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The Bankruptcy Court was left to decide this issue pursuant to guiding Fifth Circuit precedent and section 1123(b) of the Bankruptcy Code. More recently, the Fifth Circuit relaxed the standard for reserving a claim, finding that a bankruptcy court may review other material, in addition to the plan, like solicitation material associated with the plan (i.e., disclosure statement), to determine whether a claim is properly reserved. The requirement to properly reserve a claim derives from section 1123(b)(3) of the Bankruptcy Code, which specifically provides that a chapter 11 plan may provide for “the retention and enforcement by the debtor, by the trustee, or by a representative of the estate appointed for such purpose, of any 11 U. If it is, then section 1123(b) and leading Fifth Circuit precedent would require proper reservation. On the other hand, if a non-dischargeability action is merely an extension of the underlying claim (which will be pursued later), then why wouldn’t the specific mention of the underlying claim suffice to reserve the related non-dischargeability action?
Decision One Mortgage Company, LLC, Counter Claimant Honor Bank, Counter Claimant PHH Mortgage Corp., Counter Claimant Sierra Pacific Mortgage Company, Inc., Counter Claimant Res Cap Liquidating Trust, Counter Defendant Residential Funding Company, LLC, Counter Defendant Academy Mortgage Corporation, Defendant American Mortgage Network, Inc., Defendant American Mortgage Network, LLC, Defendant American Residential Investment Trust, Inc., Defendant Americash, Defendant Amnet Mortgage LLC, Defendant Amnet Mortgage, Inc., Defendant Ark-La-Tex Financial Services, LLC, Defendant BMO Harris Bank, N.
Several years later the Bankruptcy Court confirmed (approved) the a chapter 11 plan, which had been proposed, not by the chapter 11 trustee, but one of the Corporation’s creditors (who was out a fair amount of money).
The Bankruptcy Court nonetheless believed that it was in the best interest of creditors for the bankruptcy case to proceed under chapter 11, instead of a chapter 7 liquidation.
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