Legal News Daniel S. Duggan, Attorney at Law, LLC Attorneys Arvada Colorado

[07/22] In Re: Repine
Judgment against attorney for attempting to collect fees from debtor in violation of a stay imposed by a bankruptcy court is affirmed in part and vacated in part where: 1) attorney willfully violated the stay in attempting to collect her fees; 2) attorney's refusal to consent to an agreed order to allow debtor to be released from civil incarceration caused debtor actual harm; 3) damages awarded to debtor for lost wages were appropriate; 4) debtor failed to set forth specific information regarding emotional damages; and 5) awarding attorney's fees to debtor was proper.

[07/22] Bondi v. Capital & Fin. Asset Mgmt. S.A.
Denial of motion by debtor in foreign bankruptcy proceedings to enjoin actions brought against it in the United States is affirmed where the district court acted within its sound discretion in interpreting 11 U.S.C. section 304(c)'s instruction to assure an economical and expeditious administration of a foreign estate.

[07/21] In re Reilly
Where a Chapter 7 bankruptcy debtor indicates the intent to exempt her entire interest in a given property by claiming an exemption of its full value and the trustee does not object in a timely manner, the debtor is entitled to the property in its entirety, even if it is later discovered that the property has a higher value than the exempted amount.

[07/17] Phar-Mor, Inc. v. McKesson Corp.
In the bankruptcy context, a vendor's administrative-expense priority on its reclamation claim is not effectively extinguished when the goods subject to reclamation are sold and the proceeds used to satisfy a secured creditor's superior claim.

[07/15] In re: US Med., Inc.
In a bankruptcy proceeding, a ruling finding that defendant-creditor was not a "non-statutory insider" of debtor for purposes of 11 U.S.C. section 547(b)(4)(B) is affirmed where: 1) the bankruptcy court did not make any findings that the transactions between creditor and debtor were not at arm's length, or that there was undue influence or control by creditor; and 2) thus it erred in holding creditor to be a non-statutory insider of debtor. A creditor may only be a non-statutory insider of a debtor when the creditor's transaction of business with the debtor is not at arm's length; a bankruptcy court, however, may find a statutory insider without this requirement.

Consumer Protection

[07/24] Bodine v. Graco, Inc.
The private right of action under the Motor Vehicle Information and Cost Savings Act is limited to allegations of fraud relating to a vehicle's mileage.

[07/17] Owen v. Gen. Motors Corp.
In a putative class action brought against GM after plaintiffs' windshield wipers failed alleging breach of warranty, breach of contract, unjust enrichment, fraudulent concealment and violations of the Missouri Merchandising Practices Act (MMPA), dismissal and other rulings against plaintiffs are affirmed where: 1) the district court did not err in dismissing breach of warranty and fraudulent concealment claims on statute of limitations grounds; 2) dismissal of a breach of contract claim was proper as well; 3) there was no abuse of discretion in denying leave to amend; 4) summary judgment on the state law MMPA claim was proper as plaintiffs presented no evidence from which a jury reasonably could conclude that their loss was the result of the alleged defect that GM failed to disclose.

[07/16] Sovereign Bank v. BJ's Wholesale Club, Inc.
Orders dismissing claims arising from the theft of credit card information from a retailer's computer files are affirmed in part and reversed in part where: 1) respective grants of summary judgment to defendant-acquirer on question of whether plaintiffs-card issuers were intended third-party beneficiaries under state law of the contract between defendant-acquirer and defendant-merchant required reversal, as plaintiffs had met their burden to show the existence of a genuine issue of material fact; 2) dismissal of equitable indemnification claims for cardholders' losses due to unauthorized charges was proper since TILA section 1643 addresses only the liability of cardholders, not card issuers, for unauthorized charges; 3) the economic loss doctrine barred recovery for negligence where plaintiff suffered only monetary losses without any accompanying physical or property damage; 4) for purposes of an unjust enrichment claim, plaintiff could not show that defendants derived more than an incidental benefit from plaintiff's conduct.

[07/16] Brack v. Omni Loan Co., Ltd.
In a suit alleging violations of borrower's rights under the Finance Lenders Law, and raising claims under the Consumers Legal Remedies Act and Unfair Competition Law, dismissal of the suit based on choice of law provisions in the loan agreements is reversed where: 1) the Finance Lenders Law represents a fundamental policy of the state and application of the provisions would undermine the policy; and 2) application of Nevada law would impair California's regulatory interests to a far greater extent than application of California law would impair Nevada's interests.

[07/15] Campfield v. State Farm Mut. Auto. Ins. Co.
In a suit alleging violations of the Sherman Act, the Colorado Consumer Protection Act (CCPA), and tortious interference with contractual relations, dismissal and summary judgment for defendant, and a decision not to rule on plaintiff's objection to discovery orders are affirmed where: 1) plaintiff's claims under section 2 of the Sherman Act failed to allege an appropriate market; 2) defendants dod not engage in per se horizontal restraint of trade under section 1 of the Act; 3) claims under section 1 of the Sherman Act failed for failure to allege a legally relevant market; 4) plaintiff has failed to provide sufficient evidence for a CCPA claim; 5) tortious interference claims failed for lack of evidence; and 6) there was no abuse of discretion in not ruling on plaintiff's discovery motion.

