ATexasBankruptcyLawyersBlog

Second Circuit Says Student Obligation Was Not Excepted From Discharge

07/21/21

Congress has made it very difficult to discharge a student loan. However, as illustrated by a recent decision from the Second Circuit, not all obligations owed by students in connection with their schooling are excepted from discharge. Homaidan v. Sallie Mae, Inc., 2021 U.S. App. LEXIS 20934 (2nd Cir. 7/15/21).

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Change in Trial Location Renders Non-Party Deposition Admissible

07/15/21

Depositions serve two important functions in pre-trial procedure. First, they can be used to discover what a witness or party will say and tie down the witness’s story. Second, they can be used to create testimony which can be used at trial. However, the ability to use a non-party deposition at trial differs between Texas state and federal courts, a distinction which can be important into an attorney’s trial preparation.

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Lessons from Lockdown

06/22/21

Do you remember where you were when you learned that Covid was going to change your life? I was sitting in my office. A week or so before, the Mayor cancelled the South by Southwest Festival and everyone thought he had lost his mind. Then out of the blue came the news that we would have to close the office starting the following Monday. That was in mid-March 2020.

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Maryland Bankruptcy Court Opinion Shows Difficulty of Applying Arbitration in Bankruptcy Setting

06/10/21

Bankruptcy and arbitration are both intended to provide a quick and relatively efficient resolution to disputes between a debtor and his creditors. Both allow adjudication without a jury. Both systems should be able to move more swiftly than a court of general jurisdiction because there are no competing priorities, such as in criminal cases subject to the requirement of a speedy trial.

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Self-Insured Retention Poses Problem for Discrimination Plaintiff

05/26/21

 The intersection between bankruptcy and personal injury tort claims can be a difficult one, as shown by a new opinion from Judge Marvin Isgur in Case No. 20-33900, In re Tailored Brands, Inc. (Bankr. S.D. Tex. 5/20/21). The opinion can be found here.

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NRA Decision Illustrates Vitality of Good Faith Doctrine

05/17/21

When the National Rifle Association filed for bankruptcy in Texas, some pundits speculated that the gun advocates might have been seeking a firearm friendly forum. However, on May 11, 2021, Judge Harlin "Cooter" Hale dismissed the case based on lack of good faith. In re National Rifle Association of America and Sea Girt, LLC, No. 21-30085 (Bankr. N.D. Tex. May 11, 2021). You can find the opinion here.

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The Consent Trap

03/03/21

A new decision from the Fifth Circuit holds that implied consent cannot overcome a formal denial of consent to entry of a final judgment by a magistrate judge, even when the objecting party expressly consented.  PNC Bank v. Ruiz, Case No. 20-50255 (5th Cir. 3/3/2021), which can be accessed here.  The decision is of interest to bankruptcy lawyers because the issue of consent is common to the actions of both bankruptcy judges and magistrate judges.

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NRA Filing Illustrates Venue Loophole for Chapter 11 Filers

01/16/21

The National Rifle Association likes guns. Texans like guns. Therefore, when the NRA decided to file bankruptcy, there was a certain logic to filing in Texas. Unfortunately, however, prior to November 24, 2020, the NRA had no legal right to file bankruptcy in Texas. This did not deter the gun rights advocates. They created one.

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Supreme Court Rules That Passive Retention Does Not Violate Stay

01/14/21

 The Supreme Court decided that a creditor which passively retains possession of estate property does not "exercise control" over such property in violation of 11 U.S.C. Sec. 362(a)(3). The Court viewed the word "exercise" to require active measures.  Case No. 19-357, Chicago v. Fulton (1/14/21), which can be found here.

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Fifth Circuit Resurrects Fraud Suit Based on Removal to Bankruptcy Court

12/15/20

 In a very convoluted case, a plaintiff learned that removal to Bankruptcy Court can result in a do-over of adverse state court rulings.  Cohen v. Gilmore (Matter of Alabama & Dunlavy), Case No. 19-20152 (5th Cir. 12/15/20).  While the Rooker-Feldman doctrine prohibits a federal court from re-examining findings in an unrelated state court case, it does not grant similar protections in a removed action for the reason that the removed action is a continuation of the original case, just with a different presiding court.

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