http://ndc.crowley.house.gov/images/stories/Events/newdemhousingreformprinciples.pdf
The New Democratic Coalition has added the nation's housing finance system to its list of things to "modernize." They've outlined principles for following through with the wind-down of Fannie and Freddie while maintaining a limited government role to ensure access to the 30-year fixed-rate mortgage. But the debate is intense over whether the 30-year mortgage should stick around. With or without it, one research group says the numbers prove government guarantees aren't necessary to entice private investors.
Friday, April 22, 2011
Wednesday, April 20, 2011
Maurice, Louisiana Couple Convicted of Perjury Charges Related to Bankruptcy Assets
"Thad Corey Theall, 52, and Theresa Theall, 51, both of Maurice, La., have been convicted by a federal jury in Lafayette, La., of perjury charges relating to bankruptcy assets, United States Attorney Stephanie A. Finley announced.
Thad and Theresa Theall were indicted in July of 2009, in a two-count indictment: count 1, concealment of bankruptcy assets false statement under penalty of perjury; and count 2, concealment of bankruptcy assets false oaths. Testimony during trial revealed that The Theall’s filed for bankruptcy on June 16, 2005, and in relation to that Bankruptcy Petition, failed to disclose information under the bankruptcy filings which were verified under penalty of perjury. This resulted in the concealment of proceeds of approximately $100,000.00 from the sale of property located on Ambassador Caffery Parkway. It was further revealed that while under oath during a meeting of creditors before the U.S. Trustee in August of 2005, The Theall’s provided false information regarding the sale of the Ambassador Caffery Parkway property to conceal the $100,000.00 proceeds. Thad Corey Theall was found guilty on both counts, and Theresa Theall was found guilty on count 1."
http://criminal-justice-online.blogspot.com/2011/04/maurice-louisiana-couple-convicted-of.html
Thad and Theresa Theall were indicted in July of 2009, in a two-count indictment: count 1, concealment of bankruptcy assets false statement under penalty of perjury; and count 2, concealment of bankruptcy assets false oaths. Testimony during trial revealed that The Theall’s filed for bankruptcy on June 16, 2005, and in relation to that Bankruptcy Petition, failed to disclose information under the bankruptcy filings which were verified under penalty of perjury. This resulted in the concealment of proceeds of approximately $100,000.00 from the sale of property located on Ambassador Caffery Parkway. It was further revealed that while under oath during a meeting of creditors before the U.S. Trustee in August of 2005, The Theall’s provided false information regarding the sale of the Ambassador Caffery Parkway property to conceal the $100,000.00 proceeds. Thad Corey Theall was found guilty on both counts, and Theresa Theall was found guilty on count 1."
http://criminal-justice-online.blogspot.com/2011/04/maurice-louisiana-couple-convicted-of.html
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
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
Wells Fargo In Federal Court
1:11-cv-00312-LY Yuen et al v. Wells Fargo Bank, N.A. et al ---txwd
6:11-cv-00639-JA-GJK Christy v. Wells Fargo Bank, N.A. et al – mdFL
2:11-cv-00509-DSC WELLS FARGO BANK, N.A. v. BORKOWSKI et al ---pawd
6:11-cv-00639-JA-GJK Christy v. Wells Fargo Bank, N.A. et al – mdFL
2:11-cv-00509-DSC WELLS FARGO BANK, N.A. v. BORKOWSKI et al ---pawd
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
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.
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.
South Florida Trustee To Plead Guilty To $16M Fraud
Longtime South Florida bankruptcy trustee Marika Tolz will plead guilty to federal charges that she misappropriated more than $16 million from cases she was overseeing and lost — or possibly pocketed — at least $2.4 million, her attorneys said Tuesday.
Tolz will cop to one count of conspiracy to commit wire fraud on May 5, admitting she wrote unauthorized checks from bankruptcy accounts to enrich herself and cover money misappropriated from other accounts, according to her attorneys.
Tolz expects to repay $2.4 million to parties involved in the cases she handled, according to co-counsel Benedict P. Kuehne.
U.S. Attorney for the Southern District of Florida Wifredo A. Ferrer said in a statement. "Robbing from one client to pay another is no way to do business, and will surely end in criminal prosecution and incarceration."
Tolz is the second South Florida trustee charged with fraud in as many years. Lewis B. Freeman, formerly of Lewis B. Freeman & Partners Inc., was sentenced to an eight-year prison sentence in July for allegedly stealing more than $2.6 million.
The case is USA v. Tolz, case number 1:11-cr-20160, in the U.S. District Court for the Southern District of Florida.
