Hate Legalize?

http://thecareerist.typepad.com/thecareerist/2011/07/corp-jargon.html?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+typepad%2Fpcnu+%28The+Careerist%29

http://www.vault.com/wps/portal/usa/blogs/entry-detail?blog_id=1465&entry_id=13542

7 Tips to Help You Confront Your Law School Debt

http://www.lawjobs.com/newsandviews/LawArticle.jsp?hubtype=Tips&id=1202494815231&src=EMC-Email&et=editorial&bu=Law.com&pt=LAWCOM%20Newswire&cn=nw20110523&kw=7%20Tips%20to%20Help%20You%20Confront%20Your%20Law%20School%20Debt&slreturn=1&hbxlogin=1

Taking the Husband's Last Name Yes or No ?

http://thecareerist.typepad.com/thecareerist/2011/05/change-your-last-name.html

The trend I'm seeing in my late twenties/early thirty-something friends is to change your name personally but not professionally.

http://blogs.wsj.com/juggle/2011/05/08/the-name-change-dilemma/

New Technology

GID  manufactures Silent Cube, a long-term data archiving product with redundant hard disk storage. This expandable little box, which is not much bigger than a bagel toaster, houses 12 SATA hard disks that preserves WORM (write once, read many) data in a manner that can persist if up to four drives fail. The Cube's controller writes the data using the same technology that NASA uses for deep-space communications.  Silent Cube is just that too: silent. It uses 7,200 RPM SATA drives, which do not require large cooling fans, and is quiet enough to sit on your desktop. The Cube uses low energy, can be accessed using SMB/CIFS (supports Active Directory) and NFS, and scales from 1 terabyte to a petabyte.


Avantstar manufacture of Quick View Plus 11 file viewing software, came to LTWC with support for Microsoft Windows 7 (64-bit) operating system. The 64-bit support extends to Internet Explorer and Outlook 2010 where users will be able to access Quick View in the context of Windows Explorer, IE, and Outlook.

Better then I Phone?

Samsung Nexus S: BlackBerry Replacement or iPhone Alternative?


Ted Brooks All Articles
http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202494126131&Samsung_Nexus_S_BlackBerry_Replacement_or_iPhone_Alternative=&src=EMC-Email&et=editorial&bu=Law.com&pt=LAWCOM%20Newswire&cn=nw20110517&kw=Samsung%20Nexus%20S%3A%20BlackBerry%20Replacement%20or%20iPhone%20Alternative%3F

Law Technology News
May 17, 2011

The Samsung Nexus S, the Google Phone running Android version 2.3 (Gingerbread) from Sprint, may well be the perfect device for BlackBerry refugees and others who have resisted the iPhone craze -- some iPhone owners might even give it a try.

Since the Nexus was designed to serve as a developer's device, it doesn't have all of the extra carrier-specific proprietary apps installed. In this way, the phone is more like the BlackBerry than the iPhone. The Nexus has no pre-installed NASCAR racing or NFL highlights, and Google handles the navigation (Google Maps with Navigation in Beta) rather than Sprint.

With the Nexus, you no longer a need to carry another device with you to access the internet. The phone's built in Wi-Fi hotspot can support up to six devices and direct USB tethering -- the USB interconnect also serves as a battery charger. While other phones from Sprint require an additional service fee for the wireless hub, the Nexus connection comes ready for action at no extra charge (although I'm not sure if this will continue). I have been very happy with my Sierra OverDrive Mobile Hotspot (5 ports, also by Sprint), but now I can always have internet access without carrying around yet another device and charger.

BLACKBERRY DEFECTOR

BlackBerry has been losing market-share in a big way recently, and I suspect I am a classic defector. Although I've been a BlackBerry user for nearly 15 years, I am weary of screen-envy, and since the next version of BlackBerry OS for the latest BlackBerry device won't support my current device, I'm done with it. There's not a chance I'll be interested in their PlayBook tablet device either. If your PlayBook is separated from your BlackBerry phone, you won't be able to access your e-mail on the tablet. It seems like Research In Motion is seriously missing the boat.

While I'm on the topic of e-mail, Android and iOS do not require special server software, such as BlackBerry Enterprise Server. Without BES, the best you'll get from your Microsoft Exchange Server on the BlackBerry is e-mail, and you are forced to sync directly via USB or Bluetooth to your desktop Outlook to update your calendar and contacts. BES is another expense that can be avoided by ditching the BlackBerry. With the Nexus, you can push your Outlook updates, which means instant and constant updates. Or, if you wish to conserve battery power, you may choose to have it check for updates periodically, with options ranging from 5 minutes to one hour to not at all. I have mine set to push, so I don't have delays in receiving e-mail messages. That doesn't really seem to cause a major battery draw.

