Braunstein v. McCabe (2009)

Because the court's fraud-on-the-court determination involved both conclusions of law and findings of fact, it presents a "[m]ixed question[] . . . [that] 'invok[es] a sliding standard of review . . . .'" In re IDC Clambakes, Inc., 727 F.3d 58, 64 (1st Cir. 2013) (last alteration in original) (quoting Braunstein v. McCabe, 571 F.3d 108, 124 (1st Cir. 2009)).

Braunstein v. McCabe, 571 F.3d 108, 122 (1st Cir. 2009) (quoting Tull v. United States, 481 U.S. 412, 424 (1987)).

First, we “compare the new statutory action to 18th-century actions brought in the courts of England prior to the merger of the courts of law and equity.” Braunstein v. McCabe, 571 F.3d 108, 118 (1st Cir. 2009) (quoting Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 42 , 109 S.Ct. 2782 , 106 L.Ed.2d 26 (1989)).

See, e.g., HSBC Realty Credit Corp. (USA) v. O’Neill, 745 F.3d 564, 578 (1st Cir.2014); Braunstein v. McCabe, 571 F.3d 108, 127 (1st Cir.2009); Universal Commc’n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 418 (1st Cir.2007).

Mixed questions of law and fact “invok[e] a sliding standard of review....” Braunstein v. McCabe, 571 F.3d 108, 124 (1st Cir.2009).

Mixed questions of law and fact “invok[e] a sliding standard of review----” Braunstein v. McCabe, 571 F.3d 108, 124 (1st Cir.2009).

Tull v. United States, 481 U.S. 412, 424 , 107 S.Ct. 1831 , 95 L.Ed.2d 365 (1987); ConFold Pacific, Inc. v. Polaris Industries, Inc., 433 F.3d 952, 957-58 (7th Cir.2006); Braunstein v. McCabe, 571 F.3d 108, 122 (1st Cir.2009); Restatement (Third) of Restitution & Unjust Enrichment § 1, comment, c (2011); 1 Dan B.

Id. at 122.

Braunstein v. McCabe, 571 F.3d 108, 122 (1st Cir. 2009) (citations omitted).

The statute requires an entity “holding property of the estate on the date of filing from which the trustee may benefit the estate under § 363 to deliver the property to the trustee.” Braunstein v. McCabe, 571 F.3d 108, 116 (1st Cir. 2009).

First, this Court resolves “whether the current action is ‘analogous to common-law causes of action ordinarily decided in English law courts in the late 18th century.’” Id. (quoting Braunstein v. McCabe, 571 F.3d 108, 118 (1st Cir. 2009)).

Horizontal Test Under the horizontal test, courts ask "whether, from an industry-wide perspective, *128 the transaction is of the sort commonly undertaken by companies in that industry." Braunstein , 571 F.3d at 124 (1st Cir. 2009) (citing In re Roth Am.

S.D.N.Y. 2013) (quoting , 571 F.3d 108, 122 (1st Cir. 2009)). 43 . (quoting , 546 U.S. 356, 362 (2006)). the Bankruptcy Code and impact both property of the estate and claims filed in the bankruptcy case.44 Turnover is a creation of bankruptcy law.45 The trustee would not have the right to seek turnover and this adversary proceeding would not exist but for the bankruptcy case.

See also Braunstein v. McCabe, 571 F.3d 108, 122 (1st Cir. 2009) (“[A] court issuing a turnover order has the power to order injunctive relief to allow the trustee to gather the property of the estate.”). 21 28 U.S.C. § 1409 (a). 22 In re Rosales, 621 B.R. 903 , 916 (Bankr.

See also Braunstein v. McCabe, 571 F.3d 108, 122 (1st Cir. 2009) (“[A] court issuing a turnover order has the power to order injunctive relief to allow the trustee to gather the property of the estate.”). 21 28 U.S.C. § 1409 (a). 22 In re Rosales, 621 B.R. 903 , 916 (Bankr.

This statute “invokes the court’s most basic equitable powers to gather and manage property of the estate.” Braunstein v. McCabe, 571 F.3d 108, 122 (1st Cir. 2009).

Jan. 13, 2012) (citing Braunstein v. McCabe, 571 F.3d 108, 122 (1st Cir. 2009)); see also e.g., Fleming, 580 F. Supp. 3d at 354; PIerluca v. Quality Res., Inc., 2017 WL 1409825 , at *2 (M.D.

