Annotations

(denial of certiorari in Chapter 12 bankruptcy case on issue of whether taxes arising post-petition are entitled to non-priority status based on 11 U.S.C. §1222(a)(2)(A); issue decided in favor of IRS in Hall v. United States). 


(63-year old debtor satisfied 11 U.S.C. Sec. 523(a)(8) which provides for discharge of student loan if not discharging the loan would result in an undue hardship to the debtor; student loan debt of $340,000 discharged; debtor suffered from Asperger Syndrome which rendered her unable to gain employment; debtor obtained GED in late 1980s at age 39, received master's degree and Ph.D. from unaccredited online school in 2007, and attended but dropped out of law school).


(in affirming Ninth Circuit, Court holds that plain language of 11 U.S.C. Sec. 1222(a)(2)(A), in coordination with I.R.C. §§ 1398 and 1399, results in taxes arising post-petition in Chapter 12 being the debtor's responsibility; no separate taxable entity from the debtor created in Chapter 12 and taxes do not constitute administrative claims in accordance with 11 U.S.C. § 503(b)).  


(Chapter 7 case in which debtors claimed exemption for $139,000 contained in retirement plan; trustee objected and court held that funds not exempt from inclusion in bankruptcy estate; pre-petition, funds had been transferred to different bank account to be used to invest in real estate in Panama with $139,000 remaining in account at time petition filed; Illinois opted out of federal exemption scheme, and state law does not exempt assets that were once held in qualified IRA but were no longer so held at time of petition; state law exempts interests held in qualified IRA and does not exempt right to receive such funds). 


(debtor was Kansas resident at time petition filed, but had not resided in Kansas for 730 days before petition date; debtor lived in Nebraska during the the entire 180 day period preceding the 730-day period; Nebraska state bankruptcy exemptions are only available to Nebraska residents and bar Nebraska residents from claiming federal exemptions, so debtor claimed more generous federal exemptions in accordance with 11 U.S.C. Sec. 522(d); trustee objected;  court overruled trustee's objection to debtor claiming federal exemptions because Nebraska's territorial limitations not preempted by 11 U.S.C. Sec. 522; when debtor can establish residency for greater part of 180-day period, that state's laws apply to debtor's exemption rights and if those rights are denied by operation of law, federal exemptions may be claimed; 11 U.S.C. Sec. 522(b) does not pre-empt territorial limitation). 


(debtor filed Chapter 12 and initial plan was denied confirmation as was first amended plan and second amended plan; debtor proposed third amended plan and proposed to sell 40 acres from Idaho property to pay creditors along with changing farming operations and drive truck to insure plan payments made; court determined that third amended plan was feasible, but that it was not equitable or in good faith to parse out the 40 acres from the balance of the land in the bankruptcy estate with hopes that unsecured creditors would receive a distribution; plan not confirmed because it failed to ensure that unsecured creditors would receive the same as if case were a Chapter 7 case (11 U.S.C. Sec. 1225(a)(4)). 


(debtor was 52 years old and had student loan debt of between $260,000 and $320,000; debtor did not have any dependents or any physical problem that would negatively impact debtor's ability to earn a living as a licensed psychologist; evidence also showed that income had somewhat increased over time; debtor not entitled to "undue hardship" exception to non-discharge of student loan debt under 11 U.S.C. Sec. 523(a)(8)). 


(debtor started Keogh retirement plan in 1992 and plan fell out of compliance with tax rules; about 10 years later, debtor filed bankruptcy under claimed funds in retirement account were exempt under Utah law even if plan not qualified for beneficial tax treatment; Utah Supreme Court, on certified question, said state law exempts funds in Keogh account if plan substantially complies with tax code; court holds that account substantially complies and funds exempt; but, contributions within one year of petition date not exempt, along with earnings on such contributed amounts). 


(in case of first impression under Idaho law, court held that a Chapter 7 debtor must make election concerning how to receive annuity payments by before petition filed for annuity benefits to be exempt (up to a maximum amount); court determined that not making such election before petition date would frustrate legislative intent of capping amount of exempt monthly benefits).


(debtors, married couple, opened two I.R.C. §529 Education Savings Accounts for benefit of husband’s two children from prior marriage and filed Chapter 7 petition less than five months later; debtor moved for order directing turnover of funds in accounts; accounts held to be property of bankruptcy estate because wife owns accounts and contributions made within year preceding petition date; no state or federal exemption applies; while Bankruptcy Code provides special treatment for domestic support obligations, such treatment does not include earmarking pre-petition assets for post-petition obligations; accounts held to be non-exempt property of bankruptcy estate; see also In re Bourguignon, 416 B.R. 745 (Bankr. D. Idaho 2009)).


