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For those who wondered what happened to the rule proposal that the SEC issued in January 2011 requiring that investment managers report their say-on-pay votes at least annually, the staff is working on drafting final rules for the Commission’s consideration “in the near term,” according to Chair White.
5 years 1 month ago
I had the honor of being a panelist at the American Bankruptcy Institute‘s 22nd Annual Southwest Bankruptcy Conference last Friday, speaking on current developments in business bankruptcy. My part of the discussion focused on recent intellectual property and bankruptcy law trends. Among the topics I covered were:
  • the direction U.S. Courts of Appeals have been taking over the last few years in protecting trademark licensees from the harsh effects of rejection of their trademark licenses by a licensor in bankruptcy,
  • whether Section 365(n) of the Bankruptcy Code protecting (non-trademark) IP licensees applies in cross-border cases under Chapter 15 of the Bankruptcy Code, and
  • recent Congressional efforts to reform how IP is treated in bankruptcy cases.
5 years 1 month ago
I had the honor of being a panelist at the American Bankruptcy Institute‘s 22nd Annual Southwest Bankruptcy Conference last Friday, speaking on current developments in business bankruptcy. My part of the discussion focused on recent intellectual property and bankruptcy law trends. Among the topics I covered were:
  • the direction U.S. Courts of Appeals have been taking over the last few years in protecting trademark licensees from the harsh effects of rejection of their trademark licenses by a licensor in bankruptcy,
  • whether Section 365(n) of the Bankruptcy Code protecting (non-trademark) IP licensees applies in cross-border cases under Chapter 15 of the Bankruptcy Code, and
  • recent Congressional efforts to reform how IP is treated in bankruptcy cases.
5 years 1 month ago
On August 26, Judge Drain, who sits in the White Plains courthouse in the Southern District of New York, delivered a surprising bench ruling confirming a plan of reorganization for the Momentive Performance Materials group of debtors ("MPM").   His rulings covered a number of issues, including interpretation of an inter-creditor agreement and denial of a make-whole premium to senior secured creditors, each of which was resolved against the senior secured creditors.  But probably the most explosive ruling, because it is not confined to the language of a particular contract, but, rather, presented as an interpretation of section 1129(B)(2)(A) of the Bankruptcy Code, was his expansive, almost literal, application of the Tillplurality opinion to "cram up" the senior secured creditors with a below-market piece of 7-year paper.