The voice commands on the Nexus are far more reliable than with the BlackBerry. I would frequently get several wrong choices when trying to call one of my contacts. The Nexus accuracy has been spot-on, which brings me to an even more interesting point: dictating an e-mail is astoundingly accurate. In a recent e-mail I drafted, only one word was interpreted incorrectly -- it entered "soul" instead of "sole." Hardly a serious issue, but you'd certainly want to proof before sending. You can enable Personal Recognition, which will "learn" your speech characteristics and improve accuracy. I also found that the Google Speech Recognition attempts to determine a word, based on context. When I spoke the words, "This e-mail message is for the sole use of the intended recipient," the recognition program applied the word "soul." When I spoke "I am the sole owner," the recognition program got it right.

One thing that kept me hooked on the BlackBerry for years was the keypad. The tactile feel of the QWERTY board is what differentiated it from the average phone. Although converting to the Nexus keyboard will take you a bit of time to get used to (it took me about three days), once you get the hang of it, the Nexus Android screen keypad is really nice. Once you begin to type, a type-ahead word list immediately forms at the top of the keypad, which narrows the available options as you type each letter. So, instead of typing all the characters, I typed in two or three letters and selected the appropriate word. Again, this takes a little getting used to (from a former BlackBerry user's perspective), but once you try it, you will wonder why you waited so long.

If you are converting from a BlackBerry, I would recommend changing devices on a day when you have the time to get used to it. Although things came pretty naturally to me, I initially had some issues getting connected with our Exchange server. It was a configuration issue with our server, not the phone, but I couldn't get e-mail for several hours -- until this was resolved by our IT staff. This could spell disaster if you are heading out of town or in trial. While iPhone or other Android device users will likely feel at home with the Nexus, it's still a good idea to make sure the phone does what you need it to do before you really need to do it.

TOP FEATURES

As an iPad user, I gave some serious thought to the iPhone, which would mean that many of my apps would also work on the iPhone. Although I have to start over with a new Android app collection, I don't think that I will use my phone like an iPad or other tablet no matter which one I chose. But I wanted a phone that would relieve my screen envy of other phones. And the Nexus's four-inch 480 x 800 pixel Super AMOLED display would certainly do.

I also considered purchasing the HTC Evo, but the low battery life kept me from it. And after trying the HTC Evo, the Nexus feels far more comfortable in the hand: It is lighter, thinner, and slightly curved for a more ergonomic fit. In addition the Nexus has dedicated, touch-sensitive keys to return to a previous screen, draw the main menu, search, and return to the home screen. There is also a proximity and sensor, a digital compass, and integrated Assisted GPS.

I have found the best overall results with the Sprint network. I've tried others, and especially with their 4G speeds (which they've had for about a year now, in some markets), which I often use for remote internet access in court. After getting accustomed to the long battery life of the BlackBerry, four to six hours of power without a recharge is unacceptable. When I'm in trial or on the road, I cannot afford to miss a call or e-mail message (well, maybe not a call in court). Although I'm not sure how long the Nexus battery will hold up in all possible conditions, I've heard that the phone "learns" your usage habits and can improve over time. I found that to be true, but there are several tricks to improve battery life such as disabling services you don't regularly use, e.g., Wi-Fi and Bluetooth.

The Nexus includes an advanced power widget that gives you quick access to a few of the phone's services with the highest power usage, including wireless access, Bluetooth, and screen brightness. Turning things off when you're not using them can have a significant effect on battery life.

ONE DAY AT A TIME

After my first full day with the Nexus S, I checked my power widget drain sources and saw that the display accounted for over 70 percent of power use. I had opted for the second brightest setting, and that may have been a factor in getting around 3.5 hours of battery use before getting a warning that I was below 20 percent battery life -- perhaps my Angry Birds adventures should be left on the iPad. New toy -- what can I say. I now have the display setting on "auto," in hopes that this will be one step in reducing power consumption.

The next day I used the Nexus more like I used my BlackBerry, for phone calls and e-mails, but also did some note-taking with EverNote and used the Wi-Fi hotspot for my laptop. The auto setting for screen brightness reduced screen power use to just 41 percent. The next highest power draw came from voice calls: 25 percent. This time, after 6 hours of use, I still had 42 percent of battery life remaining, which is more in line with the BlackBerry and certainly an improvement over my first day of approximately four hours of battery use.

The iPhone battery reportedly lasts under 6 hours with "normal" use, which is better than the HTC Evo, but not great. As a mobile professional, you don't always have time to plug a phone into your car or an electrical outlet. So when you are out of the office all day, you may want to try to keep use to a minimum. Granted, that's hard to do, especially when you have so many cool apps and things to mess with. You could carry an extra battery or two, but that's not an ideal solution.

