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Update 1 to Mini-Code and Mini-Rule Annotations Subsequent to Publication of 2009 Editions

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Update 1 to Mini-Code and Mini-Rule Annotations Subsequent to Publication of 2009 Editions UPDATE 1 TO MINI-CODE AND MINI-RULE ANNOTATIONS SUBSEQUENT TO PUBLICATION OF 2009 EDITIONS TITLE 11 U. S. C. Sec. 101 2d Cir. Browning v. MCI, Inc. (In re Worldcom, Inc.), 546 F.3d 211 (2d Cir. 2008)(a "claim" exists if outside of bankruptcy claimant has a right to reach debtor's assets; this would include a claim for a continuing trespass under KS law). 5th Cir. Campbell v. Countrywide Home Loans, Inc., 545 F.3d 348 (5th Cir. 2008)(prepetition escrow defaults on a mortgage were "claims" for purposes of the automatic stay). 8th Cir. Milavetz, Gallop & Milavetz v. United States, 541 F.3d 785 (8th Cir. 2008)(attorneys who provide "bankruptcy assistance" to "assisted persons" are included in definition of "debt relief agency"). Sec. 105 1st Cir. Ameriquest Mortgage Co. v. Nosek (In re Nosek), 544 F.3d 34 (1st Cir. 2008)(sloppy accounting conduct by mortgage lender which did not violate a code provision or the terms of a chapter 13 plan would not support punitive and emotional damage award under 105). 9th Cir Rosson v. Fitzgerald (In re Rosson), 545 F.3d 764 (9th Cir. 2008)(bankruptcy court may convert a chapter 13 to a 7 on its own motion; unqualified rights of debtors may be limited by court's power to police bad faith or abuse of process). 10th Cir. Scrivner v. Mashburn (In re Scrivner), 535 F.3d 1258 (10th Cir. 2008)(court lacks equitable power to surcharge exempt assets to punish debtor misconduct). Sec. 302 2d Cir. Wornick v. Gaffney, 44 F.3d 486 (2d Cir. 2008)(trustee cannot reach assets in a jointly administered filing of spouses that he could not have reached in separate filings). Sec. 303 11th Cir. Trusted Net Media Holdings, LLC v. The Morrison Agency, Inc. (In re Trusted Net Media Holdings, LLC), 525 F.3d 1095, reh'g en banc, 550 F.3d 1035 (11th Cir. 2008)(requirements for filing an involuntary petition are not subject matter jurisdictional and can be waived; 4 year old case not dismissed). Sec. 304 (Repealed) 04.15.09 1 UPDATE 1 TO MINI-CODE AND MINI-RULE ANNOTATIONS SUBSEQUENT TO PUBLICATION OF 2009 EDITIONS 2d Cir. Bondi v. Capital & Fin. Asset Mgmt S.A., 535 F.3d 87 (2d Cir. 2008)(court did not abuse discretion in allowing U.S. securities fraud actions to proceed against debtor reorganized in Italian bankruptcy proceeding). Sec. 323 1st Cir. Gray v. Evercore Restructuring L.L.C., 544 F.3d 320 (1st Cir. 2008)(in pari delicto doctrine barred trustee's suit against professionals for gross negligence and breach of fiduciary duty; adverse interest exception found not to apply since debtor's management did not propose plan to benefit themselves). 8th Cir. Contractors, Laborers, Teamsters & Eng'rs Health & Welfare Plan v. M & S Grading, Inc. (In re M & S Grading, Inc.), 541 F.3d 859 (8th Cir. 2008)(employee benefit plan failed to establish derivative standing to bring action against creditor where trustee justifiably refused to bring claim). 8th Cir. PW Enters., Inc. v. N.D. Racing Comm'n (In re Racing Servs.,Inc.), 540 F.3d 892 (8th Cir. 2008)(derivative standing is available to a creditor to pursue avoidance action when it shows that the trustee has unjustifiably refused to pursue it or when the trustee consents to the suit; however, creditor must seek court permission which can be granted retroactively). 10th Cir. Mosier v. Callister, Nebeker & McCullough, 546 F.3d 1271 (10th Cir. 2008)(summary judgment allowed in favor of debtor's attorneys based on in pari delicto defense when underlying facts were undisputed; adverse interest exception could not be found). Sec. 324 8th Cir. Contractors, Laborers, Teamsters & Eng'rs Health & Welfare Plan v. M & S Grading, Inc. (In re M & S Grading, Inc.), 541 F.3d 859 (8th Cir. 2008)(hearing was not required in order to deny motion to remove trustee absent evidence supporting removal). Sec. 362 3d Cir. In re Mystic Tank Lines Corp., 544 F.3d 524 (3d Cir. 2008)(state's action in taking default judgment against debtor for costs in prepetition site clean up of petroleum spill fell within police power protection of 362(b)(4) and sought only judgment not enforcement). 5th Cir. Campbell v. Countrywide Home Loans, Inc., 545 F.3d 348 (5th Cir. 2008)(filing a proof of claim with increased postpetition mortgage payment amounts was not violative of the automatic stay). 04.15.09 2 UPDATE 1 TO MINI-CODE AND MINI-RULE ANNOTATIONS SUBSEQUENT TO PUBLICATION OF 2009 EDITIONS 5th Cir. Young v. Repine (In re Repine), 536 F.3d 512 (5th Cir. 2008)(punitive damages can be awarded for egregious conduct violative of automatic stay; debtor's generalized assertions were insufficient to support emotional damages award under 362(k); however, award of attorneys fees under that section was appropriate). 