The state case is the State of Florida v. Marika Tolz in the 17th Judicial Circuit of Florida. A case number was not immediately available.
Tolz will cop to one count of conspiracy to commit wire fraud on May 5, admitting she wrote unauthorized checks from bankruptcy accounts to enrich herself and cover money misappropriated from other accounts, according to her attorneys.
Tolz expects to repay $2.4 million to parties involved in the cases she handled, according to co-counsel Benedict P. Kuehne.
U.S. Attorney for the Southern District of Florida Wifredo A. Ferrer said in a statement. "Robbing from one client to pay another is no way to do business, and will surely end in criminal prosecution and incarceration."
Tolz is the second South Florida trustee charged with fraud in as many years. Lewis B. Freeman, formerly of Lewis B. Freeman & Partners Inc., was sentenced to an eight-year prison sentence in July for allegedly stealing more than $2.6 million.
The case is USA v. Tolz, case number 1:11-cr-20160, in the U.S. District Court for the Southern District of Florida.
The state case is the State of Florida v. Marika Tolz in the 17th Judicial Circuit of Florida. A case number was not immediately available.
IBM, Represented by Goodwin Procter, Wins Rights To Patents on Employee's Invention
This is just so wrong! She worked there part time developed it on her own time and patented when she had left IBM. It was not like she was some over paid executive!
Can an employer claim the right to all inventions devised by its workers, even in their spare time? It sure can, according to a recent ruling by a Manhattan federal judge in a case that involved patents on methods to link electronic files to pictures.
http://www.law360.com/articles/239912/judge-dismisses-ip-suit-after-awarding-ibm-patents
http://agreements.realdealdocs.com/Employee-Retention-Agreement/IBM-SUPPLEMENTAL-EXECUTIVE-RETENTION-PLA-1006044/
http://www.webguild.org/presentations/ibmsocialmedia.pdf
http://www.jpo.go.jp/iken/pdf/shinshoku_keka/dantai_16-1.pdf
http://news.cnet.com/Telecommutings-patently-obvious-gains/2010-1030_3-6150394.html
http://news.cnet.com/Telecommutings-patently-obvious-gains/2010-1030_3-6150394.html
See the story:
A federal judge in New York on Friday tossed a lawsuit by the inventor of a graphical user interface that was developed while she worked at IBM Corp., ruling that Big Blue owned the patents under its employee agreement.
U.S. District Court Judge John G. Koeltl found that IBM's intellectual property agreement with the inventor, Michelle Baker, who worked part-time at a company lab, gives ownership of the patents to IBM instead of to her two companies that were assigned patent rights, Picture Patents LLC and Intellinet Inc.
The decision effectively dismantled Baker's patent infringement suit against nine companies, including the National Basketball Association and clothing retailer Aeropostale Inc., which she claims operated websites that allegedly infringe on her graphical user interface.
"The IP agreement clearly applies to the invention and the corresponding patents," Judge Koeltl wrote in his opinion. "Therefore, IBM owned the patents ... and Baker had no interest to assign to Intellinet or Picture Patents."
Baker was a Columbia University doctoral student when she started part-time work at IBM's T.J. Watson Lab in 1990. She devised the interface in 1991 as a solution to the problem of making computer systems accessible through pictures.
After leaving IBM in 1993, she continued to develop her technology and filed three patent applications between 1994 and 1999, eventually assigning them to Picture Patents.
Baker argued that the invention was not related to her work at IBM, putting it outside of the intellectual property agreement.
"The IP agreement, by its plain terms, applies to all such inventions, even if they do not relate to Baker's actual assigned work," Judge Koeltl ruled.
The judge's decision removes Picture Patents' standing to bring patent infringement claims against the companies named in Baker's suit including Dick's Sporting Goods Inc., Charlotte Russe Inc., GSI Commerce Solutions Inc. and subsidiaries of the NBA and Major League Baseball.
In 2007, Baker filed her first complaint against the companies, which argued that IBM was the true owner of the patents. Her fourth amended complaint added IBM to the suit and sought the court to declare Picture Patents the owner of the patents.
IBM, in response, brought seven counterclaims against Picture Patents and moved for summary judgment on Baker's declaratory judgment claims regarding the ownership of the patents.
An attorney representing Picture Patents was not available for comment Monday.
The patents-in-suit are U.S. Patent Numbers 6,278,455; 5,715,416; and 6,002,401.
Picture Patents is represented by Alston & Bird LLP.
IBM is represented by Goodwin Procter LLP.