On my third day with the Nexus, I made a few calls (34 minutes total) and experimented with a QR code app, but used the phone less than previous days (I was at my computer all day, so didn't have to check and send e-mail). After 10.5 hours, I still had 52 percent battery life remaining. I was surprised, to say the least. Voice calls accounted for 36 percent power use and power requirements for the display dropped to only 24 percent. The phone is indeed "learning" my habits, but I am also learning how to better use the phone. So if you're going to be out of the office for a while, use the Nexus more like a phone and less like a tablet or netbook (read: not playing Angry Birds). You will get battery life comparable to the BlackBerry.

Would I recommend purchasing a Nexus S? Yes. I bought mine at the Sprint Store in Alameda, Calif. I like the opportunity to hold, test, and compare the phone, rather than order online and hope for the best.

::: PRODUCT INFORMATION :::


Product: Nexus S 4G
Manufacturer: Samsung
Price: $199 with two-year Sprint contract, $549 without contract
Operating system: Android 2.3 Gingerbread
Processor: 1GHz Samsung Hummingbird
Memory: Integrated 16GB flash drive (no expansion card slot)
Connectivity: 1xEV-DO CDMA and WiMAX 4G, Bluetooth, Wi-Fi
Display: 4 inch 480×800 pixels Super AMOLED
Camera: 5 megapixel with LED flash (rear); VGA front facing camera
Battery: 1500 mAh lithium-ion battery
Dimensions: 4.88 x 2.48 x 0.44 inches
Weight: 4.62 ounces



Ted Brooks is a trial presentation consultant, author, and speaker, with offices in Los Angeles and San Francisco. E-mail: tbrooks@litigationtech.com. Blog: Court Technology and Trial Presentation blog.

Foreclosure Case Update

How to Defeat Lack of Prosecution

Barnes v. Ross, 386 So.2d 812 (Fla. 3^rd DCA 1980) which held that “Only activity on face of record will automatically preclude dismissal for failure to prosecute, but non-record activity may constitute good cause to avoid such dismissal.”

Debtor's Counsel Due Diligence

In re Wintrow, 391 B.R. 505 (1st Cir. BAP 2009)

FRB 2019

The Federal Rules of Bankruptcy Procedure (“FRBP”) usually generate little interest or concern among practitioners. At best, FRBP changes receive a casual perusal about the time of implementation on Dec. 1 of each year. This year, however, practitioners need to be aware of the change that is coming and give thought before implementation as to how the amended disclosure requirements may affect their clients and strategy.

Specifically, FRBP 2019 deals with disclosure of the relationships of creditors acting in concert with each other. Historically, despite the existing FRBP 2019, the general attitude that courts took was that from L. Frank Baum’s The Wizard of Oz: “Don’t worry about the man behind the curtain.” In other words, courts were not inclined to require disclosure and attorneys were not inclined to disclose.

That changed, most notably, in 2007 in the Northwest Airlines case, which is discussed in greater detail below. Several subsequent cases on this issue followed. The relatively recent rise in sales of discounted debt to parties previously uninvolved with the debtor, added to a perception of unfair strategies being utilized in bankruptcy cases.

In response, the Federal Rules Committee has proposed an amendment to FRBP 2019. The U.S. Supreme Court has until May 1, 2011, to stop the proposed amendment. Congress then has through Nov. 30, 2011, to legislatively stop or change the proposed amendment. Absent those unlikely events, the proposed amendment will go into effect Dec. 1, 2011.

Current FRBP 2019

Paraphrased, FRBP 2019 provides that in Chapter 9 or Chapter 11 cases, each “entity or committee representing more than one creditor or equity security holder” (with the exception of Official Committees defined in the Bankruptcy Code) as well as “every indenture trustee,” must file a verified statement with its name and address, “the nature and amount of the claim or interest and when acquired” (unless it was acquired more than one year before the bankruptcy filing), how the claim or interest came into existence, and the identity of the organizing parties. These initial disclosures could be viewed as just a ministerial filing with essentially “directory” information.

The balance of FRBP 2019, however, is more intrusive and alarming to entities competing in debt purchase markets. It requires disclosure of the amount paid for the bankruptcy claim, the date of acquisition and a copy of any agreement authorizing collective action. Any party failing to make these disclosures risks the court prohibiting further involvement in the bankruptcy case and invalidation of plan votes or objections.

FRBP 2019 Springs to Life in Northwest Airlines

FRBP 2019 obtained new vitality in a decision generated by the Northwest Airlines bankruptcy: (In re Northwest Airlines Corporation, 363 B.R. 701 (Bankr. S.D.N.Y. 2007)). In that case, the debtor requested that the court require additional disclosures from the “Ad Hoc Committee of Equity Security Holders.” Specifically, the debtor asked the court to order the committee to supplement its initial disclosure to include the amounts owned by individual committee members, when the claims were acquired, as well as the specific amounts paid to acquire the claims.

