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Bankruptcy

A Texas Bankruptcy Lawyer's Blog

Case updates and commentary of interest to Texas bankruptcy lawyers.
By Stephen Sather

Post Frequency: 1.1/day

Last Entry: September 30, 2020 at 11:22:00

Jurisdiction to Enforce a Settlement

Posted on September 02, 2010
When parties settle a case, there are good feelings all around and relief that the dispute is over. However, parties who have been disagreeable prior to settlement often remain that way after they have compromised their dispute. A recent Fifth Circuit case makes the point that it is important to think about how the settlement will be enforced should the parties go back to feuding...

Thoughts on To Kill A Mockingbird

Posted on August 31, 2010
This year is the 50th Anniversary of the publication of To Kill A Mockingbird. There was an entire program devoted to it at the State Bar Convention this summer and my daughter was assigned the book for her summer reading project. I decided to give the book another look...

Do Not Hide Assets From the Trustee. You Will Get Caught and Go to Jail.

Posted on August 25, 2010
Most of us have heard cocktail party talk about someone who had a lot of assets but managed to file bankruptcy and keep all of their stuff. Usually, the explanation has to do with exemptions and fully encumbered property. However, every once in a while, someone tries to play fast and loose with the trustee...

Bad News for the Non-Filing Spouse

Posted on August 24, 2010
Frequently it makes sense for only one spouse to file bankruptcy. Where the husband has wracked up large business debts in his name only and the wife has significant separate property or sole management property, the husband can file bankruptcy without bringing the wife's non-joint assets into the estate...

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Seventh Circuit Upholds Attorney's Bankruptcy Fraud Conviction

Posted on August 21, 2010
Circuit level opinions dealing with bankruptcy fraud are none too common, so that when one appears, it is worth taking note. This week, the Seventh Circuit affirmed the conviction of attorney Thomas O'Connell Holstein on nine counts of bankruptcy fraud...

Judge Isgur Takes on the "Absolute" Assignment of Rents

Posted on August 11, 2010
The absolute assignment of rents was a trendy lender's argument during the 1980s. The lender could claim that its loan documents granted it ownership of the rents to be received by the debtor. The lender would magnanimously allow the debtor to use its rents so long as the debtor was not in default...

Best of the Comments

Posted on August 07, 2010
I enjoy receiving thoughtful comments on this blog. Lately, the quantity of comments has been high, but they have been a bit off topic. Here are some of the most colorful.I'm currently being held prisoner by the Russian mafia and being forced to post spam comments on blogs and forum! If you don't approve this, they will kill me...

All About Emails, Texts, Blogs and Non-Dischargeability

Posted on August 07, 2010
On February 3, 2010, Judge Jeff Bohm released his opinion in Wallace v. Perry, No. 08-3299 (Bankr. S.D. Tex. 2/3/10), opinion available with PACER access here. Following a twelve day trial, the court penned a 118 page opinion. The opinion is an interesting study in how to try a dischargeability case and just how bizarre relations between partners can get...

Ninth Circuit BAP Finds Wells Fargo Freeze Policy Violates Automatic Stay

Posted on July 13, 2010
Breaking with judges in Texas and New Mexico, the Ninth Circuit Bankruptcy Appellate Panel has found that an administrative freeze policy utilized by Wells Fargo Bank violates the automatic stay. No. 09-1408, Mwangi v. Wells Fargo Bank, N.A. (Ninth Cir...

Trustee Held Liable for Failure to Remit Sales Taxes

Posted on July 06, 2010
Failure to remit trust fund taxes is a common cause of bankruptcy and personal liability for the owners of a business. Far less common is the case of a bankruptcy trustee held responsible for the same violation. However, that is what happened in the case of Texas Comptroller of Public Accounts v...

Kagan on Christmas Day

Posted on July 01, 2010
I am not sure whether this is amusing or appalling or just weird. Sen. Lindsay Graham starts talking about the Christmas Day Bomber, but ends up asking "where were you at on Christmas Day." Ms. Kagan gamely tries to make sense out of the question before the Senator clarifies that he just wants to know where she was...

Supreme Court Decides Skilling Case

Posted on June 24, 2010
In an offshoot from the collapse of Enron Corporation, the Supreme Court has ruled that the conviction of Jeffrey Skilling for conspiracy to commit "honest-services" wire fraud must be reversed. However, it rejected his contention that he should have been granted a change of venue...

Barbara Houser Like You've Never Seen Her Before

Posted on June 19, 2010
For those of you familiar with Barbara Houser as a serious, scholarly judge, you might want to check out her wilder side. She is having way too much fun in this video promoting the 2010 National Conference of Bankruptcy Judges in New Orleans.

Do Bankruptcy Judges Have Class (Certification Ability)?

Posted on June 18, 2010
While bankruptcy has been described as the epitomy of a class action (that is, an action by the debtor against all of his creditors), there has been some controversy over whether a bankruptcy court could certify a class consisting of debtors against a single lender...

Fifth Circuit Finds Bad Faith Exception to Absolute Right to Dismiss Chapter 13 Case

Posted on June 18, 2010
In a decision extending the reach of Marrama v. Citizens Bank of Massachusetts, the Fifth Circuit has concluded that a debtor's absolute right to dismiss a chapter 13 petition is subject to an exception for bad faith. Matter of Jacobsen, No. 09-40023 (5th Cir...

