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prepetition payment in settlement of embezzlement allegation stated claim under S 523(a)(4) when settlement payment was recovered by Chapter 7 trustee. "'[T]he import of Section 502(h) is that where a claim is allowable as provided in that section, its status is as a claim in existence on the date of the filing of the petition regardless of when, after the petition, the trustee has taken the necessary action and recovered.' . . . The trustee's action . . . clearly reinstates the claim[.] . . . '[T]he 502(h) claim takes on the characteristics of the original claim[.]' . . . By avoiding [debtor's] repayment to [creditor], the trustee put [creditor] in a position where it was still not fully repaid the total amount of [debtor's] embezzled funds. Under S 502(h), [creditor] therefore returned to the same position it was in before [debtor] made the final repayment. . . . '[T]he claim arising from the avoidance of a transfer under 11 U.S.C. S 502(h) is a claim against the debtor, not just a claim against the estate.'").
S. Enhanced damages and costs
T. Motion for new trial
U. Motions to alter or amend and motions for relief from judgment
V. New Issues or evidence on appeal
W. Default judgments
X. Entry of final judgment
II. LITIGATION OF DISCHARGEABILITY COMPLAINTS: 11 U.S.C. S 523
A. Standard of proof
B. 11 U.S.C. S 523(a)(1)
C. 11 U.S.C. S 523(a)(2)
Ghomeshi v. Sabban (In re Sabban), 384 B.R. 1 (B.A.P. 9th Cir. 2008) (Disgorgement of fees from unlicensed contractor was dischargeable under S 523(a)(2)(A) because state statute required disgorgement without regard to fraud or misrepresentation. Debtor's home improvement business was not licensed as required by California law. Creditor hired debtor based on misrepresentation that debtor was licensed. State court awarded creditor $123,000 pursuant to California Business and Professions Code S 7031(b). "Section 7031 prohibits unlicensed contractors from maintaining
©2009 Keith M. Lundin