Negligent Misrepresentation (Count IV) To state a claim for negligent misrepresentation, a plaintiff must allege that the defendant: “(1) in the course of his business, (2) supplied false information for the guidance of others (3) in their business transactions, (4) causing and resulting in pecuniary loss to those others (5) by their justifiable reliance on the information, and that he (6) failed to exercise reasonable care or competence in obtaining or communicating the inf…

Braunstein v. McCabe, 571 F.3d 108, 126 (1st Cir. 2009).

See Braunstein v. McCabe, 571 F.3d 108, 122 (1st Cir. 2009) (“A turnover action is not an action to recover damages for the taking of estate property but an action to recover possession of property belonging to the estate at the time of the filing.”).2 Rather, § 542’s purpose is to “provide for the right to the return of estate property,” while other provisions, such as § 362 or § 105 provide “the remedy for the recovery of costs and expenses associated with obtaining posses…

Braunstein v. McCabe, 571 F.3d 108, 126 (1st Cir. 2009).

Mr. Williams argues that the Trustee and creditors—including Ms. Williams— 18 Cf. Manchester v. Funderburgh (In re Funderburgh), 526 B.R. 361, 370 (10th Cir. BAP 2015) (reviewing bankruptcy court order allowing interim distributions for an abuse of discretion; citing Braunstein v. McCabe, 571 F.3d 108, 120 (1st Cir. 2009) (Congress gave bankruptcy courts broad discretion in passing on a wide range of problems relating to administration of bankruptcy estates) and In re Kaiser…

Further, “the WARN Act remedy is designed to restore the status quo, a trademark indicium of equitable relief . . . .” Id. (citing Braunstein v. McCabe, 571 F.3d 108, 122 (1st Cir. 2009)).

Colo. 2019) quoting Braunstein v. McCabe, 571 F.3d 108, 125 (1st Cir. 2009); In re Sportsman’s Warehouse, Inc., 457 B.R. 372, 399-400 (Bankr.

First, a court should consider whether the statutory action is analogous to “actions brought in the courts of England prior to the merger of the courts of law and equity.” Id. (quoting Braunstein v. McCabe, 571 F.3d 108, 118 (1st Cir. 2009)).

See, e.g., Braunstein v. McCabe, 571 F.3d 108, 118 (1st Cir. 2009) (“the bankruptcy estate is distributed in accordance with the scheme of priorities set out in the Bankruptcy Code, and the nature of bankruptcy is equity.”).” Sarnovsky, 436 B.R. at 465 .

“A turnover action ‘invokes the court’s most basic equitable powers to gather and manage property of the estate.’” Bencomo v. Avery (In re Bencomo), BAP No. CC-15-1442-DKuF, 2016 WL 4203918 , at *5 (9th Cir. BAP Aug. 8, 2016) (quoting Braunstein v. McCabe, 571 F.3d 108, 122 (1st Cir. 2009)).

Mass. Sept. 3, 2015) (quoting Braunstein v. McCabe, 571 F.3d 108, 126 (1st Cir. 2009)).

It invokes the court’s most basic equitable poivers to gather and manage property of the estate.” Braunstein v. McCabe, 571 F.3d 108, 122 (1st Cir. 2009) (emphasis added) (citation omitted).

A claim for turnover “invokes the court’s most basic equitable powers to gather and manage property of the estate.” Braunstein v. McCabe, 571 F.3d 108, 122 (1st Cir. 2009); see also Cent.

Mixed questions of law and fact “invok[e] a sliding standard of review, tending more toward de novo review at the law end.” Braunstein v. McCabe, 571 F.3d 108, 124 (1st Cir. 2009).

Braunstein v. McCabe, 571 F.3d 108, 116 (1st Cir. 2009) (quoting United States v. Whiting Pools, Inc., 462 U.S. 198, 205 , 103 S.Ct. 2309 , 76 L.Ed.2d 515 (1983)). .

Sommer, eds., 16th ed.2016), quoting Braunstein v. McCabe, 571 F.3d 108, 122 (1st Cir.2009).

See Rule 9014(a) (“In a contested matter 22 in a case under the Code not otherwise governed by these rules, 23 relief shall be requested by motion . . . .”); White v. Brown 24 (In re White), 389 B.R. 693, 699 (9th Cir. BAP 2008) (“As a 25 matter of procedure, a proceeding to compel the debtor to deliver 26 property to the trustee need not be an adversary proceeding and, 27 instead, may be prosecuted by motion”); and Gaughan v. Smith 28 (In re Smith), 342 B.R. 801, 808 (9th C…

See Rule 9014(a) (“In a contested matter 22 in a case under the Code not otherwise governed by these rules, 23 relief shall be requested by motion . . . .”); White v. Brown 24 (In re White), 389 B.R. 693, 699 (9th Cir. BAP 2008) (“As a 25 matter of procedure, a proceeding to compel the debtor to deliver 26 property to the trustee need not be an adversary proceeding and, 27 instead, may be prosecuted by motion”); and Gaughan v. Smith 28 (In re Smith), 342 B.R. 801, 808 (9th C…

Braunstein v. McCabe, 571 F.3d 108, 123 (1st Cir.2009).

