News and Announcements
The Oregon State Bar Debtor-Creditor Section Saturday Session will be held on February 24, 2018 at the Salem Convention Center. As many of you know, the Saturday Session traditionally serves as a vehicle for the Oregon bankruptcy community to discuss problems and exchange ideas about potential improvements. The registration form for this event is located here and is also copied below. Attendance for this event will be limited to 60 people to encourage meaningful dialog. Registration is required by February 16, 2018. Unlike prior years, however, attendance will no longer be limited to one lawyer from each firm. For more information, see the committee “Saturday Session” under “Committees”.
Oregon Employment Department Bankruptcy Notice Address
- It’s the debtor’s obligation to use current addresses when filling out schedules. Over nine years ago, the payment addresses for the Employment Department changed, but the notice addresses did not.
- The payment addresses should not be used for notice purposes. The payment addresses are to lockboxes which are owned by a bank; they are not actual Employment Department addresses. Documents sent there may eventually make their way to the appropriate offices, but that is not a certainty.
- Documents sent to the old payment addresses, though, are definitely not being forwarded to Employment.
Current notice addresses, which should be used in bankruptcy schedules, are:
Unemployment TAXES owed by employers:
Oregon Employment Department
875 Union Street NE
Salem, OR 97311
Overpayment Recovery (fraud in claiming benefits):
Oregon Employment Department
875 Union Street NE
Salem, OR 97311
Current payment addresses, which should only be used for PAYMENTS, are:
Unemployment TAXES owed by employers:
Oregon Employment Department
P O Box 4395
Portland, OR 97208-4395
Overpayment Recovery (fraud in claiming benefits):
P O Box 4395
Portland, OR 97208-4395
Please check your bankruptcy software to be sure that you are not inadvertently using an incorrect address in your schedules.
PUBLIC NOTICE – APPOINTMENT TO PANEL OF CHAPTER 7 TRUSTEES
The United States Trustee seeks resumes from persons wishing to be considered for appointment to the panel of trustees who administer cases filed under chapter 7 of the bankruptcy code. The appointment is for cases filed in the United States Bankruptcy Court for the District of Oregon, the Eugene Division, primarily from counties near the city of Eugene. Chapter 7 trustees receive compensation and reimbursement for expenses, in each case in which they serve, pursuant to court order under 11 U.S.C. §326 and §330.
The minimum qualifications for appointment are set forth in 28 C.F.R. § 58.3. To be eligible for appointment, an applicant must possess strong administrative, financial and interpersonal skills. Fiduciary and bankruptcy experience is desirable but not mandatory.
A successful applicant will be required to undergo a background check, and must qualify to be bonded. Although chapter 7 trustees are not federal employees, appointments are made consistent with federal Equal Opportunity policies, which prohibit discrimination in employment.
Forward resumes to the United States Trustee, Attn: James Cordial, 700 Stewart Street, Suite 5103, Seattle, WA 98101. All resumes should be received on or before July 29, 2016.
2016 AWARD OF MERIT DEADLINE FOR NOMINATIONS AUGUST 2, 2016
The OSB Debtor-Creditor Section Award of Merit Nominating Committee is accepting nominations from Section members for the 2016 Award of Merit. The Award will be presented to the selected recipient at the Debtor-Creditor Annual Meeting in Hood River on September 16, 2016.
The criteria used by the Nominating Committee in selecting a recipient(s) are:
- Extraordinary service to the members of the Debtor/Creditor Section;
- Outstanding contributions to the legal education of Oregon lawyers in the Debtor/Creditor field;
- The promotion of professionalism among lawyers practicing Debtor/Creditor law;
- Meaningful community involvement, including pro bono assistance to Oregonians with Debtor/Creditor legal problems; or,
- Other deserving qualities, including leadership, industry, participation and commitment.
If you would like to nominate someone, please email your confidential nomination supported by your reasons for the nomination to email@example.com by August 2, 2016. All nominations will be presented to the Award of Merit Nominating Committee for consideration. The Nominating Committee will make the final determination.
A list of prior recipients is posted on the Debtor-Creditor website.
Thank you for your cooperation. We look forward to receiving your suggestions.
DEBTOR CREDITOR SECTION (Simply Gorgeous) 2016 ANNUAL MEETING
Friday & Saturday September 16 & 17
Hood River Inn Best Western
Click here to view things to do while in Hood River
Click here to view the archives (organized as a blog styled postings)
Vacancy Announcement – Information Technology Support Specialist Portland or Eugene
The IT Support Specialist provides automation and help desk support for judges and court staff in two locations (Portland and Eugene) and provides technical support including installing, configuring and troubleshooting computer hardware and software programs. The ideal candidate must have good technical knowledge and be able to communicate effectively. The IT Support Specialist is a member of the court’s IT team and reports to the IT Director. The position is open until filled; submit your application by April 1 to ensure consideration. Complete information is available by following links on the home page under News & Announcements or Employment.
Vacancy Announcement: Case Administrator I, Eugene
Case Administrator I is responsible for managing the progression of cases in
accordance with approved internal controls, procedures and rules. The position is open until filled; submit your application by March 23 to ensure consideration. Complete information is available by following links on the home page under News & Announcements or Employment.
Vacancy Announcement: Operations Coordinator, Portland or Eugene
The Operations Coordinator position includes jobs that provide a variety of administrative and technical assistance to court operations. The primary focus is managing the court’s procedures for processing bankruptcy cases. Complete information is available by following links on the home page under News & Announcements or Employment.
Vacancy Announcement – Network Specialist
The Network Specialist is responsible for maintaining the existing network or building new networks to meet the court’s needs. The position is open until filled; submit an application by March 12, 2018, to ensure consideration. Complete information is available by following links on the home page under News & Announcements or Employment.
Email Subscriptions for Court Announcements, Opinions, and Contact Information
There is now an Email Subscription option on the lower right side of the home page. Subscribers may receive emails regarding court news and announcements, opinions, and changes to case number assignments and court personnel in Portland and Eugene. Subscribers may also sign up for updates from the U.S. Courts website.
Availability of Online Payments
Installment payments for chapter 7, 11, and 13 filing fees may now be made online with a credit card, debit card, or via ACH by using the Online Payment Form. This form cannot be used for Chapter 13 plan payments to the trustee. You can also use the form to pay fees associated with copies of documents; call the clerk’s office at 503-326-1500 or 541-431-4000 to verify the fee amount. More information about obtaining document copies is available by following the link on the home page under News & Announcements.
Vacancy Announcement – Judicial Assistant, Eugene
Judge Thomas Renn is accepting applications for the full-time position of judicial assistant. The position is open until filled; submit your application by January 29, 2018, to ensure consideration. The position will be available April 2. Complete information is available by following links on the home page under News & Announcements or Employment.
Vacancy Announcement – Information Technology Support Specialist
The court is currently recruiting for an IT Support Specialist. The position is available in the Portland or Eugene office, and is open until filled; submit your application by January 19, 2018, to ensure consideration. The position is available immediately. Complete information is available by following links on the home page under News & Announcements or Employment.
Ninth Circuit Civics Contest
The 2018 Ninth Circuit Civics Contest is open to high school students in nine western states and two Pacific island jurisdictions. Students from public, private, parochial and charter schools and home-schooled students of equivalent grade status may enter. Entries are accepted beginning February 1, 2018; the deadline is April 1, 2018. For complete information, follow the link under News & Announcements.
The U.S. District Court and the U.S. Bankruptcy Court for the District of Oregon are hosting a local contest to determine the top three state finalists in both the essay and video contests who will go on to compete for cash prizes in the circuit contest. To be eligible to compete in the local contest, students must reside in the state of Oregon. In addition to advancement to the circuit contest, local district winners will receive cash prizes and be invited to the award presentation at the FBA Annual Dinner in May 2018.
