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Recent Ninth Circuit Case Summaries

ALASKA

Case Name:

In re Jeffrey Arnold Fleetwood, 2013 WL 2178096 (Bkrtcy.D.Alaska)

Case Summary:

On May 17, 2013, the United States Bankruptcy Court for the District of Alaska issued its Memorandum Decision on Motion for Summary Judgment granting summary judgment in favor of the plaintiff and denying the defendant's cross motion.

Notable Points to Bankruptcy Practitioner:

Plaintiff sought summary judgment to establish that her debts were non dischargeable pursuant to 11 U.S.C. § 523(a)(6).  In what seems to be a bit of a hot issue throughout the Ninth Circuit, the Court was asked to determine the collateral estoppel effect of a prior state court civil and criminal judgment.  Here, the prior judgment was initially rendered pursuant a default judgment; however, the State Court granted Defendant's motion to set aside entry of default and a contested hearing was held on damages and a default hearing on liability.  The Defendant attended the hearing.  In the State Court's Findings of Fact and Conclusions of Law, the Court found by clear and convincing evidence the Defendant had sexually assaulted a young girl and it was done intentionally with reckless disregard for the plaintiff's welfare.  The State Court also found the default finding on liability would stand.  The Bankruptcy Court held that under Alaska law the Defendant was collaterally estopped from relitigating these issues and the debt was non-dischargeable, including the attorney fees and punitive damages awarded.

Case Name:

In re Nathan B. Makowski, 2013 WL 2154788 (Bkrtcy.D.Alaska)

Case Summary:

On May 16, 2013, the United States Bankruptcy Court for the District of Alaska issued its Memorandum on Motion for Sanctions against creditor, Greater Nevada Credit Union, finding that Greater Nevada willfully violated the automatic stay and awarding attorney fees and costs to the debtor.

Notable Points to Bankruptcy Practitioner:

Greater Nevada repossessed the debtor's truck prior to his Chapter 13 bankruptcy petition.  After filing the petition, Debtor's counsel called the tow truck company seeking release of the vehicle.  Shortly thereafter, Debtor's counsel called Greater Nevada demanding release of the vehicle.  Greater Nevada requested four days to discuss with counsel and get back to Debtor's counsel.  On the fourth day, an employee of Greater Nevada informed Debtor's counsel they would not return the vehicle.  That same day Debtor's counsel filed a motion compelling release of the vehicle and seeking damages and sanctions.  The next day Greater Nevada released the vehicle.  The four-day period was reasonable delay under the circumstances to discuss with counsel; however, Greater Nevada violated the stay when it refused to return the vehicle even though after the motion was filed they returned the vehicle.  The Court reasonably awarded attorney fees and costs, but not punitive damages for the willful violation.

ARIZONA

Case Name:

In re Peter F. Bronson and Sherri L. Bronson, 2013 WL 2350810 (9th Cir.BAP) (Ariz.))

Case Summary:

On May 29, 2013, the United States Bankruptcy Appellate Panel of the Ninth Circuit dismissed appellant's appeal of the Bankruptcy Court's denial of a Rule 60(b) motion seeking reconsideration of the Relief from Order of the Stay as moot.

Notable Points to Bankruptcy Practitioner:

No notable points of interest to the Bankruptcy Practitioner.

Case Name:

In re Leslie L. Gifford, 2013 WL 2297070 (Bkrtcy.D.Ariz.)

Case Summary:

On May 23, 2013, the United State Bankruptcy Court for the District Court of Arizona issued its Memorandum Decision granting plaintiff's motion for summary judgment.

Notable Points to Bankruptcy Practitioner:

Plaintiff, in an adversary proceeding, sought declaratory relief that they held a first position secured lien against property of the Debtor, which they received pursuant to an arbitration award.  Debtor answered and counterclaimed on the same issues they had raised in prior State Court proceedings.  Shortly thereafter, Plaintiff moved for summary judgment.  The conflict arose from the fact that the Debtor owned 95% of a piece of property for which a portion of a building owned by Plaintiff was situated. Plaintiff also owned the other 5% of the property.  The parties had duked it out in State Court, which resulted in a settlement agreement; however, a dispute arose out of the Settlement agreement and eventually Plaintiffs received a substantial arbitration award.  The issues for the Court to decide were: (1) was the arbitration award entitled to preclusive effect and if so, should plaintiff's claims be allowed; (2) if the claims are allowed, would the Debtor be able to sell the Property despite plaintiff's 5% interest; and (3) could the Debtor sell the building without plaintiff's consent.  The Court correctly gave the arbitration award preclusive effect, citing the recent BAP decision, In re Child.  As for the sale of the lot, 11 U.S.C. § 363(h) permits such a sale if the Debtor can meet the requirements; however, the Debtor cannot sell property that is not property of the estate.

Case Name:

In re Mariano J. Raso, 2013 WL 2027651 (Bkrtcy.D.Ariz.)

