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On September 4, 2014, the United States Court of Appeals for the 11th Circuit Court of Appeals issued its decision focusing on the "party aggrieved" doctrine in the case of Benjamin Atkinson v. Ernie Haire Ford, Inc. (In Re: Ernie Ford, Inc.), Case No. 13-11810.
Party Aggrieved Requirement
The Court explained that as bankruptcy cases often involved numerous creditor who are dissatisfied with any compromise that jeopardizes the full payment of their outstanding claims against the bankrupt, that "special rules have been developed to govern which parties my appeal a bankruptcy court order. The Court reviewed that court continue to apply the rule that was codified in the 1898 Bankruptcy Act, that only "person aggrieved" can appeal a bankruptcy court order.
Definition of a Party Aggrieved
The Court cited its holding in the case of In re Westwood Cmty. Two Ass'n v. Barbee (In re Westwood Cmty. Two Ass'n) 293 F.3d 1332 (11th Cir. 2002) which defined a party aggrieved as those individuals that are "directly, adversely, and pecuniarily, affect[ed]" by a bankruptcy court's order." This case further explained that "[a]n order will directly, adversely, and pecuniarily affect a person if that order diminishes their property, increases their burdens, or impairs their rights."
Bankruptcy Code Interests.
The Court further held that it agreed with other circuit courts which have held that a person is not "aggrieved" when the interests harmed by the court order are "not the interests that the Bankruptcy Code seeks to protect or regulate." The Court cited another case which states that this doctrine was developed to limit appeals of bankruptcy court to avoid "endless appeals brought by the myriad of parties who are indirectly affected by every bankruptcy court order." It further explained that the purpose of this doctrine was to ensure that the goals of bankruptcy are not derailed by a flood of appeals" by those parties "who do not suffer a direct harm to interests the Bankruptcy Code seeks to protect or regulate." It further stated that the allowance of appeals from parties who have suffered "only an indirect harm or who hold interests outside of the scope of the Bankruptcy Code would defeat the very purpose underlying our person aggrieved standard."
Further References
In re Randy L. Jones, Case 09-11551-MGW (Bankr. M.D. Florida 2013) (Williamson, J), applied the party aggrieved doctrine in a chapter 13 case. In this case, the Court applied the party aggrieved doctrine to avoid the Chapter 13 trustee's objections to an attorney fee settlement as the unsecured creditors were being paid 100%.
A lengthy law review article published in 2010 on the party aggrieved doctrine is available entitled "Non-Pecuniary Interests and the Injudicious Limits of Appellate Standing in Bankruptcy" by S. Todd Brown.
Jordan E. Bublick is a Miami Bankruptcy Lawyer with over 25 years of experience in filing Chapter 13 and Chapter 7 Bankruptcy Cases and Mortgage Modifications (305) 891-4055
Bankruptcy Case This is the bankruptcy case study for JW from Chicago Illinois who is seeking bankruptcy protection. There is no real estate involved in this case. There is no rental situation in this case. The client owns a 2014 Nissan Versa which is financed through Nissan Acceptance Corporation. The vehicle is worth $17,000 and+ Read More
The post Bankruptcy Case Study For J.W. From Chicago, Illinois appeared first on David M. Siegel.
Five of Atlantic City’s 12 casinos could close this year, following Trump Entertainment Resorts’ bankruptcy filing this past Tuesday.
The company owns Trump Plaza, a casino slated to close next week. Trump’s Taj Mahal could follow suit in November if the company cannot receive concessions from union workers.
According to paperwork filed with the U.S. Bankruptcy Court, Trump Entertainment estimates its liabilities range between $100 million and $500 million and assets no greater than $50,000. The company missed last quarter’s tax payment and currently does not have enough revenue to pay lenders this month, as reported by the Washington Post.
In a statement to the New York Times, Fitch Ratings analyst Alex Bumazhny indicates the Taj Mahal closure comes as a surprise: “The property is almost breaking even and will benefit from the closure of Trump Plaza.”
Three casinos have closed since January in lieu of increased competition from neighboring states. On CNBC’s “Closing Bell,” financial researcher Frank Fatini claims new casinos in Pennsylvania and New York state have “taken away…the convenience gambler, the ‘daytripper’”from Atlantic City.
Bloomberg states that higher labor costs and real estate taxes have also hurt Atlantic City’s profits.
The closing of the Taj Mahal could leave 2,800 workers unemployed, raising the year’s total loss in Atlantic City casino jobs to above 8,000.
