Blogs

Be the first person to recommend this.
A lot of people ask me if Covid-19 executive orders are constitutional, so I decided to write an article about it. Do COVID-19 executive orders violate the separation of powers clause? The federal constitution does not contain a separation of powers clause. Nevertheless, its structure and language strongly suggest that the Framers intended the three branches to do different things. Article I says, “All legislative powers herein granted shall be vested in a Congress….” Article II talks about the President having   the   executive power. And Article III says courts have   the   judicial power. Clearly the plan was for legislators to make laws, not to enforce ...
0 comments
Be the first person to recommend this.
BANKRUPTCY BULLETIN Co-Editors in Chief: Alex Beeby , Larkin Hoffman and ; David M. Tanabe ,  Winthrop & Weinstine Contributing Editors: David M. Tanabe and Karl J. Johnson , Taft Stettinius & Hollister LLP In Nationwide Judgment Recovery, Inc. v. Simons (In re Simons) , Ch. 7 Case No. 20-40631, Adv. No. 21-04027, 2021 WL 5225940 (Bankr. D. Minn. Nov. 9, 2021), Judge Sanberg held that § 523(a)(19)(A)(i) does not apply to a debtor that has not been found to have violated securities laws and that the plaintiff failed to present evidence that the debtor purchased or sold securities as required under § 523(a)(19)(A)(ii).  Simons was a net winner ...
0 comments
Be the first person to recommend this.
New CLE: "Stress and Secondary Trauma in Family Law Practice" - 1/11/2022 - 12:00 noon to 1:00 p.m .  Family law attorneys and professionals experience higher than average levels of stress and secondary trauma, yet these things are rarely talked about. Attorneys Karl Nastrom and Bob Schuneman aim to change that. Karl Nastrom , Indian Child Welfare Law Center, and Bob Schuneman , Lawyers Concerned for Lawyers outreach coordinator, will present information on the nature and sources of stress and secondary trauma among family law attorneys and other professionals who work in the family law field. They will also discuss the help and resources that are available ...
0 comments
Be the first person to recommend this.
[This article originally appeared in the November 11, 2021 edition of Minnesota Lawyer] An Oct. 25, 2021, front-page Star Tribune article reports a crisis in the Minnesota lawyer professional responsibility system. The article reports the departures of 14 staff attorneys -- seven in about 11 months beginning in September 2020 -- from what many insiders called a toxic work environment caused by the alleged abrasiveness of the director of the Office of Lawyers Professional Responsibility, Susan Humiston. The crisis had been brewing for the last two years. In January, 2020, the Lawyers Professional Responsibility Board, authorized to supervise the director, recommended ...
0 comments
Be the first person to recommend this.
BANKRUPTCY BULLETIN Contributing Editor:   David M. Tanabe , Winthrop & Weinstine In Lariat Companies, Inc. v. Wigley (In re Wigley) , 15 F.4th 1208 (8th Cir. Oct. 18, 2021), the Eighth Circuit Court of Appeals affirmed both the Eighth Circuit B.A.P. and bankruptcy court in that the landlord cap of 11 U.S.C. § 502(b)(6) establishes the amount of the allowed claim against the bankruptcy estate, but the cap does not preclude an exception from discharge under 11 U.S.C. § 523(a)(2)(A) for actual fraud. In the case, a landlord obtained a state court judgment against the husband of the debtor for damages under a lease and a personal guaranty. Further, ...
0 comments
Be the first person to recommend this.
BANKRUPTCY BULLETIN Contributing Editor: Lara L. Overton, Overton Law, LLC In Dowden v. Cornerstone National Insurance Co. (In re Huchingson) , --- F.4 th ---, 2021 WL 3849404 (8 th Cir. Aug. 30, 2021), summary judgment in favor of the insurer was proper because the trustee’s waiver and estoppel arguments fail, and the insured failed to strictly comply with a condition precedent to the coverage of the automobile insurance policy when he did not promptly forward legal documents to the insurer. The trustee had sued the insurer alleging it breached the duty to defend the insured debtor when it failed to timely file an answer in a lawsuit against the ...
0 comments
Be the first person to recommend this.
BANKRUPTCY BULLETIN Contributing Editor:  Karl J. Johnson, Taft In FishDish, LLP v VeroBlue Farms USA, Inc. and Broadmoore Financial, L.P. ( In re VeroBlue Farms USA, Inc.) , 6 F.4th 880 (8th Cir. Aug. 5, 2021), on issues of first impression, the Eighth Circuit held that (1) the 14-day deadline to appeal under Rule 8002 is mandatory, but not jurisdictional, and (2) dismissal of an appeal of plan confirmation because the requested relief would be inequitable requires at least a preliminary review of the merits of the appeal, the amount of time that would likely be required to resolve the appeal, and the equitable remedies that may be available to avoid ...
