Justia Real Estate & Property Law Opinion Summaries

Debtors appealed the bankruptcy court's entry of summary judgment in favor of defendant in debtors' adversary action seeking, inter alia, to avoid defendant's mortgage lien on debtors' residence. The court held that summary judgment was improper in this case because there was a material issue of fact regarding whether defendant had possession of the original promissory note.

Bankruptcy trustee and nondebtor spouse appealed the bankruptcy court's grant of summary judgment to H.D. Smith. The trustee and spouse argued that the bankruptcy court erred in holding that H.D. Smith had an enforceable lien against the proceeds of the sale of the debtor's homestead property in excess of the homestead exemption. The court held that, regardless of whether the lien attached prior to the bankruptcy proceedings, the trustee took the property with the state-law character it had in the debtor's hands: a property with an unenforceable lien. Therefore, the court reversed the district court's grant of summary judgment. The court also held that because it concluded that H.D. Smith's lien was unenforceable, it need not consider whether enforcing the lien would violate 11 U.S.C. 362 or 11 U.S.C. 549. The court also did not consider the issues that the spouse argued in her briefing regarding homestead rights.

Debtor owned one parcel in Wisconsin and three in Michigan. Permanently disabled and unemployed, he obtained and defaulted on mortgages. The bank began foreclosure. Debtor sold one Michigan property and gave all proceeds to the bank, which continued its Wisconsin foreclosure. In the Michigan foreclosure, the bank bid the full amount of the loan (likely more than value) and obtained a deed. Debtor filed a chapter 13 petition before the Wisconsin foreclosure sale. The bank filed a proof of claim and motion for relief from the automatic stay to reverse foreclosure on the Michigan property and proceed with the Wisconsin sale. The bankruptcy court concluded that Debtor owed the bank nothing, so there was no reason to continue the Wisconsin foreclosure. The Sixth Circuit affirmed. The bank made a unilateral mistake by bidding the entire amount of the debt at the Michigan foreclosure sale. The sale may not be invalidated, absent fraud. The bank is required by Michigan law to pay, or credit, Debtor the full amount of its bid and has been paid in full. Pursuant to 11 U.S.C. 558, Debtor is entitled to offset the Michigan sale credit bid against the Wisconsin judgment, satisfying the Wisconsin judgment so that Debtor no longer owes the bank any money.

The debtor filed a voluntary petition under Chapter 11. Prior to expiration of the 120-day deadline to assume or reject nonresidential real property leases provided for under 11 U.S.C. 365, debtor obtained a 90-day extension of time to assume or reject leases, making August 30, 2010, the deadline. On August 13, 2010, the debtor filed a second motion for an extension. The landlord would not consent and, on August 27, the trustee filed a motion to assume the lease. The bankruptcy court held that the deadline set forth in 11 U.S.C. 365(d)(4) for assuming a nonresidential real property lease is satisfied upon the debtor filing a motion to assume the lease. The Sixth Circuit affirmed.

The Chapter 7 trustee appealed from the decision of the Bankruptcy Appellate Panel (BAP) reversing the bankruptcy court's judgment that the proceeds of personal property sold with a homestead were not proceeds of the homestead. The court held that the BAP committed two errors: first, the BAP required only "sufficient indicia" of an intent to convert non-exempt personal property into exempt homestead property where, as a matter of law, there must not only be an intent to convert non-exempt assets, but also an actual conversion; and second, in reversing the bankruptcy court, the BAP said "we find" an intent by debtor to convert non-exempt property into exempt property where findings of fact were the sole province of the bankruptcy court. The court reversed and remanded for further proceedings.

In January 2009, Defendant-Appellant Robert Blechman and a codefendant, Itsik (Issac) Yass, were tried together in the District of Kansas on charges of mail fraud, aggravated identity theft, and conspiracy to commit mail fraud and aggravated identity theft. Evidence introduced at trial showed that Yass operated a business that he used to temporarily halt home foreclosures by "attaching" foreclosure properties to fraudulent bankruptcy cases in order to take advantage of the Bankruptcy Codeâs automatic stay provision. After a two-week trial, the jury found Blechman and Yass guilty of all of the counts charged against them. The district court granted Blechman's motion for judgment of acquittal on the identity theft counts and ultimately sentenced Blechman to a total of eighteen months' imprisonment on the remaining counts. Blechman appealed, challenging the district courtâs admission of an America Online (AOL) record that connected him to an e-mail address and three PACER records revealing that he accessed fraudulent bankruptcy cases in Tennessee that were similar to the Kansas bankruptcies identified in the indictment. Blechman argued that these records contained double hearsay and that the district court erroneously admitted them under the business records exception to the hearsay rule. Upon review, the Tenth Circuit held that the district court erred in admitting the challenged AOL and PACER records under Rule 803(6). Nevertheless, because the Court concluded that the error was harmless, it affirmed Blechman's convictions.

Debtor appealed from the Order of the Bankruptcy Court appointing a trustee in its involuntary Chapter 11 case. The court held that since the record supported a finding of cause under 11 U.S.C. 1104(a)(1), and that the appointment of a trustee was in the interest of creditors and the estate under section 1104(a)(2), the appointment of the trustee was mandatory. Therefore, the Bankruptcy Court's order was affirmed.

Debtor appealed from the bankruptcy court's order confirming his modified Chapter 13 plan over his objection. At issue was whether the bankruptcy court could confirm the debtor's plan which provided for the avoidance of two junior liens on the debtor's principal residence. The court held that 11 U.S.C. 1322(b)(2) did not bar a Chapter 13 debtor from stripping off a wholly unsecured lien on his principal residence. The court also held that the strip off of a wholly unsecured lien on a debtor's principal residence was effective upon completion of the debtor's obligations under this plan and it was not contingent on his receipt of a Chapter 13 discharge. Accordingly, the court reversed the decision of the bankruptcy court and remanded for further proceedings where the debtor must amend his plan to provide for proper treatment of the junior lienholders' claims as unsecured nonpriority claims.

Plaintiff filed a voluntary Chapter 13 bankruptcy petition and successfully sought to avoid a lien on her manufactured home held by defendant. The Bankruptcy Appellate Panel and Sixth Circuit affirmed. The mortgage did not originally cover the manufactured home, which was personal property until 2007,when a state court entered an in rem judgment and order of sale converting it to an improvement to real property. After that, the home was covered by the mortgage. The conversion, unlike the mortgage, was involuntary as to the plaintiff, so she had standing under 11 U.S.C. 522(h) to avoid the lien.

The debtor's property was subject to first and second mortgages with complex histories of assignment involving the defendants. The district court dismissed the chapter 7 trustee's action for declaratory judgment to determine the validity, extent, and priority of defendants' liens and vacated a default judgment entered against one defendant, Wilmington. The Sixth Circuit vacated and remanded in part and affirmed in part. Under 11 U.S.C. 544 and Ky. Rev. Stat. 355.9-102(1)(az)(3), operating together, the trustee's interest as a hypothetical judicial lien creditor is superior to those security interests which are unperfected as of the filing of the petition, so the trustee stated a claim against GMAC. The bankruptcy court must make further factual findings regarding Litton and Bank of New York as to the first mortgage, to determine which was the secured party on the date of the filing of the petition. The record established that Wilmington was not a proper party, having assigned its interest years earlier, and the bankruptcy court acted within its discretion in setting aside the default judgment.