Cox v. Nostaw, Inc. (In re Central Illinois Energy Cooperative)

(7th Cir. Feb. 8, 2017)

The Seventh Circuit denies the trustee’s motion to dismiss his appeal and remand so that the bankruptcy court could approve the settlement between the parties, as the bankruptcy court recently indicated that it would approve the settlement. The court denies the motion because Appellate Procedure Rule 12.1 requires that the district court indicate that it would grant the same relief as the bankruptcy court. Opinion below.

Judge: Ripple

Attorneys for Trustee: Riordan, Fulkerson, Hupert & Coleman, Alan Fulkerson

Attorneys for Appellee: Howard & Howard Attorneys PLLC, Thomas W. O’Neal


Author: Matt Lindblom

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

(E.D. Ky. Aug. 18, 2016)

The district court grants the motion to unseal the record. The record had been sealed following a motion that asserted the documents contained confidential settlement information. However, the court made clear that if someone requested that the record be unsealed, the moving party would have the heavy burden of showing why particular documents should remain sealed. The movant failed to meet that burden here, with respect to the record as a whole. The court orders that the record be unsealed with the limited exception of specific portions that contain the settlement amount.

Judge: Thapar

Attorneys for Appellants: 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

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

2016-08-18 – in re black diamond mining company

Author: Matt Lindblom

Schaumburg Bank & Trust Co., N.A. v. Alsterda

(7th Cir. Mar. 4, 2016)

The Seventh Circuit dismisses the appeal because the order appealed from was not a final order. The bankruptcy court overruled the creditor’s objection to the trustee’s motion to approve a settlement of a fraudulent transfer claim. The creditor had obtained a state court judgment on the same claim after obtaining stay relief (although not expressly for pursuing that claim). The court holds that the order addressed a discrete issue rather than a discrete dispute and thus was not a final and appealable order. The creditor could still receive the bulk of the bankruptcy estate’s assets due to its secured claim, and thus the fact that it would not do so through the fraudulent transfer claim did not constitute resolution of a discrete dispute. Opinion below.

2016-03-04 – schaumburg bank and trust v alsterda

Author: Matt Lindblom

In re E.C. Morris Corp.

(6th Cir. B.A.P. Dec. 10, 2014)

The Sixth Circuit B.A.P. affirms the bankruptcy court’s denial of the motion to enforce an order approving compromise of claims in this Chapter 7 bankruptcy. The movants were the debtor’s principal and the new entity that held property owned by the debtor entity prepetition. Before the bankruptcy, the respondents had instituted successor liability and fraudulent transfer claims against the movants in state court. During the bankruptcy, the trustee settled the estate’s claims against the movants, which settlement was approved by the bankruptcy court. After the bankruptcy was concluded, the respondents reactivated the state court litigation. The movants then filed their motion with the bankruptcy court, seeking to enjoin the prosecution of the state court litigation based on res judicata. The Sixth Circuit B.A.P. holds that the bankruptcy court appropriately denied the motion for lack of subject matter jurisdiction. The state court litigation was not directed at the debtor or the debtor’s estate and would have no impact on the estate. While the trustee could have brought the claims while the bankruptcy was pending, after it was closed, the respondents could proceed with the claims. 11 U.S.C. § 105(a) and the Anti-Injunction Act also did not permit the bankruptcy to grant the requested relief. Opinion below.

2014-12-10 – in re ec morris corp

Bankr. N.D. Ind. Opinions – June to August 2014

The following opinions were just recently made available on the website for the Bankruptcy Court for the Northern District of Indiana. I understand that opinions from this Court may be uploaded as “opinions” at different times (sometimes much later than the date they are issued), depending on the particular Judge and office staff. I will continue to check this Court’s website routinely and report on opinions as soon as they appear there.

In re Kohler (Bankr. N.D. Ind. June 27, 2014) – Denial of motion to approve settlement under Bankruptcy Rule 9019, because settlement terms not finalized. Opinion below.

2014-06-27 – in re kohler

Sun Enterprises, Inc. v. May (In re May) (Bankr. N.D. Ind. July 9, 2014) – Motion to quash subpoena granted where party served resided outside the state of and more than 100 miles from the site of the deposition stated in the subpoena. Opinion below.

2014-07-09 – in re may

In re Wilson (Bankr. N.D. Ind. July 14, 2014) – Motion to reconsider granted such that a motion to assume an executory contract would be reheard by the Court. Opinion below.

2014-07-14 – in re wilson

In re Neary (Bankr. N.D. Ind. July 17, 2014) – Motion to dismiss case with prejudice for bad faith filing granted, where debtor had filed multiple bankruptcies in short time period. Opinion below.

2014-07-17 – in re neary

Sun Enterprises, Inc. v. Hoffman (In re Hoffman) (Bankr. N.D. Ind. Aug. 11, 2014) – Denial of plaintiff’s motion for summary judgment in nondischargeability action where factual dispute existed with respect to alleged misrepresentation. Opinion below.

2014-08-11 – in re hoffman

Sun Enterprises, Inc. v. May (In re May) (Bankr. N.D. Ind. Aug. 11, 2014) – Denial of plaintiff’s motion for summary judgment in nondischargeability action where factual dispute existed with respect to alleged misrepresentation. Opinion below.

2014-08-11 – in re may

Sun Enterprises, Inc. v. Stafford (In re Stafford) (Bankr. N.D. Ind. Aug. 11, 2014) – Plaintiff’s motion for summary judgment in nondischargeability action granted, pursuant to 11 U.S.C. § 523(a)(2)(A), where defendant did not challenge plaintiff’s declarations or the motion. Opinion below.

2014-08-11 – in re stafford

Fischer v. Trammell (In re Trammell) (Bankr. N.D. Ind. Aug. 13, 2014) – Trustee’s motion for default judgment granted in adversary proceeding filed to revoke the debtor’s discharge. Opinion below.

2014-08-13 – in trammell

McKinstry v. Genser (In re Black Diamond Mining Company, LLC)

(E.D. Ky. Aug. 6, 2014)

The district court holds the bankruptcy court incorrectly used the federal “lodestar” method to determine whether attorney fees were reasonable for purposes of a fee-shifting provision of a settlement agreement between the trustee of the unsecured creditors trust and the former restructuring specialists. The trustee argued the Philadephia-based billing rates were unreasonable, and should have been adjusted to be in line with the Kentucky market. The court holds the bankruptcy court should have used Kentucky state law when determining the reasonableness of the fee, as state law controls the interpretation of contracts. The court nevertheless adopts the bankruptcy court’s proposed findings of fact and conclusions of law, because the result was the same under either analysis. The fees were reasonable under the circumstances, even though the rates were higher than those in the local market. Opinion below.

2014-08-06 – in re black diamond mining company

Jones v. Simon

(W.D. Ky. July 24, 2014)

The district court affirms the bankruptcy court’s finding that the creditor’s claim was not a secured claim. The agreement giving rise to the creditor’s claim did not evidence an intent to create a security interest in proceeds of the bankruptcy trustee’s settlement agreement with a preferential transfer defendant. There was no provision in the agreement regarding any particular property serving as collateral. Further, even if the agreement had created a security interest, the creditor had not taken steps to perfect such interest and thus the trustee could have avoided the lien in the bankruptcy. Opinion below.

2014-07-24 – jones v simon