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Bankruptcy

A Texas Bankruptcy Lawyer's Blog

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

Post Frequency: 1.1/day

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

Republic Windows & Doors Case Illustrates Gaps in Employee Protection

Posted on December 09, 2008
Republic Windows & Doors, the Chicago company which recently closed its doors, is not a debtor in bankruptcy, at least not yet. However, it illustrates the point that when laws designed to protect employees meet secured financing, the workers can come up short...

Employee Wage Motions Still Viable

Posted on November 28, 2008
The author of the Mirant and CoServ opinions limiting critical vendor motions has written to emphasize that his prior rulings do not preclude employee wage motions in chapter 11 cases. In re Tusa-Expo Holdings, Inc., No. 08-45057 (Bankr. N.D. Tex. 11/7/08)...

Fifth Circuit Reinstates Sanctions Award

Posted on November 14, 2008
The case of a Houston attorney sanctioned based on a brief representation of a debtor in 2001 took another turn as the Fifth Circuit reinstated the judgment of the Bankruptcy Court awarding sanctions. Matter of Cochener, No. 08-20048, 2008 WL 4681579 (5th Cir...

Fifth Circuit Explains Earmarking

Posted on November 06, 2008
In order for a payment to be recovered as a preference under 11 U.S.C. Sec. 547, there must be a transfer of "an interest of the debtor in property." The earmarking doctrine provides a means to negate this element where the debtor never had control over the transferred property...

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BAPCPA At Three Years Old: Measuring the Statistical Impact on Texas Filings

Posted on October 17, 2008
Today is the third anniversary of the effective date of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, which seemed like a good time to look at the lasting impact of this legislation on bankruptcy filings. At this point, filings remain substantially down from the period prior to adoption of the statute...

Bankruptcy Court Stakes Out Unique Position on Sec. 522(b)(3)(A) as Choice of Law Rule, Relies on Former State's Law Without Regard to Actual Residenc

Posted on October 16, 2008
A new decision from Bankruptcy Judge Craig Gargotta is likely to prompt discussion as the court held that a debtor could be prohibited from using federal exemptions based on the law of his prior residence even though that state's law only prohibited "residents" of the state from using the federal exemptions...

First Circuit Reverses Massive Damage Award Based on Application of Chapter 13 Mortgage Payments

Posted on October 08, 2008
Application of mortgage payments in chapter 13 is a thorny problem. Although the Debtor may not modify the terms of a mortgage on a primary residence, she may cure the arrearages while remaining current on the post-bankruptcy mortgage payments. However, if the Debtor defaults on the post-petition payments, those may be rolled into the plan as well...

Vice-Presidential Candidates Debate Bankruptcy Reform

Posted on October 03, 2008
Bankruptcy reform received attention at the Vice-Presidential debate last night as viewers witnessed a gaffe from the moderator and Sen. Biden staked out a bold position on modifying home mortgages.Moderator Gwen Ifill asked Gov. Palin about bankruptcy reform, but managed to muddle her question:IFILL: Next question, Governor Palin, still on the economy...

Equitable Mootness Fails to Prevent Disgorgement

Posted on October 02, 2008
The Schlotzsky's case got a little woolier as the Fifth Circuit ordered that an appeal over funds disbursed from a reserve account could not be dismissed based upon equitable mootness. Wooley v. Faulkner, No. 07-50912 (5th Cir. 8/28/08).The Schlotzsky's case involved disputes between John and Jeffrey Wooley and the Debtor...

Fifth Circuit Dismisses Gadzooks Appeal

Posted on October 02, 2008
Practitioners waiting for further illumination of the Fifth Circuit's Pro-Snax decision will have to continue waiting. The Gadzooks case involves whether Hughes & Luce will be compensated for nearly a million dollars worth of legal work done for an equity security holders' committee in a case where subsequent, unforeseen events negated the value of the committee's work...