As ruled in Braunstein v. McCabe, a turnover proceeding ‘invokes the [bankruptcy] court’s most basic equitable powers to gather and manage property of the estate.’ 571 F.3d 108, 122 (1st Cir.2009).

Seventh Amendment Jury Trial Right The Seventh Amendment provides: “In Suits at common law, where the value in the controversy shall exceed twenty dollars, the right of trial by jury shall be preserved .... ” The Seventh Amendment thus “encompasses ‘suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized, and equitable remedies were administered.’” Brau nstein v. McCabe, 571 F.3d 108, 117 (…

The bankruptcy court relied on its equitable powers pursuant to § 105 of the Bankruptcy Code to set aside the Dismissal. 41 However, Trustee’s Motion to Set Aside Dismissal is in the 37 In re Graves, 609 F.3d 1153, 1156 (10th Cir. 2010). 38 See Braunstein v. McCabe, 571 F.3d 108, 120 (1st Cir. 2009) (Congress gave bankruptcy courts broad discretion in passing on a wide range of problems relating to administration of bankruptcy estates); In re Kaiser Aluminum Corp., 456 F.3d …

Braunstein v. McCabe, 571 F.3d 108, 126 (1st Cir.2009).

Mixed questions of law and fact “invok[e] a sliding standard of review, tending more toward de novo review at the law end.” Braunstein v. McCabe, 571 F.3d 108, 124 (1st Cir.2009); see also In re IDC Clambakes, 727 F.3d at 64 .

Braunstein v. McCabe, 571 F.3d 108, 126 (1st Cir.2009) (citation omitted).

Braunstein v. McCabe, 571 F.3d 108, 124 (1st Cir.2009); In re Lavigne, 114 F.3d 379, 384 (2d Cir.1997); In re Roth Am., Inc., 975 F.2d 949, 952 (3d Cir.1992); In re Merry-Go-Round Enters., Inc., 400 F.3d 219, 226 (4th Cir.2005); In re Dant & Russell, Inc., 853 F.2d 700, 706 (9th Cir.1988); In re Waterfront Cos., 56 B.R. 31, 34-35 (Bankr.D.Minn.1985).

Unless and until the Supreme Court visits other provisions of Section 157(b)(2), we take the Supreme Court at its word and hold that the balance of the authority granted to bankruptcy judges by Congress in 28 U.S.C. § 157 (b)(2) is constitutional”); In re Crescent Resources, LLC, 457 B.R. 506 , 510 & n. 2 (Bankr.W.D.Tex.2011) (concluding that bankruptcy court could issue a final judgment in a turnover matter, explaining that Stern dealt with issues different than those in th…

To prove negligent misrepresentation ■ in Massachusetts, the plaintiff must allege that the defendant “(1) in the course of his business, (2) supplied false information for the guidance of others (3) in their business transactions, (4) causing and resulting in pecuniary loss to those others (5) by their justifiable reliance on the information, and that he (6) failed to exercise reasonable care or competence in obtaining or communicating the information.” Braunstein v. McCabe…

Unless and until the Supreme Court visits other provisions of Section 157(b)(2), we take the Supreme Court at its word and hold that the balance of the authority granted to bankruptcy judges by Congress in 28 U.S.C. § 157 (b)(2) is constitutional”); In re Crescent Resources, LLC, 457 B.R. 506 , 510 & n. 2 (Bankr.W.D.Tex.2011) (Gargotta, J.) (concluding that bankruptcy court could issue a final judgment in a turnover matter, explaining that Stem dealt with issues different th…

Braunstein v. McCabe, 571 F.3d 108, 117-18 (1st Cir. 2009).

Braunstein v. McCabe, 571 F.3d 108, 116 (1st Cir.2009), citing United States v. Whiting Pools, Inc., 462 U.S. 198, 205, 207-08 , 103 S.Ct. 2309 , 76 L.Ed.2d 515 (1983).

Braunstein v. McCabe, 571 F.3d 108, 115 (1st Cir.2009).

Mixed questions of law and fact “invok[e] a sliding standard of review....” Braunstein v. McCabe, 571 F.3d 108, 124 (1st Cir.2009).