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Commentary Why Has Congress Left Housing to Fannie Mae and Freddie Mac

ABI Bankruptcy Brief | March 7 2013
 
  

March 7, 2013

 
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HOUSING COMMENTARY #1: WHY HAS CONGRESS LEFT HOUSING TO FANNIE MAE AND FREDDIE MAC?

Fannie Mae and Freddie Mac, along with their regulator, are doing more to dismantle themselves than Congress can be bothered to do, according to a commentary in the Washington Post Tuesday. On Monday, their regulator, Ed DeMarco of the Federal Housing Finance Agency, said that a new company will be formed that will do much of the back-office work of both firms, setting the stage for whatever Congress decides to do next to overhaul the mortgage sector. The two government-sponsored mortgage finance companies are nearing the five-year anniversary of when the feds took them over, a bailout that has cost taxpayers $131 billion so far. They have been vilified, particularly by conservatives, as representing the worst of crony capitalism (fairly) and as being major drivers of the financial crisis (unfairly). For many Republicans, their stated objection to the Dodd-Frank financial reform act was that it didn't do anything to reform Fannie and Freddie. No legislation to overhaul the nation's mortgage finance has passed either the Republican-led House or the Democratic-led Senate. The White House unveiled a plan for what to do—more than two years ago—that was less a plan than a menu of options from which Congress might choose in sculpting its own approach to reforming the government-sponsored enterprises, or GSEs. So what is going on here? How is this an area where seemingly everybody agrees there needs to be an overhaul, yet no actual legislative action has taken place? The answer boils down to this: Too many people benefit from the current system, and too many people have something to lose in any overhaul, according to the commentary. But something will have to change in order to give the U.S. a system of housing finance that doesn't leave taxpayers on the hook for everyone who wants a place to live. Click here to read the full commentary.

HOUSING COMMENTARY #2: HOW TO REPEAT THE MORTGAGE MESS

In September 2008, amid the financial panic and collapse of the housing market, the federal government bailed out and took control of Fannie Mae and Freddie Mac—two government-sponsored enterprises that dominated the mortgage market. After four years and $180 billion of taxpayer funds to keep them afloat, they are beginning to make profits from their near monopoly. This week, the head of the federal agency that supervises Fannie and Freddie, Edward DeMarco, outlined a sensible plan that would prepare the companies—which remain the dominant players in housing finance—for either full privatization or government ownership. These are the obvious alternatives, but there is a third idea in the mix, one that is as seductive as it is dangerous: a private system with an explicit government mechanism for future bailouts when they prove necessary, according to a commentary in the Wall Street Journal yesterday. The rationale? If there's a problem in housing finance, the government will inevitably step in as it did in 2008. So why not create a government insurance program now, compensating taxpayers for the burdens they will have to shoulder eventually anyway? This argument has been advanced many times since Fannie and Freddie went under, most recently by the Bipartisan Policy Center, a Washington think tank. A system for private housing finance with a government insurance backstop may sound reasonable, even sophisticated. But it is seriously flawed. At the end of this road is bailout nation: a government insurance backstop for every industry. Also, taxpayers never get compensated from insurance funds, and federal insurance encourages careless behavior by those who know that if things go bad, someone will be there with a bailout. Once a fund of any size is created to back a particular industry, the arguments against a bailout virtually disappear. The reality is that sufficient funds are not going to be there. The only way to ensure a stable mortgage market is to get the government out, and keep it out. Click here to read the full commentary (subscription required).

ANALYSIS: STUDENT DEBT IS A DRAG ON ECONOMIC RECOVERY

Roughly 39 million Americans have a total of $966 billion in educational debt—a sum that has tripled since 2004, the Federal Reserve Bank of New York finds, according to an analysis in the Financial Times Tuesday. It was the only type of borrowing that expanded through the Great Recession, and in 2010 it jumped ahead of car loans, credit card debt and home equity credit to become the largest source of indebtedness behind mortgages. Faced with tighter scrutiny from banks and their own cautious behavior about running up balances, this new generation of borrowers has cut back on spending. They keep their credit cards in their wallets, put off purchasing houses and cars, and delay starting savings accounts for their own children's education. Experts warn that this trend raises the possibility that the explosion in student debt will sap economic growth in the U.S., where consumer spending accounts for around 70 percent of gross domestic product. "Consumers with large student debt burdens may spend less and are more likely to have difficulty securing a mortgage," the U.S. Treasury's Office of Financial Research said in its 2012 annual report. "These factors could significantly depress demand for mortgage credit and dampen consumption." Those fears have been supported by recent studies, such as a Pew Research Center report last month showing that young adults are less likely to own homes, cars and other "big-ticket consumer durables," such as refrigerators and washing machines, than their peers were in 2001. Simply put, more people are paying more money for school. Click here to read the full analysis (subscription required).