In its initial disclosure, the committee simply listed the number of shares it collectively held, as well as its aggregate claim. It did not, however, specify which member had which equity interests or claims, nor did it identify when the interests were acquired, the purchase price, or any disposition of the interests. Judge Allan Gropper, applied a “plain language” reading of FRBP 2019, granted the debtor’s motion and ordered full supplemental disclosure within three days.

Since then, a number courts have dealt with the FRBP 2019’s application and requirements, reaching differing conclusions. These cases include Washington Mutual, 419 B.R. 271 (Bankr. D.Del. 2009); Philadelphia Newspapers, 422 B.R. 553 (Bankr. E.D. Penn. 2010); and Premier International Holdings, 423 B.R. 58 (Bankr. D.Del. 2010). Courts taking a contrary view to Judge Gropper’s Northwest Airlines decision find the ad hoc committees are representing only themselves, and not other creditors, suggesting that full disclosure under FRBP 2019 does not apply.

The issue continues to be contentious. For example, as recently as March 30, 2011, a motion to compel compliance with FRBP 2019 was filed by the debtors in the Lehman Bros. Holdings Inc., Case No. 08-13555 (JMP) (Bankr. S.D.N.Y.) seeking disclosure of “the nature and amount of the claims or interests held by the members of the Ad Hoc Group, the time of acquisition and a recital of the pertinent facts and circumstances in connection with [the Ad Hoc Group’s attorneys’] retention ... ; or a copy of the instrument whereby [the attorneys are] empowered to act on behalf of the Ad Hoc Group.”

Economic/Policy Issues

FRBP 2019 was originally developed under the Bankruptcy Act of 1898 to deal with committees providing representation for other creditors. Large creditors later used Depression-era committees as a means to assert control over smaller creditors. Generally, that issue died a natural death due to statutory changes, but the concern that similar abuses would arise again kept FRBP 2019 in existence even with the advent of the Bankruptcy Code in 1978.

FRBP 2019 has more recently been used in response to complex financial structures of larger debtors. With a more ready market for the sale and purchase of debt and equity of financially distressed companies, parties frequently acquire the interests and claims at a discounted value.

Accordingly, a purchaser’s economic incentives may be radically different from those of the original holders. Moreover, their economic incentives may be adverse to reorganization or other more typical and traditional creditor incentives. Courts enforcing FRBP 2019 disclosures apply a plain language interpretation and the policy that transparency and disclosure assist the bankruptcy process.

Purchasers, however, take a different view. They buy in extremely competitive markets where disclosing the terms of the purchases is akin to publically disclosing trade secrets. They maintain that the amount and timing of their purchases is irrelevant. A $1 million claim purchased from the original owner for $350,000.00 is still a $1 million claim against the debtor. As long as the purchasers otherwise act within the law and do not represent any other party’s interest in the bankruptcy, they maintain that their business and strategic decisions should not be publically disclosed.

Moreover, critics contend that Rule 2019 is invoked as a litigation tactic rather than for more benign reasons. They assert that motions to enforce FRBP 2019 are brought to gain negotiating leverage by placing the claim or interest holder in a dilemma — disclose what they consider to be trade secrets or risk being excluded from further participation in the bankruptcy.

The Rules Committee Steps In

With the courts split regarding FRBP 2019’s application, and the issue arising more frequently, the Federal Rules Committee decided to address the issue: Is FRBP 2019 only applicable when a party is representing another party’s interest, or is it applicable in any situation when a group of parties in interest coalesce to form a group to represent their interests? The committee also addressed the secondary issue of whether detailed economic disclosures are necessary or desirable such that these should be mandatory as a condition of participation in a bankruptcy.

While some critics initially suggested eliminating FRBP 2019, a consensus developed that it should continue to exist but be modified to deal with its current usage.

First, the proposed modified FRBP 2019’s title has changed the reference from “Representation” to “Disclosure,” and “Represent” now has a definition. “Represent” or “represents” means to take a position before the court or to solicit votes regarding the confirmation of a plan on behalf of another.

The addition of a definition of “Disclosable Economic Interest” broadens the FRBP 2019’s scope. “Disclosable economic interest” means any claim, interest, pledge, lien, option, participation, derivative instrument, or any other right or derivative right granting the holder an economic interest that is affected by the value, acquisition, or disposition of a claim or interest.

Official Committees will not be exempt from all provisions. FRBP 2019 makes it clear that indenture trustees, agents under credit agreements, class action representatives and governmental units are excluded. Notably for debt purchasers, FRBP 2019 no longer mandates disclosure of what they consider confidential information irrelevant to their claim amount. It does this by limiting disclosure to the quarter and year of purchase, if acquired within a year before the bankruptcy.

