Judge Deasy 2003 Opinions

Date Opinion Summary
11/12/03 Atlantic Orient Corp. v. AOC Energy LLC, et al (In re Atlantic Orient Corp.), 2003 BNH 035 (holding that claim preclusion, issue preclusion and Fed. R. Civ. P. 13(a) did not bar the defendant from asserting that it had either a prior license or that the technology was in the public domain as a defense to a Motion for Contempt for violation of a permanent injunction). 
10/21/03 Davis v. Davis (In re Davis), 2003 BNH 033 (holding that (1) the debtor’s obligation of $135,000 to former spouse was a property settlement and not alimony, maintenance or support and therefore dischargeable under 11 U.S.C. § 523(a)(5); and (2) based on the evidence presented, the debt was excepted from discharge pursuant to 11 U.S.C. § 523(a)(6)).
10/20/03 MacMillan v. United States (In re MacMillan), 2003 BNH 034 (overruling the debtors’ objection to the IRS’s claim because the debtors failed to produce sufficient evidence to rebut the IRS’s prima facie case and to meet their burden of proving that the IRS’s tax deficiency assessment was erroneous).
10/14/03 In re Chase, 2003 BNH 032 (sustaining creditors’ objection to the debtor’s claim of homestead exemption under NH RSA 480:1 as the debtor’s absence from her home in the period prior to her incarceration was not involuntary and temporary but rather voluntary and indefinite).
09/19/03 In re River Valley Fitness One Limited Partnership, 2003 BNH 031 (overruling objections to the competing plans of reorganization based upon allegations that the both plans were not proposed in good faith under section 1129(a)(3) and that the Debtor’s Plan did not satisfy the classification standards articulated in In re Granada Wines, 748 F.2d 42 (1st Cir. 1984) by separately classifying certain unsecured claims; finding both competing plans to be confirmable and applying section 1129(c) to confirm the Debtor’s Plan because the treatment of creditors was superior, the creditors preferred the Debtor’s Plan and there was less operational risk).
09/18/03 Smith v. Kessler Farm Condo Ass’n (In re Kiely), 2003 BNH 030 (ruling that the condominium association had a non-priority, general unsecured claim for outstanding prepetition condominium fees based on the facts and despite the association’s policy to apply funds to the oldest outstanding fees first; the association was unable to establish that its claim was entitled to priority under 11 U.S.C. §§ 503(b)(1)(A) and 507(a)(1)). 
09/10/03 In re Morley, 2003 BNH 029 (holding that a settlement agreement executed in connection with the debtor’s previous bankruptcy limited the creditor’s recourse to recovery from the debtor’s real property and thus the creditor’s previously liquidated general unsecured claim had to be disallowed in its entirety).
09/10/03 In re Timothy Carroll, DMD, P.C., 2003 BNH 028 (sustaining an objection to a proof of claim filed by a guarantor for reimbursement amounts not yet paid under a personal guarantee and disallowing the claim under section 502(e)(1)(B) as a contingent claim).
08/28/03 In re Dodson, 2003 BNH 027 (denying a motion to “reconsider” under FRCP 60(b)(5) because the Chapter 13 debtor failed to demonstrate that it was inequitable for the Court to grant relief from the automatic stay under LBR 9071-1(a) based upon a stipulation for adequate protection approved three years earlier because the debtor had not shown a significant change in either factual conditions or in law as required by Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992)).
08/25/03 In re Chase, 2003 BNH 026 (granting in part an objection to postpetition attorneys’ fees for a residential mortgage lender and discussing the evidentiary standards applicable to the determination of attorneys’ fees allowable to an over secured creditor under section 506(b)).
