There are certain obligations that a bankruptcy petitioner can't shed in court.
For example, barring "undue hardship," your student loans will follow you. Forever.
Student loans, however, have nothing on child support. Courts are pretty committed to enforcing domestic support obligations. And that commitment to extends to guardian ad litem fees.
There are bad weeks, and then there are lose-your-job-and-file-for-bankruptcy bad weeks. Karen Auday had the unfortunate distinction of enduring the latter.
To make matters worse, Auday alleges that she was a victim of age discrimination. While that may be true, the Sixth Circuit Court of Appeals ruled last week that Auday can't sue her former employer because the claim now belongs to her bankruptcy estate.
Seriously, this woman can't catch a break.
You may have noticed that the unemployment rate is still pretty high. Though it's down from the October 2009 peak, companies continue to lay off workers.
The Sixth Circuit Court of Appeals issued an opinion last week that could ease the financial burden on flailing businesses facing layoffs: Friday, the court ruled that severance pay is not subject to FICA taxes, Thomson Reuters News & Insight reports.
People might enjoy reading bankruptcy cases if more of those cases included money buried on a golf course.
In what the Sixth Circuit Court of Appeals characterizes as “a fact pattern befitting a John Grisham novel,” FBI agents found $250,000 of “fraudster” A. William Erpenbeck, Jr.’s cash stashed in a cooler on a golf course outside Cincinnati while Erpenbeck was serving a 300-month sentence in federal prison.
Thursday, the Sixth Circuit ruled that the feds couldn’t keep the cash because they didn’t give proper notice of their intent to seize the money for restitution.
Int'l Dairy Foods Ass'n v. Boggs, 09-3515, concerned a challenge to the district court's grant of summary judgment in favor of the state of Ohio on all but one of plaintiffs' claims, in a suit brought by two separate dairy-processor trade organizations, challenging a regulation adopted by the Ohio Department of Agriculture (ODA), designed to regulate labeling of dairy products that reflect the nonuse of artificial hormones.
Wilson v. Rees, 09-6306, concerned a challenge to the district court's dismissal, as untimely, of an inmate's 42 U.S.C. section 1983 suit challenging Kentucky's lethal injection protocol under the Eighth and Fourteenth Amendments. In affirming, the court held that Bowling v. Ky. Dept. of Corrections, 301 S.W.3d 478, (Ky. 2009), and its aftermath do not disrupt the district court's holding that defendant's complaint is barred by the statute of limitations.
White v. Wyndham Vacation Ownership, Inc., 09-5626, concerned a challenge to the district court's grant of summary judgment in favor of the defendants based on a claim of judicial estoppel, in plaintiff's sexual harassment suit against her former employers seeking $250,000 in compensatory damages and $1 million in punitive damages. In affirming, the court held that plaintiff asserted a position before the bankruptcy court that was contrary to the position that she asserted before the district court as she did not disclose her sexual harassment claim against defendants in her initial bankruptcy filings. The court also held that the plaintiff had a motive to conceal and knowledge of the factual basis of her harassment claim, and the evidence plaintiff presented of her attempts to advise the bankruptcy court and the trustee of her harassment claim does not excuse her initial omission.
US v. Allen, 09-5178, concerned a challenge to the district court's denial of defendant's motion to reduce and modify his sentence for his convictions for possession and intent to distribute over five grams of cocaine base and other related crimes. In affirming the denial, the court held that the district court properly concluded that it lacked the authority in proceedings under section 3582(c)(2) to sentence the defendant below the bottom of the amended Guidelines range or to entertain a challenge under Booker to the court's calculation of the original Guideline range.
Merritt v. Int'l Ass'n of Machinists & Aerospace Workers, 09-1563, concerned a labor suit brought by Northwest Airlines Quality Service Agents (QSAs) against a labor organization and others, claiming that between 2000 and 2006 defendants breached their duty of fair representation relating to the negotiation and administration of contracts on behalf of QSA employees and in handling their dues-objector status requests. In affirming the district court's grant of defendants' motion for summary judgment and an order issuing Rule 11 sanctions against the plaintiffs' counsel for failing to adequately investigate the law and facts before filing their complaint, the court held that the mere fact that the plaintiffs were a minority group within their union organization and were adversely affected by the actions of the union does not establish that the union acted with hostile or discriminatory intent. Court also held that the plaintiffs have failed to submit any evidence that the defendant improperly handled the dues-objector status requests; and 3) Rule 11 sanctions were properly imposed.
In re: Darrohn, 09-5499, concerned the bankruptcy court's calculation of the debtors' projected disposable income in approving the proposed plan in Chapter 13 proceedings. In reversing and remanding in light of the Supreme Court's recent decision in Hamilton v. Lanning, --S.Ct.---, 78 U.S.L.W. 4518, 2010 WL 2243704 (No. 08-998 June 7, 2010), the court held that the bankruptcy court erred when it determined that it was required to use the income calculated on Form B22C, which was derived from the six-month look-back formula, rather than debtors' current monthly income. Court also held that the bankruptcy court erred in failing to account for the debtors' intent to surrender properties securing the mortgages in considering reasonable necessary monthly expenses.