Practical Applications

The new FRBP 2019 should, at least initially, clarify FRBP 2019’s application and meaning over which the courts are now split. It makes clear that FRBP 2019 is really about disclosure and not simply applicable to certain kinds of representation. That disclosure, however, is now more limited and generalized.

To the extent FRBP 2019 was used as a tactic to force a creditor to disclose sensitive market information, it will no longer be useful for that purpose. It is still possible, however, to compel that disclosure, but it will have to be done through standard discovery rather than by invoking FRBP 2019.

Lawyers advising interest purchasers need only be concerned with disclosure that can be obtained through normal discovery rather than contending with a rule that some courts interpreted to mandate disclosure. On the other side, FRBP 2019 does require interest holders to specify the nature of the holdings and gives some added transparency to parties’ interest in a bankruptcy case.

The new definition of disclosable economic interest includes instruments not conceived when the original rule was promulgated. It also clears up an ambiguity: whether a lawyer advising in a case, but not appearing in court, must file a disclosure. The answer under the new FRBP 2019 is “no.”

Conclusion

FBP 2019’s modification should end or at least reduce FRBP 2019 litigation. While parties’ required disclosures will be broader in the sense of the information that must be disclosed, the sensitive market-based elements will now be protected from disclosure, except in unusual circumstances.

Hopefully FRBP 2019’s new scope, specificity and clarity, will permit lawyers and their clients to better assess their risk in a bankruptcy proceeding while, simultaneously, providing more transparency.



--By Timothy F. Nixon, Godfrey & Kahn SC

Articles for lawyers

http://www.lawjobs.com/newsandviews/LawArticle.jsp?hubtype=Tips&id=1202490666884&src=EMC-Email&et=editorial&bu=Law.com&pt=LAWCOM%20Newswire&cn=nw20110420&kw=The%20Attributes%20of%20Winning%20Lawyers&slreturn=1&hbxlogin=1



http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202490637974


http://www.newsweek.com/2011/04/17/dead-suit-walking.html

Great Article on Section 362(c)(3)(A)

As future courts wrestle with competing interpretations of Section 362(c)(3)(A) of the Bankruptcy Code, they should consider the Ninth Circuit’s well-reasoned opinion in In re Reswick Jr., which should help creditors by discouraging bad-faith repeat bankruptcy filings,


Congress enacted Section 362(c)(3)(A) of the Bankruptcy Code as part of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) to deter debtors from filing multiple bankruptcy cases for the sole purpose of frustrating a creditor’s legitimate rights as a creditor.

Section 362(c)(3)(A) provides that the automatic stay expires 30 days after the commencement of an individual debtor’s bankruptcy case if such debtor previously filed a bankruptcy case within one year that was subsequently dismissed.

Since its enactment, Section 362(c)(3)(A) has caused significant confusion among bankruptcy courts across the country. In fact, two separate and opposite interpretations have emerged. The majority of courts have interpreted Section 362(c)(3)(A) as terminating the automatic stay only as to the debtor but not as to property of the debtor’s bankruptcy estate.

Under this construction, a secured creditor could seek to enforce its rights against the debtor personally, but could not commence an action to, for example, foreclose on its collateral without first moving for relief from the automatic stay. A minority of courts have held that Section 362(c)(3)(A) terminates the automatic stay as to both the debtor and property of the debtor’s bankruptcy estate.

Given the increase in bad-faith repeat filings by creditors primarily seeking to prevent foreclosure, Section 362(c)(3)(A) is quickly becoming an important statutory remedy for secured creditors in their fight against borrowers who abuse the bankruptcy system.

On Feb. 4, the Ninth Circuit Bankruptcy Appellate Panel (the BAP), following the minority interpretation of Section 362(c)(3)(A), held that the automatic stay terminated as to the debtor and property of the debtor’s bankruptcy estate 30 days after the debtor’s second bankruptcy filing.[1] By doing so, the BAP added much-needed teeth to a statute designed to discourage multiple filings and to protect creditors from abusive debtors.

In order to understand congressional intent in enacting Section 362(c)(3)(A) as part of the BAPCPA, it is important to understand the prevalence of abusive behavior common among multiple bankruptcy filers.[2] This problem has only been exacerbated by the most recent economic meltdown, coined the “Great Recession,” that commenced in 2007. Between 2006 and 2010, the number of bankruptcy filings in the U.S. nearly tripled.[3]

At least 28 percent of Chapter 13 cases in 2009 were filed by debtors who had filed a bankruptcy petition within the previous eight years.[4] The BAPCPA added Section 362(c)(3)(A) to the Bankruptcy Code in an effort to discourage bad-faith filings.

