Today's Practice-Critical Bankruptcy Bulletins: September 2008

Tuesday, September 30, 2008

The 9th Circuit's Second § 523(a)(6) "Willful & Malicious Injury" Opinion in Two Months

Please note that this writer is not licensed to practice law in Oregon. This means that he is not legally permitted to give any legal advice or perform any legal services. This Bulletin and the entire contents of this website is written only for attorneys. and is not intended for the public. If any non-attorney is reading this, you must consult an attorney about ANYTHING you read here. Nothing in this website is intended to be nor should be read as being legal advice to anyone.

By Andrew Toth-Fejel, Bankruptcy Litigation Support for Attorneys, Andy@BLSforAttorneys.com

Barboza v. New Form, Inc.

9th Circuit Case No. 06-56319

Sept. 23, 2008

Last week the 9th Circuit issued its 2nd opinion in as many months interpreting the "willful and malicious injury" language in § 523(a)(6) of the Bankruptcy Code. That's two out of its eight published opinions on bankruptcy law during these two months, a lot of focus on interpreting one phrase.

Last week's Litigation Report in this website highlighted the 1st of these two opinions, Lockerby.v. Sierra, on what it takes for an intentional breach of contract to be a nondischargeable "willful and malicious injury."

Now in Barboza, the 9th Circuit reversed both the bankruptcy court and the BAP, primarily by finding that neither court applied the 9th Circuit's law on § 523(a)(6)'s "willful and malicious injury" language accurately. The procedural contexts were the bankruptcy court allowing the plaintiff creditor to prevail on a motion for summary judgment, and then the BAP ruling that the summary judgment was appropriate. This Bulletin summarizes the substantive law of this opinion, while this week's Litigation Report summarizes its procedural lessons.

The Context

In Barboza, before filing Chapter 7 bankruptcy the debtors were found liable for willful copyright infringement in federal District Court. The final judgment was for nearly $900,000. The "Bankruptcy Court concluded that there was uncontroverted evidence that Appellants [debtor-defendants] knew of Appellee’s copyright, and in combination with the jury finding of willful infringement, that the infringement constituted a willful injury within the meaning of § 523(a)(6)." The BAP affirmed.

The Law of "Willful & Malicious Injury" in the 9th Circuit

The 9th Circuit cited a number of 9th Circuit opinions making clear that "[w]e analyze the willful and malicious prongs of the dischargeability test separately."

On the willfulness side, the Court relied on the U.S. Supreme Court opinion of Kawaauhau v. Geiger, 523 U.S. 57(1998) that "if a finding of 'willful' copyright infringement is based merely on reckless behavior, the resulting statutory award would not fit within the § 523(a)(6) exemption." Willful injuries are limited to "deliberate and intentional" injuries. Since the meaning of "willful" under federal copyright infringement law is broader than the § 523(a)(6) meaning, including reckless disregard and insufficient supervision, the 9th Circuit reversed the lower courts' granting of summary judgment for the creditor and remanded to the bankruptcy court.

As to the malicious prong, the 9th Circuit held that the bankruptcy erred in failing to address this directly. And then the BAP erred when, "perhaps in an attempt to remedy the Bankruptcy Court's lack of discussion and findings concerning the 'malicious' prong, found that malice could be implied from willfulness." Since the BAP's implication of maliciousness "rested entirely on its conclusion that the Appellants' [debtors'] actions were willful," while the 9th Circuit had determined their actions were not necessarily willful, the Court remanded to the bankruptcy court on this prong as well.

The Barboza Bottom Line

To determine the nondischargeability of a debt for "willful and malicious injury . . . to another entity or to another entity or to the property of another entity" under § 523(a)(6), the bankruptcy court must make separate findings as to the willful and the malicious requirements. Willfulness includes only intentional injuries not reckless ones. The maliciousness cannot be implied from willfulness.

Consistency With the Most Recent "Willful & Malicious" Oregon Opinion

In January of this year Judge Perris wrote a published opinion on the specific § 523(a)(6) issue addressed at the beginning of this Bulletin, intentional breach of contract causing "willful and malicious injury." Home Instead Senior Care of Oregon v. Treon (Click on opinion name to link to the opinion at the bankruptcy court's website.) In it, after resolving the concept of "tortious conduct" specific to the breach of contract context, she "anticipated" both the 9th Circuit's Lockerby and Barboza opinions by emphasizing the importance of and then engaging in separate analyses of the willful and malicious prongs. See my summary of her opinion by clicking on its title: Debtor's Breach of Prior-Employer’s Non-Compete Agreement IS Dischargeable Under Sect. 523(a)(6)

(Also see this website's Practical Summaries of Oregon Bankruptcy Opinions for my summaries of all of 2008's opinions--scroll down to the lowest item on the far right column of the home page.)

by: Andrew Toth-Fejel
Bankruptcy Litigation Support for Attorneys
Andy@BLSforAttorneys.com

Please note that this writer is not licensed to practice law in Oregon. This means that he is not legally permitted to give any legal advice or provide and legal services. This Bulletin and the entire contents of this website is written only for attorneys. and is not intended for the public. If any non-attorney is reading this, you must consult an attorney about ANYTHING you read here. Nothing in this website is intended to be nor should be read as being legal advice to anyone.

Monday, September 29, 2008

Bankruptcy Mortgage Modification Cut Out of Bailout Bill: So What's In this Weekend's Emergency Economic Stabilization Act of 2008 for Homeowners?

By Andrew Toth-Fejel, Bankruptcy Litigation Support for Attorneys, Andy@BLSforAttorneys.com

[LATE-BREAKING NEWS: AS OF EARLY THIS AFTERNOON, 9/29/08, THE HOUSE OF REPRESENTATIVES VOTED DOWN THE EMERGENCY ECONOMIC STABILIZATION ACT OF 2008, CONTRARY TO EXPECTATIONS.]

As of Friday the mortgage modification amendment to the Bankruptcy Code was taken off the table by Democrats during the intense negotiations In the Capitol over the bailout bill, as announced in a closed-door meeting to Democrat legislators by Barney Frank, Chairman of the House Financial Services Committee. Despite this bankruptcy provision being one of the main provisions of Barney Frank's and Senate Banking Committee Chairman Christopher Dodd's responses to Treasury Secretary Henry Paulson's original proposal, it apparently became a "poison pill" sacrificed in order to reach compromise during the weekend. As stated by Rep. Joseph Crowley, a New York Democrat and member of the House Democratic leadership, "There is the belief we would not be able to pass a bill with the provision," There was enormous pressure to announce a final compromise among congressional and Treasury negotiators by the time the Asian stock markets began business Monday morning.

