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"It Ain't Over Till It's Over": Supreme Court Holds That Denial of Confirmation of a Plan is Not an Appealable Final Order

 
 

May 5, 2015

 
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  NEWS AND ANALYSIS

"IT AIN'T OVER TILL IT'S OVER": SUPREME COURT HOLDS THAT DENIAL OF CONFIRMATION OF A PLAN IS NOT AN APPEALABLE FINAL ORDER

by Prof. Charles J. Tabb
Mildred Van Voorhis Jones Chair in Law
University of Illinois College of Law

The U.S. Supreme Court unanimously decided yesterday in Bullard v. Blue Hills Bank, Case No. 14-116, that a bankruptcy court's order denying confirmation of a debtor's proposed chapter 13 plan is not a final order that the debtor can immediately appeal under 28 U.S.C. § 158(a)(1) and (d)(1). The Court resolved a split among the Courts of Appeals, adopting the majority view. Interestingly, the Court rejected the argument of the Solicitor General, who had joined the debtor in arguing that denial of plan confirmation should be treated as an appealable final order, just as confirmation of a plan is indisputably a final order. While the case involved a chapter 13 plan, the Court's reasoning should be equally applicable to denial of a chapter 11 plan. Furthermore, Bullard will be compelling authority to deny immediate appeal of other important rulings during a case denying requested relief, most notably perhaps requests for extensions of time, which the Court singled out as being non-final and therefore not appealable without leave of court. Read the full analysis.

To read the Supreme Court's ruling, please click here.

REPORT: MORTGAGE DELINQUENCY RATES DROP TO 10-YEAR LOWS

A new report from Black Knight Financial Services found that March featured the largest monthly decline in the mortgage delinquency rate in nine years, NationalMortgageNews.com reported yesterday. The report noted that the total U.S. loan delinquency rate was 4.7 percent in March, a month-to-month drop of 12.18 percent. All stages of delinquency experienced declines in March, with 30-day delinquencies falling to their lowest level in over a decade, according to the data. In another record, the rate of loans curing from 30 days delinquent to current status rose to 40.7 percent, which is the highest level since March 2005. Read more.

COMMENTARY: PENSION FUNDS CAN ONLY GUESS AT PRIVATE EQUITY'S COST

When it comes to secrecy, few industries do it better than private equity as rates of return and hidden costs are difficult to identify, even for investors, according to a New York Times commentary yesterday. While top-line fees associated with these funds are well known -- management typically charges investors 1 to 2 percent of assets and about 20 percent of portfolio gains -- many charges are hidden from view. These include transaction fees, legal costs, taxes, monitoring or oversight fees, and other expenses charged to the portfolio companies held in a fund. A recent report by CEM Benchmarking, a Toronto-based consulting firm specializing in pension fund performance analysis, estimated that more than half of private equity costs charged to U.S. pension funds were not being disclosed. CEM concluded that the difference between what funds reported as expenses and what they actually charged investors averaged at least two percentage points a year. For a $3 billion private equity portfolio, that would add up to $61 million. Read the full commentary.

CONSUMER LAWSUITS AND CFPB COMPLAINTS AGAINST DEBT COLLECTORS INCREASE IN MARCH

A new report by WebRecon found that lawsuits filed by consumers under the Fair Debt Collection Practices Act (FDCPA), Telephone Consumer Protection Act (TCPA) and Fair Credit Reporting Act (FCRA) all increased from February to March, ACA International reported yesterday. FDCPA lawsuits increased by 3.9 percent, or 892 to 927, from February to March and FCRA lawsuits increased 3.3 percent, or from 245 to 253, according to the report. TCPA lawsuits jumped 15.5 percent, from 187 to 216, in March. However, year-over-year TCPA data has declined. In March 2014, there were 238 TCPA cases while there were 216 in March this year, representing a 9.2 percent decline. Read more.

LATEST ABI PODCAST EXAMINES ISSUES SURROUNDING LITIGATION AND LIQUIDATION TRUSTS

The latest ABI podcast features former ABI Resident Scholar Prof. Anne Lawton speaking with three co-authors of one of ABI's newest titles, A Practitioner's Guide to Liquidation and Litigation Trusts. David Bart of McGladrey LLP (Chicago), Daniel Doyle of Lashly & Baer PC (Saint Louis) and Michael Reed of Pepper Hamilton LLP (Philadelphia) discuss the book and important issues pertaining to liquidation and litigation trusts in bankruptcy proceedings. Click here to listen.

For further insights and analysis of liquidation and litigation trusts, be sure to pick up a copy of A Practitioner's Guide to Liquidation and Litigation Trusts from the ABI Bookstore. The book includes a thumb drive containing more than 1,000 additional pages of sample documents from liquidation and litigation trust cases. (Log in to receive the ABI member price!)

THURSDAY: ABI'S BANKRUPTCY LITIGATION COMMITTEE CALL TO FOCUS ON "UNFINISHED BUSINESS" CLAIMS IN LAW FIRM BANKRUPTCIES

ABI members are invited to join the Bankruptcy Litigation Committee's conference call on May 7 at 4:00 pm (EDT) examining law firm bankruptcies. The topics of discussion will center on the "unfinished business" rule and potential claims against former partners of defunct law firms. Participants are encouraged to ask questions about the topics, and speakers will also discuss relevant research, concepts and analysis. Steven S. Flores, of Togut, Segal & Segal LLC in New York, will moderate the discussion. The call is free to ABI members and no registration is required. You may participate by using the following number: (712) 432-1500, #692933.

NEWEST ABI TITLE EXAMINES CREDIT-BIDDING IN BANKRUPTCY SALES!

