Friday, October 10, 2008

The Ninth Circuit Court of Appeals Bankruptcy Opinions of the Last 90 Days

By Andrew Toth-Fejel, Bankruptcy Litigation Support for Attorneys,

Here are the last 90 days of bankruptcy opinions from the 9th Circuit, in reverse chronological order. Plus Maney v. Kagenveama since it was the "Most Important 9th Circuit Bankruptcy Opinion of the Summer." Click on the name of the opinion to link directly to the 9th Circuit Court of Appeals website's original opinion, click on the "Title" to link to my prior published summary of the opinion from the Bulletin or Litigation Report sections of this website, if available. The "Key sentence" comes from my summary, with adjustments as appropriate, if available.

October 2, 2008
Espinosa v. United Student Aid Funds, Inc.
9th Circuit Case No. 06-16421
NOTE: Opinion written by Chief Judge of the 9th Circuit, Alex Kozinski
Key sentence from my Bulletin: "Can a Chapter 13 debtor discharge a student loan by including it in the plan but without filing an adversary proceeding to determine debtor's undue hardship, if the student loan creditor fails to object to the plan? In this opinion filed by the 9th Circuit yesterday, its Chief Judge Kozinski emphatically answered: 'yes.' "
Title: Major New Student Loan Opinion: 9th Circuit Allows Chapter 13 Discharge of Student Loans WITHOUT Adversary Proceeding by Mere Inclusion in Plan

September 24, 2008
Rosson v. Fitzgerald (In re Rosson)
9th Circuit Case No. 06-35724
Key sentence from my Bulletin: "This brand-new Ninth Circuit opinion addresses the conflict between a Chapter 13 debtor's right to dismiss his case "at any time" and the bankruptcy court's power to convert the case to a Chapter 7 case "for cause" if it "is in the best interests of creditors and the estate," between § 1307(b) and § 1307(c) of the Bankruptcy Code."
Title: There's An Absolute Right for a Debtor to Dismiss a Chapter 13 Case, Right? NO, the 9th Circuit Said on 9/24/08

September 23, 2008
9th Circuit Case No. 06-56319
Key sentence from my Bulletin: Last week the 9th Circuit issued its 2nd opinion in as many months interpreting the "willful and malicious injury" language in § 523(a)(6) of the Bankruptcy Code; it reversed both the bankruptcy court and the BAP, finding that neither court applied the 9th Circuit's law on § 523(a)(6) accurately."
Title: The 9th Circuit's Second § 523(a)(6) "Willful & Malicious Injury" Opinion in Two Months

September 4, 2008
Burkart v. Coleman (In re Tippett)
9th Circuit Case No 6.15411
Key sentence from my Bulletin: In this Opinion published last week the Ninth Circuit addressed one point of conflict between two very basic principles: the automatic stay and the bona fide purchaser, specifically the automatic stay's voiding of "any act to . . . exercise control over property of the estate" (§ 362(a)(3)), and the rights of a bona fide purchaser of such property of the estate. . . . In last Thursday's opinion the 9th Circuit said . . . a BFP prevails against a trustee.
Title: New 9th Circuit Opinion Adjusts the Line Between Void & Voidable Transfers in Violation of the Automatic Stay: Bona Fide Purchaser Defeats Trustee

August 22, 2008

Educational Credit Management Corp. v. Coleman
9th Circuit, Case # 06-16477
Key sentence in my Bulletin: The 9th Circuit Court of Appeals ruled that a Chapter 13 debtor could get a judicial determination whether her student loans constituted an “undue hardship” and were thus dischargeable without waiting until close to or after the discharge at the end of the case. BUT CAUTION: This opinion was vacated by the Court because of an appellate procedural error, as explained in my Bulletin, likely to be corrected and returned to the 9th Circuit for final determination.
Title: 9th Circuit Holds that Ch. 13 "Undue Hardship" Student Loan Determinations Need NOT Wait Until End-of-Case Discharge

August 22, 2008
McDonald v. Checks-N-Advance, Inc. (In re Ferrell)
9th Circuit, Case No. 06-17243
Key sentence in my Bulletin: In this per curiam decision published on August 22, 2008, the Ninth Circuit Court of Appeals held that certain specific violations of the federal Truth in Lending Act (TILA) do not result in the award of actual damages, statutory damages, or attorney fees and costs for the consumer, or specifically in this case for the Chapter 13 trustee acting on behalf of the consumer.
Title: 9th Circuit 8/22/08 Opinion: Ch. 13 Trustee NOT Entitled to Actual or Statutory Damages, Atty. Fees or Costs Under Portions of Truth in Lending Act

Auguts 21, 2008
Lowery v. Channel Communications, Inc. (In re Cellular 101, Inc.)
9th Circuit Case No. 06-55779
Quoted from the opinion: "The question posed by this case is whether a party’s failure to timely inform the court of appeals of a settlement that it believes disposes of a pending appeal precludes the party from asserting the affirmative defense of settlement and release in a later proceeding." The 9th Circuit answered "Yes;"
(No Bulletin or Litigation Report on this opinion.)

August 7, 2008
Lockerby v. Sierra (In re Sierra)
9th Circuit Case No. 06-15928
Key Sentence from my Litigation Report: "This is a quick study in what it takes for a breach of contract claim to be nondischargeable under the "willful and malicious injury" provision of § 523(a)(6), to determine what if anything this 9th Circuit Lockerby opinion added to the law on this issue in Oregon that wasn't already in Judge Perris' Home Instead Oregon bankruptcy court opinion, other than the weight of greater authority."
Title: When Is Intentional Breach of Contract Nondischargeable Under § 523(a)(6)?: 9th Circuit Proclaims Legal Standard for "Willful & Malicious Injury"

Amended August 7, 2008; originally filed July 3, 2008
GECC v. Future Media Productions Inc.
9th Circuit Case # 07-55694
Quoted from the opinion: "General Electric Capital Corporation (“GECC”), an oversecured creditor, appeals the bankruptcy court’s order denying it default interest and attorneys’ fees . . [on the grounds that the] bankruptcy court improperly applied a per se rule against default interest to the facts of this case. [W]e reverse and remand to the bankruptcy court with instructions to apply the rule adopted by the majority of federal courts and to then determine if an award of attorneys’ fees is proper."
(No Bulletin or Litigation Report on this opinion.)

June 23 , 2008
Maney v. Kagenveama
527 F.3d 990 (2008); LW 2278681
Key sentence in my Bulletin: The Ninth Circuit has applied a strict reading to BAPCPA's new terms, "projected disposable income" and "applicable commitment period," with the result that an above-median income debtor who had a negative income on Form B22C, and thus no "projected disposable income," had no requirement to pay unsecured creditors and no requirement to pay into the Chapter 13 plan for 5 years, or for any other particular period of time. However, under-median income debtors do not benefit from this ruling. How could all this be?
Title: The Most Important 9th Circ. B'cy Opinion of the Summer: Above-Median Income Ch. 13 Debtors Can Have 0%, Shorter-than 5-Year Plans

by: Andrew Toth-Fejel
Bankruptcy Litigation Support for Attorneys

Please note that this writer is not licensed to practice law in Oregon. This means that he is not legally permitted to give any legal advice or provide and legal services. This Bulletin and the entire contents of this website is written only for attorneys. and is not intended for the public. If any non-attorney is reading this, you must consult an attorney about ANYTHING you read here. Nothing in this website is intended to be nor should be read as being legal advice to anyone.

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