Consumer Bankruptcy Journal Summer 2017 - Page 42

The Preemption of State Court Claims Based on Frivolous Bankruptcy Actions: When the Overwhelming Weight of Authority Isn’t Enough By Andrew P. Carroll, Esq. Goldberg Segalla Philadelphia, Pennsylvania claims for abuse of process or malicious prosecution based on bankruptcy court actions are preempted by federal law. This means that parties have just one chance to pursue claims for frivolous bankruptcy filings, and that is within the bankruptcy action itself. Despite this often longstanding precedent, attorneys in majority jurisdictions continue to seize upon nuances in federal preemption to seek state court remedies for these bankruptcy filings. B y definition, the American court system is an adversarial process wherein both parties often, if not always, believe that the opposition is completely wrong. However, it is a much narrower subset of actions in which parties accuse the other side of crossin