Recent Cases
In re Stevens, ___F.4th___(9th Cir. 2021)
In re Stevens, ___F.4th___(9th Cir. 2021) issued on 10/19/21, is important, because it holds that where a bankruptcy debtor lists a lawsuit (in which debtor is the plaintiff) in debtor’s Statement of Financial Affiars, but does NOT list the lawsuit in the debtor’s Asset Schedule (Schedule A/B), that the lawsuit is NOT abandoned back to the debtor, when the Bankruptcy Court closes debtor’s bankruptcy case. Note that assets that are accurately listed, in the bankruptcy debtor’s schedule A/B (asset schedule) are abandoned back to the debtor, per 11 USC 521(a), when the Bankruptcy Court closes the debtor’s bankruptcy case, if…
Wigley v. Lariat Cos. (In re Wigley), ___F.4th___, 20-3132 (8th Cir. Ct. of Appeals, 10/18/21)
Wigley v. Lariat Cos. (In re Wigley), ___F.4th___, 20-3132 (8th Cir. Ct. of Appeals, 10/18/21): The cap on a so-called landlord claim under Section 502(a)(6) does not prevent the court from barring discharge of the claim under Section 523(a)(2)(A), even if the reduced claim was paid in an individual’s chapter 11 plan, according to this10/18/21 decision of the Eighth Circuit Court of Appeals.
Margavitch v. Southlake Holdings LLC (In re Margavitch)
Margavitch v. Southlake Holdings LLC (In re Margavitch), ___BR___, case no. 20-00014 (Bankr. M.D. Pa. Oct. 6, 2021): Bky ct decision holding that, in light of the US Supreme Court Fulton decision, a creditor does not violate any of the 11 USC 362(a)(1)-(8) bankruptcy automatic stays, by refusing to release– after the debtor filed bankruptcy and demanded (several time) that the creditor release the judicial lien the creditor had obtained on debtor’s bank account, which lien the creditor had obtained before the debtor filed bankruptcy. ABI in its 10/14/21 e-mail reports on the Margavich decision as follows: Refusing to Release…
Argonaut Ins. Co. v. Falcon V LLC
Argonaut Ins. Co. v. Falcon V LLC, 20-00702 (US District Court, M.D. La. Sept. 30, 2021) holds Surety Bonds Aren’t Executory Contracts, Can’t Be Assumed, and Can’t “Ride Through” bankruptcy, unaffected. The US District Court affirmed a Bankruptcy Court decision, to hold that an irrevocable surety bond isn’t executory because it gives the bonding company no further obligations to the debtor. The US Court of Appeals for the Fifth Circuit has adopted the definition of executory contracts proposed by Prof. Vern Countryman of Harvard Law School. The professor called a contract executory if it is “a contract under which the…
Student Loan Bankruptcy Citations and Resources
[1] 3 F.4th 595, 604–05 (2d Cir. 2021). 11 U.S.C. § 523(a)(8)(A)(ii) specifically excepts from discharge “an obligation to repay funds received as an educational benefit, scholarship, or stipend.” [2] Id. at 599. [3] Id. [4] Id. [5] Id. [6] Id. [7] Id. [8] Id. [9] Id. at 605. [10] See Crocker v. Navient Sols. LLC (In re Crocker), 941 F.3d 206 (5th Cir. 2019). [11] See McDaniel v. Navient Sols. LLC (In re McDaniel), 973 F.3d 1083 (10th Cir. 2020). [12] Bill Rochelle, “All Private Student Loans Are Not Excepted from Discharge, Second Circuit Holds,” American Bankruptcy Institute: Rochelle’s…
Nichols v. Marana Stockyard & Livestock Market Inc. et al (In re Nichols)
Nichols v. Marana Stockyard & Livestock Market Inc. et al (In re Nichols),___ F.4th___, 2021 WL 3891571 (9th Circ. 9/1/2021). Unanimous decision by 9th Circuit Court of Appeals holds that a Chapter 13 debtor has an absolute right to dismiss that debtor’s Chapter 13 case, even if the Chapter 13 debtor had engaged in bad faith or abuse of the bankruptcy process. Nicols decision rules that the Law v. Siegel US Supreme Court case effectively overrules refusing to let Chapter 13 debtors dismiss their Chapter 13 cases because the debtor had done bad thing. Nichols holds that a debtor who…
In re Lockhart-Johnson
In re Lockhart-Johnson, 2021 WL 3186115 (B.A.P. 9th Cir. 2021). Deciding a previously unresolved issue, the Ninth Circuit Bankruptcy Appellate Panel held that, to assert a nondischargeability claim against the non-filing spouse of a debtor, a plaintiff must affirmatively obtain a nondischargeability determination by commencing an adversary proceeding against the non-debtor spouse within 60 days after the meeting of creditors. The BAP acknowledged that neither the Federal Rules of Bankruptcy Procedure nor other courts had previously addressed how a creditor can assert its community claim when nondischargeable acts were committed by the non-filing spouse, or “expressly provide[d] the procedure for…
US Supreme Court Blocks CDC Eviction Moratorium
US Supreme Court Blocks CDC Eviction Moratorium, in decision issued 08/26/21 in Alabama Association of Realtors v. Department of Health and Human Services, ___ US ___ (08/26/21): Just one day after the US Ninth Circuit Court of Appeals refused to enjoin the residential eviction moratorium of the City of Los Angeles, the U.S. Supreme Court reinstated a lower court order blocking the Centers for Disease Control and Prevention’s (“CDC”) latest eviction moratorium on Thursday evening, granting a request from a group of landlords and Realtor associations claiming the CDC had overstepped its authority. The CDC has repeatedly renewed the eviction…
Residential Eviction Moratorium
On 8/25/21, the Ninth Circuit Court of Appeals issued its Opinion in the case: APARTMENT ASSOCIATION OF LOS ANGELES COUNTY, INC., DBA Apartment Association of Greater Los Angeles, Plaintiff-Appellant v. CITY OF LOS ANGELES; ERIC GARCETTI, in his official capacity as Mayor of Los Angeles; CITY COUNCIL OF THE CITY OF LOS ANGELES, in its official capacity; et al, Defendants-Appellees. The OPINION ruled against the landlords, refusing to enjoin the City of Los Angeles, residential eviction moratorium. The Opinion held the City of Los Angeles’ Residential Eviction Moratorium did NOT violate the Contract clause of the US Constitution. Even though…
Lockwood v. Wells Fargo NA
Lockwood v. Wells Fargo NA,___F.3d___ (US 5th Cir. Court of Appeals, decision issued 8/16/21), case 20-42324 It isn’t duress when a lender threatens to take action that the loan agreement allows, the circuit court says. In the Fifth Circuit and perhaps elsewhere, claiming duress won’t let someone escape from a personal guarantee, even if it’s $58 million. As Circuit Judge Gregg J. Costa said in an August 16 opinion: [U]sing leverage is what negotiation is all about. And difficult economic circumstances do not alone give rise to duress. If they did, then many loans would be voidable. [Citation omitted.] An…