Category Archives: Litigation
Amended FRCP 37(e) Provides Rules Governing ESI Preservation and Sanctions
Amended Rule 37(e) of the Federal Rules of Civil Procedure (“FRCP”), effective as of December 1, 2015, squarely addresses sanctions for the spoliation of electronically stored information (“ESI”) and overrules Second Circuit jurisprudence in the area. Some commentators have called FRCP 37(e) the most significant rule governing eDiscovery since the Zubulake line of cases. Prior to the adoption of FRCP 37(e), there existed a split among the Circuits as to the grounds for sanctions arising from the spoliation of ESI. In 2002, in Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99 (2d Cir. 2002), the U.S. Court of […]
Supreme Court Hears Oral Argument on “Lien-Stripping” in Chapter 7 Cases
In 1992, the United States Supreme Court came down with a decision in Dewsnup v. Timm that has caused a stir in the Chapter 7 bankruptcy world ever since. The Court held that, under section 506(d) of the Bankruptcy Code, a Chapter 7 debtor could not “strip down” a lien to the current value of the collateral, thereby getting rid of a junior mortgage lien, when the senior debt owed exceeds the value of the collateral. In part, the Supreme Court went against lien-stripping because the Bankruptcy Act (the predecessor to the Code) provided that liens pass through bankruptcy unaffected […]
Supreme Court Clarifies “Stern Claims” in Key Decision on Bankruptcy Court Power
Bellingham Insurance Agency (“Bellingham”) ceased operations in 2006 and subsequently transferred assets and operations to a successor, Executive Benefit Insurance Agency, Inc. (“Executive”). Bellingham filed under Chapter 7 in the Western District of Washington later in 2006 . In 2008, the Bellingham trustee, Peter Arkison (the “Trustee”), filed an adversary proceeding against Executive and other insiders of Bellingham seeking the avoidance of fraudulent transfers, a declaratory judgment that Executive is a successor in interest to Bellingham and substantive consolidation of certain defendant entities. The Bankruptcy Court subsequently granted the Trustee’s motion for summary judgment. The District Court for the District of […]
Law v. Siegel – SCOTUS Limits the Application of 11 U.S.C. § 105
An important issue that is often addressed in Chapter 7 bankruptcy cases is whether the debtor asserts a “homestead” exemption to attempt to protect their home equity from becoming property of the bankruptcy estate. Recently, an intriguing decision was handed down by the United States Supreme Court. The important message gleaned from the court was that 11 U.S.C. § 105 cannot be invoked while disregarding other express provisions of the Bankruptcy Code.