Vacancy Announcement – CM/ECF Coordinator
The court is currently recruiting for a CM/ECF Coordinator. The position is available in the Portland or Eugene office, and is eligible for telework outside the Portland or Eugene area. The position is available January 2018 and is open until filled. Submit an application before December 4 to ensure consideration. Complete information is available by following links on the home page under News & Announcements or Employment.
Local Rules and Forms Effective 12/1/17
Follow the links on the home page for local rule changes effective December 1, 2017 and local form changes effective December 1, 2017. The new forms must be used by December 1.
There is also a link to a summary of changes to the rules and forms from the versions posted for public comment on 9/21/17 and 10/5/17.
Local Rule and Form Changes
Proposed changes to the Local Bankruptcy Rules and Local Bankruptcy Forms have been posted for review. If adopted, these rule and form changes will be effective December 1, 2017. Comments are invited and must be submitted by October 23, 2017. Follow the link under News & Announcements on the home page to submit comments.
Proposed Amendments to Federal Rules and Forms
The Judicial Conference Advisory Committees on Appellate, Bankruptcy, Criminal and Evidence Rules have proposed amendments to the following rules and forms and have asked that they be circulated to the bench, bar, and public for comment. The public comment period closes on February 15, 2018.
Appellate Rules: 3, 13, 26.1, 28, and 32
Bankruptcy Rules: 2002, 4001, 6007, 9036, 9037, and Official Form 410
Criminal Rules: New Criminal Rule 16.1, Rule 5 of the Rules Governing Section 2254 Cases, and Rule 5 of the Rules Governing Section 2255 Proceedings
Rules of Evidence: 807
The proposed amendments and the advisory committees’ reports explaining the proposed changes are posted on the Judiciary’s website at: http://www.uscourts.gov/rules-policies/proposed-amendments-published-public-comment
Civics Contest Finalists Announced
Preliminary judging has been completed in the 2017 Ninth Circuit Civics Contest for high school students in the western United States, Guam and the Northern Mariana Islands. “Not to Be Forgotten: Legal Lessons of the Japanese Internment” was the theme of the contest. Students in grades 9-12 in public, private and parochial schools and home-schooled students of equivalent grade status were challenged to write an essay or produce a short video on the topic.
All of the 15 federal courts in the Ninth Circuit held local contests with winners going on to compete in the circuit-wide competition. In all, 45 essays and 36 videos were selected for final consideration by the Ninth Circuit Courts and Community Committee, which will announce the winners in June. The Oregon winners are:
Essay: 1st, Danny Luo, sophomore, Lincoln High School in Portland; 2nd, Allison Kirkpatrick, junior, Cleveland High School in Portland; and 3rd, Kevin Sy, junior, International School of Beaverton in Aloha.
Video: 1st, the team of Razan Husein and Maisha Hoque, freshmen, and Zaynab Ibrahim, sophomore, Oregon Islamic Academy in Tigard; 2nd, the team of Sarah Fattom, junior, Sofia Al-Bawani, sophomore, and Maymuna Muktar, junior, Oregon Islamic Academy in Tigard.
The District of Oregon winners go on to the larger Ninth Circuit contest, which offers additional prizes of $2,000, $1,000 and $500 for the top three essays and videos, and a trip to San Francisco for the first place winners, accompanied by a parent or guardian, to attend the circuit conference.
Electronic Filing of Request for Audio Recording of Court Proceeding
You can now electronically file a request for an audio recording. The new ECF event can be found under Miscellaneous, Request for Audio Recording of Court Proceedings. ECF filers do not need to complete an order form but must enter the date and time of the court proceeding when prompted. The filing instructions page can be found on the website under Hearings, Order an Audio Recording of a Court Proceeding. Once the court receives your request and payment, it will send the audio recording in the format you request in a link via Microsoft OneDrive and emailed to the primary email address associated with your ECF account. The court will continue to provide CDs to non-ECF filers who have filed their request on LBF 335 and do not have an email account. LBF 335 has been updated to reflect the new procedure.
Bankruptcy Judge Opening – Idaho
Judge Jim D. Pappas of the Bankruptcy Court for the District of Idaho will retire in March 2018, and the process to fill his seat has begun. You can find the vacancy announcement at https://isb.idaho.gov/pdf/temp/6thdba_bankruptcyjudge_announcement.pdf
Courtroom Deputy Vacancy – Portland
See http://www.orb.uscourts.gov/sites/orb/files/2017-02_CRD%20PDX%20VACANCY.pdf for a complete description of the position, which is open until filled. Submit your application by May 8, 2017, to ensure consideration. The court will continue to review applications received after May 8, 2017, until the position is filled.
Electronic Filing of Official Form 121
The court has decided that Official Form 121, Your Statement About Your Social Security Numbers, must be filed with the court pursuant to FRBP 1007(f), as recommended by the Local Rules Committee. The local rules will be amended effective December 1, 2017, to require this filing.
Beginning May 1, debtors’ attorneys are encouraged to voluntarily comply with FRBP 1007(f) by filing the SSN statement with the Voluntary Petition. The form must be a separate entry on the docket to maintain restricted access. The form may be submitted using Case Upload or Miscellaneous – Statement of Social Security Number. Petition software vendors were notified in early April of the availability of these new events in the Test database and were urged to test and modify their software. They will be available in the Live database on May 1.
The court has also updated LBF 5005, Electronic Filing Declaration, to add the Statement of Social Security Numbers to the checklist of documents which debtors’ attorneys may electronically maintain with the debtor’s authorization. Attorneys must electronically file the scanned declaration and retain the signed original declaration.
Rescheduled ECF Downtime April 15
NextGen CM/ECF, Electronic Case Filing [ECF], PACER, filing claims via the court website [ePOC], filing financial certificates via the court website [eFinCert], website calendars, and VCIS will be unavailable to all users on Saturday, April 15, from 8 a.m. to 11 a.m. for planned maintenance.
More details are available via the link on the home page.
Rescheduled ECF Downtime
NextGen CM/ECF, Electronic Case Filing [ECF], PACER, filing claims via the court website [ePOC], filing financial certificates via the court website [eFinCert], website calendars, and VCIS will be unavailable to all users on Saturday, April 1, from 8:00AM to 10:00AM Pacific Daylight Time.
More details are available via the link on the home page.
ECF Scheduled Downtime
NextGen CM/ECF, Electronic Case Filing [ECF], PACER, filing claims via the court website [ePOC], filing financial certificates via the court website [eFinCert], website calendars, and VCIS will be unavailable to all users on the following dates and times:
Saturday, March 18th, 12:00AM to 6:00AM Pacific
Saturday, March 18th, 8:00AM to 10:00AM Pacific
Saturday, March 25th, 8:00AM to 10:00AM Pacific
In addition to these dates and times, there will be a high potential for broken functionality and interruptions in service in NextGen CM/ECF and related applications the weekend of March 18th.
More details are available via the link on the home page.
2017 Ninth Circuit Civics Contest
This is an essay and video contest open to high school students in the western United States and Pacific Islands. Entries are now being accepted; the deadline for entries is April 16, 2017. Cash prizes are offered. Contest rules, entry instructions and more information are available at: www.ca9.uscourts.gov/civicscontest/
The U.S. District Court and the U.S. Bankruptcy Court for the District of Oregon are hosting a local contest (for Oregon students) to determine the top three state finalists in both the essay and video contests who will go on to compete for cash prizes in the circuit contest. For more information about the district contest, please contact Judge Russo, 541431-4125 or firstname.lastname@example.org.
2017 Poverty Guidelines
Here is the link for poverty guidelines effective January 31, 2017: https://aspe.hhs.gov/poverty-guidelines. These apply to Chapter 7 applications to waive the filing fee.
On January 18, Chief Judge Sidney R. Thomas of the United States Court of Appeals for the Ninth Circuit announced the appointment of Portland attorney David Walter Hercher to the U.S. Bankruptcy Court for the District of Oregon. Judge Hercher received the oath of office from Chief Judge Brown on January 23, 2017, at the U.S. Bankruptcy Court in Portland. A formal investiture will be held at a later date. Judge Hercher fills the vacancy resulting from the retirement of Bankruptcy Judge Randall L. Dunn, who stepped down January 20, 2017.
