U.S. SUPREME COURT CASE NOTES

By Justice Brooks | Foster Garvey PC
County Cannot Overstep Authority in Foreclosure Related to Tax Debts
Tyler v. Hennepin Cnty., 598 U.S. 631 (2023)

In Tyler, the pivotal question before the U.S. Supreme  Court was whether a Minnesota law that permits a county to retain more than the tax debt owed by a property owner constitutes a “taking” under the Takings Clause of the Fifth Amendment and if such excessive forfeiture also infringes upon the Excessive Fines Clause of the Eighth Amendment.

This legal battle originated when Geraldine Tyler, after relocating to a senior living facility, ceased paying property taxes, which accumulated to a debt of $15,000. Hennepin County subsequently foreclosed and sold her condominium for $40,000, retaining $25,000 over the debt amount.

The lower courts delivered conflicting decisions. The U.S. District Court for the District of Minnesota initially dismissed Tyler’s suit for failing to state a claim. However, upon appeal, the Supreme Court granted certiorari due to the broad implications of the case on public debt compensation practices, especially in the context of property forfeitures.

The Supreme Court unanimously ruled that the Minnesota statute indeed resulted in a “classic taking,” clearly violating the Fifth Amendment. The Court meticulously analyzed the statutory framework, highlighting that the plain language of the Takings Clause protects property owners from government overreach that extends beyond the debt owed. In its decision, the Court dismissed the county’s argument that Tyler had abandoned her property rights by failing to pay taxes, noting the absence of legal precedent supporting such a stance.

Furthermore, the Court chose not to fully address the Excessive Fines Clause issue since the resolution under the Takings Clause sufficiently remedied the harm to Tyler. Nonetheless, a concurrent opinion by Justice Gorsuch, joined by Justice Jackson, criticized the lower courts’ handling of the Excessive Fines analysis, indicating potential grounds for Tyler’s success on this issue as well.

This landmark decision not only clarified the scope of governmental authority in property foreclosures related to tax debts but also set a precedent emphasizing the constitutional protections against excessive governmental forfeiture.

NINTH CIRCUIT CASE NOTES

By Danny Newman and Eric Levine | Tonkon Torp LLP
Without a ‘Limited Fund’ Bankruptcy Plan, Creditors Lack Standing to Challenge Trustee Compensation
In re East Coast Foods, Inc., 80 F.4th 901 (9th Cir. 2023)

This case involved a challenge to the Chapter 11 trustee’s compensation by a general unsecured creditor where that creditor was eventually to be paid in full with interest. The 9th Circuit held that the general unsecured creditor lacked Article III standing to challenge fees under those circumstances.

In 2016, East Coast Foods filed for Chapter 11 bankruptcy, and an official committee of unsecured creditors was appointed to monitor East Coast Foods’ activities. After an examiner found that East Coast Foods could not meet its fiduciary obligations, Sharp was appointed as trustee.

By any measure, Sharp did a decent job. Over the course of two years, he worked with the committee and created a plan that guaranteed full payment—with interest—to all creditors. The guarantee was secured by a collateral package that included equity in assets with a value nearly doubling the outstanding debt. The plan is projected to pay off its final creditor in four to six years.

Sharp was so confident in his work that he sought the maximum fee for a trustee allowable under the Bankruptcy Code—then $1,155,844.71. That represented his loadstar figure ($758,955.50) plus an upward enhancement of 65% for exceptional services. An unsecured creditor, Clifton Capital Group, LLC (“Clifton”), objected to the enhancement. The bankruptcy court overruled the objection, and Clifton appealed to the district court.

There, Sharp argued Clifton lacked standing because it was not an aggrieved party. The district court disagreed, finding that Clifton was an “aggrieved party” because there was insufficient capital to pay it in full. It then held that Sharp’s increased compensation aggrieved Clifton by further subordinating its debt. It remanded for further factual finding on the reasonableness of Sharp’s enhancement. On remand, the bankruptcy court again found Sharp was entitled to an enhancement, and Clifton again appealed. This time, however, the district court affirmed Sharp’s fee award, and Clifton appealed to the 9th Circuit.

Before addressing whether Clifton was an “aggrieved person,” the 9th Circuit held that an “aggrieved person” standing in bankruptcy is prudential standing, and the court should first consider whether Clifton had Article III standing. Clifton argued that it suffered an injury in fact because it had not been paid in full on its claim. Sharp countered that injury was conjectural and hypothetical because the bankruptcy plan would pay all creditors in full, and Clifton would suffer no injury by a delay in receiving its payment because all creditors would be paid in full with interest.

The 9th Circuit agreed with Sharp. It held that the district court erred in applying “limited fund” jurisprudence to this case where “additional monies” were available if East Coast Foods deviated from the bankruptcy plan. Because the guarantee, if liquidated, was sufficient to pay all creditors in full with interest, there was no “limited fund,” and Clifton suffered no injury in fact. Nor did the 9th Circuit agree with Clifton that it was injured by a delay in payment. For one thing, Clifton would be paid interest on its debt, and for another, the bankruptcy plan did not guarantee a date by which all creditors would be paid. The 9th Circuit noted that the estimated time period when creditors would be paid had not elapsed by the time it decided this case, providing another example of why the case was not yet ripe.

This case is a good result for all of us who like to get our fees paid!

Increases in Home Equity Between Chapter 13 Reorganization Filing and Conversion to Chapter 7 Liquidation Belong to Estate and Not Bankruptcy Debtors

In re Castleman, 75 F.4th 1052 (9th Cir. 2023), cert. denied, 144 S. Ct. 813 (2024)

This case presented the question of whether post-petition, pre-conversion increases in the equity of an asset belong to the bankruptcy estate or to debtors who convert their Chapter 13 debt adjustment petition into a Chapter 7 liquidation. In a split decision, the 9th Circuit concluded that any appreciation in the property value and corresponding increase in equity belongs to the estate upon conversion.

Debtors John Felix Castleman, Sr., and Kimberly Kay Castleman (the “Castlemans”) filed Chapter 13 petitions. At the time, their house was valued at $500,000. About 20 months later, they had trouble making their payments and opted to convert to a Chapter 7 liquidation. In the interim, the value of the Castlemans’ home increased by about $200,000. The Chapter 7 trustee filed a motion to sell the house and recover its value for creditors; the Castlemans objected and argued the increased equity belonged to them.

On appeal, the 9th Circuit—as it has been doing more consistently for several years now—relied on the plain language of Section 348(f), which states, “property of the estate in the converted case shall consist of property of the estate, as of the date of filing of the petition, that remains in the possession of or is under the control of the debtor on the date of conversion.”

It held that this language was unambiguous when read in the context of the rest of the Bankruptcy Code. It looked to, most importantly, Section 541(a), which defines “property of the estate” as all legal or equitable interests of the debtor in property as of the commencement of the case. The court reasoned that post-petition appreciation in assets is not separate, after-acquired property. Rather, the equity is inseparable from the real estate, which was always property of the estate under Section 541(a).

In so holding, the 9th Circuit split with other courts. The court noted that many disagreeing courts rely on the legislative history for Section 348(f), which was enacted to clarify whether new property acquired during the course of Chapter 13 proceedings becomes property of the converted estate. However, the court held that the language of Section 348(f) was not ambiguous, so it would not consider the legislative history. It likewise disagreed with courts that rely on the implicit operation of Section 1327(b) because Congress could have expressly cross-referenced Section  1327(b) if that is what it intended.

The majority drew a spirited dissent from Judge Tallman, who argued the majority scarified the text of the bankruptcy  statute on the altar of simplicity. He continued that reading the Bankruptcy Code as a whole, and not just Section 541(a), reveals that “property of the estate” is defined differently in the Chapter 7 and Chapter 13 contexts. To Judge Tallman, the majority’s reading contradicted the Code’s structure, object, policies, and legislative history. Judge Tallman concluded by stating that reasonable judicial minds could disagree on the issue and called on Congress to clarify the operation of Section 348.

The Eighth Circuit Court of Appeals recently aligned  itself with the Castleman panel majority. See Goetz v. Weber (In re Goetz), 95 F.4th 584 (8th Cir. 2024) (holding that “a post-petition, pre-conversion increase in equity in the debtor’s residence became property of her converted bankruptcy estate”).

Debtor with Assets Who Fails to Properly Serve Creditor Will Not Discharge Any Debt to Them

Licup v. Jefferson Ave. Temecula LLC, __ F.4d __, 2024 WL 1151662 (9th Cir. 2024)

This case presented the question of whether any portion of an unscheduled debt is dischargeable in a Chapter 7 bankruptcy proceeding. The 9th Circuit concluded the answer is no.

Christina Castro and her spouse, Edwin C. Licup, filed for Chapter 7 bankruptcy but did not give notice to one creditor. For that creditor, Jefferson Avenue Temecula LLC (“Jefferson”), Castro and Licup incorrectly listed the mailing address for Jefferson’s attorney on their schedule. Jefferson did not file a claim in the bankruptcy action, which closed in 2016.

In 2021, Jefferson sued to collect its debt. Castro and Licup filed a motion for summary judgment arguing that the only nondischarged debt was the limited amount that Jefferson would have recovered had it filed its claim in the original bankruptcy and been treated the same as other unsecured creditors ($1,614.74 out of $31.780.29). The bankruptcy court rejected this argument and sua sponte granted summary judgment for Jefferson. It concluded that no portion of Jefferson’s debt was dischargeable because it was undisputed that Jefferson had no notice of the bankruptcy case, and holding otherwise would violate its due process rights. The bankruptcy appellate panel affirmed.

The 9th Circuit also affirmed. As an initial matter, the court concluded that Jefferson had standing. Castro and Licup argued Jefferson lacked standing because its debt—an unlawful detainer judgment against Christina Castro, LLC, and not Christina Castro, D.D.S.—was unenforceable. The court did not decide on that question. For standing purposes, it concluded that Jefferson suffered an injury in fact when its debt remained unpaid. Whether it could enforce its judgment was a matter of state law, and a separate question from the one presented by the appeal: whether a debt could be discharged without providing notice.

On the merits, Castro and Licup argued that the court should apply its “non-asset” bankruptcy jurisprudence to cases where there are assets to limit the nondischargeable amount to the amount the creditor would have received if it filed a claim. Non-asset cases, such as In re Beezley, 994

F.2d 1433 (9th Cir. 1993) (per curiam), found no problem with discharging all debts despite the debtor not notifying creditors of the bankruptcy.

The 9th Circuit rejected the Debtors’ argument because in no-asset, no-bar-date Chapter 7 bankruptcy cases, there are no assets to distribute, so it would be “meaningless and worthless” for creditors to file claims. Because the court refused to create a carve-out to reduce the nondischargeable amount in any way, 11 U.S.C. § 521(a)(1) applied in full. Castro and Licup failed to comply with the requirements to have a debt discharged, so their debt to Jefferson rode through unimpacted and stood as if the bankruptcy had never occurred.

Factoring Company Holding Itself Out as Secured Creditor Is Treated as Creditor against Bankruptcy Estate and Not Purchaser of Future Asset

In re Medley, 2024 WL 49806 (9th Cir. Jan. 4, 2024)

Factorers often make creative arguments about their idiosyncratic arrangements with debtors. The 9th Circuit has rejected several of them in a potential blow to the industry.

Jill Suzann Medley was a real estate broker who received an advance on her commission for the sale of a property from Precision Business Consulting, LLC (“Precision”). Before the property was sold, Medley filed for Chapter 13 bankruptcy. Later, when the property was under contract, and several months after receiving notice of the bankruptcy petition, Precision contacted both Medley and her client to collect its assigned portion of the commission. Subsequently, Medley’s petition was dismissed, and she filed a motion for sanctions against Precision for violating the automatic stay under 11 U.S.C. § 362(k). After an evidentiary hearing, the bankruptcy court granted the motion. The BAP affirmed.

Precision made three arguments, and the 9th Circuit rejected them all. First, it argued that as a factoring company, it had purchased Medley’s commission, so the commission was not part of the bankruptcy estate. The court applied the test for recharacterization from Boucher v. Shaw, 572 F.3d 1087 (9th Cir. 2009) (en banc), to determine that the transaction was a loan, not a sale. That was so because Medley would have full liability if settlement failed to occur—i.e., she bore the full transaction risk. See Shaw, 572 F.3d at 802 (holding that the primary factor for recharacterizing a sale as a loan is who bears the risk). Moreover, Precision held itself out as a secured creditor by filing a proof of claim, commenting that it had perfected a security interest in the property. That was sufficient to determine Precision made a loan, not a purchase, and the commission was part of the bankruptcy estate.

Next, Precision argued it did not intentionally violate the stay because it had a good faith belief that it had purchased the commission. The court again rejected that position because intentional volition of the stay provision requires only knowledge of the stay and that the creditor’s actions that violated the stay were intentional.

Finally, Precision argued that it owned the money it gave Medley before she filed for bankruptcy, and Medley simply possessed it. Therefore, its collection effort was simply an attempt to retain its own property. However, the court concluded that an automatic stay is intended to preserve the status quo. And because Medley held the money at the time of filing for bankruptcy, the stay operated to allow her to continue holding it. As the court rejected all three of Precision’s arguments, it affirmed the sanctions imposed against Precision.

