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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.

Pysz v. Hawkins (In re Pysz), 2008 BNH 004 (granting summary judgment in favor of the plaintiffs in their preference avoidance action and avoiding the defendant’s judicial lien pursuant to 11 U.S.C.§ 547(b) because there is no genuine issue that the debtor was insolvent and would receive more with the judicial lien than without the lien in a Chapter 7 case, in accordance with 11 U.S.C.§ 547(b)(3) and (5)).

In re O’Neil, 2008 BNH 002 (denying the debtor’s motion to convert from Chapter 7 to Chapter 13 because the debtor’s unsecured debt exceeds the limit set forth in 11 U.S.C. § 109(e), and finding that the debtor’s postpetition conduct does not amount to bad faith as discussed in Marrama v. Citizens Bank of Massachusetts, 127 S.Ct. 1105 (2007)).

In re Pageau, 383 B.R. 221 (Bankr. D.N.H. 2008) (concluding the debtor did not rebut the presumption of abuse under 11 U.S.C. § 707(b)(2)(B) as she failed to establish any special circumstances that would warrant the inclusion of the debtor’s monthly student loan obligation on Form B22A, the means test form, as an additional expense for which there is no reasonable alternative).

Askenaizer v. Seacoast Redimix Concrete, LLC (In re Charwill Construction, Inc.), 2007 BNH 045 (granting summary judgment in favor of the defendant/subcontractor pursuant to 11 U.S.C. § 547(c)(1) because the defendant’s release of lien rights against the project owner in a bonded, public construction project, in exchange for certain payments, constituted contemporaneously exchanged “new value” to the debtor and thus, the payments cannot be avoided under 11 U.S.C.§ 547(b)).

Flash Island, Inc. v. Whispering Pines Estate, Inc. (In re Whispering Pines Estate, Inc.), 2007 BNH 044 (deferring the Court’s final ruling on the creditor’s motion for relief pending the debtor’s Chapter 11 confirmation hearing, but finding that there is no equity in the subject real property and that the creditor’s secured status is impaired under the plan).

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).

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).

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).

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). 

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).

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