(Chapter 11 case in which debtor had interest in I.R.C. Sec. 401k retirement plan and claimed plan as exempt; case converted to Chapter 7; plan funds rolled over into IRA and then debtor withdrew funds after debtor turned 59 and 1/2; trustee claimed that IRA not scheduled or disclosed to court and is non-exempt; trustee requested turnover of withdrawn amounts; debtor claimed that 401(k) funds were ERISA qualified and claimed as exempt in Debtor's original schedules and that funds rolled over into IRA and continue to be exempt; record showed that at petition date funds frozen in I.R.C. Sec. 401(k) plan and was listed on original exemption schedules; lack of evidence that funds came from other than the plan; no penalty on withdrawals).


(Chapter 7 case involving debtors with primarily credit card debt and mortgage; debtors had income above median income level for debtors’ household size; trustee moved to dismiss case on basis that debtors’ adjusted monthly income was high enough that made it presumptively abusive for debtors to continue under Chapter 7 rather than repaying debts in context of Chapter 13; debtors claimed that “means test” (11 U.S.C. §707(b)) which limited them to deduction not to exceed $1,775 annually as school expense per child violated First Amendment right to send their children to religious school and barred them from receiving a discharge; means test facially neutral and does not bar debtors from practicing their religion; government has compelling interest in ensuring fair and efficient application of Bankruptcy Code; debtors’ attempt to use Bankruptcy Code to subsidize private school expenses runs counter to government’s compelling interest; debtors’ personal financial situation was cause for debtors not being able to send children to religious school). 


(declaratory judgment action brought by trustee for guidance on disbursement of equipment sale and crop insurance proceeds in Chapter 7 bankruptcy and avoidance of bank’s security interest due to errors in agreement; Agricultural Security Agreement for loan by bank failed to correctly identify date value was given for first loan; no dispute value provided so all requirements of enforceability satisfied because mistake in description of secured debt does not render otherwise valid security agreement unenforceable; no allegations of being misled by incorrect representation in suit; bank’s later loan not secured because bank failed to include future advances or dragnet clause in security agreement; court agreed with Fifth Circuit decision (In re Cook, 169 F.3d 271 (5th Cir. 1999)) that Federal Crop Insurance Act pre-empts UCC Article 9, which means exclusive method for creditor to obtain lien in undisbursed proceeds is through FCIA authorized assignment process).


(under 11 U.S.C. Sec. 548(a)(2)(A), bankruptcy trustee could avoid portion of charitable contributions debtors made to church over two-year period before bankruptcy filing that exceeded 15 percent of debtors' gross annual income; trustee's argument that statute requires debtors' contributions (which exceeded 15 percent threshold in both preceding years) be avoided in their entirety is rejected).


(state court judgment entered for estate against debtor and writ of execution issued which ordered sheriff to sell debtor’s vehicle to satisfy judgment; estate paid creditor amount of loan secured by vehicle and sheriff schedule sale which never occurred because debtor filed Chapter 7; debtor claimed portion of their interest in vehicle exempt under Iowa law and filed motion to avoid estate’s judgment lien which is avoidable under 11 U.S.C. §522(f)(1); bankruptcy court denied debtor’s motion; on appeal B.A.P. affirmed on basis that lien not judgment lien but consensual lien under Iowa law; when loan paid off, estate stepped into shoes of bank under Iowa Code §626.37 and held non-avoidable consensual lien; thus, amount estate advance to pay off loans secured by bank’s lien against debtor’s vehicle not secured by judicial lien).


(inherited IRA is exempt asset in bankruptcy; court reasons that inherited IRA holds "retirement funds" in accordance with meaning of 11 U.S.C. Sec. 522(d)(12), and that inherited IRA is tax exempt by virtue of I.R.C. Sec. 408(e); funds set aside for retirement and that character of funds determined by purpose for which they were set apart, not by what subsequently happens).


(debtor transferred real estate to sham trust in attempt to defeat creditors; transfer not deemed void as to judgment creditor under state (CO) law; judgment creditor not yet begun prosecuting case against debtor to judgment as required to establish status as judgment creditor; for judgment creditor to attach lien to real estate transferred to trust, creditor had to file action to establish fraudulent conveyance).