Local Forms Changes and Portland Case Reassignments
A number of cases have been transferred from Judge Randall L. Dunn to Judge Hercher, Judge Brown, and Judge McKittrick. Please check the case docket for any case formerly assigned to Judge Dunn to determine the current presiding judge.
The following Local Bankruptcy Forms (LBFs) have been updated to add telephone hearing information for Judge Hercher: 1124, Chapter 11/12 Notice of Stay Relief Motion; 1355.05, Notice of Chapter 12/13 Pre-Confirmation Plan Modification; and 1366.3, Notice of Hearing Re: Trustee Godare’s Motion to Dismiss/Convert.
Hearings for Thursday, January 12: Judge Dunn’s 9:00 a.m. confirmation hearings will be conducted at 1:00 p.m. and all parties may appear by phone by calling the Toll Free Number (888) 684-8852 and entering the access code 5870400 followed by the pound key. Judge McKittrick’s hearing at 9:30 a.m. will take place as scheduled, all parties may appear by phone be calling the Toll Free Number (888) 684-8852 and entering the access code 1238244 followed by the pound key. Judge Brown’s 10:00 a.m. hearing will take place as scheduled by phone. Mr. Camacho’s chapter 7 meetings of creditors will be reset to the same time and place on January 26, 2017.
Operations Coordinator Vacancy
The court is currently recruiting for an operations coordinator in either the Portland or the Eugene office. Visit the Employment page for more information and application procedures. The position is open until filled; to ensure consideration, submit an application by November 30.
Case Administrator Vacancy
The court is also recruiting for a case administrator in the Eugene office. Visit the Employment page for more information and application procedures. The position is open until filled; to ensure consideration, submit an application by November 30.
Local Rule and Form Changes
Follow the link under News & Announcements on the home page to see local rule and form changes effective December 1.
Bankruptcy Fee Increases
On December 1, 2016, the fees will increase for the following: for filing an amendment to the debtor’s list of creditors, a motion for relief from stay, a motion to compel abandonment of estate property, a motion to withdraw the reference of a case or proceeding, and a motion to sell property free and clear of liens under §363(f); for exemplification of any document, reproduction of an audio recording of a court proceeding, conducting a search of the bankruptcy court records, or filing a miscellaneous proceeding. Follow the link under News & Announcements on the home page to see the Bankruptcy Court Miscellaneous Fee Schedule effective December 1.
Proposed Local Rules and Forms Changes
Proposed changes to the Local Bankruptcy Rules (LBRs) and Local Bankruptcy Forms (LBFs) have been posted for review. If adopted, these rule and form changes will be effective December 1, 2016. Comments on the proposed changes are invited and must be submitted by October 31, 2016. Follow the link under News & Announcements on the home page to see the proposed revisions and submit comments.
Proposed Amendments to Bankruptcy Rules
The Judicial Conference Advisory Committee on Bankruptcy Rules has proposed amendments to several Bankruptcy Rules and Forms, including: BR 3002.1, 5005, 8002, 8006, 8011, 8013, 8015, 8016, 8017, 8022, 8023, new BR 8018.1 and new Part VIII Appendix; and Official Forms 309F, 417A, 417C, 425A, 425B, 425C, and 426. There are also civil and appellate rules. All proposed amendments are at http://www.uscourts.gov/rules-policies/proposed-amendments-published-public-comment. The public comment period ends February 15, 2017.
Chapter 7 Panel Trustee Opening
The United States Trustee seeks resumés from persons wishing to be considered for appointment to the panel of trustees who administer chapter 7 cases. The appointment is for cases filed in the Eugene Division, primarily from counties near Eugene. Chapter 7 trustees receive compensation and reimbursement for expenses in each case in which they serve. Full details are available on the website. Note that this opening was posted July 18 and resumés should be received on or before July 29, 2016.
Proposed Amendments to Bankruptcy Rules
The Judicial Conference Advisory Committee on Bankruptcy Rules has proposed amendments to Bankruptcy Rule 3015 and adoption of a new Bankruptcy Rule 3015.1. The proposed rules and explanatory materials are available at http://www.uscourts.gov/rules-policies/proposed-amendments-published-public-comment. The public comment period ends October 3, 2016.
Marion, Polk and Lincoln County Cases
Effective May 21, new cases filed for debtors who live in Marion, Polk or Lincoln County will be assigned to a Portland judge. Cases filed in Marion, Polk, and Lincoln counties before May 21 will continue with the originally assigned judge. The judge who handles Bend cases will handle all new chapter 13 cases filed in Marion, Polk, and Lincoln counties. Nonevidentiary confirmation hearings and other nonevidentiary chapter 13 hearings will be held via telephone. Evidentiary confirmation and other hearings will be held in Portland. New Marion, Polk, and Lincoln County cases filed under chapters 7, 11, and 12 will be assigned to one of the three Portland judges on a random basis.
Marion, Polk, and Lincoln county cases will continue to be filed in the Eugene office and therefore will have a case number beginning in 6. They will be administered by Eugene case administrators. The cases are being reassigned to Portland judges in anticipation of Judge Frank R. Alley’s retirement on August 31, 2016. Due to declining workload, the Ninth Circuit has opted not to fill Judge Alley’s position at this time. More details can be found at the link under News & Announcements.
Pending Changes in National Bankruptcy Forms
Automatic adjustments will be made on April 1, 2016, to dollar amounts in various provisions of the Bankruptcy Code, one provision in Title 28, seven Official Bankruptcy Forms, the Instructions for Individual and Non-Individual Debtors, two Director’s Forms, and one set of instructions for a Director’s Form. The adjustments will apply to cases filed on or after April 1, 2016. More details and a list of the provisions to be adjusted is at the link under News & Announcements.
Local Form Revisions
LBF 1300.14 has been modified to correct references to amounts on the proof of claim form in Paragraph 2(b)(1). Follow the links under News & Announcements for the updated form, which debtors’ attorneys should begin using as soon as practicable. Further, because severance of a chapter 13 case may affect plan payments for both debtors, the court’s orders granting motions to sever cases with joint chapter 13 debtors will now provide that the trustee shall make no further distributions in the original case without order of the court or approval of a modified plan.
Judicial Vacancy Announcement
The Ninth Circuit invites applications from candidates for the position of Bankruptcy Judge for the District of Oregon, to be based in Portland. All details (as well as application materials) are available via links under News & Announcements on the court’s home page. May 12, 2016, is the deadline for receipt of all completed application materials.
Availability of Audio Files of Court Proceedings on the Docket
On February 25, the court began making digital audio files of court proceedings available to the public over the internet using a program called CourtSpeak. Additional details about the program are available via the link under News & Announcements. It will be the responsibility of counsel to notify the courtroom deputy before or during the hearing if they wish to restrict audio from the internet.
New Address for Chapter 12 Trustee
As of February 25, the address for the chapter 12 trustee is 5506 Sixth Avenue S #207, Seattle, Washington 98108. Main telephone 206-441-0203; VB direct dial 206-441-0205; fax 206-624-2631.
The court will be closed Monday, February 15, for the holiday.
PACER and ECF Down Time
The ECF, PACER and VCIS systems will be down on Saturday, January 30, from 8:00 am to around noon for a software upgrade.
Administrative Coordinator Vacancy
The court is recruiting for an administrative coordinator in the Portland office. The position is available immediately, and a full description can be found on the Employment page – which advises submitting an application by January 27 to ensure consideration.
The court will be closed Monday, January 18, for the holiday.
The court will be closed Friday, December 25, for the Christmas holiday. The court will be open December 24 from 9:00 am to 4:30 pm. The court will also be closed New Year’s Day, Friday, January 1, 2016.