HOMEOWNERS ARE INCREASINGLY TURNING TO SHORT SALES OVER FORECLOSURES

The number of American homes that end up in foreclosure has started to decline, a welcome development that partly reflects an improving housing market. But a look at data that tracks distressed home sales reveals another reason why foreclosures are becoming less prevalent: More homeowners are turning to so-called short sales—where they sell their homes for less than what they owe in mortgage debt and the bank typically eats the difference, the Wall Street Journal reported Tuesday. In the past, short sales were rare. Now they are becoming increasingly common in part because lenders, homeowners and real estate agents have become more experienced at marketing and pricing the properties, and because short sales are considered a more efficient way than foreclosure to sell underwater properties. The shift is helping the housing market pare the backlog of distressed mortgages while cutting the amount of time that vacant homes sit empty. That in turn has helped keep home prices firm at a time when the real estate industry is still recovering from its multiyear slump. Foreclosures accounted for 11.5 percent of total home sales in October, down from 17.3 percent in October 2011 and close to 30 percent during the depths of the recession, according to CoreLogic, a real estate research firm that tracks foreclosure and home-sales data. Over the same period, short sales have climbed to 10.4 percent from 8.1 percent. From an economic perspective, short sales leave everyone better off: Banks and investors see narrower losses, homeowners incur less damage to their credit, and neighboring homes are less likely to be dragged down in value because of the typically higher sale prices and reduced vacancy times. But despite the progress being made in the housing market in general, there are still millions of homeowners who are in some form of pre-foreclosure distress—a "shadow inventory" that could hit the market and spell trouble for the housing recovery. Click here to read the full article (subscription required).

U.S. HOUSEHOLD WEALTH AT HIGHEST LEVEL SINCE LATE '07

The net worth of U.S. families rose by $1.17 trillion at the end of 2012 to the highest level since late 2007, as rising home values and gains in stock holdings boosted household balance sheets, the Wall Street Journal reported today. The net worth of U.S. households—the value of homes, stocks and other investments minus debts and other liabilities—rose 1.8 percent to $66.07 trillion from October through December, the highest level since the fourth quarter of 2007, according to a Federal Reserve report released Thursday. The recession began in December 2007 and ended in June 2009. Household net worth was up 9 percent at the end of 2012 compared with the fourth quarter of 2011, the latest sign that Americans are repairing their balance sheets in the wake of the financial crisis. Stocks have recovered from their sluggish performance in the fourth quarter. Americans also have much more equity in their homes. A measure of owners' equity in household real estate as a percentage of household real estate hit 46.6 percent, the highest since the first quarter of 2008. The Fed report also showed that household debt grew at an annual rate of 2.4 percent in the fourth quarter after contracting in the third quarter. Click here to read the full article (subscription required).

DON’T MISS THE ABI LIVE WEBINAR ON APRIL 5 - "LEGACY LIABILITIES: DEALING WITH ENVIRONMENTAL, PENSION, UNION AND SIMILAR TYPES OF CLAIMS"

A panel of experts has been assembled for a webinar on April 5 from 1-2:15 p.m. ET to discuss environmental and pension liabilities, the statutory schemes under which these liabilities arise and the key players involved. Are non-monetary environmental claims dischargeable? Do post-petition expenditures for environmental cleanup constitute administrative expenses? When can an employer terminate a pension plan in bankruptcy, what is the process and what are the consequences? Learn the answer to these questions and more from the comfort of your own office. Special ABI member rate is available! Register here as this webinar is sure to sell out.

ABI'S ANNUAL SPRING MEETING: CONSUMER PROGRAMMING WITH CROSS-OVER APPEAL

With four session tracks looking at issues geared toward chapter 11 restructurings, financial advisors, professional development and consumer bankruptcy, a number of sessions at ABI's Annual Spring Meeting have cross-over appeal for both consumer and business practitioners. Sessions include:

The Appellate Process: This distinguished panel will explore recent issues in appellate practice that are of interest to both consumer and business practitioners, including the ability to bypass intermediary appellate courts and take appeals directly to the circuit courts.

