The Nuts and Bolts of Consumer Bankruptcy and How They Fit Into Your Practice Area Toolkit
Total Page:16
File Type:pdf, Size:1020Kb
Load more
Recommended publications
-
For Publication United States Bankruptcy Appellate
FOR PUBLICATION UNITED STATES BANKRUPTCY APPELLATE PANEL FOR THE FIRST CIRCUIT _____________________________ BAP NO. PR 16-034 _______________________________ Bankruptcy Case No. 12-08567-MCF Bankruptcy Case No. 12-08570-MCF (Consolidated) Adversary Proceeding No. 14-00030-MCF _______________________________ COUSINS INTERNATIONAL FOOD, CORP., a/k/a IHOP Caguas, and CIF BARCELONETA CORP., a/k/a IHOP Barceloneta, Debtors. _______________________________ ENCANTO RESTAURANTS, INC., Plaintiff-Appellant, v. LUIS S. AQUINO VIDAL, OLGA M. VIDAL, HÉCTOR A. CORTÉS BABILONIA, and GUILLERMO D. RODRÍGUEZ SERRANO, Defendants-Appellees. _________________________________ Appeal from the United States Bankruptcy Court for the District of Puerto Rico (Hon. Mildred Cabán Flores, U.S. Bankruptcy Judge) _______________________________ Before Bailey, Harwood, and Fagone, United States Bankruptcy Appellate Panel Judges. _______________________________ Hermann D. Bauer Alvarez, Esq., Nayuan Zouairabani Trinidad, Esq., and Gabriel L. Olivera Dubón, Esq., on brief for Plaintiff-Appellant. Jacqueline E. Hernandez Santiago, Esq., on brief for Defendants-Appellees. _______________________________ March 21, 2017 _______________________________ Fagone, U.S. Bankruptcy Appellate Panel Judge. Encanto Restaurants, Inc. (“Encanto”), the purchaser of substantially all of the assets of the chapter 11 debtor, Cousins International Food, Corp., a/k/a IHOP Caguas (the “Debtor”), appeals from the bankruptcy court’s June 14, 2016 Opinion and Order (the “June 2016 Order”).1 Encanto also appeals from the bankruptcy court’s June 15, 2016 Judgment (the “Judgment”). By its appeal, Encanto attempts to challenge two refusals by the bankruptcy court: one relating to Encanto’s requests for relief under § 362, and a second relating to its requests for relief under a certain sale order (the “Sale Order”).2 Encanto lacks standing to pursue an appeal from the June 2016 Order and the Judgment to the extent that those rulings denied Encanto’s requests for relief for alleged violations of § 362’s automatic stay. -
Eleventh Amendment Immunity in Bankruptcy: Breaking the Seminole Tribe Barrier
ELEVENTH AMENDMENT IMMUNITY IN BANKRUPTCY: BREAKING THE SEMINOLE TRIBE BARRIER TROY A. McKENZ1E* In many bankruptcies,a state will be included among the creditorsseeking payment from the debtor, the debtor will often, in turn, have claims against the state. In this Note,Troy McKenzie analyzes the limitationson bankruptcy co urtjurisdiction over claims involving states as a result of the Supreme Court's interpretationof the Elev- enth Amendment in Seminole Tribe v. Florida. He suggests that the courts and Congress still possess tools to minimize those lintations. First, he argues that the most importantprecedent on Eleventh Amendment sovereign immunity in bank- ruptcy, Gardner v. New Jersey, supports the conclusion that, when a state files a claim against a debtor, bankruptcy courts retain jurisdiction over any proceeding initiatedby the debtor-whethertransactionally related to the state's claim or not- that must be resolved in order to adjudicate the state's claim. Second, because a bankruptcy court's ability to remedy some state violations of bankruptcy law is limited when the state has notfiled a claim againstthe debtor, McKenzie argues that Congress should give states bankruptcy-relatedincentives to waive their sovereign immunity in bankruptcy cases. In exclunge for the preferentialtreatment of certain state claims afforded by the Bankruptcy Code, Congress may requirestates to enact a waiver of sovereign immunity in bankruptcy in the interest of securingthe orderly and equitable operation of the nationalbankruptcy system. INTRODUCTION -
Doing Equity in Bankruptcy
