Case law

Balko v. Carnegie Financial Group Inc. (In Re Balko)

348 B.R. 684 · United States Bankruptcy Court, W.D. Pennsylvania · Aug 24, 2006

In re Bell, 309 B.R. at 153 ("Even if the yield spread premium in this case is part of the finance charge, it clearly was not paid by the Debtor at or before closing. … It is well-established that fraud in the factum is a defense under § 3-305 of the UCC, while fraud in the inducement is not. See Exchange International Leasing Corp. v.

Sywilok v. Internal Revenue Service (In re Gianninoto)

539 B.R. 452 · United States Bankruptcy Court, D. New Jersey · Oct 16, 2015

, and to establish the priority of its alleged lien (Count Three). … Whether the Trustee qualifies as a bona fide purchaser in this case depends on whether the December 19 notice of settlement provided constructive notice of the Mortgage.

In Re Evergreen Security, Ltd.

363 B.R. 267 · United States Bankruptcy Court, M.D. Florida · Feb 27, 2007

The 46-page FOFCOL clearly exceeded the fifteen-page limitation. … The Movants qualify many of their statements with words such as “seemed to be,” “apparently,” “appears,” and “presumably” attempting to distance themselves from the allegations.

In Re Frascella Enterprises, Inc.

360 B.R. 435 · United States Bankruptcy Court, E.D. Pennsylvania · Feb 8, 2007

cites case law that establishes that principle. … It alleges that by precluding the class action which is the only economically feasible vehicle to pursue the consumer’s claims, Defendants are effectively immunizing themselves from liability. Id. ¶ 145 .

Rosenberg v. XO Communications, Inc. (In Re XO Communications, Inc.)

330 B.R. 394 · United States Bankruptcy Court, S.D. New York · Sep 23, 2005

“The party seeking summary judgment bears the burden of establishing that no genuine issue of material facts exists and that the undisputed facts establish [his or] her right to judgment as a matter of law.” … The Second Circuit also emphasized that “[t]he potential for abuse is heightened when releases afford blanket immunity.” Id.

Schouten v. Jakubiak (In re Jakubiak)

591 B.R. 364 · United States Bankruptcy Court, E.D. Wisconsin · Oct 1, 2018

But Jakubiak has not established that he is entitled to Stark 's equitable reset of the bankruptcy case. … In making his argument, Schouten relies solely on In re Guseck 's statement that debts immune from § 523(a)(3) in no-asset cases "include debts that do not arise from potentially nondischargeable conduct." Id.

In Re Hale

436 B.R. 125 · United States Bankruptcy Court, E.D. California · Sep 13, 2010

Congress increased the fees payable to the United States Trustee, and established a quarterly fee to be paid by chapter 11 debtors in an effort to make the U.S. Trustee program self-funding. … The district court clearly understood that the “interest or control” question would determine the application of subsection 1930(a)(6). In United States Trustee v. Wernerstruck, Inc.

Kelley v. Chevy Chase Bank (In Re Smith)

236 B.R. 91 · United States Bankruptcy Court, M.D. Georgia · Jun 21, 1999

In order to qualify for this exception, three conditions must be satisfied. … construct a hypothetical model to be used to determine the liability of a party in an adversary proceeding seems dangerously arbitrary and somewhat contrary to the policy that the law should specify legal consequences as clearly

Johnnie Odessa Johnson

United States Bankruptcy Court, District of Columbia · Jan 28, 2022

As clearly established by the Superior Court transcript (Exhibit 1), the Debtor was the owner of only a one-quarter interest in the Sold Property. … The issue of whether the Debtor’s sale of the Sold Property was fraudulent was clearly established in the decision of the Superior Court and this Court’s Memorandum Opinion.

Cornerstone Pavers, LLC v. Zenith Tech, Inc.

United States Bankruptcy Court, E.D. Wisconsin · Sep 7, 2023

As explained above, the subcontract here does not clearly require Zenith to give notice and time to cure all grounds for termination in all instances. … For that matter, West Bend’s is not clearly the best reading of those terms under the governing law.

Broadhollow Funding Corp. v. Fitzmaurice (In Re Broadhollow Funding Corp.)