Case Summary:

On May 13, 2013, the United States Bankruptcy Court for the District of Arizona issued its Memorandum Clarifying and Supplementing Ruling Made in Open Court on February 11, 2013 granting plaintiff a non dischargeable judgment pursuant to 11 U.S.C. 523(a)(2).

Notable Points to Bankruptcy Practitioner:

No notable points of interest for the bankruptcy practitioner.

Case Name:

In re Two Brothers XI, Inc., et al., 2013 WL 1856332 (Bkrtcy.D.Ariz.)

Case Summary:

On May 2, 2013, the United States Bankruptcy Court for the District of Arizona issued its Order Denying Application for Allowance of Superpriority Claim.

Notable Points to Bankruptcy Practitioner

The Honorable Collins does an excellent job parsing the statutory code and applying the facts in a simple and straightforward manner.  The secured creditor contended they were entitled to a superpriority administrative expense claim because the adequate protection provided by the Debtors was insufficient to cover the actual decrease in value.  However, the secured creditor failed to provide for a value of the collateral on the Petition Date.  The case is well worth the read as it addresses the statutory basis and supporting case law for the allowance of superpriority administrative expense claims and again provides insight into one of our newest Judges in Arizona.

SOUTHERN DISTRICT OF CALIFORNIA

Case Name:

In re Imperial Capital Bancorp., Inc., 2013 WL 2149982 (S.D.Cal.)

Case Summary:

On May 16, 2013, the United States District Court for the Southern District of California issued its Order Regarding Motions for Summary Judgment and granting summary judgment for plaintiff-debtor and denying defendant's motion for summary judgment.

Notable Points to Bankruptcy Practitioner:

The motions concerned one question:  Whether approximately 30 million dollars of income tax refunds were property of the estate or the Defendant.  In a well-written opinion dealing with complex banking regulations, the Honorable Bencivengo does an excellent job writing a clear and concise order.

Case Name:

In re Shanel Ann Stasz, 2013 WL 2242771 (C.A.9)

Case Summary:

On May 22, 2013, the United States Court of Appeals for the Ninth Circuit affirmed the Bankruptcy Appellate Panel judgment affirming the Bankruptcy Court's order compelling turnover of property of the estate.

Notable Points to Bankruptcy Practitioner:

No notable points of interest to the Bankruptcy practitioner.

Case Name:

In re Felipe Dabao Zulueta, Jr., 2013 WL 2242996 (C.A.9)

Case Summary:

On May 22, 2013 the United States Court of Appeals for the Ninth Circuit affirmed the Bankruptcy Appellate Panel's judgment affirming the Bankruptcy Court's order denying Debtor's objection to a secured creditor's proof of claim.

Notable Points to Bankruptcy Practitioner:

No notable points of interest for the Bankruptcy practitioner.

Case Name:

In re Josef S. Friwat, 2013 WL 2177372 (C.A.9)

Case Summary:

On May 21, 2013 the United States Court of Appeals for the Ninth Circuit affirmed the United State District Court for the Southern District of California's judgment affirming the Bankruptcy Court's order authorizing the sale of real property.

Notable Points to Bankruptcy Practitioner:

No notable points of interest to the Bankruptcy practitioner.

Case Name:

In re Andrew Ralph Bello, Sr., 2013 WL 2367796 (9th Cir.BAP (Cal.))

Case Summary:

On May 30, 2013, the United States Bankruptcy Appellate Panel of the Ninth Circuit affirmed the United States Bankruptcy Court for the Southern District of California's order dismissing the Debtor's second amended complaint asserting numerous claims related to debtor's default on his home loan.

Notable Points to Bankruptcy Practitioner:

No notable points of interest for the Bankruptcy Practitioner.

Case Name:

In re Steven Harry Lucore, Sr. and Judy Lynne Lucore, 2013 WL 2367800 (9th Cir.BAP (Cal.))

Case Summary:

On May 30, 2013, the United States Bankruptcy Appellate Panel of the Ninth Circuit affirmed the United States Bankruptcy Court for the Southern District of California's order denying debtor's motion for reconsideration of the Bankruptcy Court's order granting relief from the automatic stay.

Notable Points to Bankruptcy Practitioner

No notable points of interest to the Bankruptcy practitioner.

IDAHO

Case Name:

In re Parrott Broadcasting Limited Partnership, 2013 WL 1969314 (Bkrtcy.D.Idaho)

Case Summary:

On May 13, 2013, the United States Bankruptcy Court for the District of Idaho sustained the Chapter 7 Trustee's objection to a creditor's amended proof of claim.

Notable Points to Bankruptcy Practitioner:

No notable points of interest to the Bankruptcy practitioner.

Case Name:

In re Larson Land Company, LLC, 2013 WL 1909583 (D.Idaho)

Case Summary:

On May 8, 2013, the United States Bankruptcy Court for the District of Idaho issued its Memorandum of Decision granting Debtor's counsel's amended application for compensation.