Consumer Class Actions: This panel will explore the potential benefits and pitfalls of class actions by debtors/trustees against creditors in chapter 13 cases, which are highlighted by two recent decisions of the Fifth Circuit. Many of the issues discussed during this panel will be useful in business cases as well.

The Individual Conundrum - Chapter 7, 11 or 13?: Deciding on the appropriate chapter for a high net worth individual contemplating a bankruptcy filing can be a daunting task. This panel will explore the considerations that guide the practitioner in advising individual clients in making this decision.

To register for the Annual Spring Meeting and to see the full schedule of program tracks and events, please click here.

ABI IN-DEPTH

MARK YOUR CALENDARS FOR APRIL 10 TO TAKE PART IN ABI’S LIVE WEBINAR "STUDENT LOANS: BANKRUPTCY MAY NOT HAVE THE ANSWERS – BUT DOES CONGRESS?"

Do not miss the "Student Loans: Bankruptcy May Not Have the Answers - But Does Congress?" webinar presented by ABI's Consumer Bankruptcy Committee on April 10 from noon-1:15 ET. ABI's panel of experts will provide an overview of the student loan industry, examine the numbers behind and causes of student loan debt, and discuss federal loan programs as well as federal consolidation and forgiveness programs. Faculty on the webinar includes:

  • Prof. Daniel A. Austin of Northeastern University School of Law (Boston)

  • Edward "Ted" M. King of Frost Brown Todd LLC (Louisville, Ky.)

  • Craig Zimmerman of the Law Offices of Craig Zimmerman (Santa Ana, Calif.)

CLE credit will be available for the webinar. This webinar is sure to sell out; register now for the special ABI member rate of $75!

NEW BANKRUPTCY PROFESSIONALS: DON'T MISS THE NUTS AND BOLTS PROGRAM AT ABI'S ANNUAL SPRING MEETING! SPECIAL PRICING IF YOU ARE AN ASM REGISTRANT!

An outstanding faculty of judges and practitioners explains the fundamentals of bankruptcy in a one-day Nuts and Bolts program on April 18 being held in conjunction with ABI's Annual Spring Meeting. Ideal training for junior professionals or those new to this practice area!

The morning session covers concepts all bankruptcy practitioners need to know, and the afternoon session splits into concurrent tracks, focusing on consumer and business issues. The session will include written materials, practice tip sessions with bankruptcy judges, continental breakfast and a reception after the program. Click here to register!

LATEST CASE SUMMARY ON VOLO: IN RE ALABAMA AIRCRAFT INDUSTRIES INC. (3D CIR.)

Summarized by John Eggum of Foran Glennon Palandech Ponzi & Rudloff

A transfer of a cause of action to a litigation trust, in accordance with the terms of an asset purchase agreement, can be insulated from attack on appeal pursuant to § 363(m). In this case, the Third Circuit found that invalidating the transfer of the cause of action would invalidate the related sale, since the value of the assets sold would be altered if the cause of action was not transferred in accordance with the terms of the applicable asset purchase agreement. Accordingly, the Third Circuit dismissed the appeal as moot.

There are more than 750 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: WHEN CAN AUTOMATIC STAY BE EXTENDED TO NONDEBTOR THIRD PARTY?

The Bankruptcy Blog Exchange is a free ABI service that tracks 35 bankruptcy-related blogs. A recent post discusses whether the automatic stay can be extended to protect nondebtor third parties by examining the case of In re Brier Creek Corp. Center Assocs. LP (Bankr. E.D.N.C.).

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

As a result of the RadLAX decision, the right to credit-bid will likely chill bidding at auctions, as potential purchasers may be dissuaded from participating in the bidding process.

Click here to vote on this week's Quick Poll. Click here to view the results of previous Quick Polls.

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  CALENDAR OF EVENTS
 

2013

March
- Bankruptcy Battleground West
     March 22, 2013 | Los Angeles, Calif.

April
- ABI Live Webinar: "Legacy Liabilities : Dealing with Environmental, Pension, Union and Similar Types of Claims"
     April 5, 2013
- ABI Live Webinar: "Student Loans: Bankruptcy May Not Have the Answers - But Does Congress?"
     April 10, 2013
- "Nuts and Bolts" Program at ASM
     April 18, 2013 | National Harbor, Md.
- Annual Spring Meeting
     April 18-21, 2013 | National Harbor, Md.