ECF Down Time
On Monday, November 30, 2015, from 6 p.m. until midnight Pacific Time, Electronic Case Filing (ECF), PACER, filling claims via the court website (ePOC), filing financial certificates via the court website (eFinCert), website calendars, and VCIS will be unavailable to all users as the court upgrades for new Official Bankruptcy Forms effective December 1, 2015. Please plan accordingly.
Local Rule and Form Changes
Local rule and form changes are effective December 1, 2015. Links to the changes are available under News & Announcements on the site.
The court will be closed Thursday, November 26, for the Thanksgiving Day holiday.
The court will be closed Wednesday, November 11, for the Veterans Day holiday.
New Location for Bend Creditor Meetings
Starting on January 1, 2016, Bend chapter 7 and chapter 13 creditor meetings will be held at the Bend Juvenile Justice Building, 63360 Britta St #1, Bend, Oregon 97701.
Scam Targets Bankruptcy Filers
Phone scammers are targeting bankruptcy filers in several states, using personal information from filings and posing as attorneys to get intended victims to immediately wire money to satisfy a debt.
The National Association of Consumer Bankruptcy Attorneys issued a warning: “Under no circumstances would a bankruptcy attorney or staff member telephone a client and ask for a wire transfer immediately to satisfy a debt. Nor would the bankruptcy attorney and staff ever threaten arrest if a debt isn’t paid.”
Typically the calls come late in the evening or during non-business hours to make it difficult for intended victims to verify the call by contacting their attorney. Consumers receiving this kind of call should hang up and contact their bankruptcy attorney as soon as possible. Do not give any personal or financial account information to the caller.
Judge Trish M. Brown Designated as Chief Judge
Judge Trish M. Brown has been designated Chief Judge of the U.S. Bankruptcy Court for the District of Oregon effective October 1, 2015, for a five-year term. Per 28 USC §154(b), the chief judge shall ensure that the rules of the bankruptcy court and of the district court are observed and that the business of the bankruptcy court is handled effectively and expeditiously.
Proposed Local Rule and Form Changes – Comment by 10/30/15
Proposed changes to the Local Bankruptcy Rules (LBRs) and Local Bankruptcy Forms (LBFs) are posted via a link on the site for review. If adopted, these changes will be effective December 1, 2015. Comments on the proposed changes are invited and must be submitted by October 30, 2015. To submit comments, follow the link on the home page to the link on the explanation.
Court Live on NextGen CM/ECG
The court successfully implemented NextGen CM/ECF. Instructions on linking your upgraded PACER account to your CM/ECF account so you can electronically file are available via a link from the home page announcement. From a second link on the announcement, select “NextGen Questions/Issues” to report any issues you are having or to obtain help with NextGen account activation. Another option is to call the court. From a third link, select “Forgot ECF Login/Password for PACER Linking” (or call the court) if you cannot link your PACER account to your CM/ECF Account because you do not know your CM/ECF login and/or password.
ECF Downtime September 25-27
The court’s CM/ECF and PACER systems, Voice Case Information System (VCIS), and website calendars will be unavailable from Friday, September 25 at 5 p.m. through Sunday, September 27 so the court may install the first release of NextGen CM/ECF software. As a reminder, after the court completes its upgrade, all ECF users must link their upgraded PACER account to their CM/ECF accounts before they can electronically file with the court. Instructions for linking your account are available at the link on the home page.
NextGen FAQs and Additional Web Training
There are links on the home page to an updated version of NextGen Frequently Asked Questions, and to instructions for joining a web and telephone training session on Tuesday, September 22 at 8 a.m.
Message from the Clerk – Internet Access in Eugene Courthouse
To Eugene Bankruptcy Practitioners:
I am pleased to announce that the orx_attorney wireless network is now available in the 341 Meeting Room on the ground floor of the Morse Courthouse. The password is the same as for the courtrooms and the 5th floor conference room. If you do not know what it is, you can call the court at 541-431-4000 or ask a courtroom deputy.
I am sorry this project took so long, but very glad that we have arrived at the finish line. I hope it facilitates your creditor meetings.
Charlene M. Hiss, Clerk of Court
The court will go live with NextGen CM/ECF on Monday, September 28. CM/ECF users will need to complete preparatory steps before then, and an additional step after the court goes live. Click on the home page link for more information, including training opportunities and instructions.
Bend Meeting of Creditors – Change in Location
Due to the closure of the Bend National Guard Armory, chapter 7 and chapter 13 creditor meetings will be held at Hilton Garden Inn Bend, 425 SW Bluff Drive, Bend 97702, until further notice.
Local Form Updates
Click on the link under News & Announcements. LBF 1351E has been updated to reflect the new payment address for Eugene Chapter 13 trustee Naliko Markel. Effective June 1, the new payment address is: Office of the Chapter 13 Trustee, PO Box 613199, Memphis, TN 38101-3199.
LBF B254, B255, B256, and B257 are new fillable versions of the official subpoena forms for Rule 2004 examinations, to appear and testify at a hearing or trial, to testify at a depositio n, and to produce documents or permit inspection of premises. These forms may be used in bankruptcy cases and adversary proceedings in any district.
LBF 763, the claim objection form, has been updated later to correct an issue with the order language encroaching on the document heading.
Updated Means Testing Information
Updated means testing information, applicable to petitions filed on or after May 15, is available at http://www.justice.gov/ust/means-testing
Local Form Updates
Local forms 1300.14, 1366, 391, 541, 541.1 and 541.5 have been updated. Click on the link under News & Announcements. The updated forms may be used immediately.
Responses to Survey
The court extends a big thank you to everyone who responded to its recent survey concerning how to improve its procedures. The responses were very helpful, and several of the ideas and issues presented are still under consideration. While the survey is now closed, you can always send comments and suggestions by clicking “Contact Us” at the bottom of the website, www.orb.uscourts.gov.
A suggestion that was enthusiastically endorsed by the members of the Debtor-Creditor Section was to move the PDF headers, which contain the case number, document number, and filing date for the filed documents, from the top to the bottom of the page so the information is more easily viewable when the document is placed in a two-hole punched file. This change was made on April 21. Please note that the PDF header (now footer) may be positioned over other footers such as the law firm address. The court is not concerned about this, but firms may want to view some of their filed documents and consider whether to change their stationery if there is a conflict.
Another suggestion was to accommodate unavailable dates for 341 meetings. Regrettably, the court cannot do this with its present software. However, debtors’ attorneys agreed that being able to view upcoming 341 dates for each location would help them determine whether a delay in filing might avoid a 341 meeting conflict with their own or their client’s schedule. With the concurrence of the U.S. Trustee, the court is now publishing prospective 341 meeting dates on its website. You can view them at http://www.orb.uscourts.gov/prospective-dates-341-meetings. To find the list from the home page, click on Information for Attorneys, then on Prospective Dates for 341 Meetings in the QuickLinks box at the bottom left.
As a result of the survey, the court also became aware that the Judge Trustee Assignment program was not operating properly to set batches of cases filed together on the same 341 date. A fix has been installed.
Change of Chapter 13 Trustee Address
Effective June 1st, the payment address for Naliko Markel, Chapter 13 Trustee in Eugene, will change to PO Box 613199, Memphis, TN 38101-3199.
Programmer Analyst Vacancy
The bankruptcy court is recruiting for the position of Programmer Analyst in its Portland office. See the Employment page (links at bottom of home page and under News & Announcements) for details. The position is open until filled.
Adjusted Census Bureau State Median Family Income Data Available
Follow the links under the announcement on the home page to the U.S. Trustee Program website for new figures applicable to bankruptcy petitions filed on or after April 1, 2015. On April 29, the same website will make available new figures for IRS Bankruptcy Allowable Living Expenses and Chapter 13 Administrative Expense Multipliers. The new figures will apply to bankruptcy petitions filed on or after May 15, 2015.
