Business Law Insolvency Law Committee

The following is a profile of the Honorable Margaret M. Mann, Chief Judge of the United States Bankruptcy Court for the Southern District of California. Read more

In In re Rosenberg (Rosenberg v. N.Y. State Higher Education Services Corp., et al.), No. 18-09023, 2020 WL 130302, 2020 Bankr. LEXIS 73 (Bankr. S.D.N.Y., Jan. 7, 2020), Chief Judge Cecelia Morris of the United States Bankruptcy Court, Southern District of New York, in a decision to be published, granted Kevin Rosenberg’s summary judgment motion, finding that his student loan obligations were dischargeable pursuant to 11 U.S.C. § 523(a)(8). A Notice of Appeal and Memorandum For Leave to Appeal Interlocutory Order seeking District Court review were filed in the bankruptcy case on January 17, 2020. The bankruptcy court entered the Order Granting Leave to Appeal on January 17, 2020. Read more

In G&G Prods., LLC v. Cecchi Gori Pictures (In re Cecchi Gori Pictures), No. 18-1042, 2019 Bankr. LEXIS 1062, 2019 WL 1448116 (9th Cir. BAP Mar. 29, 2019), the United States Bankruptcy Appellate Panel for the Ninth Circuit, in an unpublished memorandum pertaining to a fraudulent transfer action, reversed a judgment granting debtors’ partial summary judgment motion and ordering turnover of the transferred property. The BAP concluded that the bankruptcy court improperly excluded parol evidence pertaining to the value given in exchange for the transfer, which evidence, if properly considered, created a triable issue of material fact such that the partial summary judgment was improperly granted. Read more

In Ritzen Group, Inc. v. Jackson Masonry, LLC, 589 U.S. ___, No. 18-938 (Jan. 14, 2020), the U.S. Supreme Court unanimously held that an order unreservedly granting or denying a motion for relief from the automatic stay is a final, appealable order. However, at least as to orders denying stay-relief motions, a footnote at the end of the opinion undermines the Court’s ruling. To read the full decision, click here. Read more

A California appellate court has held that a trial court order denying judicial reference under Code of Civil Procedure section 638 et seq. is not appealable until the conclusion of the case, in contrast with the appealability of an order denying arbitration. [J.H. Boyd Enterprises, Inc. v. Boyd, 39 Cal.App.5th 802 (Aug. 23, 2019). Read more

In a 2-1 decision reflecting a circuit split, the Eleventh Circuit holds that a guarantor is not an “applicant” under 15 U.S.C. section 1691(a), and therefore cannot bring an action for discrimination under the Equal Credit Opportunity Act (ECOA or Act). Read more

A promissory note is not rendered non-negotiable solely by virtue of a reference to an extrinsic agreement. Negotiability is only destroyed where the holder of the instrument would be required to look beyond the note to determine such holder’s rights with respect to payment. Read more

The Fifth Circuit affirmed the bankruptcy court’s order denying a motion to compel arbitration in an adversary proceeding to discharge student loan debt following completion of a chapter 13 plan, determining that bankruptcy courts continue to have discretion to deny motions to compel arbitration regarding discharge injunctions after the Supreme Court’s opinion in Epic Systems Corp. v. Lewis, -- U.S. --, 138 S.Ct. 1612, 200 L.Ed.2d 889 (2018). Read more

In Radiance Capital Receivables Fourteen, LLC v. Foster, 2019 WL 5445522 (Va. Oct. 24, 2019), the Virginia Supreme Court recently upheld the dismissal of a complaint based on a guaranty of a construction loan which was originated by a bank. The guarantor successfully raised a statute of limitations defense, despite a contractual waiver of limitations defenses which appeared in the guaranty. The case is a sample of the variegated state laws on pre-dispute waivers of limitations defenses. It is of more general interest because it deals with the lender’s unsuccessful argument that the guarantor committed promissory fraud in agreeing to the waiver provision by signing the guaranty in the first place. Read more

Adding to the circuit split on the issue, the Third Circuit Court of Appeals adopted the minority view and ruled that a creditor’s passive retention of collateral it repossessed prepetition pending a bankruptcy court order is not a “willful violation” of the automatic stay. Read more