Notable Points to Bankruptcy Practitioner:

No notable points of interest to the Bankruptcy Practitioner.

ALASKA

Case Name:

In re Barbara W. Williams and Bruce W. Williams, 2013 WL 1089262 (Bkrtcy.D.Alaska)

Case Summary:

On March 13, 2013, the United States Bankruptcy Court for the District of Alaska granted a creditor's motion seeking relief from the automatic stay nunc pro tunc.

Notable Points to Bankruptcy Practitioner:

In an interesting set of facts, the Bankruptcy Court ordered the automatic stay was not in effect during a gap period between dismissal of a Chapter 13 case and its reinstatement of the case pursuant to a motion of reconsideration which the Court granted.  The debtors initially filed a Chapter 7 petition; however, proceeding pro se, the debtors voluntarily converted the case to a Chapter 13.  Unfortunately, the debtors failed to timely file a plan and means test, and eventually, after multiple extensions to file a plan and means test, the Court dismissed the case.  Creditor continued with the rescheduled foreclosure and after the case was dismissed proceeded with the non judicial foreclosure.  Approximately two weeks later the Court granted the debtors motion for reconsideration and reinstated the case.  The debtors ultimately argued that on equity grounds the foreclosure should be vacated.  However, because the debtors had received sufficient notice for due process reasons, the Court determined the automatic stay indeed terminated upon dismissal and although the case was reinstated, they stay could not retroactively apply to this gap period.

Case Name:

In re John A. Shaubach and Sarha Shaubach, 2013 WL 950241 (Bkrtcy.D.Alaska)

Case Summary:

On March 8, 2013, the United States Bankruptcy Court for the District of Alaska denied the debtor's motion for partial summary to strip down creditor's first deed of trust under 11 U.S.C. § 1322(b)(2).

Notable Points to Bankruptcy Practitioner:

Section 1322(b)(2) provides that a Chapter 13 plan may “modify the rights of holders of secured claims, other than a claim secured by real property that is the debtor's principal residence . . ..”  Here, the debtors argued that because their Deed of Trust had some limiting language regarding residency requirements, they had the ability to strip down the creditor's lien.  Because the debtors never moved out and continued to use the residence as their principal residence § 1322(b)(2) precluded this action.  Interestingly enough, as a practitioner, it may be advisable to review this case and its facts and if the peg fits, advise the debtors to move out of their residence.

Case Name:

In re Denali Family Services, 2013 WL 1755481 (Bkrtcy.D.Alaska)

Case Summary:

On April 24, 2013, the United States Bankruptcy Court for the District of Alaska granted the debtor-in-possession's motion asserting the appointment of a patient care ombudsmen pursuant to 11 U.S.C. 333(a)(1) was unnecessary.

Notable Points to Bankruptcy Practitioner:

No notable points for the bankruptcy practitioner.

Case Name:

In re David B. Eimers and Kelli L. Eimers, 2013 WL 1739645 (Bkrtcy.D.Alaska)

Case Summary:

On April 23, 2013, the United States Bankruptcy Court for the District of Alaska denied debtor's motion for entry of default without prejudice for failure to properly serve a creditor pursuant to Federal Rule of Bankruptcy Procedure 7004(h).

Notable Points to Bankruptcy Practitioner:

No notable points for the bankruptcy practitioner.

ARIZONA

Case Name:

In re Marshall L. Rader and Barbara J. Rader, 2013 WL 1176069 (9th Cir.BAP) (Ariz.))

Case Summary:

On March 8, 2013, the United States Bankruptcy Appellate Panel of the Ninth Circuit affirmed the United States Bankruptcy Court for the District Court of Arizona, and held an Arizona statute that required the filing of an action to collect on a deficiency within 90 days of the non judicial foreclosure was in conflict and, therefore, preempted by bankruptcy law.

Notable Points to Bankruptcy Practitioner:

In a well reasoned opinion, the Panel found that the automatic stay and the discharge injunction preempted the Arizona statute, as it was impossible for the creditors to comply with Arizona's statutory requirement without violating the stay or the injunction; and it also was preempted because requiring the creditors to pursue a separate deficiency action would have been contrary to the Bankruptcy Code's orderly, efficient, and comprehensive claims administration process and the Code's framework for determining the validity and secured status of claims.

Case Name:

In re Rizalina A. Morris, 2013 WL 1187817 (Bkrtcy.D.Ariz.)

Case Summary:

On March 20, 2013, the United State Bankruptcy Court for the District Court of Arizona denied the Trustee's objection to the Debtor's claimed exemption of both her and her estranged husband's interest in an automobile while still allowing the non-filing estranged husband to keep as his sole and separate property another automobile.

Notable Points to Bankruptcy Practitioner:

No notable points for the Bankruptcy practitioner.

