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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

Sixth Circuit Releases Remarkable Opinion on Debt Buyers, Mootness and Sanctions

Posted on January 30, 2010
Unsecured claims held by credit card companies, and in particular by debt buyers, have kept bankruptcy judges and appellate courts busy recently. In the typical case, a credit card company or debt buyer files a claim which contains a summary listing the original creditor, the last four digits of the account number and the amount of the claim...

Just How Far Does "Related-To" Jurisdiction Go?

Posted on January 12, 2010
The Fifth Circuit has a new opinion in which it finds that a dispute between two non-bankrupt parties fell within "related-to" jurisdiction based upon a contractual indemnification clause. Lone Star Fund V (US), LP v. Barclays Bank, PLC, No. 08-11038 (5th Cir...

Court of Appeals Wades Through Mootness Maze

Posted on January 12, 2010
You know that an opinion is going to be challenging when the first sentence reads:The procedural background is a bit of a maze, but it is a facet of the appeal that we need to keep straight in our minds. Opinion, p. 1. Thus begins the Fifth Circuit's recent opinion on equitable mootness and section 1127(b)...

Dispute Between Partners Leads to Mandatory Subordination

Posted on December 31, 2009
In Matter of Seaquest Diving, L.P., No. 08-20516 (5th Cir. 8/12/09), the Fifth Circuit considered whether a state court judgment based on a dispute between partners was subject to mandatory subordination under 11 U.S.C. Sec. 510(b) because it arose from the recission of a purchase or sale of a security of the debtor...

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Contempt Upheld for Injunction Not Yet Reduced to Writing

Posted on December 31, 2009
In one more chapter of the Gary Bradley bankruptcy, the Fifth Circuit Court of Appeals upheld a finding of contempt against the Lazarus Exempt Trust based upon conduct occurring between the court's oral pronouncement of an injunction and its reduction to writing...

Judges Examine the Murky Standing of MERS

Posted on December 30, 2009
This year we have learned a lot about the mortgage industry. We have learned about mortgage securitization trusts who couldn't find the note. There have been more cases about debtors emerging from chapter 13 only to be hit with years of undisclosed fees and charges...

Interesting Opinion on Privilege and Work Product

Posted on December 21, 2009
Most bankruptcy lawyers abhor discovery disputes, both because they consume valuable time and because of the fear of offending the court. As a result, it is easy to get rusty on some of the finer points of privilege and work product law. An interesting opinion from Judge Leif Clark provides a good primer on how those concepts apply in bankruptcy court...

Case Makes Good Point About State Turnover Receivers

Posted on December 21, 2009
An opinion from Judge Craig Gargotta reaches the rather unremarkable conclusion that it was appropriate to dismiss a chapter 7 case filed for a corporation which had no assets and only one significant creditor. In re Gaston Premier Homes, Ltd., No...

Discharge by Declaration: What Chapter 13 Lawyers Can Learn From Chapter 11

Posted on December 06, 2009
This is a paper which I presented to the ABI Winter Leadership Conference on December 4, 2009. I wrote this before the oral argument in Espinosa which is discussed in today's other post.I. Introduction Chapter 11 and Chapter 13 share many similarities in text and structure...

Espinosa Oral Argument Provides Glimpse Into World of Supreme Court

Posted on December 06, 2009
In preparing for a panel discussion of Discharge by Declaration at the ABI Winter Leadership Conference, I had the opportunity to read the transcript of the oral argument in United Student Aid Funds v. Espinosa, which you can find here. These 59 pages provide some insight into what the judges are thinking, as well as the human side of lawyers and judges stammering, talking past each other and slipping back and forth between high minded legal concepts and colloquialisms...

BAPCPA Increases Cost of Consumer Bankruptcy Cases

Posted on December 05, 2009
Most practitioners intuitively know that BAPCPA made consumer bankruptcy more expensive. Now, the American Bankruptcy Institute has provided some empirical support for this proposition. The ABI Endowment Fund has sponsored a research project by Prof...

A judge judging himself: judicial recusal

Posted on November 30, 2009
Judges are in high demand for continuing education seminars. Astute conference planners will often schedule a judges' panel at the end of the day to insure full attendance. If the judge is outspoken, or at least colorful, so much the better. However, what happens when the outspoken judge displays displeasure with your client's industry and you have a similar matter pending before him? If you file a motion for recusal, you could find yourself in the interesting position of having the judge judge himself...

Whom do you trust when interpreting a trust?

Posted on November 27, 2009
Trusts are interesting things. They are a way to transfer property without completely letting go. One reason to transfer property in trust is to see that the beneficiary receives the benefit of the trust property instead of his creditors. Of course, the bankruptcy trustee has just the opposite incentive...

Judge Seeks Creditors' Attention With Discharge Violation Ruling

Posted on November 25, 2009
A Fort Worth bankruptcy judge sent an unmistakable message to Bank of America and a collection agency in a recent opinion on violation of the discharge: clean up your procedures or pay up. McClure v. Bank of America, Adv. No. 08-4000 (Bankr. N.D...

Debtor Gets Mortgage Claim Denied. Now What?

Posted on November 14, 2009
I am in New York for the Commercial Law League conference, so it is appropriate to blog about a case from the Southern District of New York. While the Southern District of New York is known for its multi-billion dollar cases, a recent case highlights a consumer issue faced by courts nationwide...