Emory Bankruptcy Developments Journal Volume 34 Issue 1 A Tribute to Keith J. Shapiro 2017 Doing Equity in Bankruptcy Daniel J. Bussel Follow this and additional works at: https://scholarlycommons.law.emory.edu/ebdj Recommended Citation Daniel J. Bussel, Doing Equity in Bankruptcy, 34 Emory Bankr. Dev. J. 13 (2017). Available at: https://scholarlycommons.law.emory.edu/ebdj/vol34/iss1/4 This Article is brought to you for free and open access by the Journals at Emory Law Scholarly Commons. It has been accepted for inclusion in Emory Bankruptcy Developments Journal by an authorized editor of Emory Law Scholarly Commons. For more information, please contact [email protected]. BUSSEL GALLEYPROOFS2 12/21/2017 1:46 PM DOING EQUITY IN BANKRUPTCY Daniel J. Bussel* INTRODUCTION ............................................................................................... 14 I. EQUITABLE RELIEF UNDER NONBANKRUPTCY LAW ........................... 16 A. Contractual Rights ..................................................................... 16 1. Historical Preference for Damages ...................................... 17 2. Inherently Discretionary Nature of Specific Relief ............... 19 3. Modern Trend of More Liberal Use of Equitable Remedies ............................................................................... 22 a. Sale of Goods ................................................................. 23 b. Caselaw Trend Toward General Balancing .................. 24 B. Statutory Rights ......................................................................... -
Guidance on EPA Participation in Bankruptcy Cases
. 'I.'. I UNITED STATES ENVIRONMENTAL PROTECTIONAGENCY WASHINGTON, D:C. 20460 -i .. -. ... .. SEP 3.0 !397 MEMORANDUM' . ' SUBJECT: .I Guidance.on t.ion in Bankruptcy Cases ' FROM: ' ..Steven A:H Assistant A TO: Addressees '.listedbelow This memorandum transmits guidance entitled "EPA Participation in Bankruptcy Cases."'This guidance'supersedes the "Guidance Regarding CERCLA Enforcement.AgainstBankrupt Parties," OSWER Directive #9832.7 (May 24, 1.984)and the "Revised Hazardous Waste Bankruptcy Guidance," 0SWER.Directive#9832.8 '(May 23, 1986). This guidance identifies the factors to be considered by EPA . in determining whether to participate in a bankruptcy case, including whether to pursue-collectionof costs o'r penalties against debtors who have liability under' CERCLA or other environmental statutes. 1 ,. This guidance was prepared with the assistance of EPA's National B@crupfcy Lead"Region Work,Groupand the Department of' Justice. If-youhave-questions about this guidance, you may contact Andrea'Madiganof.Region'IV,chair of the bankruptcy work. group; ,at, (404) 562-9518; ' . Attachment' . ,. .. , .. -, . .. .. ,. .. .. Addressees: Regional Counsel, Regions'I-X, EPA Director, Office of'.SiteRemediation & Restorati,on, Region I, EPA Director, Emergency & Remedial Response Division, Region 11, EPA Director',Hazardous Waste Management Division, Regions I11 & IX, EPA Director, Waste Management Division, Region IV, EPA Director, Superfund Divisions, Regions.V, VI E VII, EPA Assistant Regional Administrator, Office of Ecosystems J .. Protection and Remediation, Region VIII, EPA Director, Environment'al Cleanup Office, Region X, EPA . , . .. .cc: Work .Group.Members . Barry Breen, OSRE .. Eric Schaeffer, ORE ' . Linda Boornazian, OSRE Sandra Connors, OSRE Charles Breece, OSRE Lori Boughton, OSRE Joel Gross, DOJ '. Assistant Section Chiefs, Environmental Enforcement Section, DOJ Alan Tennenbaum, DOJ Earl Salo, OGC ,. -
Bankruptcy Nuts ‘N’ Bolts
Bankruptcy Nuts ‘n’ Bolts June 11, 2015 Table of Contents Chapter 3 12:45-1:45pm Chapter 7: Filing Requirements, Assets and Exemptions, and Discharge Issues Alan J. Wenokur, Attorney at Law Electronic format only: 1. Article – Chapter 7 Overview CHAPTER 7 OVERVIEW Alan J. Wenokur Attorney at Law 600 Stewart St., Suite 1300 Seattle, WA 98101 206-682-6224 [email protected] Alan Wenokur has been a Seattle bankruptcy attorney since 1988, and a sole practitioner since 1991. He regularly represents debtors in Chapter 7 and Chapter 13 bankruptcy cases, typically in more challenging cases involving business debt or complex financial affairs. He represents creditors in all chapter proceedings. He also focuses on representation of Chapter 7 trustees in matters including undisclosed assets, fraudulent behavior, recovery of more speculative assets, and bankruptcy litigation. Mr. Wenokur is a member of the Washington State Bar