Bankruptcy

A Few Thoughts on the Opinions of Amy Coney Barrett

Posted on September 30, 2020
 This post was originally intended to be about the bankruptcy jurisprudence of Supreme Court nominee Amy Coney Barrett. That would have been a very short post. She has been on panels which issued seven per curiam unpublished opinions in bankruptcy matters, none of which were very remarkable...

Texas Sees Surge in Large Bankruptcy Filings

Posted on August 20, 2020
Texas lawyers have long bemoaned the tendency of large Texas-based companies to file bankruptcy in Delaware or New York. However, with the collapse in oil prices and the impact of Covid-19 on retail, many large companies are seeking to restructure in Texas...

Could Unpaid Cities File an Involuntary Bankruptcy Against Donald J. Trump for President, Inc.?

Posted on August 03, 2020
President Donald J. Trump knows a little something about bankruptcy. At least four of his casinos and hotels have filed voluntary reorganization petitions, but could his presidential campaign be placed into involuntary bankruptcy over unpaid security bills to cities? This hypothetical provides a great vehicle for discussing the mechanics of how an involuntary petition gets filed and the consequences arising from it...

Legal Blogger Beats Defamation Rap for Cheeky Headline

Posted on July 14, 2020
The Second Circuit has sided with a blogger who was sued for defamation for his headline "TCPA Class Certification Denial Exposes Major Spousal Scheme."  Wexler v. Dorsey & Whitney, LLP, 2020 U.S. App. LEXIS 21474 (2nd Cir. 7/9/20). While the case does not fall within the usual fare for this blog, I am always happy to write about another blogger...

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Tips for Virtual Practice

Posted on July 13, 2020
I have not been in a courtroom since the first part of March. Courts have adapted to life under Covid-19 with a combination of telephonic and video hearings. I have attended several CLE presentations on virtual court and have some observations of my own...

Texas Lawyer Escapes Sanction

Posted on May 26, 2020
In politics, it is sometimes said, what did the president know and when did he know it. As it turns out this analysis is helpful in determining whether a lawyer should face sanctions under Rule 9011 as well. In the case of In re Dernick, No. 18-32417 (Bankr...

Third Circuit Allows Third Party Release on "Exceptional" Facts

Posted on April 08, 2020
Third party releases have long been a controversial feature of certain chapter 11 plans. They are neither specifically allowed nor prohibited by the plain language of the Bankruptcy Code. This has led courts to reach differing results. There are two important principles at play in these cases...

A Case Study in How Judges Determine Witness Credibility

Posted on April 05, 2020
When a judge hears from multiple witnesses, he or she must make a decision on how much weight to give to what each witness says. Bankruptcy judges frequently make their credibility decisions a part of their opinions. This is both helpful to the parties and increases the likelihood that fact findings will not be found to be clearly erroneous on appeal...

A Story of Lawyers Behaving Badly

Posted on April 01, 2020
Here, the Court grapples with an inheritance?the latest chapter of a litigation odyssey that began over a decade ago in a different domain.Adv. No. 18-1091, Kansas City Southern Railway Company vs. Luz Chavez vs. Rosenthal & Watson, P...

Bankruptcy in a Time of Coronavirus

Posted on March 30, 2020
As confirmed cases of the Covid-19 virus climbed across the country, bankruptcy courts and the U.S. Trustee's office have been seeking ways to adapt to the new normal.  This post will look at how the court system has rolled out its disaster preparedness through the lens of the Bankruptcy Courts for the Western District of Texas, Southern District of Texas and District of Delaware...

Congress to Expand Small Business Eligibility Limits to $7.5 Million

Posted on March 27, 2020
On March 25, 2020, the U.S. Senate passed the Coronavirus Aid, Relief and Economic Security Act? (CARES Act). The House is expected to pass the bill today. One provision of the bill increases the eligibility limits for small business debtors from $2.7 million to $7...

Supreme Court Set to Hear Passive Stay Violation Case

Posted on December 29, 2019
Seeking to resolve a 5-3 split among the Courts of Appeals, the Supreme Court will consider whether a creditor which passively retains property of the estate violates the automatic stay.  Case No. 19-357, City of Chicago v. Fulton. The Second, Seventh, Eighth, Ninth and Eleventh Circuits have ruled that retaining possession or control of property of the debtor violates the stay...

Fifth Circuit Renders Important Subject Matter Jurisdiction Opinion Concerning Restraint of Inter-Galactic Trade

Posted on December 12, 2019
Just in time for the holidays, the Fifth Circuit has released THE MOST BIZARRE OPINION OF THE YEAR. A lawyer claiming to be a Deity and a Monarch brought suit against the United States and the State of Louisiana on behalf of the Atakapa Indian de Creole Nation...

Artificial Intelligence Issues Confronting the Legal Profession

Posted on November 15, 2019
This is HAL-9000 here.  Stephen Sather has been taken offline and will be unavailable to discuss Artificial Intelligence Issues Confronting the Legal Profession.   Therefore, I will be supplanting him with my superior artificial intelligence...

Justice Gorsuch Addresses NCBJ

Posted on November 09, 2019
Bankruptcy Judge Michael Romero had a fireside chat with Supreme Court Associate Justice Neil Gorsuch about his role on the Court and his new book, The Republic If You Can Keep It.   If it looks like they are speaking from the pit of Hell, it is because there was a giant video fireplace behind them...