Case Name:

In re Frank Matthew Hogle and Charlene Anne Hogle, 2013 WL 1001652 (Bkrtcy.D.Ariz.)

Case Summary:

On March 13, 2013, the United States Bankruptcy Court for the District of Arizona granted, in part, and denied, in part, the Plaintiff's motion for partial summary judgment determining that material misrepresentations were made in connection with promoting investments in violation of A.R.S. § 44-1991; and, therefore, several of plaintiff's claims were deemed non dischargeable.

Notable Points to Bankruptcy Practitioner:

No notable points for the bankruptcy practitioner.

Case Name:

In re Mortgages Ltd., 2013 WL 1003450 (Bkrtcy.D.Ariz.)

Case Summary:

On March 12, 2013, the United States Bankruptcy Court for the District of Arizona denied plaintiff's motion to remand.

Notable Points to Bankruptcy Practitioner

In another well-written and well-reasoned opinion, the Honorable Randolph Haines addressed the close nexus test for post confirmation related to jurisdiction.  Here, the plaintiff's after having litigated throughout the Bankruptcy and to the District Court, and essentially losing at every turn, filed state court causes of action, which really stemmed from their original problems under the Plan.  The Court found that the plaintiff's complaint concerned the interpretation, implementation, consummation, execution and administration of the confirmed plan and satisfied the close nexus test for related to jurisdiction and therefore denied plaintiff's motion to remand.

Case Name

In re Adrian Garcia, 2013 WL 829188 (Bkrtcy.D.Ariz.)

Case Summary:

On March 6, 2013 the United States Bankruptcy Court for the District of Arizona sustained the trustee's objection to the debtor's exemption in a 2010 Volkswagen Toureg.

Notable Points to Bankruptcy Practitioner:

The Trustee objected to the exemption because he intended to utilize his Trustee's avoidance powers to void the lien on the vehicle, recover the vehicle as property of the estate and utilize any resulting sale proceeds as property of the estate.  The Debtor attempted to assert that the lien had not been properly perfected and, therefore, no lien to avoid and allow the Trustee to pull the property back into the estate pursuant to 11 U.S.C. § 551.  The Court held that although the lien was unperfected and not valid against the creditors of the owner, it did not render the lien wholly invalid and the trustee could pursue his action to avoid the lien.

Case Name:

In re Strata Title, LLC, 2013 WL 1773619 (Bkrtcy.D.Ariz.)

Case Summary:

On April 25, 2013, the United States Bankruptcy Court for the District Court of Arizona denied a motion seeking declaratory relief brought by members of an LLC affiliated with the Debtor.

Notable Points to Bankruptcy Practitioner:

From what appears to be the Honorable Collins's first written opinion since taking the bench, it is a good read that should provide some insight on how Judge Collins may handle complex issues.  Here, the Court was asked to determine whether an operating agreement was an executory contract, whether the purchase option within the operating agreement was enforceable and finally, whether the Debtor's membership interests could be forcibly purchased absent an order lifting the stay.  In a factual and legally sound opinion, the Judge denied the member's motion.

Case Name:

In re Jeffrey Albert Kolb and Heidi Elaine Kolb, 2013 WL 1759426 (Bkrtcy.D.Ariz.)

Case Summary:

On April 24, 2013, the United States Bankruptcy Court for the District of Arizona granted debtor's motion for reconsideration determining that the debtor's spouse was an “innocent spouse” and, therefore, discharge as to the debtor's spouse was appropriate under 11 U.S.C. 727(a)(3), and that plaintiff's 11 U.S.C. § 523(a)(2)(a), (4), and (6) claim failed for lack of evidence.

Notable Points to Bankruptcy Practitioner:

In a brief and accurately drafted opinion, the Honorable Hollowell gets to the point.  United State Supreme Court please take note.

Case Name:

In re Anthony Tarantola, 2013 WL 1550526 (Bkrtcy.D.Ariz.)

Case Summary:

On April 11, 2013, the United States Bankruptcy Court for the District of Arizona issued its findings that Deutsche Bank National Trust Company was a holder of a promissory note, entitled to enforce the promissory note according to the terms of the Pool Servicing Agreement and the Mortgage Loan Purchase Agreement; however the Court also found that the American Home Mortgage Service, Inc. did not have standing to file the proof of claim on behalf of Deutsche Bank.

Notable Points to Bankruptcy Practitioner:

In a stinging opinion regarding conduct of counsel, this action arises mostly from issues stemming from the offspring of In re Veal, the Honorable Hollowell strikes again.  A must read and a good reminder to know your judge.

SOUTHERN DISTRICT OF CALIFORNIA

Case Name:

In re Jose Luis Andreu, 2013 WL 822165 (Bkrtcy.S.D.Cal.)

Case Summary:

On March 5, 2013, the United States Bankruptcy Court for the Southern District of California partially granted creditor's motion to lift the stay.

Notable Points to Bankruptcy Practitioner:

No notable points of interest for the bankruptcy practitioner.

