2005 Opinions


	United States Bankruptcy Court District of New Hampshire



		12-12-05 In re Universal Golf Construction Corp., 2005 BNH 040 (denying Movant’s motion to alter or amend judgment under Fed. R. Bankr. P. 9023 for failure to either present newly discovered evidence or establish a manifest error of law or fact).

		11-29-05 Wrenn Assocs., Inc. v. Hexaport Int’l Ltd. (In re Wrenn Assocs., Inc.), 2005 BNH 038 (granting plaintiff’s motion for summary judgment and disallowing the creditor’s claim because (1) it was not timely filed under FRBP 3003(c)(3); (2) no basis existed for extending the time to file the claim under FRBP 9006(b)(1) on the grounds that there was “excusable neglect” as defined in Pioneer Inv. Servs. v. Brunswick Assocs. L.P., 507 U.S. 382 (1993); and (3) pursuant to FRBP 3003(c)(2) creditors in chapter 11 who file untimely claims are not entitled to be treated as creditors for purposes of voting and distribution).

		11-14-05 Plamondon v. Debt Set Inc.,(In re Plamondon) 2005 BNH 035 (granting plaintiff’s motion to reconsider based on a manifest error of law because the Court’s original order mistakenly equated the opportunity to bring a common law fraud claim under state law with a constructive fraud claim pursuant to 11 U.S.C. § 548(a)(1)(B)).

		11-02-05 River Valley Fitness One, L.P, 2005 BNH 034 (sustaining the debtor's objection to an administrative claim and finding subcontractor liable to the Debtor for damages for breach of a post-petition contract and breach of implied warranty of workmanship pursuant to New Hampshire law).

		10-19-05 In re Skorich, 332 B.R. 77 (Bankr. D.N.H. 2005 (analyzing the impact of a final postpetition divorce decree on the rights of chapter 7 trustee and the bankruptcy estate in light of Davis v. Cox, 356 F.3d 76 (1st Cir. 2004), and lifting the automatic stay so that the former non-debtor spouse could take any necessary action to enforce the final postpetition divorce decree with respect to property that the bankruptcy court indicated was not subject to administration by the chapter 7 trustee because such property was either exempt or not subject to the claims of the chapter 7 trustee as a hypothetical lien creditor under 11 U.S.C. § 544(a)(1)).

		08-12-05 United States Trustee v. Jarvis (In re Jarvis), 2005 BNH 027 (denying the plaintiffs’ motions seeking summary judgment under 11 U.S.C. §§ 523(a)(2)(A), 523(a)(6), and 727(a)(4) because genuine issues existed regarding the debtor’s intent).

		07-07-05 Francis v. Eaton (In Eaton), 2005 BNH 023 Even though the deadline to file an objection to the dischargeability of a debt in Bankruptcy Rule 4007 is not jurisdictional, the bankruptcy court does not have unlimited discretion to apply equitable principles to extend deadline to object to dischargeability. Discretion rooted in the general equitable powers granted by the Bankruptcy Code does not trump the express limitations on the exercise of that discretion by the language in Bankruptcy Rules 9006(b)(3) and 4007(c).

		07-07-05 Wrenn Associates., Inc. v. John J. Paonessa Co., Inc. (In re Wrenn), 2005 BNH 022, Court denied plaintiff’s Motion for Summary Judgement on defendant’s counterclaim because the counterclaim stated a claim on which relief could be granted. The issue of whether the nature of a personal relationship rises to the level of a confidential relationship sufficient to impose a constructive trust is a question of fact for trial. The nature of relationship, as opposed to the definition of relationship (i.e. business or personal) controls the outcome. The imposition of a constructive trust is not precluded simply because the parties have a business relationship., nor is it compelled simply because the parties have a personal or family relationship.

		6-30-05 In re Ouellette, 2005 BNH 020 (June 30, 2005Debtor’s Motion to Confirm Trustee’s Abandonment of Real Property requested the Court to confirm that a parcel of real estate was properly abandoned by the chapter 7 trustee. The motion did not present any legal or factual dispute for the Court to decide. The Court found the Motion to be a request for an advisory opinion in nature of a “comfort order” for the benefit of a title insurance underwriter. Since the Court is not empowered to render advisory opinions, and may only consider actual cases or controversies, the Court declined the invitation to dabble in title insurance business and denied the motion.

