United States Bankruptcy Court
District of New Hampshire

11-28-07           Notinger v. Brown (In re Simply Media, Inc.), 2007 BNH 043 (setting forth the procedural requirements under FRCP 38 and the substantive requirements under the Seventh Amendment and Supreme Court precedent regarding a party’s right to a jury trial in bankruptcy on claims for fraudulent transfer, constructive trust, turnover, unjust enrichment, civil conspiracy, abuse of process, tortious interference, breach of fiduciary duty, and unfair and deceptive business practices).

11-21-07           In re Perrotta, 378 B.R. 434 (Bankr. D.N.H. 2007) (denying the United States Trustee’s motion to dismiss the debtor’s case under 11 U.S.C. § 707(b)(1) and (2) as the United States Trustee had not satisfied the requirements of 11 U.S.C. § 704(b)(1)(A) because she did not file a statement within ten days after the date of the first meeting of creditors indicating that the debtor’s case would be presumed to be an abuse under 11 U.S.C. § 707 but rather filed a statement within that time frame indicating only that she was unable to determine whether the debtor’s case would be presumed to be an abuse; permitting the United States Trustee to proceed with her motion to dismiss the debtor’s case under 11 U.S.C. § 707(b)(3) based on the totality of the circumstances).
 

11-21-07           In re Gagne, 378 B.R. 439 (Bankr. D.N.H. 2007) (overruling the debtor’s objection to the mortgagee’s claim on the grounds that only 11 U.S.C. § 1322(e), and not 11 U.S.C. § 506(b), determines the amount a debtor must pay to cure an arrearage through a chapter 13 plan and concluding that under NH state law and the terms of the debtor’s mortgage the attorney’s fees and costs requested by the mortgagee in this case were reasonable and must be paid through the debtor’s plan).

11-07-07           In re Perrotta, 378 B.R. 27 (Bankr. D.N.H. 2007) (denying the United States Trustee’s motion for a Rule 2004 exam because the very short time limits under 11 U.S.C. § 704(b) to make a determination as to whether a debtor’s case should be presumed to be an abuse and then to file a motion seeking dismissal under 11 U.S.C. § 707(b)(2) can only lead to the conclusion that Congress intended the trustee to file a motion to dismiss first and investigate beyond the documents submitted by the debtor later).

11-06-07           In re Packer, 2007 BNH 039 (sustaining an objection to confirmation of the debtors’ chapter 13 plan on the grounds that the plan impermissibly attempted to designate where the IRS should apply the debtors’ income tax overpayment because (1) preconfirmation the IRS had already exercised its discretion under 26 U.S.C. § 6402(a) to apply the overpayment to a prepetition tax obligation as permitted by 11 U.S.C. § 362(b)(26) and 553, and (2) declining to exercise any discretion the Court might have under 11 U.S.C. § 105(a) to permit the debtors to setoff, via a provision in their chapter 13 plan, any prepetition tax overpayment against outstanding prepetition tax liabilities of the debtors’ choice).

10-05-07         In re Haseltine, 2007 BNH 037 (overruling the chapter 13 trustee’s objection to the debtors’ claim of homestead exemption under NH RSA 480:1 in a separate parcel of real estate, which abuts the parcel of real estate upon which the debtors’ residence is located, because the abutting parcel is actually and conveniently used by the debtors as part of their homestead as they have constructed a barn on it in which they keep two horses).

09-18-07           In re Ries, 377 B.R. 777 (Bankr. D.N.H. 2007) (holding that (1) a debtor may use the special circumstances exception of § 707(b)(2)(B) to alter their CMI and/or expenses when determining “disposable income” for purposes of § 1325(b)(2), as determined under § 707(b)(2)(A), only if the circumstance in question existed prior to the petition date; (2) the term “projected” in § 1325(b)(1) is forward-looking and in modifying the term “disposable income,” as defined in § 1325(b)(2), necessarily includes both components of “disposable income,” CMI and reasonably necessary expenses; and (3) an above-median debtor’s “projected disposable income” is presumed to equal “disposable income” computed in accordance with §§ 1325(b)(2) and (b)(3), subject to rebuttal and adjustment to take into account the debtor’s anticipated income and expenses during the plan commitment period.).