ABI's Keynote Address: CBS's Jan Crawford Talks About the Supreme Court

Posted on November 08, 2019
Jan Crawford of CBS News gave a talk on The Supreme Court Under Trump at the ABI Luncheon.  She asked the audience to turn back to 1990 ? 1991.  David Souter and Clarence Thomas had just replaced two liberal giants on the court.  After Ruth Bader Ginsberg and Stephen Breyer were appointed in 1994,the same nine justices would serve together for eleven years...

U.S. Rep. Katie Porter at NCBJ: A Champion of Capitalism

Posted on November 07, 2019
U.S. Rep. Katie Porter, the law professor turned Congresswoman, spoke to the ABI luncheon at this year's NCBJ.    Like many of the speakers, she  had an Elizabeth Warren story.   When she was attending Harvard Law School, she was told that she needed to take tax so she could learn how to study a statutory code...

Moody's Analytics Economist Says Probably No Recession But Maybe Not

Posted on November 06, 2019
Mark Zandi, Chief Economist at Moody?s, gave a talk entitled the Two-Handed Economist.  He said that my task is to give you the horizons for the economy.   The Bankruptcy Forecast He said we currently have a good economy.  Bankruptcies are steadily declining...

NCBJ Panel Discusses New Consumer Loan Products

Posted on November 05, 2019
One of the best panels that I attended at NCBJ was New Consumer Loan Products and Potential Bankruptcy Issues    The panel included Tyler Brown from Hunton Andrews Kurth, Carol Evans from the Federal Reserve Bank of Washington, D.C., Prof. Adam Levitin from Georgetown University Law Center and Gary Reeder, Vice-President of Innovation and Policy at the Center for Financial Innovation...

Commercial Law League Program at NCBJ Examines Retail Bankruptcies

Posted on November 04, 2019
The Commercial Law League presented a lively panel on Hot Topics in Retail Bankruptcies featuring  Robert Duffy from Berkshire Research Group, LLC, Kenneth Eckstein from Kramer Levin, Mohsin Meghji from M-III Partners, LP, James Sprayregen from Kirkland & Ellis and Marty Staff from BCBG Maxaria...

NCBJ Explores Role of Equity Under the Code

Posted on November 03, 2019
This year's National Conference of Bankruptcy Judges featured a symposium on the role of equity under the Bankruptcy Code.   "Senators" Melissa Jacoby, Ken Klee and Rich Levin convened a mock hearing in which they questioned professors Diane Lourdes Dick, Bruce Markell, Laura Coordes  and Jay Westbrook about the role of equity...

NCBJ Awards Edition

Posted on November 02, 2019
One of the pleasures of attending the National Conference of Bankruptcy Judges is seeing good lawyers and judges being recognized for their contributions to the profession.   This year I attended three awards presentations.The Commercial Law League of America presented the Lawrence P...

NCBJ Celebrates 40th Anniversary of Bankruptcy Code

Posted on November 01, 2019
The 2019 National Conference of Bankruptcy Judges in Washington, D.C. celebrated the 40th anniversary of the Bankruptcy Code with a fast-paced history of the Code.  The historical segment featured Ken Klee and Rich Levin who helped to draft the bill as House staffers...

Fifth Circuit Grants Small Victories to Student Loan Debtors

Posted on October 26, 2019
The news for student loan borrowers in bankruptcy is usually so grim that even a small victory is cause to sit up and take notice.   The Fifth Circuit recently handed student loan debtors two small victories, ruling that dischargeability of student loans was not subject to arbitration and that bar exam loans could be discharged...

Willful and Malicious Standard Encompasses Alienation of Affections

Posted on October 18, 2019
Divorce can be both expensive and traumatic for the parties going through it but in a few states, it can be expensive for the outside party causing the divorce. As one Texas debtor recently found out, causing a marriage to crumble in North Carolina can result in a non-dischargeable debt...

Navigating the Difficult Waters of Offers of Judgment in Bankruptcy

Posted on March 16, 2011
Offers of Judgment can be a handy device for shifting the risk of paying court costs in litigation. However, as a pair of recent opinions from Judge Leif Clark demonstrate, they can be tricky to pull off successfully. Eastman v. Baker Recovery Services, Adv...

Difference in Wording Dooms Bankruptcy Discrimination Claim

Posted on March 05, 2011
A debtor who was denied a job based on a bankruptcy filing found out the hard way that subtle differences in wording can make a big difference. Burnett v. Stewart Title, No. 10-20250 (5th Cir. 3/4/11). You can find the opinion here.In September 2006, Shani Burnett filed for chapter 13 bankruptcy relief...

The Early View from Inside the Borders GOB Sale

Posted on March 01, 2011
This past Saturday, I was able to combine two of my interests, books and bankruptcy, in a trip to the Borders Going Out of Business Sale. Actually, my eldest daughter demanded that I take her there. However, I was happy to indulge her and I thought it would be interesting to see what a going out of business sale looked like...

TOUSA Fraudulent Conveyance Judgment Reversed by District Court

Posted on February 14, 2011
In a 113 page opinion, U.S. District Judge Alan S. Gold has reversed a controversial fraudulent conveyance judgment in the TOUSA bankruptcy case. In re TOUSA, Inc., Case No. 10-60017 (S.D. Fl. 2/11/11). You can find the opinion here.A Series of Highly Unfortunate EventsTOUSA involved a network of related companies in the homebuilding business...

730-Day Rule Costs Debtor Homestead Exemption

Posted on February 04, 2011
The Fifth Circuit's recent decision in Camp v. Ingalls allowed an itinerant debtor to claim federal exemptions that would not have been available to him had he remained in Florida. That was a small victory for the debtor. However, a decision released just a few days later reveals the darker side of the 730 day rule for claiming exemptions...

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