Friday, September 12, 2008

A Catalog of Bankruptcy Bulletins: A Handy Guide to the Hot Court Opinions and Stories We've Been Following

By Andrew Toth-Fejel, Bankruptcy Litigation Support for Attorneys,

The last three weeks of these Bulletins have included a combination of 1) articles presenting the Oregon angle on national bankruptcy stories, and 2) summaries of recent important 9th Circuit and BAP opinions. As a courtesy to the readers, here is a catalog of these last three weeks of Bulletins, presented in a much more accessible form than in the Archives section. Note that for the sake of completeness I have also included the 4 weekly Litigation Reports. All have links to the full articles. (This catalog does not include the Oregon Bankruptcy Court's opinion summaries, which are all found in chronological order--covering all of 2008--in the Oregon Opinions section (at bottom of right column.) Please look this catalog over and maybe save it for when you have more time to review the Bulletins that are interesting to you. And always feel free to respond with constructive criticism, or otherwise--my email link is at the top and bottom of this page.


ARTICLES (in reverse chronological order of their appearance on this website):

September 10, 2008
Title & Link: Oregon Chapter 13 Cases Under Trustees Long, Lynch & Ridgway, By the Numbers
Key sentences from this Bulletin:
This information provides a closer look at both the national and local Chapter 13 world than the much publicized numbers available from the Administrative Office of the U. S. Courts. It provides a window into what trustees & attorneys in other parts of Oregon & the nation may be doing differently. If you are in that Chapter 13 world, here's some help looking at those important numbers.

September 5, 2008
Title & Link: Oregon's Slice of the Bankruptcy Pie
Key sentences from this Bulletin:
Yesterday's Bulletin addressed the most recent quarterly national bankruptcy filing numbers, and how both the number and the rate of increase compare to pre-BAPCPA years. Today, the Oregon story.

September 4, 2008
Title & Link: The National Bankruptcy Statistics Demystified
Key sentences from this Bulletin:
What WOULD be enlightening would be the answers to the following questions:

1) How do the present filing numbers compare to the filings before BAPCPA?
2) How do the current percentage increases compare to previous periods of increase?

September 2, 2008
Title & Link: Intriguing Oregon & National Chapter 13 Trustee Statistics
Key sentences from this Bulletin:
The US Trustee's office generates a highly detailed spreadsheet entitled Chapter 13 Standing Trustee FY07 Audited Annual Reports, containing about 60 statistical facts on each of the nearly 200 standing Chapter 13 trustees. Here are some definitely interesting, and in some cases perhaps useful, bits of information gleaned from that spreadsheet.

August 28, 2008
Title & Link: Prospects for Amendments to BAPCPA Under an Obama-Biden Administration
Key sentences from this Bulletin:
Bankruptcy legislation is not usually fodder for Presidential campaigns. But this has been in so many respects an unusual campaign, and so proposed amendments to bankruptcy law have made it to the campaign trail.

August 26, 2008
Title & Link: Foreclosures: The Oregon Face of the National Story
Key sentences from this Bulletin:
The national news has for a long time been full of stories about huge increases in the national mortgage default and foreclosure rates, and about particular areas of the country that have been hardest hit, such as California, Nevada, Florida, Michigan and Ohio. But what is the Oregon side of this story?

August 22, 2008
Title & Link: The Impact of the Major New Federal Housing Law on Your Bankruptcy Practice
Key sentences from this Bulletin:
One of the biggest stories from Congress late last month was its passage, and President Bush’s signing (contrary to his earlier veto threats), of the Housing and Economic Recovery Act of 2008. The Act includes no changes to the Bankruptcy Code, in case you haven’t already assured yourself of this. But this Act still has potentially significant, albeit speculative, consequences for the bankruptcy and debtor/creditor world.


