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Bar News - December 19, 2008

US Bankruptcy Court Opinion Summaries

Note: The full text of the opinion below will be available on the Bankruptcy Court’s website.

Bogdanov v. Laflamme (In re Laflamme), 2008 BNH 017, issued November 12, 2008 (Deasy, J.) (published) (holding that individual debtor’s interest in commissions under real estate contracts pending on the petition date were property of the bankruptcy estate under 11 U.S.C. § 541(a) and subject to turnover under 11 U.S.C. § 542, but that the debtor was not required to turnover commissions that were no longer in debtor’s possession or control on the date of conversion from chapter 13 to chapter 7 to the extent that the debtor had used the commissions received to pay ordinary and necessary living expenses during the chapter 13 proceeding under an implicit right to use chapter 13 estate property under 11 U.S.C. §§ 1303 and 1306(b), but declining to adopt a bright-line rule for when a chapter 13 debtor may use estate property prior to confirmation of a plan or conversion).

In re Plourde, 2008 BNH 018, issued November 17, 2008 (Deasy, J.) (published) (holding that Fed. R. Bankr. P. 3001 does not alter the burden of proof in claims allowance procedure but instead provides an evidentiary benefit (i.e. the claim constituting prima facie evidence of the validity and amount of the claim) for creditors that fully comply with the rule; holding that a creditor who fails to obtain evidentiary benefit of Fed. R. Bankr. P. 3001(f) must prove the existence and amount of the claim, and ownership of the claim; sustaining and sustaining in part a chapter 7 trustee’s objections to two proofs of claim filed by credit card creditors whose proofs of claim did not satisfy Fed. R. Bankr. P. 3001).

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