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In re Ameriflex Engineering LLC, Case No. 17-6024-tmr
March 12, 2018
11 USC §§108(b), (c) and 510 (b); ORS 36.700, 63.225, 63.229 and 63.625
In an arbitration following the expelling of one of its original members, Ameriflex was directed to buy back the member’s shares, pursuant to the LLC Operating Agreement, for $1.5 million. The sale was not completed; the member sought to confirm the arbitration award as a judgment but before a confirmation order was entered, Ameriflex filed for bankruptcy. In an adversary proceeding, Ameriflex argued that the member’s claim based on his award should be subordinated to all creditors and equity holders. On cross motions for summary judgment, the court held that the claim should be subordinated to the claims of creditors but should remain ahead of claims of equity holders because the member no longer held an equity interest.
In re Evans, No. 17-62302-tmr13
March 8, 2017
11 USC §1326(c), 28 USC 586(e), LBR 3015-1(b)(7)
The trustee objected to confirmation of debtors’ chapter 13 plan, which proposed to pay in full two judgment lien creditors and the Linn County Tax Assessor upon the sale or refinance of their real property in three years. The trustee argued he was entitled to his statutory fee on the funds paid to those creditors through escrow pursuant to LBR 3015-1(b)(7). The court agreed and denied confirmation, based on its conclusion that the affected creditors’ claims were “impaired” within the meaning of §1326(c) and related case law: the proposed three-year delay in payment to the creditors impaired their right to foreclose on their liens. Thus the claims fell within §1326(c) and the trustee, not the escrow agent, would disburse payments to the creditors.
In re Kees, Case No. 16-62669-tmr7
March 8, 2018
11 USC §522(d)(12); 26 USC §§219(b)(1)(A), 408(b) and 408(d)
In debtor’s pre-bankruptcy divorce case, she was awarded portions of her husband’s two retirement accounts, specified as not taxable under 26 USC §408(d) in the dissolution judgment. After the divorce, debtor transferred her interest in the accounts into 401(k) and 403(b) accounts and then rolled those accounts into a traditional IRA. In her chapter 7 case, she claimed an exemption in the entire $84,000 value of the IRA. The trustee objected. The court ruled in debtor’s favor, rejecting the trustee’s arguments that (1) a portion of the IRA was forfeitable, (2) the IRA was assignable or transferrable, and (3) the initial premium of $84,915.15 exceeded the $6,000 limitation of 26 USC §219(b)(1)(A).
Eiler v. Hartner, Adv. No. 17-3112-tmb, Case No. 16-31394-tmb7
January 23, 2018
Marital settlement agreement, property division judgment, ORS 18.180
In 1992, wife entered into a marital settlement agreement incorporated in a judgment of dissolution. The agreement provided the wife could obtain a supplemental judgment equal to half the value of debtor’s interest in two closely-held corporations. Wife did not obtain a supplemental judgment but, when debtor filed his chapter 7 petition in 2016, she sought half the proceeds of sale of property held by the corporations. The court rejected all her arguments. The property division judgment had expired, so wife’s only basis for a claim was under contract, and that claim was time-barred and was therefore disallowed.
Kunda v. Shaul, Case No. 16-31314, Adv. No. 16-3091
December 13, 2017
Plaintiff obtained a judgment against debtor in Washington state court for over $150,000 in a suit arising from a construction contract. She then filed a complaint in bankruptcy court seeking a judgment that the debt was not dischargeable under §523(a)(2)(A). The bankruptcy court did not take live testimony but, based on transcripts and exhibits from the state court trial, ruled the plaintiff had not established the elements of §523(a)(1)(A).
In re Peak Web LLC, Case No. 16-32311
November 8, 2017
11 USC §502(b)(9), relation back, FRCP 15(c)(1)(B)
The creditor filed an amended claim after the bar date and argued that the claim related back to its original (timely filed) claim. The court compared the claims in the amended complaint, on which the amended claim was based, to the claims in the original complaint. It concluded that claims in the amended complaint that were new (i.e., not simply the original claims alleged with greater particularity) were barred as untimely under §502(b)(9).
Ticor Title Ins Co. v. Brandenfels, Adv. No. 13-3159, Appellate No. 15-60075
July 5, 2017
11 USC §727(a)(3)
The Ninth Circuit affirmed the BAP, which had affirmed the bankruptcy court’s denial of discharge under §727(a)(3). The debtor failed to keep adequate records, making it impossible to determine her financial condition, and the debtor could not justify the inadequacy of the records.
Szanto v. IRS, Case No. 16-33185-pcm11, Adv. No. 16-3141-pcm
June 13, 2017
FRCP 12(b)(1) and (6); 11 USC §§ 105, 106 and 505; 26 USC §§7121, 7122 and 7433; Federal Tort Claims Act; Anti-Injunction Act
Debtor’s adversary proceeding against the IRS was based on the IRS’s proof of claim, and alleged numerous claims. The court first substituted the United States as a party rather than the IRS and dismissed claims against IRS employees. In a lengthy memorandum opinion it then dismissed with prejudice debtor’s breach of contract claim, claim for a refund, and claim for injunctive relief. It dismissed debtor’s tort claims (for fraud and malicious prosecution) with leave to replead.
In re Berjac of Oregon, Case No. 12-63884-tmr7
June 14, 2017
11 USC §§101(14)(C), 327(a) and 330(a); FRBP 2014(a); ORPC 1.7(a)(2) and 1.10(a); adverse interest; disclosure violations; disinterestedness; party in interest; settlement
A law firm that had represented the trustee during the chapter 11 phase and part of the chapter 7 phase of the case applied for approval of its fees and via a mediated settlement agreed to a 25% discount. The US Trustee and various creditors objected. The court approved the settlement, applying the four factors of In re A & C Properties, 784 F2d 1277 (9th Cir 1986), and other factors. The court found that although it was likely the firm had violated the disclosure requirements of FRBP 2014(a), the violation was not intentional and the discount compensated for any probable sanction.
Szanto v. JPMorgan Chase, Case No. 16-33185, Adv. No. 16-3118
June 13, 2017
FRCP 12(b)(6), 8(a) and 9(b); Truth in Lending Act; Federal Debt Collection Practices Act
In a lengthy memorandum opinion the court analyzed numerous fraud, statutory violation and breach of contract claims against Chase and Bank of America. It granted motions to dismiss all the claims, with prejudice because this was debtor’s third attempt to plead them. The only claim remaining, which was not the subject of the motions, was one for breach of contract against Bank of America.
In re Peak Web LLC, Case No. 16-32311, Adv. No. 16-3083, Appellate No. 3:16-cv-01832-SI
February 7, 2017
28 USC §1452(b)
The district court reviewed the bankruptcy court’s order granting equitable remand to state court and affirmed. The standard of review was abuse of discretion, and although the district court concluded that the bankruptcy court had erred in applying one factor, that error was harmless.
In re Parmenter, BAP No. OR-15-1170-TaKuJu, 2016 WL 7189829
December 5, 2016
11 USC §1144, FRBP 9006(b)(2) and 9024, issues on appeal, revocation of confirmation
The debtor filed chapter 11, a trustee was appointed, and the trustee’s plan was confirmed. The debtor unsuccessfully appealed the order confirming the plan. Three years later the debtor moved to reopen the case and requested an order of discharge but did not appear at the hearing. After filing a certificate of completion of a financial management course, debtor was granted discharge under §1141(d). She appealed the discharge order. The BAP affirmed, holding debtor had waived the right to contest the discharge order because she had requested it.
Baczkowski v. Bank of New York Mellon, Dist. Ct. No. 6:16-cv-00150-MC
October 21, 2016
2016 WL 6208270
28 USC §§157(c) and 1334, LBR 7008-1, implied consent, jurisdiction
The district court upheld the bankruptcy court’s dismissal of debtor’s adversary proceeding. After filing the adversary proceeding, the debtor had moved to dismiss her chapter 13 case. The bankruptcy court advised debtor that her adversary would be dismissed if her main case was dismissed, and gave her a chance to withdraw her motion to dismiss the main case. She argued on appeal that she had not consented to entry of a final dismissal order in the adversary proceeding, that she was denied due process and that the dismissal was inequitable. The district court rejected all these arguments. As of March 22, 2017, the district court’s ruling is on appeal to the Ninth Circuit.
