In re Lynn

(Bankr. W.D. Ky. Oct. 16, 2017)

The bankruptcy court overrules the Chapter 7 trustee’s objection to the debtor’s claimed exemption. The debtor moved to reopen her case, add a personal injury cause of action to her schedules, and claim an exemption in a portion of the recovery on the cause of action. The court holds that Law v. Siegel is applicable, and thus the court does not have authority to deny the exemption even if bad faith exists. Opinion below.

Judge: Lloyd

Attorney for Debtor: Darren K. Mexic

Trustee: Jerry Burns

2017-10-16 – in re lynn

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

Grant v. Granader (In re Granader)

(6th Cir. Oct. 12, 2016)

The Sixth Circuit affirms the bankruptcy court’s order denying the creditor’s motion to reopen the case. The debtor’s ex-spouse filed the motion four years after the debtor received his discharge. The ex-spouse argued that an obligation arising out of their divorce proceedings should be declared non-dischargeable. The court holds the bankruptcy court did not abuse its discretion in denying the motion. Opinion below.

Per Curiam

Attorney for creditor: Aaron J. Scheinfield

Attorneys for debtor: Silverman & Morris, Geoffrey Lewis Silverman, Karin F. Avery

2016-10-12-in-re-granader

Attorney: Matt Lindblom

McKinstry v. Richard Holmes Enterprises, LLC (In re Black Diamond Mining Company, LLC)

(E.D. Ky. June 16, 2016)

The district court affirms the bankruptcy court’s order dismissing the reopened bankruptcy case. The creditor consented to the unsecured creditors trusts’ settlement of a claim, which was followed by a distribution to creditors and closure of the case. The creditor then moved to reopen the case, and the bankruptcy court granted the motion on condition that the creditor deposit its distribution amount in escrow. The creditor failed to do so, and the case was then dismissed. The bankruptcy court did not err in placing a condition on reopening the case. Because the creditor waited to challenge the settlement and bring claims against the trusts’ attorneys after distribution, there were no fund to indemnify the trust. Thus, the requirement to deposit funds in escrow was appropriate. Opinion below.

Judge: Thapar

Attorneys for Creditor: The Getty Law Group, PLLC, C. Thomas Ezzell, Richard A. Getty, Ware Jackson Lee O’Neill Smith & Barrow, LLP, Paul Smith, Timothy F. Lee

Attorneys for Trust and Its Attorneys: Foley & Lardner, LLP, David B. Goroff, Geoffrey S. Goodman, Dinsmore & Shoal LLP, David James Treacy, Hoover Hull Turner LLP, Michael R. Limrick, Patrick A. Ziepolt, Wayne C. Turner

2016-06-16 – in re black diamond mining company

In re Yonish

(6th Cir. B.A.P. Mar. 3, 2016)

The Sixth Circuit B.A.P. reverses the bankruptcy court’s denial of the motion to reopen the bankruptcy case to avoid judicial liens. The debtor’s counsel reported that attorney error resulted in the cases being closed prior to avoidance of the liens. No creditors objected to the motion, but the bankruptcy court found that the delay in filing the motion to reopen (two years after the case was closed) warranted denial of the motion. The B.A.P. holds that the bankruptcy court erred by finding prejudice solely based on the delay. A showing of actual prejudice was necessary. Opinion below.

2016-03-03 – in re yonish

Author: Matt Lindblom

McKinstry v. Richard Holmes Enterprises, LLC (In re Black Diamond Mining Company, LLC)

(E.D. Ky. Feb. 5, 2016)

The district court denies the motion for stay pending the appeal of the bankruptcy court’s order. The bankruptcy court had ordered that the party moving to reopen the bankruptcy case deposit funds into escrow as a condition to reopening the case. The court held that the party must show at a minimum serious questions going to the merits to obtain such a stay, but the party failed to do so. Opinion below.

2016-02-05 – in re black diamond mining

Author: Matt Lindblom

In re Kiriazis

(6th Cir. B.A.P. Jan. 28, 2016)

The Sixth Circuit B.A.P. affirms the bankruptcy court’s order denying the creditor’s motion to reopen the bankruptcy case. The creditor’s attorney stated on the record that the creditor had committed a willful violation of the discharge injunction and that the creditor was negotiating  a resolution with the debtor. The bankruptcy court entered an order finding the creditor had violated the injunction and that punitive damages were appropriate, but left the issue of damages open for the parties to negotiate and report back to the court. The case was closed after an agreed order was entered resolving the pending motion. The creditor then sought to reopen the case and to reconsider the prior order, but the bankruptcy court refused, finding a notice of appeal was not timely filed, and the motion to reconsider was not timely. Opinion below.

2016-01-28 – in re kiriazis

Amended Opinion: 2016-02-02 – in re kiriazis

Author: Matt Lindblom