Business Law Insolvency Law Committee

October 18, 2024 Dear constituency list members of the Insolvency Law Committee, the following is a case update written by Hale Andrew Antico, Chief Counsel of Antico Law Firm, analyzing In re O'Gorman, No. 23-60005, 2024 WL 4113544 (9th Cir. Sept. 9, 2024), a recent case of interest: SUMMARY In In re O’Gorman, the Court of Appeals for the Ninth Circuit upheld a bankruptcy court decision granting summary judgment to the trustee who sought to avoid a fraudulent transfer by… Read more

September 30, 2024 Dear constituency list members of the Insolvency Law Committee, the following is a case update by Summer Shaw analyzing In re Buettner, 654 B.R. 927 (Bankr. E.D. Cal. 2023), a recent case of interest: SUMMARY In In re Buettner, Chapter 13 debtors were compelled to file suit to enforce California Civil Code § 2941, which requires a lender to reconvey a deed of trust within 30 days of payoff. The Bankruptcy Court for the Eastern District of… Read more

September 19, 2024 Dear constituency list members of the Insolvency Law Committee, the following is a case update written by Hale Andrew Antico, Chief Counsel of Antico Law Firm, analyzing In re Wike, 660 B.R. 683 (B.A.P. 9th Cir. 2024) (“Wike”), a recent case of interest: SUMMARY In Wike, the Bankruptcy Appellate Panel of the Ninth Circuit (“BAP”) ruled that the disciplinary costs assessed against an attorney who filed for Chapter 7 bankruptcy protection were discharged under 11 U.S.C. §… Read more

On July 23, 2024, U.S. Senators Sheldon Whitehouse (D-RI) and Josh Hawley (R-MO) and representatives Emilia Sykes (D-OH) and Lance Gooden (R-TX) introduced the Ending Corporate Bankruptcy Abuse Act (“ECBA”).  The purpose of the ECBA is an attempt to end the so-called “Texas Two-Step” that has been pervasive in recent years.  One such use of this process can be found in the Johnson & Johnson bankruptcy cases dealing with talc-related injury claims.  For those unfamiliar with it, the "Texas Two-Step"… Read more

Finding that in a corporate bankruptcy case a person or entity can be held in civil contempt for an automatic stay violation when “there is no fair ground of doubt” that its conduct violated the stay, the Second Circuit Court of Appeals held that false and misleading advertising focused against the debtor by a competitor was not an exercise of control over estate property and therefore not a stay violation.  In re Windstream Holdings, Inc., 2024 WL 3195997 (2d Cir. June 24, 2024). Read more

In a case of first impression for the circuit, the Ninth Circuit Court of Appeals (the Ninth Circuit) ruled that the two-year limitations period to sue to recover an erroneous refund starts on the date the refund check is cashed, not when it is received, reversing the district court.  United States of America v Page, ___ F. 4th ___, 2024 WL 3169963 (9th Cir. June 26, 2024).  Read more

The Eighth Circuit Court of Appeals (the Circuit Court) recently ruled that a debtor who suffered two different work-related injuries after he filed a chapter 13 case had standing to assert a claim against his employer based on the injury which occurred after he had completed payments under his plan, but was barred by the doctrine of judicial estoppel from asserting a claim based on the injury which happened before he completed his plan payments.  Hughes v. Wisconsin Central, Ltd., ___ F. 4th ___, 2024 WL 3154627 (8th Cir. June 25, 2024). Read more

The Fourth Circuit Court of Appeals (the Circuit Court) recently ruled that a probation before judgment qualifies as a conviction and that a sentence includes probation granted before judgment, such that restitution debt based on the probation is excepted from discharge under 11 U.S.C. § 1328(a)(3).  Feyijinmi v. Central Collection Unit, ___ F. 4th ___, 2024 WL 3209930 (4th Cir. June 28, 2024).  Read more

A Bankruptcy Court in the Northern District of California (the Court) recently denied the United States Trustee’s (“UST”) motion to dismiss a chapter 7 case for cause under 11 U.S. C. § 707(a) because the debtor owned interests in LLCs which were engaged in the cannabis business.  In re Christopher Michael Callaway, 2024 WL 3191673 (Bankr. N.D. CA. June 26, 2024).  Read more

the following is a “behind the ruling” view of a recent opinion published by the United States Supreme Court, Harrington v. Purdue Pharma, L.P., 603 U.S. __, 2024 U.S. LEXIS 2848 (U.S., June 27, 2024) (Purdue 4), a case in which the ILC filed an amicus brief on September 27, 2023.  Full analyses of the Court’s majority and dissent opinions will be sent in separate eBulletins. Read more