On Monday, New Jersey governor Chris Christie assembled a meeting of elected officials, casino executive and union leaders to discuss Atlantic City uncertain future.
“A whole bunch [of] people are getting put out of work with nothing else on the horizon,” said state senator and former city mayor James Whelan. “You now have the possibility of five empty buildings on the boardwalk.”
Trump Entertainment has struggled since its 2010 bankruptcy. Billionaire investor Carl Icahn currently holds a $289 million loan, rendering him the company’s largest credited investor.
Donald J. Trump owns a 9 percent stake in the company but has no connection with operations. Trump has a current lawsuit to remove his name from the properties.
The post Trump Casinos Company Files for Bankruptcy appeared first on The Bankruptcy Blog.
Five of Atlantic City’s 12 casinos could close by the end of this year when Trump Casinos Company files for bankruptcy this month.
The company owns Trump Plaza, a casino slated to close next week. Trump’s Taj Mahal could follow suit in November if the company cannot receive concessions from union workers.
According to paperwork filed with the U.S. Bankruptcy Court Tuesday, Trump Entertainment estimates its liabilities range between $100 million and $500 million and assets no greater than $50,000. The company missed last quarter’s tax payment and currently does not have enough revenue to pay lenders this month, as reported by the Washington Post.
In a statement to the New York Times, Fitch Ratings analyst Alex Bumazhny indicates the Taj Mahal closure comes as a surprise: “The property is almost breaking even and will benefit from the closure of Trump Plaza.”
Three casinos have closed since January in lieu of increased competition from neighboring states. On CNBC’s “Closing Bell,” financial researcher Frank Fatini claims new casinos in Pennsylvania and New York state have “taken away…the convenience gambler, the ‘daytripper’”from Atlantic City.
Bloomberg states that higher labor costs and real estate taxes have also hurt Atlantic City’s profits.
The closing of the Taj Mahal could leave 2,800 workers unemployed, raising the year’s total loss in Atlantic City casino jobs to above 8,000.
On Monday, New Jersey governor Chris Christie assembled a meeting of elected officials, casino executive and union leaders to discuss Atlantic City uncertain future.
“A whole bunch [of] people are getting put out of work with nothing else on the horizon,” said state senator and former city mayor James Whelan. “You now have the possibility of five empty buildings on the boardwalk.”
Trump Entertainment has struggled since its 2010 bankruptcy. Billionaire investor Carl Icahn currently holds a $289 million loan, rendering him the company’s largest credited investor.
Donald J. Trump owns a 9 percent stake in the company but has no connection with operations. Trump has a current lawsuit to remove his name from the properties.
The post Trump Casinos Company Files for Bankruptcy appeared first on The Bankruptcy Blog.
Many people who are considering filing bankruptcy are interested in knowing how long the fact that they file bankruptcy will stay on a credit report. The answer is that proof of bankruptcy filing can last up to 10 years on a credit report. However, this fact should not dissuade one from filing for bankruptcy if+ Read More
The post Bankruptcy And Your Credit Report appeared first on David M. Siegel.
Waiting To File Bankruptcy There are so many people that I talk to over the course of a month who contemplate whether to file bankruptcy yet take no action. Many of these people feel that the problem will simply go away. Some people feel that their financial situation is going to somehow change on its+ Read More
The post How Waiting To File Bankruptcy Can Hurt You appeared first on David M. Siegel.
On January 9, 2014, the U.S. Supreme Court delivered its decision in the case of Executive Benefits Insurance Agency v. Arkison (In re: Bellingham Ins. Agency, Inc.) 573 U.S. ___ (2014) in which it held that bankruptcy judges do have the authority under the Constitution in Stern type cases, to submit "findings of fact and conclusions of law" to the district court for its de novo review even though the bankruptcy court is constitutionally barred from entering a final judgment on such a claim that is only "related" to a bankruptcy case. This was a question left unanswered in the Supreme Court's prior decision in Stern v. Marshall. The claim in Stern was a counterclaim for tortious interference that arose under state law.
The Court though left Bellingham unanswered the question the question of whether the Constitution permits bankruptcy judges to, despite its holding, enter a final judgment based on the actual or implied consent of the parties in a Sterm claim. A more lengthly review of the case is available here. Jordan E. Bublick - Miami Bankruptcy Lawyer - Kendall & Aventura Offices - (305) 891-4055 - www.bublicklaw.com
The Bankruptcy Code protects Oregon debtors from utilities disconnecting water, home phone, electricity or gas services. Utility services such as cable television, cell phone services or internet are not considered utilities for this bankruptcy protection because they.