So without the mortgage modification amendment, what does the Emergency Economic Stabilization Act of 2008 (as of its form available Sunday evening, Sept. 28) contain of help to struggling homeowners? Putting aside the general benefits of avoiding the total seizing up of the credit markets, there is little if any tangible help for homeowners.

The Emergency Act establishes the Troubled Assets Relief Program (TARP) authorizing the Secretary of the Treasury "to purchase . . . troubled assets from any financial institution" through a new Office of Financial Stability, overseen by a Financial Stability Oversight Board.

Section 109 of the Act, entitled "Foreclosure Mitigation Efforts," requires the Treasury Secretary to

implement a plan that seeks to maximize assistance for homeowners and use the authority of the Secretary to encourage the servicers of the underlying mortgages, considering net present value to the taxpayer, to take advantage of the HOPE for Homeowners Program under section 257 of the National Housing Act or other available programs to minimize foreclosures. In addition, the Secretary may use loan guarantees and credit enhancements to facilitate loan modifications to prevent avoidable foreclosures.

Section 110 of the Act, entitled "Assistance to Homeowners," requires federal entities that hold mortgages and mortgage-backed securities, including the Federal Housing Finance Agency (the conservator for Fannie Mae & Freddie Mac), the FDIC, and the Federal Reserve, to

implement a plan that seeks to maximize assistance for homeowners and use its authority to encourage the servicers of the underlying mortgages, and considering net present value to the taxpayer, to take advantage of the HOPE for Homeowners Program under section 257 of the National Housing Act or other available programs to minimize foreclosures.

Modifications to residential mortgage loans under this plan "may include--(A) reduction in interest rates; (B) reduction in loan principal; and (C) other similar modifications."

Section 124 of the Act, entitled "Hope for Homeowners Amendments," strengthens the Hope for Homeowners program to increase eligibility and improve the tools available to prevent foreclosures.

Section 125 of the Act, entitled "Congressional Oversight Panel," establishes this Panel, with the duty, among others, to report to Congress every 30 days on the effectiveness of the foreclosure mitigation efforts under the Act.

Section 303 of the Act, entitled "Extension of Exclusion of Income From Discharge of Qualified Principal Residence Indebtedness," extends the current provision tax forgiveness for the cancellation of mortgage debt. The expiration of that act is extended from January 1, 2010 to January 1, 2013. This does not apply to insolvent homeowners or those in bankruptcy for whom the cancellation of mortgage debt is not deemed taxable income for other reasons. But this section of the Act will take away for three additional years an important disincentive for solvent homeowners to negotiate with their mortgage creditors for reductions in their loan balances .

Bottom Line: As summarized by Adam Levitin, a law professor at Georgetown Law School, in the blog Credit Slips:

The plan directs the Treasury Department to engage in reasonable modifications for residential mortgage loans it controls and to encourage servicers to do so for loans it doesn't control. . . . Treasury is unlikely to end up controlling many distressed residential mortgage loans directly. And Treasury has been encouraging servicers to do loan modifications since last fall, but with very limited success. There is no reason to think that the bailout suddenly changes anything. In short, Congress enacted some show provisions about consumer relief, but nothing of substance.

by: Andrew Toth-Fejel
Bankruptcy Litigation Support for Attorneys
Andy@BLSforAttorneys.com

Please note that this writer is not licensed to practice law in Oregon. This means that he is not legally permitted to give any legal advice or provide and legal services. This Bulletin and the entire contents of this website is written only for attorneys. and is not intended for the public. If any non-attorney is reading this, you must consult an attorney about ANYTHING you read here. Nothing in this website is intended to be nor should be read as being legal advice to anyone.

Friday, September 26, 2008

Is BAPCPA Meeting the Goals of its Proponents?

By Andrew Toth-Fejel, Bankruptcy Litigation Support for Attorneys, Andy@BLSforAttorneys.com

From Anecdotes to Hard Evidence
Those who work in the bankruptcy world day in and day out have infinite anecdotal experience on the effects of BAPCPA on their clients, whether creditors or debtors. Especially for those who represent only creditors or only debtors, their one-sided experience may mostly just reinforce their preconceived opinions about the Act. Especially for them, but for everybody in this bankruptcy world, it is good to get out of their trenches, now nearly two years after BAPCPA's effective date, and look at a purportedly neutral analysis of the law's effects.

The Study
This summer Michael Simkovic, a recent Fellow in Law and Economics at Harvard Law School's John M. Olin Center for Law, Economics, and Business, published a study entitled "The Effect of 2005 Bankruptcy Reforms on Credit Card Industry Profits and Prices." It purported to be a non-partisan, objective study on whether one of the primary stated goals of BAPCPA was being met: the increased availability of credit to consumers as a result of a BAPCPA-induced reduction in bad-debt losses to creditors.

BAPCPA's Goals
This legislative goal was the consistent theme of BAPCPA's proponents, from experts testifying in favor of the legislation before Congress to President Bush, as exemplified in his most substantive sentence promoting the the law in his statement at the bill signing photo op: "This new law will help make credit more affordable, because when bankruptcy is less common, credit can be extended to more people at better rates."

BAPCPA's Methods for Limiting Discharge of Debts
1) Broadened categories of nondischargeable debts.
2) Used means test to dismiss Chapter 7's or turn them into Ch. 13's.
3) Increased costs of filing--filing fees, attorney fees, debt counseling and debtor education.
4) Lengthened time between bankruptcy filings.

Reductions in Losses to Credit Card Creditors
1) Credit card creditors' losses from bad debt went down from 4.64% in 2005, to 3.48% in 2006, to 3.95% in 2007.
2) Although these differences may seem relatively small, these loss reductions translate to as much as $8.6 billion for 2006 and $5.8 billion for 2007.

Credit Card Fees
1) From 4/05 to 12/07--before and after BAPCPA--over-limit fees increased by 17%, and late fees increased by 5%, both continuing prior trends.
2) Annual fees continued to fall, as the most visible of all credit card fees.
3) Late charges and over-limit fees effect a significant portion of credit card accounts, 35% and 13%, respectively, in 2005.
4) The length of grace periods fell by 1.5% from 2005 to 2007.

Interest
1) From 4/05 to 12/07, the average annual percentage rate on credit cards increased by 8%, going from 17.7% to 19.1%.
2) During the same period the "risk-free rate," the interest charged on 5-year Treasury bills, decreased by 12%, going from 3.9% to 3.5%.
3) During this period, the spread between these two sets of rates increased by 14%, from 13.8% to 15.7%.

