Millions of consumers every year benefit from consumer bankruptcy. Among the most commonly filed forms of bankruptcy are Chapter 7 and Chapter 13, both can only be filed by natural persons, not by corporations. A husband and wife can file jointly in the same case or file separately. While both Chapter 7 and chapter 13 […]
When Can A Bankruptcy Attorney Bring Suit Within A Bankruptcy Case?
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. […]
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 Attorney’s Fee Award
The Ninth Circuit adopted the Second Circuit’s standard for awarding attorney’s fees. Under this standard, an attorney’s services need not actually benefit the estate, but must be “reasonably anticipated to be necessary and beneficial to the estate at the time rendered.” In re Cogliano, 355 B.R. 792, 806 (9th Cir. B.A.P. 2006) (citing In re […]
May A Bankruptcy Attorney Advise A Client to Incur Debt Prior to Filing Bankruptcy?
Under Section 526 of the Bankruptcy Code, a debt relief agency cannot advise a client to incur more debt “in contemplation of bankruptcy.” The Supreme Court, in Milavetz, Gallop & Milavetz, P.A. v. U.S., ruled that a bankruptcy attorney is a debt relief agency, and therefore cannot advise clients to incur more debt in contemplation […]
Bankruptcy Attorney Must Understand the Business Judgment Rule
It is improper for a Bankruptcy attorney to engage in a 20-20 hindsight analysis when trying to find liability for a company officer’s actions. The 9th Circuit has plainly pronounced that “hindsight is the wrong metric for evaluating fiduciary duty.” Tibble v. Edison Intern., 729 F.3d 1110, 1136 (9th Cir. 2013); see also F.D.I.C. v. […]