NINTH CIRCUIT BAP CASE NOTES

By Reece Petrik | Law Clerk to Judge Teresa H. Pearson
Deferred Settlement Agreements Cannot Be Assumed as Executory Contracts
In re Svenhard’s Swedish Bakery, 653 B.R. 471 (B.A.P. 9th Cir. 2023)

The Ninth Circuit BAP recently explored the issue of whether deferred settlement agreements can be assumed as executory contracts pursuant to 11 U.S.C. § 365. The BAP affirmed the lower bankruptcy court and held that the settlement agreement at issue could not be assumed. A closer look at the facts and reasoning follows.

Prior to bankruptcy, the Debtor operated a bakery business. The Debtor executed a sale of the business to a third party in 2014 with a five-year lease-back of its operations. In 2015, the Debtor closed its Oakland, Calif., bakery and relocated to Exeter, Calif., terminating its union workforce in the process, effectively withdrawing from the Confectionery Union and Industrial Pension Fund. The Pension Fund notified the Debtor it had incurred liabilities totaling approximately $50.6 million due to its withdrawal from the Pension Fund and its failure to make contributions to the fund related to severance pay and accrued vacation.

The Debtor was unable to pay and instead negotiated a settlement agreement with the Pension Fund, wherein the Debtor would make monthly payments on a reduced liability in exchange for a release of the Pension Fund’s claims against the Debtor. The Debtor later defaulted on its payment due for December 2019 and shortly thereafter filed for bankruptcy. In the bankruptcy case, the Debtor sought to assume and assign the settlement agreement to the third party to which it had sold its business. The Pension Fund objected, arguing that it was not an executory contract under Ninth Circuit law. The bankruptcy court agreed with the Pension Fund, and the Debtor appealed.

On appeal, the BAP agreed with the bankruptcy court’s denial of the motion to assume and assign the settlement. In doing so, the BAP explained that the Ninth Circuit uses the “Countryman test” definition for executory contracts. See In re Robert L. Helms Constr. & Dev. Co., 139 F.3d 702, 705 (9th Cir. 1998). Coined by Professor Countryman, that test states “[A] contract is executory if ‘the obligations of both parties are so unperformed that the failure of either party to complete performance would constitute a material breach and thus excuse the performance of the other.’” Id. (quoting Griffel v. Murphy (In re Wegner), 839 F.2d 533, 536 (9th Cir. 1988). Maryland  law governed the settlement agreement. The BAP applied Maryland’s law on contracts and found that the Pension Fund’s obligation to release its claims against debtor only arose when the condition precedent—debtor’s full payment under the agreement—was met.

Under these facts, the Pension Fund was incapable of materially breaching the contract in such a way that would excuse the Debtor’s obligation to perform. Rather, the Debtor’s performance was required first under the contract, and only then did the Pension Fund have an obligation to perform by executing releases. The BAP also cast doubt on whether a failure to execute releases would be a “material” breach, noting that the releases would be merely ministerial when the Debtor’s proof of payment could otherwise serve as a complete defense to any collection action. In reaching this conclusion, the BAP deftly noted that “an executory contract is one where both parties have something at risk,” and here, the Debtor bore no risk if the Pension Fund materially breached its end of the deal. Thus, the contract could not be assumed and assigned pursuant to 11 U.S.C. § 365.

Section 1322(c)(2) Permits Bifurcation of Mortgages Maturing Before Final Plan Payment

In re Lee, 655 B.R. 340 (B.A.P. 9th Cir. 2023)

The BAP recently decided an issue of first impression in the Ninth Circuit: whether a mortgage maturing before a final plan payment may be bifurcated and crammed down. The BAP affirmed the lower bankruptcy court, which held that pursuant to 11 U.S.C. § 1322(c)(2), chapter 13 debtors may bifurcate and cram down such claims. In doing so, the BAP joined the Fourth Circuit, Eleventh Circuit, and other courts that have previously addressed the issue. The decision has since been appealed to the Ninth Circuit, which has yet to issue a ruling.

The opinion itself covers numerous facts, arguments, and issues. But the central facts and issues can be summarized relatively easily. The Debtors were a husband and wife whose primary asset was their home. The home had a first mortgage against it followed by a junior lien arising from a HELOC. The Debtors’ first plan proposed bifurcating the HELOC claim pursuant to 11 U.S.C. § 1322(c)(2). The HELOC creditor disputed the home’s value, amongst numerous other objections, and the court eventually fixed the value at an amount that still left the HELOC claim undersecured.

The HELOC creditor raised objections to the Debtors’ first, second, third, and fourth proposed plans. In their objection to the third plan, the HELOC creditor argued for the first time that the Debtors’ proposed treatment was impermissible under 11 U.S.C. § 1322(b)(2), which prohibits modification of a claim secured by the Debtor’s primary residence. The HELOC creditor raised the argument again in their objection to the fourth plan. When confirming the fourth plan, the bankruptcy court held that 11 U.S.C. § 1322(c)(2), while not very clearly written, permitted the Debtors’ proposed bifurcation of the claim. The HELOC creditor appealed.

On appeal, the BAP looked at 11 U.S.C. §§ 1322(b)(2), (c)(2), and 1325(a)(5), as well as relevant case law. The HELOC creditor argued that the Supreme Court’s decision in Nobelman v. Am. Sav. Bank, 508 U.S. 324 (1993) prohibited the bankruptcy court from modifying anything other than the repayment terms of its claim. Meanwhile, the Debtors argued that 11 U.S.C. § 1322(c)(2) allows modification of the claim itself. The BAP noted that the Nobelman decision predated Congress’s amendment of 11 U.S.C. § 1322(c)(2), and this amendment overrode the Court’s interpretation in Nobelman. Turning to how other courts had addressed the issue, the BAP noted the Fourth Circuit had initially agreed with the HELOC creditor in its Witt v. United Co. Lending Corp. (In re Witt), 113 F.3d 508 (4th Cir. 1997) decision, only to reverse 22 years later in its Hurlburt v. Black, 925 F.3d 154 (4th Cir. 2019) decision. In addition, numerous other jurisdictions had reached the same result as Hurlburt.

In all these decisions, the courts agreed that 11 U.S.C. § 1322(c)(2) was an exception to the general prohibition outlined in 11 U.S.C. § 1322(b)(2), while 11 U.S.C. § 1322(c)(2)’s plain language permitted modification not just of payment terms, but also of the claim itself, by its reference to 11 U.S.C. § 1325(a)(5). The BAP agreed, noting that 11 U.S.C. § 1322(c)(2)’s language is not ambiguous, though perhaps not ideal or perfect either. Thus, for the time being, chapter 13 debtors may now bifurcate undersecured claims against their primary residence in the Ninth Circuit.

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NINTH CIRCUIT BAP CASE NOTES

By Reece Petrik | Law Clerk to Judge Teresa H. Pearson
Deferred Settlement Agreements Cannot Be Assumed as Executory Contracts
In re Svenhard’s Swedish Bakery, 653 B.R. 471 (B.A.P. 9th Cir. 2023)
Debtors brought this adversary proceeding to avoid as a preference under §547(b) the transfer of their real property to Klamath County, which had occurred upon entry of a judgment of foreclosure of tax liens by the Klamath County Circuit Court more than two years before debtors filed their bankruptcy case.

The court ruled against debtors. Under ORS Chapter 312, a judgment of foreclosure of tax liens unambiguously divests property owners of their ownership rights, leaving only the right to redeem the property and to possess it during the redemption period. After expiration of the redemption period, debtors held no “property or interest in property.” Finally, consistent with ORS 18.165, Klamath County’s interest in the property was perfected upon entry of the certified copy of the judgment into the court registry. Because both transfer and perfection occurred more than two years before the case was filed, the transfer fell outside the 90-day window of § 547(b) and could not be avoided.

Szanto v. Bank of America, Adv. No. 16-3118, Case No. 16-33185

April 30, 2018
Summary judgment, statute of frauds, modification of HELOC, part performance, full performance, estoppel
The debtor sued for specific performance of an alleged modification of his home equity line of credit. The bank moved for summary judgment and the court granted the motion: debtor did not provide evidence that the alleged loan modification was in writing as required by the California statute of frauds.

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
§523(a)(2)(A)
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: https://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); trus

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, 2015)

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 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 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 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 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 Mazzucca, Case No. 09-40830-rld7 (February 17, 2015)

Motion to avoid judicial liens, 11 USC §522(f)(1), ORS 18.345(1)(o)

Debtors moved to reopen their closed chapter 7 case so they could move under §522(f)(1) to avoid judicial liens on their residence and several rental properties. They also filed amended schedules reasserting their homestead exemption and claiming $5 exemptions for each of their rental properties under ORS 18.345(1)(o). They did not specify whether they sought the latter exemptions under the 2009 version of ORS 18.345(1)(o) (year they filed) or the 2013 version (most current). The court granted the lien avoidance motion on debtors’ residence but denied the other motions, holding that neither version of ORS 18.345(1)(o) allowed debtors to claim an exemption in their rental properties.

In re Benbrook, Case No. 11-60781-fra12 (February 10, 2015)

Post-confirmation objection to secured claim, laches

Chapter 12 debtor settled a secured creditor’s objection to confirmation in an agreement providing for a secured claim of $544,730, monthly interest-only payments at 6%, and 36 months in which debtor had authority to market the property to pay all creditors in full. Authority to market the property would pass to the trustee if debtor did not succeed. At the end of the 36-month period debtor proposed a sale of the property to her brother for $500,000 and also filed an objection to the $544,730 claim. The court applied the equitable doctrine of laches and held that the debtor had waited too long to object to the claim. The debtor’s objection to claim was denied, the proposed sale could not proceed, and authority to market the property passed to the trustee.

Pachulski Stang Ziehl & Jones v. Arlie & Co., Adv. No. 14-6206-fra, Case No. 10-60244-fra11 (February 4, 2015)

Subject matter jurisdiction, post-confirmation jurisdiction

Plaintiff law firm moved to reopen a chapter 11 case post-closing, and filed an adversary proceeding seeking attorney fees still owed by debtor. Plaintiff and debtor had, post-plan-confirmation but pre-closing, entered into an agreement providing for payment of the administrative-claim attorney fees over time; debtor had stopped making payments with about $260,000 still owing. The court held it lacked subject-matter jurisdiction, characterizing the claim as a post-confirmation default of a post-confirmation promissory note. The court held it also lacked subject-matter jurisdiction over debtor’s counterclaim seeking disgorgement of amounts already paid under the note. It dismissed the adversary proceeding.

In re Moglia, Case No. 11-35022 elp (December 30, 2014)

Plan modification; §§1325(a)(4), 1325(b)(1), 1325(b)(4), 1329(a), 1329(b), 1329(c), 1330

The court denied a creditor’s motion to modify the debtor’s confirmed chapter 13 plan, rejecting all the creditor’s arguments. The court refused to extend the plan’s applicable commitment period – the creditor’s argument that debtor’s income was above-median at the time of confirmation is one that must be raised at the time of confirmation – and found that cause did not exist to change the commitment period. The court also rejected the argument that the “best interest” number from §1325(a)(4) and the “best efforts” number from §1325(b)(1)(B) are cumulative. Finally, the creditor waited too long to allege that the debtor had failed to disclose assets; §1330 is the appropriate statute for that argument and it sets a deadline of 180 days after confirmation. Apparently three years had passed since confirmation.

In re Taggart, Case No. 09-39216-rld7 (December 16, 2014)

Discharge, discharge injunction, willful violation, 11 USC §524

The court found a willful violation of the discharge injunction by members of an LLC of which the debtor was a member and their attorney. The LLC members had, post-discharge, resumed state court litigation to expel the debtor; following a judgment for expulsion, the LLC sought and obtained a supplemental judgment for attorney fees. The LLC members and their attorney knew of the existence of the discharge and they intended the actions that violated the discharge injunction.

US Trustee v. Cam, Adv. No. 13-3318, Case No. 13-34588 (December 8, 2014)

11 USC §§727(a)(4)(A), 727(a)(3) and 727(a)(5)

The court denied discharge to a berry farmer who had conducted much of his business in cash and claimed to have transferred one of his two berry farms to his sister before bankruptcy. The court’s findings led to denial of discharge on three claims: that the debtor had made false statements on his bankruptcy documents (§727(a)(4)(A)); that he failed to keep adequate records (§727(a)(3)); and that he failed to explain the loss or deficiency of assets (§727(a)(5)).

In re Yarber, Case No. 14-32582-rld7 (November 10, 2014)

Objection to exemption, 11 USC §§522(d)(5) and 522(g)(1)(A)

The court ruled, over the trustee’s objection, that a deposit made by the debtor in lieu of a bail bond was exempt. It did not constitute a voluntary transfer, as the trustee argued, because it was the only way the debtor could avoid being incarcerated (on a charge that was later dropped).

In re Watt, Case No. 14-31295 (October 14, 2014)

11 USC §1325(a)(5)(C), 11 USC §1322(b)(9)

Over the objection of the senior lien holder, the court approved a chapter 13 plan that provided for surrender of real property to the senior lien holder and vesting of title in the senior lien holder upon confirmation. The court relied on the language of §1322(b)(2) and noted that nothing in the language of that section requires consent of the party in which title would vest.