Hunsaker v. United States, Dist Ct. No. 6:16-cv-00386-MC
October 20, 2016
2016 WL 6134530, rev’g 2016 WL 409311
11 USC §§106(a)(1) and (3), 362(k); actual damages; automatic stay, emotional distress damages, sovereign immunity
Chapter 13 debtors sought emotional distress damages against the IRS under §362(k) for post-petition collection attempts. The bankruptcy court rejected the government’s sovereign immunity defense and awarded $4000 in damages to debtors. The district court reversed, holding that sovereign immunity can only be waived by unequivocal statutory language; that a clear waiver of immunity cannot be found in §362(k); and that the “money recovery” against the government permitted by §106(a)(3) does not include emotional distress damages. As of March 22, 2017, the district court’s ruling is on appeal to the Ninth Circuit.
Krein v. Szewc (In re Szewc/Updegraff), Adv. No. 14-6086-tmr
March 6, 2016
11 USC §1328(a)(4), claim preclusion, issue preclusion, malicious injury, personal injury, postpetition debt, public nuisance, willful injury
In a state court action for damages based on the tort of public nuisance (a number of large dogs that barked almost incessantly), plaintiffs received an award of $238,942. Plaintiffs sought to have these damages excepted from discharge. The bankruptcy court divided the damages into those caused in three different periods. Those accruing in the years before debtors were found in violation of Jackson County Code provisions prohibiting dogs from causing unreasonable noise disturbances (over $69,000) were dischargeable as resulting only from negligence. The damages occurring in the two years between the Jackson County Code violation and the debtors’ chapter 13 filing (over $138,000) were the result of willful or malicious injury and thus excepted from discharge. Postpetition damages (over $34,000) were also excluded from discharge as postpetition debt.
Huffman v. Gollersrud (In re Westby), Adv. No. 16-6018-fra
February 13, 2017
11 USC §544(a)(1); ORS 71.2010(2)(c), 71.3030(2); ORS 79.0102(1), (tt)(A), (yy)(C), (LLL), and (2); ORS 79.0109(1)(a), (2), and (4)(k); ORS 79.0203(1) and (2)(a)-(c); ORS 79.0312(1), 79.0313(1), and 79.0317(1)(b)(A); constitutional authority; course of dealing; deed in lieu of foreclosure; equitable lien; lien creditor; merger; note; perfection; security agreement; security interest; trust deed
Debtor defaulted on his obligation to lender, then filed chapter 7. The lender’s proof of claim asserted a perfected security interest in real property pursuant to a recorded assignment of a third party note and trust deed. The trustee sued to avoid the lender’s lien, and the court ruled for trustee. Lender had failed to perfect his security interest in the note and trust deed by either filing a financing statement or taking possession of the note; therefore his security interest was subordinate to the trustee’s lien-creditor rights under the UCC and §544(a)(1) of the Bankruptcy Code. The court also rejected lender’s argument that he was entitled to an equitable lien.
In re Gilbert, Case No. 16-30040
September 15, 2016
Sanctions; 11 USC §§362(k), 362(c)(3), and 1301; co-debtor stay
The court denied debtor’s motion for sanctions and for a declaration that debtor’s landlord’s actions violated the automatic stay and the co-debtor stay, on the following facts. (1) Landlord sought to evict debtor from her apartment; (2) debtor filed her 2015 chapter 13 petition on the second day of the eviction trial; (3) the court granted relief from stay to allow the trial to continue and held that any claim against debtor for costs and attorney fees would be a claim in the bankruptcy case. (4) Debtor voluntarily dismissed her 2015 chapter 13 case and filed a 2016 chapter 13 case. (5) The state court held landlord was entitled to $23,000 in fees and costs against debtor and her attorney. (6) Debtor sought sanctions
Ruling against the debtor, the court held that the landlord’s actions did not violate the stay in the 2015 case (relief from stay had been granted, and the stay terminated when the case was dismissed), and the stay in the 2016 case had expired 30 days after the filing. There was no violation of the co-debtor stay because debtor’s attorney was not listed as a co-debtor in either the 2015 case or the 2016 case and there was no evidence he was a co-debtor on the petition date.
In re Wait, Case No. 15-33254-rld7
August 24, 2016
BR 9019, compromise, settlement
Applying the factors set forth in In re A & C Properties, 784 F.2d 1377 (9th Cir. 1986), the bankruptcy court approved the chapter 7 trustee’s settlement of debtor’s prepetition discrimination claim against her landlord.
In re Peak Web LLC, Case No. 16-32311-pcm11, Adv. No. 16-3083
August 24, 2016
Remand, permissive abstention, 28 USC §§ 1334(c) and 1452(b)
Creditor removed this consolidated action from California state court and debtor moved for permissive abstention or equitable remand. The court held abstention does not apply to cases removed from state court to federal court. It held that equitable remand to state court was warranted, however. Several factors favored remand: all the claims were state law claims, completion of the litigation was not a prerequisite to debtor’s ability to reorganize, debtor wanted to litigate in state court, the bankruptcy court could not conduct the jury trial both parties demanded because the parties did not consent, and the state court was poised to try the case promptly.
In re Hanlon, Case No. 15-64121-tmr7, Adv. No. 16-6040-tmr
August 15, 2016
11 USC §523(a)(15), ORS 106.300 et seq., FRCP 5.1 and LBR 9005-1.1, FRCP 12(b)(6), equal protection clause (US Constitution), privileges and immunities clause (Oregon Constitution), registered domestic partnership, spouse
Plaintiff and defendant were an unmarried opposite-sex couple in a long-term relationship. Their domestic partnership was dissolved via a state court proceeding in which plaintiff was awarded an attorney-fee judgment of over $41,000. Defendant subsequently filed a chapter 7 petition, and plaintiff brought an adversary proceeding to except her state court judgment from discharge under §523(a)(15). The court rejected plaintiff’s arguments that she was covered by the provision either by virtue of the type of proceeding in which her judgment arose or as the equivalent of a spouse. Plaintiff also argued she was similarly situated to one in a same-sex registered domestic partnership (RDP), and because the RDP scheme does not provide for opposite-sex couples it unconstitutionally discriminates. The court deferred ruling on constitutional issues until plaintiff complied with rules to enable the Oregon Attorney General to intervene.
In re Miller, Case No. 14-62036-fra7; Keating v. Deutsche Bank, Adv. No. 16-6023-fra&
May 27, 2016
Motion to Dismiss, Sale of Estate Property
The debtor’s bankruptcy schedules disclosed that a piece of real property was encumbered by a senior lien held by Deutsche Bank’s predecessor and a junior lien held by Bank of America. When Keating purchased the property, the trustee paid only the junior lien from the proceeds. Deutsche Bank sought to foreclose and Keating filed an adversary proceeding against Deutsche Bank and the trustee, both of which moved to dismiss.
The court denied the motions with respect to plaintiff’s claims for marshaling and estoppel, although noting that the claims needed to be repleaded to better state the claims. It granted, with leave to amend, claims against the trustee for negligence (failure to allege duty to plaintiff) and against Deutsche Bank for waiver (failure to allege notice of the sale).
Beard v. Ocwen Loan Servicing, LLP, Dist Ct Case No. 6:15-cv-01858-AA, In re Beard, Bankr Case No. 12-61206-tmr7
May 13, 2016
ORS 86.797(3) and 88.010(1) (2013), 11 USC §524, discharge injunction, judicial foreclosure
The bankruptcy court denied the debtor’s motion to find a foreclosing creditor and its law firm in contempt for violating the discharge injunction; the US district court affirmed. The creditor had obtained relief from stay post-chapter 7 discharge to judicially foreclose trust deeds. The judgments the creditor received included a money judgment against the debtor as then required by ORS 88.010(1). Both courts held that the money judgment did not establish personal liability of the debtor but rather established the amount the creditor could credit bid and the amount of sale proceeds due the creditor. ORS 88.010(1) was amended effective June 8, 2015 to clear up any perceived ambiguity in the effect of a money judgment in judicial foreclosures.
