Recently in Bankruptcy Law Category

In a bankruptcy adversary action seeking avoidance of the transfer of a parcel of real property from the debtor to defendant, defendant's appeal from the Bankruptcy Appellate Panel's (BAP) affirmance of the bankruptcy court's ruling that the doctrine of equitable tolling applied to the trustee's filing of the proceeding is dismissed where the BAP's order was nonfinal.

Read In re: Bender, No. 08-15027

Appellate Information

Argued and Submitted September 3, 2009

Filed November 5, 2009

Judges

Opinion by Judge Wallace

Counsel

For Appellant:

Christopher A. LaVoy, Phoenix, AZ

For Appellee:

David W. Engelman, Phoenix, AZ

In debtor's appeal from the district court's order affirming a bankruptcy court's decision limiting the debtor's homestead exemption in his bankruptcy petition to $125,000 pursuant to 11 U.S.C. section 522(p), the order is affirmed in part where no pre-petition appreciation of the property at issue occurred.  However, the order is reversed in part where "any amount of interest that was acquired," as used in section 522(p)(1), meant the acquisition of ownership of real property and the monetary cap in section 522(p) did not apply to property to which a debtor acquired title more than 1215 days before she or he filed a bankruptcy petition.

Read In re: Greene, No. 07-16067

Appellate Information

Argued and Submitted May 7, 2008

Filed October 5, 2009

Judges

Opinion by Judge Timlin

Counsel

For Appellant:

David Rankine and Michael Lehners, Reno, NV

For Appellee:

Robert C. Vohl, Reno, NV

In a debtor's appeal from the bankruptcy court's order limiting the homestead exemption in his bankruptcy petition, the order is affirmed in part where there was no pre-petition appreciation of the property at issue; but reversed in part, where perfection of a homestead exemption does not constitute acquisition of a property interest for purposes of 11 U.S.C. section 522(p)(1), and thus the debtor's homestead was not subject to the $125,000 cap contained in section 522(p).

Read In re Greene, No. 07-16067

Appellate Information

Argued and Submitted December 12, 2008

Filed October 2, 2009

Judges

Opinion by Judge Timlin

Counsel

For Appellant:

David Rankine and Michael Lehners, Reno, NV

For Appellee:

Robert C. Vohl, Reno, NV

In an adversary proceeding in bankruptcy court for violation of an automatic stay, judgment for defendant is affirmed in part where plaintiff violated his duty to ensure that his actions did not prolong a violation of the stay that resulted from a state court motion seeking relief against defendant that plaintiff filed prior to the bankruptcy.  However, the damages award entered by the district court is vacated where defendant could recover as actual damages only those attorney's fees related to enforcing the automatic stay and remedying the stay violation, not the fees incurred in prosecuting the bankruptcy adversary proceeding in which he pursued his claim for those damages.

Read Sternberg v. Johnston, No. 07-16870

Appellate Information

Argued and Submitted March 6, 2009

Filed October 1, 2009

Judges

Opinion by Judge Clifton

Counsel

For Appellants:

Michael W. Carmel, Phoenix, AZ

For Appellee:

Ronald J. Ellett, Phoenix, AZ

In an appeal from a bankruptcy court order declining to discharge debtor's student loan in bankruptcy under 11 U.S.C. section 523(a)(8) based on undue hardship, the order is vacated where it was unclear from the record how the bankruptcy court arrived at its conclusion regarding debtor's ability to make the required monthly payments.

Read Craig v. Educational Credit Management Corp., No. 08-15451

Appellate Information

Argued and Submitted June 12, 2009

Filed August 26, 2009

Judges

Opinion by Judge Trott

Counsel

For Appellant:

Kasey C. Nye, Quarles & Brady, LLP, Tucson, AZ

For Appellee:

Madeleine C. Wanslee, Gust Rosenfeld P.L.C., Phoenix, AZ

In an appeal from the Bankruptcy Court's refusal to approve Debtor's Chapter 13 plan, the Bankruptcy Court's order is affirmed, where an above-median income debtor seeking bankruptcy relief under Chapter 13 may not deduct from his projected disposable income a vehicle "ownership cost" for a vehicle he owns free and clear.

Read Ransom v. MBNA Am. Bank, N.A., No. 08-15066

Appellate Information

Argued and Submitted June 9, 2009

Filed August 14, 2009

Judges

Opinion by Judge Trott

Counsel

For Appellant:

Christopher P. Burke, Chris P. Burke & Associates, Las Vegas, NV

For Appellee:

Jeremy T. Bergstrom, Miles, Bauer, Bergstrom & Winters LLP, Henderson, NV

William Andrew McNeal, Becket & Lee LLP, Malvern, PA

In a bankruptcy adversary proceeding in which the debtor sought to rescind the sale of his foreclosed home, bankruptcy court's order rescinding the sale is affirmed where the buyer failed to notify the debtor of his rights under California's Home Equity Sales Contract Act, and the parties' settlement agreement did not affect this obligation.

Read Hoffman v. Lloyd, No. 08-15814

Appellate Information

Argued and Submitted May 15, 2009

Filed July 20, 2009

Judges

Opinion by Judge Schroeder

Counsel

For Appellant:

Jeffrey Goodrich, Goodrich & Associates, San Francisco, CA

For Appellee:

Dennis Davis, San Francisco, CA

In a bankruptcy adversary proceeding by former officers of the Debtor for indemnification in an underlying action for breach of fiduciary duty, the dismissal of the complaint is affirmed where the "insured versus insured" exclusion in the relevant policies barred coverage, because a post-bankruptcy debtor in possession acts in the same capacity as the pre-bankruptcy debtor for the purpose of directors and officers liability insurance.

Read Biltmore Assocs., LLC v. Twin City Fire Ins. Co., No. 06-16417

Appellate Information

Argued and Submitted May 15, 2008

Filed July 10, 2009

Judges

Opinion by Judge Kleinfeld

Counsel

For Appellant:

Andrew S. Jacob, Shughart Thompson & Kilroy, P.C., Phoenix, AZ

For Appellee:

Michael F. Perlis, Stroock & Stroock & Lavan LLP, Los Angeles, CA

In an appeal from the Bankruptcy Court's order denying an exemption for Debtor's assets in pension and 401(k) plans, the order is affirmed, where the retirement plans were not designed and used primarily for retirement purposes.

Read Cunning v. Rucker, No. 08-55652

Appellate Information

Argued and Submitted May 8, 2009

Filed June 26, 2009

Judges

Opinion by Judge Gould

Counsel

For Appellants:

Kyra E. Andrassy, Weiland, Golden, Smiley, Wang Ekvall & Strok, LLP, Costa Mesa, CA

For Appellees:

Mark Bradshaw, Shulman Hodges & Bastian LLP, Foothill Ranch, CA

Evan D. Smiley, Shulman Hodges & Bastian LLP, Foothill Ranch, CA

In a bankruptcy trustee's motion to avoid a transfer made pursuant to a state court judgment dissolving the Debtor's marriage, the order denying the trustee's motion is affirmed where, under Oregon law, a party who challenges a dissolution judgment must allege and prove "extrinsic fraud," and the trustee failed to do so.

Read Batlan v. Bledsoe, No. 07-35567

Appellate Information

Argued December 9, 2008

Decided June 25, 2009

Judges

Opinion by Judge Graber

Partial Concurrence and Partial Dissent by Judge O'Scannlain

Counsel

For Appellant:

Peter C. McKittrick, Farleigh Witt, Portland, OR

Christopher L. Parnell, Farleigh Witt, Portland, OR

For Appellee:

David B. Mills, Hammons & Mills, Eugene, OR