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Bar News - September 18, 2009

US Bankruptcy Court Opinion Summaries

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

Tucker v. Sallie Mae, Inc. (In re Tucker), 2009 BNH 024, issued on September 3, 2009 (Deasy, J.) (unpublished) (finding payment of the debtor’s student loan obligations to two student loan creditors would impose an undue hardship on her within the meaning of 11 U.S.C. § 523(a)(8) and declining to extend rationale of Nash v. Connecticut Student Loan Found. (In re Nash), 446 F.3d 188 (1st Cir. 2006), based on factual differences and evidentiary burdens).

Smith v. Rogers (In re Castelhano), 2009 BNH 016 (Vaughn, C.J.), decided 6/24/09, unpublished (denying the Defendant’s motion for summary judgment upon finding that restitution obligations are subject to avoidance actions; denying the Plaintiff’s cross-motion for summary judgment because genuine issues of material fact remain as to whether the transfers occurred pre-petition under 11 U.S.C. § 547(b) or post-petition under 11 U.S.C. § 549, and whether the transfers constitute an "interest of the debtor" under § 547 or "property of the estate" under § 549; denying Debtor’s motion to approve post-petition payments nunc pro tunc to the petition date because the payments are the subject of a pending adversary proceeding).

In re Scaringe, 2009 BNH 017 (Vaughn, C.J.), decided 7/20/09, unpublished (denying the debtors’ motion to compel return of set-off funds upon finding that the debtors lack standing to bring such a motion).

In re Johnson, 2009 BNH 018 (Vaughn, C.J.), decided 7/23/09, unpublished (granting the debtors’ motion to distribute funds that entitles them to the net proceeds of a sale of property as it relates to the parcel containing raw land, because the parties did not intend to mortgage that piece of property ).

In re Seff Enterprises & Holdings, LLC, 2009 BNH 022 (Vaughn, C.J.), decided 8/26/09, unpublished (granting motion to dismiss Chapter 7 case pursuant to 11 U.S.C. § 305 because the empty estate provides no benefit to creditors, the bankruptcy filing is essentially a two-party dispute, and state court is the proper venue for the action).

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