Please note that this writer is not licensed to practice law in Oregon. This means that he is not legally permitted to give any legal advice or perform any legal services. This Bulletin and the entire contents of this website is written only for attorneys. and is not intended for the public. If any non-attorney is reading this, you must consult an attorney about ANYTHING you read here. Nothing in this website is intended to be nor should be read as being legal advice to anyone.
This website has published ten weekly Litigation Reports. They are all summaries of recent 9th Circuit and Bankruptcy Appellate Panel (BAP) opinions on important issues about bankruptcy litigation and procedure. Together they comprise an essential recent package of law that every bankruptcy attorney practicing in Oregon or anywhere in the Ninth Circuit should know. To help get to that knowledge quickly and easily, here is a list of these ten Litigation Reports with a short descriptive excerpt from each, with convenient links BOTH to the Reports (click on the Report title) as well as directly to the full opinions themselves (click on the case name). The opinions are in reverse chronological order of court publication, with the most recent one on top, the 9th Circuit ones separate from the BAP ones.
Ninth Circuit Opinions
October 10, 2008
American Sports Radio Network v. Krause (In re Krause)
Litigation Report Title: 9th Circuit Certifies Question of Law to State Supreme Court on Capacity of Administratively Dissolved Corporation to Prosecute Adversary Proceeding Excerpt: "This is not an opinion, merely a lengthy order certifying a question to the Nevada Supreme Court. And yet the 9th Circuit takes 13 pages to do this. The Court's discussion is valuable from a bankruptcy litigation perspective both for its substantive issue--the capacity of an administratively dissolved corporation to file an adversary proceeding against a debtor, and the appellate procedural one--when is it appropriate for a bankruptcy appellate court to seek formal assistance from a state supreme court in interpreting that state's laws. Oh, and by the way: 'several million dollars' are at stake in this Chapter 7 nondischargeability adversary proceeding."
September 23, 2008
Barboza v. New Form, Inc.
Litigation Report Title: Ninth Circuit Reverses Both B'cy Court's & BAP's Summary Judgment on "Willful & Malicious Injury" Under § 523(a)(6) Excerpt: "Last week the 9th Circuit issued its second opinion in as many months interpreting the 'willful and malicious injury' language in § 523(a)(6) of the Bankruptcy Code. The Litigation Report in this website for the week of September 21 - 28 highlighted the 1st of these two opinions, Lockerby.v. Sierra, on the necessary elements for an intentional breach of contract to be a nondischargeable 'willful and malicious injury.' Now in Barboza, the 9th Circuit comes back to this same 'willful and malicious injury' language, although not in the narrow breach of contract context. Here the Court reversed both the bankruptcy court and the BAP, primarily by finding that neither court applied the 9th Circuit's law on § 523(a)(6)'s "willful and malicious injury" language accurately."
September 4, 2008
Burkart v. Coleman (In re Tippett)
Litigation Report Title: The Rights of a Bona Fide Purchaser Buying Estate Assets Without Knowledge of Debtor's B'cy: Are State BFP Statutes Preempted by the Bankruptcy Code?
Excerpt: "A recent Bankruptcy Bulletin on this website (entitled "New 9th Circuit Opinion Adjusts the Line Between Void & Voidable Transfers in Violation of the Automatic Stay: Bona Fide Purchaser Defeats Trustee," dated 9/8/08) summarized this Burkart opinion and but reserved discussion about the federal preemption argument there for this Litigation Report."
August 22, 2008
McDonald v. Checks-N-Advance, Inc. (In re Ferrell)
Litigation Report Title:
Excerpt:"In this per curiam decision . . . , the Ninth Circuit Court of Appeals held that certain specific violations of the federal Truth in Lending Act (TILA) do not result in the award of actual damages, statutory damages, or attorney fees and costs for the consumer, or specifically in this case for the Chapter 13 trustee acting on behalf of the consumer. The court affirmed the ruling of the Bankruptcy Appellate Panel, which had affirmed the judgment of the bankruptcy court. This was a case of first impression for the Ninth Circuit as to the issue of statutory damages, and precisely as to whether the specific TILA violations.here fell within any of TILA's exceptions to statutory damages."
August 7, 2008
Lockerby v. Sierra (In re Sierra)
Litigation Report Title: When Is Intentional Breach of Contract Nondischargeable Under § 523(a)(6)?: 9th Circuit Proclaims Legal Standard for "Willful & Malicious Injury"
Excerpt: "This is a quick study in two published opinions about what it takes for a breach of contract claim to be nondischargeable under the "willful and malicious injury" provision of § 523(a)(6). One is the Lockerby opinion referenced above; the other is the January 2008 bankruptcy court opinion of Judge Perris' Home Instead Senior Care of Oregon v. Treon (In re Treon). Both of these rely heavily on a 2001 9th Circuit opinion, Petralia v. Jercich (In re Jercich), 238 F.3d 1202. The primary point of this quick study is to determine what if anything the recent Lockerby opinion added to the law on this issue in Oregon that wasn't already in Judge Perris' Home Instead opinion, other than the weight of greater authority."
