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and had bad dreams was inadequate, and it made no difference that the debtor had actual damages. In re Repione, 2008 WL 2801898 (5th Cir. 2008) (n.b. that court let stand awards of $27M for actual damages, $5M for punitives, and $33.7M in attorneys' fees).
The calculation of projected disposable income is not made for those who run to read. See In re Kagenveama, 541 F.3d 868 (9th Cir. 2008) (determine and do the math); In re Lanning, 545 F.3d 1269 (10th Cir. 2008) (begin with current monthly income as adjusted by a substantial change in circumstances--described as the forward looking approach).
For cram down/valuation purposes, an important decision is In re Serda, 2008 WL 4671823 (Bk. E.D. Cal. 2008), which involved the value of a residence. The bankruptcy court rejected the consumer's low appraisal which included sales of bank owned properties (30-50% of market) as comparables because banks did not have the same incentives as an individual owner to market the property and realize the highest price.
Recent chapter 13 cases of interest include:
In re Reinhardt, 2009 WL 1139295 (6th Cir. 2009) (provision preventing modification of mortgage on principal residence which was amended in BAPCPA to include mobile homes did not change requirement that the residence be secured by real property; here, mobile home was personal property under state law); In re Ennis, 558 F.3d343 (4h Cir. 2009) (same).
In re Price, 2009 WL 975796 (4th Cir. 2009) (purchase of car by trade in which include payoff of entire amount of old debt which exceeded the value of the trade created pmsi under NC law; since vehicle was purchased within 910 days of the petition, the entire debt, including gap insurance financed by the creditor, was purchase money debt not subject to modification in chapter 13).
Claims for conspiracy to defraud and aiding and abetting fraud asserted by bondholders holding unsecured notes issued by the debtor against a secured creditor were not property of the estate. Here, plaintiffs alleged that the secured creditor knew that reserve estimates were false and used them to induce the bondholders to purchase or refrain from selling the notes, and such claims asserted direct injury to the bondholders which was independent of any injury to the debtor and sought to hold the secured creditor liable for assisting the debtor which the bondholders relied on to their debtor. The bondholders' claims and those of the debtor were not mutually exclusive, and it was doubtful that the debtor could have asserted prior to the commencement of the case. In re Seven Seas Petroleum, Inc., 522 F.
3d 575 (5th Cir 2008). See also Torch Liquidating Trust v. Stockstill, 51 BCD P 68 (5th Cir. 2008) (claim for inflating value of assets failed to allege injury to debtor; any injury was to creditor).
©2009 Jonathan M. Landers
