ANALYSIS: FIRMS IN CHAPTER 11 FACE FAST TRIP TO AUCTION BLOCK
More companies that wind up in bankruptcy court are facing a stark demand from their banks: Sell yourself now, the Wall Street Journal reported yesterday. Digital Domain Media Group Inc., a special-effects company founded by director James Cameron to work on "Titanic" and other films, filed for chapter 11 protection in September; its lenders gave it a window of just 12 days to find a buyer or risk losing its bankruptcy financing. Lenders gave RG Steel LLC less than two months to sell its steel plants, and ATP Oil & Gas Corp. is scrambling to find a buyer to avoid defaulting on its bankruptcy loan. Most companies that file for bankruptcy these days have debts that far exceed their assets, according to experts. That means they probably won't be able to pay off their lenders in full, let alone more-junior creditors like suppliers, no matter how long they stay in bankruptcy proceedings. As a result, banks and other lenders, who often are owed millions of dollars and get claims on any sale proceeds, are using their clout to press for a speedy sale. Read more. (Subscription required.)
COMMENTARY: U.S. SHOULD NOT HAND OVER BATTERY TECHNOLOGY TO CHINA
Unless the U.S. government acts quickly, over a decade’s worth of advanced American technology is about to be handed to the Chinese at a creditors' sale in the A123 bankruptcy case, according to a commentary by former Congressman Ike Skelton and Duncan Hunter in yesterday's U.S. News and World Report. Under the decision of a federal bankruptcy judge, the company whose patents comprise the cutting edge of this technology, A123 Systems Inc., will soon become the property of China's Wanxiang Group, a leading Chinese manufacturer, for the relative bargain price of $250 million. Like all sales of critical technology to foreign entities, the bankruptcy court's auction is subject to approval by a powerful but obscure federal interagency panel known as the Committee on Foreign Investment in the United States. Wangxiang has sought to win approval of the deal by agreeing to split off A123 Systems' existing military contracts to an American corporation. The trade secrets and patents that would be controlled by the Wanxiang Group, according to the commentary, resulted from a decade of trial and error by some of America's scientists, with much of the work funded by U.S. taxpayers. Read more.
RECOVERY IN U.S. SAVING 8 MILLION UNDERWATER HOMEOWNERS
As housing prices have recovered, the number of underwater borrowers fell by almost 4 million last year to 7 million, according to JPMorgan Chase & Co. (JPM), and that number could drop to 4 million within 2 years, Bloomberg News reported today. The housing market is rebounding faster than anyone thought possible, according to Blackstone Group LP's global head of real estate Jonathan Gray, as the Federal Reserve buys mortgage bonds to keep rates near record lows and investors sop up a diminishing supply of properties for sale. JPMorgan analysts led by John Sim estimate that the price growth last year was responsible for a drop of almost 4 million in underwater borrowers. The number of homeowners that owe more on their mortgages than their properties are worth may fall to 4 million by the end of 2015, according to Sim. Foreclosure starts dropped 28 percent in November from a year earlier, data provider Lender Processing Services Inc. wrote in a report this week. Read more.
401(k) BREACHES UNDERMINING RETIREMENT SECURITY FOR MILLIONS
A large and growing share of American workers are tapping their retirement savings accounts for non-retirement needs, raising broad questions about the effectiveness of one of the most important savings vehicles for old age, the Washington Post reported today. More than one in four American workers with 401(k) and other retirement savings accounts uses them to pay current expenses, new data show. The withdrawals, cash-outs and loans drain nearly a quarter of the $293 billion that workers and employers deposit into the accounts each year, undermining already-shaky retirement security for millions of Americans. Fresh data from Vanguard, one of the nation’s largest 401(k) managers, show a 12 percent increase in the number of workers who took loans against their retirement accounts or withdrew money outright since 2008. Overall, about a third of American households participate in 401(k)-type accounts, which hold a combined $3.5 trillion in assets. But a large portion of that money does not make it to retirement. A recent study by Boston College’s Center for Retirement Research found that the typical household approaching retirement age has an average of $120,000 in retirement savings, enough for roughly a $7,000-a-year annuity. Read more.
REPORT: RANKS OF WORKING POOR INCREASING
A new report released today by the Working Poor Families Project found that nearly a third of the nation’s working families earn salaries so low that they struggle to pay for their necessities, the Washington Post reported today. Analyzing 2011 data from the Census Bureau’s American Community Survey, the report said that 32 percent of working families earned salaries that put them below double the poverty threshold, which was $45,622 for a family of four. That percentage has crept up from 28 percent in 2007, the year the recession began. And 37 percent of the nation’s children — 23.5 million — were part of working poor families in 2011, the report said, up from 33 percent in 2007. Read more.