Case Name

In re Cirilo E. Cruz and Juana Cruz, 2013 WL 1805603 (Bkrtcy.S.D.Cal.)

Case Summary:

On April 26, 2013, the United States Bankruptcy Court for the Southern District of California issued its memorandum decision asking the parties to file supplemental briefings on whether the Court should abstain from hearing the case.

Notable Points to Bankruptcy Practitioner:

In a well written opinion addressing complex jurisdictional and jurisprudential limitations of the Bankruptcy Court relating to the interpretation of state statutes and state case law and how they apply to deeds of trust and mortgages where errors in recording may invalidate a trustee's sale, the Honorable Mann expresses her frustration with the California Intermediate Courts as well as the California Supreme Court for what amounts to lack of action and leadership by the Supreme Court and the failure of the intermediate courts to apply the law correctly.

Case Name:

In re Samuel S. Solorzano, Jr., 2013 WL 1701749 (Bkrtcy.S.D.Cal.)

Case Summary:

On April 12, 2013 the United States Bankruptcy Court for the Southern District of California denied Debtor's ex parte motion for turnover of property.

Notable Points to Bankruptcy Practitioner:

No notable points for the bankruptcy practitioner.

Case Name:

In re Carol Karlovich, 2013 WL 1343622 (Bkrtcy.S.D.Cal.)

Case Summary:

On April 2, 2013 the United States Bankruptcy Court for the Southern District of California denied creditor's motion for approval of attorney fees related to its motion to compel and as prevailing party.

Notable Points to Bankruptcy Practitioner:

Because there was no statutory authority authorizing attorney's fees and no recognized exception such as bad faith, common benefit, or the vindication of statutory rights of all citizens, the Court must adhere to the constraints recognized by the United States Supreme Court in Alyeska Pipeline Service Company v. The Wilderness Society.

IDAHO

Case Name:

In re Daniel Coy Burch and Shawnda Raye Burch, 2013 WL 951707 (Bkrtcy.D.Idaho)

Case Summary:

On March 11, 2013, the United States Bankruptcy Court for the District of Idaho sustained the trustee's objection to a creditor's proof of claim.

Notable Points to Bankruptcy Practitioner:

The creditor had filed a proof of claim for a business debt for which that business was in the process of winding up, but not in bankruptcy.  Because the debt owed the creditor was from the business entity, and not by the individual debtors in bankruptcy, the motion was sustained.

Case Name:

In re Wayne N. Beckley and Wendy M. Beckley, 2013 WL 865541 (D.Idaho)

Case Summary:

On March 7, 2013, the United States Bankruptcy Court for the District of Idaho denied Defendant's motion to amend or alter a judgment.

Notable Points to Bankruptcy Practitioner:

No notable points for the bankruptcy practitioner.

Case Name:

In re Danny W. Aden and Rozell J. Aden, 2013 WL 1789725 (D.Idaho)

Case Summary

On April 26, 2013, the United States District Court for the District of Idaho denied in part, found moot in part, and denied without prejudice in part a motion to approve a compromise of controversy and to withdraw the reference.

Notable Points to Bankruptcy Practitioner:

No notable points for the bankruptcy practitioner.

Case Name:

In re Allen L. Wisdom, 2013 WL 1693215 (D.Idaho)

Case Summary:

On April 18, 2013, the United States District Court for the District of Idaho affirmed the Bankruptcy Court's Order approving the Chapter 7 Trustee's Final Report.

Notable Points to Bankruptcy Practitioner:

Debtor had objected to the final report arguing the Trustee wrongfully liquidated five of his life insurance policies and committed fraud and breach of fiduciary duties.  Unfortunately, for the Debtor, he only had claimed the cash surrender value of the policy under Idaho's statutory code and not the whole policy.  As to the other claims, clearly, the Court affirmed as a trustee has no fiduciary duty to the debtor.

Case Name:

In re Old Cutters, Inc., 2013 WL 1686676 (D.Idaho)

Case Summary:

On April 18, 2013, the United States Bankruptcy court for the District of Idaho granted Plaintiff, Old Cutters, Inc.'s motion for attorneys' fees and costs; however, the Court denied Plaintiff, Mountain West Bank's motion for attorneys fees' as Mountain West was not party to a commercial transaction with the Defendant, the City of Hailey, for purposes of an award of attorneys fees under Idaho's Statutory Code.

Notable Points to Bankruptcy Practitioner:

No notable points for the bankruptcy practitioner.

Case Name:

In re Leonard Otto Wallace and Pamela R. Wallace, 2013 WL 1681780 (D.Idaho)

Case Summary:

On April 17, 2013, the United States Bankruptcy Court for the District of Idaho denied the Trustee's motion for default judgment on fraudulent transfer claims for failure to plead a claim that entitled him to relief; however, the Court granted the Trustee's motion for default on his claim for an unauthorized post petition transfer claim and on a claim for declaratory judgment revoking certain trusts of the debtor.

