Edmonton State Bank v. Smith (In re Smith)

(Bankr. W.D. Ky. Dec. 6, 2017)

The bankruptcy court finds that two tobacco pole barns on the debtor’s property were fixtures and thus subject to the plaintiff bank’s mortgage. Two other creditors with security interests in the debtor’s personal property argued that the barns were instead subject to their liens and thus the insurance proceeds following destruction of the barns in a wind storm should be subject to their lien. The court analyzes Kentucky law on fixtures and rules in favor of the mortgage holder. Opinion below.

Judge: Lloyd

Attorney for Plaintiff: T. Richard Alexander, II

Attorney for Debtor: Sullivan Mountjoy Stainback & Miller PSC, K. Timothy Kline

Attorney for Defendants: Brian R. Pollock; Adam R. Kegley

2017-12-06 – in re smith

Author: Matt Lindblom

Whirlpool Corporation v. HHGreg, Inc. (In re HHGregg, Inc.)

(Bankr. S.D. Ind. Dec. 4, 2017)

The bankruptcy court grants the motion to dismiss, finding the defendant’s security interest in the debtor’s assets, including its inventory, has priority over the plaintiff’s reclamation rights. The plaintiff sold goods to the debtor up to the petition date and sought either return of the goods delivered within the reclamation period or recovery of the proceeds from the sale of such goods. Pursuant to 11 U.S.C. § 546(c), the Court finds the reclamation rights are subordinate and the complaint should be dismissed. Opinion below.

Judge: Jeffrey J. Graham

Attorneys for Plaintiff: Warner Norcross & Judd LLP, Robert Michael Azzi, Stephen B. Grow, Janet L. Ramsey; Rubin & Levin, P.C., Joshua W. Casselman, James E. Rossow, Jr.

Attorneys for Defendants: Ice Miller LLP, Adam Arceneaux, Sarah Lynn Fowler, Jeffrey A. Hokanson; Morgan Lewis & Bockius LLP, Andrew Joseph Gallo, Neil E. Herman; Choate Hall & Stewart LLP, Mark D. Cahill, Sean Monahan, John Ventola; Faegre Baker Daniels LLP, Terry E. Hall, Jay Jaffe; DLA Piper LLP, David E. Avraham, Stuart M. Brown, Jeffrey Scott Torosian

2017-12-04 – in re hhgregg

Author: Matt Lindblom

(B.A.P. 6th Cir. Nov. 28, 2017)

The Sixth Circuit B.A.P. affirms the bankruptcy court’s dismissal of the Chapter 12 bankruptcy case. The court finds that the bankruptcy court failed to give the debtor proper notice and opportunity to be heard prior to the dismissal. However, the violation of due process was harmless error. The delay in filing a confirmable plan and continuing loss to the estate warranted the dismissal. Opinion below.

Judge: Preston

Attorney for Appellant: Heather McKeever

Attorneys for Appellees: Carrie Ann Rohrscheib; Bradley Arant Boult Cummings LLP, Edmund S. Sauer

2017-11-28 – in re haffey

Author: Matt Lindblom

In re Dickson

(Bankr. E.D. Ky. Nov. 22, 2017)

The bankruptcy court grants the the creditors’ motion for sanctions pursuant to Bankruptcy Rule 9011. The creditors argued that the debtor filed her Chapter 11 petition in bad faith. The court finds that sanctions are appropriate because the debtor filed the petition without a legitimate bankruptcy purpose. The debtor sought the protection of the automatic stay but did not intend to reorganize or seek an orderly liquidation. Instead, the debtor sought to obtain a civil remedy—the stay of execution of the judgment against the debtor while her appeal was pending. Opinion below.

Judge: Wise

Attorneys for Debtor: Gess Mattingly & Atchison, William W. Allen, Stefan J. Bing, John Thomas Hamilton, Elizabeth Thompson

Attorney for Creditors: DelCotto Law Group PLLC, Jamie L. Harris

2017-11-22 – in re dickson

Author: Matt Lindblom

Cox v. Specialty Vehicle Solutions, LLC

(6th Cir. Nov. 14, 2017)

The Sixth Circuit vacates the district court’s judgment dismissing the creditor’s lawsuit against the debtor. The lawsuit was filed after the petition date, and the bankruptcy court entered an order that vacated the automatic stay so that the creditor was permitted “to resume and prosecute to conclusion” the lawsuit. The debtor then filed a motion to dismiss the lawsuit, arguing the initial case filed was null and void because it had been filed in violation of the automatic stay and a second action filed was outside the 30-day period allowed by 11 U.S.C. § 108(c) after lifting of the stay. The court finds that the stay lift order is ambiguous because it doesn’t clearly state that the stay was “annulled” or that the relief granted is retroactive to validate the first lawsuit filed. The court remands for consideration of additional evidence and correct application of Easley v. Petit One Mich. Corp. Opinion below.

Judge: White

Attorneys for Creditor: Seiller Waterman, David M. Cantor, Keith James Larson; Taliaferro, Carran & Keys, Philip Taliaferro, III

Attorneys for Debtor: Casey, Bailey & Maines, Susan L. Maines

2017-11-14 – in re cox

Author: Matt Lindblom

Couch v. Panther Petroleum, LLC (In re Couch)

(6th Cir. Nov. 6, 2017)

The Sixth Circuit affirms the B.A.P., holding the entry of summary judgment in favor of the creditors in the nondischargeability action was appropriate. The creditors obtained a default judgment against the debtor in Tennessee state court. The default judgment was on the merits and the doctrine of collateral estoppel applied. Opinion below.

Judge: Rogers

Appellant: Pro Se

Attorneys for Creditors: Keating, Muething & Klekamp, Joseph E. Lehnert, Brian P. Muething, Jason V. Stitt

2017-11-06 – in re couch

Author: Matt Lindblom

In re Wilson

(Bankr. W.D. Ky. Nov. 1, 2017)

The bankruptcy court grants the creditor’s motion for stay relief to proceed with a state court foreclosure action. The creditor had obtained an order granting stay relief in a prior bankruptcy filed by the debtor’s son, the owner of the property. The debtor’s life estate interest in the property does not prevent the foreclosure action from proceeding. Opinion below.

Judge: Lloyd

Attorney for Debtor: Mark H. Flener

Attorney for Creditor: Bradley S. Salyer

2017-11-01 – in re wilson

Author: Matt Lindblom