2017 Judge Altenburg - Opinions

Judge Andrew B. Altenburg -- Opinions signed in 2017

 

 


 

In re: Fisher, Case 16-01377 01/24/2017

Plaintiff filed a motion for summary judgment in its adversary proceeding, seeking to hold its claim nondischargeable under section 523(a)(6), pursuant to the doctrine of collateral estoppel. Prior to the Debtor filing bankruptcy, Plaintiff had obtained a state court judgment against the Debtor. The Debtor did not appear at the arbitration hearing, but Plaintiff submitted pleadings, documents, briefs and testimony from four (4) witnesses, and the arbitrator found that the injury was the result of “willful and malicious” conduct.

The court found that application of collateral estoppel is appropriate only where the matter has been “actually litigated”, which requires more than the uncontested presentation of evidence by one party. To be “actually litigated” requires active participation in the proceedings by both parties. However, in the context of a summary judgment motion, the court may consider undisputed evidence including trial transcripts and testimony from available witnesses.

 


 

 

In re: La Rosa 03/13/2017

Debtor filed a Motion for Modification of Chapter 12 Plan after Confirmation Pursuant to § 1229(a) of the Bankruptcy Code. The court determined that a chapter 12 debtor’s retained professionals must seek compensation for post-confirmation services  from the court; and that a chapter 12 debtor may modify it plan to permit retained professionals to seek compensation for post-confirmation services and to clarify how the plan addresses an additional payment to unsecured creditors.

 


 

In re: La Rosa 09/6/2017

The narrow question presented in this decision is whether a chapter 12 debtor, assuming the criteria of section 1229 are met, has an absolute right to modify a plan post-confirmation without having to show special, unusual or unanticipated circumstances. For the reasons that follow, the answer to the questions is: yes.