66 B.R. 1005 · United States Bankruptcy Court, E.D. New York · Nov 18, 1986

In holding that both the class and subclass meet the representation requirement of Rule 23(a)(4), the court must determine if “the party’s attorney [is] ... qualified, experienced and generally able to conduct the proposed … Furthermore, although Rule 23(b)(2) refers specifically to declaratory relief, Rule 23(b)(1)(B) also is applicable since “an individual action seeking relief of that type clearly would affect the interests of all class members

In Re Melcher

329 B.R. 865 · United States Bankruptcy Court, N.D. California · Jul 25, 2005

Debtor’s witness Spellman is an appraiser of residential real estate who was qualified to testify as an expert concerning the value of residential properties on Martha’s Vineyard. … Debtor can clearly pay Creditor for whatever interest the California State Court determines Creditor may have in the two properties.

Paeplow v. Foley (In Re Paeplow)

119 B.R. 610 · United States Bankruptcy Court, N.D. Indiana · Sep 24, 1990

The defendants suggest that if they are not able to pursue a joint judgment against the Paeplows, the Paeplows will have immunized a substantial asset from their creditors through manipulation of the bankruptcy process. … As First Interstate Bank clearly had established its “claim” against the Paeplows’ property, the defendants submit that it had established an equitable or common law lien as to the property.

In Re Mason

66 B.R. 297 · United States Bankruptcy Court, D. New Jersey · Aug 22, 1986

Based upon this definition, a judge’s signing of an order approving the employment of a professional or a nunc pro tunc order approving such employment clearly cannot be categorized as a ministerial task. … Furthermore, the court determined that the debtors’ business could not have been properly operated without the services of qualified accountants. Id.

In Re Rottiers

450 B.R. 208 · United States Bankruptcy Court, D. New Mexico · Apr 12, 2011

On those issues for which it bears the burden of proof at trial, the nonmovant “must go beyond the pleadings and designate specific facts so as to make a showing sufficient to establish the existence of an element essential … It is also a legal conclusion which they are not qualified to make. 4 . Rombauer disputes "and was accepted on July 10, 2007 by an entity labeled as "Rom-bauer Vineyards.”

In Re Ahokas

361 B.R. 54 · United States Bankruptcy Court, D. Vermont · Jan 26, 2007

Ahokas asserts that, at most, only a small portion of the amended judgment, perhaps as little as $5,000, the amount of the initial mechanic’s lien, qualifies for contractor’s lien treatment. … To start, we observe that the former is more deeply established in Vermont jurisprudence. The contractor’s lien statutes, 9 V.S.A. § 1921-1928, have been extant since at least the 1850s (See Greenough, Cook & Co. v.

David Mark Spencer and Ylva Sofi Rogler

United States Bankruptcy Court, N.D. Ohio · Nov 14, 2020

Debtors argue that the entire Claim is contingent because liability has not yet been established in the State Court case. … However, a debt does not qualify as contingent merely because the debtor disputes liability or has counterclaims or defenses to the underlying claim. See, e.g., In re Clark, 91 B.R. 570, 575 (Bankr. D.

Holzhueter v. Groth (In re Holzhueter)

575 B.R. 444 · United States Bankruptcy Court, W.D. Wisconsin · Oct 18, 2017

Because “direct proof of intent is rarely available, scienter may be established through circumstantial evidence.” Id. … First, the quoted text clearly states those circumstances do not preclude a finding of conversion, not that they create a cause of action for conversion.

Grochocinski v. Campbell (In re Campbell)

475 B.R. 622 · United States Bankruptcy Court, N.D. Illinois · Jul 2, 2012

manager-managed company ... (3) a manager: (A) must be designated, appointed, elected, removed, or replaced by a vote, approval or consent of a majority of the members; and (B) holds office until a successor has been elected and qualified … In short, while the Debtors’ membership interests in OPAR became property of their bankruptcy estate, the LLC Act clearly leads to the conclusion that the LLC’s assets are not *632 property of the LLC’s owner.

SmartSky Networks, LLC v. Gross

United States Bankruptcy Court, E.D. North Carolina · Jun 13, 2024

A finding of fact is clearly erroneous, 7 Internal citations and quotation marks are omitted from all citations unless otherwise specified. … Debtor does not attempt to establish any fundamental error within the meaning of this standard.