The bankruptcy court denied the defendants' motion for summary judgment in this legal malpractice case. The motion was primarily based on the doctrine of judicial estoppel, and the defendants argued that testimony on the debtor's behalf had changed significantly, with the debtor taking the position in the bankruptcy case that abandonment of certain assets was necessary, and now taking the position in the malpractice action that it could have maintained those assets and should not have been forced to abandon them. The court found that the evidence presented does not establish judicial estoppel, and ordered the case to proceed to trial.
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Opinions
United States Courts Opinions (USCOURTS) collection is a collaborative effort between the U.S. Government Publishing Office (GPO) and the Administrative Office of the United States Courts (AOUSC) to provide public access to opinions from selected United States appellate, district, and bankruptcy courts.
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The court is unable to determine whether or not the defendant in a § 523(a)(2)(B) dischargeability proceeding is entitled to summary judgment because the movant failed to submit any evidence in support of the motion.
Venue for a trustee's adversary proceeding to avoid allegedly fraudulent transfers was appropriate in the district in which the bankruptcy case was filed. The out-of-state defendants had moved to dismiss, arguing that 28 U.S.C. § 1409(b) requires such lawsuits to be brought in the defendants' home district, but the court denied that motion, noting that § 1409(b) addresses only proceedings "arising in" or "related to" a bankruptcy case and fraudulent transfer avoidance actions "arise under" the Bankruptcy Code.
The debtor's managing member and guarantor of its debt objected to the manner in which the primary secured creditor disposed of the debtor's assets. The movant objected to the creditor's proof of claim, arguing that the disposition was not commercially reasonable because the assets were not offered to industry buyers and because the creditor ignored the movant's competing bid and the possibility of an even higher third-party bid. The court determined that the validity and amount of claim as of the petition date were not in dispute, but the movant was contesting the amount of the claim in light of post-petition events. The court ruled that the matter should be heard as an adversary proceeding and deferred the claim objection pending the outcome of the adversary proceeding.
The debtors moved to avoid a judicial lien which impaired their homestead exemption. Under the § 522(f)(2) formula, only a portion of the judicial lien actually impaired the exemption and was subject to avoidance. Two other judicial liens on the property had already been avoided, so those liens were not part of the statutory calculation. The debtors were directed to file an amended post-confirmation plan to clarify how they would deal with the secured claim represented by the unavoided portion of the judicial lien.
The court granted summary judgment to the debtors, ordering that a wholly unsecured junior lien on the debtors' residential real estate may be avoided after the debtors complete Chapter 13 plan payments.
The court granted summary judgment to the debtors, ordering that a wholly unsecured junior lien on the debtors' residential real estate may be avoided after the debtors complete Chapter 13 plan payments.
The court approved a reduced amount of fees for debtor's counsel after finding the requested fees to be excessive and unreasonable, with very little progress made or benefit provided to the estate during the eight months the case has been pending.
In an adversary proceeding to determine whether a debt owed to the State of Nebraska, acting through the Department of Health and Human Services, was discharged in the debtor's previous pre-BAPCPA Chapter 13 case, the State failed to meet its burden of proof by showing that the debt was one for support that had been assigned to the State. Accordingly, the debt did not fall within the discharge exception of § 523(a)(5) and it was discharged.
An unsecured junior lien on the debtors' residential real estate may be avoided after the debtors complete Chapter 13 plan payments. The case law in the Eighth Circuit permits wholly unsecured liens to be stripped off.