Credit Card Creditors' Profits
After a small reduction in annual pre-tax profits from about $32 billion in 2004 to about $30 billion in 2005, these creditors' profits increased in 2006 and 2007 to about $38 billion and $40 billion, respectively.

Conclusion
Even though the credit card creditors realized billions of dollars in savings from reduced losses during 2006 and 2007, the cost of credit went up instead of down, contrary to the prior arguments of BAPCPA's proponents. The credit card companies benefited in higher profits and did not make credit more available through lower costs.

How Did This Occur?
Why didn't competition force credit card creditors to use its reduced-loss savings to lower its costs to compete for customers?
1) Industry consolidation: from 1995 to 2005, the top 10 credit card issuers went from having 56% of the market to 87%. In 2007 the percentage went up to nearly 94%. (And based on this week's financial news, that consolidation is increasing by the day.)
2) "Switching costs"--the economic cost of transferring from one creditor to another--are high for the highest profit, financially distressed customers, those who accrue more late-charges and over-limit fees; these debtors' current credit card creditors have substantial more information on their customers and so can determine whether and when they will default on their debts much better than their competitors, making their customers a relatively captive market.
3) The relatively complex and non-transparent multi-tiered pricing structure of credit cards makes comparison shopping very difficult, with large percentages of consumers making economically detrimental decisions based on teaser-interest rates and low annual fees accompanied by many potential hidden costs.

by: Andrew Toth-Fejel
Bankruptcy Litigation Support for Attorneys
Andy@BLSforAttorneys.com

Please note that this writer is not licensed to practice law in Oregon. This means that he is not legally permitted to give any legal advice or provide and legal services. This Bulletin and the entire contents of this website is written only for attorneys. and is not intended for the public. If any non-attorney is reading this, you must consult an attorney about ANYTHING you read here. Nothing in this website is intended to be nor should be read as being legal advice to anyone.

Thursday, September 25, 2008

There's An Absolute Right for a Debtor to Dismiss a Chapter 13 Case, Right? NO, the 9th Circuit Said on 9/24/08

By Andrew Toth-Fejel, Bankruptcy Litigation Support for Attorneys, Andy@BLSforAttorneys.com

Rosson v. Fitzgerald (In re Rosson), 9th Circuit Case No. 06-35724
Published 9/24/08

This brand-new Ninth Circuit opinion addresses the conflict between a Chapter 13 debtor's right to dismiss his case "at any time" and the bankruptcy court's power to convert the case to a Chapter 7 case "for cause" if it "is in the best interests of creditors and the estate," between § 1307(b) and § 1307(c) of the Bankruptcy Code. This Ninth Circuit Rosson opinion is very important because: 1) this specific question is one of first impression in this Circuit, 2) there is a conflict among other Circuits, 3) this opinion expressly overturned a long-standing Ninth Circuit BAP opinion, 4) the Court let stand the conversion in spite of the bankruptcy court's failure to provide the debtor the required notice and hearing on the matter, and 5) the Opinion provides a vague standard for determining when debtor's have a right to dismiss, but its very vagueness demands that it be understood in order to counsel clients on this issue.

The Usual Procedural Context

The way these conflicts--between the Chapter 13 debtor's right to dismiss and the court's power to convert to Chapter 7--tend to arise is that the court decides at some point to convert the case but the debtor then files a motion to dismiss before the conversion order is entered. In Rosson, the debtor had failed to pay to the trustee about $185,000 in proceeds from an arbitration. After about six weeks had passed since debtor had received these funds and been ordered to turn it over, at a hearing on, of all things, debtor's attorney's motion to withdraw as his attorney, the judge gave the debtor one hour to deliver the money or the case would be converted. The debtor instead filed a motion to dismiss the case, which the judge denied and he converted the case instead.

Overturned the 1994 Beatty BAP Opinion

The debtor in Rosson based his argument for the absolute right to dismiss on the well-known 9th Circuit BAP opinion, Beatty v. Traub (In re Beatty), 162 B.R. 853 (B.A.P. 9th Cir. 1994), which had clearly held that "[t]he better reasoned view is that a court must dismiss the case upon the debtor's request for dismissal under section 1307(b) if that request is made prior to the [formal] order converting the case to Chapter 7."

The Ninth Circuit's justification for overturning Beatty is a 2007 U.S. Supreme Court opinion, Marrama v. Citizens Bank of Massachusetts, 127 S.Ct. 1105, although that opinion involved the right of a debtor to convert a Chapter 7 case to Chapter 13 under § 706(a). The Supreme Court held "that the right to convert to Chapter 13 was impliedly limited by the bankruptcy court’s power to take any action necessary to prevent bad-faith conduct or abuse of the bankruptcy process."

But the Ninth Circuit in Rosson glossed over (in a brief footnote) the differences in language between § 1307(b) at issue in Rosson, and § 706(a) at issue in Marrama, especially § 1307(b)'s use of the mandatory "shall" (as in "[u]pon request of the debtor . . . the court shall dismiss a case under [Chapter 13]") and § 706(a)'s use of the permissive "may." The Rosson Court simply said that "[h]ere, the different formulations are not dispositive," without saying why not. This Court ironically hinges its rationale that these two different provisions are analogous on a 9th Circuit BAP opinion, Croston v. Davis (In re Croston), 313 B.R. 447, 450 (B.A.P. 9th Cir. 2004), which came after Beatty and which had EXTENDED the Beatty absolute right to dismiss a Chapter 13 under § 1307(b) to an absolute right to convert to Chapter 13 under § 706(a). In Rosson the Ninth Circuit reasoned that since Marrama had directly overturned Croston, and Croston had relied on Beatty, Marrama had logically invalidated Beatty as well. It held that "although Marrama did not address the exact issue decided in Beatty, it is clear that, after Marrama, Beatty . . . is no longer good law, insofar as it held that a Chapter 13 debtor has an absolute right to dismiss under § 1307(b)."

Denial of Notice and a Meaningful Hearing

The debtor in Rosson argued that §1307(c) requires "notice and a hearing" before "the court may convert a case" to Chapter 7. A hearing on a motion to convert was in fact already scheduled on the bankruptcy court's calendar for a few weeks later when the hearing on the debtor's attorney motion to withdraw occurred. At that hearing the judge learned about debtor's lack of compliance with his prior order to give the trustee the arbitration proceeds, he said he would convert the case if the debtor failed to turn over those proceeds within one hour. The debtor argued that he had no notice that the conversion issue would be heard at the hearing on his attorney's withdrawal, and no opportunity to present arguments or evidence on the issue.

