Case law

First National Bank v. O'Brien (In re O'Brien)

555 B.R. 771 · United States Bankruptcy Court, D. Kansas · Aug 25, 2016

. § 157 (b)(2)(I), over which this Court may exercise subject matter jurisdiction. 15 FNBO bears the burden of proof to establish each element of its claims under § 523(a)(2) by a preponderance of the evidence. 16 Exceptions … First, the evidence clearly shows this was a joint account, contrary to his testimony that it belonged solely to his. wife.

North Bay General Hospital, Inc. v. McNaull (In Re North Bay General Hospital, Inc.)

404 B.R. 429 · United States Bankruptcy Court, S.D. Texas · Mar 18, 2009

The First Circuit, in Gitto, held that “[t]o qualify for protection under the § 107(b)(2) exception for defamatory material, an interested party must show (1) the material at issue would alter his reputation in the eyes of … Arent Fox did not establish that the Pleadings are “scandalous and defamatory” pursuant to § 107(b)(2).

Tomlins v. BRW Paper Co. (In Re Tulsa Litho Co.)

232 B.R. 240 · United States Bankruptcy Court, N.D. Oklahoma · Aug 3, 1998

Once the elements of a preference have been established, the burden of establishing an affirmative defense lies with BRW, which must establish the presence of such a defense by a preponderance of the evidence. … Findings under these subsections are generally considered factual and are, therefore, subject to the clearly erroneous standard of review.

Bryant v. Pennsylvania Higher Education Assistance Agency (In Re Bryant)

72 B.R. 913 · United States Bankruptcy Court, E.D. Pennsylvania · Apr 30, 1987

If not, a discharge will result only if the debtor can establish “unique” and “extraordinary” circumstances which should nevertheless render the debt dischargeable. … We note that none of the Debtors qualify under § 523(a)(8)(A), although we note that, had Bryant delayed until the date of trial of his adversarial proceeding to file his Petition, he would have been able to successfully

Zimmerman v. Frem Corp. (In Re Kenval Marketing Corp.)

69 B.R. 922 · United States Bankruptcy Court, E.D. Pennsylvania · Feb 11, 1987

. § 544 (b)) and if he can establish the other elements necessary under the state statute, he can avoid the debtor’s transfers to the defendant. … I believe that if Congress intended such a result, it would have expressed itself more clearly. See Midatlantic National Bank v.

Yust v. Henkel (In re Henkel)

490 B.R. 759 · United States Bankruptcy Court, S.D. Ohio · Apr 19, 2013

As such, it seems evident that the Debtor’s Counterclaims qualify as compulsory counterclaims. The Debtor in fact admits as much. … Accordingly, Yust has established the third element of claim preclusion.

Buckley v. Carrier Corp. (In Re Globe Holdings, Inc.)

366 B.R. 186 · United States Bankruptcy Court, N.D. Alabama · Mar 28, 2007

Globe paid the third invoice in 51 days, and the fourth invoice in 64 days, both clearly within the preference period. … There is no bright-line rule for the number of payments prior to the preference period required to establish a course of dealing between parties.

Spencer v. Blanchard (In Re Blanchard)

201 B.R. 108 · United States Bankruptcy Court, E.D. Pennsylvania · Sep 23, 1996

It is well established that, in order to prevail in a claim under § 523(a)(2)(A), the Plaintiffs) must establish: (1) that the debtor made the representation; (2) that at the time the debtor made the representation he knew … Shumate, 504 U.S. 753, 757-60 , 112 S.Ct. 2242, 2246-48 , 119 L.Ed.2d 519 (1992) (ERISA-qualified pension plan falls within § 541(c)(2)). Cf. Kaplan v.

In Re Johnson

454 B.R. 882 · United States Bankruptcy Court, M.D. Florida · Jul 8, 2011

However, in Hager, the debtors had failed to complete Schedule B22C and failed to advance any justification for the necessity of three vehicles. *893 Clearly, Hager is distinguishable from this case. … But as applied by the IRS, the means test requires a debtor to qualify for a deduction by actually incurring an expense in the relevant category.

In Re Ballard

238 B.R. 610 · United States Bankruptcy Court, M.D. Louisiana · Aug 25, 1999

Court is clearly borne out by the language used by the legislature in the 1970 Act. … Clearly the supposed factual basis for the court’s opinion is no basis at all.