(consolidated opinion regarding four identical objections by trustee to debtors claimed exemptions for firearms; debtors listed one or more firearms as exempted “household goods” under California’s statutory exemptions; evidence presented that firearms used for personal protection and hunting and recreation; trustee requested court to find firearms per se are not exempt household goods; in its holding, court distinguished earlier cases, In re Thornton and In re Eveland, and held firearms can be exempt under broad California statute when evidence shows personal use and purpose of firearms, potential recreational value, reasonable necessity, and community standards establishing firearms “ordinarily found in household”; trustee in these cases failed to rebut debtors’ presumptions regarding firearms, so all debtors entitled to exemption).


(Chapter 12 case where creditor seeks relief from automatic stay and abandonment; relief granted because court determined that debtor did not file bankruptcy in good faith and legitimate questions existed as to whether reorganization plan feasible).


(plaintiff constructed earthen levee on property without permit; county issued cease and desist order and required levee to be removed; plaintiff argued “common enemy” doctrine enables him to build levee to protect his property from further flooding and exempts him from local regulations; court holds common enemy doctrine serves only as defense to liability for damaging adjacent properties; doctrine does not exempt landowner from local regulations).


(Chapter 12 case; debtors (married couple) farmed hay and raised horses since 1999; debtors purchased land securing bank’s claim in 2007 and decided to build home on tract in 2008; home construction loan executed in 2008 and bank approved debtors for 30-year adjustable rate permanent loan; home completed in 2009 and parties engaged in dispute over bank’s commitment to permanent financing ultimately resulting in foreclosure of construction mortgage and pending sale of home which precipitated debtors’ Chapter 12 filing; debtors’ office and farm headquarters located in newly constructed home; issue was whether debtors qualified for Chapter 12; if bank’s principal and interest claim included in debtors’ farm debts, 50 percent test satisfied; court determined that construction portion of bank loan included in debtor’s “farm” debt because house was integral part of farm operation due to farm’s books and records maintained in office in home and home’s proximity to farming operation which allowed debtors to care for livestock and maintain irrigation system; debtors’ treatment of bank’s claim also satisfies 11 U.S.C. §1225(a)(5) – U.S. Supreme Court decision in Till v. SCS Credit Corp., 541 U.S. 465 (2004), overrules In re Hardzog, 901 F.2d 858 (10th Cir. 1990) and formula approach to determining cramdown interest rate applicable to Chapter 12 reorganization plan to be utilized rather than market rate for similar loan approach of Hardzog; interest rate is prime rate plus 2 percent; amended Chapter 12 plan feasible and confirmable). 


(plaintiff, creditor, sought determination that state court judgment against Chapter 12 debtors for fraud in sale of longhorn cattle be excepted from discharge; plaintiff filed summary judgment for issue preclusion determination that state court opinion of findings and conclusions of fraud satisfied 11 U.S.C. § 523(a)(2)(A) - exception from discharge for fraud because state factors were virtually identical; bankruptcy judge granted plaintiff’s summary judgment motion as to fraud portion of judgment as exempt from discharge, but state court judgment awarding attorney fees  reversed).


(case involved issue of what the appropriate test is for determining whether a river is navigable such that the state owns the riverbed; case involves wholesale generator of electricity that challenged trial court determination that defendant owned the riverbed and was, therefore, entitled to damages for generator's use of riverbeds from 2000-2007 at hydroelectric power stations; state Supreme Court affirmed on basis that rivers were navigable at time of statehood in 1889 and by providing a channel for commerce at that time; U.S. Supreme Court reversed (unanimously) on basis that Equal Footing Doctrine specified that states did not hold title to riverbeds on portions of rivers that were non-navigable at time of statehood; Court determined that Missouri River non-navigable over 17-mile Great Falls reach  - from head of first waterfall to foot of last; present-day recreational use of Madison River had  no bearing on navigability issue; in addition, state's lack of assertion to title over riverbed over long period of time provided additional evidence that river segments at issue non-navigable). 


(Chapter 13 case; post-petition income that becomes available to debtor after debtor's I.R.C. Sec. 401(k) loans are repaid in full constitutes "projected disposable income" that must be turned over to trustee and committed to reorganization plan; such amounts cannot be used to fund voluntary I.R.C. Sec. 401(k) plans).


