Judge Grossman

Orkwis v. MERS (In re Orkwis)

Debtors filed an adversary proceeding under 11 U.S.C.S. §§ 506(a), 522(f), 1322(b)(2), against defendant second mortgagee bank to avoid as wholly unsecured the second mortgage lien encumbering the debtors' residence. The bank defaulted and the debtors requested that the mortgage lien be avoided upon entry of the judgment by default, and that it not be conditioned upon entry of discharge.
Ruling: 
Unsecured second mortgage could be avoided only after chapter 13 discharge.
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Consumer case opionion summary, case decided on September 19,2011, LexisNexis #1011-133

Indo-Med Commodities Inc. v. Wisell (In re Wisell)

Plaintiff judgment creditor, a United Kingdom corporation, filed an adversary proceeding against defendant Chapter 7 debtor, seeking a determination that a judgment it obtained in a New York court was nondischargeable under 11 U.S.C.S. § 523(a)(2)(A), (a)(4), and (a)(6). The creditor filed a motion for summary judgment, which was unopposed.
Ruling: 
State court judgment was nondischargeable on grounds of false pretenses, fiduciary defalcation and willful and malicious conduct.
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Consumer case opionion summary, case decided on August 16,2011, LexisNexis #0911-046

In re Duarte

Debtor filed a petition under Chapter 13 of the Bankruptcy Code, and a trustee was appointed to administer the debtor's bankruptcy plan. The trustee filed an objection to confirmation of a plan the debtor proposed, claiming that the plan could not be confirmed under 11 U.S.C.S. § 1325(b)(1) because it did not require the debtor to contribute all his disposable income to the plan.
Ruling: 
Married debtors ordered to include tax refunds in projected disposable income calculation pursuant to separate filings rule.
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Consumer case opionion summary, case decided on July 12,2011, LexisNexis #0811-132

Desiderio v. Parikh (In re Parikh)

Judgment creditor filed an adversary proceeding against defendant chapter 7 debtor, seeking an order which dismissed the debtor's bankruptcy case pursuant to 11 U.S.C.S. § 707(a) as a bad faith filing or, in the alternative, an order denying the debtor's discharge under 11 U.S.C.S. § 727(a)(2)(A), (a)(3), (a)(4), (a)(5), and (a)(6)(A). The case was tried to the court.
Ruling: 
Case not dismissed but discharge denied due to debtor's bad faith to allow court to maintain jurisdiction and control over case.
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Consumer case opionion summary, case decided on May 24,2011, LexisNexis #0611-095

Kirschenbaum v. Leeds Morelli & Brown PC (In re Robert Plan of N.Y. Corp.)

Chapter 7 trustee filed an adversary proceeding in which it sought to avoid and recover transfers from the debtor to defendant law firm under 11 U.S.C.S. §§ 547(b) and 550. The court conducted a trial on the matter.
Ruling: 
Transfers to law firm's trustee account were avoidable but could not be recovered after subsequent transfer to law firm itself.
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Commercial case opionion summary, case decided on May 05,2011, LexisNexis #0611-092

Pergament v. Pagano (In re Tolkin)

Plaintiff bankruptcy trustee brought an adversary proceeding against defendant creditor seeking to avoid transfers of funds to the creditor pursuant to 11 U.S.C.S. § 549(a) as unauthorized postpetition transfers.
Ruling: 
Postpetition preconversion transfer was avoidable as were postconversion transfers paid from prepetition earnings.
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Consumer case opionion summary, case decided on April 05,2011, LexisNexis #0511-124

Stern v. Singh Factors LLC (In re Shore to Shore Realty Inc.)

Trustee brought an adversary proceeding against defendants, a company and its principal, alleging that the company and the principal engaged in a scheme to divert real estate commissions due to a bankruptcy debtor to an officer of the debtor, and that such transfers were avoidable as fraudulent transfers under 11 U.S.C.S. § 548 and state law. Judgment by default was entered against the company.
Ruling: 
Company's principal could not be held liable for fraudulent transfers received by company absent proof of alter ego theory.
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Commercial case opionion summary, case decided on February 01,2011, LexisNexis #0311-021

In re Clark

Before the court was a motion by debtors to reopen their Chapter 7 bankruptcy case, vacate the discharge as to a creditor, and allow them to reaffirm a debt owed to the creditor under the provisions of 11 U.S.C.S. § 524. The motion was not opposed; however the court questioned, sua sponte, its authority to grant the requested relief.
Ruling: 
Debtor could not reopen case to reaffirm vehicle loan debt to avoid repossession.
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Consumer case opionion summary, case decided on December 21,2010, LexisNexis #0211-121

In re Ramp Chevrolet

Chapter 11 debtor filed a motion to hold a franchisor in contempt for willfully violating the automatic stay, 11 U.S.C.S. § 362(a)(7), by asserting improper setoffs under 11 U.S.C.S. § 553 without court approval, and for filing a secured proof of claim in the debtor's case in violation of the automatic stay.
Ruling: 
Franchisor's reduction of debtor franchisee's wind-down payments was not a setoff and did not violate stay.
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Commercial case opionion summary, case decided on December 21,2010, LexisNexis #0211-108

In re Malewicz

A non-debtor spouse filed a motion for an order finding that his share of a post-confirmation joint tax refund did not have to be disgorged to a Chapter 13 trustee. The trustee opposed the motion on the grounds that the confirmed plan provided for the turnover. The issue before the court was whether the failure to surrender the non-debtor spouse's share of the tax refunds constituted a default under the plan.
Ruling: 
Non-debtor spouse's failure to disgorge portion of post-confirmation tax refund did not constitute a default under the plan.
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Consumer case opionion summary, case decided on November 04,2010, LexisNexis #1210-063

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