Stein v. Stubbs (In re Stubbs)

(6th Cir. B.A.P. Mar. 9, 2017)

The Sixth Circuit B.A.P. vacates the bankruptcy court’s orders denying the trustee’s motion for default judgment in the action to revoke the debtor’s discharge. The debtor failed to comply with the court’s order to provide the trustee a copy of her tax return when filed. The appellate court finds the bankruptcy court abused its discretion in denying the trustee’s motion for default judgment where the debtor was properly served with the action and there was no evidence the debtor was not aware of the bankruptcy court’s clear order on the issue. Opinion below.

Judge: Humphrey

Trustee: Sheldon Stein

2017-03-09 – in re stubbs

Author: Matt Lindblom

In re Zenga

(6th Cir. B.A.P. Jan. 17, 2017)

The Sixth Circuit B.A.P. reverses the bankruptcy court’s order denying the debtors’ motion to dismiss the involuntary bankruptcy petition filed against them by a single creditor. The debtors argued that 11 U.S.C. § 303(b)(1) required a minimum of three petitioning creditors to institute an involuntary bankruptcy against them, because they had twelve or more creditors. The petitioning creditor argued that the debtors should be equitably estopped from asserting they had twelve creditors because in prepetition post-judgment discovery, they stated that they had only ten other creditors. The B.A.P. holds that, while the 303(b)(1) requirement is not jurisdictional, the bankruptcy court erred as a matter of law in applying equitable estoppel because the creditor failed to establish sufficient detriment as a result of the misrepresentation in the post-judgment discovery. Opinion below.

Judge: Humphrey

Attorneys for Debtors: Lefkovitz & Lefkovitz, Steven L. Lefkovitz

Attorneys for Appellee: Bass, Berry & Sims PLC, Gene L. Humphreys

2017-01-17-in-re-zenga

Author: Matt Lindblom

Spradlin v. Khouri (In re Bruner)

(6th Cir. B.A.P. Jan. 4, 2017)

The Sixth Circuit B.A.P. affirms the bankruptcy court’s decision and order denying the trustee’s request for turnover of funds paid to the debtor’s criminal defense attorney. The debtor’s mother had made the transfer from a bank account held jointly with the debtor. The trustee failed to meet the burden of proving by a preponderance of the evidence that the attorney fee was property of the estate, and thus turnover was inappropriate. Because the debtor had no claim to the fee, the trustee had no claim for turnover. Opinion below.

Judge: Humphrey

Attorneys for Defendants: Khouri Law Firm, Yelena Bakman, Edward P. Kerns, Michael John Khouri, Wai Brenda Tso

Attorneys for Trustee: Bingham Greenebaum LLP, Richard Boydston

2017-01-04-in-re-bruner

Author: Matt Lindblom

In re McCoy

(6th Cir. B.A.P. Nov. 29, 2016)

The Sixth Circuit B.A.P. reverses the bankruptcy court’s order denying the debtor’s motion to reopen his Chapter 7 case. Four years after filing the bankruptcy and receiving a discharge, the debtor filed a motion to reopen his case to avoid judicial liens. No creditors objected. However, the bankruptcy court denied the motion based primarily on the delay in filing the motion. The B.A.P. holds that the mere passage of time does not necessarily cause prejudice to a creditor sufficient to bar reopening of a case. The bankruptcy court did not find prejudice and thus the motion should have been granted. Opinion below.

Judge: Harrison

Attorney for Debtor: Carlo A. Ciccone

2016-11-29-in-re-mccoy

Author: Matt Lindblom

In re Blasingame

(6th Cir. B.A.P. Nov. 7, 2016)

The Sixth Circuit B.A.P. reverses the bankruptcy court’s order sanctioning the attorney under Bankruptcy Rule 9011 and 28 U.S.C. § 1927. The court holds that the movant failed to satisfy the twenty-one day safe harbor in Rule 9011 and the one exception to the safe harbor did not apply because the attorney did not actually sign the petition, although he did advise on the case. Further, sanctions under § 1927 were not appropriate because the bankruptcy judge found that the attorney’s behavior fell short of subjective bad faith. The statute requires tactics that far exceed zealous advocacy. Opinion below.