08/25/03 Hanley v. Notinger (In re Charlie’s Quality Carpentry), 2003 BNH 025 (denying summary judgment for the Trustee because under applicable state law, if an express or constructive trust was created, the trust was properly funded and under applicable federal law in Connecticut Gen. Life Ins. Co. v. Universal Ins. Co., 838 F.2d 612 (1st Cir. 1988), the plaintiff was entitled to present evidence to support the tracing of funds deposited in a commingled account; granting summary judgement for the Trustee on a preferential prepetition attachment and an action to compel the Trustee to recover preferential transfers for the sole benefit of the Creditor).
08/21/03 Amsol, Inc. v. Jaworski (In re Jaworski), 2003 BNH 024 (denying summary judgment on the creditor’s claims under 11 U.S.C. § 523(a)(2), (a)(4), and (a)(6) because genuine issues regarding the debtor’s fraudulent intent existed and the creditor had not persuaded the court that it was in a fiduciary relationship with the debtor; granting summary judgment to the creditor on the debtor’s counterclaims seeking rescission of a settlement agreement and damages for fraud and fraud on the court).
08/06/03 Dahar v. Jackson (In re Jackson), 2003 BNH 023 (holding that the Trustee may sell both the estate’s interest and the interest of the co-owner under 11 U.S.C. § 363(h) because (1) the partition of the property was impracticable, (2) sale of the estate’s undivided interest would realize significantly less than a sale free and clear of the co-owner’s interest, (3) the benefit to the estate outweighs the detriment to the co-owner).
07/31/03 Clarkeies Market, L.L.C. v. Associated Grocers of New England, Inc. (In re Clarkeies Market, L.L.C.), 2003 BNH 022 (determining that the method for valuing the stock, which was issued by its cooperative and pledged by the debtor as collateral for the debtor’s obligations to the cooperative, should be calculated as of the date of the debtor’s default under the loan documents and in accordance with the terms of the cooperative member agreements).
07/29/03 Cioffredi & Assocs. Physical Therapy, LLC v. River Valley Fitness One, LP (In re River Valley Fitness One, LP), 297 B.R. 354 (Bankr. D.N.H. 2003) (determining the proper procedure for requesting a temporary restraining order and/or preliminary injunction, after filing a complaint pursuant to Bankruptcy Rule 7001(7), is by motion pursuant to Federal Rules of Civil Procedure 65).
07/24/03 Sumski v. Daggett (In re Hoxie), 2003 BNH 020 (entering judgment in favor of former spouse on a preference complaint under 11 U.S.C. § 547 because she was not an insider at the time of the transfer; granting relief from the automatic stay under 11 U.S.C. § 362 so the parties can return to state court for determinations regarding the division of marital property and any claim for damages as well as the liquidation of the former spouse’s claims regarding mortgage payments and attorney’s fees; and deferring final determination regarding turnover, setoff, and the amount of the former spouse’s claim until the state court proceedings are concluded). 
07/15/03 In re Pasteurized Eggs Corp., 2003 BNH 019 (resolving on a summary basis trademark and patent issues that arose in the context of an objection to the debtor’s motion to sell substantially all of its assets free and clear of any interest under 11 U.S.C. § 363(f) and to assume and assign certain executory contracts).
07/08/03 Michels v. Sheridan, 2003 BNH 018 (overruling defendant’s objections and finding requested attorney’s fees and expenses reasonable under the lodestar standard).
06/19/03 Voisine v. Sperry Concrete, Inc. (In re Voisine), 2003 BNH 015 (applying Cohen v. De La Cruz, 523 U.S. 213 (1998) in finding that the Creditor may seek any debt arising from the nondischargeable claim including but not limited to attorney fees, interest and/or costs recoverable on that debt under applicable state law).
06/19/03 In re Spike Broadband Sys., Inc., 2003 BNH 016 (applying Virginia law and holding that a former officer’s claim for damages based upon the Debtor’s alleged breach of an employment agreement was barred by res judicata because it was not divisible from claims previously adjudicated by the state court under the same contract).
