Recent Cases
Tronox v. Kerr-McGee,__BR__, 2013 WL6596696(Bankr SD NY Dec 12, 2013)
Tronox v. Kerr-McGee,__BR__, 2013 WL6596696(Bankr SD NY Dec 12, 2013): adversary proceeding fraudulent transfer decision, referred to as being a “Game Changing Ruling on Fraudulent Transfer and Spin-Offs to Shed Legacy Liabilities” In a ground-breaking environmental fraudulent transfer case, a New York Bankruptcy court held that Kerr-McGee’s transfer of valuable oil and gas assets to a new company and (attempted) spin-off of the legacy liabilities to newly-formed Tronox constituted fraudulent transfer and that the transaction, which left Tronox insolvent, was not made for reasonably equivalent value. Damages between $5.1 and $14.1 billion are anticipated, payable to the debtor (Tronox) bankruptcy…
Janura et. al. v. Saridakis (In re Saridakis), __BR__
Janura et. al. v. Saridakis (In re Saridakis), __BR__, 2013 WL 6488276, 9th Cir.BAP (Cal.), 12/10/13): The U.S. Bankruptcy Appellate Panel of the Ninth Circuit ("BAP") held that post-trial discovery of a default judgment, that apparently was entered in a state court action contemporaneously with, or immediately following, a trial in the bankruptcy court was not newly discovered evidence "of such magnitude that production of it earlier would likely have changed the outcome of the case." What to learn from this decision: Whatever evidence you have, present that evidence before the Court rules for the first time, because its very…
Jones v. U.S. Trustee, Eugene
Jones v. U.S. Trustee, Eugene, ___F.3d___, 2013 WL 6224330 (9th Cir. 2013 Dec. 2, 2013): Debtors who omit assets from their bankruptcy schedules, and/or undervalue their assets in their bankruptcy schedules, can be denied any discharge, or have discharge revoked, if discharge has alreadby been granted: The United States Court of Appeals for the Ninth Circuit held that fraud which would have justified the bankruptcy court denying a discharge under 11 U.S.C. §727(a)(4)(A) will support an action to revoke a discharge under 11 U.S.C. §727(d)(1). FACTS: In his initially filed bankruptcy schedules and in his testimony at the meeting of…
In re Gasprom, 500 B.R. 598 (9th Cir. BAP 2013)
In re Gasprom, 500 B.R. 598 (9th Cir. BAP 2013). The Ninth Circuit Bankruptcy Appellate Panel held that a secured creditor violated the automatic stay by foreclosing on collateral abandoned by the Trustee of a corporate chapter 7 debtor before the bankruptcy case was closed. Facts In Gasprom, after the corporation’s case was converted from chapter 11, the Trustee moved to abandon the debtor’s sole asset – an non-operational gas station for which there were troublesome issues concerning permitting, hazardous waste and underground storage compliance, and which was fully encumbered to a secured creditor. The debtor objected to the abandonment…
Hazelrigg v. United States Trustee (In re Hazelrigg)
Summary Hazelrigg v. United States Trustee (In re Hazelrigg), BAP No. WW-13-1230-TaDJu (Nov. 19, 2013). This is a “not for publication” decision of the Bankruptcy Appellate Panel for the Ninth Circuit, in which the BAP affirmed the entry of summary judgment against the debtor in an objection to discharge proceeding based in part on the debtor’s invocation of the privilege against self-incrimination under the Fifth Amendment to the United States Constitution. Factual Background Debtor Thomas R. Hazelrigg, III (cDebtor"), was a well-known financier and businessman in the Seattle area, who, along with another associate and developer, was put into an…
Tishgart v. Hoffman (In re Tishgart), BAP No. 12-1160-PaMkH, — B.R. — (9th Cir. Nov. 13, 2012)
After filing for chapter 7 bankruptcy, Tishgart, an attorney-debtor, received over $130,000 in contingent legal fees in fifteen cases. The trustee brought an adversary proceeding to determine the estate’s interest in the post-petition fees, wherein the bankruptcy court deemed Tishgart to have admitted that he provided little or no legal services in those cases after entering bankruptcy. The bankruptcy court analogized the facts of the case to a situation where Tishgart’s clients had terminated his legal services as of the petition date. On that basis, the court surmised it would be justified to award nearly everything to the trustee, but…
Cal-Western Business Services, Inc. v. Corning Capital Group
Cal-Western Business Services, Inc. v. Corning Capital Group, 2013 DJAR 14887 (California Court of Appeal, 2nd Dept 11/6/13) holds that a California corporation that was suspended, for failure to pay its corporation taxes, is disqualified from exercising any right, power or privilege of a corporation, including a suspended corporation may not prosecute or defend a lawsuit, appeal from a judgment, seek a writ, or take any other similar legal action. Because Pacific West was a suspended CA Corp, it lacked power to assign a judgment, that it owned, in its favor, against Corning Capital Group, to Cal -Western Business Services.…
In Heritage Pac. Fin., LLC v. Montano (In re Montano)
In Heritage Pac. Fin., LLC v. Montano (In re Montano), __ B.R. __, 2013 WL 5890681 (9th Cir. BAP Nov. 1, 2013), the U.S. Bankruptcy Appellate Panel of the Ninth Circuit held that California’s anti-deficiency statutes barred the successor to a mortgage lender from obtaining a nondischargeability judgment for a purportedly fraudulently induced loan against a borrower who misrepresented his financial condition. Specifically, the successor could not enforce the loan against the borrower despite the borrower’s alleged misrepresentations in his loan application because: (1) the loan was for less than $150,000, (2) the loan was secured by residential real property,…
Alakozai v. Citizens Equity First Credit Union (In re Alakozai)
Alakozai v. Citizens Equity First Credit Union (In re Alakozai), 499 BR 698 (9th Cir. BAP 10/2/13). The Bankruptcy Appellate Panel of the Ninth Circuit ("BAP") affirmed the bankruptcy court’s order in the debtor’s sixth bankruptcy case granting a lender relief from stay to continue with its state court unlawful detainer action. The BAP found that the lender’s foreclosure on the debtor’s real property during the fifth case did not violate the automatic stay and was not void because the lender’s relief from stay order in the debtor’s fourth bankruptcy case was effective as to the property. Facts Mohamed Alakozai…
adrozny vs. Bank of New York Mellon
Zadrozny vs. Bank of New York Mellon, 2013 Westlaw – – (9th Cir. 2013): Applying Arizona law, the Ninth Circuit has held that a foreclosing creditor need not produce the original promissory note before pursuing nonjudicial foreclosure. [See immediately below]. Facts: A married couple executed a note and deed of trust in favor of a lender. The deed of trust authorized the lender to transfer the note and authorized MERS (Mortgage Electronic Registration Systems, Inc.) to act as the nominee on behalf of the lender. MERS ultimately transferred the rights to the note and trust deed to an assignee. The…