Judge: Preston

Attorney for Movant: Malone Akerly Martin, Bruce W. Akerly, Ballin, Ballin & Fishman, Carl Barry Ward

Attorney for Appellant: Edward Michael Bearman

Author: Matt Lindblom

2016-11-07-in-re-blasingame

In re Ramey

(6th Cir. B.A.P. Sep. 30, 2016)

The Sixth Circuit B.A.P. affirms the bankruptcy court’s order dismissing the Chapter 7 case for failure to complete the 11 U.S.C § 109(h) pre-petition credit counseling. The debtor argued the requirement should be waived in this case for reasons including that the §109(h)(2) and (3) exceptions should apply. The bankruptcy court held the exceptions did not apply. The debtor could not establish incapacity, because the debtor was able to complete the counseling post-petition, and the debtor failed to establish that the debtor could not obtain pre-petition counseling within seven days of a request or any other exigent circumstances. Opinion below.

Judge: Humphrey

Debtor: pro se

Author: Matt Lindblom

2016-09-30-in-re-ramey

In re Jackson

(6th Cir. B.A.P. Aug. 4, 2016)

The Sixth Circuit B.A.P. holds that the bankruptcy court abused its discretion in awarding sanctions against a creditor for violation of a discharge order in the individual’s Chapter 7 bankruptcy case. The condominium association rescheduled a sheriff’s sale of the debtor’s condominium unit to complete a pre-petition foreclosure. The bankruptcy court found that the association’s primary objective was to collect the discharged debt from the debtor, for reasons including that there was likely no equity available to pay the association through the sale. The Sixth Circuit B.A.P. holds that this was an abuse of discretion, as the association had the right to enforce its lien post-petition. Opinion below.

Judge: Humphrey

Attorney for Condominium Association: Kaman & Cusimano, Erika R. Finley, Joseph E. DiBaggio

Debtor: Pro Se

2016-08-04 – in re jackson

Author: Matt Lindblom

Nelson v. Fifth Third Bank (In re Brunsman)

(6th Cir. B.A.P. June 1, 2016)

The Sixth Circuit B.A.P. reverses the bankruptcy court’s sua sponte granting of summary judgment in favor of the trustee. The trustee brought the action to avoid the appellants’  liens in the debtor’s aircraft. The bankruptcy court abused its discretion in granting summary judgment because its decision was not based on undisputed facts. Instead, the bankruptcy court based its decision on assumptions derived from the appellants’ inability to produce sufficient documentation. Opinion below.

Judge: Harrison

Attorneys for Appellee: Cohen, Todd, Kite & Stanford, Donald W. Mallory, Richard Dunbar Nelson

Attorneys for Appellants: Staatman, Harris, & Eyrich, William Brokate Fecher, Alan Joel Statman; Eileen Kay Field, Albert T. Brown, Jr.

2016-06-01 – in re brunsman

Author: Matt Lindblom

In re Tench

(6th Cir. B.A.P. May 11, 2016)

The Bankruptcy Appellate Panel reverses the bankruptcy court’s order allowing the unsecured creditor’s late-filed claim in this Chapter 13 case. The creditor filed its claim eight days after the bar date, and the bankruptcy court allowed the claim based on excusable neglect. The B.A.P. holds that a bankruptcy court does not have authority to extend the deadline in Rule 3002(c) through equitable powers or the doctrine of equitable tolling. Opinion below.

Judge: Humphrey

Attorneys for Creditor: Gingo Palumbo Law Group LLC, Anthony J. Gingo, Michael J. Palumbo

Attorneys for Debtor: Luftman, Heck & Associates, LLP, Matthew L. Alden

2016-05-11 – in re tench

Author: Matt Lindblom

In re Bratt

(6th Cir. B.A.P. Apr. 26, 2016)

The B.A.P. holds that the recently-enacted Tennessee statute setting a higher interest rate for property tax claims in bankruptcy does not in fact determine the interest rate for such a claim in bankruptcy. Here, the property tax claim was oversecured, so interest could be paid on the claim pursuant to 11 U.S.C. § 506(b). Sec. 511 provides that the interest rate shall be determined by applicable nonbankruptcy law. The court holds that the Tennessee statute was a “bankruptcy law,” and thus the regular interest rate under Tennessee law applies. Opinion below.

Judge: Wise

Attorney for Government: R. Alexander Dickerson

Attorney for Debtor: Alexander Koval

2016-04-26 – in re bratt

Author: Matt Lindblom