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Bar News - March 19, 2010


US Bankruptcy Court Opinion

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

Notinger v. Black (In re Simply Media, Inc.), 2010 BNH 004, issued February 4, 2010 (Deasy, J.) (unpublished) (granting the defendant’s motion for summary judgment as the plaintiff/trustee failed to raise a material factual dispute in the summary judgment record as to whether the defendant breached his fiduciary duties as a director of the debtor under Delaware law as alleged).

In re Rodger, 2010 BNH 005, issued February 5, 2010 (Deasy, J.) (published) (granting the trustee’s motion under 11 U.S.C. § 1329 to modify the confirmed plan of these "below median" debtors to require them to turn over all income tax refunds received in the future, even in years four and five of their plan, consistent with the Court’s prior decisions in In re Michaud, 399 B.R. 365 (Bankr. D.N.H. 2008) and In re Watson, 417 B.R. 165 (Bankr. D.N.H. 2009), as 11 U.S.C. § 1325(b)(1) is not a bar t-o the turnover of disposable income beyond the applicable commitment period where debtors voluntarily propose and obtain confirmation of a plan longer than three years).

Gembitsky v. DeSteph (In re DeSteph), 2010 BNH 002 (Vaughn, C.J.), decided 1/25/10, published (partially dismissing one count for breach of contract and completely dismissing three counts for violation of Securities and Exchange Act of 1934, violation of New Hampshire’s Uniform Securities Act, and Conversion, because those claims were time-barred; allowing the Plaintiff to proceed on remainder of claims; and holding that the discovery-rule under N.H. Rev. Stat. Ann. § 508:4 only applies to claims where a more specific statute of limitations does not govern.)

Smith v. IndyMac Federal Bank, F.S.B. (In re Winter), 2010 BNH 003 (Vaughn, C.J.), decided 2/3/10, unpublished (granting Defendant’s motion for summary judgment as to § 547 claim because the transfer was not "for or on account of an antecedent debt" owed by the Debtor.)

Maroun v. Fremont Investment & Loan (In re Maroun), 2010 BNH 007 (Vaughn, C. J.), decided 2/11/10, published (granting Defendant’s motion for the Court to abstain from adjudicating the claims pursuant to 28 U.S.C. § 1334(c), because claims were not core proceedings and could be more properly and efficiently adjudicated in another forum.)

Maroun v. Fremont Investment & Loan (In re Maroun), 2010 BNH 008 (Vaughn, C. J.), decided 2/11/10, published (granting Defendant’s motion to dismiss as to Counts I, II, and VII because mortgage brokers are exempt from the New Hampshire Consumer Protection Act § 358-A, and mortgage brokers are not "creditors" within the meaning of the Truth In Lending Act; and abstaining under 28 U.S.C. § 1334(c)(1) from hearing the remaining claims in the "interest of justice" and in "respect for state law.")

In re Jennings, 2010 BNH 010, issued on February 25, 2010 (Deasy, J.) (unpublished) (denying a debtor’s motion to grant a mortgage and a priming lien on several of his properties to secure payment for bankruptcy professionals in lieu of a retainer because, although the proposed mortgage did not create a conflict of interest under 11 U.S.C. § 327(a) and the standards of In re Martin, 817 F.2d 175 (1st Cir. 1987), the debtor failed to establish that the secured creditors subject to the priming lien would be adequately protected under 11 U.S.C. § 364(d)(1)).

In re Corbett, 2010 BNH 014, issued on March 8, 2010 (Deasy, J.) (published) (denying a motion to reopen a no-asset chapter 7 case to add omitted creditors under the procedure derived from In re Walker, 195 B.R. 187 (Bankr. D.N.H. 1996) in light of Colonial Surety Co. v. Weizman, 564 F.3d 526 (1st Cir. 2009) because Weizman places the burden on the debtor to show cause that the omission was innocent and the equities justify reopening; debtors must file a verified motion or affidavit providing enough factual detail to justify reopening, after which the Court would issue an order to reopen giving notice to creditors).

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