		06-03-05 In re Robotic Vision Systems, Inc. 2005 BNH 019 (June 3, 2005). In reviewing hourly rates and expenses in interim fee application of debtor counsel in chapter 11 case, under 11 U.S.C. sec. 330(a)(3)(E) Court would consider customary compensation charged by comparably skilled practitioners outside of New Hampshire. When objecting to expense request, objecting party must present evidence that expenses were unreasonable, unnecessary or not expended as part of representing Debtor. The fact that a category or type of expense may enjoy wide spread acceptance among comparable professionals informs, but does not control the Court's final decision on reasonableness of expenses.

		06-01-05 In re Gagnon, 2005 BNH 017 (Court held debtor may apply state wildcard exemption to multiple pieces of property. In connection with a motion to avoid an attachment lien under 11 U.S.C. 522(f)(2)(A), the Court examined issues involved in weighing conflicting testimony on value from the owner of the property and an expert appraiser where neither witness was able to testify directly to the valuation issue before the court The Court resolved the valuation testimony by applying a weighted average analysis of the credible testimony presented).

		05-27-05 Notinger v. Lemery Dev., LLC In re Lemery, 2005 BNH 016 (denying motion to consolidate adversary proceedings pursuant to Fed. R. Civ. P. 42(a) and United States District Court Local Rule 42.1(a) and (d) because the cases involve different parties and one case involves an alleged fraudulent transfer while the other involves transactions that transpired after the transfer took place).

		05-24-05 In re Brownell, 2005 BNH 015 (Outlining requirements for relief by affidavit under Local Rule 9071-1)

		4-15-05 In re Smith, 325 B.R. 498 (Bankr. D.N.H. 2005) (Chapter 13 eligibility under 11 U.S.C. 109(e) begins with debtor’s schedules however when it appears debtor did not exercise reasonable diligence or good faith in completing and filing schedules, the Court may look to other evidence, including postpetition events to determine eligibility).

		4-14-05 Cohen Steel Supply, Inc. v. Fagnant In re Fagnant, 2005 BNH 007 (denying discharge under §707(a)(3) because, following the reasoning of In re: Schifano, 378 F.3d 60, 66 (1st Cir. 2004), the Debtor failed to keep adequate records prior to filing and was unable to justify this failure).

		04-06-05 In re Hand, 323 B.R. 14 (Bankr. D.N.H. 2005) (Dismissing case under 707(b) after applying the totality of the circumstances test in First USA v. Lamanna (In re Lamanna), 153 F.3d 1 (1st Cir. 1988).

		04-01-05 In re Myers, 323 B.R. 11 (Bankr D.N.H. 2005) (Over-ruling objection to homestead exemption in a duplex where the Debtors and a parent were living together as a family unit and no portion of the Property was used for the generation of rental income).

		03-28-05 Ready Productions, Inc. v. Jarvis (In re Jarvis), 2005 BNH 006 (granting Plaintiff’s motion for summary judgment and denying Debtor’s cross-motion for summary judgment, because under either the Countryman (material breach) test or the functional analysis test, the presence of a passive non-disparagement clause in a prepetition settlement agreement where substantial performance had occurred, did not render the agreement executory and subject to rejection under 11 U.S.C. § 365).

		03-04-05 In re Robotic Vision Systems, Inc., 322 B.R. 502 (Bankr. D.N.H. 2005) (determining that a bona fide dispute under 363(f) depends on case-by-case consideration of (i) procedural posture (ii) need to expedite the sale and (iii) nature of basis for determining dispute exists. Pleading party must articulate an objective basis sufficient under the facts for court to determine that a bona fide dispute exists.)

		1-14-05 Lyons Hollis Assocs., Inc. v. New Tech Partners, Inc. In re New Technology Partners, Inc., 2005 BNH 001 (denying motion to partially vacate arbitrator’s award under the standard set forth in Advest, Inc. v. McCarthy, 914 F.2D 6 (1st Cir. 1985), because the Movant failed to show the award was “in manifest disregard of the law”).

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