Finance and Banking

FORECLOSURES GROW AGAIN AS FUNDING FOR HELP WANES

With millions of homes still in the foreclosure pipeline, mortgage counselors across the country say they are handling increasingly complex cases for homeowners who are unemployed, underwater or redefaulting -- and sometimes, all three, Bloomberg News reported today. Even as borrowers’ problems become more intractable, federal support is waning. Counseling programs are funded largely through the U.S. Department of Housing and Urban Development, which has allocated about $620 million to advise approximately 1.36 million homeowners since December 2007, according to a NeighborWorks America June 11 report to Congress. Last November, Congress appropriated $45 million for housing counseling in fiscal year 2012 after slashing all counseling funding during April budget negotiations. HUD had requested $88 million. The House passed a 2013 HUD appropriations bill in June allocating $45 million to housing counseling, $10 million less than HUD requested. The bill is now stalled in the Senate, and the White House has said President Barack Obama plans to veto the bill if passed in its current form. Administration officials are urging states to compensate for declining funds with money from a recent court settlement with mortgage servicers. Counselors, who act as neutral third parties between homeowners and lenders, say their services will be needed as long as unemployment remains high, scammers target struggling homeowners and states change their foreclosure policies, as happens frequently. Read more.

LAWSUIT COULD UNDO SALE THAT CREATED NEW GM, COMPANY SAYS

The new General Motors Co. could be undone by a $3 billion lawsuit that pits general creditors against hedge funds including Appaloosa Management LP, Elliott Management Corp. and Fortress Investment Group LLC, Bloomberg News reported today. A trust for creditors of the old, bankrupt part of the automaker now known as Motors Liquidation Co. sued the hedge funds in bankruptcy court in March, alleging that while GM was preparing its bankruptcy filing on June 1, 2009, the funds, which held notes in a Canadian unit of GM, "saw an eleventh-hour opportunity for profit and pounced." The trust seeks to have a $2.67 billion claim and a $367 million payment negotiated for holders of notes in GM's Nova Scotia unit disallowed or reduced, saying that the hedge funds seek more than three times what General Motors actually owed them. General Motors, the currently operating automaker that split off from the bankrupt unit through a purchase of its assets July 10, said that the trust's objections "threaten to disturb" the sale that saved the U.S. automaker, allowing it to prosper. Read more.

FEDERAL RESERVE SAYS U.S. BANK LENDING CONDITIONS EASING

The Federal Reserve said yesterday that banks continued to ease lending standards for larger firms in the last three months but that small businesses are still having a hard time accessing credit, Reuters reported today. The results from the central bank's quarterly senior loan officer survey suggest that the ability of firms to borrow has continued to improve despite recent signs of weakness in the economic recovery. A number of banks eased loan standards on auto and credit card loans, the Fed said. Strong demand for prime mortgage loans offered further evidence that a nascent housing rebound is finally beginning to take hold, according to the survey. U.S. banks are benefiting from new business due to a decrease in lending from European institutions, the survey found. Read more.

FEARING AN IMPASSE IN CONGRESS, INDUSTRY CUTS SPENDING

A rising number of manufacturers are canceling new investments and putting off new hires because they fear that paralysis in Washington, D.C., will force hundreds of billions in tax increases and budget cuts in January, undermining economic growth in the coming months, the New York Times reported on Sunday. Democrats and Republicans in Congress are far apart on how to extend the Bush-era tax breaks beyond January — the same month automatic spending reductions are set to take effect — unless there is a deal to trim the deficit. The combination of tax increases and spending cuts is creating an economic threat that Federal Reserve Chairman Ben S. Bernanke calls "the fiscal cliff." The worries come amid broader fears that the economy is losing momentum; the annual rate of economic growth in the second quarter fell to 1.5 percent from 2 percent in the first quarter, and 4.1 percent in the last quarter of 2011. On Thursday, the Commerce Department reported that factory orders unexpectedly fell 0.5 percent in June from the previous month, while data on the labor market released on Friday showed job creation still falling short of the level needed to bring down the unemployment rate. Read more.

STATE REGULATORS URGE CONGRESS TO EXTEND DEPOSIT INSURANCE

State regulators on Friday sent a letter to Congress urging for the extension of a special program that provides government insurance on bank accounts known as the Transaction Account Guarantee (TAG), the Wall Street Journal reported on Saturday. It is clear that "the stability provided by the TAG program is still necessary," wrote John Ryan, president of the Conference of State Bank Supervisors. The guarantee program insures all bank deposits above the traditional $250,000 limit for guaranteed deposits provided by the Federal Deposit Insurance Corp. The result is a sense of safety for companies and municipalities that want to deposit large sums of cash at banks for use in managing payroll, for instance. The program covers more than a trillion dollars worth of zero-interest deposits at large and small banks. The program was created in 2008 in the midst of market chaos stemming from the financial crisis. Four years later, the program faces a Dec. 31 expiration date, absent congressional action. Read more. (Subscription required.)

SMALL BANKS CRITICIZE PROPOSED BANK CAPITAL RULES

Executives at many small banks complain that the forthcoming bank capital rules proposed by the OCC, Federal Reserve and Federal Deposit Insurance Corp. to implement an international agreement known as Basel III could force the banks to cut back on loans to small businesses or homeowners, the Wall Street Journal reported today. The current economic malaise has heightened concern about the health of smaller lenders. Smaller banks say they are a bigger driver of growth in their communities—particularly for small businesses—than their bigger, multinational rivals. Lenders with less than $1 billion in assets made up about 10 percent of industry assets as of the first quarter but made 37 percent of small loans to businesses and farms, according to research by the FDIC, which has launched an initiative to better understand the challenges facing community banks. At a vote to send the draft rules out for comment, Federal Reserve governor Elizabeth Duke raised concerns that new treatment of mortgages and other assets under the new capital rules could hamper legitimate lending by smaller lenders. Small lenders say that the elaborate Basel III system was designed to rein in the large, internationally active banks that brought the financial system to its knees, not small community institutions. Read more. (Subscription required.)