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In re Johnson, No. 08-5088, concerned a challenge to the Bankruptcy Appellate Panel's (BAP)judgment for the trustee and against the lender of the debtor's pick-up truck, in Chapter 7 proceedings. In affirming the judgment of the BAP, the court held that the enabling loan exception of 11 U.S.C. section 547(c)(3) does not protect the lender's interest in the pick-up truck from avoidance as a preferential transfer because the perfection of the lender's security interest in the truck did not occur until March 7, 2005, when the security interest was actually noted on the certificate of title.
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Berhane v. Holder, No. 09-3153, concerned a challenge to the BIA's affirmance of IJ's denial of an application for asylum and related relief by a citizen and a native of Ethiopia, on the ground that throwing rocks at the Ethiopian police constituted a serious nonpolitical crime. In vacating the denial, the court held that a decision committed to the Attorney General's discretion by regulation does not satisfy the prerequisite that Congress specify by statute the Attorney General's discretion over an issue. Furthermore, the court held that the Board's determination that the criminal nature of petitioner's actions "outweighed their political components is without sufficient reasons.
Swanson v. DeSantis, No. 09-1501, concerned habeas proceedings arising from a conviction for killing a pedestrian while driving under the influence. In dismissing an appeal of the district court's grant of the petition in part in determining that defendant had failed to exhaust her jury instruction claim but had exhausted her Blakely claim, the court held that it lacks jurisdiction as the district court's decision to grant or deny a stay of its own proceedings is not ordinarily a final decision for the purposes of section 1291.
Gor v. Holder, No. 08-3859, concerned a petition for review of a removal order of an Indian citizen, entered on the ground that he is an alien convicted of child abandonment. The court dismissed the matter as it lacked jurisdiction to review the original BIA decision as well as the denial of the motion to reopen sua sponte.
Bennett v. MIS Corp., No.08-2567, concerned a challenge to the district court's order dismissing the complaint for failure to state a claim in air traffic controllers' suit alleging personal injuries based on their exposure to toxic mold at the airport. First, the court affirmed in part the judgment of the district court in concluding that the first mold remediation firm's section 1442(a)(1) removal was proper and the district court therefore possessed subject matter jurisdiction over plaintiffs' claims. Next, the court held that the Fultz rule of law forecloses plaintiffs' claims against the consulting defendants as they did not assume the FAA's duty to provide a reasonably safe working environment when the FAA hired them to provide consulting services.
However, the court reversed the part the judgment of the district court dismissing the second mold remediation firm in concluding that the firm's use of an allegedly unapproved biocide gave rise to a duty under Michigan law to foreseeable persons that was "separate and distinct" from its contract with the FAA. Finally, the court held that the district court did not err when it denied plaintiffs' motion for leave to file an amended complaint with respect to their proposed common law fraud claim as futile.
In re: Metro. Gov of Nashville, No. 09-5511, concerned a defendants' petition for a writ of mandamus, arising from plaintiffs' racial discrimination suit against their employer. First, the court dismissed defendant's appeal of the district court's grant of plaintiffs' motion for a new trial as such an order is generally not appealable as the order does not qualify as a "final decision" under 28 U.S.C section 1291. In addition, the court rejected the defendant's contention that jurisdiction exists to consider its appeal by means of reviewing the district court's purported finding of alleged attorney misconduct. Next, the court granted the petition in part to the extent of directing the district court to rule on the outstanding disparate-impact claims within 90 days from the filing of this opinion and denied remainder of the petition.
Nat'l Union Fire Ins. Co. v. VP Bldg., Inc., No. 08-4537, concerned a challenge to the district court's affirmance of the bankruptcy court's decision disallowing an insurer's petition for administrative expenses, on the ground that the claim was not "actual" and did not benefit the estate. In affirming the decision, the court held that, pursuant to In re HNRC Dissolution Co., 371 B.R. 210, (E.D. Ky. 2007), the insurer's request for reimbursement is not an "actual" expense within the meaning of the bankruptcy code.
White Oak Prop. Dev., LLC v. Washington Township, No. 09-3527, concerned a housing developer's suit against a town and its trustees, alleging various claims of constitutional violations. In affirming the district court's grant of defendants' motion for summary judgment, the court held that the plaintiff's attempt to void the Zoning Regulation for vagueness fails. The court also held that the district court properly granted summary judgment to defendants on the FHA claim, and on the Equal Protection claim as plaintiff has failed to demonstrate the Zoning Regulation's prohibition against multiple-family dwellings, on its face, discriminates on the basis of race. Lastly, the court held that plaintiff's substantive due process claim was properly dismissed as it did not have a protected property interest in developing its property in accordance with its development plan.
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