The phrase "after notice and hearing" is defined in §102(1) of the Code, with the required notice and hearing needing only to be "as is appropriate in the peculiar circumstances."

In this Rosson case, as to the lack of effective notice that conversion would be raised at the earlier hearing, "the bankruptcy court was within its discretion to enter, with minimal or no notice, what it perceived as an emergency ruling to prevent dissipation of assets."

As to the lack of any meaningful opportunity to present legal arguments or evidence on the conversion, the Ninth Circuit acknowledged that the bankruptcy court should have scheduled a prompt hearing, to comply with §102(1) and §1307(c). But this was a "harmless error," with " no prejudice arising from the defective process" because at the subsequent hearing to reconsider debtor "offered nothing to counter the court's finding of bad faith."

The Vague Standard

So if the debtor's right to dismiss a Chapter 13 case is not absolute, what kind of "bad-faith conduct or abuse of the bankruptcy process" prevents dismissal? The debtor in Rosson argued unsuccessfully that his behavior was not the sort of "bad-faith conduct or abuse of the bankruptcy process" as in Marrama, which "involved a debtor who consciously lied to the court, attempted to remove assets from the court’s jurisdiction, and took efforts to conceal what he had done.” The Rosson Court quoted Marrama in laying out the unsatisfying standard: "the [Supreme] Court held that bankruptcy judges had the power to differentiate between 'the vast majority' 'of honest but unfortunate debtors who do possess an absolute right to convert their cases from Chapter 7 to Chapter 13' (and by analogy, an absolute right to dismiss their Chapter 13's) and 'the atypical litigant who has demonstrated that he is not entitled to the relief available to the typical debtor' ." So, THE BOTTOM LINE: Just ask your client if she is typical or atypical, and then you'll be able to advise her whether she still has an absolute right to dismiss her Chapter 13 case!

by: Andrew Toth-Fejel
Bankruptcy Litigation Support for Attorneys
Andy@BLSforAttorneys.com

Please note that this writer is not licensed to practice law in Oregon. This means that he is not legally permitted to give any legal advice or provide and legal services. This Bulletin and the entire contents of this website is written only for attorneys. and is not intended for the public. If any non-attorney is reading this, you must consult an attorney about ANYTHING you read here. Nothing in this website is intended to be nor should be read as being legal advice to anyone.

Wednesday, September 24, 2008

What Good Are 9th Circuit BAP Opinions in Cases Arising Outside Oregon?

Please note that this writer is not licensed to practice law in Oregon. This means that he is not legally permitted to give any legal advice to anyone. This Bulletin and the entire contents of this website is written only for attorneys. and is not intended for the public. If any non-attorney is reading this, you must consult an attorney about ANYTHING you read here. Nothing in this website is intended to be or should be read as being legal advice to anyone.

By Andrew Toth-Fejel, Bankruptcy Litigation Support for Attorneys, Andy@BLSforAttorneys.com

A while ago I asked an attorney I knew to be a conscientious bankruptcy practitioner a question I thought for sure he could answer: Are 9th Cir BAP opinions from federal districts outside Oregon binding in Oregon bankruptcy courts? His amusing answer: yes, if the Oregon judge who is hearing your local bankruptcy case currently serves on or has served on the Bankruptcy Appellate Panel, no, if she is or has not! After we both laughed he said that his joke was in fact at least partly based on his experience. The joke was also his way of delaying admitting that he really did not know the precedential value of non-Oregon 9th Circuit BAP opinions.

This seems like a rather important question for any Oregon bankruptcy attorney. Given the huge size of the 9th Circuit--57 million people, 9 states, 13 federal districts plus two territories--a huge proportion of the 9th Circuit's BAP opinions arise from cases outside of Oregon. For example, of the 15 opinions filed by the 9th Circuit BAP so far this year, none arose from Oregon. (10 of the 15 were from California, not surprising since California contains virtually 2/3rs of the population of the entire 9th Circuit!) Are all these non-Oregon cases binding on Oregon bankruptcy courts?

Here are some answers:

1) A Judge Alley opinion published in 2000:

Congress established the appellate panels in order to promote uniformity of decision within the circuits. It follows that BAP precedent should be followed by Bankruptcy Courts in the absence of any contrary authority from the District Court. In re Proudfoot, 144 B.R. 876, 878 (9th Cir. BAP (Or.) 1992).

Harry Ritchie’s Jewelers, Inc. v. Chlebowski (In re Chlebowski), 246 B.R. 639, 645 (Bankr. D.Or. 2000).

2) A Judge Dunn opinion published in 2001, following the opinion above and repeating its holding:

. . . Congress provided for the appointment of bankruptcy appellate panels in order to promote greater uniformity of bankruptcy decision making within the circuits. Accordingly, bankruptcy appellate panel decisions should be followed by the bankruptcy courts so long as there is no contrary local district court authority,

In re Platt, 270 B.R. 773, 775 (Bankr. D.Or. 2001).

3) The most extensive recent local bankruptcy court opinion's discussion on the subject that I could find is another Judge Alley opinion, this one, from March 2007. It is surprisingly unpublished, perhaps because the judge explicitly said he would have ruled oppositely on the merits but for a BAP opinion that he felt bound to follow. After citing the above two opinions, Judge Alley stated:

The Doctrine of stare decisis advances two important principles: the uniformity of case law throughout a jurisdiction, and the resulting predictability of results required in order to ensure fairness of the judicial process to litigants. As a matter of fundamental fairness to parties before it, a trial court must strive to apply the law as it is held by courts which may review its decisions. Otherwise, parties will often be forced to the trouble and expense of an appeal to achieve a lawful result whenever the trial court disagrees with the higher court’s view of the law. Rules of comity and stare decisis are essentially corollaries of this basic rule.

In this case, there is appellate authority from the BAP that is directly on point. There is no decision from any Oregon District Court judge addressing the issues before the Court at present. . . . . It is one thing to say that District Court authority somehow
outweighs the BAP’s where the two conflict; it is quite another to say that, where the District Court has been silent, the Bankruptcy Courts are free to disregard the opinions of the BAP. Such a rule would seriously undermine the BAP’s role in promoting uniformity in the law in this Circuit.

I hold that where the Bankruptcy Appellate Panel has issued an opinion applicable to the facts before the Bankruptcy Court, and there is no District Court opinion applicable to those facts, the Bankruptcy Appellate Panel’s opinion is binding.

