actions or inactions are imputed on them.  The end result could be a malpractice action.






Oral Argument - 9th Circuit - in re: Augustine Pena, III, et al v. Trudi Manfredo




District Court citation:
Pena v. Manfredo, 2013 U.S. Dist. LEXIS 127655

United States District Court for the Eastern District of California

September 5, 2013, Decided; September 6, 2013, Filed

Case No. 12-cv-01233-AWI

BK Court lacks Jurisdiction to Approve a Professionals Fees in a Dismissed Chapter 11 Case - Illinois BK Court

After a Chapter 11 case was dismissed and closed, a professional filed his second and final application for compensation.  The Court determined that because there is no longer a bankruptcy estate, there is no longer an estate from which compensation can be paid.  With the estate's disappearance, the court's duty to oversee its administration has disappeared.  The determination of reasonableness of the compensation would be pointless and a purely academic exercise.  As the federal court has no authority to "give opinions...upon abstract propositions" The Court found that the motions were moot and were denied based upon lack of jurisdiction.

In re Sweports, Ltd.

United States Bankruptcy Court for the Northern District of Illinois, Eastern Division

June 18, 2014, Decided

Chapter 11, No. 12 B 14254

Chapter 7 Trustee has standing to respond to Claim Objections - New Mexico BK Court

The Court sua sponte raised the issue as to whether a Trustee has standing to respond to a claim objection.  The Court determined that neither the Code nor the Rules give explicit standing to a trustee to step in and defend a claim upon the claimant's default.  However, the Court noted that two cases indirectly addressed the issue and appeared to permit the trustee to proceed.  The Court in its case determined that the Trustee as a direct pecuniary interest in the outcome of the claim objection combined with the Congressional intent that case trustees are to be directly involved in claims administration.  Accordingly, the Court found that the Trustee had standing.

In re Quintero

United States Bankruptcy Court for the District of New Mexico

June 19, 2014, Decided

No. 7-12-10591 TA

11th Circuit allows lien stripping in a Chapter 20 (In re Scantling - 2014)

The Debtor previously filed for relief under Chapter 7 and received her discharge in 2010.  In January 2011, the Debtor filed a Chapter 13 case and sought to determine the secured/unsecured status of the second and third mortgages held by Wells Fargo.  Based upon Wells Fargo's valuation the second and third mortgages were wholly unsecured.   The 11th Circuit agreed with the majority view that in a Chapter 13 case could strip off a wholly unsecured mortgage on the debtor's principal residence through use of Sections 506 and 1322(b)(2). Section 1325(a)(5) did not come into play and a debtor's ineligibility for a discharge is irrelevant for strip off purposes in a Chapter 20 case.


The case has a very good discussion on the majority and minority views.  The link to the case follows.


Wells Fargo v. Scantling

What is Income under 101(10A) for purposes of a Chapter 13 Case - ND Georgia Case

Congress has defined current monthly income as the average monthly income but the Georgia Court was faced with trying to define "income".  The Court determined that Congress intended that "income" was meant to mean "gross receipts" for purposes of calculating the current monthly income of a sole proprietor under 101(10a) and determining the applicable commitment period under 1325(b)(4).

In re Kuwik

United States Bankruptcy Court for the Northern District of Georgia

May 23, 2014, Decided

Case No. 13-77137-JRS Chapter 13

HOA Liens in a Chapter 13 - 2004 New Jersey Case

A New Jersey District court examined the issue of an HOA "lien" on real property.  In the plan, the Debtor sought to surrender the real property back to the HOA.  The HOA objected and the Court held that an objection timely filed an properly prosecuted prevents confirmation of a plan under 1325(a)(5)(A).


Of interesting note is the analysis of HOA liens contained in the opinion which follows:


 

Homeowners' associations are created in New Jersey through a declaration of covenants, conditions, and restrictions contained in deeds and association bylaws. See Highland Lakes Country Club & Community Association v. Franzino, 186 N.J. 99, 110 (2006), citing E. Richard Kennedy & Mark D. Imbriani, The Rights of Tenants in Condominium and Homeowner Association Communities, 174 N.J. Law. 18, 18 (1996). Homeowners' associations may record these governing documents under N.J.S.A. 46:26A-2,8 as those documents affect title to real estate. See Highland Lakes, supra, 186 N.J. at 111. Once recorded, the recordation serves as notice to subsequent judgment creditors and purchasers. See N.J.S.A. 46:26A-12.9 These recorded covenants create a lien on the property. See Highland Lakes, supra, 186 N.J. at 111, citingLeisuretowne Ass'n, Inc. v.