05/30/03 Pasteurized Eggs Corp. v. Bon Dente Joint Venture (In re Pasteurized Eggs Corp.), 296 B.R. 283 (Bankr. D.N.H. 2003) ((1) holding that even though the assignor retained a reversionary interest in certain patents and reserved rights to protect its interest in the patents if the assignee failed to do so, the agreement was an absolute assignment of the patents rather than a mere license; (2) holding that the Court did not need to decide whether the retained reversionary interest was a security interest in a patent, because the assignor had not taken any action to perfect a security interest in a patent; and (3) adopting Cybernetic Servs., Inc. v. Matsco, Inc. (In re Cybernetic Servs., Inc.), 252 F.3d 1039, 1044 (9th Cir. 2001), which held that a security interest in a patent must be perfected in accordance with Article 9 of the UCC).
05/16/03 Dahar v. Brewster (In re Brewster), 2003 BNH 012 (after the expiration of a statute of limitations under applicable nonbankruptcy law the trustee moved to amend his complaint as of the date of the original complaint; the Court ruled (1) that the amendment would not relate back to the date of filing of the complaint under Rule 15(c) of the Federal Rules of Civil Procedure when the defendant had neither actual nor constructive notice of his claim and (2) even if applicable nonbankruptcy law might bar a claim against a decedent’s estate in state court, the Trustee was not barred from maintaining a preference action in bankruptcy court).
04/25/03 In re Pow Wow River Campground, Inc., 296 B.R. 81 (Bankr. D.N.H. 2003) (awarding attorney fees under 11 U.S.C. § 503(b) for creditor’s “substantial contribution” to Chapter 11 plan, where creditor’s involvement directly led to a significant increase in the dividend to unsecured creditors).
04/18/03 Atcco Mortgage, Inc. v. Morley In re Morley, 292 B.R. 446 (Bankr. D.N.H. 2003) (applying Virginia law in finding that a prepetition settlement agreement would not be rescinded for fraud due to (1) defendant’s lack of intent and (2) plaintiff’s unreasonable reliance on defendant’s misrepresentation; sustaining in part the debtor’s objection to a secured claim).
03/26/03 Boots v. New Hampshire Higher Educ. Assistance Found. (In re Boots), 2003 BNH 007 (applying the three prong Brunner test and finding the repayment of the Debtor’s student loan debt, held by New Hampshire Higher Education Assistance Foundation and Sallie Mae Servicing Center, would be an undue hardship and is discharged pursuant to 11 U.S.C. § 523(a)(8)).
02/20/03 Atlantic Orient Corp. v. AOC Energy, L.L.C. (In re Atlantic Orient Corp.), 290 B.R. 456 (Bankr. D.N.H. 2003) (granting a permanent injunction based upon a stipulated record and finding that (1) the parties understood and formed an enforceable agreement at an auction sale which changed the general rule under UCC § 2-328(2) regarding the timing of the transfer of title; and (2) tender of the purchase price was defective and therefore title to the Debtor’s assets were not transferred at the “fall of the hammer” and, therefore, the assets were property of the estate on the petition date).
01/30/03 In re River Valley Fitness One, LP, 2003 BNH 004 (applying Winthrop Old Farm Nurseries, Inc. v. New Bedford Inst. for Sav. (In re Winthrop Old Farm Nurseries, Inc.), 50 F.3d 72 (1st Cir. 1995), in determining the value of a secured creditor’s real property collateral at $2,218,878, for purposes of confirmation, through an income capitalization approach after consideration of conflicting expert appraisal evidence).
01/22/03 In re Clarkeies Market, L.L.C., 2003 BNH 002 (finding that (1) an allonge that consolidated a revolving loan with three separate promissory notes, but did not amend the security agreements, did not effect a cross collateralization of all of the obligations; and (2) a creditor who retained collateral without conducting a public or private sale would not be entitled to a deficiency judgment under the UCC and therefore, pursuant to 11 U.S.C. § 502(b)(1), is not entitled to an unsecured deficiency claim).