09-07-07           In re Jones, 374 B.R. 469 (Bankr. D.N.H. 2007) (overruling the chapter 13 trustee’s objection to confirmation of the debtor’s plan under 11 U.S.C. § 1325(b), despite the “above median” debtor failing to pay all of his projected disposable income during each month of the plan, because the debtor’s plan provided for payment of all allowed unsecured claims in full as permitted by 11 U.S.C. § 1325(b)(1)(A)).

08-30-07           Notinger v. Costa (In re Robotic Vision Sys., Inc.), 374 B.R. 36 (Bankr. D.N.H. 2007) (denying in substantial part under FRCP 12(b)(6) the defendants’ motions to dismiss the trustee’s claims for breaches of an officer’s and several directors’ fiduciary duties because the trustee’s complaint set forth a plausible basis for relief and the defenses under the Delaware business judgment rule and the exculpatory provision in the debtor's corporate charter were not established with certitude).
 

08-20-07           In re Dubravsky, 374 B.R. 467 (Bankr. D.N.H. 2007) (overruling the trustee’s objection to the debtor’s claim of homestead exemption under NH RSA 480:1 even though the debtor no longer lived in her former residence in Maine and had not for more than two years because the debtor’s absence, although permanent, was the result of a divorce decree, which incorporated a stipulation between the spouses, that required the debtor to surrender her interest in the residence in return for a one-half interest in the net sale proceeds upon sale of the residence under the terms of the decree).

08-17-07           LaCarubba v. Mooney (In re Mooney), 2007 BNH 029 (plaintiff failed to prove, by a preponderance of the evidence, that (1) the defendant/debtor’s obligation to the plaintiff should be excepted from discharge under §§ 523(a)(4) or (a)(6); and (2) the defendant/debtor should be denied a discharge under §§ 727(a)(4)(A) or (a)(7)).

08-09-07           In re Stevens, 374 B.R. 31 (Bankr. D.N.H. 2007) (a debtor’s statutory right under NH RSA 80:89 to repurchase real property after the recording of a tax deed to a town is a property interest which becomes property of the estate so long as the debtor files a bankruptcy petition before the right to repurchase expires;  notwithstanding applicable state law, a chapter 13 debtor may pay the repurchase price for their principal residence over the term of a confirmed chapter 13 plan).

07-27-07           Official Committee of Unsecured Creditors v. Foss (In re Felt Mfg. Co., Inc.), 371 B.R. 589 (Bankr. D.N.H. 2007) (ruling on various motions to dismiss filed by fourteen defendants, who are former officers and directors of the debtor, a shareholder and brother of an officer and a director, a spouse of a director, and various trusts and other legal entities owned or controlled by one or more of the individual defendants, under the standard recently articulated by the United States Supreme Court in Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955 (2007), and concluding that the complaint stated claims for breach of fiduciary duty as the in pari delicto defense was not a bar to such claims, aiding and abetting breach of fiduciary duty, waste of corporate assets, unjust enrichment, declaration of illegal dividends under NH RSA 293-A:6.40 and 8.33, equitable subordination under 11 U.S.C. § 510, recharacterization, avoidance and recovery of fraudulent transfers under 11 U.S.C. §§ 544, 548 and 550 and NH RSA 545-A:4 and 5, and avoidance and recovery of preferential transfers under 11 U.S.C. §§ 547 and 550, as to some or all of the defendants with respect to some or all of the creditors committee’s claims, but the complaint did not state a claim for deepening insolvency).

