THE BRAD HENDRICKS LAW FIRM ARTICLES & CASES
[09/26] Allen v. Advanced Telecommunication Network
In this bankruptcy action filed by the debtor to recover $6 million that was fraudulently transferred to him by Advanced Telecommunication Network (ATN) to him, the transfer was avoided and ATN obtained a recovery order in separate bankruptcy proceeding.
[09/26] Allen v. Advanced Telecommunication Network
In this bankruptcy action filed by the Advanced Telecommunication Network (ATN) to recover $6 million that it transferred to Allen, but ATN avoided the transfer and obtained a recovery order in separate bankruptcy proceedings finding that the transfer was fraudulent. Following a bankruptcy filing by Allen, judgment finding that the funds were subject to an automatic stay is reversed and remanded, where in circumstances that a debtor like ATN avoids a fraudulent transfer and obtains a recovery order, the debtor has sufficiently “recovered” those funds such that they are a part of that debtorâ€™s estate under the Bankruptcy Code.
[09/26] Krys v. Farnum Place
In this Chapter 15 ancillary bankruptcy proceeding, an order of the Bankruptcy Court declining to conduct a section 363 review of a sale of the claims of a British Virgin Islands investment fund in the liquidation of Bernard L. Madoff Investment Securities under the Securities Investor Protection Act (SIPA) is vacated and remanded, where: 1) the sale of the SIPA claims is a “transfer of an interest of the debtor in property that is within the territorial jurisdiction of the United States,” pursuant to 11 U.S.C. section 1520(a)(2); and 2) the sale is subject to review under section 363 and comity is not warranted.
[09/15] Hawkins v. FTB
Judgment that a chapter 11 debtor’s tax debts were excepted from discharge on the basis of his willful attempt to evade or defeat taxes under 11 U.S.C. section 523(a)(1)(C) is reversed, where specific intent is required for the section 523(a)(1)(C) discharge exception to apply.
[09/12] In re: Snowden
District court’s affirmance of the bankruptcy court’s judgment awarding a chapter 7 debtor damage and attorneys’ fees is: 1) affirmed in part as to the decision of the bankruptcy court awarding emotional distress damages and punitive damages; and 2) reversed and remanded as to the award of attorneys’ fees, where under Sternberg v. Johnston, attorneys’ fees under section 362(k) are limited to fees relating to enforcing the automatic stay and remedying the stay violation, not the fees incurred by the debtor in prosecuting the bankruptcy adversary proceeding seeking damages for the stay violation.
[09/03] Moushigian v. Marderosian
Order granting discharge to defendant-debtors, and denying plaintiff’s motion to reconsider, is affirmed, where: 1) the four-word order did not grant plaintiff’s request for “deeming relief”, but stated “relief from stay granted”; 2) “relief from stay granted” is unambiguous, and even if it were ambiguous, plaintiff did not ask for clarification when it was issued; 3) plaintiff challenges the ruling on his request for “deeming relief”, but the case law does not suggest that a ruling on “deeming relief” must be accompanied by findings of fact and conclusions of law under Rule 52(a) of the Federal Rules of Civil Procedure; and 4) the bankruptcy court properly denied plaintiff’s motion for reconsideration, as application of 11 U.S.C. section 105(a) to the circumstances of this case would turn it into an automatic safety valve for errors by counsel.
Injury & Tort Law
[09/25] Zucchet v. Galardi
In this malicious prosecution action, order denying defendant’s special motion to strike under the anti-SLAPP statute is reversed and remanded, where: 1) defendant has established his burden under the first prong of the anti-SLAPP statute to establish that plaintiff’s malicious prosecution claim arises from protected activity; and 2) plaintiff has not met his burden to make a prima facie case that he has a meritorious malicious prosecution claim.
[09/25] Nguyen v. Western Digital
In this tort action, plaintiff alleges that her birth defects were caused by in utero exposure to hazardous and toxic chemicals at defendant-employer. Dismissal on grounds that the actions was barred by the statute of limitations for pre-birth injuries in section 340.4 of the Code of Civil Procedure is reversed, where: 1) claims based on birth or pre-birth injuries that are due to exposure to hazardous materials or toxic substances are subject to the limitations period in section 340.8, which entitles plaintiff to tolling; and 2) there was delayed accrual until December 1998, and thus plaintiff was not barred under the six-year limitations period in section 340.4 when section 340.8 went into effect in January 2004, which then tolled the limitations period.
[09/24] Mercury Casualty v. Chu
In this insurance action, plaintiff seeks declaratory relief regarding its insurance obligation towards defendants. Summary judgment in favor of plaintiff on the issue of whether the policy provided coverage for passenger Pham’s judgment, and the court’s determination that plaintiff’s policy excludes coverage for Pham’s personal injury lawsuit against driver Chu is reversed, where the policy provision excluding Pham from coverage is an overbroad expansion of the statutorily permitted exclusion and is contrary to public policy.
[09/24] Owens v. Baltimore City State’s Attorneys Office
In this action brought under 42 U.S.C. section 1983, plaintiff alleges that defendants violated his constitutional rights by intentionally withholding exculpatory evidence during his 1988 trial for the rape and murder of a woman. Dismissal of the complaint is: 1) reversed in part, where the statute of limitations on plaintiff’s section 1983 claim was found by applying that of an analogous common-law tort, malicious prosecution, which sets the start of the limitations period at the date of the nolle prosequi; 2) plaintiff thus timely filed his complaint; 3) the officers were clearly on notice of the impermissibility of their conduct at the time of the alleged violations; 4) plaintiff pled sufficient factual content against Baltimore City Police Department to survive dismissal; and 5) affirmed in part, where “Baltimore City State’s Attorney’s Office” is a term of convenience only and is not an entity amenable to suit.
[09/23] Santana-Concepcion v. Centro Medico del Turabo
In this medical malpractice and informed consent suit, summary judgment in favor of defendants is affirmed, where the “error of judgment” defense foreclosed malpractice liability and the failure of proof on causation foreclosed liability for lack of informed consent.
[09/22] Holguin v. Dish Network LLC
Denial of defendants’ motion for judgment notwithstanding the verdict, denial of defendants’ motion for a new trial, and the granting of contractual attorney fees to plaintiffs is affirmed, where: 1) the trial court’s use of the singular “contract” in its jury instructions and its interpretation of the plaintiffs’ contract as including an implied term of proper installation was not legal error; 2) because defendants have not otherwise shown the absence of evidence supporting the jury’s verdict, there was no error in denying defendants’ motions; and 3) it was not an abuse of discretion for plaintiffs, as prevailing party, to be awarded attorney fees.
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