Notable Points to Bankruptcy Practitioner:

No notable points for the bankruptcy practitioner.

Case Name:

In re DBSI, Inc., et al., 2013 WL 1498365 (D.Idaho)

Case Summary:

On April 11, 2013, the United States Bankruptcy Court for the District of Idaho denied defendant's Rule 12(b)(7) and Rule 12(c) motion and ordered the plaintiff to clarify his jurisdictional position.

Notable Points to Bankruptcy Practitioner:

A lengthy and fact intensive analysis but noteworthy for the position the Court takes as to pretrial motions and the deference given to the pleaded facts.

Case Name:

In re Michael Eric Wolfe and Melissa Marie Wolfe, 2013 WL 1410385 (D.Idaho)

Case Summary:

On April 8, 2013, the United States Bankruptcy Court for the District of Idaho granted the Trustee's motion for turnover of funds in Debtor's checking account on the date of the bankruptcy petition.

Notable Points to Bankruptcy Practitioner:

In a cautionary tale for the debtor, be careful when you file that petition.  The debtors owed a debt to the IRS.  They borrowed money to pay that debt, deposited those funds in their checking account and wrote a check to the IRS.  A week later they filed their bankruptcy petition. However, the check, although deposited into the IRS account, had not been debited from the debtor's checking account.   The Debtor's indicated in their schedules that their banking account had only .99 cents as of the petition date; however, the bank statement later acquired by the Trustee showed $8300.  The Court held, that although harsh, Congress had drawn a bright line for which the debtors failed to adhere.

ALASKA

Case Name:

In re Maria Elena Gamboa NICDAO, 2013 WL 29809 (C.A.9 (Alaska))

Case Summary:

On January 3, 2013, the United States Court of Appeals for the Ninth Circuit affirmed the United States District Court for the District of Alaska's judgment dismissing Debtor's second appeal from the bankruptcy court's amended judgment in her Chapter 7 adversary proceeding because there were no additional issues for the district court to review and the district court was precluded from reconsidering previously decided issues.

Notable Points to Bankruptcy Practitioner:

No notable points of interest to the Bankruptcy Practitioner.

ARIZONA

Case Name:

In re James Gray Bennitt, Jr. and Kelley Lea Bennitt, 2013 WL 364327 (Bkrtcy.D.Ariz.)

Case Summary:

On January 30, 2013, the United States Bankruptcy Court for the District of Arizona issued its Memorandum Decision holding Debtors in civil contempt for failure to comply with a consent order and failure to turnover proceeds to the estate.

Notable Points to Bankruptcy Practitioner:

No notable points of interest to the Bankruptcy Practitioner.

Case Name:

In re Jesus Padilla, 2013 WL 392448 (Bkrtcy.D.Ariz.)

Case Summary:

On January 30, 2013, the United States Bankruptcy Court for the District of Arizona issued its Memorandum Decision finding that Deutsche Bank's Notice of Election pursuant to 11 U.S.C. § 1111(b) was filed timely prior to the conclusion of the hearing on approval of the disclosure statement.

Notable Points to Bankruptcy Practitioner:

In a rather unusual but not very notable factual circumstance, the Court found the Debtor added for the first time material information to the second amended disclosure statement after Deutsche Bank had made its election; and, therefore, the Court concluded Deutsche Bank's election was made timely.

Case Name:

In re Caron Teresa Fisher, 2013 WL 241024 (Bkrtcy.D.Ariz.)

Case Summary:

On January 22, 2013, the United States Bankruptcy Court for the District of Arizona issued its Memorandum Decision finding that only a small portion of Plaintiff's breach of fiduciary claim was non-dischargeable.

Notable Points to Bankruptcy Practitioner:

Defendant as the attorney in fact for her deceased father and acting as his probate personal representative wrote several checks to herself and other family members in both her capacity as the attorney in fact and at the direction of her father before his death.  Because the Plaintiff failed to meet the elements required for a non-dischargeability claim under 11 U.S.C. § 523(a)(4), namely the elements for breach of the fiduciary duty and embezzlement, except as to a small portion of the funds, the Defendant was allowed a majority of her discharge.

Case Name:

In re Manstone Countertops, LLC, 2013 WL 209305 (Bkrtcy.D.Ariz.)

Case Summary:

On January 17, 2013, the United States Bankruptcy Court for the District of Arizona issued its Memorandum Decision removing Robert M. Cook as attorney for the debtors out-of-possession.

Notable Points to Bankruptcy Practitioner:

No notable points of interest to the Bankruptcy Practitioner.

Case Name:

In re VAL-MID Associates, L.L.C., 2013 WL 139278 (Bkrtcy.D.Ariz.)

Case Summary:

On January 9, 2013, the United States Bankruptcy Court for the District of Arizona issued its Memorandum Decision denying confirmation of the Debtor's plan of reorganization because the plan did not have an impaired accepting class.

