ATTENTION:
A new Public Notice – PN 12-008 Re: Comprehensive Report On Self-Represented Litigants In the Central District of California Bankruptcy Court- has been posted on the Court’s website and is attached here for your convenience.
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| Docket No. | Op. Below | Argument | Opinion | Vote | Author | Term |
|---|---|---|---|---|---|---|
| 11-166 | 7th Cir. | Apr 23, 2012 | TBD | TBD | TBD | OT 2011 |
You can access the new 9th Circuit Annual Report for the fiscal year 2011 here. The 92 page report for the year ended Sept, 2011 has lots of pictures and statistics. For example, there were 826 requests during the year for en banc review of which 13 were granted. Every district in the 9th Circuit had fewer bankruptcy filings than the year before except the Central District of California. There were 1,011 appeals from bankruptcy court decisions, up 29% from the previous year. Of the total appeals, the BAP got 59% of them and the disctrict courts 41%. How’s this for an interesting fact: 11% of the appeals to the BAP resulted in reversal! It doesn’t say what the reversal rate was to the district courts. Of the BAP and district court appellate decisions, 178 were further appealed to the 9th Circuit.
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
The District Court has sided with WFB in the class action brought against Wells Fargo Bank in the Mwangi case. Mwangi is the case where the 9th Circuit BAP ruled that WFB violated the automatic stay by freezing the funds automatically in every bankruptcy case. The BAP sent it back to Judge Markell for a ruling on damages and Judge Markell ruled after an evidentiary hearing that there were none. The debtor and their very energetic attorney filed a class action suit against WFB but now the district court has affirmed the bankruptcy court’s dismissal of the case. A copy of the opinion is here – Mwangi. My understanding is that WFB continues to freeze the account in every bankruptcy filing. If that is not the case, I would love to know. I still warn every client to get their money out of WFB before filing lest it be frozen. I have to say however that the few times I have had to go to trustees to get the funds unfrozen, it has been handled pretty quickly.
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
On January 21, 2011 Christopher P. Burke, Esq. and Scott C. Borison, Esq. attorneys for Eric Mwangi and Pauline Mwicharo [Plaintiffs] filed case no. 11-01022-bam in U.S. Bankruptcy Court for the District Court of Nevada this Adversary, a class action.
Thanks to Christine Wilton for this news. I will check the docket and update shortly.
Well, I’ve checked the docket. Pretty interesting. The case was before Judge Bruce Markell. The complaint asked for $5 billion (with a “b”) in damages. WFB filed two Motions to Dismiss, the second of which was granted with prejudice in September, 2011. The debtors appealed to the BAP. WFB transferred to district court (shocker there) since the BAP ruled that Wells violated stay. The parties are waiting for the district court to rule. Email for counsel for the debtor is atty@cburke.lvcoxmail.com.
United States First Circuit, 03/21/2012
In re Sullivan, No. 11-1830 Award of attorney’s fees in a Chapter 13 affirmed, where: 1) the bankruptcy court stated that the attorney’s hourly rates were reasonable but that, given the banal nature of the case, the hours claimed were excessive; and 2) it adequately explained why it had come to that conclusion.
United States First Circuit, 03/22/2012
In re Puffer, No. 11-1831 no blanket rule that “fee-only” Chapter 13 plans are per se submitted in bad faith, but rather there may be relatively rare special circumstances in which a “fee only” filing is justified, so the case is remanded for the bankruptcy court to consider the totality of the circumstances when measuring whether the Chapter 13 plan was presented in good faith.
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.
The Friedman Opinion regarding whether or not the absolute priority rule still applies in individual chapter 11 cases was published today. You can access it here – Friedman decision. I’ll have more comments in a little while. I sure think they got this one right. Judge Scott Clarkson wrote the majority opinion, Judge Meredith Jury dissented.