Dispatches from a Hangdog Bankrupt

Posted on November 08, 2009
This morning I was listening to KUT, our local public radio affiliate, when I heard the story of a rare book dealer who filed for bankruptcy in Austin. His story is told in a series of dispatches which appear on McSweeneys.net, which you can access here...

Anonymity and Cyber-Bullying

Posted on October 29, 2009
This is somewhat off-topic. However, as a blogger, I am interested in cases about blogging. Recently, I have come across coverage of two cases dealing with people who wanted to say mean things on-line under the cloak of anonymity. One case involved postings which were merely libelous and nasty, while another involved a determined campaign of cyber-bullying against two female law students...

Random Thoughts from the National Conference of Bankruptcy Judges--Day 3

Posted on October 21, 2009
Today was the final day of the NCBJ annual meeting. Two interesting things today. Heard a good discussion of Rule 2019 and the highlight of the conference, Supreme Court Associate Justice John Paul Stevens.Rule 2019I had never thought too much about Rule 2019...

Random Thoughts From The National Conference of Bankruptcy Judges--Day 2

Posted on October 21, 2009
The most interesting programs I attended yesterday concerned consumer issues in the Post-BAPCPA world and real estate issues. I attended several other informative presentations (including a lunchtime history of the Constitution from former Judge Kenneth Starr), but will focus on these two in the interest of length...

Random Thoughts from the National Conference of Bankruptcy Judges--Day 1

Posted on October 20, 2009
I am in Las Vegas for the National Conference of Bankruptcy Judges. The conference promises 2 1/2 days of events combining leading speakers and some frivolity.I started off Monday by attending the Commercial Law League of America's breakfast with Paul Begala...

Outrageous Creditor Behavior Leads to Small Damage Award

Posted on October 19, 2009
A debtor's suit against an abusive creditor seemed to have all the right elements: outrageous facts, creative legal theories and a sympathetic judge; but lacked just one thing, damages. Shane Eastman v. Baker Recovery Services, Adv. No. 08-5055 (Bankr...

IRS Loses Out on Inheritance Bait and Switch

Posted on October 02, 2009
While the government has many powers, the Fifth Circuit recently decided that the IRS had no remedy when proceedings in a Louisiana state court deprived it of the benefits it was supposed to receive under a confirmed chapter 11 plan. The opinion can be found here...

Tangled Financial Web Allows Assets to Escape Trustee's Reach

Posted on September 18, 2009
A recent opinion by Bankruptcy Judge Craig Gargotta demonstrates the problems arising from the use of cash management systems and also provides an object lesson in why lawyers should have more than a passing knowledge of accounting concepts. In Ingalls v...

Fifth Circuit Goes All In On Hanging Paragraph

Posted on September 11, 2009
Joining several other courts, the Fifth Circuit has ruled that the entire debt created by a purchase money transaction is protected from modification under the hanging of section 1325(a). The decision overrules several lower court decisions which had limited or denied protection to claims which included non-purchase money components...

Texas Chapter 11 Filings Continue to Soar

Posted on September 04, 2009
Texas chapter 11 filings continue to soar, with second quarter 2009 filings nearly triple the level from the same quarter in 2008. Filings in each of Texas's four districts were greater than in any of the previous five quarters.Statewide, there were 430 new chapter 11 cases filed from April 1, 2009 to June 30, 2009...

Judge to Investment Bankers: Pigs Get Fat and Hogs Get Their Employment Denied

Posted on August 03, 2009
Eye-popping professional fees have become more commonplace as larger and larger firms enter bankruptcy. However, one judge has drawn the line at a request to employ two investment banking firms with guaranteed upfront fees of $1 million to supplement the two valuations already obtained in the case...

Credit Slips Blogger Cited in Opinion

Posted on August 02, 2009
Blogging can be as personal as Ranger fans venting about why Glen Sather (no relation) must go or as mundane as someone's vacation photos. However, some legal blogs succeed in putting out thoughtful analysis in real time. One of the best legal blogs is Credit Slips...

Rule Amendment Proposes to Allow Objections to Exemptions After Conversion

Posted on July 30, 2009
The Committee on Rules and Practice has recommended that the Judicial Conference approve a series of changes to the Federal Rules of Bankruptcy Procedure. One proposal is to amend Rule 1019 to allow a new period of time to object to exemptions when a case is converted from chapters 11, 12 or 13 to chapter 7...

Fifth Circuit Holds That Projected Disposable Income Should Reflect Reality

Posted on July 19, 2009
In a new opinion, the Fifth Circuit ruled that the calculation of "projected disposable income" in a chapter 13 plan is not merely a mechanical calculation and may take note of events "reasonably certain" to occur. Matter of Nowlin, Non. 08-20066 (5th Cir...

Ninth Circuit Joins Consensus: 401k Loans Not Deductible As Secured Debt Under Means Test

Posted on July 15, 2009
Joining what has become the consensus position, the Ninth Circuit has held that payments on a 401k loan may not be deducted under the chapter 7 means test. Egebjerg v. Anderson, 2009 U.S. App. LEXIS 11651 (9th Cir. 5/29/09). The opinion highlights a major inconsistency in the way that BAPCPA treats retirement plan loans...

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