creditor/debtor section, the American Bankruptcy Institute, and the US Bankruptcy Court local rules committee. He is AV-rated, and since 2012 has been regularly selected by his peers as a bankruptcy “SuperLawyer.” He speaks frequently at professional seminars, particularly on the role and responsibilities of debtor’s counsel in Chapter 7 cases. I. INTRODUCTION. II. THE FUNDAMENTAL CONCEPT OF CHAPTER 7 III. THE PARTIES. A. The Debtor B. The Creditors 1. Administrative expenses 2. Secured claims 3. Priority claims 4. General unsecured claims 5. The Debtor C. The Chapter 7 Trustee 1 D. The Professionals E. The United States Trustee F. The Bankruptcy Judge IV. THE BANKRUPTCY PROCESS A. Pre-filing--Information Gathering 1. The assets 2. -
UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT of NEW YORK ------X in Re: Chapter 7
Case 8-16-74856-ast Doc 25 Filed 01/11/18 Entered 01/11/18 11:32:11 UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------------------------X In re: Chapter 7 BARRY ADDISON, Case No.: 16-74856-ast Debtor. ---------------------------------------------------------X DECISION AND ORDER DENYING UNITED STATES TRUSTEE’S MOTION TO DISMISS Pending before the Court is the United States Trustee’s (the “UST”) motion to dismiss (the “Motion to Dismiss”) the chapter 7 bankruptcy case of Barry Addison (“Debtor”), solely as a presumed abuse case pursuant to 11 U.S.C. § 707(b)(2). The UST asserts that Debtor, an above-median income, single-person-household debtor, improperly claimed certain deductions on his chapter 7 means test, and that after adjusting for the improper deductions, Debtor’s case is presumptively abusive and should be dismissed. The deductions at issue are for operating two vehicles, an older vehicle, and an overstated tax liability. Debtor asserts all of the deductions on his means test are proper and that the presumption of abuse does not arise. This Court has concluded that Debtor properly claimed two vehicles, improperly claimed an older vehicle expense, and overstated his tax liability, but that even with his means test recalculated, the presumption of abuse does not arise. Therefore, the UST’s Motion to Dismiss will be denied. JURISDICTION AND VENUE This Court has jurisdiction over this core proceeding pursuant to 28 U.S.C. §§ 157(b)(2)(A), and 1334(b), and the Standing Orders of Reference in effect in the Eastern District of New York dated August 28, 1986, and as amended on December 5, 2012, but made effective nunc pro tunc as of June 23, 2011. -
ABI Roundtable Programs
ERIC W. ANDERSON Eric W. Anderson is a partner in the bankruptcy group of Parker, Hudson, Rainer & Dobbs LLP in Atlanta, where he concentrates his practice in bankruptcy, workouts, financial restructuring and commercial finance. He represents lenders and other parties in bankruptcy and financial restructuring matters both in and out of bankruptcy, debtor-in-possession financing, purchase and sale of assets of distressed companies, and various related transactions. A frequent writer and speaker, Mr. Anderson is an ABI Board member and a past chair of the advisory board for ABI’s Southeast Bankruptcy Workshop, and he has contributed articles to the ABI Journal and other publications. He is a Fellow in the American College of Bankruptcy and chairman of the College’s 11th Circuit Educational Programs Committee, and is a member of the boards of directors of the Southeastern Bankruptcy Law Institute and of Meritas, a worldwide law firm organization. He also served on the board of directors of the Atlanta Bar Association and is a past chair BUSINESS of the Atlanta Bar Association’s Bankruptcy Section. Mr. Anderson You Can Use § 363 was selected as one of Georgia’s Legal Elite in 2007-14, and has been for That? listed as a “Georgia Super Lawyer” in Atlanta Magazine. He is also recognized by Chambers USA as one of America’s leading lawyers for business, and by The Best Lawyers in America. In addition, he is a This panel will discuss uses of Master of the Bench in the W. Homer Drake, Jr. Georgia Bankruptcy § 363 other than in connection Inn of Court. -
Environmental Claims in Bankruptcy: It's a Question of Priorities*