However, as explained below, the majority of courts interpreting Section 362(c)(3)(A) have stripped the section of any meaningful implications for those debtors seeking to file repeat cases in an effort to avoid their obligations to creditors.

Section 362(c)(3)(A) of the Bankruptcy Code provides in pertinent part:

"(c) Except as provided in subsections (d), (e), (f) and (h) of this section ...

"(3) If a single or joint case is filed by or against debtor who is an individual in a case under Chapter 7, 11 or 13 and if a single or joint case of the debtor was pending within the preceding one-year period but was dismissed, other than a case refiled under a chapter other than Chapter 7 after dismissal under Section 707(b) ... (A) the stay under subsection (a) with respect to any action taken with respect to a debt or property securing such debt or with respect to any lease shall terminate with respect to the debtor on the 30th day after the filing of the later case."

The section of the BAPCPA that added Section 362(c)(3)(A) was titled “Discouraging Bad Faith Repeat Filings.”[5]

Specifically, the BAPCPA states that “Section 302 of the [BAPCPA] amends Section 362(c) of the Bankruptcy Code to terminate the automatic stay within 30 days in a Chapter 7, 11 or 13 case filed by or against an individual if such individual was a debtor in a previously dismissed case pending within the preceding one-year period.”[6]

As noted in Reswick, “successive bankruptcy filings have caused significant problems within the bankruptcy system and for creditors seeking to pursue state law remedies.”[7] These filings are increasingly prevalent for underwater borrowers who attempt to avoid foreclosure of their properties.

Despite the clear language in the BAPCPA that the automatic stay terminates within 30 days of an individual’s second filing, the language of Section 362(c)(3)(A) is far less clear. In fact, the Bankruptcy Court for the Northern District of Illinois noted that Section 362(c)(3)(A) is subject to four different interpretations.[8]

The majority of courts have interpreted the statute to provide that the automatic stay only terminates as to the debtor and the debtor’s property, but not as to property of the debtor’s bankruptcy estate, 30 days after the second bankruptcy case is filed.[9] The Tenth Circuit BAP, adopting the majority interpretation, found that the majority position was “more faithful to the language of the statute.”[10]

However, the majority interpretation of Section 362(c)(3)(A) effectively renders the section meaningless. Absent termination of the automatic stay as to both the debtor AND property of the bankruptcy estate, creditors are simply unable to meaningfully enforce their state law remedies against repeat filers. This result is at odds with the intent of Congress.

Not only was Section 362(c)(3)(A) added as part of the BAPCPA, but the section of the act adding Section 362(c)(3)(A) was titled: “Discouraging Bad Faith Repeat Filings.” Thus, the majority interpretation, by limiting the termination of the stay as to the debtor and the debtor’s property, fails to prevent bankruptcy abuse or discourage bad faith repeat filings.

Take for example the following factual circumstances. A debtor stops making payments to secured creditor on rental property owned by the debtor. The debtor continues to collect rent from tenants without paying his secured creditor. On the eve of the foreclosure sale, the debtor files a bankruptcy petition. The secured creditor files a motion for relief from stay in the debtor’s case.

Prior to entry of an order granting relief from stay, the debtor voluntarily dismisses the bankruptcy case and subsequently files another bankruptcy case. And this game can go on and on for many months. Under the majority interpretation, the secured creditor would be forced to file another motion for relief from stay and incur additional costs to pursue its state law remedies against property of the estate. This cannot be what Congress intended when it enacted Section 362(c)(3)(A).

Recognizing these deficiencies in the majority rule, the BAP in Reswick, interpreted Section 362(c)(3)(A) of the Bankruptcy Code as terminating the automatic stay as to both the debtor and property of the debtor’s bankruptcy estate.[11] The BAP’s opinion correctly noted that the majority interpretation renders Section 362(c)(3)(A) with little meaning and even less teeth.

"Indeed, this interpretation would provide no meaningful relief to creditors in Chapter 13 cases, where repeat filings are most prevalent. Creditors in a Chapter 13 case could take no action against property that the debtor owned at the time the case was commenced, because it is property of the estate under Section 541(a)(1), and they could take no action against property that the debtor acquired postpetition because it would also constitute property of the estate under Section 1306(a)."[12]

The foregoing example illustrates how the majority view has essentially stripped Section 362(c)(3)(A) of any meaning which would deter subsequent filings, thereby forcing legitimate secured creditors to endure multiple filings by bad faith debtors.[13]

The legislative history clearly articulates that “Congress intended to deter successive bankruptcy filings by imposing stricter limitations on the power of the automatic stay as subsequent bankruptcy cases are filed.”[14] Thus, it is inconceivable that Congress would adopt a provision intended to defer repeat filers which would be meaningless as to the majority of repeat filers.

