Subscribe to All Opinions09-05868
On remand from the district court, after a trial, findings were made regarding an Intervenor's assertion that she had been denied due process when she was not served in an adversary proceeding where trust assets were found to be part of a bankruptcy estate in 2010. The court found that the Intervenor waived her objection because she waited too long to bring it up and by participating in the litigation through her agents, her brother, Richard Sharif, the Debtor, and her attorney, who she sued for legal malpractice for not asserting certain claims in the underlying matter.
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Judge Jacqueline P. Cox
Haifa Sharifeh v. Horace Fox, Jr., Trustee of the Debtor’s Bankruptcy Estate (In re Richard Sharif)
January 29, 2019
January 29, 2019
Judge Deborah L. Thorne
Judge LaShonda A. Hunt
Catherine Steege, as Trustee for Calumet Photographic, Inc. v. Canon U.S.A., Inc. (In re Calumet Photographic, Inc., et al.)
January 9, 2019
January 9, 2019
14bk008893, 16ap00195
At issue is whether the law in this Circuit holds that only unpaid new value can be used by a creditor to reduce preference liability under 11 U.S.C. § 547(c)(4)(B). The court concludes the answer to that question is yes.
Judge Timothy A. Barnes
In re Kimball Hill, Inc., et al.
January 3, 2019
January 3, 2019
08bk10095
Upon a motion seeking enforcement of this court’s confirmation order and damages arising from the alleged violation by the debtors’ prepetition surety, filed by successor to the purchaser of assets in the above-captioned bankruptcy cases, the court having previously determined that the surety violated the injunction and release set forth in the court’s confirmation order and the debtors’ plan, and after a trial to determine damages, held: The movant has established that it is entitled to damages stemming from the surety’s repeated pursuit of claims against the movant in the state court. The court, therefore, awards actual damages for reduced property value, legal costs, consulting costs and project management costs. The court declines to award punitive damages. The motion remains GRANTED and this decision concludes the motion.
In re Kimball Hill, Inc., et al.
October 2, 2018
October 2, 2018
08bk10095
Upon the Motion for Entry of an Order (I) Enforcing Confirmation Order; (II) Awarding Damages; and (III) Granting Related Relief, brought by assignee of personal property administered by the liquidating trust in the above-captioned bankruptcy cases, held: The movant has established that it is a party protected by the release in the confirmation order entered in the case and that the claims brought in the state court actions are attempts by the surety to recapture losses stemming from the debtors’ released liability. The motion is, therefore, GRANTED in part, as set forth in the attached Memorandum Decision. A separate hearing on damages will follow.
Judge A. Benjamin Goldgar
Judge Donald R. Cassling
Judge Janet S. Baer
12 B 17133, 18 A 00021
Plaintiffs Richard and Elizabeth Reuland (the “Reulands”) filed an adversary complaint against the Internal Revenue Service (the “IRS”), seeking (1) a determination that the IRS had violated the discharge injunction by attempting to collect certain tax debt that had been discharged through their chapter 13 bankruptcy case, (2) a permanent injunction against the IRS barring future attempts to collect that debt, and (3) attorney’s fees and costs. The IRS moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted because the tax debt at issue is not dischargeable pursuant to 11 U.S.C. §§ 1328(a)(2) and 523(a)(1)(B)(ii) (excepting from discharge debts for tax returns filed both late and less than two years before bankruptcy). The Reulands conceded that the tax debt was nondischargeable pursuant to those provisions. They argued, however, that under United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260 (2010), the tax debt at issue was discharged because their plan provided for the debt and the IRS failed to object to or appeal confirmation. In response, the IRS argued that Espinosa was inapplicable because the Reulands’ plan did not contain any specific language purporting to discharge the tax debt. After distinguishing Espinosa from the Reulands’ case and considering other cases with similar facts, the Court held that the tax debt at issue had not been discharged because it is nondischargeable under §§ 1328(a)(2) and 523(a)(1)(B) and the Reulands’ plan did not contain specific language that provided for the discharge of the debt. Thus, the Court granted the IRS’s motion, and dismissed the Reulands’ complaint with prejudice because, as a matter of law, it failed to state a claim upon which relief can be granted.