Courts Disagree Whether Post-Petition Acquisition of Property May be Basis for Revocation of Discharge Under Section 727(d)(2)

by Matthew Gensburg | Feb 13, 2023 | GCK on Law

Section 727(d) of the Bankruptcy Code provides for a debtor’s discharge to be revoked in certain circumstances, including under subsection which states: (d) On request of the trustee, a creditor, or the United States trustee, and after notice and a hearing, the court...

Eligibility considerations in Chapter 13 for Simultaneous Proceedings under Section 109(e)

by Matthew Gensburg | Jan 6, 2023 | GCK on Law

The Bankruptcy Code (the “Code”) does not expressly prohibit a Chapter 7 debtor from simultaneously seeking relief under Chapter 13.  Notwithstanding this fact, courts have split on whether a debtor may maintain two separate pending bankruptcy proceedings.  A majority...

Courts Disagree Whether the Attorney-Client Relationship Gives Rise to “Fiduciary Capacity” as Required by Section 523(a)(4)

by Matthew Gensburg | Dec 15, 2022 | GCK on Law

Section 523(a)(4) of the Bankruptcy Code excepts from discharge all debts “for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny.”  The term “fiduciary” has traditionally been given a “strict and narrow” definition, referring to...

Circuit Survey of Section 523(a)(1)(C) Willful Attempt to Evade or Defeat Tax Liability

by Matthew Gensburg | Nov 22, 2022 | GCK on Law

Section 523(a)(l)(C) of the Bankruptcy Code provides that a discharge under Section 727 “does not discharge an individual debtor from any debt – (1) for a tax or a customs duty – (C) with respect to which the debtor made a fraudulent return or willfully...

Section 541(a) 704(1) Causes of Action/Pierce Corporate Veil

by Matthew Gensburg | Oct 13, 2022 | GCK on Law

Section 541 of the Bankruptcy Code establishes that a debtor’s bankruptcy estate includes “all legal and equitable interests of the debtor in property as of the commencement of the case.”  This includes potential and actual causes of action that run in the debtor’s...

Courts Disagree Whether Actual Prior Course of Dealing is Necessary to Ordinary Course Defense Under Section 547(c)(2)

by Matthew Gensburg | Oct 5, 2022 | GCK on Law

Section 547(c)(2)(B) of the Bankruptcy Code was the former subjective component of the three-pronged test set forth in Section 547(c)(2) of the Bankruptcy Code and involves the question of whether the transfer was “made in the ordinary course of business or financial...