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Bar News - July 4, 2008

US Bankruptcy Court Opinion Summaries

Note: The full text of the opinions below are available on the Bankruptcy Court’s website at

Flash Island, Inc. v. Whispering Pines Estate, Inc. (In re Whispering Pines Estate, Inc.), 2007 BNH 044 , decided 12/21/07 (Vaughn, C.J.), unpublished (deferring the Court’s final ruling on the creditor’s motion for relief pending the debtor’s chapter 11 confirmation hearing, but finding that there is no equity in the subject real property and that the creditor’s secured status is impaired under the plan).

Askenaizer v. Seacoast Redimix Concrete, LLC (In re Charwill Construction, Inc.), 2007 BNH 045, decided 12/21/07 (Vaughn, C.J.) published (granting summary judgment in favor of the defendant-subcontractor pursuant to 11 U.S.C. § 547(c)(1) because the defendant’s release of lien rights against the project owner in a bonded, public construction project, in exchange for certain payments, constituted contemporaneously exchanged "new value" to the debtor and thus, the payments cannot be avoided under 11 U.S.C.§ 547(b); denying summary judgment on the issue of whether the subject payments were trust funds that are unavoidable under 11 U.S.C.§ 547(b)).

In re O’Neil, 2008 BNH 002, decided 3/20/08 (Vaughn, C.J.), unpublished (denying the debtor’s motion to convert from Chapter 7 to Chapter 13 because the debtor’s unsecured debt exceeds the limit set forth in 11 U.S.C. § 109(e), and finding that the debtor’s postpetition conduct does not amount to bad faith as discussed in Marrama v. Citizens Bank of Massachusetts, 127 S.Ct. 1105 (2007)).

In re Perrotta, 2008 BNH 009, issued June 17, 2008 (Deasy, J.) (published) (concluding that 11 U.S.C. § 704(b)(2) does not set forth a requirement that the United States Trustee file a statement of presumed abuse prior to filing a motion to dismiss under 11 U.S.C. § 707(b)(1) or (b)(3), where the United States Trustee is not basing such a motion on the presumption of abuse and, for that reason, ruling that the deadline for filing such a motion to dismiss is not the thirty-day deadline set forth in 11 U.S.C. § 704(b)(2) but rather the sixty-day deadline set forth in Interim Bankruptcy Rule 1017(e)).

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