Summaries of Selected Opinions, 0319 COBJ, Vol. 48, No. 3 Pg. 80

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48 Colo.Law. 80

Summaries of Selected Opinions

Vol. 48, No. 3 [Page 80]

Colorado Lawyer

March, 2019

U.S. COURT OF APPEALS FOR THE TENTH CIRCUIT

No. 18-1068. Cohen v. Chernushin (In re Chernushin). 12/21/2018. D.Colo. Judge McHugh. Joint Tenancy—Death—Right of Survivorship—Real Property—Bankruptcy.

Gregory and Andrea Chernushin owned real property in joint tenancy with right of survivorship. Gregory filed for bankruptcy, but Andrea did not While the bankruptcy case was pending, Gregory died. The bankruptcy trustee then filed an adversary complaint against Andrea, seeking to sell the property. The bankruptcy court granted summary judgment in Andrea's favor, holding that the bankruptcy estate had no interest in the property because Gregory's joint tenancy interest ended at his death. The district court affirmed the bankruptcy court.

On appeal, the bankruptcy trustee presented several arguments based on the Supremacy Clause. First, the trustee argued that Fed. R. Bankr. P. 1016 provides that the debtor's death does not impact the bankruptcy estate. Under Colorado law, when one joint tenant dies, his or her property interest is terminated, and the right of survivorship instantly vests tide to the whole property in the surviving tenant. While die rule directs that die bankruptcy proceedings continue, it does not prevent Gregory's joint tenancy in the home from terminating at his death to die detriment of the bankruptcy estate.

The trustee next argued that allowing Gregory's interest to terminate at his death would interfere with his authority or obligations as die trustee. Colorado's joint tenancy law does not interfere with the trustee's duties. Here, upon Gregory's death, the joint tenancy held by die estate extinguished automatically. Consequently, die trustee had no power to sell the property.

Finally, die trustee argued that 11 U.S.C. § 544, die strong arm clause, prohibits recognition of the effects of Gregory's death on the estate property. The trustee acknowledged that the strong arm clause gives a trustee certain powers to defeat die status of certain creditors. Here, Gregory was not a creditor, nor is there any question about die status of any creditors related to the property. The strong arm provision is inapplicable in this situation.

The judgment was affirmed.

Nos. 17-6165 & 17-6195. United States v. Johnson. 12/26/2018. W.D.Okla. Judge Bacha-rach. Armed Career Criminal Act—Crime of Violence—Career Offender—Battery on Law Enforcement Officer.

Defendant was convicted of possessing cocaine with intent to distribute and being a felon in possession of a firearm. The district court initially imposed concurrent prison terms of 192 months, relying in part on defendant's classification as an armed career criminal, which was based on his three prior convictions for violent felonies. It later concluded that one of die prior convictions had not involved a violent felony, vacated die...

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