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Category Archives: Eleventh Circuit Cases

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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

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

11th Cir – Student Loan Dischargeable Where Debtor Has History Of Mental Illness And Physical Problems; Debtor Not Required To Produce Corroborating Medical Evidence

Educational Credit Management Corp. v. Mosley, No. 06-10349 (11th Cir. August 9, 2007).   The Eleventh Circuit upheld the Bankruptcy Court’s (Judge Mullins, ND Ga) order discharging the debtor’s student loans where the debtor had a history of mental illness, physical limitations preventing some work, and a long history of living under the poverty line. The… Continue Reading

11th Circuit – Court Affirms Bankruptcy Court’s Injunction Under Old Section 304 After Company Files Bankruptcy In Italy

By: Scott B. Riddle, Esq. Empire Marble and Granite v. Antonio Adinolfi (In re Rosacometta, S.R.L)., No. 06-14003, 2007 U.S. App. LEXIS 15720 (11th Cir. June 29, 2007).  Creditors obtained a state court judgment against an Italian company.  After the Italian company filed a bankruptcy action in Italy, the debtor’s representative filed an ancillary bankruptcy proceeding in… Continue Reading

11th Cir. – Sovereign Immunity Cannot Be Asserted By Government Agency As A Defense For Violations of Automatic Stay

By; Scott B. Riddle, Esq. In Florida Department of Revenue v. Omine, No. 06-11655 (11th Cir. May 11, 2007), the Florida Department of Revenue violated the automatic stay numerous times, including after the Bankruptcy Court had already sanctioned them for prior violations.  The DOR argued that sovereign immunity precluded the relief requested by the debtor,… Continue Reading

11th Cir. – Final Order of Bankruptcy Judge In Non-Core Matter Treated As A Report And Recommendation After Affirmance By District Court

By: Scott B. Riddle, Esq. Williford v. Funderburke, et al, No. 06-15119, 2007 App. LEXIS 5803 (11th Cir. March 13, 2007).  The Bankruptcy Court entered a final order on summary judgment, in favor of the defendants, in an adversary proceeding, but it was undisputed that the proceding was a non-core proceeding, and the parties had not consented… Continue Reading

11th Cir. – Arbitration Clause Enforceable In Non-Core Bankruptcy Proceeding

By: Scott B. Riddle, Esq. In The Whiting-Turner Contracting Co. v. Electric Machinery Enterprises, Inc. (In re Electric Machinery Enterprises, Inc.), No. 06-13733 (11th Cir. February 23, 2007) (appeal from MD Fla), the debtor was a sub-contractor that performed services for Whiting-Turner, the general contractor of a project called "Suess Landing."  A dispute arose on the project,… Continue Reading

11th Cir – Chapter 7 Trustee Acted Outside Scope Of Authority In Shutting Down Wrong Business; Resulting Lawsuit Not Core Or “Related To.”

By: Scott B. Riddle, Esq. Welt v. MJO Holdings, Inc. (In re Happy Hocker Pawn Shop, Inc.), No. 05-16182, 2006 U.S. App. LEXIS 31639 (11th Cir. December 21, 2006). Prior to filing bankruptcy, the debtor pawn shop had transferred its inventory to the plaintiff in satisfaction of a debt, and the plaintiff thereafter also operated a pawn… Continue Reading