Posts by Kiem Law, PLLC

NO DOUBLE RECOVERY.  Case Name: 160 ROYAL PALM, LLC V. ALIBI, LTD. Case 19-01341-EPK Doc 94 Filed 07/01/20.  Erik P. Kimball, Judge United States Bankruptcy Court says no double recovery:  “Bankruptcy courts consistently hold that 11 U.S.C. § 550(a) is intended to restore a debtor to the same position as though the voidable transfer had never…

“Because the purpose of bankruptcy is to provide honest but unfortunate debtors a fresh start, “objections to discharge are to be strictly construed against the creditor and liberally in favor of the debtor.” Menotte v. Davis (In re Davis), 363 B.R. 614, 619 (Bankr.M.D. Fla. 2006) (citations omitted); Jennings v. Maxfield (In re Jennings), 533…

Small Business Reorganization Act of 2019 (“SBRA”) will provide small business debtors, which include individuals with business debt, a cost effective and efficient way of reorganizing. It offers higher debt limits than a Chapter 13, cramdown plans without the need for a consenting class, eliminates the absolute priority rule, gives the debtor the sole right…

“Pursuant to section 1327(a) and consistent with Espinosa, Wells Fargo is bound by the terms of the 6MP, even though the 6MP violates the anti-modification provision of section 1322(b)(2). In re Passavant, 444 B.R. 378, 385 (Bankr. S.D. Ohio 2010) (relying on section 1327(a) and Espinosa in granting a motion to deem post-petition mortgage obligations…

“The Bankruptcy Code outlines a strict framework for the retention and compensation of estate professionals. Estate professionals must be retained in accordance with 11 U.S.C. §327, which requires, generally, that the estate professional must be “disinterested,” meaning the professional “is not a creditor, an equity security holder, or an insider”. 11 U.S.C. §101(14). Consequently, with…

“Charging liens are a creation of state law and thus the Court looks to Florida law to resolve these issues. To impose a charging lien, an attorney must establish four required elements: (1) an express or implied contract between attorney and client; (2) an express or implied understanding for payment of attorney’s fees out of…

The Eleventh Circuit never ruled that the trustee must establish avoidability of a transfer as part of a recovery suit if the transfer has already been avoided. “Nor, does the Court think, would it ever. First, the language of section 550 is clear. The initial transfer must be avoided, or in the Eleventh Circuit, proven…

Creditors need to review all of the debtor’s proposed Chapter 13 plans since it will trump even explicit prohibitions in the Bankruptcy Code to noticed parties. Under the circumstances, the Bankruptcy Court here in the Southern District of Florida West Palm Beach Division found that Wells Fargo was “provided with notice reasonably calculated under all…

The Court found that there is nothing in the hanging paragraph of section 1325(a) that would lead it to conclude that the existence of a cross-collateralization clause in the security agreement between the debtors and the credit union GECU renders the hanging paragraph inapplicable. “The hanging paragraph of section 1325(a) has three requirements when the…

“Under Florida law, common law indemnity allows an innocent party, who is nonetheless liable to another, to “[shift] the entire loss from one who, although without active negligence or fault, has been obligated to pay, because of some vicarious, constructive, derivative, or technical liability, to another who should bear the costs because it was the…