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Opinions

The District of New Hampshire offers a database of opinions issued from 1999 to present. For a more detailed search, enter a keyword or case number in the search box above.

Balles v. Sturgill (In re Sturgill), 2008 BNH 013 (granting the Defendants’ motion to dismiss the Plaintiff’s complaint to except her claim from discharge under 11 U.S.C. § 523(a) pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to allege that the Defendants had the intent to deceive the Plaintiff required under section 523(a)(2)(A) and for failure to allege that the Defendants acted in a fiduciary capacity within the meaning of section 523(a)(4); and rejecting the Plaintiff’s argument that the Court expand the existing definition of “fiduciary” under section 523(a)(4)).

In re Cohen, 2008 BNH 012 (finding that the creditor’s secured claim is oversecured under 11 U.S.C. § 506(b) and rejecting the debtor’s equitable subrogation argument because the debtor lacks standing to raise the issue and the alleged subrogee did not pay a debt to the creditor on behalf of the debtor).

In re Pittsfield, 393 B.R. 271 (Bankr. D.N.H. 2008) (granting the United States Trustee’s motion to dismiss the debtor’s chapter 11 case pursuant to 11 U.S.C § 1112(b) because there is “cause” to dismiss or convert the case to a chapter 7 case based on the debtor’s failure to pay post/petition taxes, failure to pay insurance premiums, failure to timely file monthly operating reports, and mounting administrative debt, and there are no contravening unusual circumstances that weigh against dismissal; and finding that dismissal rather than conversion is in the best interests of the creditors and the estate because trade creditors may still want to deal with the debtor and a chapter 7 trustee will not benefit the creditors or the estate but result in additional administrative expenses).

In re Lakeshore Construction Company of Wolfboro, Inc. 390 B.R. 751 (Bankr. D.N.H. 2008) (finding that a creditor with a claim under the terms of an unexpired lease of personal property is entitled to an administrative expense claim under § 365(d)(5) for all expenses which it can show arose after the sixtieth day post-petition but prior to some reasonable time after said creditor obtains relief from the automatic stay to the extent permitted under the underlying lease, and that such an administrative expense must be treated equally and rateably with all other administrative expense claims under § 503(b)(1)).

In re Perrotta, 390 B.R. 26 (Bankr. D.N.H. 2008) (concluding that 11 U.S.C. § 704(b)(2) does not set forth a requirement that the United States Trustee file a statement of presumed abuse prior to filing a motion to dismiss under 11 U.S.C. § 707(b)(1) or (b)(3), where the United States Trustee is not basing such a motion on the presumption of abuse and, for that reason, ruling that the deadline for filing such a motion to dismiss is not the thirty-day deadline set forth in 11 U.S.C. § 704(b)(2) but rather the sixty-day deadline set forth in Interim Bankruptcy Rule 1017(e)).

In re Martin, 413 B.R. 12 (Bankr. D.N.H. 2008) (sustaining the debtor’s objection to a creditor’s proof of claim on the grounds that the debtor is not personally liable for the subject claim because the claim arose in connection with a contract between the creditor and the debtor’s corporation, and the creditor failed to provide sufficient evidence for the Court to pierce the corporate veil under New Hampshire law).

In re Chase, 388 B.R. 462 (Bankr. D.N.H. 2008) (holding that a creditor’s secured lien, created by the New Hampshire Supreme Court under the doctrine of equitable subrogation, may be avoided and treated as a general unsecured claim by a Debtor standing in the shoes of a hypothetical lien creditor under § 544(a)(1) because the state court order creating the lien was never recorded as required by NH RSA 477:3-a and the recorded, but discharged, mortgage to which the creditor was equitably subrogated was insufficient to place a bona fide purchaser on inquiry notice as required by Amoskeag Bank v. Chagnon, 133 N.H. 11 (1990)).

Notinger v. Brown (In re Brown), 2008 BNH 006 (declaring that the individual debtor held a beneficial interest in a vacant parcel of real estate under theories of resulting and constructive trusts and ordering the legal title holder to transfer title to the trustee pursuant to 11 U.S.C. § 542; declaring that the individual debtor did not hold a beneficial interest in the home in which he lived on an adjoining parcel as he did not hold a beneficial interest in this real estate which was held in an express trust; and avoiding as constructively fraudulent under 11 U.S.C. § 544(b) and NH RSA 545/A:4(I)(b) transfers made by the corporate debtor that benefitted the parcels of real estate in which the individual debtor lived and permitting the value of such transfers to be recovered from the individual debtor and the legal title holders of the parcels pursuant to 11 U.S.C. § 550(a)).

In re Newfound Lake Marina, Inc., 2008 BNH 005 (valuing the debtors’ marina property at its fair market value in its highest and best use as a dockominium for purposes of determining a secured creditor’s interest in such property pursuant to 11 U.S.C.§ 506(a)(1) and (b) and adopting a narrow construction of the “equities of the case” language in 11 U.S.C. § 552(b)(1); denying the debtor’s request to borrow certain funds).

Come v. Route 4 Motors, Inc. (In re Come), 2008 BNH 003 (determining that a creditor who was on notice of the automatic stay and who intended the action that violated the stay, in this case the repossession of the debtor’s automobile, committed a willful violation of the stay under § 362(k)(1) and Fleet Mortgage Group, Inc. v. Kaneb (In re Kaneb), 196 F.3d 265 (1st Cir. 1999), even though the creditor erroneously believed that the stay had been lifted).

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