OPINIONS (in reverse chronological order of publication by courts):

Sept. 9, 2008
Connecticut Bar Assn. v U.S.
U. S. District Court of Connecticut, Civil Action No. 3:06-CV-729 (CFD)
Key sentence in this Bulletin:
The Connecticut District Court agreed to the unconstitutionality of the advising-clients provision but also held that the advertising disclosures ARE ALSO unconstitutional as to "attorneys representing clients other than consumer debtors filing for bankruptcy."

Title & Link: Connecticut Bar Association v. U. S. : Another U. S. District Court Agrees with Oregon's Olsen v. Gonzales about BAPCPA's Unconstitutionality

Sept. 4, 2008
Burkart v. Coleman (In re Tippett)
9th Circuit Case No 6.15411
Key sentence in this Bulletin:
In this Opinion published last week the Ninth Circuit addressed one point of conflict between two very basic principles: the automatic stay and the bona fide purchaser, specifically the automatic stay's voiding of "any act to . . . exercise control over property of the estate" (§ 362(a)(3)), and the rights of a bona fide purchaser of such property of the estate. . . . In last Thursday's opinion the 9th Circuit said . . . a BFP prevails against a trustee.

Title & Link: New 9th Circuit Opinion Adjusts the Line Between Void & Voidable Transfers in Violation of the Automatic Stay: Bona Fide Purchaser Defeats Trustee

Sept. 4, 2008
Milavetz, Gallop & Milavetz v. United States
U. S. Circuit Court for the Eighth Circuit, Case No. 07-2405
Key sentence in this Bulletin: For the first time, just last week, a Circuit Court has addressed whether bankruptcy attorneys are "debt relief agencies" under BAPCPA, and, if they are, whether specific controversial prohibitions or requirements of debt relief agencies are unconstitutional as applied to attorneys. Although of course not binding on Oregon attorneys, this case is of local interest because of important clues it may give about the long-term viability of our earlier Oregon U. S. District Court opinion covering much of the same ground, Olsen v. Gonzales, 350 B. R. 906 (D. Or. 2006).
Title & Link: BAPCPA's § 526(a)(4) Is Unconstitutional, Says 8th Circuit: Attorneys ARE "Debt Relief Agencies" But MAY Advise Clients to Incur Additional Debt

August 22, 2008
McDonald v. Checks-N-Advance, Inc. (In re Ferrell)
9th Circuit, Case No. 06-17243
Key sentence in this Bulletin: In this per curiam decision published on August 22, 2008, the Ninth Circuit Court of Appeals held that certain specific violations of the federal Truth in Lending Act (TILA) do not result in the award of actual damages, statutory damages, or attorney fees and costs for the consumer, or specifically in this case for the Chapter 13 trustee acting on behalf of the consumer.
Title & Link: 9th Circuit 8/22/08 Opinion: Ch. 13 Trustee NOT Entitled to Actual or Statutory Damages, Atty. Fees or Costs Under Portions of Truth in Lending Act

August 22, 2008

Educational Credit Management Corp. v. Coleman
9th Circuit, Case # 06-16477
Key sentence in this Bulletin: The 9th Circuit Court of Appeals ruled that a Chapter 13 debtor could get a judicial determination whether her student loans constituted an “undue hardship” and were thus dischargeable without waiting until close to or after the discharge at the end of the case. BUT CAUTION: This opinion was vacated by the Court because of an appellate procedural error, as explained here.
Title & Link: 9th Circuit Holds that Ch. 13 "Undue Hardship" Student Loan Determinations Need NOT Wait Until End-of-Case Discharge

August 4, 2008
FDIC v. Kipperman (In re Commercial Money Center, Inc)
9th Circuit BAP No. SC-07-1298-DCMo
Key sentence in this Bulletin: For the law of the case doctrine to bar a court from considering an issue, that issue must have already been decided, either expressly or by necessary implication, in the same court or in a higher court on the same case. It is not enough, as here, for both adversaries and the court to have earlier ASSUMED that a particular issue was resolved a particular way without such a decision having been either expressly made necessarily made by implication.
Title & Link (note-find in Archives if not on 1st page of link): The "Law of the Case" Doctrine Applied in the Most Recent 9th Circuit BAP Opinion, Written by Judge Dunn