(Chapter 7 debtor (real estate agent) moved to hold former employer in contempt for violating automatic stay provision by withholding sales commissions earned pre-petition but due post-petition; debt incurred as result of agency pre-paying bills for which debtor was responsible; agency applied commissions owed to debt; bankruptcy court held commission earned pre-petition was part of bankruptcy estate and failing to disclose interest in schedules meant debtor was judicially estopped from claiming interest at later date and debtor lacked standing because entitlement to commissions became property of estate; debtor appealed these two issues; appellate court affirmed on both issues; court held commission was property of estate because right to commission vested post-petition, payment was made for services rendered pre-petition, so interest in commission required to be disclosed; court also agreed agency was entitled to commission pursuant to doctrine of recoupment, which permits the offset of debts when obligations are based on same transaction or occurrence; court found historical practice of applying commissions to outstanding expenses prepaid to enable commissions to be earned, so doctrine applied).


(debtors moved to Massachusetts from Arizona less than 730 days prior to filing bankruptcy  so met requirements for domicile in Arizona under code; trustee argued exemptions claimed by debtors must be based on Arizona law, which is an “opt-out” state, meaning Arizona debtors can only use state exemptions; debtors argued this applied only to current residents; court held Arizona’s opt-out requirements applies only to residents, state’s statute does not have extraterritorial powers, and federal preemption does not apply to opt-out statutes; debtors can rely on federal exemptions).


(Chapter 11 case involving petition of group of commodities customers seeking application of Subchapter IV of Chapter 7 and Part 190 of CFTC regulations that would give priority to commodities customers of debtor-parent’s subsidiary, a futures commission merchant; conversion to Chapter 7 a necessary requirement and debtors must have acted as a “commodity broker”; statute inapplicable to Chapter 11 debtors even under court’s equitable powers; debtor did not meet definition of commodity broker). 


(bankruptcy case; debtors granted permission under 11 U.S.C. Sec. 365(a) to reject contracts for growers supplying chickens to an unprofitable plant under Chapter 11 bankruptcy; growers brought claim for damages from the rejected contracts; summary judgment granted in favor of growers allowing claims for damages caused by debtor’s breach of contract; damages to be ascertained).


(plaintiff claimed that, under 11 U.S.C. § 523(a)(2)(A),  debtor’s obligation should not be discharged because loans were obtained under false pretenses; requirement for proof of claim is that debtor made a representation, but representations regarding the financial condition of the debtor are expressly excluded under the statute; plaintiff unable to prove representations that debtor’s business was profitable meet the remaining requirements; court held that, without more, a broken promise to repay does not satisfy the statutory requirements). 


(Ener1, Inc. filed Chapter 11 bankruptcy in eastern district of New York listing assets of $73.9 million and debts of $90.5 million; company had received $118 million in taxpayer dollars from U.S. Energy Department to make electric-car batteries).


(bankruptcy trustee objected to Chapter 13 debtors’ exemption of debtor wife’s settlement proceeds received for pre-petition loss of consortium claim arising out of automobile accident involving debtor husband; court holds that generally an 11 U.S.C § 522(d)(11)(D) exemption is applicable to a loss of consortium claim; in this case, there was no evidence that the settlement proceeds were paid in settlement of the wife’s claim, so the interest in her claim remains unliquidated and a decision regarding the exemption would be premature).


(Chapter 12 case involves appeal from bankruptcy court order which granted trustee's motion to disburse unsecured funds denying any funds to appellant bank who did not file proof of claim; court did not view bank's pleadings to be informal proofs of claim allowing creditor to file formal proof of claim that would relate back to date informal proof filed; court held that pleadings did not meet all requirements as specified by Tenth Circuit to qualify as informal proof of claim; bankruptcy court order affirmed).


(purchasing party of Agriprocessors’ real property during bankruptcy proceedings received court order approving sale free and clear of all liens; county held tax lien on property but was not listed as creditor and did not receive notice of bankruptcy; county brought proceedings against purchaser to set aside the order approving the sale; ruling on summary judgment, court held county did not have actual notice of bankruptcy proceedings to defeat lack of procedural due process required to protect rights; purchaser not bona fide purchaser because had knowledge of tax lien; remedy must be determined at trial because questions of fact remained regarding purchaser’s expectations at sale and whether bankruptcy trustee agreed to pay tax liens).


(trustee objected to exemption claimed by debtors for savings account self-described as a trust for their son; account opened and transfers to account made within four years of bankruptcy petition; account listed on Schedule C to the bankruptcy petition and classified  as exempt; in year before  bankruptcy filing, $14,540 deposit made from other bank account and withdrawals from the savings account were made by debtors; count found account was “Totten” account; no transfer for trustee to avoid, account properly scheduled and exempted account).