Parker v. MSB Energy, Inc. (In Re MSB Energy, Inc.)

438 B.R. 571 · United States Bankruptcy Court, S.D. Texas · Sep 14, 2010

[Finding of Fact No. 13], The pipeline was also not “qualified or willing to do something or assume a responsibility” because Freedom Pipeline was not willing to take and transport the Well’s gas. … Rule 21 establishes the requirements for filing and serving pleadings and motions, and Rule 21a sets out how service may be effectuated.

Behr Venture Partners v. Bedford Computer Corp. (In Re Bedford Computer Corp.)

62 B.R. 555 · United States Bankruptcy Court, D. New Hampshire · Jun 30, 1986

I believe the present case involves a clearly analogous situation. … The evidence clearly establishes that BRC’s "business” was not distinguishable from BCC’s.

In Re Asia Global Crossing, Ltd.

322 B.R. 247 · United States Bankruptcy Court, S.D. New York · Mar 21, 2005

Background The work-product rule is a qualified privilege codified in Rule 26(b)(3) of the Federal Rules of Civil Procedure. 13 Upjohn Co. v. … Once established, the privilege cannot be waived without the consent of all of the parties that share it. John Morrell & Co. v.

In Re Lincoln Logs Ltd.

435 B.R. 85 · United States Bankruptcy Court, N.D. New York · Jan 25, 2010

Therefore, the Brenners’ “Custom Chalet” qualifies as a “custom home” under the GBL. First Pioneer argues that the Purchase Agreement was a contract for the sale of goods as opposed to a home improvement contract. … Instead, the court looks to “well-established principles of statutory interpretation that require statutes to be construed in a manner that gives effect to all of their provisions.” United States ex rel. Eisenstein v.

Lincicome v. Anthony Roofing, LLC

United States Bankruptcy Court, N.D. Ohio · Jul 16, 2019

Plaintiff failed to establish the falsity of Defendant’s statement concerning a 20 year watertight guarantee. … His testimony did not conclusively establish the wear was the result of used product, nor did he establish the wear was to product that the parties’ contract required to be new.

In Re Global Ship Systems, LLC

391 B.R. 193 · United States Bankruptcy Court, S.D. Georgia · Dec 21, 2007

Clearly, a debtor’s orchestration of an involuntary case is a factor which can be added to the non-exclusive list of criteria for evaluating good/bad faith. … With debt in excess of $37 million and value, in the best case scenario, of $18 million, 5 there clearly is no equity. Drawbridge has met its burden of proof.

Committee of Unsecured Creditors v. RG Financial, Ltd. (In Re Powerburst Corp.)

154 B.R. 307 · United States Bankruptcy Court, E.D. California · Apr 16, 1993

Regarding the Perle Trust, the Subscription Agreement required that to qualify as an investor, each equity owner of the trust must have been an “Accredited Investor”. … Clearly, these documents were drafted to avoid the possibility of such defenses. Additionally, regarding New York contacts, payment or performance under the notes was required in New York.

In re Art & Architecture Books of the 21st Century

518 B.R. 43 · United States Bankruptcy Court, C.D. California · Sep 18, 2014

But a law established for a public reason cannot be contravened by a private agreement.” … Freedom of contract in commercial real property leases is well established in California law.

Keats v. Cogan

United States Bankruptcy Court, W.D. Kentucky · Jan 10, 2020

Kentucky courts view veil piercing as an equitable remedy that allows a court to impose personal liability on otherwise immune corporate officers, directors and shareholders for the corporation’s wrongful acts. … While the evidence supports that MC could be defined as an “insider”, there clearly is no evidence to support a claim of veil piercing against MC.

Alliance Capital Management L.P. v. County of Orange (In Re County of Orange)

179 B.R. 185 · United States Bankruptcy Court, C.D. California · Mar 8, 1995

In this case, the Resolution clearly states that what was pledged was a first Hen and charge against the first monies received by the County. … Government Code § 53760 states: Any taxing agency or instrumentality of this State, as defined in Section 81 of the act of Congress entitled “An act to establish a uniform system of bankruptcy throughout the United States