Category Archives: 362(c)(3)(B)

7th Cir. Opinions

7th Circuit Opinion Summaries courtesy of Justia.com

United States v. Rogan

Bankruptcy, Criminal Law, Government, White Collar Crime

River Road Hotel Partners, LLC v. Amalgamated Bank

Bankruptcy

Bloomfield State Bank v. United States

Bankruptcy, Real Estate & Property Law, Tax Law

Costello v. Grundon

Bankruptcy, Commercial Law, Securities Law

CDX Liquidating Trust v. Venrock Assocs., et al

Bankruptcy, Business Law, Securities Law

Reedsburg Util. Comm’n v. Grede Foundries, Inc.

Bankruptcy, Utilities Law

Kimbrell v. Brown

Bankruptcy, Injury Law

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Ransom v. FIA Card Services (U.S. S.Ct.)

Ransom v. FIA Card Services, N.A., f/k/a MBNA America Bank, N.A.
Certiorari from the U.S. Court of Appeals for the 9th Cir., Case 09–907
Argued October 4, 2010—Decided January 11, 2011

The Issue: Here the question was whether a Chapter 13 debtor could deduct the allowable auto payment from his monthly budget even though he did not have a car payment (i.e the vehicle was paid for). Put another way, is it fair for all debtors to be entitled to the maximum allowable deduction from their monthly disposable income, or must debtors establish what they actually pay?

The Answer: The Court ruled 8 to 1 (Scalia J. dissenting) that if a debtor makes more than the median income for his State then he must establish that he incurrs the amounts deducted from his monthly living expenses. No more automatic deductions if debtor cannot prove what he pays.

The Gist: To determine “disposable income” BAPCPA gave us the Means Test, which starts with gross monthly income then deducts living expenses – i.e. “amounts reasonably necessary for maintenance or support” of the debtor. In a Chapter 13 case the expenses considered “reasonably necessary” are identified in 11 U.S.C. §1325(b)(2)(A)(i) and include “applicable monthly expense amounts” as specified in National and Local IRS standards. Since BAPCPA was adopted, it has become common practice to include expenses at the maximum allowable level even if the debtor does not have, or pay for, that type of asset. This case appears to say that the party is over for Chapter 13 debtors.

See Also: this post from Chicago Attorney Steve Jacobowski on the Bankruptcy Litigation Blog regarding the Scalia dissent.

 

Apex Oil Co. v. U.S. (Supreme Court)

The U.S. Supreme Court denied certiorari with respect to U.S. v. Apex Oil Co., 579 F.3d 734 (C.A.7-Ill. 2009) in which the 7th Circuit held that an government injunction requiring Apex to clean up a contaminated site constituted a non-dischargeable debt as set out in the Bankruptcy Code.

By contrast, Apex argued that an injunction is not a “claim” under sec. 101(5)(B) because it is not a right to money damages arising from a breach of performance. Instead, claimed Apex, the injunctive claim was a demand on the Debtor barred by sec. 362, the Automatic Stay. In the alternative, said Apex,the claim was reducible to money damages and was therefore dischargeable. Finally, Apex argued that to consider an environmental clean-up order a nondischargeable claim would conflict with a line of Supreme Court cases starting with Ohio v. Kovacs, 469 U.S. 274, 105 S.Ct. 705, 83 L.Ed.2d 649 (1985).

The U.S. Supreme Court refused to hear the matter and the holding of the 7th Cir. Stands.

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case updates – hometown, cir 3, cir 8

3rd cir

Windt v. Qwest Communications, 06-4662, 06-4808 [June 10, 2008]
In a lawsuit brought by bankruptcy trustees of a Dutch company asserting various claims against defendants who were allegedly responsible for the company’s insolvency, judgment dismissing trustee-plaintiff’s complaint on forum non-conveniens grounds is affirmed where the district court did not abuse its discretion in: 1) affording low deference to plaintiffs’ choice of forum in view of Netherlands’ substantial interest in resolving a dispute concerning alleged mismanagement of a Dutch company by board members and officers of that Dutch company; 2) concluding that avoiding problems in the application of foreign law favored dismissal; 3) balancing the public and private interest factors implicated in the case; and 4) determining that the convenience of litigating the dispute in New Jersey was outweighed by the oppressive or vexatious effect on defendants.

 

8th cir

US v. Mitchell, 07-3136 [June 10, 2008]
Conviction upon defendant’s retrial for knowingly and fraudulently making a false statement under penalty of perjury in a bankruptcy case is affirmed where the circuit court declines to revisit a double jeopardy issue, and there was sufficient evidence to sustain his conviction.

ND IL ED

In re Weadley, 06-1854
Bibby Financial v. Weadley, 07-683
Issued June 11, 2008
Judge A. Benjamin Goldgar

Update Alert: Relief from Stay

bankruptcy court nd il ed

Effective Immediately: Required Statement to Accompany All Motions for Relief from Stay has been revised.

Download it from the Box on the right >>>>

:: Bankruptcy Attorney in Illinois :: M. Hedayat & Associates, P.C. ::

 

In re Sandra J. Curry, 06 B 13096

In re Sandra J. Curry, 06 B 13096

Issued: February 22, 2007

Judge: Jack B. Schmetterer

Court held that §362(c)(3)(A) terminates the automatic stay as to both property of the estate as well as property not included in the estate. Debtor’s initial Chapter 13 case was dismissed for failure to make timely payments to the trustee. Debtor subsequently refiled under Chapter 13 but failed to file a motion extending the automatic stay under §362(c)(3)(B). Movant/mortgage holder thereafter filed a Motion to Confirm Termination or Absence of Stay.

Debtor answered by arguing that Debtor’s property is protected by the automatic stay because §362(c)(3)(A) applies to “the person and property of [the] debtor but not property of the estate.” The Court explicitly rejected the reasoning found in In re Pashcal, 337 B.R. 274 (Bankr. E.D.N.C. 2006) which argued that had the BABCPA’s drafters sought to eliminate the automatic stay in its entirety it would have mirrored the language found in §362(c)(4)(A)(i) (automatic stay does not come into effect at all upon the filing of a debtor’s third bankruptcy case within any one year). Here, the Court determined that “the drafters [of the BAPCPA] intended to terminate the automatic stay in its entirety” so as to discourage repeated bad faith filings.