Law firms representing the companies accused of patent infringement include Cooley LLP and Morgan Lewis & Bockius LLP.
The case is Picture Patents LLC v. Aeropostale Inc. et al., case number 1:07-cv-05567, in U.S. District Court for the Southern District of New York.
Can an employer claim the right to all inventions devised by its workers, even in their spare time? It sure can, according to a recent ruling by a Manhattan federal judge in a case that involved patents on methods to link electronic files to pictures.
http://www.law360.com/articles/239912/judge-dismisses-ip-suit-after-awarding-ibm-patents
http://agreements.realdealdocs.com/Employee-Retention-Agreement/IBM-SUPPLEMENTAL-EXECUTIVE-RETENTION-PLA-1006044/
http://www.webguild.org/presentations/ibmsocialmedia.pdf
http://www.jpo.go.jp/iken/pdf/shinshoku_keka/dantai_16-1.pdf
http://news.cnet.com/Telecommutings-patently-obvious-gains/2010-1030_3-6150394.html
http://news.cnet.com/Telecommutings-patently-obvious-gains/2010-1030_3-6150394.html
See the story:
A federal judge in New York on Friday tossed a lawsuit by the inventor of a graphical user interface that was developed while she worked at IBM Corp., ruling that Big Blue owned the patents under its employee agreement.
U.S. District Court Judge John G. Koeltl found that IBM's intellectual property agreement with the inventor, Michelle Baker, who worked part-time at a company lab, gives ownership of the patents to IBM instead of to her two companies that were assigned patent rights, Picture Patents LLC and Intellinet Inc.
The decision effectively dismantled Baker's patent infringement suit against nine companies, including the National Basketball Association and clothing retailer Aeropostale Inc., which she claims operated websites that allegedly infringe on her graphical user interface.
"The IP agreement clearly applies to the invention and the corresponding patents," Judge Koeltl wrote in his opinion. "Therefore, IBM owned the patents ... and Baker had no interest to assign to Intellinet or Picture Patents."
Baker was a Columbia University doctoral student when she started part-time work at IBM's T.J. Watson Lab in 1990. She devised the interface in 1991 as a solution to the problem of making computer systems accessible through pictures.
After leaving IBM in 1993, she continued to develop her technology and filed three patent applications between 1994 and 1999, eventually assigning them to Picture Patents.
Baker argued that the invention was not related to her work at IBM, putting it outside of the intellectual property agreement.
"The IP agreement, by its plain terms, applies to all such inventions, even if they do not relate to Baker's actual assigned work," Judge Koeltl ruled.
The judge's decision removes Picture Patents' standing to bring patent infringement claims against the companies named in Baker's suit including Dick's Sporting Goods Inc., Charlotte Russe Inc., GSI Commerce Solutions Inc. and subsidiaries of the NBA and Major League Baseball.
In 2007, Baker filed her first complaint against the companies, which argued that IBM was the true owner of the patents. Her fourth amended complaint added IBM to the suit and sought the court to declare Picture Patents the owner of the patents.
IBM, in response, brought seven counterclaims against Picture Patents and moved for summary judgment on Baker's declaratory judgment claims regarding the ownership of the patents.
An attorney representing Picture Patents was not available for comment Monday.
The patents-in-suit are U.S. Patent Numbers 6,278,455; 5,715,416; and 6,002,401.
Picture Patents is represented by Alston & Bird LLP.
IBM is represented by Goodwin Procter LLP.
Law firms representing the companies accused of patent infringement include Cooley LLP and Morgan Lewis & Bockius LLP.
The case is Picture Patents LLC v. Aeropostale Inc. et al., case number 1:07-cv-05567, in U.S. District Court for the Southern District of New York.
American Electric Power v. Connecticut.
http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202490642915
Seven of the eight justices participating in oral arguments in the case of American Electric Power v. Connecticut offered comments or questions that appeared critical of the scope or concept of a suit against major utilities that claims their output of greenhouse gases is a public nuisance under federal common law. The eighth justice, Clarence Thomas, asked no questions as usual. And the ninth, Justice Sonia Sotomayor, did not participate because she heard the case at an earlier stage as a circuit court judge. The overwhelming tenor of the justices' questions Tuesday was skepticism that courts should be deciding emissions standards and other possible remedies for climate change, instead of Congress and the Environmental Protection Agency. After staying out of the controversy during the Bush administration, the EPA under President Barack Obama has begun the rulemaking process for limits on greenhouse gases.