Notable Points to Bankruptcy Practitioner:

The Debtor's plan of reorganization provided that Class 2 secured tax claims would be transferred to the secured creditor with no obligation for the secured creditor to pay the taxes; however, Pima County would still retain its liens as well as its rights and remedies to enforce the liens, and therefore, under Arizona law, Pima County's statutory rights would remain the same and unaltered.  The Court noted there is a split of authority on whether a secured tax claim can be impaired.  The Court reasoned that it did not need to address this issue because the claims were still unimpaired.

Case Name:

In re Jose Blanco and Ramona Blanco, 2013 WL 140213 (Bkrtcy.D.Ariz.)

Case Summary:

On January 9, 2013, the United States Bankruptcy Court for the District of Arizona issued its Memorandum Decision finding that the Defendant willfully violated the discharge injunction by pursuing Plaintiffs and insisting upon post-discharge execution of a second reaffirmation agreement and attempting to very aggressively enforce the second post-discharge reaffirmation agreement such that the Plaintiffs were required to retain counsel in order to stop Defendant's unlawful conduct.

Notable Points to Bankruptcy Practitioner:

Although evidence was lacking to allow the Court to sufficiently determine allowable damages, the Court directed the Plaintiff to file a detailed statement of allowable damages.  It is hoped by this commentator that damages will be allowed to deter this type of conduct because one doubts this is the first time this Defendant has acted in this manner.

Case Name:

In re Everado Quintero-Favela, 2013 WL 74377 (Bkrtcy.D.Ariz.)

Case Summary:

On January 7, 2013, the United States Bankruptcy Court for the District of Arizona issued its Memorandum Decision granting the Trustee's motion for disgorgement of excess or unreasonable fees paid to Debtor's attorney.

Notable Points to Bankruptcy Practitioner:

No notable points of interest to the Bankruptcy Practitioner.

Case Name:

In re Ruben Villalobos and Kim Villalobos, 2013 WL 74378 (Bkrtcy.D.Ariz.)

Case Summary:

On January 7, 2013, the United States Bankruptcy Court for the District of Arizona issued its Memorandum Decision granting the Trustee's motion for disgorgement of excess or unreasonable fees paid to Debtor's attorney.

Notable Points to Bankruptcy Practitioner:

No notable points of interest to the Bankruptcy Practitioner.

Case Name:

In re Thomas Fernandez and Jamie Fernandez, 2013 WL 98520 (Bkrtcy.D.Ariz.)

Case Summary:

On January 7, 2013, the United States Bankruptcy Court for the District of Arizona issued its Memorandum Decision granting the Trustee's motion for disgorgement of excess or unreasonable fees paid to Debtor's attorney.

Notable Points to Bankruptcy Practitioner:

No notable points of interest to the Bankruptcy Practitioner.

Case Name:

In re Michelle Bryanna Perry, 2013 WL 66260 (Bkrtcy.D.Ariz.)

Case Summary:

On January 7, 2013, the United States Bankruptcy Court for the District of Arizona issued its Memorandum Decision granting the Trustee's motion for disgorgement of excess or unreasonable fees paid to Debtor's attorney.

Notable Points to Bankruptcy Practitioner:

No notable points of interest to the Bankruptcy Practitioner.

SOUTHERN DISTRICT OF CALIFORNIA

Case Name:

In re Conrad J. Kuiken, Jr., 2013 WL 203398 (9th Cir. BAP (Cal.))

Case Summary:

On January 4, 2013, the United States Bankruptcy Appellate Panel of the Ninth Circuit reversed the United States Bankruptcy Court for the Southern District of California and held that because the Debtor did not maintain a continuous interest in the property subject to a judicial lien from the time the lien fixed until the petition date, the Debtor was not entitled to avoid the lien based on a homestead exemption.

Notable Points to Bankruptcy Practitioner:

Addressing a matter of first impression in the circuit, whether under 11 U.S.C. § 522(f)(1), a creditor's judicial lien was avoidable where the Debtor had transferred his interest in real property subject to the judicial lien to an LLC in which he was a member and subsequently reacquired the property from the LLC prior to filing for bankruptcy.  The Court held that this transfer meant the Debtor had no interest in the interim and therefore had acquired a different interest, one for which the lien had already affixed when he later reacquired the property and therefore the Debtor did not meet the first prong of 522(f)(1) and was unable to avoid the lien.

Case Name:

In re Vilma Nioko, 2013 WL 298069 (Bkrtcy.S.D.Cal.)

Case Summary:

On January 22, 2013, the United States Bankruptcy Court for the Southern District of California issued its Order sustaining the chapter 13 trustee's objection to confirmation and denying the Debtor's plan of reorganization.

Notable Points to Bankruptcy Practitioner:

No notable points of interest to the Bankruptcy Practitioner.