Contracts

[07/24] In re: Citigroup, Inc. Capital Accumulation Plan Litig.
In an action challenging Citigroup's Capital Accumulation Plan, which gives certain employees the option of receiving part of their compensation as Citigroup stock, awarded at a discounted rate, dismissal and summary judgment rulings against plaintiffs are affirmed where certain forfeiture provisions at issue were unambiguous, and thereby enforceable.

[07/24] MAC East, LLC, v. Shoney's, Inc.
In a diversity case involving a commercial real estate lease and a proposal by an assignee of that lease to sublease the real estate to a third party, grant of summary judgment for plaintiff-corporation as to liability on its tortious interference claim is reversed where: 1) defendant corporation was an "essential entity to the purported injured relations"; 2) both plaintiff and defendant were parties to the Assignment Agreement, and thus were "parties to a comprehensive interwoven set of contract or relations"; and 3) defendant cannot be a stranger to the sublease when consummation of the sublease would leave it obligated on the covenants on the ground lease, effectively forming a business relationship between it and proposed subleasee. A question regarding whether a commercial reasonableness standard tempers defendant's "sole discretion" to withhold consent to a proposed sublease is certified to the state supreme court.

[07/23] KT&G Corp. v. Attorney Gen. of the State of Oklahoma
In litigation arising from states' Master Settlement Agreement with the four major tobacco companies, wherein non-participating tobacco manufacturers (NPMs) challenged two states' amendments to provisions of their escrow statutes reducing the amount of escrow funds refunded to plaintiffs each year, dismissal of the claims is affirmed where: 1) the Sherman Act did not preempt the Kansas and Oklahoma amendments at issue; and 2) plaintiffs' First Amendment, equal protection, due process, and Commerce Clause claims failed.

[07/23] Cox v. Ocean View Hotel Corp.
In an employment discrimination case involving an employment agreement containing a mandatory arbitration clause, denial of defendant-employer's motion to compel arbitration and partial summary judgment for plaintiff is reversed where: 1) for purposes of a breach-of-agreement theory, plaintiff did not properly initiate arbitration under the terms of his employment agreement via a letter he sent; and 2) the district court improperly granted summary judgment in plaintiff's favor on the issue of waiver.

[07/23] Magallanes v. Ill. Bell Tel. Co.
Dismissal of an employment-discrimination suit because the parties had settled is reversed where defendant-employer did not meet its burden to prove that plaintiff's attorney had in fact been authorized to enter into a settlement agreement.

Probate Trusts

[07/16] Perrin v. Lee
In a probate proceeding, denial of plaintiffs' section 21320 safe harbor petition for a determination that their proposed petition to invalidate two trust amendments would not be a contest within the meaning of a no contest clause in a trust is reversed where: 1) the trust did not explicitly state that a contest to an amendment would violate the no contest clause; and 2) the no contest clause was not incorporated by reference into the amendments.

[05/15] Miller v. Campbell
In a fees dispute brought by a law firm against the executor of an estate after the probate court refused to award a category of fees associated with services rendered for the executor's personal matters, grant of executor's motions in limine to exclude all evidence, resulting in dismissal of the case, is reversed where: 1) the doctrines of res judicata and collateral estoppel did not apply to bar the law firm's claim of fees against the executor personally; and 2) in light of the evidence, the trial court erroneously ruled that the evidence was insufficient, as a matter of law, to support the law firm's quantum meruit claim.

[05/13] Montegani v. Johnson
In a dispute over a decedent's estate involving revocable and irrevocable trusts, an order denying plaintiff's Probate Code section 21320 application based on her lack of standing for section 21320 relief is affirmed where, as part of its duty to oversee the administration of the estate and insure orderly administration of justice, the trial court properly concluded that plaintiff was no longer a beneficiary of the trusts at issue, and thus lacked standing to seek declaratory relief under section 21320.

[05/06] Estate of Herold
An order denying petitioner's safe harbor petition, which sought a declaration that his proposed "Petition for Information" would not amount to a will contest, is reversed and remanded where the trial court erred in finding that a no contest clause of the will was incorporated by reference into a trust.

[05/06] Estate of Coll-Monge v. Inner Peace Movement
In an action for trademark infringement and related claims, summary judgment for defendants-non-profits is reversed in part and remanded where: 1) the district court erred in holding that a non-profit corporation cannot be a related company whose use of the trademark is controlled by the mark's registrant; and 2) there remain disputed issues of fact regarding both the doctrine's applicability in this case, and the capacity in which testator registered the marks with the USPTO.

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