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Category Archives: Eleventh Circuit Cases

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11th Circuit: Court May Consider Chapter 7 Debtor’s Ability To Pay In “Totality Of Circumstances” And Consideration Of Abuse

In In re Witcher,  No. 11-15883 (11th Cir. December 13, 2012) (click here for opinion), the issue before the Court was… whether a court may take into account a debtor’s ability to pay his or her debts in determining whether "the totality of the circumstances . . . of the debtor’s financial situation demonstrates abuse"… Continue Reading

11th Circuit: Bankruptcy Court Has No Jurisdiction To Determine Whether Debt Was Discharged In Case Litigated In A Bankruptcy Court In Another District

Alderwood Group, Inc., et al v. Garcia, et al., No. 10-14726 (11th Cir. May 30, 2012) (click here for .pdf of opinion).  The Creditor/Plaintiffs asserted class action tort claims in 2008 against the Debtor/Defendants in Florida state court for damages due to Debtors’ operation of a cemetery known as Graceland.  The claims included inadequate record… Continue Reading

11th Circuit Affirms Availability Of “Value” Defense For Recipients Of Fraudulent Transfers Who Were Equity Holders Of Debtor

In Perkins v. Haines, et al, No. 10-10683 (11th Cir. October 27, 2011) (click here for .pdf of opinion), the 11th Circuit took a direct appeal of the Bankruptcy Court’s order concerning the "value" defense in fraudulent transfer proceedings. The basic facts are as follows.  International Management Associates, LLC and related entities were operated as a… Continue Reading

Eleventh Circuit Affirms Private Employer’s Right to Deny Employment Because Of Bankruptcy Filing

The Eleventh Circuit Court of Appeals has followed other courts (notably, the Fifth Circuit, as discussed here) in affirming the right of a private employer to deny employment based upon the applicant’s filing of a bankruptcy petition.  In Myers v. TooJay’s Management Corp., No. 10-10774 (11th Cir. May 17, 2011) (click here for the .pdf… Continue Reading

11th Circuit Confirms That Potential Claims And Lawsuits Must Be Diclosed Or A Debtor Will Be Judicially Estopped From Pursuing Them.

There have been several cases over the years dismissing lawsuits by Debtors who failed to list the claim as an asset in their Bankruptcy schedules.  As the opinion below confirms, the same duty applies where the claim arose after the filing of a Chapter 13 case and even where the Debtor proposed to pay, and… Continue Reading

11th Cir: Debtor Cannot File Suit Against Trustee Or Professionals In District Court Without Leave Of Bankruptcy Court

Lawrence v. Goldberg, et al., 08- 11034 (11th Cir. July 10, 2009) (click here for .pdf opinion).  Debtor file suit against the Chapter 7 trustee, professionals employed by the trustee, and creditors in District Court..  The District Court dismissed for lack of subject matter jurisdiction.  The Eleventh Circuit affirmed. In [Barton v. Barbour, 104 U.S.… Continue Reading

11th Circuit En Banc Reverses Panel : 11 U.S.C. §303 Is Not Subject Matter Jurisdictional And Can Be Waived

Trusted Net Media Holdings, LLC v. The Morrison Agency, Inc. (In re Trusted Net Media Holdings, LLC), No. 07-13429 (11th Cir. Dec. 2008) (click here for .pdf opinion).  The issue in this case is "whether the requirements in 11 U.S.C. § 303(b) for commencing an involuntary bankruptcy petition are elements of subject matter jurisdiction."  In… Continue Reading

11th Cir. – Secured Creditor May Still Pursue Deficiency After Surrender of “910 Vehicle”

In re Barrett, Nos. 07-14796, 07-14797 (11th Cir. Sep. 29, 2008) (download opinion here). The issue  raised on appeal concerned a pure question of law: "whether a Chapter 13 debtor’s surrender of a “910 vehicle” (i.e., a vehicle purchased for personal use within 910 days before filing for bankruptcy) fully satisfies a creditor’s claim secured… Continue Reading

11th Circuit First To Rule On “Hanging Paragraph” Of Section 1325(a); Negative Equity In “910 Vehicles” Constitutes “Purchase Money Security Interest” That Prohibits Bifurcation Of Claim

Graupner v. Nuvell Credit Corp. (In re Graupner), No. 07-13657 (11th Cir. August 6, 2008) (click here for opinion).  In a case of first impression at the Circuit level, the Eleventh Circuit Court of Appeals examined the "hanging paragraph" that comes after 11 U.S.C. §1325(a)(9). The basic facts of this case are as follows: Debtor purchased a… Continue Reading

11th Circuit: Causes Of Action Arising After Confirmation Of Chapter 13 Plan Are Property Of The Estate

