Slater v. US Steel (11th Cir. 2016 - Published) - discussion on judicial estoppel regarding failure to disclose asset. Very interesting concurrance. Potential En banc review (who is injured...the creditors).
IN RE SINGH (9th Cir. BAP 2-26-16 - Unpublished) - terminating sanctions based upon local rule, discusses when such termination sanctions should issue - must be proportionate and court should consider Malone factors (1) the public’s interest in expeditious resolution oflitigation; (2) the court’s need to manage its docket; (3) therisk of prejudice to the defendant; (4) the public policyfavoring disposition of cases on their merits; and (5) theavailability of less drastic sanctions. See Malone, 833 F.2d at130; see also Thompson v. Hous. Auth. of L.A., 782 F.2d 829, 831(9th Cir. 1986)
IN RE KOHLER (9th Cir BAP 2-25-16 - Unpublished) - 727(a)(4)(A) - false oath - discussion; 523(a)(2)(A) - discussionj - fraud - “[w]here the court fails to specifically rule on theadmission of evidence, and where both parties had opportunity to712345678910111213141516171819202122232425262728urge their objections, in the absence of any indication to thecontrary, we can presume that admissible evidence was admittedand that inadmissible evidence was rejected.” Wagner Tractor,Inc. v. Shields, 381 F.2d 441, 446 (9th Cir. 1967).
IN RE 3.78 IRISH ACRES (9th Cir. BAP 2-25-16 - Unpublished) discussion issue preclusion; “The doctrine of issue preclusion prevents relitigation ofall ‘issues of fact or law that were actually litigated andnecessarily decided’ in a prior proceeding. . . . The issuemust have been ‘actually decided’ after a ‘full and fairopportunity’ for litigation.” Robi, 838 F.2d at 322. Underfederal law, issue preclusion applies only where it isestablished that (1) the issue necessarily decided at the previous proceeding is identical to the one which is sought tobe relitigated; (2) the first proceeding ended with a finaljudgment on the merits; and (3) the party against whom issuepreclusion is asserted was a party or in privity with a party atthe first proceeding. Hydranautics v. Filtec Corp., 204 F.3d880, 885 (9th Cir. 2000).
IN RE MILBY (9th Cir. BAP 2-24-16 - Published) - applying equitable holding - time frame is extended for the same amount of time and brief discussion of equitable estoppel. 11 USC §546(a)(1) provides the following limitation on the trustee bring various actions:(a) An action or proceeding under section 544, 545, 547, 548, or 553 of this title may not be commenced after the earlier of— (1) the later of—(A) 2 years after the entry of the order for relief; or(B) 1 year after the appointment or election of the first trustee under section 702, 1104, 1163, 1202, or 1302 of this title if such appointment or such election occurs before the expiration of the period specified in subparagraph (A); or(2) the time the case is closed or dismissed.The debtor refused to give discovery and willfully hid assets and the information to locate them. An aggressive creditor did extensive investigation and several days before the 2 year deadline to bring fraudulent transfer claims presented the chapter 7 trustee with voluminous documentary support.The trustee did not have sufficient time to investigate so did not bring fraudulent transfer claims based on the information provided. Nonetheless, the trustee later investigated but still did not bring the claims, but instead moved to settle some lesser claims. Ultimately, the creditor who had dug up the information for the unfiled claims got permission to pursue them for the estate and filed suit about 1 year past the §546(a)(1) deadline.The debtor moved for summary judgment on the basis that the fraudulent transfer claims found by the creditor were time barred by the time the complaint was filed.The bankruptcy court said the trustee was justified in not filing when she first learned of the alleged claims only several days before the §546(a)(1) deadline, but after she had time to investigate and discover the facts and still did not bring a claim. Notably, the trustee did not have a full 2 years to file if the time the court recognized as equitably tolled was deducted.The BAP reversed, holding: The bankruptcy court incorrectly applied the doctrine of equitable tolling to the statute of limitations under § 546(a)(1)(A).Section 546(a)(1)(A)’s two-year statute of limitations is subject to equitable tolling.The Ninth Circuit applies equitable tolling without regard to a trustee’s diligence in pursuing claims after discovery. So, even if the trustee could have filed earlier, it is acceptable if the trustee (or, in this case the authorized creditor) did file “within the limitations period after tolling is taken into account.” That is, the trustee gets a full 2 years to file (excluding from the 2 years the period which was equitably tolled). Diligence is not an issue.
IN RE MILBY (9th Cir. BAP 2-24-16 - Unpubished) - the original complaint under §544(b) and the California UFTA; the complaint was dismissed without prejudice since the transfers were not from the debtor, although the court thought an amendment might result in a valid complaint)
IN RE CALDWELL (9th Cir. BAP 2-24-16 - Published - NEVADA) - Debtor can claim a homestead on property in a LLC based upon an indicia of ownership.
Cashco Fin. Servs. v. McGee (In re McGee), 359 B.R. 764 (9th Cir. BAP 2006) - discussing -bankruptcy court had broad discretion to conduct a default prove-up hearing in order to satisfy itself of the truth of the allegations in a complaint. The trial court's broad discretion over entry of default judgment included discretion to require the lender to prove its case with competent, admissible evidence, to assess matters in accordance with substantial justice, and to make reasonable inferences against the lender.
Trustee Attorney Fees
In re Woerner, 783 F.3d 266 (5th Cir. 2015) - fees are allowed if reasonably likely to benefit the Estate at the time such fees incurred.
Wu v. Markosian 506 BR 273 (9th Cir. BAP 2014) - upon conversion from 11 to 7, postpetition earnings revert back to debtor.
The “disinterested person” definition applies only to personal interests of the trustee, and not those attributed to him in his representative or fiduciary capacity. See Ritchie Special Credit Investments, Ltd. v. United States Trustee, 620 F.3d 847, 853 (8th Cir. 2010) (the trustee’s prior role as a receiver did not create a materially adverse interest); In re BH & P Inc., 949 F.2d 1310, 1313 (3d Cir. 1991); In re AFI Holding, Inc., 530 F.3d 832, 848 (9th Cir. 2008); In re O.P.M. Leasing Servs., Inc., 16 B.R. 932, 938 (Bankr. S.D.N.Y. 1982).