The Bankruptcy Law Firm, Prof. Corp.
Bourne Valley Court Trust vs. Wells Fargo Bank, N.A., ___F.3d___, 2016 Westlaw 425498 (9th Cir. 2016)
Bourne Valley Court Trust vs. Wells Fargo Bank, N.A., ___F.3d___, 2016 Westlaw 425498 (9th Cir. 2016): The Ninth Circuit has held that a Nevada statute that extinguished mortgage liens following HOA foreclosure sales was unconstitutional and violated the lenders’ due process rights because the statutory notice provisions were inadequate.
Green Tree Servicing LLC v. Giusto, 2016 Westlaw 3383959 (N.D.Cal. 2016)
A US District Court in California held that a debtor could not receive an award of attorney’s fees expended by debtor’s attorney, to defeat the relief from stay motion brought by the DOT loan lender on debtor’s house, because the motion was not an “action on a contract” under California law.
Kirkland v. Rund (In re EPD Investment Co.), 821 F.3d 1146 (9th Cir. 2016)
The United States Court of Appeals for the Ninth Circuit affirmed the district court’s decision affirming the bankruptcy court’s denial of a motion to compel arbitration in a chapter 7 trustee’s adversary proceeding seeking avoidance of fraudulent transfers and disallowance and subordination of claims.
Mortgage Servicer Saddled with $375,000 in Sanctions for Violating Rule 3002.1
In In re Gravel, ___BR___ (Bankr. D. Vt. Sept. 12, 2016, case no. 11-10112), the first reported decision of its kind under Bankruptcy Rule 3002.1, Bankruptcy Judge Colleen A. Brown, who is Vermont’s chief bankruptcy judge, imposed $375,000 in sanctions on a mortgage servicer for billing debtors for fees without first filing the required notices under Rule 3002.1(c), which are required to be filed in a Chapter 13 bankruptcy case, by the secured DOT lender, stating any changes in mortgage payment, during the Chapter 13 bankruptcy case. Judge Brown directed that the sanctions be paid to Vermont’s largest pro bono…
Regularly Conducted Tax Sales Cannot Be Fraudulent Transfer, Ninth Circuit Holds
In Tracht Gut LLC v. Los Angeles Country Treasurer & Tax Collector (In re Tracht Gut LLC), ___F.3d ___case no. 14-60007 (9th Cir. Sept. 8, 2016), the Ninth Circuit joined the Fifth and Tenth by holding that a tax sale conducted in accordance with state law cannot be set aside as a fraudulent transfer for less than reasonably equivalent value. A company owned real property but did not pay real estate taxes for years. The company filed a chapter 11 petition a month after the county sold the property in a tax sale. The newly minted debtor in possession immediately…
In re Diaz, 547 B.R. 329 (9th Cir. BAP 3/11/2016)
In In re Diaz, 547 B.R. 329 (9th Cir. BAP 3/11/2016), the U.S. Bankruptcy Appellate Panel for the Ninth Circuit (the “BAP”) vacated the Bankruptcy Court’s order sustaining the chapter 7 trustee’s objection to the debtor’s homestead exemption under Cal. Civ. Pro. Code §740.730(a) and remanded the case for further proceedings. Under California law, the relevant factors for determining if a debtor resides in a property are the physical fact of occupancy and the debtor’s intent to live there. In ruling on the debtor’s claimed homestead exemption, the bankruptcy court considered that the debtor had not resided in the property…
DeNoce v. Neff (In re Neff), 824 F.3d 1181 (9th Cir. 2016)
The U.S. Court of Appeals for the Ninth Circuit held that the ONE year period of 11 U.S.C.§ 727(a)(2) is not subject to equitable tolling. 11 USC 727(a)92) states that a bankruptcy debtor may be denied a discharge, in a Chapter 7 bankruptcy case, if the debtor transferred property, within ONE year before the date the debtor filed bankruptcy, with an actual intent to hinder, delay or defraud creditors, by making that transfer.
Rivera v. Orange Cnty. Prob. Dep’t (In re Rivera), 832 F.3d 1103 (9th Cir.
Aug. 10, 2016), the U.S. Court of Appeals for the Ninth Circuit held that fees owing to a governmental unit incurred for the criminal detention of a minor child were dischargeable in the chapter 7 bankruptcy of a parent. This was not a domestic support obligation (domestic support obligations are always nondischargeable, per 11 USC 523(a)(5)).
Caldwell v. DeWoskin, ___F.3d___, case number 15-1962 (8th Cir. Aug. 5, 2016) and Flanders v. Lawrence (In re Flanders)
Caldwell v. DeWoskin, ___F.3d___, case number 15-1962 (8th Cir. Aug. 5, 2016) and Flanders v. Lawrence (In re Flanders), ___F.3d ___, case number 15-1327 (10th Cir. Aug. 5, 2016): These 2 Circuit Court decisions, one by the 8th Circuit Court of Appeals, and one by the 10th Circuit Court of Appeals, both discuss and apply the Rooker-Feldman US Supreme Court doctrine. The US Supreme Court Rooker-Feldman doctrine, named after the US Supreme Court Rooker case, and the US Supreme Court Feldman case, holds that lower federal courts (includes US bankruptcy Courts, US District Courts, BAPs, US Circuit Courts)-in fact that…
In re Intervention Energy Holdings, LLC, 553 B.R. 258 (Bankr. D. Del. 2016)
U.S. Bankruptcy Court for the District of Delaware ruled that a provision in a debtor’s operating agreement that permitted its lender to block a bankruptcy filing by voting the lender’s single Common Unit against a filing was unenforceable as a matter of federal bankruptcy policy. What restrictions on filing bankruptcy are/are not against bankruptcy public policy is the subject of many cases, with differing outcomes. An outright prohibition on a company filing bankruptcy IS unenforceable as being against federal bankruptcy policy.