9th Cir. Burkart v. Coleman (In re Tippett), 542 F.3d 684 (9th Cir. 2008)(automatic stay does not apply to unauthorized sales by debtor of property of the estate). Sec. 365 2d Cir. ReGen Capital I, Inc. v. Halperin (In re U.S. Wireless Data, Inc.), 547 F.3d 484 (2d Cir. 2008)(date by which claim must be filed for cure amount on assumed contract was properly noticed; when creditor later filed unsecured claim for cure amount, claim was expunged since amount listed by debtor was binding). Sec. 502 8th Cir. Tri-State Fin.,LLC v. First Dakota Nat'l Bank, 538 F.3d 920 (8th Cir. 2008)(prepayment penalty provisions in secured note were ambiguous, and, therefore unenforceable under S.D. law). 9th Cir. Busseto Foods, Inc. v. Laizure (In re Laizure), 548 F.3d 693 (9th Cir. 2008)(claim of defendant arising from preference recovery does not lose its original nondischargeable nature as provided by 506(h)). Sec. 503 6th Cir. Zurich Am. Ins. Co. v. Lexington Coal Co. (In re HNRC Dissolution Co.), 371 B.R. 210 (E.D. Ky. 2007), afff'd per curiam, 536 F.3d 683 (6th Cir. 2008)(estimated deductible amount of postpetition insurer for future claims held not "actual, necessary expense" entitled to administrative claim under 503(b)(1)(A)). Sec. 506 5th Cir. Wooley v. Faulkner (In re SI Restructuring, Inc.), 542 F.3d 131 (5th Cir. 2008)(recovery of postpetition interest by an oversecured creditor is unqualified; recovery of fees, costs and charges are required to be "reasonable" and provided by the agreement). 8th Cir. Contractors, Laborers, Teamsters & Eng'rs Health & Welfare Plan v. M & S Grading, Inc. (In re M & S Grading, Inc.), 541 F.3d 859 (8th Cir. 2008)(employee benefit plan failed to establish derivative standing to bring action against creditor where trustee justifiably refused to bring claim; payments ordered to be made to plans which debtor withheld remained assets of the estate subject to creditor's security interest). 04.15.09 3 UPDATE 1 TO MINI-CODE AND MINI-RULE ANNOTATIONS SUBSEQUENT TO PUBLICATION OF 2009 EDITIONS 9th Cir. General Elec. Capital Corp. v. Future Media Prods., Inc., 536 F.3d 969, op. amended 547 F.3d 956 (9th Cir. 2008)(oversecured creditor entitled to otherwise enforceable default interest rate when debtor did not cure default with plan payments but used collateral sales proceeds). Sec. 509 5th Cir. LaBarge Pipe & Steel Co. v. First Bank, 550 F.3d 442 (5th Cir. 2008)(if applicant for letter of credit files bankruptcy after its issuance, issuer must still pay beneficiary on a proper draw). 5th Cir. Dynasty Oil & Gas, LLC v. Citizens Bank (In re United Operating, LLC), 540 F.3d 351 (5th Cir. 2008)(reorganized debtor lacked standing to pursue claim against lender on behalf of guarantors because debtor's liability to lenders, including its contingent liability to guarantors, was discharged by plan confirmation). Sec. 510 7th Cir. In re Kreisler, 546 F.3d 863 (7th Cir. 2008)(when no injury was shown, court could not equitably subordinate secured claim held by corporation, surreptitiously formed by chapter 7 debtors, which purchased junior mortgage claim against estate). 8th Cir. Contractors, Laborers, Teamsters & Eng'rs Health & Welfare Plan v. M & S Grading, Inc. (In re M & S Grading, Inc.), 541 F.3d 859 (8th Cir. 2008)(plan, whose ordered payments were not made but ultimately paid to secured creditor, is not entitled to equitable subordination remedy). Sec. 521 5th Cir. Kane v. Nat'l Union Fire Ins. Co., 535 F.3d 380 (5th Cir. 2008)(trustee is real party in interest and should not be judicially estopped from pursuing previously undisclosed and non-abandoned asset of chapter 7 debtors). Sec. 522 2d Cir. Wornick v. Gaffney, 44 F.3d 486 (2d Cir. 2008)(inchoate interest of a spouse beneficiary of a life policy is not an asset of beneficiary's bankruptcy estate; section 3212(b)(1) of NY insurance law protects the rights of the owner spouse). 5th Cir. Soza v. Hill (In re Soza), 542 F.3d 1060 (5th Cir. 2008)(Texas exemption for annuity purchased on the eve of bankruptcy denied based on less than intentional fraud of debtors). 04.15.09 4 UPDATE 1 TO MINI-CODE AND MINI-RULE ANNOTATIONS SUBSEQUENT TO PUBLICATION OF 2009 EDITIONS 7th Cir. In re Willett, 544 F.3d 787 (7th Cir. 2008)(chapter 13 debtors' interest in real property was valued at the time debtors moved to avoid a judgment lien, rather than as of their petition filing date). 8th Cir. Addison v. Seaver (In re Addison), 540 F.3d 805 (8th Cir. 2008)(mere conversion of nonexempt to exempt assets on eve of bankruptcy planning is not in itself fraudulent without extrinsic evidence of fraud).
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