Update on Possible Impeachment of U.S. District Judge for Bankruptcy Fraud

Posted on October 02, 2008
There has been a new development in the case of a U.S. District Judge facing possible impeachment based in part upon his conduct as a Chapter 13 debtor. On September 10, 2008, The Judicial Council of the Fifth Circuit issued an Order and Public Reprimand in Docket No...

Practicing Law and Having a Life

Posted on September 28, 2008
This weekend, the firms that I work for hosted a celebration for the 25th anniversary of Barbara Barron and Manny Newburger practicing together, as well as the 25th anniversary of the marriage of Caryn and Manny Newburger and the 2nd anniversary of Barron, Newburger, Sinsley & Wier, PLLC...

Fifth Circuit Answers Three Questions of First Impression on Violation of Automatic Stay

Posted on July 25, 2008
The Fifth Circuit answered at least three questions of first impression in a recent case regarding violation of the automatic stay. In re Repine, No. 06-20807 (5th Cir. 7/22/08).The facts of this case sound straight out of a made for TV movie, including love gone bad, prison and a renegade lawyer...

Trustee Avoids Judicial Estoppel Finding As Fifth Circuit Comes Full Circle

Posted on July 25, 2008
Good things come in threes. Think of the first Star Wars trilogy or Lord of the Rings. Now the Fifth Circuit has completed a trilogy of cases on judicial estoppel which brings its exposition of the doctrine full circle. Kane v. National Union Fire Insurance Company, No...

Tchaikovsky's Overture: How an Unremarkable Case Took on a Life of Its Own

Posted on July 19, 2008
Peter Tchaikovsky's 1812 Overture ends with a cannonade. Some commentators have viewed a recent opinion from Bankruptcy Judge Leslie Tchaikovsky as a cannon shot aimed at the irresponsible practices of the home mortgage industry. However, what is most remarkable about National City Mortgage vs...

In Memory of Gray Byron Jolink, 1946-2008

Posted on July 17, 2008
The Central Texas bankruptcy community lost a valued friend and colleague when Gray Byron Jolink passed away unexpectedly on June 23, 2008. Gray graduated from the University of Texas Law School in 1974 and was a solo practitioner in Austin. Much of his practice involved representing the debtor in small chapter 11 cases...

Fifth Circuit Clarifies Post-Confirmation Jurisdiction

Posted on July 11, 2008
The Fifth Circuit has written a new opinion in which it holds that once "related to" jurisdiction attaches, confirmation of the plan will not divest that jurisdiction. The opinion reconciles an apparent conflict with its holding in Craig's Stores that post-confirmation jurisdiction is limited to enforcing the plan...

On Judicial Selection

Posted on July 01, 2008
On my non-bankruptcy blog, I have written an article about the different approaches that the two presidential candidates take toward appointing judicial nominees. If you are interested in reading more, you can go to:http://satherthoughts.blogspot.com/2008/06/presidential-campaign-reveals-different...

5th Circuit Rejects Equitable Subordination Claim With Deepening Insolvency Aspect; Insiders Not Subordinated for Stoking the Fires of a Sinking Ship

Posted on July 01, 2008
The Fifth Circuit has ruled that insiders who ?grabbed for as much as they could get? were not subject to equitable subordination where the bankruptcy court did not find sufficient harm resulting from their conduct. The court rejected a theory of damages which it equated to deepening insolvency...

Northern District of Texas Releases En Banc Opinion on Early Completion of Chapter 13 Plan

Posted on June 23, 2008
The six judges of the Bankruptcy Court for the Northern District of Texas have released an opinion on when a debtor can pay off a chapter 13 plan prior to its scheduled completion date under BAPCPA. In re Howard L. McCarthy, Jr., No. 06-40127-DML-13 (Bankr...

Sources for Free Legal Research on Texas Bankruptcy Cases

Posted on June 08, 2008
It used to be that to keep up with the latest case law, it was necessary to review the advance sheets or keep up with the latest legal journals. Of course, this required expensive subscriptions and ran weeks or months behind the release date of the opinions...

