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procedural rules and potentially granted relief not permitted by the Bankruptcy Code,71 the court "clarified" that the "additional collateral" only secured the post-petition deductibles, and furhter "clarified" that the remaining unpaid amounts were unsecured claims. The Ninth Circuit affirmed, noting that the use of the catch-all provision of Rule 60(b)(6) was justified based on the exceptional circumstances -- assumption of the policy violated section 365, the provider failed to disclose the outstanding pre-petition deductibles, the committees were unable to object to the initial motion, and the parties could not have known the full effect of the assumption order until the provider's first request for reimbursement, more than two years after the order. Because the circumstances were exceptional, the Ninth Circuit affirmed the bankruptcy court's "clarification."
* Goat Island South Condominium Association, Inc. v. IDC Clambakes, Inc.,
382 B.R. 178 (D.R.I. Feb. 2008) (Smith, J.) Query: What exactly is a sua sponte summary judgment? The district court wrestled with this same issue. The bankruptcy court below had entered an order granting, in part, a motion for which the record indicated had never been made. In vacating the bankruptcy court's order, the district court remanded with the instruction that the bankruptcy court ensure "that any summary judgment be made only after notice is provided to, and briefing is received from, all parties." In other words, do not grant an motion that was never filed.
* Krys v. Official Comm. Of Unsecured Creditors of Refco Inc. (In re SphinX, Ltd.), 371 B.R. 10 (S.D.N.Y. July 2007) (Sweet, J.)
The bankruptcy court properly recognized proceedings in the Cayman Islands as "foreign non-main" proceedings. Noting the lack of case law on Chapter 15 to date, the district court agreed with the bankruptcy court's reliance on the European Court of Justice's fairly recent Eurofood case.72 The district court, therefore, affirmed the bankruptcy court's flexible and pragmatic resolution: The court found that the Cayman Islands was not the debtor's COMI, but, because no parties objected to recognition of the foreign proceeding, the court recognized the Cayman Island liquidation proceeding as a non-main proceeding.
71 The Ninth Circuit noted that the insurance policy was non-executory because the debtor's default under the policy would not have excused the insurance provider from its obligations to cover claims under the policy.
72
Bondi v. Bank of America, N.A. (In re Eurofood IFSC Ltd.), Case 341/04, 2006 WL 1142304 (E.C.J. May 2, 2006) (identifying the debtor's COMI based on objective criteria as well as what information is ascertainable to third parties).