In re Colen, Adv No. 13-6109-tmr (August 26, 2014)

ORS 20.075, ch. 72A, 90.100, 90.255, 90.302; attorney fees; contract interpretation; landlord’s fee; lease; summary judgment

Debtors had (prepetition) rented a manufactured home under a ten-year lease, and entered into an agreement for an option to purchase at the end of the lease term. Both lease and option agreement referred to a “nonrefundable $5,000 move-in fee.” The trustee sued the landlord for, inter alia, recovery of the $5,000. The court granted summary judgment to landlord on this claim, ruling that under Oregon laws of contract interpretation the $5,000 was not an illegal fee within the meaning of ORS 90.302. The court denied summary judgment on a counterclaim for prevailing party attorney fees, however, because the record was inadequate to allow consideration of factors in ORS 20.075(1).

In re Sugg, Case No. 14-60916-fra1 3 (July 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.

In re Bay Club Partners-472, LLC, Case No. 14-30394-rld11 (May 5, 2014)

Motion to dismiss, standing of creditors, prepetition waiver of bankruptcy protection, 11 USC §§1109(b) and 1112(b)

The LLC’s operating agreement prohibited its filing for bankruptcy protection but it did so anyway, without the affirmative vote of 100% of the members. A secured creditor moved to dismiss based on provisions of the operating agreement. The court ruled that the creditor had standing to prosecute the motion, but denied the motion to dismiss. It held that the LLC provisions in question were unenforceable because they violated public policy.

In re Pineda, Case No. 13-35969-rld13 (April 18, 2014)

11 USC §§108(b), 1322(b) and 1322(c); ORS 312.100, 312.120 and 312.180; cure; redemption period; tax foreclosure

Chapter 13 debtors sought to cure unpaid real property taxes in their plan. The court held cure was no longer available because the property had been subject to a prepetition tax foreclosure judgment. Nor was redemption under Oregon law available; redemption rights had expired 60 days after the petition date.

In re Ruiz, Case No. 12-63323-tmr13 (April 17, 2014)

Administrative expense; homeowners association claims; postpetition claim; sua sponte; 11 USC §§503(b)(1)(A), 1305, 1327(b) and 1328; FRBP 7001

The debtors’ chapter 13 plan surrendered their Sunriver house to two creditors with consensual liens. The Sunriver Owners’ Association filed an administrative claim for monthly charges. No one objected to the claim, but the court sua sponte held it could not be allowed as an administrative expense. Further, the court did not rule on the SOA’s §1305(a)(2) argument, which would require the SOA to amend its claim. Finally, because an adversary proceeding is required for a determination of nondischargeability, the court denied that SOA request without prejudice to the filing of one.

In re C & K Market, Inc., Case No. 13-64561-fra11 (April 8, 2014)

Break-up fee, postpetition lender, administrative expense, 11 USC §503(b)(1) and (3)

The court dismissed an objection to the claim of a bank that had negotiated a break-up fee with the debtor related to possible postpetition financing, but denied administrative expense treatment for the claim.

In re McCracken, Case No. 13-37719-rld11 (April 8, 2014)

11 USC §522(f), adverse possession, foreclosure, judgment lien, lien avoidance, mortgage fraud

The pro se chapter 11 debtor raised numerous arguments in different courts in a failed attempt to save her residence from foreclosure. Both the federal district court and the bankruptcy court rejected her arguments, for which she either did not produce supporting evidence or misread statutes, decisions and an Oregon house bill that apparently was never passed.

In re Hartley, Case No. 13-61182-fra7 (March 28, 2014)

Dismissal for presumption of abuse, 11 USC §707(b)(1) and (2)

The court granted the US Trustee’s motion to dismiss based on the presumption of abuse formula in §707(b)(2)(A)(I), but delayed dismissal 21 days to give the debtors an opportunity to convert to chapter 13.

In re Smith, Case No. 13-61627-tmr7 (February 26, 2014)

Sale free and clear of liens; 11 USC §§363(f)(2), (3) and (5); Clear Channel, 391 BR 25 (9th Cir BAP 2008)

The court denied the trustee’s motion to sell real property free and clear of a lien; the proposed sale price was less than half the amount of debt secured by the lien. The creditor did not object to the sale, but the court held that actual consent was required by §363(f)(2). The terms of the sale also did not satisfy §363(f)(3) and §363(f)(5).

Charter v. Bennett, Adv. No. 12-6136-tmr (January 27, 2014)

Fractional interest; fraudulent transfer; good faith transferee; prejudgment interest; §§101(32)(A), 101(54)(D), 548, 549, 550

On complicated facts, the court avoided as fraudulent under §548 a prepetition transfer of a percentage interest in a parcel of real property. The opinion addresses at length calculation of the value of the transfer and the resulting money judgment against the transferee. The court also avoided a “purported” post-petition transfer of the debtor’s remaining interest in the property.

Murray v. Hanley, Adv. No. 13-3046-rld, Case No. 12-38801-rld7(December 13, 2013)

Embezzlement, fraud, malicious, willful, §§523(a)(2)(A), 523(a)(4), 523(a)(6)

Internet match gone bad: plaintiff met defendant on Match.com and eventually moved in with him. Defendant presented himself as a financially secure securities trader, and convinced plaintiff to lend him $100,000 to invest, along with $100,000 of defendant’s own funds, in something low-risk. He lost it all. Further, he had not invested $100,000 of his own funds. Plaintiff ended the relationship and defendant filed chapter 13; plaintiff sued for exception to discharge of her $100,000 note. Following a trial, the court ruled against plaintiff on her §§523(a)(6) and 523(a)(4) claims, but in her favor on her §523(a)(2)(A) claim.

Orchard v. JP Morgan Chase Bank, NA, Adv. No. 12-6197-tmr (December 4, 2013)

11 USC §362(k); 15 USC §§1692c, 1692e, 1692f; 28 USC §§157 and 1334; 7th Amendment; “arising under”; constitutional aurthority; core; Fair Debt Collection Practices Act (FDCPA); jurisdiction; jury trial; preclusion doctrine; “related to”

In a chapter 13 debtor’s adversary proceeding against a secured creditor’s law firm, the bankruptcy court raised several jurisdictional issues sua sponte. It held it had “arising under” core jurisdiction of the debtor’s §362(k) claim, and “related to” jurisdiction of several counts of its FDCPA claim. The court dismissed several other counts of the FDCPA claim as precluded by remedies available under the Bankruptcy Code. On the question of constitutional authority, the debtor consented but the defendant did not take a position. The court gave defendant seven days to advise whether it consents to the bankruptcy court’s conducting the jury trial and entering a final judgment on the FDCPA counts and the §362(k) claim. Absent such consent, it was also to brief why the court lacks the constitutional authority to enter a final judgment.

In re Grover, Case No. 13-6013-tmr (October 31, 2013)

Damages, judgment on the pleadings, statute of limitations, trespass to chattels, trespass to land, ORS 12.080 and 12.110, FRBP 7012(b), FRCP 7012(c)

Debtor brought an adversary proceeding against her home lender more than two years but less than six years after the alleged conduct. The lender moved for judgment on the pleadings, arguing that the claim was for invasion of privacy, which has a two-year limitations period. The court denied the motion, concluding that the plaintiff had adequately pleaded trespass to land and trespass to chattels, with a six-year limitations period.

In re Grogan, BAP No. OR-12-1483-JuTaPa (October 15, 2013)

Collateral description, crops, doctrine of the last antecedent, financing statement, reasonable identification, security agreement, ORS 79.0108, ORS 79.0203, ORS 79.0315, ORS 79.0502, ORS 79.0504

The BAP affirmed a bankruptcy court ruling (reported at 476 BR 270) that security interests in Christmas trees were adequately described in various security agreements and financing statements. The security interests in the trees and their proceeds were thus properly perfected and not avoidable.

Harris v. Wells Fargo Bank, Adv. No. 12-3113, Case No. 09-39428(October 4, 2013)

Judgment on the pleadings, FRCP 12(c), wrongful foreclosure, judicial notice, FRE 201, judicial estoppel, ORS 86.780 and 86.770(1), Oregon Trust Deed Act, declaratory judgment, violation of automatic stay, §362(k),

violation of order granting relief from stay, breach of contract, Fair Debt Collection Practices Act, 15 USC §1692, ORS 646.639, Unlawful Trade Practices Act, ORS 646.638(1), elder abuse, ORS 124.100(2), intentional infliction of emotional distress

Numerous claims by debtor relating to foreclosure did not survive defendant’s motion for judgment on the pleadings. Debtor had waited too long to bring his claim for wrongful foreclosure, and many of his other claims failed through their relation to that claim. His claims under the state and federal Fair Debt Collections Practices Acts survived to the extent arising from postpetition conduct. The court remanded to state court a wrongful eviction claim and counterclaim for ejectment.

In re Walmsley, Case No. 12-61054-tmr13 (September 24, 2013)

11 USC §505; 26 USC §§162(a), 166(a), 274(d) and 280F(d)(4); 26 CFR §§1.166-2, 1.274-5T(c), and 1.6001-1(a); FRBP 3001(f) and 7056; FRCP 56(g); bad debt deduction; burden of proof; certificates of assessment; cost of goods sold; credibility;

listed property; rebuttable presumption; summary judgment

Debtor did not file tax returns for two years for his tree-trimming business. The IRS later created substitute returns and sent notices of deficiency, to which debtor did not respond. After filing chapter 13, debtor filed his own returns for the missing years, claiming enough business expenses so that he showed no tax owing. The IRS did not accept the returns, and filed a proof of claim based on its assessments. The debtor objected. On cross motions for summary judgment, the court ruled in favor of the IRS on all but one of debtor’s claimed deductions – the debtor had not satisfied his duty to substantiate the deductions. Since the one remaining deduction turned on debtor’s credibility, an evidentiary hearing on it was set.

In re Grogan, Case No. 11-65409-fra11 (September 10, 2013)

11 USC §§1111(b), 1129(a)(3), 1129(a)(11), 1129(b)(1), 1129(b)(2)(A)(i) and (ii) and (iii), 1141(d)(5)(A); FRBP 3014; adequate protection; balloon payment; cash collateral; discharge; fair and equitable; feasibility; good faith; indubitable equivalent;

interest; present value

Two secured creditors objected to chapter 11 debtors’ third amended plan of reorganization. The court overruled the objection of the first creditor, finding the plan was fair and equitable, met the “indubitable equivalency” standard, and contained adequate remedies for any default. The second creditor’s §1111(b) election rendered the plan non-feasible, so the court allowed debtors to amend the plan to provide for immediate surrender of that creditor’s collateral. The court found the plan had been proposed in good faith and confirmed it, but did not grant discharge on confirmation. Rather, discharge would be granted when all plan payments were completed.

In re Lee, Case No. 13-60647-tmr7 (September 10, 2013)

ORS 18.345(1)(I) and 107.105(1)(d), spousal support, FRBP 4003(c)

The court upheld chapter 7 debtor’s claim that a $15,000 award in a stipulated dissolution judgment was exempt as spousal support. It rejected the trustee’s argument that the award was a division of property.

In re Bennett, Case No. 12-60642-tmr7 (September 3, 2013)

Prohibited transaction, retirement plan, ORS 18.358(1) and (2), 11 USC §§522(b)(3)(A) and (b)(4), 11 USC §541(c)(3), 26 USC §§401(a) and 4975, FRBP 4003(c)

The court rejected debtor’s attempt to exempt or exclude his “retirement plan” from the bankruptcy estate. It held the plan did not meet the definition of retirement plan in ORS 18.358. Further, the debtor had engaged in transactions prohibited by the Tax Code, including transfers of stock into and out of the plan, so the plan was not qualified for §401(a) status.

In re Drescher, Case No. 12-64729-tmr7 (August 27, 2013)

Cash; first in first out; garnished property; reasonably identifiable; student assistance exemption; tracing; wage exemption; wild-card exemption; FRBP 4003(c); ORS 345(1)(o), 18.348, 18,375, and 18.385; 20 USC §1095a(d)

The debtor, a college student, claimed federal student assistance, Oregon wage, and cash wild-card exemptions in cash on hand, funds previously garnished (for which she had challenged the garnishment), and funds in her bank account. Each source of funds contained both exempt and nonexempt funds. The court overruled the trustee’s objection to exemptions. It traced the various funds using a first-in-first-out identifiability approach for funds in the account and those withdrawn from the account. It held that neither Oregon nor federal law prohibited tracing to cash.

In re Green, Case No. 13-60271-tmr13 (August 27, 2013)

11 USC §§1325(a)(3) and (b), good faith, means test, projected disposable income, vehicle ownership expense

Debtors’ first chapter 13 case was dismissed for failure to make plan payments and submit tax returns and refunds. The debtors had also violated the order confirming their plan by purchasing vehicles without the trustee’s prior approval. Shortly after their first case was dismissed, they filed a second chapter 13 case, and in it they took the full vehicle ownership expense for the last vehicle purchased (without trustee approval) in the previous case. This move gave them negative disposable income; their plan proposed no distribution to unsecured creditors and a term of less than 60 months. The court overruled the trustee’s objection to confirmation relating to projected disposable income, but sustained the objection based on lack of good faith. Intentionally violating a court order and then attempting to take advantage of the violation in a subsequent case warranted a finding of lack of good faith. The denial of confirmation allowed debtors to file an amended plan.