In an opinion not (yet?) posted on the Bankruptcy Court Website, the district court vacated a bankruptcy court judgment discharging accrued interest on a nondischargeable debt. In re Egbo, No. 3:15-cv-01580HZ. The listserve won’t let me attach the opinion, so here’s a link to a summary of the case: http://www.abi.org/newsroom/daily-wire/dischargeability-judgment-must-not-lower-interest-on-a-creditor%E2%80%99s-judgment
In re Todor, Case No. 11-64859-fra13, Adv. No. 14-6195, Appellate No. 6:15-cv-01120-AA
March 29, 2016
Fair Debt Collection Practices Act
The district court (Aiken) affirmed Judge Alley’s opinion holding that the Credit Bureau of Josephine County’s omission of “Inc.” from its name in its notices to Todor did not violate 15 USC §1692(e), in that the “least sophisticated debtor” would not conclude from the omission that the debt collector was a government agency.
In re Meeko, Case No. 14-35434-tmb13, USDC Case No. 3:15-cv-01200-AA
March 17, 2016
11 USC §1330, FRCP 60(b)
The US District Court affirmed the bankruptcy court’s denial of a secured creditor’s motion to vacate the chapter 13 confirmation order. After confirmation, the US District Court held in Bank of N.Y. Mellon v. Watt, 2015 WL 1879680 (April 22, 2015), that an involuntary vesting provision in a chapter 13 made that plan not confirmable, and the creditor relied in part on that decision. In affirming the bankruptcy court, the district court held that relief from a confirmed chapter 13 plan is available only in cases of fraud, court mistake of fact or clerical error.
In re Kent, Case No. 09-35124-tmb13
January 22, 2016
Discharge injunction; chapter 13; mortgage default; 11 USC §§524, 1322(b)(5), 1322(b)(2) and 1328
After debtors completed their plan and obtained a discharge, their mortgage creditor took collection actions. Debtors claimed these actions violated the discharge injunction and reopened their case to bring this contempt motion against the creditor. The bankruptcy court agreed with debtors that their personal liability had been discharged, but noted that they still needed to prove that the injunction had been violated and establish damages.
In re Bond, Adv. No. 15-6038-tmr
March 7, 2016
11 USC §§523(a)(2)(A) and (a)(4); ORS 67.155(2)(a), 68.340(1) (former), and 174.010(1)(a); fraud; fiduciary; fiduciary duty; issue preclusion; legislative history; partner; partnership; Revised Uniform Partnership Act; trust (technical or statutory); trustee; Uniform Partnership Act
In this adversary proceeding a former partner of debtor sought to have prepetition money awards excepted from discharge under §523. On plaintiff’s motion for summary judgment, the court held that it was bound by the issue-preclusive effect of the state court judgment and thus the elements of §523(a)(2)(A) had been met. Based on case law, ORS 67.155(2)(a) and legislative history, the court held that the Oregon legislature did not intend partners to act as trustees; thus defendant was not a fiduciary within the scope of §523(a)(4). The court granted summary judgment with respect to §523(a)(2)(A) and denied it with respect to §523(a)(4).
In re Banks, Case No. 14-35264-rld13
February 26, 2016
Arbitration, automatic stay, 9 USC §§2 – 4, 11 USC §§105 and 362
The issue in this case was enforcement of an arbitration provision in a payday loan agreement entered into prepetition by a chapter 13 debtor whose plan had been confirmed but whose case was still open. The court consulted the recent decision in Campos v. Bluestem Brands, Inc., 2016 WL 297429 (D Or Jan 22, 2016), and In re Thorpe Insulation Co., 671 F3d 1011 (9th Cir 2012), and concluded that compelling arbitration would not unfairly prejudice the debtor.
In re Hunsaker, Adv. No. 14-6218, Case No. 12-64782-fra13
January 13, 2016
Violation of automatic stay, emotional distress damages
Debtors notified the IRS of their bankruptcy filing but the IRS continued collection efforts, even after debtors’ lawyer wrote and advised the IRS of the bankruptcy and the automatic stay. In this adversary proceeding brought by the debtors, the court awarded them $4000 in emotional distress damages under §362(k) and In re Dawson, 390 F.3d 1139, 1148 (9th Cir. 2004), plus reasonable attorney fees.
In re D’Agnese, Case No. 15-61167-fra13
December 15, 2015
Plan not proposed in good faith, 11 USC §1325(a)(3)
The court held that debtor’s chapter 13 plan was not proposed in good faith and denied confirmation. Debtor had sold his business in 2011 but had not used the proceeds of the sale (as required by judgment of dissolution) to pay anything to his former wife, whose claims constituted 98% of total claims against him. His plan would have paid about 1% of unsecured claims, including that of his former wife. The court noted that confirmation would have discharged the bulk of the debt debtor had chosen not to pay by his inequitable conduct. The debtor converted to chapter 7
In re Howland, Case No. 14-31498-rld7
December 3, 2015
11 USC §510(a) and (c), statute of limitations, subordination of claims
The debtor’s father had given loans to debtor totaling $580,000, and the father filed a proof of claim in that amount. Bank of the Cascades objected. The court determined that a loan agreement did exist, but the California limitations period had expired for all but $205,000 of the loans. The claim in this amount would be allowed but subordinated, pursuant to §510(a), to the allowed claims of debtor’s other creditors. The court concluded that §510(c) did not apply, as the debtor had not engaged in inequitable conduct.
In re Sanger-Morales, Case No. 14-31997-rld7
October 21, 2015
Discharge, vacate, dismissal for cause, voluntary dismissal, §707(a)
After receiving a chapter 7 discharge and after her case was closed, the debtor reopened the case, seeking to obtain a discharge of certain tax obligations that had not been discharged initially. She then moved to dismiss under §707(a). The court denied the motion and reclosed the case, concluding that the debtor had not established cause under §707(a) and that equity did not justify granting her motion.
In re Jacobson, Case No. 11-63542-tmr7
September 28, 2015
11 USC §§541(a)(1) and 558, ORES 18,395(1), homestead exemption, settlement, specific performance
After debtors’ chapter 7 case had closed, their home lender brought a foreclosure suit in state court. Debtors counterclaimed for specific performance of an alleged prepetition breach of a mortgage modification. The court reopened the bankruptcy case to allow a trustee to administer the counterclaim. The trustee settled all prepetition claims for a payment of $10,000; debtors objected and sought to claim their counterclaim as exempt under Oregon’s homestead exemption. Trustee and lender objected to the exemption claim and the court sustained the exemption. It also approved the settlement over debtors’ objection.
In re Cronk, Adv. No. 14-6220-tmr
September 25, 2015
11 USC §§101(54), 522(d)(5), 522(h), 547(b)(5), 547(c)(8): ORS 18.300, 18.385, 18.700(1) and (2), 18.725; check; federal wildcard exemption; garnishment; preference; transfer
The debtor sought to recover prepetition wage garnishments under §522(h). Two garnishments had been completed prepetition; they totaled less than $600 so the creditor prevailed under §547(c)(8). A third garnishment was pending on the petition date; that is, the check had been issued but the creditor had not cashed it. The court held the debtor could assert her federal wildcard exemption with respect to that check, and it ordered the garnishee to issue a replacement check to debtor.
In re Holman, Case No. 14-35381-rld7, Adv. No. 14-3285
September 8, 2015
Justifiable reliance, financial statement, reckless indifference, §523(a)(2)(A) and (B)
Creditors sued debtor husband and wife seeking a determination that a debt was nondischargeable based on fraud. Following summary judgment proceedings and a trial, the creditors prevailed only on their §523(a)(2)(B) claim against the husband, based on his reckless indifference to the accuracy of the allegedly fraudulent financial statement.