  

 

May
- "Nuts and Bolts" Program at NYCBC
     May 15, 2013 | New York, N.Y.
- ABI Endowment Cocktail Reception
     May 15, 2013 | New York, N.Y.
- New York City Bankruptcy Conference
     May 16, 2013 | New York, N.Y.
- Litigation Skills Symposium
     May 21-24, 2013 | Dallas, Texas

June
- Memphis Consumer Bankruptcy Conference
     June 7, 2013 | Memphis, Tenn.
- Central States Bankruptcy Workshop
     June 13-16, 2013 | Grand Traverse, Mich.


 
 
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Commentary- Too Big to Fail Then Get a Living Will

ABI Bankruptcy Brief | June 28, 2012
 
  
June 28, 2012
 
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  NEWS AND ANALYSIS   

COMMENTARY: TOO BIG TO FAIL? THEN GET A LIVING WILL

JPMorgan CEO Jamie Dimon's congressional testimony on trading losses has again stirred debate on the notion of "too-big-to-fail" banks, according to a Bloomberg News commentary yesterday by John C. Dugan, the former Comptroller of the Currency, and T. Timothy Ryan Jr., president and CEO of the Securities Industry and Financial Markets Association. JPMorgan Chase & Co.'s losses were buffered by a strong balance sheet and sufficient capital levels to avoid putting the bank at risk. However, opponents of the Dodd-Frank financial reform's resolution process have used this to resurrect their belief that "too big to fail" has not been eliminated, but instead been codified into law. As former bank regulators who both sat on the Federal Deposit Insurance Corp. board, Dugan and Ryan disagree that this step has taken place. The FDIC recently proposed a way of reorganizing a large financial institution under Dodd-Frank that would avoid runs by short-term depositors and creditors and prevent messy defaults on swaps and other derivatives. More important, the FDIC's proposal would also avoid taxpayer losses, which Dodd-Frank flatly prohibits. Instead, losses would be borne by shareholders and long-term creditors of the failed holding company. Long-term creditors would swap their debt for equity to recapitalize the company. The process would be functionally identical to a chapter 11 reorganization, according to the commentary, with two critical exceptions: It could be done much faster, and, if necessary, the Treasury Department could provide temporary loans (backed by collateral) to the reorganized company until market funding returns. Read the full commentary.

ANALYSIS: BREAKING UP BIG BANKS HARD TO DO AS MARKET FORCES FAIL

Politicians and regulators have resisted calls from some investors to split up conglomerates that were assembled over two decades by executives such as former Citigroup CEO Sanford "Sandy" Weill and former Bank of America CEO Ken Lewis, Bloomberg News reported yesterday. While these universal banks offered customers everything from checking accounts and insurance to derivatives trading and merger advice, the 2008 financial crisis and subsequent performance of the companies is calling that approach into question. Some investors, tired of unpredictable losses, costly regulation and legal headaches, have abandoned the banks in favor of more focused lenders such as Wells Fargo & Co. and U.S. Bancorp. Bank of America has traded below book value since 2009, while New York-based Citigroup has done so since 2010, according to data compiled by Bloomberg. "It is not clear why a bank needs to do lots of activities in financial services that aren't banking," said Ken Fisher, CEO and founder of Woodside, Calif.-based Fisher Investments, which manages about $44 billion in investments. "The universal bank model is broken," said David Trone, an analyst at JMP Securities LLC. Read more.

CALIFORNIA FORECLOSURE-PREVENTION MEASURE NEARS FINAL PASSAGE

A foreclosure-prevention measure is one step away from final passage in the California Legislature, the Los Angeles Times reported yesterday. A two-house conference committee yesterday, on a partisan 4-1 vote, sent identical measures to the floors of the California Assembly and Senate with final votes scheduled for Monday. The bills, S.B. 900 and A.B. 278, are the most controversial elements of a Homeowner Bill of Rights legislative package sponsored by California Atty. Gen. Kamala D. Harris. The bills aim to protect homeowners in two ways:

  • They ban "dual tracking," when mortgage loan servicers allow borrowers to open an application for loan modification to lower their payments while at the same time the foreclosure process continues to move forward. Servicers would be required to provide homeowners with "a single point of contact" so that they will not suffer from bureaucratic runarounds.

  • They give owner-occupier, first-mortgage holders a right to sue financial institutions, under limited conditions, if the lenders have willfully, intentionally or recklessly violated the law.