Monk v. LSI Title, Adv. No. 10-6067-fra, Case No. 04-60712-fra13(August 9, 2013)

Claims objection, service requirements, due process, FRBP 3007, 7004 and 9014

The court held that service on a creditor of an objection to its claim did not meet the requirements of the bankruptcy rules. The objection had been mailed to the P.O. Box address provided on the creditor’s proof of claim; service should have been made pursuant to FRBP 7004, which requires the objection be mailed to an officer or authorized agent of the corporation. The effect of this failure of due process meant that the self-executing order disallowing the claim was void ab initio.

In re Barnes, Case No. 12-65084-tmr7 (July 16, 2013)

Adverse interest; conflict; disclosures; disinterestedness; standing; 11 USC §§101(14), 327(a) and 327(c); FRBP 2014(a), Nevada Rule of Prof. Conduct 7

The court denied trustee’s application to employ special counsel to prosecute claims against the chapter 7 debtor’s former insurer and law firm. The proposed special counsel had represented the plaintiff in state court litigation against debtor some years before the bankruptcy case. In that litigation, which arose from an automobile accident, a judgment had been entered against debtor in excess of her insurance coverage. Debtor had paid a substantial portion of the judgment before filing chapter 7. The court found numerous bases for denying the trustee’s application: the proposed special counsel had both actual and potential conflicts of interest and had not met her duty of full disclosure.

Sequoia Partners v. Rogue River Mortgage, Adv. No. 10-6270-fra, Case No. 10-67547-fra7 (July 12, 2013)

Rescission, economic duress

Debtor, a property developer, filed for bankruptcy protection after failing to comply with an agreement with Rogue River Mortgage. It then filed an adversary proceeding against Rogue River seeking rescission of the agreement and alleging financial duress. The court found that plaintiff had not made a prima facie case and granted Rogue River’s motion for summery judgment.

McEdwards v. Welch, Adv. No. 13-6032-fra, Case No. 13-60365-fra7(July 1, 2013)

Collateral estoppel, California default judgment, 11 USC §523(a)(2)(A)

The court granted creditor’s motion for summary judgment on its claim for nondischargeability under §523(a)(2)(A). Creditor had obtained a default judgment in a case in California, and the court concluded the judgment was preclusive in bankruptcy court with respect to the issues it necessarily decided.

In re Braswell, Case No. 13-60564-fra13 (June 27, 2013)

11 USC §§1325(a)(3) – Good Faith, and 1325(b)(1)(A) – Required Distribution; Drummond v. Welsh

The court denied confirmation of an above-median-income debtor’s plan. The plan provided for payment of 100% of creditors’ claims over 53 months, but did not provide for payment of interest on the claims. It also did not provide for all projected disposable income to be paid into the plan. The court held that under Drummond v. Welsh the proposed plan could not be attacked on good faith grounds, but denied confirmation based on §1325(b)(1)(A), which requires either payment of all projected disposable income or payment of creditors’ claims in full, with interest.

In re Hunsaker, Case No. 12-64782-fra13 (June 14, 2013)

Lien avoidance

Debtors moved to avoid a lien on an 89-acre parcel of real property as wholly unsecured. The parcel had been purchased in two steps – first a 17-acre parcel with farm dwelling, financed by Countrywide; then 72+ acres financed by seller. The debtor argued that because the initial sale of 17 acres had been illegal under Marion County zoning laws, the illegality cured by the subsequent purchase, the 72+ acres should be considered an “appurtenance” to the 17-acre parcel and Countrywide’s lien should cover the entire 89 acres. The court disagreed and denied the motion.

In re Loverin Ranch, Case No. 12-38626-rld12 (June 10, 2013)

Motion to dismiss, 11 USC §303, FRBP 1004, ORS 67.140 and 67.015(1)

The bankruptcy court granted a secured creditor’s motion to dismiss the chapter 12 bankruptcy petition. The debtor was a general partnership and the court found, following an evidentiary hearing, that one of the partners had not consented to the filing. Oregon law requires unanimous consent to partnership actions outside the ordinary course of business, and nothing in the partnership agreement or the conduct of the partnership’s business justified departing from this rule.

In re Pahl, Case No. 09-30495-rld7 (May 14, 2013)

Professional compensation, 11 USC §330(a)(1), reconsideration, FRCP 59 and 60(b)

Debtor objected to his accountant’s fee application; the court held an evidentiary hearing and concluded the fees were both necessary and reasonable. The debtor moved for reconsideration 25 days after the order awarding compensation was entered. The court denied the motion: it was untimely under FRCP 59 and did not suggest mistake, inadvertence, surprise or excusable neglect warranting relief under FRCP 60(b).

In re Grogan, Case No. 11-65409-fra11 (April 26, 2013)

11 USC §§1111(b), 1129(a)(11), 1129(b)(1), 1129(b)(2)(A)(I), 1129(b)(2)(A)(iii); adequate protection; balloon payment; cash collateral; fair and equitable; feasibility; indubitable equivalent; interest; present value

The court sustained a secured creditor’s objection to confirmation of a chapter 11 plan, finding it was neither fair and equitable nor feasible. The Plan proposed using half a million dollars in cash collateral to pay junior claims, and paying the secured creditor over a 25-year period.

In re Whitescorn, Case No. 13-60159-fra13 (March 14, 2013)

Motion to extend automatic stay, 11 USC §362(c)(3)

The 2009 chapter 13 case of debtor and his then-wife was dismissed in September 2012 on the Trustee’s unopposed motion. Debtor filed this case in January 2013. Under §362(c)(3), the automatic stay terminates on the 30th day following a new filing of a debtor whose previous case was dismissed within a year, unless extended after notice and a hearing within that period. Here the debtor filed his motion to extend the stay on the 29th day before the 30-day period expired, but a hearing on the motion was not held within the 30-day period. Therefore the court lacked discretion to extend the stay, which had already been automatically terminated.

In re Kline, Case No. 12-65099-fra11 (February 14, 2013)

Sale of business, interrelated agreements, cross-default provisions, severability of individual agreements, assumption of unexpired lease

Debtors defaulted on a note for the remainder of the purchase price under an Asset Sale Agreement (ASA). The seller had retained property in Eugene and Springfield on which the business operates and leased it back to debtors, the leases executed at the same time as the ASA. The leases contained cross-default provisions referring to the note and the ASA. The debtors moved to assume only the Eugene lease. The court held the lease agreements were severable from the note and ASA despite the cross-default provisions, and allowed the debtors to assume the lease without curing the default on the note by paying the balance due.

In re Culpepper, Case No. 09-38599-rld7 (February 11, 2013)

Attorney fees, contempt, discharge injunction, §§330 and 524

In an opinion entered November 5, 2012, the court determined that Wells Fargo was in contempt for violating the discharge injunction of §524. In this Memorandum Opinion the court awarded attorney fees and costs to the debtor based on detailed findings on appropriateness of billing rates, reasonableness of itemized services (including issues of duplicative services, vagueness of time entries, time spent on expert witness), and reasonableness of costs. The court reduced the fees from a requested $55,113 to $37,011, and costs from $5,404 to $1,359.50.

In re Salyers, Case #13-60140-tmr7 (January 31, 2013)

11 USC §§521(e)(2)(A) and 521(e)(2)(B), FRBP 1008 and 4002(b)(3)

Five weeks before the scheduled §341(a) meeting, chapter 7 debtor moved for an order waiving the requirement to provide the trustee with his most recent federal tax return. The court denied the motion as premature and as more in the nature of an anticipatory affirmative defense to the trustee’s as yet unfiled motion to dismiss. The court directed the debtor to provide the trustee with a verified statement, at least 7 days before the §341(a) meeting date, that the return did not exist or was unavailable.

Rios v. Hiday, Adv. No. 11-6247-fra, Case No. 11-63883-fra12 (December 19, 2012)

Land sale contract, mutual rescission

The court denied defendants’ motion for summary judgment seeking a ruling that as a matter of law the elements of mutual rescission of a land sale contract existed. It held that the documents defendants relied on were not unambiguous, and also questioned the voluntariness of plaintiffs’ relinquishment of possession of the land.

In re Maritime Services Corp., Case No. 12-34978-rld11 (December 17, 2012)

Attorney’s fees and costs, limited percentage reduction, §330(a)

The bankruptcy court reduced by 5% the fees requested by lawyers for chapter 11 debtors, noting “procedural and substantive errors” that, while they did not affect the overall disposition of the case, did add to administrative costs.

In re Nork, Case No. 12-63141-fra7 (December 4, 2012)

Homestead exemption, ground lease for cell phone tower

Citing the Oregon Supreme Court’s directive to construe the homestead exemption liberally, the court held that the exemption applies to proceeds of rental of land for a cell phone tower.

Monk v. LSI Title, Adv. No. 10-6067-fra, Case No. 04-60712-fra13(December 3, 2012)

Summary judgment, novation, due process, res judicata

In the debtors’ chapter 13 case, the trustee objected to creditor’s claim with claimed trust deed security interest. The creditor never responded and the order denying the claim became final. After the debtors received their discharge and their case was closed, creditor’s successor in interest sought to collect the debt and began foreclosure proceedings. Debtors reopened their case and filed this adversary proceeding seeking an injunction of the foreclosure action, sanctions for violating the discharge injunction, stripping of defendant’s lien and quiet title. Both parties moved for summary judgment; both motions were denied. The court rejected defendant’s arguments that a post-bankruptcy loan modification constituted a novation, that the plan should have provided that defendant retained its lien, and that the action voiding the lien should have been made via adversary proceeding rather than contested matter. The court denied plaintiff’s summary judgment because there was a question of fact as to whether notice of the contested matter violated defendant’s due process rights.

In re Culpepper, Case No. 09-38599-rld7 (November 5, 2012)

§521, §524(a)(2), contempt, discharge injunction

Following a chapter 7 discharge the mortgage creditor made over 100 telephone calls to debtors, purportedly to advise debtors of foreclosure options. These calls took place after debtors had been locked out of their home. Four calls were transcribed. Debtors moved to reopen the case and hold creditor in contempt. The court held that the calls constituted efforts to collect on the debt, and awarded debtors $1,000 for emotional distress for each of the four transcribed calls. The court also awarded attorney fees and costs to debtors, because it took filing the contempt motion to make the calls stop. The court declined to award punitive damages because debtors had applied for loan modifications three times after discharge, contrary to representations in the §521 statement of intent.

In re Lane, Case No. 12-36873-elp7 (October 25, 2012)

Next friend, FRBP 1004.1

In response to a motion to appoint an individual as “next friend” for debtors, the court issued a Memorandum Opinion setting forth the legal standard for next-friend appointments and a procedure for use in future motions. The legal standard under FRBP 1004.1 is that the debtor be financially incapable (drawn from Oregon’s conservatorship statute, ORS 125.440), that the movant know about the debtor’s financial situation, and that the movant be dedicated to the debtor’s best interests.

In re Tucker, Case No. 10-67281-fra11 (October 11, 2012)

Absolute priority rule, individual chapter 11 debtors, fair and equitable standard, good faith, In re Friedman, 11 USC §1129(b)

Absolute priority rule, individual chapter 11 debtors, fair and equitable standard, good faith, In re Friedman, 11 USC §1129(b)

Chapter 11 debtors’ original plan did not satisfy the absolute priority rule and the court denied confirmation. Debtors filed an amended plan that did satisfy the rule but before an order confirming it could be entered, the 9th Circuit BAP held in In re Friedman, 466 BR 471, that the absolute priority rule does not apply to individual chapter 11 debtors. An unsecured creditor objected to debtors’ second amended plan (which was similar to their original plan) and argued that the BAP opinion was not binding. The bankruptcy court ruled to the contrary, and further found that the new plan satisfied the “fair and equitable” requirement. It rejected the creditor’s objection that the plan was not proposed in good faith, and confirmed the plan.

Legacy Financial Services, Inc., v. Lynch, Adv. No. 11-6224-fra, Case No. 11-62730-fra (August 31, 2012)

Nondischargeability, 22 USC sec 523(a)(6), defamation

Plaintiff filed a complaint to except from discharge a claim for defamation and also to liquidate the claim. The court dismissed the complaint. Plaintiff claimed that defendant had defamed it by sending a letter that accused plaintiff of knowingly employing an ex-felon who improperly borrowed funds from clients. The claim of employing an ex-felon who improperly borrowed client funds turned out to be true, although the plaintiff had not employed the ex-felon knowingly. The court denied plaintiff’s claims for general and special damages — for injury to plaintiff’s reputation in the industry — because it determined that audits following on defendant’s letter had not shown the hiring was knowing; thus plaintiff’s reputation had not been damaged.

Campbell v. SOU, Adv. No. 11-6051-fra, Case No. 08-65172-fra7, Appellate No. OR-11-1342 (August 15, 2012)

Qualified education expense, §523(a)(8), award of attorney fees

The BAP affirmed the bankruptcy court’s holding that a debt to SOU (Southern Oregon University) for room and board and miscellaneous fees came within the scope of the “qualified education loan” exception to discharge under §523(a)(8). The BAP reversed the bankruptcy court’s ruling that SOU was entitled to attorney fees for defending against debtor’s adversary proceeding for declaratory judgment.