Comment Environmental Claims in Bankruptcy: It's a Question of Priorities* Conflicting case law exists regarding the proper treatment of environmental claims in bankruptcy-primarily in the contexts of a trustee s power to abandon contaminated property, a debtors ability to receive a discharge of environmental liability, and a creditors request for administrative priority. This Comment evaluates criteria courts have established for characterizing environmental claims and for determining their priority in bankrupt cy. It examines the relationships between the trustees abandonment power, the priority of environmental claims, and the determination of when a claim arises. Criteria are suggested for characterizing environmental claims and for determining their priority in bankrupt cy which resolve the conflicting case law and result in a uniform and consistent application of the Bankruptcy Code, environmental law, and Supreme Court precedent. TABLE OF CONTENTS I. INTRODUCTION . 222 IL LEGISLATION . • . • . 224 A. Environmental Law . 224 B. Bankruptcy Law . 226 III. DISCHARGEABILITY OF ENVIRONMENTAL CLAIMS IN BANKRUPTCY 230 A. The Legal Relationship Test . 231 B. The Debtor's Conduct Test . 235 * The author wishes to express her gratitude to the Honorable Vincent P. Zurzolo for his helpful guidance on early drafts of this Article. 221 C. The Fair Contemplation Test . 237 D. Picking the "Right" Test: When a Claim Arises and When a Claim is Discharged . 241 IV. ABANDONMENT . • . 243 A. The Midlantic Decision . 244 B. Application of the Midlantic Decision . 246 1. Interpretation ofMidlantic in Abandonment Cases. 248 2. Consequences of Abandonment . 252 V. TREATMENT OF ENVIRONMENTAL CLAIMS . 254 A. The Role ofMidlantic in Determining Administrative Priority 258 1. -
Distressed Mergers and Acquisitions
Wachtell, Lipton, Rosen & Katz DISTRESSED MERGERS AND ACQUISITIONS 2013 Summary of Contents Introduction ..............................................................................................................1 I. Out-of-Court Workouts of Troubled Companies ...............................................3 A. Initial Responses to Distress ........................................................................4 B. Out-of-Court Transactions ...........................................................................9 II. Prepackaged and Pre-Negotiated Bankruptcy Plans ........................................40 A. Prepackaged Plans .....................................................................................41 B. Pre-Negotiated Plans ..................................................................................46 C. Pre-Negotiated Section 363 Sales ..............................................................48 III. Acquisitions Through Bankruptcy ...................................................................48 A. Acquisitions Through a Section 363 Auction ............................................48 B. Acquisitions Through the Conventional Plan Process .............................101 IV. Acquisition and Trading in Claims of Distressed Companies .......................150 A. What Claims Should an Investor Seeking Control Buy? .........................150 B. What Rights Does the Claim Purchaser Obtain? .....................................154 C. Acquisition of Claims Confers Standing to Be Heard in a Chapter 11 Case -
In the United States Bankruptcy Court for the Southern District of Alabama Southern Division
IN THE UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION In re: Case No.: 14-2128-JCO RICHARD LONG, Chapter 7 Debtor. MEMORANDUM OPINION AND ORDER This matter came before the Court on interested party, Jerry Gaddy’s (hereinafter “Gaddy”) Motion to Vacate or Grant Relief from Decree, or In the Alternative, Motion to Reopen Case Combined With Motion to Vacate or Grant Relief from Order Granting Motion to Annul Automatic Stay and Validate State Court Order Nunc Pro Tunc, (hereinafter referred to as “Motion to Vacate”) (Doc. 87), creditor SE Property Holdings’ (hereinafter “SEPH”) Brief in Opposition thereto (Doc. 91), and Gaddy’s Reply Brief. (Doc. 92). On November 8, 2016, a hearing was held on these matters. Present on behalf of Mr. Gaddy was attorney Clark Hammond. Appearing on behalf of SEPH were attorneys Richard Gaal, William Shreve, and Danielle Mashburn-Myrick and appearing for Debtor Long was attorney Ben Meaher. At the conclusion of the hearing, the Court took these matters under advisement, and now issues its ruling thereon. Procedural Background On October 11, 2010, SEPH filed a lawsuit titled SE Property Holdings, LLC v. Water’s Edge, LLC et al., Civil Action No. 2010-9018621 in the Baldwin County Circuit Court (hereinafter “the state court”), against multiple defendants, two of which were Debtor, Richard Long, and interested party, Jerry Gaddy. 