(drainage case; County Surveyor claimed that plaintiff failed to comply  with Indiana Code on two drainage projects; court determined County Surveyor had standing to bring suit and that one project did not implicate Indiana’s regulated drain statute because regulated drains by definition are an “open channel” and there were no open channels in the subdivision;  second project involved removal of an apparent obstruction without participation by the County Surveyor, which was contrary to Indiana Code.) 


(defendant pumps water from plaintiff's irrigation canal to irrigate defendant's farmland; irrigation occurred on hillside which caused erosion and landslides that damaged canal and neighboring property; defendant settled with adjoining property owner; trial court entered order barring defendant from using canal water in a manner that would not result in any groundwater recharge and that all surface irrigation be diverted from slide mass and no excess irrigation be applied to crops being cultivated on defendant's farmland; trial court determination upheld and matter did not constitute condemnation proceeding).  


(inherited IRA exempt from debtor’s bankruptcy estate under 11 U.S.C. Sec. 522(b)(3)(C) because they are “retirement funds” that are tax-exempt under I.R.C. §408; decedent died about a year after establishing account which named daughter as beneficiary; daughter had own IRA and had balance of decedent’s IRA rolled into hers and then took monthly distributions from it before retiring; over nine years later daughter and husband filed Chapter 7; bankruptcy court ruled IRA not exempt; on review, court determined that IRA account funds need not be “retirement” funds of the debtor to qualify for exemption; court followed majority view that direct transfers of retirement funds from tax-exempt account qualify for exemption, and immaterial that there are differences between traditional IRAs and inherited IRAs due to I.R.C. §408(e)(1); question of whether inherited IRA should be exempt up to the Congress to change the statute).


(student loan debt not dischargeable because debtor failed to satisfy undue hardship test; unemployment not likely to continue for various reasons; medical condition did not impair ability to work; debtor did not have total incapacity to pay debts in the future).


(involuntary Chapter 7 petition filed against debtor and debtor claimed that petition failed to contain at least three entities holding separate claims as required by 11 U.S.C. Sec. 303(b)(1); petitioning creditors were married couple and couple's daughter - debtor's ex-wife; liability arose out of $12,000 loan from ex-wife's parents to debtor and ex-wife evidenced by promissory note payable to "husband and wife"; creditors held single claim; only two petitioning creditors existed and involuntary petition fails).


(debtors may discharge more than $450,000 in student loan obligations in bankruptcy because payment of even a small portion of student loan debt would impose undue hardship on debtors as defined by 11 U.S.C. §523(a)(8); $22,000 of medical expenses incurred post-petition and debtor couple ages 60 and 58; sufficient evidence present of debtors’ health problems that limited employment prospects).


(1945 state law providing for exemptions from permit requirement for certain types of withdrawals of groundwater applies to withdrawals for stock-watering purposes and does not limit such withdrawals to any particular quantity; withdrawals at issue involved between 450,000 and 600,000 gallons per day for 30,000-head cattle feedlot; at time of enactment in 1945 legislature could have reasonably believed that stock-watering was of significant importance and impact of such watering slight; dissent opined that legislature never intended that statute would allow such large withdrawals with no examination of whether existing rights impaired or public welfare harmed). 


(decedent's revocable trust named son sole trustee and gave beneficiary power to direct trustee in righting to retain distributions; trust also contained creditor protection provision for beneficiary; upon decedent's death, debtor received $20,000 from trust and then filed Chapter 7 bankruptcy; trustee sought distribution scheduled to be made post-petition, but debtor (as beneficiary) instructed trustee in writing to not make distribution; bankruptcy trustee's motion for summary judgment not granted because trustee properly withheld future trust payments).


(chicken contract growers’ claims in bankruptcy denied – promissory estoppel claims lacked legal merit; in spite of contact language indicating otherwise, growers claimed recovery from debtor based on statements made to growers by debtors’ employees that each grower “would receive chickens as long as he met the company’s requirement” and that debtor was “here for the long haul”; as such, growers claimed statements meant that contracts would remain in effect for a time period long enough for each grower to earn enough income under the contract to cover their cost of rendering performance under each contract; subject of statements are express elements of contracts; contracts specific and complete and specify that type of damages growers’ claim not recoverable).