August 1, 2008
Educational Credit Management Corp. v. Coleman
Litigation Report Title: NOTE: THIS OPINION WAS VACATED: 9th Circuit Holds that Ch. 13 "Undue Hardship" Student Loan Determinations Need NOT Wait Until End-of-Case Discharge
Excerpt: "ON AUGUST 22, 2008 THE 9TH CIRCUIT COURT OF APPEALS VACATED THIS AUGUST 1, 2008 OPINION BECAUSE IT APPARENTLY DETERMINED IN THE INTERIM THAT IT DID NOT HAVE JURISDICTION TO CONSIDER THE APPEAL FROM THE DISTRICT COURT, SINCE THE BANKRUPTCTY COURT'S ORDER BEING APPEALED FROM WAS AN INTERLOCUTORY ORDER. LINK HERE TO SEE THE CIRCUIT COURT'S VACATING ORDER. THE CASE WAS REMANDED TO THE DISTRICT COURT TO DETERMINE WHETHER IT WOULD CERTIFY THE CASE FOR APPEAL. IF THAT COURT DOES SO, AND THE 9TH CIRCUIT THEN DETERMINES IT DOES INDEED HAVE JURISDICTION, THIS NOW-VACATED OPINION MAY BE RE-PUBLISHED. IN THE MEANTIME IT IS NOT GOOD LAW. AT BEST IT IS SOME INDICATION OF HOW THE 9TH CIRCUIT MAY RULE ON THIS ISSUE IN THE FUTURE, IN THIS CASE OR OTHERWISE.
On August 1, 2008 the 9th Circuit Court of Appeals ruled that a Chapter 13 debtor could get a judicial determination whether her student loans constituted an “undue hardship” and were thus dischargeable without waiting until close to or after the discharge at the end of the case. Going against two other Circuits, the Fifth and the Eighth, and joining one other Circuit, the Fourth, the 9th Circuit held that the matter was ripe for adjudication, although the debtor’s Chapter 13 case was less than a year past confirmation of debtor’s five-year plan."
May 6, 2008
Johnson v. Nielson (In re Slatkin)
Litigation Report Title: Transferees Must Pay Chapter 7 Trustee "Millions of Dollars" under § 548(a) with Debtor's Plea Agreement As Sole Evidence of His Fraudulent Intent
Excerpt: "The Circuit Court addressed three issues of interest in this Litigation Report: A) can a debtor's fraudulent intent be based on the sole evidence of his guilty plea and plea agreement in a criminal case, authorizing the trustee's avoidance of transfers arising from such intent; B) can a bankruptcy court deny a transferee's motion for a continuance to conduct further discovery before having the opportunity to depose the debtor-transferor, or to review a transcript of the debtor-transferor's prior testimony; and C) does the bankruptcy court have the authority to grant an award of prejudgment interest if the transferee-defendants have demanded a jury trial?"
April 16, 2008
Barclay v. Mackenzie (In re AFI Holding, Inc.) Litigation Report Title: 9th Circuit on Fraudulent Transfers: "Actual Intent to Hinder, Delay, or Defraud," "Reasonably Equivalent Value," & the "Good Faith Exception"
Excerpt: "In this opinion the 9th Circuit analyzed fraudulent transfers under § 548 of the Code (and its analogous provision in state law) in the form of payments paid out to "investors" in a Ponzi scheme. (A Ponzi scheme involves "paying investors purported interest payments with funds
raised from other investors, rather than from the profits of the . . . business".) The Court focused on the § 548(c) exception to fraudulent transfers for transferees who take "for value and in good faith," and particularly on the "reasonably equivalent value" that transferee received in his role as a limited partner of the debtor."
BAP Opinions (of the 9th Circuit)
August 4. 2008
FDIC v. Kipperman (In re Commercial Money Center, Inc)
Litigation Report Title: The "Law of the Case" Doctrine Applied in the Most Recent 9th Circuit BAP Opinion, Written by Judge Dunn
Excerpt: "This most recent of the 9th Circuit BAP opinions was written by Judge Randall Dunn in his capacity as a BAP judge. The facts and procedural background are so involved that they take the first nearly 18 pages of his opinion, in part because this is the second appeal in the adversary proceeding. But the focus of this Litigation Report is on just one particular aspect: the doctrine of "the law of the case." As stated in this opinion, '[u]nder the law of the case doctrine, a court is barred from reconsidering an issue that already has been decided in the same court or in a higher court on the same case. [Citation omitted.] For the law of case doctrine to apply, the issue must have been decided, either expressly or by necessary implication.' "
April 22, 2008
White v. Brown
Litigation Report Title: Chapter 13 Debtor Must Account for $145,000 in Unreinvested Homestead Proceeds After Converting from Chapter 7 Case Excerpt: "This 9th Circuit BAP opinion addresses this question: what is the effect of an asset turnover order against a Chapter 7 debtor when he responds by converting his case into a Chapter 13? The BAP's discussion of this leads to a better understanding of two concepts that can get tricky especially when combined: asset turnover orders and conversions from Chapter 7 to 13."
by: Andrew Toth-Fejel
Bankruptcy Litigation Support for Attorneys
Andy@BLSforAttorneys.com
Please note that this writer is not licensed to practice law in Oregon. This means that he is not legally permitted to give any legal advice or provide and legal services. This Bulletin and the entire contents of this website is written only for attorneys. and is not intended for the public. If any non-attorney is reading this, you must consult an attorney about ANYTHING you read here. Nothing in this website is intended to be nor should be read as being legal advice to anyone.
© 2008 Bankruptcy Litigation Support for Attorneys
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