In re Williams, Case No. 11-61683-fra7, Appellate No. 6:12-cv-67HO(August 9, 2012)

Means test of §707(b)(2), Constitutionality, bad faith, dismissal under §707(b)

The district court affirmed the bankruptcy court’s dismissal of a chapter 7 case based on an unrebutted presumption of abuse under §707(b)(2), and on totality-of-the-circumstances and bad-faith grounds under §707(b)(3).

Sequoia Partners, LLC, v. Rogue River Mortgage, LLC, Adv. No. 10-06270-fra, Case No. 10-67547-fra11 (July 31, 2012)

Summary judgment, fraudulent transfers, §§544(b) and 548(a), ORS 95.230 and 95.240, judicial estoppel

Plaintiff real estate developer moved for summary judgment on a claim alleging that trust deeds in favor of defendant should be avoided as fraudulent transfers. The court denied the motion, finding material unresolved facts on the issues of reasonably equivalent value and solvency. It granted defendant’s cross-motion on three counts of the claim, finding that defendant’s retention of a security interest was not a “parting with property or an interest in property” so as to constitute a “transfer” under Oregon or federal bankruptcy law.

Grogan v. Harvest Co., Adv. No. 11-6276-tmr (July 26, 2012)

Collateral description; constructive severance; crops; doctrine of last antecedent; judicial lien; levy; personal property; reasonable identification; ORS 18.345, 18.878, 72.1070, 79.0108, 79.0203, 79.0334(9), 79.0502; 11 USC §§ 101(36), 544(a)(I)

In this dispute over rights in Christmas trees on a Christmas tree farm, the court held that the debtors’ lien rights in the trees as personal property had priority over the creditor-defendant’s asserted real estate interest in the trees. Nevertheless, the court ruled in defendant’s favor on cross-motions for summary judgment. The trees were sufficiently identified in the documents for the defendant’s security interest to be properly perfected and thus not avoidable.

Shamrock Bldg. Materials, Inc. v. Dawson, Adv. No. 12-3042, Case No. 11-39917-rld13 (June 22, 2012)

Amended complaint, embezzlement, express trust, failure to state a claim, fiduciary capacity, 11 USC §523(a)(4), BR 7015 & 7016

The court dismissed plaintiff’s first and second claims for failure to state a claim for relief under §523(a)(4) but allowed plaintiff an opportunity to submit legal authority to support its claim that plaintiff’s credit agreement created an express trust. Plaintiff’s memorandum failed to provide such authority, so the court dismissed claims based on defalcation of fiduciary duty. In its memorandum plaintiff asserted a new theory – embezzlement. The court construed the memorandum as a motion to amend. It concluded, however, that plaintiff could not state a claim for embezzlement, so it denied the motion to amend the complaint.

In re Iaquinta, Case No. 10-63501-fra13 (June 13, 2012)

Fee applications

The court ruled on trustee’s objection to debtors’ attorney’s application for post-confirmation fees. It disallowed portions of the fee that did not directly benefit the estate or creditors, and reduced the remaining fee by 15% not because the fee was unreasonable, but because “the total fees charged should not be borne entirely by the creditors.”

Sugar v. Eimstad, Case No. 11-63635-fra7, Adv No. 11-6231-fra (May 24, 2012)

Dischargeability, preclusive effect of state court judgment

The court granted plaintiff’s motion for summary judgment on her claim that a debt owed by the debtor pursuant to a general judgment of the Lane county Circuit Court is nondischargeable under 11 USC §523(a)(6). (The debtor did not file a response to the motion but sent a letter to the court, in which he objected to the claim, after the response deadline had passed.) The court held that the state court’s judgment explicitly finding the debtor’s actions both intentional and intended to harm satisfied the requirements for nondischargeability under §523(a)(6).

In re Hickey, Adv. No. 11-06204-fra, Case No. 11-62694-fra7
In re Scudder, Adv. No. 11-06206-fra, Case No. 11-63252-fra7 (May 10, 2012)

ORS 11.620, 11 USC §§523(a)(2) and 523(a)(5), §101(14A), exception from discharge, domestic support obligation, default

In both cases the State of Oregon sought to except from discharge obligations resulting from overpayment of food stamp or public assistance benefits. The overpayments resulted from debtors’ failure to report income to the State. The court first concluded that the overpayment obligations did not fit within the definition of domestic support obligation; it then noted that the debtors had an affirmative duty to report income. Debtors did not appear in response to the State’s motions to dismiss. The court held the State had alleged a prima facie case in both bankruptcies and was entitled to a default judgment excepting the overpayment obligations from discharge.

In re Torrez, Case No. 10-64385, Appellate No. 6:12-cv-251-HO (May 7, 2012)

ORS 18.345(n)

Chapter 7 trustee objected to debtor’s claim of an exemption for her “making work pay” tax credit as an earned income tax credit under ORS 18.345(n). The bankruptcy court overruled the objection and the district court affirmed, noting that ORS 18.345(n) uses the indefinite article an and so does not restrict the exemption to the earned income tax credit in 26 USC §32.

In re Eugene Pipe, LLC, Case No. 11-60920-fra11 (May 7, 2012)

11 USC §§1129 and 1125, best interests of creditors, disclosure, good faith

The court confirmed a chapter 11 liquidation plan over the objection of a creditor that had submitted a competing plan. It concluded that the debtor’s plan satisfied the best interests of creditors test of §1129(a)(7); further, the debtor’s Disclosure Statement provided adequate information to meet the requirements of §1125 and the plan was otherwise proposed in good faith.

In re Lynch, Adv. No. 11-6224-fra, Case No. 11-62730-fra7 (April 30, 2012)

11 USC §523(a)(6), discharge, default

The plaintiff obtained an order of default against debtor in state court and sought exception from discharge for that debt in bankruptcy court. The court denied plaintiff’s motion for summary judgment, holding that it had not met its burden of establishing there was no issue of material fact. The order of default in state court did not have the same binding effect on the bankruptcy court that a judgment of default would have.

Paulson v. Arbaugh, Adv. No. 11-3309-rld, Case No. 09-32439-rld7 (April 11, 2012)

Judicial immunity, settlement, summary judgment

After the bankruptcy court approved a settlement, proposed by the trustee, of state court litigation that was property of the estate, the debtor sued the trustee in state court. That case was removed to bankruptcy court, where the trustee moved for summary judgment and debtor failed to respond. The court granted summary judgment based not on the debtor’s default but because on the undisputed facts the trustee was entitled to derived judicial immunity for her acts in settling the state court litigation.

In re Kiraz, Case No. 11-35743-tmb7, Adv. No. 11-03294-tmb (April 3, 2012)

Automatic stay, ministerial acts

Plaintiffs sued defendant in state court on a disagreement over a lease; the court ruled in plaintiffs favor and the judge stated he was prepared to sign the appropriate judgment. The defendant filed a chapter 7 petition before such a judgment was signed and docketed. In bankruptcy court, plaintiffs argued the entry of the judgment was a “ministerial act” and thus not subject to the automatic stay. The court disagreed and ruled that because the judgment was not signed until after the bankruptcy filing, it was not excepted from the stay and was void.

In re Nguyen, Case No. 11-35979-rld13 (April 2, 2012)

§1325(a)(5)(B)(iii)(I), cramdown, nonresidential real property

Bankruptcy court denied confirmation of cramdown plan with respect to nonresidential real property, applying In re Bollinger, 2011 WL 3882275 (Bankr D Or).

In re Williams, Case No. 11-61683-fra7 (March 19, 2012)

11 USC §707(b), dismissal, means test

The court granted the US Trustee’s motion to dismiss the case based both on bad faith filing and on the totality of the circumstances. Debtor had purchased the apartment he was living in, the sale closed the day he filed for bankruptcy, and this transaction effectively moved $800 of debtor’s income out of reach of his creditors. Further, the UST presented credible evidence that the debtor had enough disposable income to sustain a chapter 13 plan.

Penn. Higher Educ. Assist. Agency v. Hedlund, D. Or. Civ. #11-6281-AA (March 5, 2012)

11 USC §523(a)(8), undue hardship, student loan

In a case involving student loan debt with a complicated procedural history, the District Court reversed a bankruptcy court’s finding that the debtor was entitled to discharge of all but $32,080 of his $85,000 student loan debt. Although the debtor had satisfied the first two prongs of the three-pronged Brunner test for discharge based on undue hardship, the court found he had not satisfied the third prong, which required him to make a good faith effort to repay the loan. First, he did not use his best efforts to maximize his income. Further, the court was troubled by the debtor’s failure to make voluntary payments and to cooperate in negotiations with the lender to change payment terms. The court reinstated the full debt as excepted from discharge.

In re Sequoia Village, LLC, Adv. No. 11-06220-fra, Case No. 11-64880-fra11 (February 14, 2012)

Removal, remand, withdrawal of reference

Several months before debtor’s bankruptcy petition, South Valley Bank & Trust sued debtor and other defendants in state court for breach of a promissory note, foreclosure of a deed of trust and breach of guarantees. Debtor removed the case to bankruptcy court, then moved for withdrawal of the reference. Plaintiff objected to withdrawal of the reference and moved for remand to state court. The bankruptcy court denied the motion for remand and forwarded the motion to withdraw the reference to US District Court with a recommendation that reference be withdrawn. The court cited several reasons for its ruling, but judicial economy appeared paramount: a case was already pending in District Court involving common parties and transactions.

Williams, Love, O’Leary & Powers, LLC v. Brann, Adv. No. 11-3279, Case No. 11-37021-elp11 (February 7, 2012)

Attorney’s lien, ORS 87.445 and 9.310, quantum meruit, Minn. Stat. 481.13, judicial estoppel

Debtor law firm hired Brann, a lawyer, to provide services on cases in which debtor represented the client. Brann claimed an attorney’s lien when she was not paid in full. The court held there was no attorney’s lien because there was no agreement, express or implied, between Brann and the client. The court also rejected quantum meruit as a basis for an attorney’s lien because there was a contract between Brann and debtor law firm, and further held that judicial estoppel did not apply.

In re Taggart, Case No. 09-39216-rld7 (January 31, 2012)

Motion to Reconsider, FRBP 8002(b) and 9023, FRCP 59

Before filing his petition, debtor was sued in state court by an LLC in which he had owned a 25% member interest (before transferring that interest to an LLC he formed and then transferring his interest in that LLC to his attorney). The suit against debtor also named the LLC he had formed and his attorney. The state court action (stayed during the debtor’s bankruptcy) was revived after he received his discharge, and judgment entered against him. He sought relief for violation of the discharge injunction; the bankruptcy court denied his motion for contempt and subsequent motion for reconsideration.

In re Wedblad, Case No. 10-65055-fra7 (January 26, 2012)

Abuse; Administrative Procedures Act; BAPCPA; delegation; IRS Local Standards; IRS National Standards; legislative rules, means test; presumption; standing; statutory construction; Art. 1 §1 US Const.; 5 USC §§ 553 and 702; 11 USC §707(b)(2)(A)(ii)(I); 26

The US Trustee moved to dismiss the debtors’ chapter 7 case for abuse under §707(b). Debtors conceded they had not rebutted the presumption of abuse of §707(b)(2) but challenged the validity of the IRS National and Local Standard expenses used in the means test to determine whether the presumption arose. The court rejected all of debtors’ arguments (see list of issues above), granted the US Trustee’s motion and gave debtors 14 days to move to convert, absent which motion the case would be dismissed.

In re Reddco Development Co., LLC, Case No. 10-64783-fra11(December 15, 2011)

Post-confirmation injunction, Rohnert Park Auto Parts

The bankruptcy court, relying on In re Rohnert Park Auto Parts, Inc., 113 BR 610 (9th Cir BAP 1990), denied confirmation to a Plan of Reorganization that enjoined creditors from attempting to collect claims against the debtor’s principal and guarantor, or against his property. Rohnert Park held that a post-confirmation injunction protecting a nondebtor third party violates 11 USC §524.

In re Benafel, Case No. 10-61542-fra13, Appellate No. OR-11-1005(December 9, 2011)

Anti-modification – 11 USC §1322(b)(2), date for determination of principal residence

The BAP reversed the bankruptcy court’s ruling about the applicable date for determining whether a property is the debtor’s principal residence. The bankruptcy court had ruled the date is the date the loan secured by the residence was incurred. Under this ruling, the plan violated §1322(b)(2), which does not allow a loan secured only by a debtor’s principal residence to be modified in chapter 13. The BAP held that the petition date is the applicable date, and remanded for determination of whether the property in question was the debtor’s principal residence on the petition date.

In re Taggart, Case No. 09-39216-rld7 (December 9, 2011)

Motion for contempt, violation of discharge injunction, 11 USC §524(a)(2)

Before his bankruptcy the debtor owned a 25% interest in SPBC. He transferred this interest to BT, an LLC he formed, then transferred his interest in BT to his lawyer. SPBC sued the debtor, his attorney and BT in state court, with claims including breach of contract and breach of fiduciary duty. The debtor answered and asserted a counterclaim for attorney fees. Before trial, the debtor filed a chapter 7 petition and the action was stayed. The debtor scheduled his state court counterclaim, the trustee filed a no-asset report, and the debtor received a discharge.