In re Vue, Case No. 05-66116-fra13, 3/16/2007. (Click on the link to this opinion to see Judge Alley's dicta about potential conflicts between District Court and BAP opinions, in footnote 3 at the very end of his "Discussion and Analysis".)

BOTTOM LINE: All three opinions tell us that, unless our own U.S. District Court in its appellate role has spoken differently (and it's not clear what happens with that conflict) Oregon bankruptcy courts ARE bound by all those originating-away-from-Oregon BAP opinions, yes even all those ones from California!

by: Andrew Toth-Fejel
Bankruptcy Litigation Support for Attorneys
Andy@BLSforAttorneys.com

Please note that this writer is not licensed to practice law in Oregon. This means that he is not legally permitted to give any legal advice to anyone. This Bulletin and the entire contents of this website is written only for attorneys. and is not intended for the public. If any non-attorney is reading this, you must consult an attorney about ANYTHING you read here. Nothing in this website is intended to be or should be read as being legal advice to anyone.

Tuesday, September 23, 2008

ALERT: California's § 703.140 Exemptions Are Unconstitutional Violation of Supremacy Clause, According to Non-Binding Arizona B'cy Court Opinion

Please note that this writer is not licensed to practice law in Oregon. This means that he is not legally permitted to give any legal advice to anyone. This Bulletin and the entire contents of this website is written only for attorneys. and is not intended for the public. If any non-attorney is reading this, you must consult an attorney about ANYTHING you read here. Nothing in this website is intended to be or should be read as being legal advice to anyone.

By Andrew Toth-Fejel, Bankruptcy Litigation Support for Attorneys, Andy@BLSforAttorneys.com

At least one of the Eugene Chapter 7 trustees has asserted that he will begin challenging debtors' uses of one of the two sets of California property exemptions, the one in California Code of Civil Procedure § 703.140(b). His legal basis for this is a published opinion of the Arizona Bankruptcy Court, In re Regevic, 389 B.R. 736, dated June 24, 2008, which invalidated that bankruptcy-only set of exemptions as contrary to the Supremacy Clause. Since this opinion is not binding in Oregon, it is unclear how many trustees will try asserting this position, but at the very least practitioners should be aware of this possibility and perhaps consider using the alternative set of exemptions, in California Code of Civil Procedure § 704.010ff.

This Arizona opinion and the fact that a trustee is asserting it comes to us courtesy of Eugene Attorney, Kim Covington, of Shlesinger & deVilleneuve Attorneys PC, who first posted an alert about this on the Debtor-Creditor Section's Discussion list serve on 9/10/08. She says, "With BAPCPA's change to the 730-day rule for determining the which state's exemptions to apply, this Arizona bankruptcy court opinion about California exemptions is very pertinent in Oregon, given how often our clients relocate to and from California."

The 730-day rule of § 522(b)(3)(A), requires the use of the California exemptions if a debtor was not domiciled in Oregon during all of the 730 days before filing and was domiciled in California during the 180-day period immediately before that 730 days (or more during those 180 days than any other state).

Covington further notes , "According to the bankruptcy judge in Regevig, there is a complicated history of how California came up with its double exemption scheme, which includes the legislature reacting once before to the nullification of a prior statute because of the federal Supremacy Clause. The Arizona judge quotes a prior opinion calling the current scheme a 'comedy of errors.' Practically speaking, there are major differences between these two California exemption regimens, with neither one necessarily more favorable to all debtors. For example, the bankruptcy-only exemptions in § 703.140(b) have a significant wild card exemption which the Section 704 set of exemptions do not, but the latter is much more generous in many of the specific exemption categories."

Covington's bottom line: "With your California exemption clients, consider just using the § 704.010ff exemptions if they adequately cover the assets, thereby avoiding the risk of trustee challenge under Regevig. And if the client needs the big wild card exemption or anything else in § 703.140(b), first check around to see whether your local trustees are raising the issue."

Based on the most recent information in other authoritatively sounding websites, there will not be an appeal of the Arizona bankruptcy judge's decision in Regevig: the debtors Matthew and Angelia Regevic, after first filing a notice of appeal, have now settled with their Chapter 7 trustee. But this Regevic opinion is hardly the last word.

Because this is by no means a one-sided debate. Notwithstanding the peculiarities of California's scheme, double exemption schemes are not rare among the states, where one set of exemptions are available only to those filing bankruptcy. And perhaps the most recent bankruptcy court to address this same issue has ruled just last month in the opposite direction of Regevig, that West Virginia's bankruptcy-only exemptions do NOT violate the federal Supremacy Clause. In re Morrell, Case No. 08-519 (Bankr. N.D.W.V Aug. 14, 2008). This Court's analysis is much more detailed than Regevig's, citing numerous opinions and even a law review article on each sides of the issue. Because of its thoroughness, Morrell is required reading for anyone wanting to dig further into this arena.

Some California trustees are gearing up to challenge the § 703.140(b) exemptions in the wake of Regevig, with debtors' attorneys there poised to fight back, so it seems inevitable that eventually there will be another, this time binding, appellate opinion addressing this. In the meantime, any debtors' attorney who is inclined to push back against any of our Oregon trustees challenging California's § 703.140(b) bankruptcy-only exemptions, either informally or in litigation, there is plenty of grist for that mill.

by: Andrew Toth-Fejel
Bankruptcy Litigation Support for Attorneys
Andy@BLSforAttorneys.com

Please note that this writer is not licensed to practice law in Oregon. This means that he is not legally permitted to give any legal advice to anyone. This Bulletin and the entire contents of this website is written only for attorneys. and is not intended for the public. If any non-attorney is reading this, you must consult an attorney about ANYTHING you read here. Nothing in this website is intended to be or should be read as being legal advice to anyone.

Monday, September 22, 2008

Two Prior Dismissed Cases Within 1 Year Really DOES Mean No Automatic Stay for Third Case Under § 362(c)(4)(A)(i), Says 9th Circuit BAP

By Andrew Toth-Fejel, Bankruptcy Litigation Support for Attorneys, Andy@BLSforAttorneys.com

Nelson v. George Wong Pension Trust (In re Nelson)
9th Circuit BAP Nos. CC-08-1101-PaPeK, CC-08-1103-PaPeK, CC-08-1104-PaPeK (related appeals)
June 26, 2008, PUBLISHED opinion

The 9th Circuit Bankruptcy Appellate Panel held that there is no ambiguity under BAPCPA's § 362(c)(4)(A)(i) "such that the automatic stay is not automatically in effect upon the filing of a third case by individual debtors who have been debtors in two prior cases within the previous year."

