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Bar News - April 17, 2009

US Bankruptcy Court Opinion Summary

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

In re MTM Realty Trust, 2009 BNH 008, issued on March 9, 2009 (Deasy, J.) (unpublished) (holding that debtor’s property was single asset real estate under 11 U.S.C. § 101(51B) because debtor’s property was commercial, the property generated all of the debtor’s gross income, and debtor had no other substantial business activities other than operating its real property since it only collected rent from tenants and paid normal expenses associated with owning commercial real estate).

Rifken v. CapitalSource Finance, LLC (In re Felt Mfg. Co., Inc.), 2009 BNH 010, issued on March 17, 2009 (Deasy, J.) (published) (denying in part defendant’s motion under FRCP 12(b)(6) to dismiss the plaintiff’s claim under 11 U.S.C. § 506(c) to surcharge proceeds from defendant’s collateral for services rendered by professionals for the debtor and unsecured creditors’ committee because the complaint set forth a plausible basis for relief and affirmative defenses of standing, waiver, and res judicata were not applicable, and granting the motion in part to the extent that it sought to surcharge expenses incurred after the date the debtor had waived such claims).

Smith v. George (In re RCK Modular Homes Systems, Inc.), 2008 BNH 020 (Vaughn, C.J.), decided 12/30/08, published (granting in part the motion for summary judgment brought by the trustee pursuant to 11 U.S.C. § 548(a)(1) and N.H. Rev. Stat. Ann. § 545-A:4(I) because the undisputed facts established that the Debtor made fraudulent transfers to the Defendant subject to avoidance pursuant to 11 U.S.C. § 550(a); and denying in part the same motion for summary judgment because there are material issues of whether the Debtor made the remaining transfers fraudulently).

In re Handy, 2009 BNH 001 (Vaughn, C.J.), decided 1/6/09, unpublished (overruling the debtor’s objection to the mortgagee’s claim because the mortgagee properly applied the debtor’s payments to her escrow deficit and the attorney fees and costs included in the claim were reasonable, where the debtor defaulted and the mortgagee had an express right to commence collection procedures pursuant to their repayment agreement).

Poliquin v. Cox (In re Cox), 2009 BNH 002 (Vaughn, C.J.), decided 1/6/09, unpublished (denying the defendants’ motion for summary judgment relating to the plaintiff’s complaint brought under 11 U.S.C. § 727(a)(2)(B) and (a)(4) because there are genuine issues of fact regarding whether the defendants intentionally made a false oath in their bankruptcy schedules as to the value of their business inventory and whether the defendants fraudulently transferred property of the estate to their newly formed business entity after the petition date).

McAdam v. State of New Hampshire (In re McAdam), 2009 BNH 003 (Vaughn, C.J.), decided 1/16/09, published (dismissing the debtor’s complaint for violation of the discharge injunction under 11 U.S.C. § 524(a) brought against the state under FRCP 12(b)(6) and FRBP 7012(b)(6) because the state’s collection activities for past-due employment taxes did not violate the discharge injunction as they were nondischargeble debts under 11 U.S.C. § 523(a)(1) and suits to determine nondischargeability fall outside the scope of the discharge injunction).

Askenaizer v. Wyatt (In re BeaconVision Incorporated), 2009 BNH 004 (Vaughn, C.J.), decided 1/20/09, unpublished (granting three counts for breach of contract, conversion, and avoidance pursuant 11 U.S.C. §§ 548 and 550 against a lender relating to $2 million loan agreement; and denying the remaining counts for negligence, negligent misrepresentation, fraudulent misrepresentation, fraud, consumer fraud, and state fraudulent transfer as to the remaining defendants in an adversary proceeding brought by the chapter 7 trustee and two stockholders of the debtor against a lender, escrow agent, and related third parties).

Schatz v. Imperial Capital Bank (In re Schatz), 2009 BNH 006 (Vaughn, C.J.), decided 2/18/09, published (granting summary judgment in favor of the Plaintiff and denying the Defendant’s summary judgment motion; finding that a creditor’s mortgage recorded within the ninety day period preceding the filing of the bankruptcy petition is avoidable even though the mortgage took effect almost two years before the filing, because under 11 U.S.C. § 547(b) a transfer is deemed made on the date of perfection if the transfer is perfected more than thirty days after it took effect).

In re Plourde, 2009 BNH 007 (Vaughn, C.J.), decided 3/9/09, published (finding that upon bifurcation of a claim, a debtor that chooses to modify the terms of the secured portion of the allowed claim by changing the payments of principal and interest pursuant to §1325(a)(5) is required by § 1322(d) to pay the secured portion of the allowed claim in full during the life of the plan).

Notinger v. Wells Fargo Bank, N.A. (In re Prescott), 2009 BNH 009 (Vaughn, C.J.), decided 3/12/09, published/unpublished (granting defendant’s motion for summary judgment on Count I which precludes avoidance of a mortgage lien pursuant to 11 U.S.C. § 544(a)(2), because a mortgage containing an additional incomplete description is valid and provides constructive notice of the property encumbered; granting plaintiff’s motion for summary judgment on Count II to avoid an attachment pursuant to § 549, because the action to obtain the attachment was outside the scope of the relief granted in the Court’s order; and denying summary judgment on the remaining counts brought pursuant to §§ 524 and 510).

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