Case Name:

In re David M. Anderson, 2013 WL 240748 (Bkrtcy.S.D.Cal.)

Case Summary:

On January 18, 2013, the United States Bankruptcy Court for the Southern District of California issued its Order on motions to estimate claim, for relief from stay, for protective order, and for Rule 2004 exams.

Notable Points to Bankruptcy Practitioner:

No notable points of interest to the Bankruptcy Practitioner.

Case Name:

In re Creative Capital Leasing Group, LLC, 2013 WL 211352 (Bkrtcy.S.D.Cal.)

Case Summary:

On January 17, 2013, the United States Bankruptcy Court for the Southern District of California issued its Order on Defendant's motion for partial summary judgment granting in part and denying in part.

Notable Points to Bankruptcy Practitioner:

The Trustee sued Defendants to recover as fraudulent conveyances payments the Debtors had made on various credit card accounts.  The Trustee moved for partial summary judgment.  The Defendants failed to produce evidence that the Debtor was obligated to make a majority of the payments.

Case Name:

In re Taffy E. Everhart, 2013 WL 176144 (Bkrtcy.S.D.Cal.)

Case Summary:

On January 16 2013, the United States Bankruptcy Court for the Southern District of California issued its Memorandum Decision overruling the objections of the secured creditor regarding the value of the Debtor's motor home and the feasibility of the plan and directed the Debtor to amend her plan of reorganization in accordance with the Memorandum Decision.

Notable Points to Bankruptcy Practitioner:

No notable points of interest to the Bankruptcy Practitioner.

Case Name:

In re Robert Otis Griffith, 2013 WL 176141 (Bkrtcy.S.D.Cal.)

Case Summary:

On January 15, 2013, the United States Bankruptcy Court for the Southern District of California issued its Order granting the Trustee's Motion to Enter into Short Sale Agreement.

Notable Points to Bankruptcy Practitioner:

No notable points of interest to the Bankruptcy Practitioner.

IDAHO

Case Name:

In re Shannon Ray Robnett, 2013 WL 268640 (Bkrtcy.D.Idaho)

Case Summary:

On January 24, 2013, the United States Bankruptcy Court for the District of Idaho issued its Memorandum of Decision denying the Trustee's Motion for Approval of Compromise because the motion failed to summarize or explain the compromise or provide any information of substance to the creditors.

Notable Points to Bankruptcy Practitioner:

No notable points of interest to the Bankruptcy Practitioner.

Case Name:

In re Antonio H. Azevedo, 2013 WL 249929 (Bkrtcy.D.Idaho)

Case Summary:

On January 22, 2013, the United States Bankruptcy Court for the District of Idaho issued its Memorandum of Decision granting the Creditor's application for allowance of an administrative expense.

Notable Points to Bankruptcy Practitioner:

A thorough analysis by the Honorable Jim Pappas of transactions occurring in the ordinary course of business for purposes of 11 U.S.C. § 364(a), and thus qualifying as an administrative expense under 11 U.S.C. 503(b) with an in-depth look at both a vertical and horizontal dimensions test under § 364(a).

Case Name:

In re Tyler Justin Ashton, 2013 WL 211243 (Bkrtcy.D.Idaho)

Case Summary:

On January 18, 2013, the United States Bankruptcy Court for the District of Idaho issued its Memorandum of Decision sustaining the Trustee's objection to the Debtor's claim of a homestead exemption on a trailer in which he temporarily resides while working out of state, yet maintains a rented residence within Idaho.

Notable Points to Bankruptcy Practitioner:

No notable points of interest to the Bankruptcy Practitioner.

Case Name:

In re Richard W. Hoyle, 2013 WL 210254 (Bkrtcy.D.Idaho)

Case Summary:

On January 17, 2013, the United States Bankruptcy Court for the District of Idaho issued its Memorandum of Decision granting the United States Trustee's Motion to Convert the Debtor's case to a Chapter 7 and finding that the confirmation of the Debtor's plan is rendered moot by the conversion.

Notable Points to Bankruptcy Practitioner:

No notable points of interest to the Bankruptcy Practitioner.

Case Name:

In re The Leed Corporation, 2013 WL 124357 (Bkrtcy.D.Idaho)

Case Summary:

On January 9, 2013, the United States Bankruptcy Court for the District of Idaho issued its Memorandum of Decision granting an attorney's application for interim compensation and denying the sole objection thereto based on a lack of standing.

Notable Points to Bankruptcy Practitioner:

No notable points of interest to the Bankruptcy Practitioner.

Case Name:

In re Lawrence Darwin McKay, 2013 WL 66263 (Bkrtcy.D.Idaho)

Case Summary:

On January 4, 2013, the United States Bankruptcy Court for the District of Idaho issued its Memorandum of Decision granting the Creditor's motion to convert the case to a Chapter 7.

Notable Points to Bankruptcy Practitioner:

No notable points of interest to the Bankruptcy Practitioner.

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