The language of the statutes seems on its face to be unambiguous:

"[I]f a . . . case is filed by or against a debtor who is an individual under this title, and if 2 or more . . . cases of the debtor were pending within the previous year but were dismissed , . . . the stay under subsection (a) shall not go into effect upon the filing of the later case . . . ."

Debtors had filed a pro se Chapter 13 case, which was dismissed a few weeks later because they failed to show that they had attended pre-petition credit counseling. After a mortgage creditor recorded a foreclosure notice on their residence, the debtors filed a second Chapter 13 case, now represented by an attorney. But after four proposed plans, that case too was dismissed, three days before the scheduled foreclosure sale. They filed their third Chapter 13 case, pro se again (retaining their prior attorney after their case was filed). The creditor proceeded with the foreclosure sale, purchased the residence at the sale and filed an unlawful detainer action against the debtors seeking to gain possession of the property. Debtors filed an answer in the state court action and an adversary proceeding in the bankruptcy court to set aside the foreclosure sale as being in violation of the automatic stay.

Debtors' arguments went to BAPCPA's placement of § 362(c)(4)(A)(i) in the Code not its verbiage. Since this new provision was not put into subsection (b) of § 362, which contains the long list of exceptions to the stay, debtors argued that some sort of stay was still in effect at the filing of their third case. Their position was that while the stay did not operate at the moment of filing as to property of the DEBTORS, it did as to property of the ESTATE, and the residence was property of the estate at the time of the foreclosure sale (the day after the 3rd case was filed) and thus the foreclosure was stayed.

The BAP's response was that the provision's placement outside of subsection (b) was sensible because § 362(c)(4)(A) contained a separate enforcement mechanism (found at § 362(c)(4)(ii), allowing a party in interest to get a court order confirming the absence of a stay), thus inappropriate for placement in (b). And the BAP pointed out that debtors could provide no case law in support of their position, whereas many courts, albeit without detailed statutory analysis, had ruled that no stay arises "where the factual predicate of § 362(c)(4)(A)(i) is satisfied." Finally, although the court acknowledged that statutory references to the automatic stay do at times refer only to property of the estate or to property of debtors, Congress made no such distinction here. Instead, § 362(c)(4)(A)(i) is not ambiguous, and by its plain reading the automatic stay does not go into effect at the time of an individual's 3rd bankruptcy case filing within one year.

by: Andrew Toth-Fejel
Bankruptcy Litigation Support for Attorneys
Andy@BLSforAttorneys.com

Friday, September 19, 2008

BAPCPA's Effect on Trustees, US Trustees & the Bankruptcy Courts

By Andrew Toth-Fejel, Bankruptcy Litigation Support for Attorneys, Andy@BLSforAttorneys.com

This summer the U.S. Government Accountability Office (GAO), on request of a number of members of Congress, released a report entitled Dollar Costs Associated with the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. In it the GAO presents the financial effect of BAPCPA on the U.S. Trustee Program, on trustees, and on the federal judiciary.

(The report also analyzes the post-BAPCPA increases in the cost of filing bankruptcy for consumer debtors, but that was the subject of yesterday's Bulletin.)

Please note that "[t]his report did not seek to assess the benefits of the Bankruptcy Reform Act and is therefore not an evaluation of the merits of the act."

The conclusions of the report include the following:

U.S. Trustee Program:

$72.4 million for costs directly relating to fulfilling its mandates under BAPCPA, during fiscal years 2005 through 2007. Most of this was for personnel costs "related to the means test, debtor audits, data collection and reporting, and counseling and education requirements."

At the same time filing fee revenues for the U.S. Trustee Program declined because of a reduction in bankruptcy filings, going down from $74 million to $52 million from fiscal year 2005 to 2007.

Private Trustees:

BAPCPA has increased the time and resources that trustees must spend on each case, while caseload of most trustees have declined.

The trustee's rate of attrition has not changed from before BAPCPA.

Bankruptcy Court:

Although the federal judiciary could not isolate its costs from BAPCPA from its normal operational costs, it estimated that about $48 million was spent in one-time start up costs that directly related to staff training and changes to its procedures, rules and forms.

Between fiscal years 2005 and 2007 bankruptcy filing and miscellaneous fees decreased from $237 million to $135 million because of the reduction in bankruptcy filings.

Query:

BAPCPA's implementation cost taxpayers at least many tens of millions of dollars, and apparently continues to cost significant amounts each year. At the same time, at least for a couple years, the bankruptcy system became less self-funded because of reductions in filing and other fees, although how much that was offset by pre-BAPCPA increased filings and resulting increased fee revenues is very difficult to determine. In any event, by any measure it's cost on taxpayers has been huge. As have the greatly increased costs on debtors, as outlined in yesterday's Bulletin. The question begged is whether BAPCPA's intended benefits are being achieved. An upcoming Bulletin will highlight a recent study from Harvard Law School which specifies the intended benefits and analyses whether they have been achieved so far.

by: Andrew Toth-Fejel
Bankruptcy Litigation Support for Attorneys
Andy@BLSforAttorneys.com

Thursday, September 18, 2008

BAPCPA's Increase in Debtors' Attorney Fees and Costs

By Andrew Toth-Fejel, Bankruptcy Litigation Support for Attorneys, Andy@BLSforAttorneys.com

This summer the U.S. Government Accountability Office (GAO), on request of a number of members of Congress, released a report entitled Dollar Costs Associated with the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. In it the GAO presents its conclusions about post-BAPCPA increases in the cost of filing bankruptcy for consumer debtors .

(The report also analyzes the financial effect of BAPCPA on the U.S. Trustee Program, on trustees, and on the federal judiciary, but those will be the subject of another Bulletin.)

"This report did not seek to assess the benefits of the Bankruptcy Reform Act and is therefore not an evaluation of the merits of the act."

The conclusions of the report include the following:

Chapter 7 Attorney Fees:

Increased from an average of $712 in February-March 2005 to an average of $1,078 in February-March 2007, a 51% increase.
Breaking this down into different fee ranges (comparing the same pre- and post-BAPCPA periods as above) the frequency with which the attorney fees were less than $750 went from 59% of cases way down to 20%, the frequency with which the fees were from $750 to $999 went from 27% of cases to about the same at 28%, and the frequency with which the fees were $1,000 or more went from only 14% of cases to more than 52% of them.
Also, cases in which Chapter 7 attorney fees exceeded $1,499 went from only 3 percent to 18 percent during the same 2-year period.

