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.
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.
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