0 comments
Be the first person to recommend this.
BANKRUPTCY BULLETIN Contributing Editor: David Tanabe In PW Enterprises, Inc. v. Bala (In re Racing Services, Inc.) , 854 F. App’x 777 (8th Cir. Aug. 3, 2021) (mem.), aff’g 617 B.R. 641 (D.N.D. 2020), the Eighth Circuit Court of Appeals affirmed the denial of claims for unauthorized taxes assessed on the claimants’ account wagering through the debtor.  The debtor provided pari-mutuel horse wagering services. Out of the total amount bet, the debtor deducted a percentage for revenue and expenses called the takeout. In part, the takeout was used to pay rebates and taxes. In another decision, the Eighth Circuit determined the taxes on account wagering ...
0 comments
Be the first person to recommend this.
BANKRUPTCY BULLETIN Contributing Editor:  Nauni J. Manty ,  Manty & Associates, P.A. In   In re Musel , 630 B.R. 794 (Bankr. D. Minn. July 7, 2021) (Ridgway, C.J.), the bankruptcy court denied a trustee’s motion for turnover of tribal gaming revenue payments after holding that tribal law applies and provides that the debtor has no vested property rights in the payments. The debtor is a member of a tribal nation that enacted a Gaming Revenue Allocation Plan, pursuant to the Federal Indian Gaming Regulatory Act of 1988, under which the debtor and other citizens of that tribal nation receive apportioned monthly payments of the nation’s net gaming ...
0 comments
Be the first person to recommend this.
BANKRUPTCY BULLETIN Contributing Editor: Nauni J. Manty , Manty & Associates, P.A. In Snyder v. Kohout, (In re Kohout), 2021 WL 3195811, slip op. (Bankr. D. Minn. July 28, 2021) (Sanberg, J.), discharge was not denied, rejecting objections under 11 U.S.C. §§ 727(a)(2)(B) and (a)(4)(A) . The United States Trustee commenced an adversary proceeding for a denial of the discharge of one of the debtors, under 11 U.S.C. §§ 727(a)((2)(B) and (a)(4)(A).  The trustee met all of the elements, but one—the trustee failed to prove “by a preponderance of the evidence” that the debtor “acted with the requisite intent necessary for a denial of discharge”.  ...
0 comments
Be the first person to recommend this.
BANKRUPTCY BULLETIN Contributing Editor:   Alexander J. Beeby ,  Larkin Hoffman In Finstad v. Gord (In re Finstad) , 4 F.4th 693 (8th Cir. July 21, 2021), the Eighth Circuit affirmed the decisions of the North Dakota bankruptcy court and the BAP, holding that a prior federal appellate decision that the debtors did not have any interest in certain farmland precluded any relitigation of that issue in the debtors’ reopened chapter 12 case. In their chapter 12 bankruptcy case, the debtors settled, in October of 2005, to remove the debtor’s farmland from the bankruptcy proceedings. As part of the settlement, which was approved by the bankruptcy court and ...
0 comments
Be the first person to recommend this.
BANKRUPTCY BULLETIN Contributing Editor:  Karl J. Johnson, Taft In Citizens State Bank Norwood Young America v Schiller (In re Schiller) , 629 B.R. 54 (B.A.P. 8th Cir. July 15, 2021), the BAP held that (1) the bankruptcy court erred by not holding an evidentiary hearing to determine the bank’s allowed secured claim, (2) the bank’s objection to a motion under § 364 to obtain secured credit did not qualify as an informal proof of claim, (3) whether the chapter 12 plan provides for payment of the amount of an allowed secured claim cannot be evaluated before the collateral is valued, and (4) the bank lacked standing to object to the debtor’s disposable ...
0 comments
Be the first person to recommend this.
BANKRUPTCY BULLETIN Contributing Editor: Alexander J. Beeby , Larkin Hoffman In In re Musel , --- B.R. ---, No. 20-42761, 2021 WL 2843847 (Bankr. D. Minn. July 7, 2021) (Ridgway, C.J.), the bankruptcy court denied a trustee’s motion for turnover of tribal gaming revenue payments after holding that tribal law applies and provides that the debtor has no vested property rights in the payments. The debtor is a member of a tribal nation that enacted a Gaming Revenue Allocation Plan, pursuant to the Federal Indian Gaming Regulatory Act of 1988, under which the debtor and other citizens of that tribal nation receive apportioned monthly payments of the ...
0 comments
Be the first person to recommend this.