Chapter 13 Attorney Fees:

Chapter 13 "presumptively reasonable" court pre-approved attorney fees in October 2005 just before BAPCPA's effective date ranged from $1,500 to $3,000, with a median of $2,000, but by February 2008 the fees increased to range from $1,800 to $4,000, with a median of $3,000.
Some local rules and administrative orders that increased these Chapter 13 attorney fees expressly referred to the additional services required by BAPCPA as the reason for the increase.
"[I]n some cases creditors rather than debtors bear the true financial costs of the fee increase," such as "in a Chapter 13 bankruptcy with a partial repayment plan, it may be the unsecured creditors rather than the debtor who absorb the cost of higher attorney fees."

Filing Fees:

Two laws have affected filing fees: BAPCPA increased Chapter 7 fees from $209 to $274, and the Deficit Reduction Act signed into law in February 2006 increased it to $299; BAPCPA decreased Chapter 13 fees from $194 to $189, and the Deficit Reduction Act increased it to $274.
Before BAPCPA bankruptcy courts did not have authority to waive the filing fee, authority which that law provided as to Chapter 7 debtors who had income of less than 150% of the official poverty line and were not able to pay in installments.

Credit Counseling and Debtor Education Costs:

The report estimated that the combined cost of these two BAPCPA requirements was an average of about $100.
The GAO noted that BAPCPA requires providers of credit counseling and debtor education services do so "without regard to the client's ability to pay," and during 2006 about 11% had their fees waived, in 2007 about 13% did, with an additional 28% in 2006 and 19% in 2007 who had their fees reduced.

Pro Se Filings:

The report cited anecdotal evidence from varied sources that the post-BAPCPA increased attorney fees had increased the proportion of pro se filings, but the best statistical evidence (from GAO's own sampling and data from the Administrative Offices of the U.S. Courts) showed a decrease in at least Chapter 7 filings from about 11 percent in February-March 2005 to 5.9 percent in the 2007 calendar year.

Pro Bono Services:

Fewer attorneys have been willing to volunteer to provide pro bono services, "largely due to the increased time and responsibiities required to handle a bankruptcy case," resulting in longer waits and possibly a reduction in the number of clients served.

by: Andrew Toth-Fejel
Bankruptcy Litigation Support for Attorneys
Andy@BLSforAttorneys.com

Wednesday, September 17, 2008

9th Cir BAP Says BAPCPA Takes Away Ch.7 Vehicle Ride-Through Option: If Debtor Doesn't Reaffirm Timely, Creditor Can Repossess During Bankruptcy Case

By Andrew Toth-Fejel, Bankruptcy Litigation Support for Attorneys, Andy@BLSforAttorneys.com

In re Dumont v. Ford Motor Credit Co., 383 BR 481 (9th Cir. BAP 2008)
February 6, 2008

The 9th Circuit BAP earlier this year joined more than 15 bankruptcy courts across the country which had unanimously held that BAPCPA eliminated the "ride-through" option for debtors with secured debt,: if a debtor wants to keep collateral, such as a vehicle, the debtor must timely either reaffirm or redeem the debt, or else risk repossession even if current on the debt. But this BAP opinion comes with two important caveats. The Court makes clear that the creditor's right to repossess is still subject to 1) the debtor's failure to comply with deadlines to file and act on the statement of intent, and 2) the creditor's compliance with state law, which may well independently bar repossession when payments are current.

(Note that one of the bankruptcy court opinions referred to by the BAP is one from our own court in Oregon--In re Bower, Case No. 07-60126-fra7, 2007 WL 2163472 (Bankr. D. Or. July 26, 2007)--but this opinion is not on the bankruptcy court's website and so presumably was not published.)

In coming to its holding the BAP directly addressed the 9th Circuit opinion which had cemented the ride-through option under pre-BAPCPA law, McClellan Fed. Credit Union v. Parker (In re Parker),139 F.3d 668 (9th Cir. 1998). The BAP somewhat unusually "overturned" this 9th Circuit opinion by showing how McClellan's rationale had been completely undermined by the statutory changes of BAPCPA. The details of that statutory construction are beyond the scope of this Bulletin, but it primarily focused on a new section 362(h) , which terminated the automatic stay as to personal property securing a claim if the debtor either 1) failed to file timely a statement of intent indicating whether the property would be surrendered or retained, and if retained whether reaffirmed or redeemed; or 2) failed to perform its stated intent timely. The BAP also referred to the new section 521(d) which allows ipso facto default default clauses--those ubiquitous contractual clauses that make the filing of bankruptcy in and of itself one of the occasions of contractual default--contrary to prior Code restrictions of them. Indeed section 521(d) expressly incorporates section 362(h) making it clear that a debtor who fails to timely file or perform on a notice of intent is subject to the ipso facto default clause and to repossession the minute those deadlines pass.

The BAP made clear that debtors who comply with the statement of intent deadlines will not lose the automatic stay under section 362(h) nor will their ipso facto default clauses be enforceable under section 521(a). The Court also emphasized that repossession may well not be permitted to occur EVEN IF the debtor's failure to comply with the statement of intent requirements results in loss of the automatic stay and re-imposition of the ipso facto default clause, BECAUSE the creditor must still comply with state law. "Some state consumer protection statutes prevent a creditor from repossessing when there is no payment default. These statutes have the potential to make the aforementioned BAPCPA provisions meaningless if repossession is barred by state law when a debtor's payments are current."

Under the facts of this case the BAP agreed with the bankruptcy court that it did not have jurisdiction to address the appropriateness of the repossession under state law, but had to leave that to the state court. The standard is whether the state law dispute was "related to" the bankruptcy case, meaning whether its outcome "could conceivably have any effect on the estate being administered in bankruptcy." With the repossession having occurred after the discharge, the Court said that no claim arising from it would benefit the estate.

FINAL CAVEAT: This BAP opinion has been appealed to the 9th Circuit (Appeal No. 06-00980-JM7), although one wonders about how likely it is that the 9th Circuit would reverse this BAP opinion and the underlying bankruptcy court's opinion in light of the unanimous opinion of 15 or so other earlier bankruptcy courts.

by Andrew Toth-Fejel
Bankruptcy Litigation Support for Attorneys
Andy@BLSforAttorneys.com

Tuesday, September 16, 2008

Oregon Chapter 13 Distributions to General Unsecured Creditors: How Different from the Rest of the Country? Differences Btw. Trustees Long and Lynch?