Seven of the eight justices participating in oral arguments in the case of American Electric Power v. Connecticut offered comments or questions that appeared critical of the scope or concept of a suit against major utilities that claims their output of greenhouse gases is a public nuisance under federal common law. The eighth justice, Clarence Thomas, asked no questions as usual. And the ninth, Justice Sonia Sotomayor, did not participate because she heard the case at an earlier stage as a circuit court judge. The overwhelming tenor of the justices' questions Tuesday was skepticism that courts should be deciding emissions standards and other possible remedies for climate change, instead of Congress and the Environmental Protection Agency. After staying out of the controversy during the Bush administration, the EPA under President Barack Obama has begun the rulemaking process for limits on greenhouse gases.
FRB Issues Proposed Rule on Dodd-Frank "Ability to Repay," "Qualified Mortgage," PPPs
The Federal Reserve Board issued a proposed rule to implement the Dodd-Frank Act amendments to TILA that would require creditors to determine a consumer's ability to repay closed-end mortgage loans generally, and would establish minimum mortgage underwriting standards.
The FRB is also soliciting comment on two alternative approaches for defining a "qualified mortgage."
The FRB's notice is available at:
http://www.federalreserve.gov/newsevents/press/bcreg/bcreg20110419b1.pdf
As you may recall, Regulation Z currently prohibits a creditor from making a "higher-priced" mortgage loan without regard to the consumer's ability to repay the loan. The Dodd-Frank Act expanded the scope of the ability-to-repay requirement to cover any consumer credit transaction secured by a dwelling (excluding an open-end credit plan, timeshare plan, reverse mortgage, or temporary loan). The Dodd-Frank Act also placed limits on prepayment penalties.
The proposal would apply to all consumer mortgages (except home equity lines of credit, timeshare plans, reverse mortgages, or temporary loans), and provides the following four options for complying with the ability-to-repay requirement:
(1) A creditor can meet the general ability-to-repay standard by considering and verifying certain specified underwriting factors, such as the consumer's income or assets, debt obligations, and credit history.
Underwriting the payment for an adjustable-rate mortgage loan is to be based on the fully indexed rate;
(2) A creditor can make a "qualified mortgage" (which provides the creditor with special protection from liability provided the loan does not have certain features such as negative amortization, the fees are within specified limits, and the creditor underwrites the mortgage payment using the maximum interest rate in the first five years). Importantly, the FRB is soliciting comment on two alternative approaches for defining a "qualified mortgage."
(3) A creditor operating predominantly in rural or underserved areas can make a balloon-payment qualified mortgage. This option is meant to preserve access to credit for consumers located in rural or underserved areas where banks originate balloon loans to hedge against interest rate risk for loans held in portfolio.
(4) A creditor can refinance a "non-standard mortgage" with risky features into a more stable "standard mortgage" with a lower monthly payment. This option is meant to preserve access to streamlined refinancings.
The proposal would also implement the Dodd-Frank Act's limits on prepayment penalties. In addition, the proposal would require creditors to retain evidence of compliance with this rule for three years after a loan is consummated.
http://www.federalreserve.gov/newsevents/press/bcreg/bcreg20110419b1.pdf
Under Dodd-Frank, the proposal would provide four options for complying with the ability-to-repay requirement.
http://www.federalreserve.gov/newsevents/press/bcreg/bcreg20110419a1.pdf
First, a creditor can meet the general ability-to-repay standard by considering and verifying specified underwriting factors, such as the consumer’s income or assets.
Second, a creditor can make a “qualified mortgage,” which gives the creditor special protection from liability provided the loan does not have certain features, such as negative amortization; the fees are within specified limits; and the creditor underwrites the mortgage payment using the maximum interest rate in the first five years.
Regulators are currently soliciting comment on alternative approaches for defining a “qualified mortgage.”
Third, a creditor operating predominantly in rural or underserved areas can make a balloon-payment qualified mortgage.
a creditor can refinance a “non-standard mortgage” with risky features into a more stable “standard mortgage” with a lower monthly payment.
The FRB reminds that general rulemaking authority for TILA is scheduled to transfer to the Consumer Financial Protection Bureau (or, "CFPB") on July 21, 2011. Accordingly, the FRB states that this rulemaking will become a proposal of the CFPB and will not be finalized by the FRB.
The comments deadline is July 22, 2011.
The FRB is also soliciting comment on two alternative approaches for defining a "qualified mortgage."