Waldron v. Brown (In re Waldron), No. 15081 (11th Cir. August 4, 2008) (click here to download opinion). Debtors were in an auto accident after the confirmation of their Chapter 13 plan, but before they had completed payments.  Debtors settled a claim against the other driver for $25,000, which was deemed as exempt.  They also… Continue Reading

11th Circuit – In A Case Of First Impression, Order Denying Motion To Dismiss Chapter 7 Case Not Final Appealable Order

Barben v. Donovan (In re Donovan), No. 07-13915 (11th Cir. July 2, 2008). Donovan filed a Chapter 13 bankruptcy petition on February 17, 2004, prior to the passage of the 2005 Bankruptcy Abuse Prevention and Consumer Protection Act. … Donovan became unable to make the payments under the plan as they came due. Accordingly, Donovan—apparently at… Continue Reading

11th Cir. Bankruptcy Court Has Jurisdiction Over Dispute Between Two Non-Debtors Where It Could Conceivably Have Effect On Estate

In re Ryan, No. 07-10845, 2008 WL 1969593 (11th Cir. May 8, 2008) (click for pdf). Ryan filed a voluntary petition for bankruptcy in early 2002. At the time, he owned 100% of the stock in a number of corporate entities (“the Entities”), including Riverside Capital Advisors, Inc. On August 7, 2002, the bankruptcy trustee… Continue Reading

11th Circuit – In A Case Of First Impression, Court Rules On Proportionate Liability In Private Securities Litigation Reform Act Of 1995

Not a Bankruptcy case, but relevant to corporate and shareholder litigation: KITTIE LAPERRIERE, Class certification, to consist of all persons who acquired the publicly traded equity securities of Vesta Insurance Group, Inc., between June 2, 1995, and June 28, 1998, inclusive (the “Class Period”). Excluded from the class, ISRAEL BURGER, RICHARD SULLIVAN, POINTERS, THE CLEANERS… Continue Reading

11th Circuit Holds Requirements Of Section 303(b) (Involuntary Bankruptcy) Are Jurisdictional — But It Doesn’t Like It.

 By: Scott B. Riddle, Esq. Trusted Net Media Holdings, LLC v. The Morrison Agency, Inc. (In re Trusted Net Media Holdings, LLC), No. 07-13429 (11th Cir. April 29, 2008) (click here for pdf of opinion).  The basic facts are the following – On April 20, 2002, Morrison, as a creditor, filed an involuntary bankruptcy petition… Continue Reading

11th Cir: Trustee’s Abdndonment Of Cause Of Action Already Ruled Upon By Bankruptcy Court Did Not “Re-Vest” Plaintiffs With Ability To Re-Litigate Claims

By:Scott B. Riddle, Esq. Matthews, Wilson & Matthews, Inc. v. Capital City Bank, 2008 WL 901919, 07-15615 (April 4, 2008). MWM [Debtor] had trouble making loan payments, and ultimately filed for Chapter 7 bankruptcy. The bankruptcy trustee sought approval from the bankruptcy court to sell the Conyers property [owned by Debtor] and use the sale… Continue Reading

11th Circuit: Income Taxes Nondischargeable Where Debtor Engaged In Affirmative Acts To Evade Or Avoid

 In re Zimmerman, No. 06-15151, 2008 WL 161423 (11th Cir. Jan. 18, 2008).  The background facts are summarized by the Court as follows: Zimmerman filed an adversary proceeding in his 2004 bankruptcy proceeding seeking a determination that his federal income tax liabilities for the years 1977 through 1979 would be dischargeable in the 2004 bankruptcy… Continue Reading

Recent 11th Circuit Bankruptcy Cases: Property of the Estate, Jurisdiction

A couple recent 11th Circuit Bankruptcy cases — Mennen v. Onkyo Corp., No. 06-12050, 2007 WL 2669484 (11th Cir. September 13, 2007).   Property of the Estate.  Claims of trust rightfully belong to Bankruptcy estate, where creditor trust could not how distinct and individual damage. In re Cotton, No. 07-10408, 2007 WL 2967920 (October 12, 2007). Jurisdiction.  Debtor’s… Continue Reading

US Supreme Court Grants Cert In 11th Circuit Case; Will Decide Whether §1146 Tax Exemption Applies To Pre-Confirmation Transfers

By: Scott B. Riddle, Esq. In In re Piccadilly Cafeterias, Inc., No. 06-13759 (pdf),  484F.3d 1299 (11th Cir. April 18, 2007), the debtor sold substantially all of its assets pursuant to §363, prior to a confirmation of a Chapter 11 plan.  In its §363 motion, and again in its plan, the debtor requested an exemption… Continue Reading