(while Social Security benefits constitute "gross income" for purposes of Chapter 12 only to the extent provided in the tax code, and "qualified military benefits" are excluded from gross income, debtor did not establish that any of his military benefits were "qualified military benefits as defined in the tax code, and that even with excluding debtor's average monthly Social Security income, debtor still did not have more than one-half of his income from farming in each of the second and third years preceding petition date or in the year preceding filing Chapter 12; debtor ineligible for Chapter 12 relief). 


(Chapter 12 case; creditor filed claim asserting it was owed over $5,900,000 via promissory notes secured by debtor’s land and improvements now owned by another creditor; parties agree that other creditor has priority to extent of $315,000, but disagree as to value of real estate; debtor submitted amended plan providing for interim interest-only during pendency of litigation; amended plan proposes payment of allowed secured claim amortized over 30 years with interest and balloon payment; value of collateral at issue because it cannot be less than allowed amount of claim if secured creditor doesn’t accept plan and plan doesn’t propose  surrender of property to secured creditor;  court reject debtor’s valuation as presented by real estate broker who is not a licensed appraiser; secured creditor presented testimony of licensed appraiser who submitted written appraisal; appraisal (which was $640,000 higher than broker’s estimate) well documented and reasonable; creditor’s objection to feasibility of plan rejected because of pending litigation over claim amount and all debtor has to do is fund interest-only payments until claim amount determined; but plan cannot be confirmed because debtor has agreed to make amendments; debtor has until Feb. 1, 2012 to file amended plan). 


(court upholds bankruptcy court's denial of debtor's discharge due to debtor's making of false statements on financial disclosure and omitting existence of livestock business, gross income from livestock business, other income, transfers of certain assets and co-ownership of vehicle with wife; debtor claimed that he misread questions on Statement of Financial Affairs document and was not trying to mislead and claimed that he didn't list his farming business because it was "like hobby farming" for him; as to asset transfers, debtor claimed that assets were not collateral but didn't provide copy of security agreement and did not rebut finding that bank had security interest; do not be dischargeable under 11 U.S.C. Sec. 727(a)(4)(A), false statement must be both material and made with intent; requirements satisfied; discharge denied).


(Chapter 13 debtor  appealed from denial of plan confirmation for debtor’s failure to include social security benefits in projected disposable income; on appeal, district court held that social security benefits are expressly excluded from the calculation of disposable income; failure to include entire amount of social security benefits from debtor and non-filing spouse does not constitute bad faith; bankruptcy court Order of Dismissal reversed).


(debtor filed Chapter 12 petition; case converted to Chapter 11 and then Chapter 7; debtor asserts wrongful termination of Sow Contract Grower Agreement, and breach and anticipatory repudiation of Nursery Contract Grower Agreement as well as breach and anticipatory repudiation of unwritten lease of pig finishing floor space at debtor’s farming operation; defendants moved to compel arbitration which court dismissed; court initially held that debtor’s claims for post-petition breach of pre-petition Nursery Agreement and Finishing Agreement were “core” proceedings under 28 U.S.C. Sec. 157(b)(2) and, as a result, arbitration clause in Nursery agreement was unenforceable; court also determined that enforcing arbitration provision in Sow Agreement was inappropriate because it would be counter to Chapter 11’s goal of rehabilitating debtor; in this opinion, court holds that debtor’s claims are non-core, but are related to underlying bankruptcy case and that court can hear claims and submit proposed findings of fact and conclusions of law to district court on unwritten finishing agreement; Nursery Agreement and Sow Agreement contain arbitration provisions and must be submitted to arbitration; further proceedings stayed pending conclusion of arbitration). 


(Chapter 12 case involving issue of distribution of proceeds of equipment sale on which bank, as senior creditor, had lien and supplier had junior lien; bank held debtor's land as security for loan and was oversecured; reorganization plan proposed retention of real estate that secured senior creditor's debt; bank motioned to receive all proceeds of equipment sale, and supplier proposed marshaling with proceeds from equipment sale going to junior creditor; court rejected junior creditor's proposal because senior creditor had right to cash out it's position first and not have to rely on real estate for payment under long term-loan as proposed in reorganization plan; supplier's alternative proposal to take second lien on real estate rejected). 


(Beacon Power, located in Massachusetts and recipient of federal government loan guarantees in excess of $43 million has filed for bankruptcy; company had proposed to build storage devices for intermittent power produced by wind and solar power facilities, but failed to attract investors).


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