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case update

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In Re: Louis A. Gencarelli, No. 06-2700

In a bankruptcy dispute over a commercial lender’s right to receive a bargained-for prepayment penalty from a solvent debtor, judgment for debtor is reversed where, regardless of reasonableness, an oversecured creditor may be entitled to collect bargained-for prepayment penalties as the functional equivalent of unsecured debt. The matter is remanded to the bankruptcy court to determine whether the prepayment penalties are enforceable under section 502 of the Bankruptcy Code.

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Mercantile Peninsula Bank v. French, No. 06-1405

Denial of debtor’s bankruptcy discharge petition and award of summary judgment to creditor is vacated where: 1) a genuine issue of material fact exists on whether debtor made false statements in his bankruptcy proceedings with an intent to defraud; and 2) a reasonable factfinder could find that the records produced by debtor were sufficient to permit an assessment of his financial condition and that, to the extent debtor had failed to produce certain records, such failure was justified in the circumstances.

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Parker v. Goodman, No. 06-5940

In an appeal arising from adversary proceedings brought in bankruptcy court, an order permanently enjoining defendant-debtor from prosecuting a state legal malpractice claim against his former bankruptcy counsel is affirmed as: 1) defendant’s attempts to assail the validity of the bankruptcy court’s Order of Sale of the malpractice claim, however indirectly, were statutorily moot; and 2) the injunction does not run afoul of the Anti-Injunction Act.

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Johnson v. Smith, No. 05-8089

In order to demonstrate a violation of an automatic stay of 11 U.S.C. section 362(k)(1) in bankruptcy proceedings, the debtor bears the burden of establishing, by a preponderance of the evidence, that the creditor knew of the automatic stay and intended the actions that constituted the violation; no specific intent is required. A determination that defendant-dealership willfully violated an automatic stay of 11 U.S.C. section 362 by repossessing a pickup truck after a Chapter 13 bankruptcy petition had been filed is affirmed where: 1) the determination by a preponderance of the evidence that defendant willfully violated the automatic stay was proper; 2) a Retail Installment Contract and Security Agreement was not an executory contract.

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