New Opinion Illustrates the Dangers of Going to Trial

Posted on June 03, 2008
Trials are unpredictable things. That's why most cases settle. A recent opinion from Austin Bankruptcy Judge Frank Monroe illustrates how a case can go astray. In MARTNKIM Dining, LLC vs. Chaney, Adv. No. 07-1082 (Bankr. W.D. Tex. 5/29/08), the defendants won the case but in the process exposed themselves to new and potentially greater legal problems...

Debt Buyers Win Respect in New Opinion

Posted on May 29, 2008
Debt buyers are not the most popular people these days. However, their role as economic scavengers was acknowledged in a recent opinion from Judge Leif Clark of San Antonio. In re Salvador Santana, No. 07-30027 (Bankr. W.D. Tex. 5/21/08). In Santana, Portfolio Recovery Associates, LLC filed a Notice of Transfer of Claim with respect to a claim that they had acquired from Capital One in the amount of $604...

Bankruptcy Court Limits Texas Homestead Under 1,215 Day Rule

Posted on May 26, 2008
The Bankruptcy Court for the Western District of Texas was recently faced with several issues relating to the homestead limitations under 11 U.S.C. Sec. 522(o) and (p). In re Fehmel, No. 07-60831 (Bankr. W.D. Tex. 5/22/08)(Frank R. Monroe, B.J.). Judge Monroe's opinion decides what it means to acquire an "interest" in property within 1,215 days, as well as interpreting the rollover and fraud provisions of the exemption statute...

Obscure Provision Protects Local Taxing Authorities

Posted on May 21, 2008
Three years after the adoption of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, there are still opportunities to find something new in the statute. Under both the Bankruptcy Act and under the Code prior to BAPCPA, it was possible for a debtor to ask a court to redetermine the appraised values used to compute ad valorem taxes so long as the values had not been previously contested...

Plan Proposed by Environmental Advocate Save Our Springs Alliance Denied Based Upon Lack of Feasibility

Posted on April 13, 2008
Another chapter has unfolded in Austin?s development wars with the denial of the plan of reorganization proposed by the Save Our Springs Alliance. In re Save Our Springs (S.O.S.) Alliance, Inc., No. 07-10642 (Bankr. W.D. Tex. 4/11/08). While the case was a defeat for the debtor, it provides a wealth of useful case law for chapter 11 lawyers...

Fifth Circuit Clarifies Requirements of Rule 9011

Posted on April 09, 2008
The Fifth Circuit has written a new opinion requiring strict compliance with Rule 9011 prior to awarding sanctions. The Cadle Company v. Pratt, No. 07-10457 (4/8/08). Specifically, the Fifth Circuit held that prior to seeking sanctions under Rule 9011, the movant must serve a copy of the actual sanctions motion on the respondent 21 days prior to filing the motion and held that a mere letter threatening sanctions was inadequate...

Minority Position on Surrendering Vehicles Subject to Hanging Paragraph Gains Support; Automobile Lenders Allowed Deficiency Claims

Posted on April 03, 2008
Some of the architects of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) have said that they would not change a word of this complex legislation. However, some of those words have left judges scratching their heads. One of the more troublesome provisions has been the so-called ?hanging paragraph? of 11 U...

Fifth Circuit Releases Interest-ing Opinion on Chapter 13 Interest Rates

Posted on March 31, 2008
The Fifth Circuit has released a new opinion on interest rates in chapter 13 cases. Drive Financial Services, L.P. v. Jordan, 2008 U.S. App. LEXIS 5334 (5th Cir. 3/12/2008). While the opinion does not contain any earth-shattering conclusions, it provides an excellent starting point for a practitioner wanting to learn treatment of secured claims in chapter 13...

Sanctioned Lawyer Wins Reprieve From District Court; Court Clarifies Standards for Non-9011 Sanctions

Posted on March 21, 2008
This blog previously reported on In re Cochener, 360 B.R. 542 (Bankr. S.D. Tex. 2007), a case in which an attorney was sanctioned under 11 U.S.C. Sec. 105 and 28 U.S.C. Sec. 1927 based on events which had occurred years earlier. See "Brief Representation Comes Back to Haunt Attorney...

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