BANKRUPTCY BEACH READING:

Letters From the Bench

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Contributed by Lacey Laken

It’s no secret.  Sometimes the law is boring and legal writing is, well, to put it kindly, less than scintillating, and to put it accurately, turgid.  The law, as documented in briefs, contracts, treatises, articles, and judicial opinions is rarely funny or even witty, and often is just plain dull.  Although we tackle some esoteric topics here on the Blog, we try to keep the writing concise and casual.  Sometimes we succeed.  It is easy to get caught up in the serious nature of our work, so it is a rare treat when we read something that makes us laugh out loud – particularly when it comes from a judge.  We’ve mined the archives and come up with a few of our favorite opinions and orders – ones that inspire laughter, tell a good story in a unique way, or simply turn a good phrase.  We hope you enjoy them as much as we do.  If you have a favorite that we haven’t included, send us a note with the citation and we’ll put it in the hopper for a future post.

A Notorious Decision

Melzer v. CNET Networks, Inc., 934 A.2d 912 (Del. Ch. 2007), is a shareholder lawsuit seeking access to the defendant’s books and records.  Although the decision is notable because the court granted the plaintiff-shareholders access to books and records that predated the purchase of their stock to allow them to gain necessary information to make their case against the board of directors, it is hardly a page turner. The last sentence, however, brings some levity to the situation. Chancellor Chandler concluded, “It is about time defendant … provides the requested documents, and gets ‘going, going / back, back / to Cali, Cali.’” 934 A.2d at 920 (citing THE NOTORIOUS B.I.G., Going Back to Cali, on LIFE AFTER DEATH (Bad Boy Records 1997)). Tupac might be gone, but thanks to Chancelor Chandler and his knowledge of pop culture (or his clerk’s knowledge), Biggie Smalls lives on in the pages of the Atlantic Reporter.

Tapping At My Chamber Door

Humor is rare enough in judicial opinions, but humor in verse deserves a special call out.  The text below is the opinion of the Honorable  A. Jay Cristol in In re Love, 61 B.R. 558, 558-559 (Bankr. S.D. Fla. 1986), summarily denying his own motion to dismiss a case under section 707(b) of the Bankruptcy Code, which oddly permits a bankruptcy court to dismiss a consumer chapter 7 case “on its own motion.”

Once upon a midnight dreary, while I pondered weak and weary
Over many quaint and curious files of chapter seven lore
While I nodded nearly napping, suddenly there came a tapping
As of some one gently rapping, rapping at my chamber door,
“Tis some debtor” I muttered, “tapping at my chamber door –
Only this and nothing more.”
Ah distinctly I recall, it was in the early fall
And the file still was small
The Code provided I could use it
If someone tried to substantially abuse it
No party asked that it be heard.
“Sua sponte” whispered a small black bird.
The bird himself, my only maven, strongly looked to be a raven.
Upon the words the bird had uttered
I gazed at all the files cluttered
“Sua sponte,” I recall, had no meaning; none at all.
And the cluttered files sprawl, drove a thought into my brain.
Eagerly I wished the morrow—vainly I had sought to borrow
From BAFJA, surcease of sorrow—and an order quick and plain
That this case would not remain as a source of further pain.
The procedure, it seemed plain.
As the case grew older, I perceived I must be bolder.
And must sua sponte act, to determine every fact,
If primarily consumer debts, are faced,
Perhaps this case is wrongly placed.
This is a thought that I must face, perhaps I should dismiss this case.
I moved sua sponte to dismiss it for I knew I would not miss it
The Code said I could, I knew it.
But not exactly how to do it, or perhaps some day I’d rue it.
I leaped up and struck my gavel.
For the mystery to unravel
Could I? Should I? Sua sponte, grant my motion to dismiss?
While it seemed the thing to do, suddenly I thought of this.
Looking, looking towards the future and to what there was to see
If my motion, it was granted and an appeal came to be,
Who would be the appellee?
Surely, it would not be me.
Who would file, but pray tell me, a learned brief for the appellee
The District Judge would not do so
At least this much I do know.
Tell me raven, how to go.
As I with the ruling wrestled
In the statute I saw nestled
A presumption with a flavor clearly in the debtor’s favor.
No evidence had I taken
Sua sponte appeared foresaken.
Now my motion caused me terror
A dismissal would be error.
Upon consideration of § 707(b), in anguish, loud I cried
The court’s sua sponte motion to dismiss under § 707(b) is denied.

A Suit to Compensate a Tree

In Fisher v. Lowe, 122 Mich. App. 418, 419 (Mich. Ct. App. 1983), the plaintiff sought compensation for damage to an oak tree caused by a car crash.  The trial court granted summary judgment for the defendants.  The plaintiff appealed, and Judge Gillis of the Michigan Court of Appeals, writing for the three-judge panel, affirmed in an opinion echoing Joyce Kilmer’s poem “Tree”:

We thought that we would never see
A suit to compensate a tree.
A suit whose claim in tort is prest
Upon a mangled tree’s behest;
A tree whose battered trunk was prest
Against a Chevy’s crumpled crest;
A tree that faces each new day
With bark and limb in disarray;
A tree that may forever bear
A lasting need for tender care.
Flora lovers though we three,
We must uphold the court’s decree.

Affirmed.

Homeopathic Soup

In In re SGPA, Inc., Case No. 1-01-02609 (Bankr. M. D. Pa. Sept. 28, 2001), the debtors sought confirmation of their plan, and the creditors’ committee objected.  Remarking that, although the entire committee was objecting to the plan, the only parties within the committee that would actually be impaired by the plan would have been the subordinated bondholders, the court succinctly disposed of the committee’s objection: “For the Subordinated Bondholders to assert that they represent other unsecured creditors would be an argument ‘as thin as the homeopathic soup that was made by boiling the shadow of a pigeon that has starved to death.’”  Id. at 5 (citing Lincoln-Douglas Debates).  Uh, point taken.

Who You Gonna Call?

In Stambovsky v. Ackley, plaintiff buyer sued to rescind the contract for the purchase of a home in Nyack, New York, because the seller had not disclosed that the house was. . .wait for it. . .here it comes. . .haunted.  The trial court dismissed the claim, but the Appellate Division of the New York Supreme Court reversed, finding “as a matter of law, the house [was] haunted.”  We swear we are not making this up.  No summary can convey the page-turning quality of this opinion and we highly recommend that you read it for yourself (perhaps in the dark, with a flashlight), but here’s one of many passages that will long haunt home sellers:

From the perspective of a person in the position of plaintiff herein, a very practical problem arises with respect to the discovery of a paranormal phenomenon: “Who you gonna’ call?” as the title song to the movie “Ghostbusters” asks.  Applying the strict rule of caveat emptor to a contract involving a house possessed by poltergeists conjures up visions of a psychic or medium routinely accompanying the structural engineer and Terminix man on an inspection of every home subject to a contract of sale. It portends that the prudent attorney will establish an escrow account lest the subject of the transaction come back to haunt him and his client or pray that his malpractice insurance coverage extends to supernatural disasters.  In the interest of avoiding such untenable consequences, the notion that a haunting is a condition which can and should be ascertained upon reasonable inspection of the premises is a hobgoblin which should be exorcised from the body of legal precedent and laid quietly to rest.

Honest True.  Read the rest at 169 A.D.2d 254 (N.Y. App. Div. 1st Dep’t 1991).