The Bankruptcy Law Firm, Prof. Corp.
IN ASARCO CASE, SUPREME COURT WILL DECIDE WHETHER FEES AND COSTS INCURRED DEFENDING FEE APPLICATIONS ARE COMPENSABLE US
IN ASARCO CASE, SUPREME COURT WILL DECIDE WHETHER FEES AND COSTS INCURRED DEFENDING FEE APPLICATIONS ARE COMPENSABLE US Supreme Court has granted certiorari, to review the 5th Circuit Court of Appeals decision in Baker Botts L.L.P., et al. v. Asarco, LLC. The US Supreme Court will review and decide whether the 5th Circuit Court of Appeals was correct, or in error, in ruling that 11 USC §330(a) of the Bankruptcy Code does not authorize compensation for the fees and costs that counsel incur while defending their fee applications in bankruptcy court. The Supreme Court’s decision should provide much-needed guidance on…
US Supreme Court has Granted Certiorari, regarding Wellness Int’l Network, Limited v. Sharif, 727 F.3d 751 (7th Cir. 2013), cert. granted, 134 S.Ct. 2901 (2014)
US Supreme Court has Granted Certiorari, regarding Wellness Int’l Network, Limited v. Sharif, 727 F.3d 751 (7th Cir. 2013), cert. granted, 134 S.Ct. 2901 (2014), meaning that US Supreme Court, in its fall 2014 term, will hear and decide the issue raised by the 7th Circuit Court of Appeals decision, which is: 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,…
Rivera v. Orange County Probation Dep’t (In re Rivera), Case No. CC-13-1476-PaKiLa, ___BR___ (9th Cir. BAP June 4, 2014)
Rivera v. Orange County Probation Dep’t (In re Rivera), Case No. CC-13-1476-PaKiLa, ___BR___ (9th Cir. BAP June 4, 2014): Ninth Circuit Bankruptcy Appellate Panel held that amounts due to a county for food, clothing, and medical care for an incarcerated minor are nondischargeable "domestic support obligations" of the parents pursuant to 11 U.S.C. § 523(a)(5). Facts and Procedural History: The debtor’s minor son was incarcerated in Orange County from 2008 through 2010, for a total of 593 days. California law requires parents of an incarcerated minor to pay "costs of support" of the minor, which are limited to food, food…
Anil Sachan v. Benjamin Moonkang Huh (In re Benjamin Moonkang Huh)
Anil Sachan v. Benjamin Moonkang Huh (In re Benjamin Moonkang Huh), 506 B.R. 257 (9th Cir. BAP March 11, 2014)–published en banc Oionion of the United States Bankruptcy Appellate Panel of the Ninth Circuit ("BAP"–held that imputing fraud to a debtor for purposes of exception to discharge under 11 U.S.C. § 523(a)(2), where the evidence does not show that the debtor knew or had reason to know of the agent’s fraud, "…is not consistent with the provisions or objectives of the Bankruptcy Code." Facts: Pre-petition, the debtor was a licensed real estate broker in California. While initially operating a sole…
Frates v. Wells Fargo Bank, N.A. (In re Frates)
Frates v. Wells Fargo Bank, N.A. (In re Frates), 507 B.R. 298, 2014 WL 982851 (9th Cir. BAP March 13, 2014)–The United States Bankruptcy Appellate Panel for the Ninth Circuit (the "BAP") ruled in a published decision that service under Federal Rule of Bankruptcy Procedure ("FRBP") 7004(h) governs service on an insured depository institution of a motion to avoid a judgment lien against the debtors’ real property under Bankruptcy Code section 522(f) ("Code section 522(f)") rather than the service provisions of California Code of Civil Procedure ("CCP") section 684.010, which applies to proceedings affecting judgment. It also ruled that including…
FDIC v. Siegel (In re Indymac Bancorp, Inc.), ___F.3d___ (9th Cir. 4/21/14)
FDIC v. Siegel (In re Indymac Bancorp, Inc.), ___F.3d___ (9th Cir. 4/21/14): The U.S. Court of Appeals for the Ninth Circuit ("Ninth Circuit") recently affirmed the decision of a district court finding that a $55 million tax refund paid to a bank holding company on account of losses suffered by a defunct subsidiary constituted an asset of the holding company’s bankruptcy estate. Though this decision gives some insight into the Ninth Circuit’s thinking on this issue, the decision is NOT binding authority, because it is an “unpublished” decision. Unpublished decisions can be cited in briefs, but must be identified as…
New Bankruptcy Filing Fee Increases to Take Effect June 1
The Judicial Conference of the United States has approved several bankruptcy related fee increases to take effect starting June 1. Based on the chapter, the cost to file will be: Chapter7: $335 Chapter13: $310 Chapter9,11and15: $1,717 Chapter 12: $275 The fee schedule changes project to raise about $35 million per year for the courts, based on current case loads.
It’s hard to get a Court to Change an Already Entered Order: Tevis v. Burkart, et al. (In re Tevis)
It’s hard to get a Court to Change an Already Entered Order: Tevis v. Burkart, et al. (In re Tevis), Case No. EC-13-1211-KiKuJu (9th Cir. BAP Jan. 30, 2014), the Ninth Circuit Bankruptcy Appellate Panel affirmed an order of the bankruptcy court denying a chapter 13 debtor’s motion for relief from a prior order under Fed. R. Civ. P. 60(d)(3), demonstrating the high burden to satisfy the grounds of Rule 60(d)(3) and holding that the bankruptcy court did not abuse its discretion in denying the motion. The decision is “not for publication”, meaning it has no precedential value, only persuasive…
Goldstein V. Diamond (In Re Diamond), 8TH CIR. 2014
The Eighth Circuit Court of Appeals recently ruled that a creditor which wants to file a “nondischargeability” complaint against a debtor, brought pursuant to 11 USC §523(a)(3)(B) is not required to move to reopen the underlying bankruptcy case, and get the underlying bankruptcy case re-opened, before filing the 523(a)(3)(B) nondischargeability adversary proceeding. The 8th Circuit reasoned that the bankruptcy court’s jurisdiction arises from § 1334 and does not terminate simply because a bankruptcy case is closed. A 523(a)(3)(B) adversary proceeding can be brought by a creditor where the creditor was NOT properly scheduled, in the debtor’s bankruptcy schedules, and so…
In re SW Boston Hotel Venture, LLC
In re SW Boston Hotel Venture, LLC, ___F.3d___, 2014 Westlaw 1399418 (1st Cir. 2014):The First Circuit Court of Appeals held that bankruptcy courts may choose to use a flexible approach when selecting a “measuring date” for the accrual of an over secured creditor’s right to postpetition interest, and the value assigned to the property during the creditor’s relief from stay motion is not necessarily binding at later stages of the bankruptcy case. Facts: A lender held a first priority mortgage on a hotel and related properties. A few months after the borrower’s Chapter 11 filing, the lender moved for relief…