06-14-07           In re Stickney 370 B.R. 31 (Bankr. D.N.H. 2007) (finding that a chapter 7 trustee has standing to file a motion to vacate an order approving a debtor’s application for waiver of the chapter 7 filing fee, denying the debtor’s application to waive chapter 7 filing fee under 28 U.S.C. § 1930(f)(1) and setting out the 2-part Waiver Test to be used by the Court when determining whether or not to grant a debtor’s fee waiver application.)

05-18-07           Comtois v. MAK Investments, LLC (In re Comtois), 2007 BNH 022 (finding that the defendant’s violations of NH RSA 358-K, NH RSA 399-B and it’s failure to accurately disclose to the debtors the nature of the form of the security for a prepetition loan were all violations of the New Hampshire Consumer Protection Act, NH RSA 358-A, and awarding statutory damages)

05-18-07           Notinger v. Brown (In re Brown), 2007 BNH 021 (denying the debtor a discharge under 11 U.S.C. § 727(a)(3) and (a)(7) because, without justification, the debtor failed to maintain records for himself and for a corporate insider from which their financial condition or business transactions might be ascertained).

02-16-07           Comtois et al. v. MAK Investments, LLC (In re Comtois), 363 B.R. 336 (Bankr. D.N.H. 2007) (granting a motion for partial summary judgment where: (1) the creditor violated NH RSA 358-K by failing to properly state the rate of interest and the method of calculating interest in a closed end consumer loan, and (2) the creditor violated NH RSA 399-B by failing to properly disclose the total cost of interest at the inception of a closed end consumer loan; and denying summary judgment (3) on damages and/or the remedy for violations of NH RSA 358-K and 399-B because the statutes do not provide an express civil remedy and the available remedies would be considered at the trial on the claims for violation of NH RSA 358-A, and (4) on a claim of violation of NH RSA 398-A requiring a person who deals in second mortgage loans to be licensed because under the undisputed facts of the case, the execution and delivery into escrow of a warranty deed without conditions together with the execution of a loan and escrow agreement did not constitute a mortgage under NH RSA 479:1)

02-12-07           In re Hartwick, 359 B.R. 16 (Bankr. D.N.H. 2007) (finding that under § 707(b)(2)(A)(iii) an above median debtor who is required to complete the expense portion of the means test form (Form B22A) may deduct all payments on all secured debts that are scheduled as contractually due on the petition date regardless of whether the debtor later surrenders the property or reaffirms the debt and retains the property)

02-01-07           Teasck v. Gilbert (In re Gilbert), 2007 BNH 011 (granting summary judgment to the debtor/defendant on the plaintiffs’ complaint under 11 U.S.C. § 523(a)(2)(A), (a)(4), and (a)(6) because the undisputed material facts in the summary judgment record did not support piercing the veil of an LLC of which the debtor/defendant was the sole and managing member).

01-29-07           Baroody v. Baroody (In re Baroody), 2007 BNH 009 (granting judgment for the plaintiff because the obligation to pay the legal fees under a divorce decree was in the nature of alimony, maintenance, or support and therefore nondischargeable under § 523(a)(5))

01-16-07           Cunha v. Ablitt & Caruolo, P.C. (In re Cunha) 2007 BNH 003 (finding in favor of the defendant that postponement of a foreclosure sale (1) prior to confirmation of the debtor’s chapter 13 plan, (2) while a motion to dismiss or a motion for relief is pending, is an action to maintain the status quo and is not a violation of the automatic stay under § 362(a)(1) because defendant has a reasonable expectation that it may obtain relief from the stay.)

01-16-07           Michaud v. Ablitt & Caruolo, P.C. (In re Michaud), 2007 BNH 002 (finding in favor of the plaintiff that postponement of a foreclosure sale (1) after confirmation of the debtor’s chapter 13 plan, (2) when the debtor is current on post-petition payments, and (3) in the absence of a pending motion for relief, cannot be considered maintaining the status quo and is a violation of the automatic stay under § 362(a)(1).)

US Bankruptcy Court
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Manchester, NH 03101
(603) 222-2600
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