Thursday, January 9, 2014

I am pleased to announce that I prevailed in the 9th Circuit and the District Court was reversed! Shapiro v. Henson 1-9-14

I am pleased to advise that the 9th Circuit reversed the district court’s decision affirming the denial of my motion for turnover of property pursuant to 11 USC 542(a).  This case challenged the holding of  the 8th Circuit of In re Pyatt which was adopted by the Bankruptcy Court and the District Court. 

 The 9th Circuit  held that the Trustee’s turnover power is not restricted to property of the estate at the time the motion for turnover is filed.   A copy of the published decision is attached. 

Shapiro v. Henson

Saturday, January 4, 2014

9th Cir. BAP - Published - Pre-petiton tax sale but not recorded is valid - also good case law on amendments to complaint

The Debtor purchased real property prior to a tax sale, the tax sale took place pre-petition but was not recorded until after the filing.  The Debtor filed a complaint against the county to avoid the tax sale as a fraudulent transfer, declaratory judgment, injunction, violation of the stay and for unjust enrichment. 

The Count filed a motion to dismiss the complaint under 12(b)(6).  The Bankruptcy Court dismissed the complaint and found that due to undue delay (and futility) no amendment would be permitted.  The Debtor appealed and the BAP affirmed.

The BAP went through the standards of a motion to dismiss and affirmed.  An interesting point is their discussion of the case law on amendments to complaints after the filing of a 12(b)(6) motion and the "Foman Factors". 


Friday, January 3, 2014

Violation of Discharge Injunction - Even Though Agreement Indicated Debt Would Not be Discharged 9th Cir. BAP - Unpublished

In an unpublished 9th Cir. BAP decision, the Court analyzed, what we all should know, is that a debt is discharged even though a contract indicated that if the debtor filed bankruptcy, the underlying debt would not be discharged.  The Creditor was well aware of the Bankruptcy, the discharge order but still filed suit in small claims to obtain a monetary judgment.  The Bankruptcy Court found that the Creditor did not subjectively know the injunction applied to him.  The BAP reversed such finding but remanded the case back for a trial on damages (the debtor never proved up actual damages).

Of particular note is that this was an adversary proceeding but violations of discharge injunctions must be done by motion.  The BAP instructed the BK Court to treat the adversary proceeding as a contested proceeding.  Some fairly good case law was cited in this 20 page decision (pro se v. attorney)

12-27-13 Chionis - 9th Cir BAP