A Portland or Salem utility company simply is not allowed alter, refuse, or discontinue service to an existing customer solely because either (1) the customer filed for bankruptcy protection; or (2) the customer failed to pay a pre-petition debt to the utility.
The protection is, however, limited and within 20 days after the bankruptcy filing, an Oregon debtor may have to give the utility company ” an adequate assurance of future payment,” which usually means ponying up a newsecurity deposit.
The law allows the utility to retain your prior security deposit and apply that deposit to your prior bill. If the debtor does not provide “adequate assurance of future payment” within the 20 day time period, the utility provider may discontinue services.
The takeaway here is that if you are filing bankruptcy and you have a back balance on your current utility account, you can eliminate the balances and not lose services, provided that you do a little foot work after your case is filed.
The original post is titled Oregon Utility Debts and Bankruptcy , and it came from Portland Bankruptcy Attorney | Northwest Debt Relief .
Existing tax law provides that discharged debt, whether after a foreclosure or short sale, is generally taxable income realized in the year the debt was forgiven, unless an exception applies. Generally only reductions in principal and not forgiveness of interest results in discharge of indebtedness income ("DOI"). Usually a lender is required to issue a Form 1099-C to report the DOI to the IRS. Taxpayers are required to disclose DOI to the IRS whether the lender issues a 1099-C or not. Taxpayers may be able to exclude the DOI from income if an exceptions to DOI applies.
Exceptions Expired Statute In December, 2007, Congress passed the "Mortgage Forgiveness Debt Relief Act of 2007" to alleviate tax consequence for some homeowners in foreclosure. This Act excluded from taxable gross income certain cancelled discharged debt that may otherwise arise with respect to a "qualified principal residence indebtedness."
This act was scheduled to expire on December 31, 2012, but was subsequently extended for another year. The act expired on December 31, 2013 and has not yet been extended by Congress.
Remaining ExceptionsTwo existing exceptions to DOI are the insolvency and bankruptcy exceptions. 26 U.S.C. section 108(d). If the borrower is insolvent, DOI is not taxable. If the debt is discharged in bankruptcy, DOI is also not taxable. Another exception is the "purchase price infirmity doctrine". This allows DOI to be excluded from income where the lender agrees to write down the purchase money debt to the true value of the collateral as the purchase price was inflated in the original transaction due to fraud or misrepresentation. Another exception from DOI is when the liability was contested. Pursuant to Zarin v. Comm'r, 916 F.2d 110 (3d Cir.1990), DOI is not income where there is a legitimate basis for the borrower to claim that the debt was never owed or collectible because illegal.
Jordan E. Bublick is a Miami Bankruptcy Lawyer - www.bublicklaw.com
Chapter 13 and chapter 7 bankruptcy are the types of bankruptcy used by individuals to obtain debt relief. Chapter 13 and chapter 7 bankruptcy each provides for different requirements and relief. In general chapter 13 provides for an opportunity to reorganize your debt and chapter 7 provides for an opportunity to just discharge your debt.
Chapter 13 bankruptcy is often used by people with higher incomes and substantial non-exempt property to formulate a chapter 13 plan to reorganize their debt while under the protection of the bankruptcy court. Under a chapter 13 plan, you are able to reorganize your secured debt (such as mortgages and car loans) as wells as unsecured debt (credit cards and personal loans). Often you are only required to back only 10% to 20% of you unsecured debt and discharge the rest. A typical chapter 13 plan is over a period of 3 to 5 years.
Chapter 13 bankruptcy is also used by people who are behind with their mortgages and to save their homes from foreclosure. Under a chapter 13 plan, you are able to take various approaches. You may reinstate your mortgage by catching up-to-date your past due payments over a period of up to 5 years. You may use the bankruptcy court's new loss mitigation mediation ("LMM") program to negotiate with your mortgage company to achieve a modification of your mortgage. Totally underwater second mortgages on residential property may be wholly avoided. Maintenance association liens may be avoided to the extent they are not secured by equity in the real estate.
Chapter 7 bankruptcy is usually used by people with lower income and little non-exempt property. Under chapter 7 unsecured debt, such as credit cards and loans, is discharged, unless it falls within the categories of non-dischargeable debts, such as student loans and some types of taxes.
Jordan E. Bublick is a Miami Bankruptcy Lawyer with over 25 years of experience in filing Chapter 13 and Chapter 7 Bankruptcy Cases and Mortgage Modifications (305) 891-4055
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