Westlaw Topical Highlights: Bankruptcy, July 1, 2013

July 1, 2013

BankruptcyWestlaw Topical Highlights for Bankruptcy provides summaries of significant federal and state judicial decisions and legislative and administrative activities affecting Bankruptcy law. A Westlaw subscription is required to access the documents linked from this page.

Bankruptcy Estate: Debtor was not improperly seeking to claim exemption in assets that did not exist on petition date.  In re Wilson 2013 WL 3177334 (Bkrtcy.C.D.Cal.)  A Chapter 7 debtor, in not initially claiming any exemption in deed of trust property that was completely “underwater” because she did not believe that she had anything to gain by doing so, and in belatedly seeking to claim an exemption only after the trustee negotiated “carveouts” with deed of trust creditors, whereby the creditors essentially agreed to “tip” the estate in the amount of these carveouts if the trustee would utilize powers available to him to conduct short sales of both parcels, was not improperly seeking to claim an exemption in assets that did not exist on the petition date. While no carveouts had been negotiated on the petition date, the carveouts were not the assets in which the debtor was claiming exemptions, but merely the means by which the estate was acquiring funds that were subject to the debtor’s claimed exemptions in the deed of trust property. In re Wilson 2013 WL 3177334 (The full-text of the rest of the Topical Highlights are available within Westlaw Next, subscription required)

Claims: Attorneys did not have right to charging lien enforceable against Chapter 7 trustee.

In re DeWolfe 2013 WL 3146921 (Bkrtcy.W.D.N.Y.)

Claims: Bank’s claim against debtor based on guaranty had to be offset by amount recovered by bank in settlement with loan assignor.  In re Doctors Hosp. of Hyde Park, Inc. 2013 WL 2480882 (Bkrtcy.N.D.Ill.)

Plans: Postconfirmation modification could not be used to capture extra net income created by mortgage refinancing.  In re Salpietro 2013 WL 2495568 (Bkrtcy.E.D.N.Y.)

Debtor Protections: Criminal restitution orders could be enforced against estate property.

U.S. v. Robinson 2013 WL 2950598 (W.D.Tenn.)

Claims: Corn was “received” outside 20-day “lookback” period of administrative expense provision.  In re Wezbra Dairy, LLC 2013 WL 3187025 (Bkrtcy.N.D.Ind.)

Case Administration: Debtor was ineligible to file second bankruptcy case within 180 days of voluntarily dismissing his first case.  In re Rivera 2013 WL 3199300 (1st Cir.BAP (P.R.))

Debtor Protections: Debtors failed to support request for award of emotional distress damages for lender’s willful stay violations.  In re Bilfield 2013 WL 2897035 (Bkrtcy.N.D.Ohio)

Automatic Stay: Creditor established prudential standing to file the motion for relief from automatic stay.  In re Griffin 2013 WL 3199063 (C.A.9)

Discovery: Subpoena duces tecum had to be quashed in part in Chapter 7 trustee’s action against FDIC as receiver.  Goldstein v. F.D.I.C. 2013 WL 2257099 (D.D.C.)

Plans: Debtors’ exercise of rights under “projected disposable income” provision did not affect “good faith” of proposed plan.  In re Roberts 2013 WL 3156516 (Bkrtcy.D.Kan.)

Jurisdiction: Ability of bankruptcy judges to submit proposed findings and conclusions in “core” proceedings—Certiorari Granted Executive Benefits Ins. Agency v. Arkison 2013 WL 3155257 (U.S.)

Case Administration: Chapter 7 debtor’s prepetition bad faith constitutes “cause” for dismissal.  In re Piazza 2013 WL 3198005 (C.A.11 (Fla.))

Debtor Protections: Voluntary liquidator for foreign corporation was not entitled to preliminary stay under Chapter 15.  In re Worldwide Educ. Services, Inc. 2013 WL 3049230 (Bkrtcy.C.D.Cal.)

Avoidance: Broker failed to establish that debtor’s preference period payments were made according to ordinary business terms.  In re Interstate Bakeries Corp. 2013 WL 3010820 (Bkrtcy.W.D.Mo.)

Plans: Condominium association’s lien against Chapter 13 debtor’s condominium unit was statutory lien under Louisiana law.  In re Green 2013 WL 2897052 (Bkrtcy.E.D.La.)

Discharge: Debtor committed defalcation within meaning of discharge exception for defalcation while acting in fiduciary capacity.  In re Fahey 2013 WL 2897040 (Bkrtcy.D.Mass.)

Sanctions: Filing untimely nondischargeability claim was sanctionable violation of rule against filing of frivolous claims.  In re Lawrence 2013 WL 3155452 (Bkrtcy.E.D.Cal.)