McCarthy, 193 N.J. Super. 494, 501 (App. Div. 1984).

There are three types of special rights encumbering or chargeable to property: common law liens, equitable liens, and statutory liens. Id., citingJ.T Evans Co. v. Fanelli, 59 N.J. Super 19, 22 (Law Div. 1959). Homeowners' association liens are classified as equitable liens because they are created by the covenants contained in members' deeds. Id., citingFirst Fed. Say. & Loan Ass'n v. Bailey, 316 S.C. 350 (S.C.Ct. App. 1994). "For an equitable lien to arise there must be a debt owing from one person to another, specific property to which the debt might attach, and an intent, expressed or implied, that the property will serve as a security for the payment of the debt." Id. at 111-112, quotingFirst Fed. Sav. & Loan v. Bailey.

In re Specht

United States Bankruptcy Court for the District of New Jersey

June 16, 2014, Decided

Chapter 13, Case No. 10-26741 (CMG)

The Impact of the Supreme Court Case of Law v. Siegle on exemptions - BK Court sua sponte sets aside its order

A California BK Court sua sponte vacated its prior orders denying the claimed homestead exemption claim as a bad faith attempt to frustrate a pending sale.  The Court examined the application of the U.S. Supreme Court case which examined the protection of exemptions. 


The relevant portions of the CA BK Court case follows:


Impact of Law v. Siegel. However, the reach of § 105(a) has seemingly been curtailed after the Supreme Court's decision in Law v. Siegel. This court must therefore decide whether the power to disallow amended exemptions based on bad faith and prejudice, utilizing § 105(a), survives after Law.
In Law, the Supreme Court addressed the scope and application of § 105(a) to remedy an egregious case of bad-faith conduct by the debtor in litigation of an adversary proceeding. See 134 S. Ct. at 1194-95. The Court acknowledged that, in addition to the statutory power under § 105(a) to carry out the provisions of the Code, the bankruptcy court "may  [16] also possess 'inherent power . . . to sanction abusive litigation practices.'" Id. at 1194 (quoting Marrama v. Citizens Bank of Mass., 549 U.S. 365, 375-76 (2007)). The Court then admonished, "But in exercising those statutory and inherent powers, a bankruptcy court may not contravene specific statutory provisions . . . . Section 105(a) confers authority to 'carry' out the provisions of the Code, but it is quite impossible to do that by taking action that the Code prohibits." Id.
In the proceeding below, the Ninth Circuit had followed the precedent established in Latman v. Burdette (In re Latman), 366 F.3d 774 (9th Cir. 2004), a decision now abrogated by Law. See Law v. Siegel, 435 F. App'x 697, 698 (9th Cir. 2011). The Ninth Circuit applied § 105(a) to bestow upon the bankruptcy court the general equitable power to surcharge the debtor's $75,000 homestead exemption to partially compensate the bankruptcy estate for over $500,000 in administrative expenses resulting from the debtor's bad-faith conduct. See id. In effect, this amounted to a disallowance of the debtor's homestead exemption.
The Supreme Court, however, rejected all of the arguments for such a remedy, finding that surcharging  [17] an exemption contravened specific provisions in the Bankruptcy Code and that there was also no statutory basis in the Code for allowing the surcharge on equitable grounds. See 134 S. Ct. at 1195-96. The Court noted that the surcharge conflicted with two subsections of § 522: § 522(b), which allows a debtor to exempt property in the first place, and § 522(k), which expressly limits the use of exempt property to pay for administrative expenses. See id. at 1195. The Court noted that § 522, with its "carefully calibrated exceptions and limitations," did "not give courts discretion to grant or withhold exemptions based on whatever considerations they deem appropriate," such as the debtor's bad-faith conduct. Id. at 1196. Further, outside of § 522, the Court concluded the Code did not admit "a general, equitable power in bankruptcy courts to deny exemptions based on a debtor's bad-faith conduct." Id. at 1197. Although the holding in Law might initially appear to be quite narrow—applicable only to the equitable surcharge of an exemption—the reasoning behind the Law decision compels the bankruptcy courts to reexamine the traditional theories and assumptions upon which they have previously  [18] utilized the equitable powers of § 105(a). That call is particularly pertinent here where the ultimate issue, as in Law, relates to the debtor's homestead exemption.
Turning to this case, the court concludes that the same rationale in Law, that prohibited the equitable surcharge of exemptions, must also be applied to the disallowance of amended exemptions based on the equitable powers of § 105(a). Relying solely on the Bankruptcy Code, a court can no longer disallow an amended exemption on the grounds that the debtor acted in bad faith or that creditors would be prejudiced because there is no "valid statutory basis for doing so."8 Id. at 1196.

