Category Archives: 727

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.

 

3 From Judge Barbosa (Mosher, Deeutscher, Phelan)

In re Dorsie Wayne Mosher, Jr., 06 B 71261
William T. Neary, US Trustee, v. Mosher, 07 A 96013

Issued: November 4, 2009
By Judge: Manuel Barbosa
Summary: The Court ruled in favor of the U.S. Trustee by denying the Debtor’s petition to discharge. Under 11 U.S.C. § 727(a)(2), the Court must grant discharge to the debtor unless the debtor intentionally hindered, delayed, or defrauded a creditor or Trustee. Debtor knowingly failed to list his income and admitted to making a conscious decision to list only certain debts in his petition. The Court finds that the Debtor “knowingly and fraudulently made false oaths” and thus should be denied a discharge under Section 727(a)(4)(A).
View and download the opinion in PDF format here.

In re Jody R. Deutscher and Kelly C. Deutscher, 08 B 73603
Issued: October 28, 2009
By Judge: Manuel Barbosa
Summary: The Court granted U.S. Trustee’s motion to dismiss. Under 11 U.S.C. § 707(b)(1), the Court may dismiss a case in which the debts are primarily consumer debts, if the granting of relief is tantamount to abuse of the provisions of Chapter 7. The Debtors fall under two applicable provisions: 1. Debtors purchased luxuries on credit on the eve of bankruptcy 2. Debtors’ budget is “excessive or unreasonable.” As the Court found, The Debtors want to continue a lifestyle of luxury, purchasing a yacht and boat, “even after seeking a bankruptcy discharge by reaffirming their debt on these luxury items rather than […] do some belt tightening.”
View and download the opinion in PDF format here.

In re Joseph M. Phelan and Mary M. Phelan, 09 B 70398
Issued: October 28, 2009
By Judge: Manuel Barbosa
Summary: Under the Fifth Amendment’s Due Process clause, creditors have the right to “reasonable notice” when being listed as a creditor in bankruptcy petitions. Creditor Employee Benefits Security Administration (ESBA) did not learn of Debtor’s intent to file for bankruptcy until at east two months after the date required by Fed. R. Bank. P. 4007(c). Furthermore, Debtors failed to list EBSA on their bankruptcy petition. Therefore the Court has granted the Secretary of Labor leave to file an adversary complaint for determination of dischargeability.
View and download the opinion in PDF format here.

New Median Income Standards (09-2009)

median income figures (09-2009)

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

roundup 4th cir, 5th cir

4th cir

Smith v. Jordan, 06-2154
Revocation of discharge affirmed in part. District court correctly determined that a Trustee seeking revocation of discharge under 727(a)(6)(A) must establish that debtor wilfully and intentionally refused to obey the court’s order, but incorrectly concluded that debtor’s failure to comply in this case was “willful” within the meaning of the statute.

5th cir

In the Matter Of: Seven Seas Petroleum Inc.,  07-20301
Secured creditor of bankrupt corporation sued  in state court by an unsecured creditor of the corporation. Secured creditor had the claims against it removed to federal court and unsecured creditor sought to have the dispute remanded back to state court. Unsecured creditor’s motion was denied and case was dismissed. Ruling is vacated by the Appellate Court, which determined that the claims were not property of the bankruptcy estate and did belong in state court (motion to remand must be granted).