Before a bankruptcy attorney brings a suit within a bankruptcy case, the bankruptcy attorney must first ascertain whether “the action at issue stems from the bankruptcy itself or would necessarily be resolved in the claims allowance process.” Stern v. Marshall, 131 S. Ct. 2594, 2618 (2011). Section 157(b)(1) authorizes a bankruptcy court to “hear and […]
Equitable Subordination
Equitable subordination is an equitable remedy for bankruptcy debtors or creditors when one creditor has performed inequitable conduct that has harmed the debtor or creditors of the bankruptcy estate. Equitable subordination was codified in the Bankruptcy Code under section 11 U.S.C. 510 (c) and is within the court’s discretion whether this remedy will be utilized. […]
Cannot Use 727 Claim to Uphold a 532 Claim Against Bankruptcy Estate
Several bankruptcy courts have held that a creditor cannot settle a § 727 claim with a bankruptcy estate in order to obtain a § 523 claim against the bankruptcy estate. As explained by one court: “a discharge in bankruptcy is not an appropriate element of a quid pro quo. Tying withdrawal of objections to discharge […]
Common Definitions Used by Bankruptcy Attorneys in a Chapter 11 Plan
Bankruptcy attorneys often use specialized terms to communicate with each other and the Court. This can be confusing for anyone who is not a bankruptcy attorney. Attached is a list of terms commonly used in a Chapter 11 Bankruptcy Plan, along with their definitions. Moreover, many of these terms are also used in chapter 7 […]
An Experienced Bankruptcy Attorney can obtain a Chapter 11 Final Decree.
An experienced bankruptcy attorney can guide you through the Chapter 11 process and obtain a Final Decree. Section 350(a) of the Bankruptcy Code provides that “[a]fter an estate is fully administered and the court has discharged the trustee, the court shall close the case.” 11 U.S.C. § 350(a). Bankruptcy Rule 3022, which implements section 350 […]
Controlling 9th Circuit law holds that specific performance is not available after rejection of an executory contract in a bankruptcy case.
The 9th Circuit has twice explained that specific performance is NOT available after the rejection of an executory contract in a bankruptcy action. “Specific performance of a rejected executory contract cannot be required.” In Kaonohi Ohana LTD. 873 F.2d 1302,(9th Cir 1989) citing In re Pacific Express, Inc., 780 F.2d 1482, 1486 n. 3 (9th […]
BANKRUPTCY ATTORNEY MUST FOLLOW PROPER PROCEDURE
Bankruptcy attorneys have the ability to pick which procedure to use. However, the choice can be fraught with peril if the bankruptcy attorney is not experienced. Whether a particular procedure comports with Due Process is a legal question that is reviewed de novo. Garner v. Shier (In re Garner), 246 B.R. 617, 619 (9th Cir. […]
Bankruptcy Attorneys often falsely report that Thomas Jefferson filed for bankruptcy
Contrary to popular myth, Jefferson never filed for bankruptcy. Indeed, voluntary bankruptcy wasn’t even possible in the United States until The Bankruptcy Act of 1841. By the time the 1841 Bankruptcy Act was passed, Jefferson had been dead 15 years. Disappointingly, many bankruptcy attorneys falsely report that Jefferson did file bankruptcy, failing to check their […]
Bankruptcy Audits Resume by United States Bankruptcy Trustee
The Untied States bankruptcy trustee has reinstated random audits of consumer bankruptcy filings on March 10, 2014. U.S. Bankruptcy Trustees may randomly designate for audit one out of every 250 consumer bankruptcy cases. The Bankruptcy Code also authorized audits of any cases in which debtors posted statistically unusual income or expenditures. It is very important […]
Places of Holding Court
Bankruptcy cases are heard in different court sites throughout Arizona. These court sites are Phoenix, Tucson, Yuma, Prescott, Flagstaff, and Bullhead City. Cases originating in Apache, Gila, Maricopa or Navajo Counties will be heard in Phoenix. Cases originating in Cochise, Graham, Greenlee, Pima, Pinal, and Santa Cruz counties will be heard in Tucson. Cases originating […]
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