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Breakfast with the Bench: Recent Appellate Decisions

Breakfast with the Bench: Recent Appellate Decisions. We will discuss the 8 decisions rendered by the United States Court of Appeals for the Fifth Circuit in the past 6 months.

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Breakfast with the Bench: Recent Appellate Decisions

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  1. Breakfast with the Bench:Recent Appellate Decisions • We will discuss the 8 decisions rendered by the United States Court of Appeals for the Fifth Circuit in the past 6 months. • Although Chief Judge Jones (why is he Chief Judge, anyway) and Judge Isgur will discuss the cases, participation is semi-mandatory • If you have a question or comment, you should interrupt us. • We will take the opinions oldest to newest.

  2. In re Age Refining, 801 F.3d 350 (5th Cir. 2015) This is an appeal of an order approving a 9019 settlement agreement. The Debtor owned an operated a petroleum refinery in San Antonio. The 9019 followed § 363 sales totaling over $47 million. A dispute arose about the allocation of the sales proceeds to the secured creditor, focusing on the value of the secured creditor’s collateral. The issue was whether the Bankruptcy Court properly evaluated the 9019 motion.

  3. Fortune Natural Resources Corp. v. United States, 806 F3d 363 (5th Cir. 2015) This dispute arose out of the ATP Oil and Gas case. Fortune was potentially liable for plugging and abandonment costs of certain offshore wells. The bankruptcy court approved the formation of a decommissioning trust out of certain sales proceeds. Fortune’s offshore wells were not included in the allocation of the decommissioning fund, but Fortune was no worse off with the sale than without the sale. The issue is standing.

  4. In re KSRP, Ltd., 809 F3d 263 (5th Cir. 2015) A well respected attorney was defamed by the debtor’s principal and sued the principal in state court. The case was removed on a theory of possible indemnity by the Debtor to its principal. The bankruptcy court found that the lawyer was defamed, but that there were no damages from the defamanation. $1.00 was awarded. The issue is one of “related to” subject matter jurisdiction.

  5. Allen v. C&H Distributors, 2015 WL 9461591 (5th Cir. Dec. 23, 2015) Chapter 13 debtors filed a personal injury suit for post-petition workplace injuries. Although the injury was post-petition, the plan was modified on several occasions. The debtor failed to make post-petition disclosure of the new claim. The issue is whether judicial estoppel barred the claim.

  6. In re Domistyle, Inc., 2015 WL 9487732 (5th Cir. Dec. 29, 2015). Trustee sought to abandon real estate. Prior to abandonment, the estate had incurred significant expenses maintaining the real estate. The issue was whether a § 506 surcharge could be imposed against the lender.

  7. In re Kreuger, 2016 WL 232014 (5th Cir. Jan. 19, 2016). Debtor filed bankruptcy to avoid state court injunction. While in bankruptcy he repeatedly made false filings, gave false testimony, and intimidated witnesses. Case was dismissed with a 2 year bar against refiling. Issue is whether “cause” can include this kind of conduct or should focus on enumerated cause in the Code.

  8. In re Tusa-Expo Holdings, Inc., 2016 WL 360795 (5th Cir. Jan. 28, 2016). This is a preference suit. The secured creditor was paid proceeds that were derived from the debtor’s accounts receivable. The lender had a first lien on the receivables. The debtor directed payments into a lockbox for the benefit of another creditor. The issue is whether the payment was protected against a preference claim as proceeds of secured collateral.

  9. Banco Popular, North America v. Kanning, 2016 WL 373505 (5th Cir. Jan. 29, 2016). Kanning allegedly pledged his life insurance to Banco to secure payment of his company’s debt. The company filed bankruptcy, and Banco was not fully paid. Kanning died. The widow obtained the allegedly pledged life insurance proceeds and did not pay them to Banco. The widow then filed Chapter 7 and exempted the proceeds. She obtained a discharge. Banco then sued the widow. The issue is whether Banco violated the discharge injunction.

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