BCLP Global Restructuring & Insolvency Developments

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Ninth Circuit Declines To Decide When Contempt Sanction Becomes Punishment

Bankruptcy courts have authority to hold in civil contempt one who refuses to comply with a bankruptcy court order, including incarceration and/or daily fines until the offender complies.[1]  But when does civil contempt[2] cross into criminal contempt, which is punitive and outside the scope of the bankruptcy court’s powers?[3]  While a bright-line rule is wanting, the 9th Circuit’s silence on a recent case implied that three years of incarceration plus a $1,000 daily fine to coerce compliance does not implicate criminal due process concerns and, therefore, is within the bounds of permissible bankruptcy court authority.

Kenny G Enterprises, LLC’s Chapter 11 case (which dealt with a developer named Kenny G, and not the world’s favorite saxophonist) was converted to Chapter 7, triggering a requirement

The Primary Purpose Test and SRP Chameleon: How the Obamacare “Penalty” Became a “Tax” Only to Become a “Penalty” Again

The Patient Protection and Affordable Care Act of 2010 (a/k/a “Obamacare” or the “ACA”), with its infamous “individual mandate”[1] (and corresponding “shared responsibility payment” (which we’ll call the “SRP”)),[2] is no stranger to controversy.  Everyone is well aware of the legal challenges mounted against the individual mandate, and the seminal SCOTUS opinion upholding the mandate as a valid exercise of Congress’s taxing power – National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012). Don’t worry, we’re well aware that you, along with nearly every other American (including us here at the Bankruptcy Cave), are sick and tired of hearing about ACA squabbles.  But this post will explore one side of the ACA that you’ve almost certainly not considered, but which is interesting (to us at least).  It’s interesting because it provides the leading thought on which government exactions should and shouldn’t be

SCOTUS Reminds Us To Get It In Writing When Dealing with Someone that Owes You Money

The recent decision from the United States Supreme Court in Lamar, Archer & Cofrin, LLP v. Appling (“Lamar”), further restricts a creditor’s ability to pursue future recovery on its debt through a nondischargeability action in a debtor’s bankruptcy.  On June 4, 2018, the Court ruled in Lamar that a debtor’s false statement about a single asset must be in writing before the creditor’s debt can be excepted as nondischargeable in bankruptcy.

The Supreme Court’s full opinion can be viewed here: Lamar Opinion 2018 . The Court’s decision in Lamar resolved a circuit split and provides for consistent interpretation of the Bankruptcy Code which did not previously exist.  The issue before the Court was whether a false oral statement about a single asset can render a specific obligation nondischargeable,

Reverse Mortgage Update: New York Law Mandates New Foreclosure Notices and Certificate of Merit

Editors’ Note:  While this post is not a per se bankruptcy issue, matters on consumer financial services are always in the curtilage of bankruptcy and the U.S. Bankruptcy Code.  Our BCLP consumer financial services colleague Cathy Welker is an expert in this area, advising banks, servicers, and other financial institutions on the Byzantine regulatory world they face, not only in New York where she practices but also at the federal level.  Likewise, BCLP’s Dallas office enjoys the benefits of Greg Sachnik, a former senior banking executive deep in the front lines of TILA, RESPA, deceptive trade practices, wrongful foreclosure, and fair debt collection.  We appreciate seeing this update from them, especially as reverse mortgage issues grow exponentially – according to one study, reverse mortgage foreclosures increased by over 600 percent in recent years.  So we are pleased to re-publish it here, and for you to read

State Court Default Judgment Estops Debtor from Contesting Former In-laws’ Action to Deny Discharge in Later Bankruptcy (with bonus practice pointers!)

Just last month, the Bankruptcy Cave reported upon a Southern District of Texas case in which a debtor was denied discharge of a debt owed to an old (and likely former!?!) friend from church who had been required to pay off a student loan made to the debtor which the friend had guaranteed.  Today we report another case involving friends and family and non-dischargeable student debt from the U.S. Bankruptcy Court for the Eastern District of Michigan.