Read More from: Necessary and Proper

5 years 1 month ago
Waiting To File Bankruptcy There are so many people that I talk to over the course of a month who contemplate whether to file bankruptcy yet take no action. Many of these people feel that the problem will simply go away. Some people feel that their financial situation is going to somehow change on its+ Read More The post How Waiting To File Bankruptcy Can Hurt You appeared first on David M. Siegel.
5 years 1 month ago
In re Rich, 510 B.R. 366 (Bankr. D. Utah 2014) – In a case that was converted from a chapter 11 reorganization to a chapter 7 liquidation, the debtor sought an order directing the trustee to abandon certain real estate, arguing that … Continue reading →
5 years 1 month ago
The Supreme Court may add another bankruptcy case to its agenda this term in a case where both the Petitioner and the Respondent support the grant of cert.    No. 13-1416, Gordon v. Bank of America.   The Petition can be found here and the Response in Support is here.   Of course, the parties want to reverse the Tenth Circuit for very different reasons.The case involves a chapter 13 debtor who included an "object or forfeit" provision in his plan stating that if a creditor did not object to the plan, it would be bound to the amount of its claim listed in the plan.   No creditors objected to the plan nor did the Chapter 13 trustee object.   The Bankruptcy Court requested briefing but ultimately found the provision allowable and confirmed the Plan.   Bank of America appealed.    The District Court found that the object or forfeit provision was invalid and reversed.   The Debtor then appealed to the Tenth Circuit which found that an order denying confirmation of a plan was not appealable.  It dismissed the appeal for lack of jurisdiction.  Bank of America v. Gordon, 743 F.3d (10th Cir. 2014).
5 years 1 month ago
In the midst of the clamor for disclosure reform that questions whether the current regime requires too much information in public filings, the Council of Institutional Investors (CII) wants companies to provide additional detail about their board evaluation processes.  
5 years 1 month ago
This has not been a good year for Texas homesteads involved in bankruptcy proceedings.    In April, the Fifth Circuit ruled (after nearly two years under advisement) that the non-filing spouse does not have a separate homestead estate entitled to protection when the other spouse files bankruptcy, or, as happened in this case, has an involuntary petition brought against him.    Kim v. Dome Entertainment, Inc. (In re Kim), No. 10-10882 (5th Cir. 4/9/14), which can be found here.   While the legal reasoning of the decision is solid, it is a blow to those of us who consider the Texas homestead to be sacrosanct.What Happened Odes Ho Kim purchased a home in Irving, Texas for $1,048,028.36 which he occupied with his spouse Chong Ann Kim.    About two years later, Dome Entertainment Center obtained a judgment against him in California for more than $5 million.   Dome then filed an involuntary petition against Mr. Kim in Texas.   Because the home was acquired less than 1,215 days before bankruptcy, Dome objected that Mr. Kim's homestead exemption  was limited to $136,875.    The Bankruptcy Court sustained the objection.   Mr. Kim then filed a declaratory judgment seeking to determine Mrs. Kim's interest in the property.   Dome intervened.   Judge Harlin "Cooter" Hale ruled that 11 U.S.C. Sec. 522(p) preempted the unlimited Texas homestead exemption and that Mrs.
5 years 1 month ago
The Archdiocese of Milwaukee is one of 11 dioceses (plus 2 other Catholic-affiliated religious orders) to file under Chapter 11 -- and it likely will not be the last. All of the cases were filed in hopes of achieving global settlements of sexual abuse claims. The Milwaukee Archdiocese filed over 3.5 years ago, in January 2011, making it the longest running Diocese case. 6 of the 7 other dioceses that filed before it confirmed reorganization plans in an average of about 2 years after filing. The shortest time to confirmation was 10 months, while the longest was 2.75 years. The other diocese, San Diego, negotiated a settlement, via mediation, in approximately 9 months. The Milwaukee Archdiocese and its creditors (predominately abuse claimants) have spent the last 3.5 years, despite a trip to mediation in 2012, primarily fighting over a $55 million trust fund established to pay for upkeep of the diocese's cemetery. Without the $55 million, abuse claimants are likely to receive no more than $4 million. The $4 million figure would be smallest settlement paid to abuse claimants in any of the Catholic Church bankruptcies so far. The cemetery trust issue is pending before the 7th Circuit. Meanwhile, attorneys' and other professionals' fees are rising, leading Judge Kelley to order the parties back to mediation, starting tomorrow.

Read More from: Credit Slips

5 years 1 month ago
If you have Federal Student Loans, you may know that IBR means Income Based Repayment. You may also have heard of the PAYE Program, which stands for Pay As You Earn. Or, if you have an older Federal Student Loan, you may have heard of ICR which is the abbreviation for Income Contingent Repayment. These are Plans that students can use to reduce their student loan monthly payments based on what they can afford as their income changes. Which of these three programs may apply to you is based on the type of Federal Loan you have and when you took out the loan. Which program applies to you will determine the percentage of your discretionary income that you will have to pay each month as well as your the length of payments until the balance of your loan is forgiven. So, how can an attorney help you maneuver through this complicated system? As an attorney who deals with the government on Social Security Disability and bankruptcy cases, I am familiar with the government mazes and help steer people through the confusion and jargon. More importantly, the monthly payment you will be making is based on your “discretionary income”, according to the government website, StudentAid.ed.gov.