Additionally, the Reswick opinion does not prevent legitimate creditors, the debtor or a trustee from protecting property of the estate which may be of value for the estate. Section 362(c)(3)(B) permits a “party in interest” to seek an extension of the 30-day stay provided in Section 362(c)(3)(A).[15]

Thus, any party in interest, including other creditors harmed by the debtor’s bad faith repeat filing, can seek an extension of the stay to protect valuable property rights (i.e., property with equity that could be available for distribution to unsecured creditors).

The BAP’s opinion in Reswick adopts an interpretation of Section 362(c)(3)(A) which is consistent with congressional intent to prevent abusive bankruptcy filings. Reswick adds teeth and meaning to Section 362(c)(3)(A) which has been effectively written out of the Bankruptcy Code by the current prevailing majority interpretation.

As future courts continue to wrestle with the language of Section 362(c)(3)(A), courts should consider the BAP’s well-reasoned opinion in Reswick and construe the statute in a manner consistent with Congressional intent to discourage bad-faith repeat filings.



--By Keith C. Owens and Matthew J. Riopelle, Foley & Lardner LLP
Keith Owens is a partner in Foley's Los Angeles office and a member of the firm’s business reorganizations and bankruptcy practice group. Matt Riopelle is an associate in the firm's San Diego office and a member of the business reorganizations and bankruptcy practice group.

[1] In re Reswick Jr., __ B.R. __, 2011 WL 612728, at *10 (B.A.P. 9th Cir. Feb. 4, 2011).




[2] While the great majority of bankruptcy cases do not involve multiple bankruptcy filers who abuse the bankruptcy process, there is a growing and alarming trend of debtors who file multiple bankruptcy cases (or transfer partial interests in real property) on the eve of foreclosure, without having any ability or intention of restructuring or repaying their secured obligations.



[3] Growth in Bankruptcy Filings Slows in Calendar Year 2010, available at: www.uscourts.gov/News/NewsView/11-02-15/Growth_in_Bankruptcy_Filings_Slows In_Calendar_Year_2010.aspx.



[4] 2009 Report of Statistics Required by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, available at: www.uscourts.gov/uscourts/Statistics/BankruptcyStatistics/BAPCPA/2009/2009BAPCPA.pdf.



[5] 109 H. Rpt. 31 (2005).



[6] Id.



[7] Reswick, 2011 WL 612728 at *8.



[8] In re Daniel, 404 B.R. 318, 321 (Bankr. N.D. Ill. 2009).



[9] See Reswick, 2011 WL 612728 at *3 (and cases cited therein).



[10] In re Holcomb, 380 B.R. 813, 816 (B.A.P. 10th Cir. 2008).



[11] Reswick, 2011 WL 612728 at *8.



[12] Id. at *5.



[13] Even before the enactment of the BAPCPA, bankruptcy courts recognized the growing problem caused by serial bankruptcy filers. In many instances, a debtor would transfer a fractionalized interest in property on the eve of foreclosure to a person who would then file bankruptcy. Therefore, instead of having to move for relief from the automatic stay in one bankruptcy case, a creditor would be forced to move for relief form stay in multiple bankruptcy cases to avoid possible sanctions for violation of the automatic stay. This type of bankruptcy abuse had the effect of delaying foreclosure for many months. In response to these abusive bankruptcy filings, courts began entering “in rem” orders that lifted the automatic stay to enable a secured creditor to foreclose on the property regardless of whether the property was subsequently transferred to a third party, or a new bankruptcy petition was filed. These “in rem” orders are now commonplace in many jurisdictions.



[14] Reswick, 2011 WL 612728 at *8; see also 11 U.S.C. § 362(c)(4) (providing that no stay shall go into effect upon the filing of the third bankruptcy case within one year).



[15] Id. at *5.

Program for New Mommy Lawyers

http://www.lawjobs.com/newsandviews/LawArticle.jsp?hubtype=News&id=1202490232341&src=EMC-Email&et=editorial&bu=Law.com&pt=LAWCOM%20Newswire&cn=nw20110419&kw=O%27Melveny%20Program%20Helps%20New%20Parents%20Return%20to%20Firm&slreturn=1&hbxlogin=1

Resilence Training

http://thecareerist.typepad.com/thecareerist/2011/04/stop-whining-youre-in-the-army-now.html?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+typepad%2Fpcnu+%28The+Careerist%29

http://hbr.org/2011/04/building-resilience/ar/1

http://www.ppc.sas.upenn.edu/prpsum.htm

http://csf.army.mil/

http://www.sas.upenn.edu/lps/graduate/mapp/

ME File

http://www.lawjobs.com/newsandviews/LawArticle.jsp?hubtype=Tips&id=1202490095833&src=EMC-Email&et=editorial&bu=Law.com&pt=LAWCOM%20Newswire&cn=nw20110418&kw=Working%20Smart%3A%20It%27s%20All%20About%20a%20%27Me%20File%27&slreturn=1&hbxlogin=1

Does Anyone actually have one?