Make sure to pre-order a copy of Credit-Bidding in Bankruptcy Sales: A Guide for Lenders, Creditors, and Distressed-Debt Investors, the newest title available for purchase in ABI's Bookstore. Although credit-bidding -- in which the secured creditor can credit-bid the amount of its allowed claim in any sale of its collateral by its debtor -- is acknowledged as being an important part of the secured creditor's bundle of rights, some argue that in certain circumstances credit-bidding can chill bidding or otherwise prevent the debtor from maximizing the value of its assets. Credit-Bidding in Bankruptcy Sales details how the courts have handled this debate, with reference to specific cases such as Fisker and Free-Lance Star, and also provides practitioners with the information that they need to know when reviewing credit agreements, debtor-in-possession financing orders and sale orders related to credit-bidding. The book also includes an in-depth analysis of how credit-bidding affects professional fees. Click here to purchase (make sure to log in to receive the discounted ABI member price).

DISCOUNTED SUBSCRIPTIONS TO AUDIO ABI JOURNAL AVAILABLE FROM MODIOLEGAL!

Subscribe now to our new streaming audio Journal, offered by ModioLegal. Narrated articles from each issue of the ABI Journal can now be accessed through your web browser -- on your computer, smartphone, or tablet -- for a low monthly fee. For a limited time, subscribe to this new service now for just $9.95 a month (regularly $12.95) with coupon code abi-early. Sign up for any audio Journal plan, and your first month is free! Go to http://www.modiolegal.com/subscribe to learn more, or send an email to accounts@modiolegal.com for a free demo.

NEW CASE SUMMARY ON VOLO: ELLIOTT V. WEIL (IN RE ELLIOTT; 9TH CIR.)

Summarized by Joel Newell of Lane & Nach, P.C.

The Ninth Circuit Bankruptcy Appellate Panel vacated the bankruptcy court's summary judgment decision to revoke the debtor's discharge. Sect. 727(e) is a non-waivable statute of repose, and its time limits are not subject to tolling. Therefore, the bankruptcy court lacked jurisdiction since the commencement of the adversary pursuant to Sect. 727(d) was more than 1 year after the entry of the debtor's discharge. The BAP vacated and remanded the bankruptcy court's judgment to turnover the real property. In a separate appeal, the BAP remanded the bankruptcy court's order denying the debtor's asserted homestead exemption; therefore, further proceedings related to the turnover are necessary to determine whether the real property is sufficiently consequential.

There are more than 1,700 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: FURTHER EXAMINATION OF THE SUPREME COURT'S RULING IN BULLARD

A recent blog post takes an in-depth look at the Supreme Court's ruling yesterday in Bullard v. Blue Hills Bank. The Court unanimously ruled that an order denying confirmation but not dismissing a bankruptcy case is not a "final" order that the debtor can immediately appeal.

To read more on this blog and all others on the ABI Blog Exchange, please click here.

INSOL INTERNATIONAL

INSOL International is a worldwide federation of national associations for accountants and lawyers who specialize in turnaround and insolvency. There are currently 43 member associations worldwide with more than 9,000 professionals participating as members of INSOL International. As a member association of INSOL, ABI's members receive a discounted subscription rate. See ABI's enrollment page for details.

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THURSDAY:

9th Annual Credit and Bankruptcy Symposium
May 7-8, 2015
Register Today!

UPCOMING EVENTS:

17th Annual New York City Bankruptcy Conference
May 14, 2015
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ABI/St. John's Forty-Hour Bankruptcy Mediation Training
May 17-21, 2015
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14th Annual Litigation Skills Symposium
May 19-22, 2015
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5th Annual Memphis Consumer Bankruptcy Conference
June 5, 2015
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22nd Annual Central States Bankruptcy Workshop
June 11-14, 2015
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Early Bird Rate Goes Up Tomorrow!

Cross-Border Insolvency Symposium
June 18, 2015
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22nd Annual Northeast Bankruptcy Conference
July 9-12, 2015
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10th Annual Northeast Consumer Forum
July 9-11, 2015
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Beijing Insolvency & Restructuring Symposium
July 13-14, 2015
Register Today!

20th Annual Southeast Bankruptcy Workshop
July 23-26, 2015
Register Today!

11th Annual Mid-Atlantic Bankruptcy Workshop
Aug. 6-8, 2015
Register Today!

23rd Annual Southwest Bankruptcy Conference
Sept. 10-12, 2015
Register Today!

 
   
  CALENDAR OF EVENTS
 

2015

May
- Credit and Bankruptcy Symposium
May 7-8, 2015 | Uncasville, Conn.
- New York City Bankruptcy Conference
May 14, 2015 | New York, N.Y.
- Forty-Hour Bankruptcy Mediation Training
May 17-21, 2015 | New York, N.Y.
- Litigation Skills Symposium
May 19-22, 2015 | Chicago, Ill.

June
- Memphis Consumer Bankruptcy Conference
June 5, 2015 | Memphis, Tenn.
- Central States Bankruptcy Workshop
June 11-14, 2015 | Traverse City, Mich.
- Cross-Border Insolvency Program
June 18, 2015 | New York

 

 


July
- Northeast Bankruptcy Conference
July 9-12, 2015 | North Falmouth, Mass.
- Northeast Consumer Bankruptcy Forum
July 9-11, 2015 | North Falmouth, Mass.
- Beijing Insolvency & Restructuring Symposium
July 13-14, 2015 | Beijing, China
- Southeast Bankruptcy Workshop
July 23-26, 2015 | Amelia Island, Fla.

August
- Mid-Atlantic Bankruptcy Workshop
Aug. 6-8, 2015 | Hershey, Pa.

September
- Southwest Bankruptcy Conference
Sept. 10-12, 2015 | Las Vegas, Nev.

 

 
 
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