Harker v. PNC Mortgage Company (In re Oakes)

(6th Cir. B.A.P. Feb. 6, 2018)

The Sixth Circuit B.A.P. affirms the bankruptcy court’s order denying the mortgage holder’s motion for judgment on the pleading in this mortgage avoidance action. The creditor argued that recently-enacted Ohio statutes provide that the bankruptcy trustee, as a hypothetical judicial lien creditor, cannot avoid the mortgage, which was improperly executed and recorded. The B.A.P. holds that, pursuant to Ohio law at the time the case was filed, the trustee takes priority over the creditor’s defective mortgage. Opinion below.

Judge: Opperman

Attorneys for Trustee: Donald F. Harker, III; Rieser & Marx, Dianne F. Marx, John Paul Rieser

Attorneys for Creditor: Plunkett Cooney, Amelia A. Bower

2018-02-06 – in re oakes

Author: Matt Lindblom

Bash v. Textron Financial Corporation (In re Fair Finance Company)

(6th Cir. Aug. 23, 2016)

The Sixth Circuit reverses the dismissal of certain of the trustee’s claims against the defendant entity alleged to have assisted the debtor with a Ponzi scheme. The debtor financial services company had been purchased by two individuals in 2002 and was transformed into a front for the Ponzi scheme. The scheme collapsed in 2009, an involuntary petition was filed against the Debtor, and the trustee brought claims including fraudulent transfer claims against the defendant. The lower court dismissed all claims, but the Sixth Circuit, interpreting Ohio state law, holds that the trustee adequately pled certain claims that should not have been dismissed. Opinion below.

Judge: Davis

Attorneys for Appellant: Baker & Hostetler, Daniel R. Warren, Thomas D. Warren, Joseph F. Hutchinson, David F. Proaño

Attorneys for Appellee: Gibson, Dunn & Crutcher LLP, Mitchell A. Karlan; Bricker & Eckler LLP, James P. Schuck, Kenneth C. Johnson, Quintin F. Lindsmith

2016-08-23 – in re fair finance company

Author: Matt Lindblom

In re Aubiel

(6th Cir B.A.P. July 22, 2015)

The bankruptcy appellate panel affirms the bankruptcy court’s determination that the debtor was not entitled to claim the Ohio homestead exemption for his 46-foot boat. While the statute permits the homestead exemption to be applied to personal property, the bankruptcy court determined that the trustee met his burden of rebutting the presumption that the exemption was allowable and the debtor failed to establish that the boat was his primary residence. Opinion below.

2015-07-22 – in re aubiel

Author: Matt Lindblom

Plymouth Park Tax Services, LLC v. Bowers (In re Bowers)

(6th Cir. July 21, 2014)

The Sixth Circuit affirms the bankruptcy court’s holding that the Ohio real property tax certificate holder was not entitled to Chapter 13 plan payments that included 18% interest pursuant to an Ohio statute, but rather was only entitled to .25% interest as set forth on the certificate itself. The creditor argued the statute governing “redemption” of the certificate, which required 18% interest, controlled over another statute that provided that the interest on a tax certificate accrues at the “certificate rate of interest” while the property owner’s bankruptcy is pending. The Court held that the .25% interest rate applied, as that statutory provision was more specific and controlled over the other more general statute. Opinion below.

2014-07-21 – in re bowers