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Bar News - August 13, 2010


US Bankruptcy Court Opinion Summaries

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

In re Schatz, 426 B.R. 24 (Bankr. D.N.H. 2009) (Vaughn, C.J.), decided 12/2/09 (the Debtor’s plan may "cure" and "reinstate" the bank’s loans under § 1123(d) over the life of the plan with the prepetition arrearage calculated at the default rate of interest and the post-petition arrearage calculated at the contract rate of interest; additionally, the bank is entitled to both prepetition and post-petition costs, charges and attorneys’ fees related to the loans.)

Notinger v. Zsofka (In re Zsofka), 2010 BNH 001 (Vaughn, C.J.), decided 1/25/10 (granting Plaintiff’s request for turnover under § 542 for rental proceeds and half interest in escrowed funds owed to the Debtor, which was to be set off against half interest in escrowed funds owed to Defendant).

Duby v. United States of America (In re Duby), 2010 BNH 009 (Vaughn, C. J.), decided 2/22/10 (granting the Plaintiff’s motion for summary judgment and finding that the Defendant violated both the automatic stay and the discharge injunction; and granting the Defendants’s cross-motion for summary judgment in part and finding that the Plaintiff is barred from an award of punitive damages and emotional distress damages for her claims against the federal government).

In re Seff Enterprises & Holdings, LLC, 2010 BNH 011 (Vaughn, C.J.), decided 2/26/10 (granting motion to dismiss involuntary Chapter 7 case pursuant to 11 U.S.C. § 305 because the purpose of the bankruptcy process is not achieved, both adversary proceedings are non-core and would be more appropriately decided in another forum, and the trustee has already filed her report of no distribution).

Notinger v. Zsofka (In re Zsofka), 2010 BNH 013 (Vaughn, C.J.), decided 3/4/10 (finding that dissolution of a partnership occurred when the Debtor filed for bankruptcy; however, because filing of bankruptcy was not in contravention of the partnership agreement, New Hampshire law allows the bankruptcy estate to request judicially-ordered wind up and termination upon cause shown).

In re O’Neil, 2010 BNH 017 (Vaughn, C.J.), decided 4/12/10 (denying motion for determination that proceeds from sale of Debtor’s stock in his business should not be part of the bankruptcy estate, because marital court’s order appointing a receiver did not effectively attach Debtor’s stock and did not divest the Debtor of legal title in the stock so as to prevent the stock from passing into the bankruptcy estate).

In re Amoskeag Inn Corporation, 2010 BNH 019 (Vaughn, C.J.), decided 4/22/10 (granting motion to compel Choice Hotels International, Inc., to comply with terms of a franchise agreement because the franchise agreement had not been terminated prior to the filing of the Debtor’s bankruptcy).

Westbrook v. Westbrook (In re Westbrook), 2010 BNH 020 (Vaughn, C. J.), decided 5/19/10 (granting motion to dismiss the complaint for non-dischargeability because Plaintiff’s underlying claim of fraud is time-barred).

Gembitsky v. DeSteph (In re DeSteph), 2010 BNH 021 (Vaughn, C.J.), decided 5/26/10 (finding in favor of the Plaintiff on her breach of contract and fraud claims, and imposing a constructive trust on Defendant’s vehicle because he violated a duty imposed by a confidential and fiduciary relationship when he failed to use the Plaintiff’s money as instructed, but denying complaint as to all other counts; and finding that the Defendant’s obligation to the Plaintiff is excepted from discharge in his bankruptcy).

Mosher v. Evergreen Management, Inc. (In re Mosher), 2010 BNH 022 (Vaughn, C.J.), decided 6/8/10 (awarding attorneys’ fees to debtor where defendant willfully violated the automatic stay under 11 U.S.C. § 362, but tempering award for reasonableness; and denying defendant’s motion for directed verdict).

In re Wunderlich, 2010 BNH 023 (Vaughn, C.J.), decided 7/2/10 (reducing the amount of interim fees requested by the trustee because a pro se creditor spent numerous hours investigating the assets of the Debtor and is responsible for obtaining a significant amount of the assets in the case).

Ong v. Ong-Maguire (In re Ong-Maguire), 2010 BNH 024, issued on July 13, 2010 (Deasy, J.) (unpublished) (denying a motion to dismiss on Counts I, III, and IV of an amended complaint because the complaint contained enough facts to establish a plausible claim for relief under 11 U.S.C. §§ 523(a)(2)(A), 523(a)(4), and 727(a)(2)(B) based on the Defendant’s conduct acting as a trustee of a family trust; granting the motion to dismiss on Count II under § 727(a)(4)(A) because the false oath was not made in connection with the bankruptcy case).

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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