The case, Ramani v. Romo (In Re Romo), Ad. Pro. No. 17-2107-dob (link for you here), was recently resolved by way of summary judgment for the plaintiffs, the debtor’s former in-laws.  As set forth in the May 14, 2018 opinion of Judge Daniel S. Opperman, the debtor entered her marriage

Equity v. Statute: In Bankruptcy, the Code Prevails (The Official Committee of Unsecured Creditors v. The Archdiocese of Saint Paul and Minneapolis et al.)

Garrison Keillor once said, “Sometimes I look reality straight in the eye and deny it.”[1]  Being that the case arose in Minnesota, perhaps Circuit Judge Michael Melloy channeled Keillor, one of that state’s great humorists, when he authored the opinion in The Official Committee of Unsecured Creditors v. The Archdiocese of Saint Paul and Minneapolis et al. (In re: The Archdiocese of Saint Paul and Minneapolis) Case No. 17-1079 2018 WL 1954482 (8th Cir. April 26, 2018) [a link to the opinion is here].[2]  Regardless, the quote must sum up the Appellant’s view of the outcome. The unsecured creditors that make up the Committee, most of whom were victims of clergy sexual abuse, will not obtain access to the value of over 200 non-profit entities affiliated with the Archdiocese of Saint Paul and Minneapolis to pay their claims.

In a concise opinion, the

Eight Lessons for Your Practice from the Law of Canine Replevin (#5 Will Amaze You)

April 24, 2018

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Some years ago, a judge in New York wrote that “the reported cases for replevin of a pet dog are few, in part because of the legal expense involved in maintaining such an action.” Webb v. Papaspiridakos, 889 N.Y.S.2d 884 (Sup. Ct. 2009).  That statement was not entirely accurate then, for courts have dealt with canine replevin from time to time for decades.  But in the years since Webb was decided—all nine of them—the court’s statement has come to seem remarkably naïve.  A wave of replevin cases involving man’s best friend is upon us.  What has changed during this relatively short period?  Many people are saying that millennials own a lot more dogs today than they did in 2009.[1]  Disputing that theory would require a lot of research in a real library.  [Editors’ Note:  The Bankruptcy Cave does not subscribe to the theory that anything unpleasant may be blamed

The Palmaz Plan: Investors Can Have Their Direct D&O Claims But Not The D&O Insurance Proceeds #WinningWhileLosing

In In re Palmaz Scientific Inc., the bankruptcy court for the Western District of Texas determined that a confirmed plan of reorganization would not stop a group of investors from pursuing direct (non-derivative) claims against directors and officers of the debtor companies because plan injunction language only covered claims against the debtors.  2018 WL 1036780, at *5 (Bankr. W.D. Tex. Feb. 21, 2018) (slip op. at 11).  Unfortunately for the investor plaintiffs, this proved to be a success without victory because the court went on to hold that the plan precluded the investors from using the D&O insurance proceeds to satisfy their claims.  Id. at *7 (slip op. at 14).  This case is both a cautionary tale for claimants and a potential boon for post-confirmation trustees.

When (and why) do D&O Insurance Proceeds become the coveted prize?

When D&O claims are asserted against a distressed company and/or its directors

U.K. Government Publishes Guidance on Corporate Governance in Insolvency

 

Editor’s Note: The April 1, 2018 merger of US-based Bryan Cave and UK-based Berwin Leighton Paisner provides us with far greater insight into cross-border insolvencies, an expertise to handle any restructuring, workout, or dissolution matters in the US, UK, Europe, Russia, UAE, Israel, China, and other points in the Far East.  For more information, contact Tessa or Sophie (the authors of this post), or visit here.

Following a number of corporate governance failures in situations of insolvency, the Government has published a consultation paper (located here) aimed at cracking down on directors and employers behaving irresponsibly.  “These reforms will give the regulatory authorities much stronger powers to come down hard on abuse and to make irresponsible directors bear the consequences of their actions.” Greg Clark

Responses are required by 11 June 2018.

Sale of Businesses in Distress

Although directors of an insolvent company must act in the best

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