Core vs. Non-Core Proceedings in Bankruptcy Court
Core proceedings are proceedings or issues that are entirely related to the bankruptcy case. The bankruptcy judge presides over these issues. Core proceedings in a bankruptcy case include: Matters concerning estate administration. For example, the court has jurisdiction over the bankruptcy trustee's duties in administering the estate. Matters concerning creditors' claims. For example, if the trustee objects to a creditor's claim, the court has...[ read more ]
Motion for a New Trial MRCP 59
MRCP 59(a) provides that the trial court may grant a new trial ” … in an action tried without a jury, for any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of Mississippi.” In non-jury cases ” … the court may open the judgment if one has been entered, take additional testimony,...[ read more ]
Statutory Preference for Administrator
Statutory order of preference for appointment of Administrator. § 91-7-63, MCA. Surviving spouse. Next of kin, if not otherwise disqualified. Other third party, bank or trust company. If no application is made within 30 days of the decedent’s death, administration may be granted to a creditor or other suitable person. If no application is made and the decedent left property...[ read more ]
Fiduciary Duty
There are two types of fiduciary relationships: 1. Those created under the law, (a) as applied to particular relationships governed by statute (such as partner and partnership) or by legal proceedings (such as administrator and heir), or (b) as applied to contractual relationships (such as principal and agent or attorney and client); and 2. Those that are created by case...[ read more ]
Fraudulent Misrepresentation
To establish a claim on fraudulent misrepresentation, the elements of fraud must be proven by clear and convincing evidence. Levens v. Campbell, 733 So. 2d 753 (¶ 35)(Miss. 1999). These elements include: (1) a representation; (2) its falsity; (3) its materiality; (4) the speaker's knowledge of its falsity or ignorance of its truth; (5) his intent that it should be...[ read more ]
Opening a Administration Estate
In order to initiate an administration for a decedent who died without a will, a petition must be filed in the county in which the decedent resided. The decedent’s heirs are given priority to serve as administrators or administratrix of the estate for thirty days. After 30 days, the appointment of an administrator or administratrix is within the discretion of...[ read more ]
Waiving Bond in an Administration Estate
Letters of administration are granted when an individual who petitions to be appointed as the administrator or administratrix meets three requirements. First, the prospective administrator or administratrix must be at least eighteen years of age. Second, the prospective administrator or administratrix must not have been convicted of a felony. Third, the prospective administrator or administratrix must be of sound mind....[ read more ]
Jurisdiction of Bankruptcy Court
Pursuant to 28 U.S.C. '1334(a), the United States District Court has original and exclusive jurisdiction over all bankruptcy cases, and pursuant to '1334(b), the District Court has original but not exclusive jurisdiction of all civil proceedings arising under the Bankruptcy Code (11 U.S.C. '101 et. seq.), or arising in or related to cases under the Bankruptcy Code.
Criminal Proceedings not subject to Bankruptcy Automatic Stay
Courts generally find that the automatic stay does not halt criminal contempt proceedings to punish the debtor for contumacious conduct; orders to pay criminal restitution to the victim of a crime; or issuance of summonses, determination of guilt and imposition of fines in connection with traffic citations. If, however, they are merely disguised debt collection actions, a few courts find...[ read more ]
11 U.S.C. 362 “The Automatic Stay” in Bankruptcy
The automatic stay provides a period of time in which all judgments, collection activities, foreclosures, and repossessions of property are suspended and may not be pursued by the creditors on any debt or claim that arose before the filing of the bankruptcy petition. The stay automatically goes into effect when the bankruptcy petition is filed and provides a breathing spell...[ read more ]
