2007 Opinions


	United States Bankruptcy Court District of New Hampshire



	10-25-07 In re Zenus is Jewelry, Inc., 378 B.R. 432 (Bankr. D.N.H 2007) (denying the debtor’s request to pay certain prepetition vendor creditors on the grounds that the Court cannot invoke the Doctrine of Necessity to allow the payments because the vendor creditors are not critical, other vendors willing to sell on a cash on delivery basis are available, and the debtor’s situation is not so “rare” as to warrant the doctrine’s application).

	09-14-07 In re Newfound Lake Marina, Inc., 2007 BNH 035 (disallowing a portion of creditor’s claim on the grounds that it was a capital contribution and not a loan to debtors, and allowing the other portion of the claim because it was a loan creditor obtained and secured with his personal residence on behalf of debtors; the allowed portion of the claim is not recharacterized as equity).

	09-14-07 Mullen v. Kalil (In re Mullen), 2007 BNH 034 (judgment for defendant because, although an attorney-client relationship existed and defendant breached his fiduciary duty by acquiring plaintiff’s leasehold by assignment, there is insufficient evidence that plaintiff suffered damages from the breach and insufficient evidence that defendant’s actions violated the NH Consumer Protection Statute; defendant’s bankruptcy claim is disallowed in full because it is unrelated to plaintiff).

	09-06-07 In re Turner, 376 B.R. 370 (Bankr. D.N.H. 2007) (denying motion to dismiss under 11 U.S.C. § 707(b)(2) because the debtors successfully rebutted the presumption of abuse by demonstrating that excess business mileage constituted special circumstances, notwithstanding the Court's determination that 401k loan repayments are nondeductible expenses in Chapter 7; the debtors are allowed to deduct expenses for four vehicles).

	07-20-07 In re Wyatt, 2007 BNH 026 (granting relief from the stay for the limited purpose of determining the existence and extent of any insurance coverage but declining to rule on the full extent of the trustee's motion for relief to collect insurance proceeds from the debtor's insurer).

	06-07-07 Alvord v. Harris (In re Harris), 2007 BNH 024 (denying, on summary judgment motion, debtor's discharge under 11 U.S.C. § 727(a)(2)(B) and (a)(4)(A), and determining that factual issues preclude granting summary judgment under 11 U.S.C. § 727(a)(3)).

	06-06-07 In re Wunderlich, 369 B.R. 80 (Bankr. D.N.H. 2007) (disallowing the debtor's amended schedules in which he sought to claim New York property exemptions, based on debtor's bad faith in initially claiming exemptions under New Hampshire law).

	05-10-07 In re Wyatt, 369 B.R. 99 (Bankr. D.N.H. 2007) (denying creditor's motions to seal the court's docket and to hold hearings in camera because the movant failed to show justification for such measures under 11 U.S.C. § 107; denying creditor's motion to reconsider disallowance of his claim because the motion to reconsider was untimely, the creditor failed to show cause under 11 U.S.C. § 502(j), and the former conservator's due process rights were not violated; denying creditor's motion to convert case to Chapter 7 because the order confirming the plan has res judicata effect with regard to the debtor's eligibility for Chapter 13 relief).

	05-04-07 Wagner v. Stanko (In re Stanko), 2007 BNH 019 (denying motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) because, at this point in the litigation, the plaintiff's claims arising from a contract between the two parties are viable).

	04-26-07 Rivers Edge Condo. Homeowners Ass’n v. Cohen (In re Cohen), 370 B.R. 26 (Bankr. D.N.H. 2007) (denying summary judgment because neither res judicata nor collateral estoppel give plaintiff's state court default judgment preclusive effect in the bankruptcy court and because material issues of fact are in dispute).

	03-08-07 Netria Corp. v. Graham (In re Graham), 363 B.R. 32 (Bankr. D.N.H. 2007) (granting plaintiff's motion for summary judgment excepting from discharge under 11 U.S.C. § 523(a)(6) unliquidated debt for willful and malicious injury arising from the misappropriation of trade secrets and spoliation of evidence; granting plaintiff's motions to strike three of the debtor/defendant's pleadings pursuant to Fed. R. Civ. P. 12(f); granting plaintiff's motion for relief from the automatic stay pursuant to 11 U.S.C. § 362(d)(1), which will allow the superior court to determine the amount of damages and enter final judgment).

	02-09-07 Smith v. George (In re RCK Modular Homes Systems, Inc.) and Smith v. George (In re Kostandin), 363 B.R. 29 (Bankr. D.N.H. 2007) (plaintiff/trustee's complaints survive defendants' motions to dismiss because (1) at least at this point, the trustee appears to have standing to pursue malpractice and fraud claims, (2) the trustee has pled sufficient facts to allege fraudulent transfer based on a constructive fraud theory, and (3) there are no grounds to dismiss the count for breach of contract).

	02-07-07 Flanagan v. Howard (In re Howard), 361 B.R. 20 (Bankr. D.N.H. 2007) (judgment for the debtor/defendant because plaintiff failed to prove any of her 11 U.S.C. §§ 523 (seeking to except certain debts from discharge) and 727 (seeking to deny discharge altogether) claims by a preponderance of the evidence).

	02-01-07 AmeriCERT, Inc. v. Straight Through Processing, Inc. (In re AmeriCERT, Inc.), 360 B.R. 398 (Bankr. D.N.H. 2007) (dismissing Chapter 11 bankruptcy case and adversary proceeding for cause pursuant to section 1112(b) after concluding that case was not filed in good faith and for no reorganizational purpose).

	01-25-07 Moran v. Wunderlich (In re Wunderlich), 2007 BNH 008 (granting plaintiff's motion for summary judgment (and thus denying the debtor/defendant a Chapter 7 discharge) on Count I pursuant to 11 U.S.C. § 727(a)(2)(A) because of debtor/defendant's concealment of his receipt of mortgage proceeds, and denying summary judgment on Counts III and VI, brought pursuant to §§ 727(a)(3) and (a)(5), respectively).

	01-25-07 In re R & R Associates of Hampton, 2007 BNH 007 (allowing the requested fees of expert/accountant retained by special counsel).

	01-25-07 In re R & R Associates of Hampton, 2007 BNH 006 (reducing in amount and allowing fees of trustee's counsel).

	01-24-07 In re Whispering Pines Estate, Inc., 2007 BNH 005 (denying stay pending appeal because debtor/movant is not entitled to stay as a matter of right upon the filing of a supersedeas bond, and finding that debtor/movant does not have a likelihood of success on the merits of its appeal).

	01-05-07 In re Kostandin, 2007 BNH 001 (denying original motions for contempt against debtor's spouse and counsel because issues raised by them were not frivolous, but granting in part renewed motions for contempt for failure to comply with court order; spouse and counsel jointly liable for unnecessarily incurred legal costs of $500).

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