2004 Opinions


United States Bankruptcy Court District of New Hampshire



		11-15-04 Kiernan v. LeClair (In re LeClair), 2004 BNH 023 (denying the Plaintiffs' nondischargeability complaint under § 523(a)(2)(A) and (a)(6), § 727(a)(2)(A), (a)(3), (a)(4) holding that (1) the Plaintiffs are estopped from alleging that the Defendant's representation was false; (2) the Plaintiff failed to show that the Defendant intended to cause harm to the personal property of the Plaintiffs or converted the Defendant's property; (3) the creation of an LLC over a year before the adverse judgment in the superior court was not sufficient to show the Defendant's requisite intent to hinder, delay or defraud the Plaintiffs; (4) based on the Defendant's education, occupation and sophistication or lack thereof, the records are adequate; (5) there is no evidence that the Defendant knowingly and fraudulently did not list all of his property in his bankruptcy schedules; (6) Plaintiff's attorney is awarded fees in the amount of $1,000 in connection with his motion to compel and his motion for contempt concerning discovery matters.

		11-2-04 McAdam v. Lorden (In re McAdam), 2004 BNH 022 (granting the Defendant's motion to dismiss the Plaintiff's complaint for damages for violation of the automatic stay finding that under New Hampshire law, the Debtor did not retain any interest in her residence by reason of her continued occupancy of the premises protected by the automatic stay after the foreclosure sale was completed and that the foreclosed property's purchaser's attempt to remove the Debtor from the foreclosed property did not violate the automatic stay).

		8-16-04 St. Onge v. Zuccola (In re St. Onge), 317 B.R. 39 (Bankr. D.N.H. 2004)(granting the Defendant’s motion to dismiss all seven counts of the Plaintiffs’ complaints seeking for equitable and other relief to Debtors and to determine the extent of the indebtedness owed to the Defendant, holding that (1) the cause of action under the Truth in Lending Act is time barred; (2) the Plaintiffs effectively waived their homestead right; (3) the Plaintiffs do not allege sufficient facts to support their claims of defective notice, breach of contract, ambiguous contract term, equitable defense of latches, unjust enrichment).

		7-22-04 Desmond v. U.S. Asset Funding, LP (In re Desmond), 361 B.R. 593 (Bankr. D.N.H. 2004)(dissolving the injunctive relief concerning assets of non-debtor limited liability company, of which the Debtor is the sole member, because the Debtor treated the limited liability company as a separate entity not advising the Court of its actions or seeking any approval from this Court, further distinguishing the case from the reasoning of In re Albright, 291 B.R. 538 (Bankr. D. Colo. 2003); and concluding that the injunctive relief against the Debtor shall continue and that to the extent that the Rhode Island temporary restraining order extends to the Debtor, it violates the automatic stay; therefore, it is void).

		7-12-04 Banknorth, N.A. v. Vrusho (In re Vrusho), 361 B.R. 589 (Bankr. D.N.H. 2004) (granting the Defendant’s motion to dismiss abstaining from hearing the Plaintiff’s claims pursuant to the Court’s discretionary abstention power under 28 U.S.C. § 1334(c)(1) because the proceeding involved only issues of state law, federal jurisdiction not available without the bankruptcy case, the adjudication of the Plaintiff’s claim would not benefit either the creditors or the estate, and granting the Plaintiff relief from the automatic stay to the extent necessary for the Plaintiff to pursue its claims in another forum).

	5-13-04 D’Abre v. Dyke (In re Dyke), 2004 BNH 014 (denying the Defendant's motion for reconsideration pursuant to Fed. R. Civ. P. 95(e) since the Defendant has failed to present newly discovered evidence and has failed to establish that the Court made a manifest error of law or fact in rendering its previous decision).

	5-13-04 Gras v. Danube International, Ltd. (In re Global Environmental Solutions, Ltd.), 2004 BNH 013 (finding that (1) Plaintiff has met his burden in showing continuity of enterprise, as outlined Kleen Laundry & Dry Cleaning Services, Inc. v. Total Waste Management, Inc., 867 F.Supp.1136 (D.N.H. 1994), such that the Defendant should be responsible for the debts of its predecessor; (2) Plaintiff did not provide sufficient evidence to show that the Debtor received less than reasonably equivalent value and that the transferee was an insider under N.H. RSA 545-A:4.; (3) Plaintiff failed to provide evidence of its superior rights as a lien creditor and evidence of post-petition transfer; (4) any damage will be allowed for the Plaintiff because the two individual Defendants did not mistreat the Plaintiff, and the Plaintiff provided no evidence of damage.

	4-22-04 D’Abre v. Dyke (In re Dyke), 2004 BNH 010 (granting the Plaintiff's nondischageability complaint under § 523(a)(15) because the Debtor has the ability to indemnify the Plaintiff, and the discharge of the Debtor's obligation to the Plaintiff creates a hardship to the Plaintiff that outweighs the benefits of a discharge to the Debtor).

		3-26-04 Weaver v. Weston (In re Weston), 307 B.R. 340 (Bankr. D.N.H. 2004)(plaintiff’s motion for summary judgment under § 523(a)(4) is granted in part and denied in part, finding that: (1) all elements of collateral estoppel are met to the extent that the defendant was acting in a fiduciary capacity because ERISA creates fiduciary duties sufficient to create a technical trust required under § 523(a)(4) and that collateral estoppel also applies to pro se litigants; and (2) mere negligence is not sufficient to constitute a defalcation under the standard of In re Baylis, 313 F.3d 9 (1st Cir. 2002)).

		1-15-04 LaChance v. Carne (In re Carne), 2004 BNH 003 (denying the plaintiff's nondischargeability complaint because the plaintiff did not meet its burden of proof under section 523(a)(4) and (a)(6)).

		1-9-04 UmbrellaBank v. Michel (In re Michel), 304 B.R. 33 (Bankr. D.N.H. 2004) (denying UmbrellaBank’s nondischargeability complaints because Defendant lacks a requisite “scienter” under 11 U.S.C. §523(a)(2)(A); Plaintiff did not create an agency relationship with Defendant in administering a loan secured by stock as required by 11 U.S.C. § 523(a)(4); the transaction in question did not fit the elements of embezzlement; Plaintiff’s failure to take reasonable steps to protect its collateral prevents application of the willful and malicious exception under 11 U.S.C. § 523(a)(6); and Plaintiff failed to prove Defendant’s intention to cause the harm to Plaintiff or property of Plaintiff).

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