May 2008 - Summaries of Selected Opinions

• Publication year: 2008
• Pages: 157
• Citation: Vol. 37 No. 5 Pg. 157

37 Colo.Law. 157 Colorado Lawyer 2008.

2008, May, Pg. 157. May 2008 - Summaries of Selected Opinions

The Colorado Lawyer
May 2008
Vol. 37, No. 5 [Page 157]

From the Courts
U.S. Court of Appeals for the Tenth Circuit

Summaries of Selected Opinions

Summaries of selected Tenth Circuit Opinions appear on a space-available basis. The summaries are prepared for the Colorado Bar Association (CBA) by Katherine Campbell and Frank Gibbard, licensed Colorado attorneys. They are provided as a service by the CBA and are not the official language of this Court. The CBA cannot guarantee the accuracy or completeness of the summaries. Full copies of the Tenth Circuit decisions are accessible from the CBA website www.cobar.org (click on "Opinions/Rules/Statutes").

No. 06-3324. Morris v. St. John National Bank (In re Haberman). 02/22/2008. BAP. Judge Gorsuch Bankruptcy - Secured Interest - Trustee's Avoidance - Value - Property Interest.

Before filing for bankruptcy protection, debtors borrowed money from St. John National Bank (Bank), giving a security interest in their automobile to secure the loan. The Bank failed to perfect its security interest, so after debtors filed for Chapter 7 bankruptcy protection, the bankruptcy trustee avoided the security interest and preserved the avoided interest for the benefit of the bankruptcy estate The question then became what interest the estate received - the value of the automobile ($2,000) or the value of the loan owed to the bank ($3,200). The bankruptcy court and the Bankruptcy Appellate Panel (BAP) held that the estate was entitled only to the value of the automobile. The trustee appealed.

The Tenth Circuit noted that the trustee has the power to avoid liens and transfers for the benefit of the estate. In doing so, he steps into the shoes of the former lienholder, with the same rights in the collateralized property. Drawing a distinction between property rights and rights under a contract, the Circuit held that the interest passing to the bankruptcy estate is a property interest. Accordingly, the trustee takes for the estate only the value of the property put up as collateral, not the amount due under the contract. Therefore, the trustee was entitled to collect $2,000 for the benefit of the estate. The BAP's judgment was affirmed.

No. 06-9572. Martin v. Mukasey. 02/26/2008. BIA. Judge Seymour. Immigration - Fugitive Disentitlement Doctrine - Appeal Dismissed.

Petitioner was ordered removed to England. He appealed, but absconded before the appeal was heard. He pursued his appeal through counsel, but did not present himself to the immigration authorities or make any information known to them about his whereabouts after he was ordered removed.

The Tenth Circuit determined that petitioner's failure to appear for a scheduled appointment or to provide his current address rendered him a fugitive in his immigration appeal. The court applied the fugitive disentitlement doctrine, which permits a court to dismiss a petitioner's appeal if he flees while the appeal is pending. The court noted that even if it did issue a decision, there was no guarantee that the judgment would be executed.

In addition, the court held that a fugitive should not be able to use the judicial system and simultaneously avoid it Also, dismissal of the appeal would...