E-FILING AND THE EXPLOSION IN TAX-RETURN FRAUD
Tax-identity theft exploded to more than 1.1 million cases in 2011 from 51,700 in 2008, the Wall Street Journal reported today. The Treasury Inspector General for Tax Administration last summer reported discovering an additional 1.5 million potentially fraudulent 2011 tax refunds totaling in excess of $5.2 billion. One possible source of identity theft is due to American taxpayers, urged on by the IRS, filing their income-tax returns electronically and arranging for refunds to be directly deposited into bank accounts. E-filing is appealing because it provides an electronic postmark confirmation that the return was filed on time. When it is combined with direct deposit, a refund can arrive in as little as seven days. In 2012, 80 percent of individual returns were e-filed, fulfilling an initial goal Congress set in 1998. The result is an automated system in which the labor burden is transferred to the taxpayer. Tax return fraud can come in the form of tax-identity theft, refund fraud, or return-preparer fraud and is difficult to prosecute. With e-filing, evidence of fraud is difficult to find. There are no signed tax forms, envelopes or fingerprints, and e-filing promises quick refunds. Read more. (Subscription required.)
TAKE AN IN-DEPTH LOOK AT CREDITORS' COMMITTEES AND THE ROLE OF THE INDENTURE TRUSTEES AT ABI'S 31ST ANNUAL SPRING MEETING
The 2013 Annual Spring Meeting, to be held April 18-21, 2013, at the Gaylord National Resort and Convention Center in National Harbor, Md., features a roster of the best national speakers, while the depth and scope of topics offer something for everyone. Specifically, four concurrent workshops will cover various “tracks,” including programs for attorneys in commercial cases, a track for restructuring professionals, a track of professional development programming and a track dealing solely with consumer issues. More than 16 hours of CLE/CPE is offered in some states, along with ethics credit totaling 3 hours, making the cost only about $50 per credit. In addition, committee sessions will drill down on other topics to provide you with the most practical and varied CLE/CPE experience ever. Sessions include:
• 17th Annual Great Debates
• Mediation: An Irrational Approach to a Rational Result
• Current Issues for Financial Advisors in Bankruptcy Cases
• The Individual Conundrum: Chapter 7, 11 or 13?
• The Power to Veto Bankruptcy Sales
• Real Estate Issues in Health Care Restructurings
• Law Firm Bankruptcies
• How to Be a Successful Expert
• The Ethical Compass: Multiple Ethical Schemes Applicable to Financial Advisors
• Chapter 9s, Nonprofits and Other Nontraditional Restructuring Processes
• And much more!
The Spring Meeting will also feature a field hearing of the ABI Commission to Study the Reform of Chapter 11, a report from the ABI Ethics Task Force, a luncheon panel discussion moderated by Bill Rochelle of Bloomberg News, and a Final Night Gala Dinner featuring a concert by Joan Jett and the Blackhearts!
ABI LIVE WEBINAR: REVISITING RADLAX AND HALL – NEW LEGAL AND PRACTICAL IMPACT OF THE DECISIONS
See why this was the top-rated panel at the ABI Winter Leadership Conference last month! Join the expert panel on Feb. 19 from 12:00-1:15pm EST as the summarize and discuss the legal impact and practical implications of the Supreme Court’s 2012 decisions in Radlax and Hall. Participants include:
• Susan M. Freeman of Lewis and Roca LLP (Phoenix)
• Adam A. Lewis of Morrison & Foerster LLP (San Francisco)
• Prof. Charles J. Tabb of the University of Illinois College of Law (Champaign, Ill.)
LATEST CASE SUMMARY ON VOLO: GLAZER V. CHASE HOME FINANCE LLC (6TH CIR.)
Summarized by Michael Coury of Butler Snow O'Mara Stevens, & Cannada PLLCs
The Sixth Circuit affirmed the trial court's finding that the mortgage servicer was not a debt collector under the Fair Debt Collection Practices Act and that a subservicer who attempts to collect debts owed to another [from a debtor] that was not in default at the time it was obtained by the servicer is exempt from the definition of "debt collector" under 28 U.S.C. Sec. 1692a(6). The Court also affirmed the trial court's denial of plaintiff's motion to amend as untimely where it was filed four months after discovery of new evidence and after the magistrate had already recommended dismissal of the claim against the subservicer.
There are more than 700 appellate opinions summarized on Volo, and summaries typically appear within 24 hours of the ruling. Click here regularly to view the latest case summaries on ABI’s Volo website.
NEW ON ABI’S BANKRUPTCY BLOG EXCHANGE: PARALLELS BETWEEN THE SUBPRIME MORTGAGE LOAN AND STUDENT LOAN CRISES
The Bankruptcy Blog Exchange is a free ABI service that tracks 35 bankruptcy-related blogs. A new post examines similarities between the subprime mortgage loan crisis that caused the 2008 financial downturn and the current student loan crisis.
Be sure to check the site several times each day; any time a contributing blog posts a new story, a link to the story will appear on the top. If you have a blog that deals with bankruptcy, or know of a good blog that should be part of the Bankruptcy Exchange, please contact the ABI Web team.
ABI Quick Poll
After Stern, bankruptcy courts do not have the constitutional authority to enter final judgments on fraudulent conveyance claims.
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