Bankruptcy Adversary Proceeding
A non-final decision in state court will not prevent the assertion of claims in a bankruptcy proceeding, explained U.S. Bankruptcy Judge Carl L. Bucki in his decision in In re: John David Douds; Gibraltar Industries, Inc. f/k/a Gibraltar Steel Corp. v. John David Douds. The U.S. Bankruptcy Court for the Western District of New York reached this conclusion after reviewing the debtor's motion to dismiss or for summary judgment in the adversary proceeding filed by a company that brought a breach of contract action against the debtor and other defendants in state court. Although a state court appeal pertaining to the defendants' liability for breach of contract was finalized, it did not affect the debtor since he was no longer a party to that appeal due to the automatic stay created when he...
The trial court erred in rendering summary judgment in favor of the defendant under the doctrine of res judicata. The defendant was not a party to the prior action, which involved an adversary proceeding between the plaintiff and a debtor in bankruptcy. Defendant is also not in privity with the debtor. Even under relaxed privity standards of mutuality of interest, the defendant is not entitled to the benefit of res judicata, because he would not have been bound by a judgment rendered in the bankruptcy case. Reversed and Remanded.
The US Bankruptcy Code grants broad rights and powers to an official committee of unsecured creditors in a chapter 11 bankruptcy case. Among the statutory entitlements of a creditors' committee is the right, pursuant to 11 USC Section 1109, to raise and appear and be heard on any issue in a case under chapter 11. In the seminal case of In re Marin Motor Oil Inc the court held that a creditors' committee has an absolute right to intervene in an adversary proceeding arising out of a chapter 11 bankruptcy case. It remains uncertain whether the Second Circuit's decision will turn the tide of judicial opinions back towards favoring the Marin holding. This article analyzes those arguments and ultimately concludes that the Marin holding, allowing an absolute right of intervention to all partie...
A debtor's student loans are dischargeable under [section]528(a)(8) because paying them would impose an undue hardship on the debtor and her dependents, the 8th Circuit Bankruptcy Appellate Panel has ruled. The debtor received a discharge for her Chapter 7 bankruptcy petition in 2004. Three years later, she filed an adversary proceeding seeking to discharge $300,000 in student loan debt as an undue hardship pursuant to [section]528(a)(8). She claimed that her family operated at a loss each month, and that she couldn't work outside the home because she had to take care of her five children, especially twin boys who suffered from autism.
A Chapter 13 debtor had standing to file an adversary proceeding to avoid a lender's lien on her manufactured home, the 6th Circuit Bankruptcy Appellate Panel has ruled in affirming judgment. The debtor filed for Chapter 13 protection after Countrywide initiated foreclosure proceedings on her manufactured home.
... this undue hardship determination in an adversary proceeding, see Fed. Rule Bkrtcy. Proc. 7001(6), w...
Bankruptcy: Adversary Proceeding - Timeliness - Law Of The Case Myers v. Raynor (MLW No. 59191/Case No. 09-6012 - 11 pages) (U.S. Bankruptcy Appellate Panel, Kressel, J.)
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