1 The lawsuit was originally filed by Vision Bank who was succeeded by merger by SEPH. On July 2, 2014, Debtor Long filed his Chapter 7 bankruptcy petition. On October 24, 2014, a suggestion of bankruptcy as to Long was filed in the state court action. -
WELSH and No
FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT IN RE: DAVID C. WELSH AND No. 12-60009 SHARON N. WELSH, Debtors, BAP No. 10-1465 ROBERT G. DRUMMOND, Chapter 13 Trustee, OPINION Appellant, v. DAVID C. WELSH and SHARON N. WELSH, Appellees. Appeal from the Ninth Circuit Bankruptcy Appellate Panel Perris, Pappas, and Hollowell, Bankruptcy Judges, Presiding Argued and Submitted November 8, 2012—Portland, Oregon Filed March 25, 2013 2 IN RE: WELSH * Before: Kenneth F. Ripple, Stephen S. Trott, and Richard A. Paez, Circuit Judges. Opinion by Judge Ripple SUMMARY** Bankruptcy The panel affirmed the judgment of the Bankruptcy Appellate Panel, which affirmed the bankruptcy court’s judgment confirming a Chapter 13 plan as proposed in good faith. The panel held that Congress’s adoption of the Bankruptcy Abuse Prevention and Consumer Protection Act forecloses a court’s consideration of a debtor’s Social Security income or a debtor’s payments to secured creditors as part of the inquiry into good faith under 11 U.S.C. § 1325(a). COUNSEL Robert G. Drummond, Great Falls, Montana, for Appellant/Trustee. * The Honorable Kenneth F. Ripple, Senior Circuit Judge for the U.S. Court of Appeals for the Seventh Circuit, sitting by designation. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. IN RE: WELSH 3 Edward A. Murphy, Murphy Law Offices, PLLC, Missoula, Montana, for Appellees/Debtors. Tara Twomey, National Consumer Bankruptcy Rights Center, San Jose, California, for amicus curiae. OPINION RIPPLE, Senior Circuit Judge: David and Sharon Welsh filed a Chapter 13 bankruptcy petition in the United States Bankruptcy Court for the District of Montana. -
3:15Pm Representing Creditors in Chapter 13
Chapter 5 2:05 – 3:15pm Representing Creditors in Chapter 13: Getting Relief from Stay, Objecting to Discharge, Bad Faith Filings Thomas S. Linde Schweet Rieke & Linde PLLC Electronic format only: 1. Creditor’s Presentation: Chapter 13 Electronic versions of these documents are available on the KCBA website: https://www.kcba.org/cle/EventDetails.aspx?Event=3713 CREDITOR’S REPRESENTATION: CHAPTER 13 THOMAS S. LINDE SCHWEET RIEKE & LINDE, PLLC 575 S. Michigan Street Seattle, Washington 98108 TELEPHONE: (206) 381-0125 FACSIMILE: (206) 381-0101 E-Mail Address: [email protected] COPYRIGHT: February, 2013 THOMAS S. LINDE is a member of Schweet Rieke & Linde, PLLC. He concentrates his practice in the areas of real estate law and creditors' rights and remedies, including real estate transactions and financing, judicial and non-judicial real property foreclosures, real estate contract forfeitures, evictions, and the representation of creditors in bankruptcy proceedings. Mr. Linde received his B.A. degree, magna cum laude, from the University of Washington and his J.D. degree, with honors, from the University of Washington School of Law. He is a frequent speaker at continuing legal education seminars relating to creditors' rights and remedies. Mr. Linde is a member of the King County, Washington State and American Bar Associations and the American Bankruptcy Institute. He is a past chair of the CLE Committee for the Washington State Bar Association, a past chair of the Bankruptcy Section for the King County Bar Association, a current executive board member of the Creditor-Debtor Section of the Washington State Bar Association, and a current co-chair of the Bankruptcy Section of the Federal Bar Association for the Western District of Washington.