Office Location

Office location politics do not end after you gain seniority. They only get worse. The size of your office, its proximity to afternoon sunlight, and the views it offers of other expensive buildings all are key to demonstrating your perceived value to the Firm.


http://www.law.com/jsp/article.jsp?id=1202489872310&Location_Matters_When_It_Comes_to_Big_Law_Success=&src=EMC-Email&et=editorial&bu=Law.com&pt=LAWCOM%20Newswire&cn=nw20110414&kw=Location%20Matters%20When%20It%20Comes%20to%20Big%20Law%20Success

 

Do You Have a Lawyer Personality?

http://thecareerist.typepad.com/thecareerist/2011/02/aceing-the-psych-test.html

http://thecareerist.typepad.com/thecareerist/2011/03/lawyer-personality-study.html?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+typepad%2Fpcnu+%28The+Careerist%29


http://www.hbrconsulting.com/Understanding-Lawyers-11-15-2010

http://www.hbrconsulting.com/Hubbard.FileSystem/files/Publication/2c848983-5def-4636-bda0-01d014f1dc42/Presentation/PublicationAttachment/bb3f9912-d770-423f-b03d-02640d87fea7/HOGAN%20-%20Understanding%20Lawyers%20White%20Paper%20Oct%202010.pdf

According to the Hildebrandt study, lawyers are:




• High scorers on learning, "suggesting that they value education and enjoy academic activities";



• Self-critical and temperamental;



• Lousy on interpersonal sensitivity. They are task-oriented and speak their minds, coming across as "cold, critical, and argumentative";



• Easily excitable, "becoming tense and overly critical";



• Cautious to the extent they have a hard time taking risks and making decisions; and



• Resistant to authority and skeptical of others.

Still, the report finds that lawyers "prefer environments that are stylish, entertaining, and flexible"--though those preferences seem to be mainly expressed by associates rather than partners. In other words, by the time associates become partners, the vestiges of hedonism have probably been beaten out of them.

Of Interest

 Protecting Tenants at Foreclosure Act
http://www.mondaq.com/unitedstates/article.asp?articleid=124998&email_access=on

Tax Certificates, Tax Deeds And Tax Sales - Information For Lenders And Investors
http://www.mondaq.com/unitedstates/article.asp?articleid=127208&email_access=on

Ex-lawyer gets jail in bankruptcy fraud

A former Wakefield, Mass., lawyer was sentenced Tuesday to three years in prison for failing to disclose winning lottery tickets he had purchased to a bankruptcy trustee and for filing a false tax return.
http://www.bizjournals.com/boston/news/2011/03/22/ex-lawyer-gets-jail-in-bankruptcy-fraud.html?ana=RSS&s=article_search&utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+bizj_boston+%28Boston+Business+Journal%29#

Lawyer Loses License for Advising Clients to Break Into Foreclosed Homes

Citing "substantial harm to clients or the public," the State Bar of California has removed the law license of Michael T. Pines, who it said had helped clients get into their foreclosed homes, despite warnings by courts and police.

http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202486129134

Michael T. Pines, a lawyer who garnered substantial media coverage for advising clients to break into their foreclosed homes now has no bar  license.   He has shown complete disrespect for the law, the courts and especially the best interests of his clients. Removing Mr. Pines from active practice is an important step in our mission of public protection.

Although Pines asserted that his clients were illegally foreclosed upon, the state bar maintains that they had no legal right to break into the houses, which were located in Carlsbad, Newport Beach and Simi Valley, Calif.

Articles for lawyers

http://www.lawjobs.com/newsandviews/LawArticle.jsp?hubtype=News&id=1202485842208&src=EMC-Email&et=editorial&bu=Law.com&pt=LAWCOM%20Newswire&cn=nw20110314&kw=Making%20the%20Leap%3A%20Tales%20of%20a%20J.D.%20Hopeful&slreturn=1&hbxlogin=1

Law is a Business

http://www.lawjobs.com/newsandviews/LawArticle.jsp?hubtype=Tips&id=1202484405603&src=EMC-Email&et=editorial&bu=Law.com&pt=LAWCOM%20Newswire&cn=nw20110307&kw=Working%20Smart%3A%20Boosting%20Your%20Business%20Acumen&slreturn=1&hbxlogin=1

Law school teaches you to think like a lawyer but, to succeed in today's legal marketplace, you must also think like a businessperson. As the profession becomes increasingly bottom-line-oriented, business and management skills are essential to advancement within your organization and for optimally servicing your clients' needs. Each case or transaction involves money in some way, and every lawyer in private practice is running a business.