All posts in Case Briefs

Court of Appeals Cases from Last Week

By | April 14, 2012 | Case Briefs, Cases | No comments

United States Second Circuit, 04/10/2012

In re Quigley Company, Inc., No. 11-2635  bankruptcy court order holding that an injunction issued in a corporation’s bankruptcy proceedings applied to stay certain suits against its parent company, affirmed, where: 1) the Second Circuit had jurisdiction to hear the appeal; 2) the bankruptcy court had jurisdiction to enjoin the suits against the parent company; 3) the exercise of statutory bankruptcy jurisdiction to enjoin the suits was appropriate, since litigation of those suits would almost certainly have resulted in the drawing down of insurance policies that were part of the bankruptcy estate; and 4) the injunction, modeled on 11 USC section 524(g)(4)(A)(ii), did not enjoin the suits at issue.

Thanks to Findlaw.com

Circuit Court of Appeals Cases from Last Week

By | March 31, 2012 | Case Briefs, Cases | No comments

United States Ninth Circuit, 03/26/2012
In re Kekauoha-Alisa, No. 09-60019
Avoidance of foreclosure sale appropriate, where the lack of adequate public announcement that the foreclosure sale had been postponed violated Hawaii’s nonjudicial foreclosure statute, and this defect was a deceptive practice under Hawaii law; but 2) the case is remanded to the bankruptcy court for a proper calculation of attorneys’ fees and damages, where the bankruptcy court made no finding that the enumerated damages were caused by and fairly traceable to the mortgagee’s improper postponement.

Thanks to Findlaw.com

My Brief on Friedman

By | March 25, 2012 | Case Briefs, Chapter 11 | No comments

Friedman v. P&P, LLC (In re Friedman), —- B.R. —- (9th Cir. BAP, March, 2012)

Issue:   Does the absolute priority rule still apply, after BAPCPA, in individual chapter 11 cases?

Holding:   No.

Judges Philip Brant and James Marlar, Tucson, AZ

Jury, Kirscher, Clarkson

Opinion by Scott Clarkson, Dissent by Meredith Jury

The debtors filed chapter 11 to stop a foreclosure sale on real property they owned although not their principle residence.  The debtors filed a plan proposing to pay unsecured creditors $634 per month.  The largest unsecured creditor filed an objection to the plan on various grounds including that the plan violated the absolute priority rule.  The bankruptcy court conducted a hearing on the plan limited to the issue of whether it was unconfirmable because it violated the absolute priority rule.  The court ruled that it did and ordered the debtors to file an amended plan.  The debtors did not do that and the case was converted to chapter 7.  The debtors moved for a stay pending appeal which was granted by the bankruptcy court given the split on the issue.

Read more…

Circuit Court of Appeals Cases from Last Week

By | February 4, 2012 | Case Briefs | No comments

United States Fourth Circuit, 02/02/2012
Gentry v. Siegel
Former employee cannot pursue class action for unpaid ovetime where: 1) no abuse of discretion ruling that the bankruptcy process was superior to the class action process for resolving the claims of former employees; 2) notice of the bankruptcy process to the named claimants was not constitutionally deficient; and 3) with respect to unnamed claimants, the named claimants lacked standing to challenge the notice.

United States Ninth Circuit, 01/30/2012
Matter of Thorpe Insulation Co.
Bankruptcy Court’s orders denying creditor’s motion to compel arbitration and disallowing its claim is affirmed, where: 1) the resolution of the creditor’s claim was a core matter in the bankruptcy; 2) no abuse of discretion in denying the creditor’s motion to compel arbitration; 3) no abuse of discretion by declining to give the creditor further opportunity for discovery; 4) the creditor’s claim was properly disallowed because the debtor’s covenants in a settlement agreement were purported prepetition waivers of the protections of the Bankruptcy Code, which need not be permitted.

Thanks to Findlaw.com

9th Circuit Rulings From Last Week

By | January 28, 2012 | Case Briefs, Chapter 11 | No comments

United States Ninth Circuit, 01/24/2012
In the Matter of Thorpe Insulation Co.,  
Insurance companies that did not reach settlements with the debtors are allowed to challenge the Chapter 11 reorganization plan where: 1) the appeal was not equitably moot; 2) the appellants met statutory, constitutional, and prudential standing requirements; 3) the appellants had standing in bankruptcy court to object to confirmation of the plan; and 4) anti-assignment provisions contained in contracts between the appellants and debtors were preempted by federal bankruptcy law. 

United States Ninth Circuit, 01/27/2012
Matter of Meruelo Maddux Properties, Inc., 
Debtor is a single asset case where: 1) the debtor existed solely to operate a 92-unit apartment complex; 2) the Code gives no basis for a “whole business enterprise” exception to single asset real estate debtor status that would allow the court to consider parent corporation and sister subsidiaries; and 3) relief from the automatic stay appropriate even though questions left about whether the debtor took timely corrective action to the bankruptcy court in the first instance.

California Court of Appeal, 01/25/2012
Flores v. Kmart Corp., 
In a wrongful death action brought against a corporation that had filed for Chapter 11 bankruptcy and confirmed a Plan, demurrer not appropriate where on the limited record of bankruptcy proceedings provided by the corporation, and consistent with due process principles, the corporation failed to demonstrate, at the demurrer stage, that the approval of the reorganization plan barred all of the plaintiffs’ claims. 

Thanks to Findlaw.com

9th Circuit Review with cdcbaa

By | January 22, 2012 | Case Briefs, Programs | No comments

The 9th Circuit Review yesterday with Judge Sandy Klein at Southwestern Law School was pretty successful.  The materials are attached here.   cdcbaa Presentation fin 1.21.12  I want to especially thank Judge Klein again for doing the program with me.  We had a huge turnout and everyone seemed to enjoy it.  Jon

Circuit Court of Appeals Cases for the Week

By | January 6, 2012 | Case Briefs | No comments

United States First Circuit, 01/06/2012
DiVittorio v. HSBC Bank USA, NA, No. 11-1188 (dismissal of plaintiff’s truth-in-lending complaint for rescission affirmed where the complaint failed to state a claim under Mass law and, alternatively, because plaintiff knowingly and voluntarily waived any rights to rescission). 

United States Ninth Circuit, 01/06/2012
Vegas Diamond Properties, LLC v. FDIC, No. 10-56720 (appeal is dismissed as moot where the subject properties were sold prior to appeal).

Thanks to Findlaw.com

Newer Entries →