The FRB's notice is available at:
http://www.federalreserve.gov/newsevents/press/bcreg/bcreg20110419b1.pdf
As you may recall, Regulation Z currently prohibits a creditor from making a "higher-priced" mortgage loan without regard to the consumer's ability to repay the loan. The Dodd-Frank Act expanded the scope of the ability-to-repay requirement to cover any consumer credit transaction secured by a dwelling (excluding an open-end credit plan, timeshare plan, reverse mortgage, or temporary loan). The Dodd-Frank Act also placed limits on prepayment penalties.
The proposal would apply to all consumer mortgages (except home equity lines of credit, timeshare plans, reverse mortgages, or temporary loans), and provides the following four options for complying with the ability-to-repay requirement:
(1) A creditor can meet the general ability-to-repay standard by considering and verifying certain specified underwriting factors, such as the consumer's income or assets, debt obligations, and credit history.
Underwriting the payment for an adjustable-rate mortgage loan is to be based on the fully indexed rate;
(2) A creditor can make a "qualified mortgage" (which provides the creditor with special protection from liability provided the loan does not have certain features such as negative amortization, the fees are within specified limits, and the creditor underwrites the mortgage payment using the maximum interest rate in the first five years). Importantly, the FRB is soliciting comment on two alternative approaches for defining a "qualified mortgage."
(3) A creditor operating predominantly in rural or underserved areas can make a balloon-payment qualified mortgage. This option is meant to preserve access to credit for consumers located in rural or underserved areas where banks originate balloon loans to hedge against interest rate risk for loans held in portfolio.
(4) A creditor can refinance a "non-standard mortgage" with risky features into a more stable "standard mortgage" with a lower monthly payment. This option is meant to preserve access to streamlined refinancings.
The proposal would also implement the Dodd-Frank Act's limits on prepayment penalties. In addition, the proposal would require creditors to retain evidence of compliance with this rule for three years after a loan is consummated.
http://www.federalreserve.gov/newsevents/press/bcreg/bcreg20110419b1.pdf
Under Dodd-Frank, the proposal would provide four options for complying with the ability-to-repay requirement.
http://www.federalreserve.gov/newsevents/press/bcreg/bcreg20110419a1.pdf
First, a creditor can meet the general ability-to-repay standard by considering and verifying specified underwriting factors, such as the consumer’s income or assets.
Second, a creditor can make a “qualified mortgage,” which gives the creditor special protection from liability provided the loan does not have certain features, such as negative amortization; the fees are within specified limits; and the creditor underwrites the mortgage payment using the maximum interest rate in the first five years.
Regulators are currently soliciting comment on alternative approaches for defining a “qualified mortgage.”
Third, a creditor operating predominantly in rural or underserved areas can make a balloon-payment qualified mortgage.
a creditor can refinance a “non-standard mortgage” with risky features into a more stable “standard mortgage” with a lower monthly payment.
The FRB reminds that general rulemaking authority for TILA is scheduled to transfer to the Consumer Financial Protection Bureau (or, "CFPB") on July 21, 2011. Accordingly, the FRB states that this rulemaking will become a proposal of the CFPB and will not be finalized by the FRB.
The comments deadline is July 22, 2011.
Tuesday, April 19, 2011
Lien Stripping
Bankruptcy -- Liens -- Avoidance -- Liens securing allowed claims -- A Chapter 13 debtor who is ineligible to receive a Chapter 13 discharge may not strip down or strip off the lien of wholly unsecured mortgage in a Chapter 13 plan -- Chapter 13 debtors were ineligible to receive Chapter 13 discharge, because debtors had obtained Chapter 7 discharges within four years of filing their Chapter 13 petitions -- On petition date, junior creditors had allowed secured claims against debtors' bankruptcy estates in form of mortgage liens encumbering debtors' property, even though debtors' personal obligations to creditors were discharged in prior Chapter 7 cases, because creditors' mortgage liens survived debtors' Chapter 7 discharges -- Junior liens could not be modified using 11 U.S.C. Section 506(d) of Bankruptcy Code, which provides that to extent that lien secures a claim against debtor that is not an allowed secured claim, such lien is void, because statute is not self-executing, and may not be used to strip down or strip off liens except in conjunction with another section of Code -- In Chapter 13 case at issue, Section 1325 provides the mechanism for lien stripping, but juniors liens may not be stripped off under that section because debtors are not eligible to receive a discharge
Reported at 22 Fla. L. Weekly Fed. B650a
Reported at 22 Fla. L. Weekly Fed. B650a
Wells Fargo Tax Shelter Scam
The Federal Circuit has upheld a ruling that Wells Fargo, with assistance from its lawyers at King & Spalding, engaged in an abusive tax shelter when it tried to claim $115 million in tax deductions using a "SILO" leasing transaction.
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