In the revived state court action, the court found in favor of SPBC, dismissed debtor’s counterclaim and entered judgment against the debtor. The debtor appealed, and also filed a motion in bankruptcy court against SPBC members and their lawyer for alleged violation of the discharge injunction. The court denied the motion, applying both the “clearly erroneous” standard and the “de novo” standard to the state court ruling.

In re Tucker, Case No. 10-67281-fra11 (November 28, 2011)

Absolute priority rule, new value exception, individual chapter 11, 11 USC §1129(b)(2)(B)

The court ruled that the Absolute Priority Rule applies to individual chapter 11 debtors; the New Value Exception is also applicable. Based on these conclusions, the court denied confirmation of a plan rejected by unsecured creditors. The plan provided that unsecured creditors would receive about 16% of their claims over five years, and that the debtors would retain their interest in all assets and would pay creditors from future income and cash flow. The court ruled that an unsecured promise of payments from anticipated future salary does not constitute new value as defined by the Supreme Court in Northwest Bank Worthington v. Albers, 485 US 197, 204 (1988).

Eiler v. Nolan, Adv. No. 11-3220-tmb (November 23, 2011)

Cashier’s check, conduit, delivery, judgment on the pleadings, property of the estate, remitter, transferee, FRBP 7012(b) and 12(c), ORS 73.0104(5) and 73.0203, 11 USC §§541(a), 549(a) and 550(a)

The trustee brought an adversary proceeding to avoid under §549 a $42,000 payment in the form of a cashier’s check, which the debtor mailed before filing for chapter 7 but which was received and deposited post-petition. The court granted trustee’s motion for judgment on the pleadings. The court rejected the debtor’s argument that he had no legal or equitable interest in the check when he filed his petition, as well as the argument that the transfer was prepetition.

In re Krouse Ranch, Inc., Case No. 09-65465-fra7 In re Krouse, Case No. 09-65459-fra7 (November 21, 2011)

Compromise of claims

Both cases began in chapter 12, were converted to chapter 11 – where joint administration was ordered – and thereafter converted to chapter 7. The only asset of Krouse Ranch, Inc. (KRI), was real property and some tenant rights; the only substantial asset of Krouse was a 74% ownership interest in KRI. The chapter 7 trustees proposed to settle unresolved claims and related litigation through a transfer of Krouse’s controlling interest to two creditors, in return for which one of the creditors would contribute cash to the Krouse estate and the KRI estate. The court approved the settlement as maximizing the value of assets for the benefit of creditors while avoiding the capital gains tax that would result from outright sale of the real property.

Carter v. Department of Education, Adv. No. 10-3136, Case No. 10-30555, BAP No. OR-11-1191-ClPaJu (November 8, 2011)

11 USC §523(a)(8)

Debtor sought a determination that his student loan debt was dischargeable. The bankruptcy court found the debt nondischargeable under the Brunner test. On appeal the debtor argued the court had applied the test incorrectly. The BAP disagreed and affirmed.

In re Pruitt, Case No. 09-65328-fra7 (November 1, 2011)

Compromise, front pay, settlement, wrongful discharge, FRBP 9019, ORE 408, ORS 659A.203 and 659A.885

The court approved a settlement of the debtor’s wrongful termination claims against the State of Oregon, based largely on expert testimony and the factors in In re A & C Properties, 784 F2d 1377, 1381 (9th Cir 1986).

Waller v. Heckman, Adv. No. 11-3161-elp, Case No. 11-30902-elp7(October 28, 2011)

11 USC §523(a)(6), nondischargeability

Plaintiff sought to except from discharge a judgment debt arising from damage to plaintiff’s rental property while debtor and his family lived there. Based on the evidence and relevant legal authority, the court concluded that some but not all of the debt was excepted from discharge under §523(a)(6).

McKittrick v. Gavilon LLC, Adv. No. 11-3038, Case No. 09-30508-elp7(October 28, 2011)

Forward contract, 11 USC §§546(e) and 101(25)(A), maturity date

The court addressed the question of what is meant by “maturity date” in the definition of forward contracts in §101(25)(A), and concluded that where contracts provide that title and risk of loss pass to the buyer upon delivery, the delivery date is the “maturity date.” Thus the contracts at issue in this case were forward contracts, payments under which are protected from preference actions by §546(e).

Thorud v. Thorud, Adv. No. 10-6107-elp (October 26, 2011)

Domestic support obligation, support, 11 USC §§101(14A), 507(a)(1)(A), 523(a)(5)

Debtor’s ex-wife sued under §523(a)(5) to determine dischargeability of a stipulated judgment obtained in a divorce proceeding. The issue was whether the judgment was a domestic support obligation under §101(14A). The court concluded it was more in the nature of a property division than support, based on provisions of the judgment and underlying documents. This conclusion also resolved the identical issue in the main case about whether the claim was entitled to priority under §507(a)(1)(A).

UST v. Knowling, Adv. No. 10-03298-rld, Case No. 09-40551-rld7(October 20, 2011)

§727(a)(3), financial condition, inadequate records, justification

The court denied debtor’s discharge, based on his unjustified failure to prepare and maintain adequate financial records from which his prepetition financial condition could be determined. His business generated millions of dollars of gross income and the debtor took annual compensation of hundreds of thousands of dollars, but he failed to file tax returns accounting for his income or that of the business.

In re Glanville, Case No. 11-21815-tmb7, In re Waits, Case No. 11-32616-tmb7 (October 12, 2011)

ORS 18.345(1)(n), earned income credit, exemption, tracing

These two cases involved debtors who had received federal tax refunds with earned income credit (EIC) and non-EIC components, deposited EIC funds in bank accounts, then claimed exemptions in the EIC funds on deposit under ORS 18.345(1)(n). The trustees in both cases objected, arguing the court should use a pro rata approach to tracing funds on deposit. The court ruled in debtors’ favor, adopting the “recipient-directed” approach to tracing when funds have been commingled. The law should allow debtors a practical means of protecting their exempt interests, and exemption statutes should be liberally construed.

In re Bollinger, Case No. 10-62344-fra13 (September 2, 2011)

11 USC §1325(a)(5)(B)(iii)(I), FRBP 9023, balloon payments, equal monthly payments, statutory construction

Upon secured creditor’s Motion to Amend or Alter Order Confirming Debtor’s Chapter 13 Plan of Reorganization, the court held that a balloon payment in the plan violated §1325(a)(5)(B)(iii)(I). Thus the order confirming the plan was erroneous; the court vacated the order and gave debtor 30 days to file a further amended plan.

In re Cooper, Case No. 10-66447-fra12 (September 2, 2011)

11 USC §§101(18)(A), 101(21), 102(1), 109(f), 506(a), 1225(a)(5)(B); chapter 12; eligibility; family farmer; farming operation; gross income; valuation

After creditors objected to confirmation of a chapter 12 plan on valuation grounds, the court sua sponte raised debtors’ eligibility. It held that because one of debtors’ three businesses was not a “farming operation,” the debtors failed the gross income test for chapter 12. The court also addressed valuation of a parcel of real property containing a vineyard, but did not fix a value for the parcel because debtors in any event were ineligible. The court gave debtors 14 days to convert to another chapter; if they failed to do so, the case would be dismissed.

Wilkes v. Cancelosi, Adv. No. 10-3099-rld, Case No. 10-30182-rld7(August 26, 2011)

Motion to amend or alter judgment, motion to extend time to appeal, motion for stay of proceedings to enforce judgment, motion for stay of proceedings pending appeal without bond, FRCP 59 and 62, FRBP 9023, 8002 and 7062

Following entry of a judgment against debtor in an exception from discharge proceeding, the debtor filed omnibus post-judgment motions (1) to alter or amend the judgment or for new trial, (2) to extend time to file notice of appeal, (3) to stay proceedings pending disposition of motion, and (4) to stay proceedings pending appeal without bond. The court denied motions (1) and (4) and determined no order was necessary on motion (2). It determined the debtor need not put up security or bond as requested in motion (3). It terminated the stay on collection of the judgment that had been established by order entered July 28, 2011.

In re Reed, Case No. 10-38478-elp13 (August 16, 2011)

Amended Opinion August 9, 2011 (amending opinion issued 7/8/11)

§§1325(b)(1), (2), (4); projected disposable income, burden of proof, applicable commitment period
As in its original opinion, the court confirmed, over the trustee’s objections, the plan of chapter 13 debtors with above-median income but no projected disposable income. The court addressed how to project disposable income after the Supreme Court’s decision in Hamilton v. Lanning, 130 S.Ct 2464 (2010), adjusted the debtors’ projected disposable income accordingly, and concluded it was still a negative number. The court also concluded that the applicable-commitment- period portion of In re Kagenveama, 541 F3d 868 (9th Cir 2008), had not been overruled by the Supreme Court’s decisions in Lanning and Ransom v. FIA Card Services, NA, 131 S.Ct. 716 (2011).

In re Warkentin, Case No. 10-35332-rod11 (August 16, 2011)

Objection to claim, 11 USC §§502(b) and 1111(b)(2), FRBP 3014

The bank held a promissory note for an amount far in excess of the real property securing it; it filed a proof of claim claiming a secured claim in the amount as of the petition date, and filed an election to have its claim treated as fully secured under §1111(b)(2). The court allowed the bank’s claim as fully secured as part of confirmation of the debtor’s chapter 11 plan. The bank later amended its claim to include postpetition attorney fees and costs; the debtor objected. The court overruled the debtor’s objection, relying on In re SNTL Corp., 571 F3d 829 (9th Cir 2009), and 11 USC §§502(b) and 1111(b)(2).

In re Jones, Case No. 10-65478-fra12 (August 2, 2011)

11 USC §§101(18)(A), 101(21), 102(1), 109(f), 1112(f), 1208; FRBP 1017(f)(1) and 9014(a); chapter 12; due process; eligibility; family farmer; farming operation; preclusion; waiver

The court addressed whether debtor, who boarded and trained horses, was engaged in a “farming operation” and thus eligible for chapter 12. Debtor had originally filed chapter 11; the case converted to chapter 12 on her motion and thereafter creditors objected to eligibility. The court concluded based on a totality of the circumstances test that the business was not a farm because it was service oriented; however, the debtor deserved the opportunity to reorganize under chapter 11. The court therefore set aside the conversion order.

In re Shuhmann, Civ. No. 11-6050-AA, aff’g 2010 WL 5125321 (July 27, 2011)

Homestead exemption; prepaid rent; ORS 18.395(1), 18.402, 90.220, 90.300(7), 90.414(2)

The District Court affirmed Judge Radcliffe’s ruling at 2010 WL 5125321 that money debtors “prepaid” to their landlord as rent under a month-to-month tenancy was not exempt under ORS 18.395(1), Oregon’s homestead exemption. The court rejected the argument that by accepting the prepayment, the landlord had converted the tenancy to a lease.

Rinaldi v. Aguirre, Adv. No. 11-6050-fra, Case No. 11-60599-fra7 (July 14, 2011)

Nondischargeability – fraud, 11 USC §523(a)(2)(A), collateral estoppel, state-court default judgment

A default judgment for $350,000 was entered against debtor in state court after he failed to file a responsive pleading to a complaint alleging fraud and breach of contract. Debtor then filed a chapter 7 case and plaintiffs sued to except the judgment from discharge. The court granted summary judgment to plaintiffs, holding that the default judgment preclusively established the elements of §523(a)(2)(A).

In re Reed, Case No. 10-38478-elp13 (July 8, 2011)

§1325 (b)(1), (2), (4); projected disposable income; burden of proof, applicable commitment period

The court confirmed, over the trustee’s objections, the plan of chapter 13 debtors with above-median income but no projected disposable income. The court addressed how to project disposable income after the Supreme Court’s decision in Hamilton v. Lanning, 130 S.Ct 2464 (2010), adjusted the debtors’ projected disposable income accordingly, and concluded it was still a negative number. The court also concluded that the applicable-commitment- period portion of In re Kagenveama, 541 F3d 868 (9th Cir 2008), had not been overruled by the Supreme Court’s decisions in Lanning and Ransom v. FIA Card Services, NA, 131 S.Ct. 716 (2011).

McKittrick v. Brown, Adv. No. 10-03148-rld, Case No. 09-40551-rld7(July 5, 2011)

New value, preferential transfer, substitute collateral, 11 USC §547(b), (c)

In a preference action by the chapter 7 trustee, the creditor argued as a defense that the transfer was a contemporaneous exchange for new value. The court rejected the defense, ruling that none of the following constituted new value: “release” of an unperfected security interest; an alleged extension of time in which to repay the underlying loan, where the duration of the extension was not specified in the security agreement; and any alleged release of a fraud claim against the debtor.

In re Synergy Joint Venture, LLC, Case No. 10-62766-fra11 (June 29, 2011)

Administrative claim, unpaid rent, 11 USC §365(d)(5)

The court allowed an administrative priority claim to a landlord for rent accrued postpetition and pre-rejection of a nonresidential lease, holding that under the current language of §365(d)(5) administrative priority status is granted such claims without regard to whether the lease benefits the estate.