LATEST ABI PUBLICATION EXPLORES OIL AND GAS BANKRUPTCIES

The U.S. oil and gas industry is especially vulnerable to the effects of myriad internal and external factors, ranging from global credit markets to domestic and foreign geopolitical events, and from technological developments and limitations to population growth and even the weather. These factors have contributed to a dramatic increase in restructurings and bankruptcy filings over the last decade. Bankruptcy cases involving exploration and production companies raise unique issues, resulting from the interplay among the Bankruptcy Code, federal and state laws, the regulatory structure governing the energy industry, and the political and practical realities of the industry’s significance. When Gushers Go Dry: The Essentials of Oil and Gas Bankruptcy provides a better understanding of what happens when an oil, gas or other natural resources company goes bankrupt. For more information about ordering the book, please visit the ABI Bookstore.

ABI IN-DEPTH

ABI MEMBERS WELCOME TO ATTEND ABC'S FREE HALF-DAY "BANKRUPTCY: BACK TO THE FUTURE" PROGRAM IN SEPTEMBER

The American College of Bankruptcy invites you to attend a free half-day program on Sept. 28 at the IIT Chicago-Kent College of Law for a discussion of many of the challenging topics facing current bankruptcy and reorganization professionals. Topics to be addressed include recent decisions of the U.S. Supreme Court and Court of Appeals, important work of the Advisory Committee on Bankruptcy Rules, and developments in the field of bankruptcy ethics. The speakers for the program are among the nation’s leading judges, academics and bankruptcy professionals. While there is no cost to attend, seating is limited, so early reservation is suggested. For more information and to register, please click here.

LATEST CASE SUMMARY ON VOLO: TERRY V. STANDARD INSURANCE CO. (IN RE TERRY; 8TH CIR.)

Summarized by Sarah Smegal of Bartlett Hackett Feinberg P.C.

The Eighth Circuit BAP reversed the bankruptcy court and remanded the case for a determination of whether the equities favored allowing the creditor to recoup the debtor's pre-petition overpayment of disability insurance benefits from post-petition benefits. Reviewing the bankruptcy court's decision de novo, the BAP held that the debtor's debt to Standard was revived when Standard turned over the $45,316.54 to the trustee in response to the preference demand letter. Standard's right to reimbursement was a claim entitled to be paid as a general unsecured claim as allowed under Section 502(h). Standard did not file a proof of claim, so its claim was not allowed and it was not entitled to any distribution in the case. Its claim was also discharged under Section 727(b). The BAP found that although the debt was discharged and Standard could not collect the overpayment affirmatively, Standard's equitable defense of recoupment survived and could be exercised under the policy. For recoupment to apply, the creditor must have a claim against the debtor that arose from the same transaction as the debtor's claim against the creditor. The BAP ruled that both parties' rights and obligations arose out of a single contract, i.e. the long-term disability insurance policy. Recoupment is only allowed where it would be inequitable for the debtor to enjoy the benefits of the transaction without also meeting his obligations, and is also narrowly construed in bankruptcy. Accordingly, as the equities must be weighed and the question was not reached by the bankruptcy court, the BAP remanded the case.

Nearly 600 appellate opinions are summarized on Volo typically 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: THIRD CIRCUIT REVISITS EQUITABLE MOOTNESS IN PHILADELPHIA NEWSPAPERS CASE

The Bankruptcy Blog Exchange is a free ABI service that tracks 35 bankruptcy-related blogs. A recent post examined how the U.S. Court of Appeals for the Third Circuit recently held in In re Philadelphia Newspapers LLC, No. 11-3257 (3d Cir. July 26, 2012) that an appeal cannot be dismissed as equitably moot solely on the basis that a chapter 11 plan has been substantially consummated.

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
The Twombly/Iqbal rule for pleading ‘plausible’ claims has been applied too stringently in dismissing avoidance actions for failure to state a claim.

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September
- Complex Financial Restructuring Program
     September 13-14, 2012 | Las Vegas, Nev.
- Southwest Bankruptcy Conference
     September 13-15, 2012 | Las Vegas, Nev.
- 38th Annual Lawrence P. King and Charles Seligson Workshop on Bankruptcy & Business Reorganization
     September 19-20, 2012 | New York, N.Y.
- American College of Bankruptcy's "Bankruptcy: Back to the Future" Program
     September 28, 2012 | Chicago, Ill.

October
- Nuts & Bolts for Young and New Practitioners - KC
     October 4, 2012 | Kansas City, Mo.
- Midwestern Bankruptcy Institute Program, Midwestern Consumer Forum
     October 5, 2012 | Kansas City, Mo.

- Bankruptcy 2012: Views from the Bench
     October 5, 2012 | Washington, D.C.
- Chicago Consumer Bankruptcy Conference
     October 8, 2012 | Chicago, Ill.
- International Insolvency and Restructuring Symposium
     October 18, 2012 | Rome, Italy

November
- U.S./Mexico Restructuring Symposium
     November 7, 2012 | Mexico City, Mexico
- Detroit Consumer Bankruptcy Conference
     November 12, 2012 | Detroit, Mich.