Read More from: Scholnick Law

5 years 1 month ago
If you are a parent and your child is going off to college, you will want to help your student through these formative years. However, resist the urge to co-sign on you child’s student loans. Here is the reason- 5 or 10 years from now, when you child is between jobs and cannot make the monthly payments, the loan will go into default and the bills collectors will be coming after you for payment. There are countless stories on the internet of people in their late 50’s and 60’s, on social security or pensions that are forced to pay their childrens’ student loans.  And, if these are not Federal Loans, but private or State Loans, the parent or grandparent will not have the benefit of an Income Based Repayment Program. There is even terrible story of a student debtor who died whose parents are being sued for the balance owed. Resist the urge to commit yourself to the contract. If you want to voluntarily make payments, that is fine, but don’t sign your name on a contract because that makes you equally responsible.

Read More from: Scholnick Law

5 years 1 month ago
White v. Jacobs (In re New Century TRS Holdings, Inc.), No. 13-1719-SLR, 2014 WL 4100749 (D. Del. Aug. 19, 2014) The central question in this appeal was whether notice of a debtors’ claims bar date was constitutionally sufficient to afford unknown creditors due process.*  Although publication notice of a bar date in national and local newspapers is often deemed sufficient for unknown creditors, the Delaware District Court held that, under the circumstances of this case, the notice was insufficient and vacated the Bankruptcy Court’s ruling.  In so ruling, the District Court observed that “when the bar date is set so close to the publication date, debtors have a heavier burden to ensure that notice is widespread.”  Id. at *6 n.8. Read More › Tags: Notice, Proof of Claim

Read More from: Delaware Bankruptcy Insider

5 years 1 month ago
The Judicial Conference Advisory Committees on Appellate, Bankruptcy, Civil, and Criminal Rules have proposed amendments to their respective rules and forms, and requested that the proposals be circulated to the bench, bar, and public for comment. The following proposed amendments were approved for publication by the Judicial Conference Committee on Rules of Practice and Procedure in May 2014. To view the proposed amendments, click here. Carl D. Neff is a bankruptcy attorney with the law firm of Fox Rothschild LLP.  Carl is admitted in Delaware and regularly practices before the United States Bankruptcy Court for the District of Delaware. You can reach Carl at (302) 622-4272 or at cneff@foxrothschild.com.
5 years 1 month ago

Read More from: Scholnick Law

5 years 1 month ago

Read More from: Scholnick Law

5 years 1 month ago
Albert v. Green Tree Servicing, LLC (In re El Erian), 512 B.R. 391 (Bankr. D. D.C. 2014) – A chapter 7 trustee sought to avoid the lien of a recorded deed of trust because (1) it contained both correct and incorrect parcel … Continue reading →
5 years 1 month ago
The SEC staff recently disagreed with Procter & Gamble’s no-action letter, which sought to exclude a shareholder proposal on ordinary business grounds, although a similar proposal sent to Johnson & Johnson was allowed to be kept out of its proxy statement this past February.   
5 years 1 month ago
What remedies do you have to recover goods shipped to a company in the weeks leading up to its bankruptcy?  As to those goods shipped 45 days prior to a debtor’s filing, Section 546(c) of the Bankruptcy Code provides a reclamation right to creditors to recover such goods.  This may provide you with the ability to recover your goods directly from the debtor. There are several requirements under Section 546(c).  The goods must have been sold in the “ordinary course” of the vendor’s business and the debtor must have received the goods while insolvent.  Also, the reclamation demand must be in writing and made within 45 days of the receipt of the goods by the customer (now the debtor in bankruptcy). If the 45-day period expires after the bankruptcy case is filed, the vendor must make the reclamation demand within 20 days after the bankruptcy filing.  As with pre-bankruptcy demands under the UCC, the demand should identify the goods being reclaimed, include a general statement reclaiming all goods received by the debtor from the vendor during the 45-day period, and demand that the goods be segregated. Often times, vendors will file a notice of reclamation with the bankruptcy court. Conclusion
5 years 1 month ago