In re Gutierrez, 2014 Bankr. LEXIS 2637

United States Bankruptcy Court for the Eastern District of California, Fresno Division

June 12, 2014, Decided; June 12, 2014, Filed

Case No. 12-60444-B-7, DC No. DRJ-2, DC No. TOG-6, DC No. DRJ-3

Determination of Debt other than a debt listed in §§ 523(a)(2), (a)(4) or (a)(6), may be filed at any time (U.S. v. Wanland - 2014).

An attorney convicted in part of tax evasion filed bankruptcy.  The IRS timely filed a proof of claim for over 1.5 million dollars.  The Debtor received his discharge and after receiving his discharge the IRS filed a complaint seeking a determination that the underlying tax debt was not discharged under 11 USC 523(a)(1)(C).  The Debtor filed a motion to dismiss asserting in part that the complaint was not timely filed.  The Court denied the motion to dismiss and stated:


In his motion to dismiss, defendant contends that this action is barred by the doctrines of collateral estoppel and res judicata. Defendant essentially reasons that his June 8, 2011 bankruptcy discharge included the tax liabilities at issue in this action, and that the United States is therefore collaterally estopped from raising the issue of whether or not the taxes were dischargeable in this action. That argument lacks merit, because a discharge under 11 U.S.C. § 727 "does not discharge an individual debtor from any debt—for a tax...with respect to which the debtor made a fraudulent return or willfully attempted in any manner to evade or defeat such tax...." 11 U.S.C. § 523(a)(1)(C). Furthermore, although the Ninth Circuit has apparently not squarely addressed the issue, other courts have persuasively held, based on an analysis of the applicable statutes and bankruptcy rules, that the United States is not required to obtain a ruling on the non-dischargeability of a tax debt pursuant to section 523(a)(1)(C) in the underlying bankruptcy case to prevent its discharge:

Debts listed in §§ 523(a)(2), (a)(4) and (a)(6) are automatically discharged in bankruptcy unless a creditor  [12] objects to their dischargeability by filing an adversary proceeding. Fed. R. Bankr. P. 4007 (advisory committee notes). A creditor who wishes to object to the dischargeability of a debt under §§ 523(a)(2), (a)(4) or (a)(6) must file a complaint within sixty (60) days of the first scheduled meeting of creditors. Fed. R. Bankr. P. 4007(c)...Those debts excluded from discharge not listed in §§ 523(a)(2), (a)(4) or (a)(6), including certain tax debts, are automatically excepted from discharge...As a result, a complaint to determine the dischargeability of a debt, other than a debt listed in §§ 523(a)(2), (a)(4) or (a)(6), may be filed at any time. Fed. R. Bankr. P. 4007(b).

In re Walls, 496 B.R. 818, 825-26 (N.D. Miss. 2013) (citation omitted); see also In re Range, 48 Fed. App'x 103, at *5 & n.2 (5th Cir. 2002) (unpublished).

See, United States v. Wanland, 2014 U.S. Dist. LEXIS 78479, 11-12 (E.D. Cal. June 6, 2014)

A Good Discussion on Objecting to Proof of Claims - 2014 case

The Trustee objected to FIA's proof of claim asserting in part that there were not sufficient documents to "prove up" its claim.  The Court initially set forth the burden of proof:

The burden is on the objecting party to produce evidence to refute at least one of the allegations that is essential to the claim's legal sufficiency.  If the objecting party meets his evidentiary burden, the burden shifts to the creditor, who retains the ultimate burden of persuasion as to the validity and amount of the claim.

In  this case, the Trustee argued that FIA's claims should be disallowed because they do not contain all of the information outlined in Rule 3001(c)(3)(A).  The Trustee contended that he could not determine the validity of the claim without the information. 

The Court determined that non-compliance with Rule 3001(c)(3)(A) is not one of the listed exceptions to have a claim disallowed under Section 502(b). 

The failure to provide documentation does not mean that the debtors do not owe the money.  Section 502(b) in part states that there must be proof that such claim is unenforceable against the debtor and property of the debtor, under any agreement or applicable law for a reason other than because such claim is contingent or unmatured (a variety of other reasons are set forth).

Accordingly, the Court denied the objection.

Khatibi v. Civil Action Fia Card Servs., N.A., 2014 U.S. Dist. LEXIS 79873