Supreme Court Rules for Trustee in Exemption Dispute

Posted on June 17, 2010
The Supreme Court ruled today that when claiming Federal Exemptions, the Debtor is entitled to the dollar amount claimed rather than the actual property. As a result, a trustee could sell property claimed by the debtor as exempt where it proved to be more valuable than the amount claimed by the debtor...

50 Best Blogs Written By Lawyers

Posted on June 17, 2010
OnLineCollege.org has listed its top 50 blogs written by lawyers. Six bankruptcy blogs made the list, including: 37. Bankruptcy and Restructuring Blog: Whether you need to file for bankruptcy or are a legal professional looking for resources, this blog is a fantastic tool...

How Do Judges Determine Credibility of Witnesses?

Posted on June 11, 2010
One difference between Bankruptcy Court and other courts is that the facts are frequently not in dispute and the trial revolves around the meaning of the facts. Other times, the witnesses together present different pieces of a puzzle without directly contradicting each other...

Interesting Finding of Fact

Posted on June 09, 2010
I am reading the Court's opinion in Wallace v. Perry, Adv. No. 08-3299 (Bankr. S.D. Tex. 2/3/10) for an article about blogging, politics, defamation and dischargeability. At 118 pages, the opinion will take take a little while to digest. However, one finding of fact jumped out at me:15...

Representing A-Rod

Posted on June 07, 2010
Bankruptcy can frequently be a dull business, buried in details and paperwork. However, every once in a while, a lawyer gets a case which carries a little excitement. Joe Wielebinksi,with the Dallas office of Munsch Hardt, had one of those moments recently when he was hired to represent Alex Rodriquez as a member of the creditors' committee in the Texas Rangers case...

Supreme Court Rules That "Projected Disposable Income" Is Forward Looking

Posted on June 07, 2010
In an 8-1 decision, the Supreme Court ruled today that ?projected disposable income? under Chapter 13 may take into account ?changes in the debtor?s income or expenses that are known or virtually certain at the time of confirmation.? Hamilton v. Lanning, 560 U...

Supreme Court to Decide Whether Means Test Allows Ownership Expense Deduction for Vehicle Owned Free and Clear

Posted on June 04, 2010
This article appears in the June 2010 edition of the American Bankruptcy Institute Journal. ?(T)he code is more what you?d call ?guidelines? than actual rules.?(1) The Supreme Court has agreed to hear a case which raises the issue of whether the collection standards contained within the IRS Financial Analysis Handbook (2), as incorporated into the Chapter 7 Means Test (3), are more of a code than a guideline(4)...

A Judge Judging Himself: Another Opinion on Judicial Recusal

Posted on May 15, 2010
Last year I wrote about the unique challenge posed by a motion to recuse, in which the judge accused of being insufficiently impartial must rule on his own ability to hear the case. A judge judging himself: judicial recusal. I have come across yet another opinion from Texas on this sticky situation...

What Does Kagan Nomination Mean for Bankruptcy Practitioners?

Posted on May 10, 2010
President Obama announced today that he would nominate Solitor General Elena Kagan to the United States Supreme Court. If confirmed, Ms. Kagan will be the first Supreme Court justice without prior judicial experience since the Nixon administration. While much of America will be focusing on hot button issues such as abortion and gun control, bankruptcy lawyers will be wondering what she thinks about the hanging paragraph...

Supreme Court to Determine Whether Ninth Circuit Can Hold Ownership Expense Deduction for Ransom

Posted on May 05, 2010
On April 19, the Supreme Court granted cert in In re Ransom, 577 F.3d 1026 (9th Cir. 2009), cert granted, 2010 U.S. LEXIS 3359 (2010). The issue in the case is:Whether, in calculating the debtor's "projected disposable income" during the plan period, the bankruptcy court may allow an ownership cost deduction for vehicles only if the debtor is actually making payments on the vehicles...

Too Much CLE!

Posted on May 04, 2010
Last weekend had the convergence of three major CLE conferences in three different parts of the country. The American Bankruptcy Institute held its Annual Spring Meeting in Washington, D.C., the Commercial Law League held its Midwest Regional Meeting in Chicago and the National Association of Consumer Bankruptcy Attorneys held a confab on the West coast...

Supreme Court Affirms Espinosa on Procedural Grounds Without Endorsing Discharge by Declaration

Posted on March 23, 2010
Consistent with several prior rulings, a unanimous Supreme Court held that a creditor could not use a Motion under Rule 60(b)(4) to attempt to set aside a chapter 13 confirmation order which included a controversial "discharge by declaration" provision...

Creative Debtor Not Allowed to Finance His Appeal From U.S. Treasury

Posted on March 15, 2010
Judge Leif Clark has authored a new opinion which belongs in a Payment Systems textbook. In re Rhett Webster Pease , No. 09-54754 (Bankr. W.D. Tex. 3/12/10) involved a debtor who filed a Notice of Appeal but neglected to include the filing fee. When informed that his appeal would be dismissed, he submitted a "Certified Money Order...

Supreme Court Upholds Constitutionality of Debt Relief Agency Provisions

Posted on March 08, 2010
A unanimous Supreme Court has ruled that attorneys are "debt relief agencies" and that the provisions prohibiting debt relief agencies to advise debtors to incur debt in contemplation of bankruptcy and the mandatory disclosures required are constitutional...

District Court Reverses Sanctions Ruling in Legal Technology Case

Posted on March 02, 2010
A U.S. District Judge found that it was an abuse of discretion for a bankruptcy court to award sanctions against two attorneys and a law firm in a case involving the NewTrak legal technology system. In re Taylor, No. 09-cv-2479-JF (E.D. Pa. 2/18/10)...

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