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In re Robinson v. Tyson Foods, Inc., 08-14991
Issued February 8, 2010
Heard in U.S. 11th Circuit Court of Appeals
Summary In an employment discrimination action brought by plaintiff during her Chapter 13 proceedings, summary judgment for defendant on the ground of judicial estoppel is affirmed where plaintiff failed to disclose her employment discrimination suit to the bankruptcy court, and thus took inconsistent positions under oath with the intent of misleading the court.
In re TransTexas Gas Corp, 08-41128
Issued February 10, 2010
Heard in U.S. 5th Circuit Court of Appeals
Summary In two related cases involving a bankrupt corporate debtor, rulings rejecting (i) a claim by corporate debtor's former CEO that the severance payments he received from the company were not fraudulent transfers, and (ii) a claim by a trustee in a related matter that the estate was covered under a policy issued by appellee-insurer, are affirmed where: 1) the severance payments made to the CEO after his dismissal were obligations incurred by debtor within two years of its petition date and thus constituted fraudulent transfers; 2) debtor did not receive reasonably equivalent value for the payments to the CEO; and 3) the CEO's repayment of the amounts received did not constitute an insurable "Loss" under the insurance policy.
From the Bankruptcy Litigation Blog written by my colleague Steve Jakubowski comes thsi observation regarding today's Supreme Court decision in Milavetz, Gallop & Milavetz, P.A., v. United States, No. 08-1119:
Back when bashing BAPCPA was in vogue I posited here that the BAPCPA's "debt relief agency" provisions "look more like an effort to create a consumer bankruptcy lawyer clone who much like the ever-multiplying Agent Smith from The Matrix-Reloaded speaks and does precisely as directed with ruthless efficiency."
Today's unanimous opinion from Justice Sonia Sotomayor (with concurrences from Justices Scalia and Thomas) tells us not to worry because while attorneys are "debt relief agents" under the Code, §526(a)(4) "prohibits a debt relief agency only from advising a debtor to incur more debt when the impelling reason for the advice is anticipation of bankruptcy." Milavetz, Gallop & Milavetz, P.A., v. United States, No. 08-1119 (Op. at 13).
As with most bankruptcy decisions from the Supreme Court, the path taken to the holding is more interesting than the actual holding itself. This post examines two aspects of that road
The Bureau of Economic Anaylsis reported today that consumer spending went up by 0.5% in January.
Hey, that's good right? We know that a large part of GDP -- gross domestic product, basically the worth of a country-- is comprised of consumer expenditure.
But before we get all excited, the BEA also reports that personal income, on the other hand, went down by 0.1%.
Even worse? Disposable personal income -- the income we have left for necessities -- went down by 0.4 %.
Okay, so that's even worse than I thought. Uh-oh. Uh-oh indeed.
Amendment to Indiana recording statute applied to all mortgages, whenever filed. IC 32-21-4- 2(c) amends the Indiana recording act so that mortgages with certain technical defects are still considered to provide constructive notice. The 7th Circuit Court of Appeals held that the amended statute applied to all mortgages regardless of when they had filed. The statute's use of the phrase "is recorded" was ambiguous, the Court of Appeals found. Applying the statute retroactively would not upset vested substantive rights, as debtors did not have vested rights to the effect of technical defects at the time their mortgage was recorded. Importantly, the same legislative session enacted, within ten months, a subsequent amendment clarifying the subject amendment which stated that the subsection "applies regardless of when a mortgage was recorded."
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