Isaacs v. DBI-ASG Coinvester Fund III, LLC (In re Isaacs)

(6th Cir. B.A.P. July 3, 2017)

The Sixth Circuit B.A.P. vacates the bankruptcy court’s judgment and remands for dismissal based on lack of subject matter jurisdiction. The creditor failed to record its mortgage prior to the first Chapter 7 case, recorded it during that case, and it was not challenged. The creditor then sought to foreclose on the mortgage and obtained a state court in rem judgment permitting foreclosure. The debtor then filed a Chapter 13 case and challenged the state court judgment, based on the stay violation in the Chapter 7. The bankruptcy court held that the Rooker-Feldman doctrine did not apply because the state court judgment modified the discharge injunction inappropriately, as the lien was not valid based on the Chapter 7 discharge. The B.A.P. reverses, finding that the Rooker-Feldman doctrine does apply, and that the lien was effective under Kentucky law even if not perfected prior to the Chapter 7. Opinion below.

Judge: Humphrey

Attorney for Debtor: Marcus H. Herbert

Attorney for Creditor: DBI-ASG Coinvester Fund, III, LLC

2017-07-03 – in re isaacs

Author: Matt Lindblom

Renner v. U.S. Bank National Association (In re Renner)

(Bankr. S.D. Ind. June 26, 2017)

The bankruptcy court dismisses without prejudice the debtor’s complaint against a foreclosing creditor because the court concludes it lacks subject matter jurisdiction. The debtor filed the complaint alleging numerous causes of action, including violations of the automatic stay. However, the alleged acts occurred at a time when the subject property was no longer property of the estate. Opinion below.

Judge: Carr

Attorneys for Debtor: Sabin, Shea & Des Jardines LLC, J. Andrew Sabin

Attorneys for Creditor: Rubin & Levin, Reynold T. Berry, Deborah Caruso, Ian Peter Goodman, Cassandra A. Nielsen, Meredith R. Theisen

2017-06-26 – in re renner

Author: Matt Lindblom

Nicholson v. Hyundai Capital America, Inc.

(W.D. Ky. May 2, 2017)

The district court denies the debtor’s motion to withdraw the referral of one count of her complaint to the bankruptcy court. The defendant had filed a motion with the bankruptcy court seeking to have the count dismissed because it was not a core claim. The debtor then sought an order withdrawing the reference to avoid litigating the jurisdictional question. The district court declines to grant the motion, stating that the bankruptcy court should rule on the motion to dismiss, as it has jurisdiction to consider the issue presented with the motion. Opinion below.

Judge: Russell

Attorneys for Plaintiff/Debtor: Whitford & Neuhauser, Ross B. Neuhauser

Attorneys for Defendants: Reimer Law Co., Dennis Mark Ostrowski; Smith, Rolfes & Skavdahl, Co., LPA, Neil P. Baine

2017-05-02 – in re nicholson

Author: Matt Lindblom

Halifax Financial Group L.P. v. Hazel (In re Hazel)

(S.D. Ind. Feb. 27, 2017)

The district court dismisses the appeal because the bankruptcy court’s order was not final and appealable. The creditor had filed an emergency motion for stay relief to proceed with acquiring title to the debtor’s real property through Indiana’s tax sale and tax deed procedures. The bankruptcy court denied the motion without prejudice. The district court holds that the bankruptcy court’s order was not final, in part because it was without prejudice and appeared to be a preliminary decision. Opinion below.

Judge: Young

Attorneys for Creditor: Harrison & Moberly, David J. Theising

Attorneys for Debtor: Tom Scott & Associates, PC, Jess M. Smith, III

2017-02-27-in-re-hazel

Author: Matt Lindblom

In re Sobczak-Slomczewski

(7th Cir. June 13, 2016)

The Seventh Circuit holds that Bankruptcy Rule 8002(a)’s 14-day time limit for filing a notice of appeal is jurisdictional. Thus, the debtor’s appeal was properly dismissed because it was filed on the fifteenth day after entry of the order. While this court had clearly held the rule was jurisdictional in prior opinions, it revisited the issue in light of the Supreme Court’s decisions in Bowles v. Russell (2007) and Kontrick v. Ryan (2004). The court finds that the rule is not merely a claim-processing rule as described in those opinions. Opinion below.

Appellant: Pro Se

Attorneys for Appellee: Meltzer, Purtill & Steele LLC, David L. Kane, Whyte Hirschboeck Dudek S.C., Jeffrey McIntyre

2016-06-13 – in re sobczak-slomczewski

Author: Matt Lindblom

Church Joint Venture, L.P. v. Blasingame (In re Blasingame)

(6th Cir. June 6, 2016)

The Sixth Circuit affirms the B.A.P. and dismisses the appeal for lack of jurisdiction. Following the principal creditor’s objection, the bankruptcy court denied the trustee and debtors’ motion to approve a settlement of a legal malpractice claim held by the estate. The debtors appealed. The court finds that the appealed order was not a final order that could be appealed because the debtors were free to propose a new settlement for approval. Opinion below.

Judge: Kethledge

Attorneys for Debtors: Evans Petree, David J. Cocke, Glankler Brown, Michael P. Coury

Attorneys for Appellees: Cantey Hanger, Bruce W. Akerly

2016-06-07 – in re blasingame

Author: Matt Lindblom

Siragusa v. Collazo (In re Collazo)

(7th Cir. Apr. 5, 2016)

The Seventh Circuit affirms the decision of the bankruptcy court dismissing some of the creditors’ nondischargeability claims because the claims were based on alleged fraud occurring outside the applicable Illinois five-year limitations period. The court reverses the dismissal of one of the claims because it was not clear that the creditor had notice of the fraud to start the limitations period. The court also remands so that a money judgment can be entered, as the bankruptcy court’s concerns that it did not have jurisdiction to do so were addressed in the Supreme Court’s Wellness and Arkison decisions. Opinion below.

Judge: Posner

Attorney for Debtor: David Robert Herzog

Attorney for Creditors: Patrick Gerard Cooke

2016-04-05 – in re collazo

Author: Matt Lindblom