July 28, 2008
In re Penrod (revisited)
BAP Nos. NC-07-1360-MkKJu & NC-07-1368-MkKJu
Key sentence in this Bulletin: All three opinions--one last December by Judge Dunn, In re Johnson, and another in February by Judge Albert Radcliffe, In re Riach [unpublished letter opinion], . . . and the third just a few weeks old from the 9th Circuit BAP (Northern District of California), In re Penrod--deal with the same issue: "whether a creditor holds a purchase money security interest for purposes of the Hanging Paragraph, where a portion of its debt represents financing of negative equity in a vehicle traded in by the debtors at the time the debtors purchased their new car" . . . . Luckily for practitioners, these three opinions all arrived at virtually the same conclusion . . . with two differences worth noting, one in rationale and the other in practical effect.
Title & Link: Negative Equity in Vehicle Loans under Chapter 13: Harmonizing New 9th Circuit BAP Opinion With Recent Oregon Bankruptcy Court Opinions

June 28, 2008
In re Penrod
BAP Nos. NC-07-1360-MkKJu & NC-07-1368-MkKJu
Key sentence in this Bulletin: In a published opinion dated 7/28/08 but released for publication only last week, In re Marlene Penrod, the 9th Circuit Bankruptcy Appellate Panel held that under BAPCPA that portion of a 910-day or less vehicle loan which was used to pay off a prior trade-in loan is secured by a Purchase Money Security Interest, and so must be subtracted from the loan balance to determine the amount of the secured claim.
Title & Link: New 9th Circuit BAP Opinion Weighs in Where Oregon Court Have Recently Been: BAPCPA's "hanging paragraph" & Trade-in Negative Equity in Vehicle Loans

June 23 , 2008
Maney v. Kagenveama
527 F.3d 990 (2008); LW 2278681
Key sentence in this Bulletin: The Ninth Circuit has applied a strict reading to BAPCPA's new terms, "projected disposable income" and "applicable commitment period," with the result that an above-median income debtor who had a negative income on Form B22C, and thus no "projected disposable income," had no requirement to pay unsecured creditors and no requirement to pay into the Chapter 13 plan for 5 years, or for any other particular period of time. However, under-median income debtors do not benefit from this ruling. How could all this be?
Title & Link: The Most Important 9th Circ. B'cy Opinion of the Summer: Above-Median Income Ch. 13 Debtors Can Have 0%, Shorter-than 5-Year Plans

June 8, 2008
In re Joseph Elliot Ryan, BAP Case No ID-07-1316-DMkMo
Key sentence in this Bulletin: This recent 9th Circuit BAP opinion, written for the court by Judge Randall Dunn in his capacity as a BAP judge, fills an important gap in the nexus between bankruptcy and criminal law in the 9th Circuit. Besides reminding attorneys to be very mindful of the distinctions among the various components of a criminal judgment, this opinion states clearly that criminal prosecution costs ARE dischargeable in Chapter 13 cases.
Title & Link: 9th Circ BAP Holds $77,088 of Costs of Prosecution Dischargeable in Ch 13 Since is Not a "Criminal Fine": Judge Dunn Writes BAP Opinion Over a Dissent

May 6, 2008
Johnson v. Nielson (In re Slatkin)
9th Circuit, Case No. 06-56334
Key sentence in this Bulletin: In this opinion the Ninth Circuit Court of Appeals ruled that the appellants must pay back to the trustee "millions of dollars" they had received from debtor as "profits" from their investments in debtor's Ponzi scheme, even though appellants had no knowledge of debtor's fraudulent intent and even though some of these funds may have been based on legitimate investments.
Title & Link: Transferees Must Pay Chapter 7 Trustee "Millions of Dollars" under § 548(a) with Debtor's Plea Agreement As Sole Evidence of His Fraudulent Intent


By Andrew Toth-Fejel, Bankruptcy Litigation Support for Attorneys,

© 2008 Bankruptcy Litigation Support for Attorneys