Fountain Village Development v. Weiner Investment Co., Adv. No. 10-03018-rld, Case No. 09-39718-rld11 (June 28, 2011)

Party wall, prescriptive easement, trespass

The east wall of debtor’s four-story building straddled the lot line; thus the wall was a party wall and debtor was entitled only to a right of support. The owner of the adjacent lot had the right to use the face of the wall for advertising. The debtor was, however, entitled to damages for trespass as its right of support had been implicated by improper mounting of the advertising sign on the wall.

In re McGinnis, Case No. 11-60010 (June 9, 2011)

Chapter 13 confirmation, controlled substance, good faith, medical marijuana, ORS 475.304(7) and 475.316, 11 USC §1325.

The court ruled that it could not under §1325 confirm a plan that depended on medical marijuana for its income stream; although cultivation and sale of marijuana as envisioned by debtor’s plan complied with state law, it was illegal under federal law. The court also examined the good faith requirement for plan confirmation.

LT Builders Group, LLC v. Blue Sky AvGroup, LLC, Case No. 09-38458-rld11, Adv. No. 10-3246-rld (June 8, 2011)

Motions to Strike

In conjunction with the motion discussed above, plaintiff filed motions to strike declarations submitted by defendants. Based on its review of the declarations, motions and supporting memoranda, and applicable legal authority, the court granted the motion only with respect to specified paragraphs of some of the declarations.

LT Builders Group, LLC v. Blue Sky AvGroup, LLC, Case No. 09-38458-rld11, Adv. No. 10-3246-rld (June 8, 2011)

Motion for partial summary judgment, FRCP 52(a), FRBP 7052

The court granted summary judgment to plaintiff on one claim and partial summary judgment on another, in a dispute arising out of a sale of debtor’s assets to plaintiff (as assignee of another entity) under §363(f). The dispute involved competing claims to certain items of inventory. The inventory had been conducted by plaintiff and the chapter 11 trustee and approved by the court under a Stipulated Inventory Order.

In re Pruitt, Case No. 09-65328-fra7 (June 8, 2011)

Community assets – Louisiana law, contract interpretation – Florida law, separate assets – Oregon law, settlement, substantive consolidation, FRBP 9028, FRCP 63, 11 USC §302(b)

The court denied a motion to substantively consolidate separate estates of married chapter 7 debtors who had filed a joint petition. It found that less than 10% of the debt in the case was joint, and that disentangling their financial affairs would not threaten recovery to creditors.

The court also denied the trustee’s motion to approve settlement of a wrongful termination claim of the husband. The trustee had failed to present sufficient evidence relating to probability of success of the litigation, its complexity, and the expense, inconvenience and delay attending it.

Smith-Canfield v. Spencer, Adv. No. 09-6327-fra (May 17, 2011)

Breach of fiduciary duty, core, informed consent, malpractice, 28 USC §157(b), ORS 696.810, 11 USC §329, ORPC 1.7 and 1.8

In this amended opinion (opinion originally filed March 2, 2011), the court ruled in debtor’s favor against her former counsel, who had advised her to purchase a house as part of pre-bankruptcy planning and then acted as her real estate broker in the purchase. The claims were for malpractice, breach of fiduciary duty and disgorgement of attorney fees. The former lawyer had failed to disclose a conflict of interest and adverse pecuniary interest; further, the house purchased had an undisclosed defect. The court held the matter was a core matter.

Freeman v. Names, Adv. No. 10-6244, Case No. 10-65697 (appears on list of opinions as Names v. Freeman) (May 13, 2011)

ORS 86.737, 86.745, 86.770; nonjudicial foreclosure; trust deed; notice of trustee’s sale

Debtor defaulted on a trust deed and her residence was sold to plaintiffs at a trustee’s sale. Debtor then complained she had not received the notice required by ORS 86.745(9). Plaintiffs sued to quiet title and debtor counterclaimed to quiet title in herself. The court ruled that debtor had suffered no infringement of her rights under Oregon’s nonjudicial foreclosure statute.

U.S. Trustee v. Howell, Adv. No. 10-3040-rld, Case No. 09-36520-rld7(April 26, 2011)

§727(a)(4)(A); denial of discharge; false statement, oath or account

The US Trustee brought an adversary proceeding to deny debtor’s discharge. Following trial, the court issued a lengthy memorandum opinion analyzing the evidence and finding the debtor had knowingly and intentionally made false material oaths with respect to his assets and his business with the intent to deceive; the court denied discharge under §727(a)(4)(A).

In re Morgan, Case No. 10-67114 (April 26, 2011)

§§507(a), 1322(a)(2), and 101(14A); domestic support obligation (DSO)

Ex-husband objected to confirmation of debtor’s chapter 13 plan because it did not give priority status to an obligation to make monthly payments to him, and debtor objected to ex-husband’s priority claim. The issue was whether the obligation was a domestic support obligation entitled to priority. The court overruled ex-husband’s objection: the dissolution judgment did not refer to spousal support and labeled the obligation an equalizing judgment; thus it was not a DSO and was not a priority claim.

In re Nelson, Case No. 10-40718 (April 22, 2011)

Domestic support obligation (DSO); 11 USC §§101(14A), 507(a)(1)(A), 1322(a)(2); stipulated dissolution judgment; hold-harmless

Creditor (debtor’s ex-wife) objected to confirmation of chapter 13 plan because it did not provide for payment of an obligation arising from a marital dissolution judgment as a priority claim. The issue was whether the obligation was a DSO entitled to priority. The court concluded, after lengthy analysis of the law and the language of the parties’ settlement agreement, that the obligation was not in the nature of support. Thus the claim was not entitled to priority and the plan could be confirmed.

Lenz v. Auto Acceptance, Adv. No. 10-3294-rld, Case No. 09-30778-rld7 (April 7, 2011)

11 USC §§107(c) and 105(a), FRBP 9037, Gramm-Leach-Bliley Act, Invasion of Privacy, Intentional/Negligent Infliction of Emotional Distress

Auto Acceptance filed a proof of claim that included the social security number of one of the debtors. The debtors sued and sought damages for invasion of privacy and infliction of emotional distress, and under the Gramm-Leach-Bliley Act. The court denied the motion by Auto Acceptance to dismiss for lack of subject-matter jurisdiction, but granted its motion to dismiss for failure to state a claim.

Palen v. Olsen, Case No. 10-60190-fra7, Adv. No. 10-6111-fra (March 23, 2011)

28 USC §1920, FRBP 7054(b) and 9016, FRCP 45(b)(1), costs, witness fees

Plaintiff sued to deny debtor’s discharge, and after extensive discovery debtor withdrew her answer and waived discharge. Plaintiff then sought costs, to which debtor objected. The court allowed costs for filing fees, a transcript of the §341 meeting, and service fees for document subpoenas. It disallowed witness fees paid in conjunction with 29 subpoenas duces tecum as those sought only production of records, not appearances at deposition, hearing or trial.

In re South Star Oil Co., Case No. 08-61072-fra7 (March 21, 2011)

Value of partner’s interest, proof of claim

Debtor is a general partnership with four partners, all members of the same family. Following conversion of debtor’s chapter 11 case to chapter 7, involuntary petitions were filed against the general partners. The trustee of one general partner filed a proof of claim in the partnership case based on the theory that certain property belonged to the partner’s estate rather than the partnership’s. The court denied the claim, giving two reasons why the claim had no value.

In re Warren, Case No. 07-60674-fra7, App. No. OR-10-1110-MkHJu(March 15, 2011)

Motion to Settle and Compromise, California law: bad faith, failure to settle, A & C Properties

In a case involving a serious automobile accident, the subsequent bankruptcy of the driver at fault, and a claim for bad-faith failure to settle against debtor’s insurer, the bankruptcy court approved a settlement with the insurer. It applied guidelines set by A & C Properties, 784 F3d 1377, and found the settlement fair and equitable to all creditors. The BAP vacated the order approving settlement on several grounds, including that the settlement violated the pro rata distribution scheme of §726, and that the bankruptcy court had not weighed the relative value to the estate of a competing bid.

Willms v. Sanderson, Adv. No. 10-3071-rld, Case No. 09-38818-rld7(March 8, 2011)

Motion to reconsider, motion to amend or alter judgment, FRCP 59(e), FRBP 9023, FRCP 60(b), FRBP 9024, FRCP 52(b), FRBP 7052, 11 USC 523(a)(2)(A)

Following a trial to except a claim from discharge, court ruled for plaintiffs and held the debtor had acted with fraudulent intent. Before judgment was entered, the debtor moved to reconsider or alter or amend the judgment based on newly discovered evidence that plaintiffs had received payment. The court allowed the motion, considered the new evidence and reversed its previous finding of fraudulent intent. The debtor was accordingly entitled to dismissal of the adversary proceeding.

Smith-Canfield v. Spencer, Adv. No. 09-6327-fra (March 2, 2011)

Breach of fiduciary duty, core, informed consent, malpractice, 28 USC §157(b), ORS 696.810, 11 USC §329, Oregon RPC 1.7 and 1.8

Defendant had advised debtor pre-bankruptcy to purchase a house, then acted as her broker in the purchase. The house proved to have undisclosed defects. Debtor brought an adversary proceeding for malpractice, breach of fiduciary duty and disgorgement of attorney fees. The court held this was a core matter and ruled in favor of debtor.

McCoy v. BNC Mortgage, Adv. No. 10-6224-fra, Case No. 10-63814-fra13 (February 7, 2011)

Nonjudicial foreclosure, MERS, unrecorded transfers

The court denied a motion to dismiss a wrongful foreclosure claim. Under Oregon law, nonjudicial foreclosure is available only when the beneficiary’s interest is clearly documented in the public record. Here the complaint alleged a number of unrecorded assignments of the beneficial interest in the trust deed.

O’Hagan v. von Borstel, Adv. No. 03-3523, Case No. 01-42235-elp7(February 3, 2011)

FRBP 9024; FRCP 60(b)(2), 60(b)(3), 60(b)(6), 60(c)(1), 50(d)(3)

The court denied plaintiff’s motion to set aside a judgment entered three years earlier on grounds of alleged fraud. The lengthy opinion addresses the issue of timeliness of the motion, and also legal standards for setting aside a judgment for fraud by a third party or for fraud on the court. It concludes that evidence did not establish either.

In re Boyce, Case No. 08-64228, Appellate No. 10-6286-HO (January 28, 2011)

11 USC §707(b), dismissal for abuse

The bankruptcy court granted US Trustee’s motion to dismiss a chapter 7 case for bad faith and abuse based on the debtor’s failure to disclose the portion of his income that came from a profit-sharing arrangement, his understatement of his income even if profit sharing was not taken into account, and his purchase of consumer goods he did not need and could not afford both before and after filing. The district court affirmed.

Vineyard v. Vineyard, Adv. No. 10-6168-fra, Case No. 10-63518-fra13(January 27, 2011)

Property of the estate, preclusive effect of settlement, life insurance / dissolution agreement

Plaintiff’s dissolution agreement required her husband to continue a life insurance policy naming her as beneficiary. Husband remarried and changed the beneficiary to his current wife. Husband died, new wife collected policy proceeds and spent them. Plaintiff sued in state court and defendant settled twice but breached the settlement agreement each time, then filed bankruptcy. The bankruptcy court held that the property purchased with life insurance proceeds was property of the bankruptcy estate over which it had jurisdiction, that plaintiff had an equitable interest in the policy and its proceeds superior to that of defendant, and that the release of claims in one of the settlement agreements did not prevent the court from determining the nature of the property and plaintiff’s interest in it. The court denied defendant’s motion for summary judgment.

Monk v. LSI Title Co. of Oregon, Adv. No. 10-6067-fra, Case No. 04-60712-fra13 (January 21, 2011)

Effect of disallowance of secured claim, dismissal – FRCP 12(b)(6), subject matter jurisdiction

The Chapter 13 Trustee had filed an objection to a claim purportedly secured by debtors’ residence; the creditor did not respond to the objection; an order disallowing the claim in full became effective. Debtors continued to make mortgage payments until their plan was completed, their discharge entered and the case closed. The successor to the original creditor began collection efforts following post-bankruptcy default by the debtors and debtors reopened their bankruptcy case and brought an adversary proceeding. Defendant moved to dismiss. The court dismissed two of debtors’ six claims but denied the motion to dismiss the others, ruling that the effect of disallowance of the secured claim was that the creditor no longer had a valid claim and its lien was void.

Schoor v. Cal-Western Reconveyance, Adv. No. 10-6029-fra, Case No. 09-64432-fra7 (January 19, 2011)

Bona fide purchaser, pre-existing leasehold

The court ruled that the defendant lender’s security interest in real property was subject to a leasehold interest retained by the plaintiff seller. The lender had failed in its duty to make reasonable inquiry about the status of the person in possession of the property at the time of the loan, and thus could not claim BFP status. The court granted plaintiff’s motion for summary judgment.

In re Benafel, Case No. 10-61542-fra13 (December 22, 2010)

11 USC §1322(b)(2), claim secured by principal residence

The court held that, although debtor did not currently live in the real property securing creditor’s claim, the property had been her principal residence at the time she obtained the loan. Therefore under §1322(b)(2) the loan could not be modified. The court denied confirmation of a plan that proposed to modify the loan. Debtor has appealed denial of confirmation to the BAP.