In re Freeland, Case No. 14-61439-fra7, Adv. No. 14-6102-fra
September 2, 2015
Student loan discharge, §523(a)(8), Brunner, minimal standard of living
Applying the Brunner test, the court held that the debtors were not eligible for a hardship discharge of student loan debt. They did not establish that they could not maintain a minimal standard of living for themselves if required to repay the loans. Bankruptcy courts should take into account the availability of income-based repayment plans when determining dischargeability of student loan debt under §523(a)(8).
In re Christianson, Case No. 15-60288-fra13
August 12, 2014
Chapter 13 confirmation, tax refunds, vehicle ownership expense, projected disposable income
The court denied confirmation of a chapter 13 plan with leave to file an amended plan. It ruled that a 2014 tax refund was, as debtors argued, a prepetition asset (January 2015 filing), but that to avoid shortchanging the estate, debtors would be required to turn over to the trustee their 2019 tax refund; no discharge until the trustee either receives the refund or determines no refund was due. On a second issue, the court ruled that the debtors could use as their car expense on Form 22C-2 the amount prescribed in the National and Local Standards rather than their actual (significantly lower) car payment.
In re Brown, Dist. Ct. Case No. 3:15-cv-00205-BR; Case No. 12-32313-tmb7; Adv. Nos. 14-3104-tmb, 12-3167-tmb, 12-3169-tmb
June 18, 2015
Settlement, statute of frauds, ORS 41.580(1), mutual mistake, indefiniteness
As trial on two nondischargeability proceedings approached, debtor Brown and his nondebtor spouse negotiated a global settlement agreement and counsel reported to the bankruptcy court that the matters had settled. Later the Browns refused to sign a formal settlement agreement, arguing that the value of certain real property was a material fact underlying the settlement and the parties’ belief about that value was mistaken. The bankruptcy court issued a lengthy letter ruling rejecting the Browns’ arguments and holding a settlement had been reached. The district court affirmed.
In re Ohlsson, Dist. Ct. Case No. 6:14-cv-01686-AA
June 17, 2015
11 USC §§101(14A) and 523(a)(5), domestic support obligation, nature of support
In a prepetition dispute between debtor and her ex-spouse over a parenting plan, the state court ordered debtor to pay ex-spouse’s attorney fees. In debtor’s chapter 7 case, ex-spouse sought to have the attorney fee award excepted from discharge as in the nature of a support obligation. The bankruptcy court ruled in debtor’s favor and the district court affirmed. A significant factor in this outcome was the state court’s finding that the attorney fee award would deter others from pursuing meritless claims; thus the debt’s basis was not support of the child but punishment of the debtor.
In re Todor, Adv. No. 14-6195-fra, Case No. 11-64859-fra13
April 16, 2015
Violation of automatic stay; Fair Debt Collection Practices Act
Credit Bureau of Josephine County was assigned a claim against Todor after Todor’s chapter 13 plan had been confirmed. Credit Bureau contacted Todor about the claim and continued to do so even after being informed of the bankruptcy; eventually it filed a small claims proceeding. The proceeding was removed to bankruptcy court, where Credit Bureau conceded it had violated the automatic stay and the FDCPA. The court awarded Todor $500 and reasonable attorney fees for the violations. The court also ruled that Credit Bureau’s omission of “Inc.” from its name in its notices to Todor did not violate 15 USC §1692(e), in that the “least sophisticated debtor” would not conclude from the omission that the debt collector was a government agency.
In re C & K Market, Inc., Adv. No. 14-6119-fra, Case No. 13-64561-fra11
April 16, 2015
Subordination agreement, payment under plan on subordinated claim
This opinion addresses cross motions for summary judgment in an adversary proceeding seeking to enforce subordination agreements. The court ruled (in favor of plaintiffs) that the subordination agreements had not been terminated by payment of underlying debts, nor were they terminated by the terms of the chapter 11 plan. Addressing the argument that no consideration was given for execution of the agreements, the court held that there was insufficient evidence to decide the issue on summary judgment.
In re Watt, Case No. 14-31295, USDC Case No. 3:14-cv-02051-AA
April 29, 2015
11 USC §§1325(a)(5)(C) and 1322(b)(9)
The US District Court reversed the bankruptcy court’s confirmation of a chapter 13 plan that vested title to certain real property in the lienholder. Although §1322(b)(9) allows vesting in a third party, under §1325(a)(5) the third party must consent. The lienholder here did not consent.
In re Endresen, Case No. 11-35396-rld7, Adv. No. 14-3131-rld
April 15, 2015
11 USC §552(a) and (b)(1), property of the estate, attachment and perfection
This case involves the status of settlement proceeds from a construction defect case. Debtors had purchased several pieces of real property in 2004 with loans secured by trust deed liens on the properties. Debtors filed for chapter 7 in June 2011 and received a discharge in October 2011. Beginning in 2013 the debtors were parties to a state court action in which they alleged construction defects in the properties, allegedly discovered in 2012. The bankruptcy court reopened the chapter 7 case in 2014, and approved a settlement of the construction defect claims. The trustee brought an adversary proceeding against debtors and lenders seeking a determination that the settlement proceeds were property of the estate and that the lenders had no enforceable security interest in the proceeds. The court ruled, on cross-motions for summary judgment, that the proceeds were part of the bankruptcy estate and that the lenders’ security interests were enforceable against the estate.
In re Herbert, Case No. 14-33702-tmb13, Adv. No. 14-03211-tmb
April 3, 2015
11 USC §362(b)(1), automatic stay, In re Gruntz
Debtor was convicted of stealing from Bender, her former employer, and ordered to pay restitution. She filed for bankruptcy without having satisfied this obligation. Bender asked the state court to take action to collect the debt, and then filed an adversary proceeding seeking a nondischargeability determination. Debtor counterclaimed for violation of the automatic stay. On cross-motions for summary judgment, the court ruled that §362(b)(1), which excludes criminal proceedings from the scope of the automatic stay, does not apply to private creditors that enlist state courts in collection efforts.
Nunez v. Key Education Resources/GLESI, Adv. No. 14-3177-rld, Case No. 14-32528-rld7
March 13, 2015
11 USC §523(a)(8), dischargeability, educational benefit, qualified education loan
The debtor’s debt to Wings of the Cascades, a flight school, could be discharged. The court granted debtor’s motion for summary judgment, holding that §523(a)(8)(A)(i) and (ii) did not cover the loans because those provisions excepted from discharge only obligations to governmental or nonprofit institutions. The debt at issue was owed to a for-profit entity. Further, the loans were not excepted from discharge under §523(a)(8)(B): they were not “qualified education loans” as defined by 26 USC §221(d) because Wings of the Cascades was not an “eligible educational institution” under 26 USC §25A(f)(2).
In re Pacific Cargo Services, Case No. 13-30439-tmb7, Adv. No. 13-3212-tmb, Appellate No. OR-14-1036
February 19, 2015
Preferential transfer, property of the estate
Debtor entered into a settlement agreement in a class action case brought by several of its employees. As part of the settlement, debtor assigned any legal malpractice claims it may have had against its former counsel. Three weeks later debtor filed a chapter 11 petition, later converted to chapter 7. The trustee brought an adversary proceeding against the class-action plaintiff-employees, seeking to recover the assignment of claims as a preferential transfer. Employees argued that the malpractice claims had not “accrued” as of the petition date and thus there had not been a transfer of property of the estate. The bankruptcy court ruled in favor of the trustee and the BAP affirmed, holding that the claims were property of the estate on the petition date.
In re Sugg, Case No. 14-60916-fra1 3
July 22, 22, 2014
11 USC §109(e), chapter 13 eligibility, liquidated claim
The chapter 13 trustee moved to dismiss the case on the ground that unsecured debts exceeded the limit allowed in §109(e). The court denied the motion, holding that the claim the trustee argued put the debt over the limit was unliquidated and therefore not included in the §109(e) computation.
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