By Andrew Toth-Fejel, Bankruptcy Litigation Support for Attorneys, Andy@BLSforAttorneys.com

OREGON V. U.S.?

Comparing the Oregon Chapter 13 cases administered by the trustees Fred Long and Brian Lynch against the national averages, for the Chapter 13 cases which were successfully completed during Fiscal Year 2007 (Oct. '06 - Sept. '07), 1) there is a substantially larger portion of 0% plans in the Oregon cases than the national average; 2) the portion that had paid 70% or more to general unsecured creditors is about the same as the national average; and 3) the portion that paid between 1% and 69% is somewhat lower than the national average.

(NOTE: during this fiscal year, these two trustees administered 98.9% of the cases successfully completed in Oregon. See below for information on the cases administered by the 3rd standing trustee, Robert Ridgway.)

1) 0% Plans:
Nationally, 6.5% of the cases completed successfully had 0% plans, compared to 23.0% for cases administered by Mr. Long and 30.0% for cases administered by Mr. Lynch. Thus the proportion of 0% plan cases in Oregon were about three & a half to four & a half TIMES greater than the national average.

2) 70+% Plans:
Nationally, 29.4% of the cases completed successfully had 70% or higher plans, compared to slightly lower, 27.0%, for cases administered by Mr. Long and slightly higher, 31.2%, for cases administered by Mr. Lynch.

3) 1% - 69% Plans:
Nationally, 61.9% of the cases completed successfully had plans from 1% through 69%, compared to somewhat lower, 50.0%, for cases administered by Mr. Long and much lower, 36.4%, for cases administered by Mr. Lynch. The subset of this group with plans from 40% through 69% had very similar proportions among the national averages and Mr. Long & Mr. Lynch, 11.1%, 8.2% & 8.5% respectively, meaning that most of the differences in the 1% through 69% set was in the other subset, from 1% through 39%, with proportions of 50.8%, 41.8% and 27.9%, respectively. One statistical corollary of this is that it seems clear that nationally a large majority of Chapter 13 plans that could not be 0% plans for some reason--such as trustees' or courts' reluctance to approve them--nevertheless ended up as still relatively low percentage plans, 39% or lower. In other words, the combination of the 0% category--much higher than average in Oregon, and the 1% through 39% category--lower than average in Oregon, resulted in similar proportions of 0% through 39% plans nationally and Long and Lynch, all within 5 percentage points of 60% of all completed cases.

TRUSTEES LONG v. LYNCH?

1) Where similar:
Repeating some of the information above for convenience, there is very little percentage difference between trustees Long and Lynch within successfully completed Ch. 13 cases in the 70+% and 40%-69% categories, with the Lynch cases slightly higher in these two categories, 31.2% and 8.5%, compared to Long's at 27.0% and 8.2%.

2) Where different:
Lynch has meaningfully more 0% cases, 30.0%, than Long, with 23.0%, but Long more than makes up for that in the 1% through 39% category, with 41.8%, and Lynch with 27.9%.

(Also, somewhat oddly Long indicated no cases whatsoever where there were no unsecured creditors, although Lynch had 24. One wonders whether this is a data-gathering/reporting error. In all three tables--for converted and dismissed cases, not just successfully completed ones, Long shows no cases whatsoever whereas the other two do on each table, even Ridgway with his very small total number of cases.)

HOW ABOUT TRUSTEE RIDGWAY?
Robert Ridgway had only 20 completed cases during this period and, with such a small sample size, comparisons to the other two trustees are not very meaningful. However it is worth noting that of those 20 cases 65% were 70+% distributions, much higher than the national average and the other two trustees. And there were no 0% cases, in contrast to a 6.5% national average and 23.0% and 30.0%, significant portions of the total, for Long & Lynch, respectively. As time goes on we will see whether these are just statistical aberrations or instead reflect meaningful differences.

CASES CONVERTED TO CHAPTER 7 AND CASES DISMISSED
The Trustee's Annual Reports provide the statistics for distributions to unsecured creditors in not just successfully completed cases but also converted cases and dismissed ones. See the last two tables below. There are no meaningful distinctions here between trustees Long and Lynch (other than the "No Unsec'd Claims" reference above). Nor for that matter does there seem to be much meaning to be gleaned from this information beyond the commonsensical observations that the vast majority of dismissed cases paid out very little to unsecured creditors and among converted cases even less was paid out to these creditors.

	DISTRIBUTIONS TO NONPRIORITY UNSECURED CLAIMS- COMPLETED CASES
	70% or MORE	40%-69%	1-39%	0%	NO UN- SEC'D CLAIMS
Long	201	61	311	171	0
Lynch	314	85	281	301	24
Ridgway	13	2	3	0	2
National Totals	40,676	15,333	70,165	8,941	3,105
National Average Per Trustee	212	80	365	47	16

__________________________________________________________

	DISTRIBUTIONS TO NONPRIORITY UNSECURED CLAIMS- CONVERTED CASES
	70% or MORE	40%-69%	1-39%	0%	NO UN- SEC'D CLAIMS
Long	0	2	12	64	0
Lynch	0	1	10	61	10
Ridgway	0	0	0	0	3
National Totals	811	793	6,992	12,656	1,314
National Average Per Trustee	4	4	36	67	7

___________________________________________________________

	DISTRIBUTIONS TO NONPRIORITY UNSECURED CLAIMS- DISMISSED CASES
	70% or MORE	40%-69%	1-39%	0%	NO UN- SEC'D CLAIMS
Long	1	7	32	229	0
Lynch	7	6	20	217	44
Ridgway	0	0	3	2	3
National Totals	4,157	2,672	19,544	53,197	4,183
National Average Per Trustee	22	14	102	277	22

_____________________________________________________________

NOTE: Author's note: I am not a practicing attorney,
and in this Bulletin have not attempted to give reasons
for the differences between the national and Oregon
data, or among the Oregon trustees. I have not
addressed the question "why"? But I would welcome
hearing from attorneys who believe they know
some of the reasons behind these differences.
Please click on my email address below to contact me.

Underlying data from Chapter 13 Standing Trustee
FY07 Audited Annual Reports,
calculations by: Andrew Toth-Fejel
Bankruptcy Litigation Support for Attorneys
Andy@BLSforAttorneys.com

Tuesday, September 30, 2008

Monday, September 29, 2008

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Thursday, September 25, 2008

Wednesday, September 24, 2008

Tuesday, September 23, 2008

Monday, September 22, 2008

Friday, September 19, 2008

Thursday, September 18, 2008

Wednesday, September 17, 2008

Tuesday, September 16, 2008

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