In re Collins, Case No. 10-32098-tmb12 (December 15, 2010)

11 USC §1325(a)(5)

The court denied confirmation of a plan that proposed to cram down a claim secured by real property to the value of the property. The court agreed with the objections of trustee and the affected creditor, who argued that because the debtor was ineligible for discharge, he could not retain the property without creditor consent unless his plan provided for full payment of the underlying claim.

In re Vincent, Case No. 10-61848-fra13 (December 13, 2010)

Late-filed claim by secured creditor; FRBP 3002(c)

A creditor did not file its secured claim until after the bar date had passed and the chapter 13 plan had been confirmed. The court denied the creditor’s motion to allow its claim to be treated as timely filed, but noted that based on the equities in this particular case, it would limit the effect of the claim’s treatment in the plan and give parties in interest 28 days to object to the creditor’s claim. The court cautioned that parties should not rely in future on the court’s exercise of equity when a claim in a chapter 13 case is filed late.

In re Schuhmann, Case No. 10-63024-aer7 (December 9, 2010)

Homestead exemption; prepaid rent; ORS 18.395(1), 18.618(1)(a)(E), and 90.300(16)(a)

Debtors claimed “prepaid rent” as exempt under Oregon’s homestead exemption. The court sustained the trustee’s objection, noting that the prepaid rent was not required under the month-to-month tenancy agreement and thus was severable from the tenancy.

In re Grignon/Hendrix, Case No. 10-34196-tmb13 (December 7, 2010)

11 USC §1328(f)

The court held that nothing in the Code prohibits a debtor who is ineligible for discharge from filing a chapter 13 case and enjoying the rights and privileges of a chapter 13 debtor, including the right to strip off a wholly unsecured lien, provided the case was filed in good faith and not solely for the purpose of stripping the lien.

Pioneer Village Investments, LLC, Case No. 10-62852-fra11 (December 3, 2010)

11 USC §363(f)(5), sale free and clear of liens, Clear Channel v. Knupfer

The court denied chapter 11 debtor’s motion to sell a portion of its real property free and clear of liens; the debtor could not point to anything in Oregon law that would compel the secured creditor to accept a portion of its debt for sale of a portion of its collateral. Further, sale of a portion of the property would violate local zoning ordinances.

Steinhauser v. Promociones Tropical, Inc., Adv. No. 09-3284-rld, Case No. 09-35218-rld13 (November 29, 2010)

Validity of lien, quiet title

The bankruptcy court ruled in favor of plaintiff-debtor in an adversary proceeding to quiet title. Title was brought into question by a previous transaction involving a “loan” to plaintiff (the proceeds of which plaintiff did not receive) and a purported transfer of title to real property. The court rejected defendants’ equitable affirmative defenses but did award an equitable lien against the real property in the amount of property taxes paid pursuant to the “loan” transaction.

Kerivan v. Frohnmayer, Deatherage, Adv. No. 10-6115-fra; In re Krouse Ranch, Inc., Case No. 09-65465-fra11 (October 22, 2010)

Fraudulent transfer, standing, summary judgment

Plaintiffs sued debtor’s former attorneys seeking to avoid under §548 a prepetition trust deed securing current and future attorney fees. Defendant moved for summary judgment. The court denied the motion – defendant had not presented sufficient evidence to overcome badges of fraud. The court also noted, however, that only the trustee has authority to bring an avoidance action under §548; it instructed plaintiffs to seek court authority to act for the estate in this case.

Blocker v. Nomura Home Equity Loan, Inc., Adv. No. 09-03361-rld, Case No. 09-31131-rld7 (September 27, 2010)

Standing, summary judgment, violation of automatic stay, wrongful foreclosure

Debtor filed an adversary proceeding for violation of the automatic stay and wrongful foreclosure on real property he had transferred immediately before filing, but in which he also claimed an ownership interest and exemption. The lender had obtained an order granting relief from stay before foreclosing. The court granted summary judgment against debtor on all his claims. It discussed standing but concluded a genuine issue of material fact existed on that issue.

Remington Ranch, LLC v. Hooker Creek Companies, LLC, Adv. No. 10-3093, Case No. 10-30406-elp11 (September 24, 2010)

Motion for summary judgment, construction lien, ORS 701.131

Debtor sought declaratory judgment that defendant’s construction lien was invalid on both a contract theory (that defendant was not the contracting party) and defendant’s failure to obtain a licence from the CCB. The court found insufficient evidence to rule on contract issues on summary judgment, but ruled the construction lien invalid because the defendant did not hold a CCB license at the time it perfected the lien.

In re Odlin, Case No. 07-62298 (September 22, 2010)

Post-confirmation modified plan; §1329, surrender of motor vehicle

More than two years into her plan, debtor sought to modify the plan to surrender her motor vehicle. The plan had provided for retention of the vehicle and payment in full of the debt securing it. Unfortunately the debtor’s insurance had lapsed and the vehicle had been damaged to the extent that its value was only $500. In these circumstances, the court denied confirmation of the modified plan.

Knappenberger v. Knight, Adv. No. 10-3092-rld; Case No. 10-30580-rld7 (September 17, 2010)

Motion to Amend or Alter Judgment, FRCP 59(e), FRBP 9023, 11 USC §523(a)(6)

The plaintiff filed a complaint to except a debt from discharge under 11 USC §523(a)(6). After trial, the bankruptcy court found that the plaintiff had not met his burden of proof and entered a judgment dismissing his complaint. The plaintiff moved to alter or amend the judgment on the ground that the court’s legal conclusions were incorrect. The motion was denied.

Smith v. FMCC, Adv. No. 10-6091, Case No. 09-64658 (September 13, 2010)

Motion to dismiss, bankruptcy court jurisdiction, assumption of lease

After filing their chapter 7 petition, debtors continued to make payments on a leased vehicle in their possession. No reaffirmation agreement was filed with the court and the Trustee did not assume the lease. The vehicle was repossessed after discharge and closure of the case. The debtors reopened the case and sought damages for violation of the discharge injunction and for breach of the lease agreement. The court dismissed the bankruptcy claim for failure to comply with Code notice provisions and the breach of lease claim for lack of jurisdiction.

Miranda v. Tucci, Adv. No. 09-6031, Case No. 08-63589 (September 10, 2010)

Denial of discharge – §727(a); dischargeability – §§523(a)(2) and (6); trade secrets

Debtor’s bankruptcy followed entry of a state court judgment against him in settlement of an account claim; claims against him based on contract, conversion and violation of Oregon’s Trade Secrets Act were dismissed without prejudice. In the bankruptcy case, the plaintiff in the state court case sued for denial of discharge and nondischargeability on fraud and trade secrets theories. Finding insufficient evidence to support either claim, the court granted judgment to the debtor.

In re McMillin, Case No. 10-61929-aer7 (September 3, 2010)

automobile, vehicle, ORS 18.345(1)(d)

The debtors claimed an assemblage of parts sufficient to assemble a 1926 Ford Model A automobile as exempt under ORS 18.345(1)(d). The trustee objected and the court denied the claim of exemption.

First American Title v. CIT Group, Adv. No. 08-3245; In re Allman, Case No. 08-31282-elp7 (August 24, 2010)

Priority of trust deed, ORS 93.640(1), ORS 86.715, release of trust deed, ORS 87.920, ORS 86.720, MERS, ORS 93.740, attorney fees

Deeds of trust were recorded against two parcels of real property; judgments and lis pendens were also recorded. The debtors refinanced the real property and paid off the underlying debt and the deeds of trust were released. CIT, holder of the deeds of trust, argued the release was invalid. The court rejected CIT’s arguments and held the release was valid.

OCCU v. Angulo, Adv. No. 10-6061, Case No. 09-67031 (August 11, 2010)

Dismissal of affirmative defenses, unclean hands defense, judgment on the pleadings, dischargeability: 11 USC §523(a)(2)(A)

Plaintiff’s action for nondischargeability elicited affirmative defenses relating to unclean hands, based on alleged failure to comply with various reporting requirements. The court granted plaintiff’s motion to dismiss the affirmative defenses.

In re McDonald, Case No. 09-65482 (August 11, 2010)

Computation of arrearage

The court sustained a secured creditor’s objection to the chapter 13 plan based on computation of the arrearage. The court held that, pursuant to the promissory note and deed of trust, the arrearage computation should include out of pocket amounts advanced by the creditor to protect his lien rights.

In re Pfannenstiel, Case No. 09-31350-rld7, Adv. No. 09-3280-rld (July 23, 2010)

Reschedule trial, adequate cause Pro se debtor who sought to discharge his student loan debt did not appear for his trial and did not notify the court in advance he would not be able to appear. The day after the trial the debtor filed a letter seeking a new trial date but offering no explanation for his failure to appear. The court treated the letter as a motion and denied it for lack of adequate cause.

Ford-Torres v. O’Shea, Adv. No. 07-6084-fra, Case No. 07-60265-fra7(July 21, 2010)

Dischargeability under §523(a)(6)

The court determined that certain claims in a case pending against debtor in federal district court were dischargeable and others were nondischargeable under §523(a)(6). The pending case alleges wrongful discharge, intentional infliction of emotional distress, intentional injury of an employee and battery.

In re Kindell, Case No. 10-63489-fra7 (June 30, 2010)

Motion to expedite meeting of creditors

The debtors asked trustee to reschedule the meeting of creditors to an earlier date, the trustee refused, and the debtors moved to expedite the meeting. The court held the trustee’s refusal to reschedule was an abuse of discretion, as neither the trustee nor creditors would be prejudiced by moving the meeting to another date.

In re Stubblefield, Case No. 09-38572-rld7 (June 21, 2010)

11 USC §707(b)(3)(B), abuse of chapter 7, totality of circumstances

The court held the debtor’s case was an abuse of chapter 7. The debtor was a financially sophisticated woman whose income, while it had declined since 2007, was still substantial at the time of her bankruptcy filing and would allow her to propose a chapter 13 plan that would result in significant payment to creditors. The court considered the factors set forth in In re Price, 353 F3d 1135 (9th Cir 2004), in reaching this conclusion. The debtor’s ability to pay a substantial portion of her unsecured debt was of primary importance.

Simons and Gales v. Kolwitz, Case No. 07-62870-fra7, Adv. No. 08-6067-fra (May 27, 2010)

11 USC §523(a)(2)

After the debtor, Kolwitz, fell behind on a construction project for Simons and Gales, Simons and Gales terminated the project and denied debtor’s request for additional funds to continue the project. They sought to have their claim for damages related to the project excepted from discharge under §523(a)(2). The court held for debtor, because Simons and Gales had not presented evidence that any misrepresentation was material, intentional or made in writing.

In re Schulke, Case No. 09-65100 (May 4, 2010)

Motion to use tax refund, modified plan, chapter 13

The court denied the debtor’s motion to use her tax refund of $4,000 for personal expenses rather than tender it to the trustee as required by her confirmed chapter 13 plan. In order to use the tax refund other than as provided in the plan, the debtor must file a modified plan.

Commercial and Residential Maintenance, Inc. v. Abblit, Case No. 09-61935-fra7, Adv. No. 09-6094-fra (December 21, 2009)

ORICO claim, subject matter jurisdiction, 11 USC §523(a)(4)

Debtor was convicted of stealing from his employer and required to pay restitution of $23,714. Employer sued debtor in state court and obtained a default judgment under ORICO for three times actual damages. Employer brought an adversary proceeding in bankruptcy court seeking a declaration that this debt was not dischargeable. The court granted summary judgment to employer.

In re Applebaum & Finley, Case No. 08-63391-fra7, Appellate No. OR-09-1134-MkHPa (December 18, 2009)

California bankruptcy-only exemptions

Debtors lived in California before moving to Oregon and filing for bankruptcy. They claimed exemptions under California’s exemption statute, applicable only to debtors in bankruptcy. The trustee objected to the exemptions and argued that the California statute was unconstitutional. The bankruptcy court ruled the statute constitutional and the BAP affirmed, with one judge dissenting.

United Services Associated v.Lupo, Adv. No. 08-6196-fra, Case no. 08-63556-fra13 (June 30, 2009)

Nondischargeability, §523(a)(4) – larceny, intentional interference with economic relations, punitive damages

Debtor’s former employer accused him of using his position in the company to steal customers and diverting payments from customers to himself. The court awarded $109,156 in damages based on lost profits and diversion of funds, and held the debt was nondischargeable as larceny or embezzlement. The court declined to award punitive damages

In re Schenk, Case No. 05-47887-elp13 (January 27, 2009)

Trustee and debtor had different understandings of how a plan provision worked for MBNA and other unsecured creditors. The court interpreted the ambiguous provision against debtor, who drafted the plan.

Bergemann v. Brion & Higgins, Case Nos. 10-37631-tmb7 and 10-37632-rld7; Adv. Nos. 10-3281-tmb (lead case) and 10-3282-tmb ()

Arbitration, categorical harm, collateral estoppel, damages, issue preclusion, malice, punitive damages, res judicata, summary judgment, unclean hands, willful injury, FRCP 56(a), 11 USC §101(12) and §523(a)(6)

The court granted summary judgment for plaintiff, ruling that arbitration awards against the two debtors had preclusive effect under federal law and were excepted from discharge under §523(a)(6). The debtors had been employees of plaintiff and, it was contended in the arbitration, had formed and operated a company to compete with plaintiff, while still employed by plaintiff.

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