Colorado Bankruptcy Options - Credit Counseling
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Recent Notable Opinions from Colorado Bankruptcy Courts
Weinman v. Miscio & Stroud, et al., Adversary Proceeding No. 03-1109-SBB decided January 30, 2004 by the
Colorado Bankruptcy Court. The trustee in this Chapter 11 case filed an adversary complaint under 11 USC.547 &
550 to avoid preferential transfers against a corporation and two individuals. The trustee contended the debtor
tendered 2 prohibited payments totaling $29,000 to the corporation within 90 ninety days before the petition was
filed. The complaint further alleged that the corporation subsequently transferred these payments to the
individual defendants in separate installments. While the adversary complaint was pending before the Colorado
Bankruptcy Court, the corporation agreed to accept a default judgment. The trustee's complaint asserted two
claims for relief: 1) the transfers to the corporation were voidable as preferences according to 11 USC
547(b), and 2) "In the alternative, the [corporation] upon receipt of the funds was obligated to immediately
disburse the funds to the [two individuals]. Therefore, the corporation was merely a conduit, and [the two
individuals] are initial transferees." The corporation failed to answer the complaint yet indicated to the
trustee's office it did not object to a default judgment entered by the Colorado Bankruptcy Court. After entry
of the default judgment, the 2 individuals sought dismissal of the complaint upon the pleadings based upon the
doctrine of election of remedies. The Colorado Bankruptcy Court held: Because the corporation was insolvent,
controlled by the individuals, and retained questionable authority to accept a default judgment, the Colorado
Bankruptcy Court was not prohibited to allow the trustee to seek reimbursement from the individuals.
Recent Notable Opinions of the Supreme Court of The United States:
Lamie v. United States, No. 02-693 (2004), Argued November 10, 2003, Decided January 26, 2004, CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT. Prior to 1994, 11 U.S.C. 330(a) authorized courts to
award trustees, examiners, professional persons employed under 11 U.S.C. 327, or debtors' attorneys reasonable
compensation for services rendered. In 1994, Congress amended 11 U.S.C. 330(a) by deleting "or to the debtor's
attorney" from what was 11 U.S.C. 330(a) and is now Sec. 330(a)(1). This change was apparently a legislative
drafting error. The section is missing "or" that infects its grammar. And its inclusion of
"attorney" in what was Sec. 330(a)(1) and is now Sec. 330(a)(1)(A) defeats the parallelism between
current Secs. 330(a)(1) ("trustee, examiner, or professional person") and 330(a)(1)(A) ("trustee,
examiner, professional person, or attorney"). In this case, the petitioner filed an application
seeking attorney's fees under new 11 U.S.C. 327330(a)(1) for the time he spent working on a behalf of a debtor in
a chapter 7 proceeding. The Government objected. Petitioner admitted he was not employed by the trustee or
approved by the court , but nonetheless contended new 11 U.S.C. 330(a)(1) authorized a fee award because
he was a "debtor's attorney." In denying the petitioner's application, the Bk. Court, District Court,
and 4th Circuit all held 11 U.S.C.330(a)(1) does not authorize payment of attorney's fees to debtors' attorneys
unless the attorney has been appointed under Sec. 327. Held: under the Code's plain language, Sec. 330(a)(1)
does not authorize compensation awards to debtors' attorneys from estate funds unless employed under 11 U.S.C.327.
The resources we list relate in some way to filing Colorado Bankruptcy, whether laws, discharge, reorganization
or other topics . Vast bodies of law apply to Colorado Bankruptcy proceedings and are incorporated by the courts
within each case. As new Colorado Bankruptcy laws are enacted each year, the scope of this website continues to
grow.
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