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In re Charles Frederick Biehl, Ch. 7 Case No. 6:13-bk-26277-MH (Bankr. C.D. Cal. Jan. 16, 2018)
In re Charles Frederick Biehl, Ch. 7 Case No. 6:13-bk-26277-MH (Bankr. C.D. Cal. Jan. 16, 2018), the United States Bankruptcy Court for the Central District of California rejected a trustee’s request to revoke abandonment of real property when the trustee received an offer to purchase the property more than one year after the abandonment became effective. Moral of this case: Once property is abandoned out of the “bankruptcy estate”, back to the debtor, a bankruptcy Trustee cannot “un-abandon” the property, to get the property back into the bankruptcy estate.
Mission Product Holdings Inc. v. Tempnology LLC (In re Tempnology LLC)
Mission Product Holdings Inc. v. Tempnology LLC (In re Tempnology LLC), ___F3d___, (1st Cir. Jan. 12, 2018)(Circuit case #16-9016 ): The 1/12/2018 decision of the US Court of Appeals for the First Circuit, in In re Tempnology, deepens the split between federal Circuits regarding whether or not a bankruptcy debtor “rejecting” a trademark license, per 11 USC 365, prevents the licensee (creditor) from continuing to use the trademark license, per 11 UDC 365(n): Pointedly disagreeing with the Seventh Circuit, the First Circuit deepened an existing split by adopting the Fourth Circuit’s conclusion in Lubrizol and holding that rejection of a…
In re Addison, ___BR___ (Bankruptcy. Court E.D.N.Y., 2018)
Held, individual chapter 7 debtor is entitled to deduct payments for two motor vehicles; IRM is helpful but not controlling. In a complicated opinion the court addressed the binding and non-binding use of the Internal Revenue Manual guidelines for allowable expenses, and other resources to determine how much the debtor may deduct for motor vehicles. “Pending before the Court is the United States Trustee’s motion to dismiss the chapter 7 bankruptcy case of Barry Addison, solely as a presumed abuse case pursuant to 11 U.S.C. § 707(b)(2). The UST asserts that Debtor, an above-median income, single-person-household debtor, improperly claimed certain…
In re Marino (Ocwen Loan Servicing v. Marino), ___BR___, 2017 WL 6553691 (appeals Nos. 16-1229, 16-1238) (B.A.P. 9th Cir. Dec. 22, 2017)
In re Marino (Ocwen Loan Servicing v. Marino), ___BR___, 2017 WL 6553691 (appeals Nos. 16-1229, 16-1238) (B.A.P. 9th Cir. Dec. 22, 2017). BAP upheld Bankruptcy Court ordering Ocwen, the servicer for mortgage company, to pay $119,000 in monetary sanctions to bankruptcy debtors, Christopher and Valerie Marino, for Ocwen’s violation of debtors’ bankruptcy discharge, by Ocwen’s continuous confusing contact with the discharged debtors by the mortgage servicer was appropriately sanctioned at $1,000 per violation notwithstanding the servicer’s formulaic and contradictory disclaimers in some of the correspondence. Debtors, Christopher and Valerie Marino, surrendered their real property in their chapter 7 bankruptcy. After…
DZ Bank AG Deutsche Zentral-Genossenschaft Bank v. Meyer, 869 F.3d 839 (9th Cir. 2017) (“DZ Bank”)
In DZ Bank AG Deutsche Zentral-Genossenschaft Bank v. Meyer, 869 F.3d 839 (9th Cir. 2017) (“DZ Bank”), the Ninth Circuit Court of Appeals held that a nondischargeable debt resulting from a fraudulent transfer included the full amount that a bank-creditor would have recovered if the creditor had been able to execute against the debtor’s ownership interests in a closely-held corporation. The Ninth Circuit disagreed with the bankruptcy court and the district court in limiting the nondischargeable debt to the original amount of the collateralized debt ($123,200), versus the full market value of the assets at the time of the fraudulent…
Eleventh Circuit Joins Ninth in Allowing Appellate Counsel Fees for a Stay Violation
12/5/17 decision by Eleventh Circuit US Court of Appeals agreed with Ninth Circuit 2015 decision, in In re Schwartz-Tallard, 803 F.3d 1095 (9th Cir. 2015) (en banc), in which the Ninth Circuit US Court of Appeals held that a debtor is entitled to recovery of attorneys’ fees incurred in upholding a judgment for violation of the automatic stay, siding with the Ninth Circuit’s decision. The Dec. 5 opinion for the Eleventh Circuit by District Judge Leigh Martin May, sitting by designation, held that the debtor could recover counsel fees for pursuing a monetary award and appellate counsel fees resulting from…
US Supreme Court Might Grant ‘Petition for Certiorari’ to Hear and Resolve a Split between US Circuit Courts on Dischargeability
The US Supreme Court will decide whether a false oral statement about one asset is grounds for denial of discharge of a debt, IF the justices take the advice of the U.S. Solicitor General and grant certiorari to the Eleventh Circuit in Lamar Archer & Cofrin LLP v. Appling, 16-1215 (Sup. Ct.). The courts of appeals are evenly split, with the Eleventh and Fourth Circuits holding that a false oral statement about one asset is a statement of “financial condition” that must be in writing to result in denial of discharge of a debt under Section 523(a)(2). The Fifth and…
Momentive Performance Materials Inc. v. BOKF, NA (In the Matter of: MPM Silicones, L.L.C.)
Momentive Performance Materials Inc. v. BOKF, NA (In the Matter of: MPM Silicones, L.L.C.), – F.3d –, 2017 WL 4700314, No. 15-1682, (2d Cir. Oct. 20, 2017): US Court of Appeals for the Second Circuit recently issued its long-awaited opinion stemming from the confirmed Chapter 11 plan of Momentive Performance Materials Inc. The court reversed the lower courts’ controversial holding that senior secured lenders receiving replacement secured notes under the debtors’ plan were only entitled to interest at the “formula” rate – determined by using the risk-free rate plus a plan-specific risk adjustment. Instead, the Second Circuit remanded the case…
In re Barcelos, ___BR___, 2017 WL 464927(Bankr. E.D. Cal. 10/12/2017)
In re Barcelos, ___BR___, 2017 WL 464927(Bankr. E.D. Cal. 10/12/2017): IRS violated bankruptcy automatic stay by taking debtor’s tax refund, during debtor’s Chapter 12 bankruptcy case; but Bky Court did not order IRS to reimburse debtor’s attorneys fees expended to get the seized tax refund back from the IRS, because debtor did not “exhaust” administrative remedies at IRS: Chapter 12 debtor filed an adversary proceeding against the IRS, pursuant to Section 362(k), for wrongfully seizing income tax refunds in the amount of $21,000. The IRS admitted the stay violation, and promptly returned the refunds. Debtor pursued the adversary to recover…
Spiller McProud v. Siller (In re CWS Enterprises Inc.)
Spiller McProud v. Siller (In re CWS Enterprises Inc.),___F.3d___ 14-17045 (9th Cir. Sept. 14, 2017) Ninth Circuit ringingly endorses allowance of prepetition contingent fee arrangements; holds 11 USC 502(b)(4) Fee Cap on prepetition attorneys fees, when client that owes attorneys fees to attorney thereafter files bankruptcy, seldom applies to contingent fee attorneys fees, earned by attorney prepetition. Commentators say the decision tackles a particularly cerebral question at the intersection of the Full Faith and Credit Act and Section 502(b)(4), the section of the Bankruptcy Code that puts a “reasonable value” cap on a prepetition claim for services by a debtor’s…