BANKRUPTCY BULLETIN Contributing Editor:  C.J. Harayda ,  Faegre Drinker In Waltrip v. Sawyers (In re Sawyers) , 2 F.4th 1133 (8th Cir. July 2, 2021), the Court of Appeals for the Eighth Circuit considered whether it was clearly erroneous for the bankruptcy court to hold that a judicial lien could be avoided based on the value of the debtor’s homestead as of the petition date rather than the value of the property enhanced by the amount of insurance proceeds received by the debtor due to destruction by a prepetition fire. The BAP previously affirmed the grant of summary judgment in favor of the debtor. The appellant had a prepetition judicial lien ...
0 comments
Be the first person to recommend this.
BANKRUPTCY BULLETIN Contributing Editor: Lara L. Overton, Overton Law, LLC In Ritchie Special Credit Invs., Ltd. v. JPMorgan Chase & Co. , Civ. No. 14-4786 (DWF/FLN), 2021 WL 2686079, slip op. (D. Minn. August 30, 2021), Judge Frank granted the defendants’ motions to dismiss the plaintiffs’ third amended complaint and dismissed the complaint with prejudice based upon lack of standing and untimely claims. This action stems from loans plaintiffs made to Thomas Petters, which were documented as promissory notes retroactively by Petters Company, Inc. (PCI) and Petters Group Worldwide, LLC (PGW) and guaranteed by Petters. The plaintiffs allege that ...
0 comments
Be the first person to recommend this.
BANKRUPTCY BULLETIN Contributing Editor:  James C. Brand ,  Fredrikson & Byron, P.A. In Ridings v. Casamatta (In re Allen) , 628 B.R. 641, (B.A.P. 8th Cir. June 21, 2021), the Bankruptcy Appellate Panel affirmed a Missouri bankruptcy court’s decision approving only a portion of a chapter 7 debtor attorney’s fees.  The case involved an experienced chapter 7 debtor attorney who offered debtors two options to pay his fees.  The attorney would charge a debtor $1,165 if paid upfront, and $1,665 if paid on a payment plan, including up to a year post-petition.  To prevent the “pay later” fees from being discharged, the attorney divided his services ...
0 comments
Be the first person to recommend this.
BANKRUPTCY BULLETIN Contributing Editor: C.J. Harayda , Faegre Drinker In Excellent Home Properties, Inc. v. Kinard (In re Kinard) , 998 F.3d 352 (8th Cir. May 21, 2021), the Court of Appeals for the Eighth Circuit considered whether a claim could be excepted from discharge under 11 U.S.C. § 523(a)(2)(A) despite the claimant not investigating the alleged misrepresentations of the debtor on which it claimed it relied. The appellant had made a loan for $47,000 to an entity owned by the debtor’s parent, where the debtor was treated as a “business partner.”  The loan was intended for use by the entity to buy, renovate, and resell a house. The entity later ...
0 comments
Be the first person to recommend this.
BANKRUPTCY BULLETIN Contributing Editor: James C. Brand , Fredrikson & Byron, P.A. In In re Rancher’s Legacy Meat Co. , 630 B.R. 308 (Bankr. D. Minn. June 3, 2021) (Ridgway, C.J.), Judge Ridgway denied a motion for allowance of an administrative claim filed by a third-party shipping and logistics provider.  The shipper arranged for shipping services for the debtor’s products post-petition.  The debtor paid for those services until problems with one shipment resulted in a customer rejecting the debtor’s products.  After significant back and forth, during which time the shipper continued to provide services, the debtor offset its asserted damages ...
0 comments
Be the first person to recommend this.
BANKRUPTCY BULLETIN Contributing Editor: Alexander J. Beeby, Larkin Hoffman Daly & Lindgren Ltd. In Scott v. Anderson (In re Scott) , 627 B.R. 134 (B.A.P. 8th Cir. April 16, 2021), rehearing denied (May 10, 2021), the BAP affirmed a Missouri bankruptcy court’s denial of sanction and, in turn, awarded sanctions against the appellant for a frivolous appeal. This case stems from a home foreclosure, in which the debtors filed a chapter 13 petition after the unlawful detainer judgment became final, after service of the writ of execution and notice of eviction, and after the expiration of the deadline to vacate, but hours before the sheriff executed ...
0 comments
Be the first person to recommend this.
BANKRUPTCY BULLETIN Contributing Editor: Alexander J. Beeby, Larkin Hoffman Daly & Lindgren Ltd. In Lehman Bros. Holdings Inc. v. Lendingtree, LLC , No. 20-cv-1351 (SRN/HB), 2021 WL 1087695, slip op. (D. Minn. Mar. 22, 2021), Judge Nelson determined that the case should be transferred to the SDNY bankruptcy court because it relates to a bankruptcy case in that jurisdiction. This action stems from two bankruptcies—neither of which were venued in Minnesota. The plaintiff had filed a 2008 chapter ll case in the Southern District of New York and, in that case, a 2016 adversary proceeding, for indemnification, against a nonparty. That nonparty, in ...
0 comments