Bankers, the state Chamber of Commerce and the securities industry oppose the bills, saying that they are overly complicated, lack legal clarity and could spur many unnecessary lawsuits. The bills would take effect on Jan. 1 if approved, as expected, by Democratic majorities in both houses. Gov. Jerry Brown (D) has not indicated whether he would sign the measures, though sponsors have said they do not expect a veto. Read more.

ANALYSIS: SOME STUDENT LOANS TO BECOME MORE EXPENSIVE DESPITE DEAL

College students are still facing a roughly $20 billion increase in the cost of their federal loans, despite a much-heralded deal by Congress to contain the expense of higher education, according to a Washington Post analysis yesterday. Starting Sunday, students hoping to earn the graduate degrees that have become mandatory for many white-collar jobs will become responsible for paying the interest on their federal loans while they are in school and immediately after they graduate, meaning that they will have to pay an extra $18 billion out of pocket over the next decade. Meanwhile, the government will no longer cover the interest on undergraduate loans during the six months after students finish school. That is expected to cost those borrowers more than $2 billion. Much of the recent debate about the nation's soaring student debt burden has centered on how to prevent the interest rate on new federally subsidized undergraduate loans from doubling to 6.8 percent on Sunday. This week, Senate leaders announced that they had finally reached a compromise on how to pay the estimated $6 billion cost of freezing the rate for one year. Congress is expected to approve the deal by Friday. Read more.

FIRMS RESIST NEW PAY-EQUITY RULES

As the final shareholder votes on executive pay round out this year's proxy season, companies are fighting another rule that could force them to disclose the gap between what they pay their CEOs and their median pay for employees, the Wall Street Journal reported yesterday. The rule's supporters - a group that includes labor unions, institutional shareholders and left-leaning activists - say that it would force companies to consider rank-and-file workers during boardroom discussions over CEO pay and could put the brakes on executive compensation, which has been rising faster than inflation and the average worker's pay. The so-called internal pay equity provision, passed as part of the July 2010 Dodd-Frank package of financial reforms, is intended to expose the income disparity within public companies and help investors better evaluate the firms. Read more. (Subscription required.)

ABI IN-DEPTH

LATEST CASE SUMMARY ON VOLO: LEVESQUE V. SHAPIRO (IN RE LEVESQUE; 9TH CIR.)

Summarized by Emil Khatchatourian of the U.S. Bankruptcy Court for the Eastern District of California

The Ninth Circuit Bankruptcy Appellate Panel held that the chapter 7 trustee had standing to appear with respect to the debtors' motion to reopen their chapter 7 case and motion to convert the chapter 7 case to one under chapter 11, and that the bankruptcy court did not abuse its discretion in denying the debtors' motion to convert.

More than 500 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: FSB REPORTS REGULATOR REFORM IS ADVANCING, BUT SLOWLY

The Bankruptcy Blog Exchange is a free ABI service that tracks 35 bankruptcy-related blogs. A recent post looks at a June 19 report by the Financial Stability Board (FSB) on the steps FSB member nations have taken to implement financial reforms designed to improve the stability of the global financial system. The FSB concluded that its member nations have made significant progress in implementing globally agreed upon financial reforms, but large strides are still necessary to protect the global economy against future financial crises.

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 full-payment rule in section 1325's "hanging paragraph" for new car PMSIs should be repealed to level the playing field between car lenders and other partially and fully unsecured creditors.

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  CALENDAR OF EVENTS
 

July
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     July 12-15, 2012 | Bretton Woods, N.H.
- Southeast Bankruptcy Workshop
     July 25-28, 2012 | Amelia Island, Fla.

August
- Mid-Atlantic Bankruptcy Workshop
     August 2-4, 2012 | Cambridge, Md.

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.


  

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

 
 
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State Bankruptcy Debate Returns

ABI Bankruptcy Brief | November 6 2012
 
  

November 13, 2012

 
home  |  newsroom  |  chart of the day  |  blogs  |  bankruptcy code and rules  |  statistics  |  legislative news  |  volo
  NEWS AND ANALYSIS   

STATE BANKRUPTCY DEBATE RETURNS

Nearly two years after a "fierce" debate that "fizzled as quickly as it started," University of Pennsylvania law professor David Skeel is arguing that the idea of giving states a way to file for bankruptcy remains relevant and necessary, the Wall Street Journal reported yesterday. In addition to corporations and consumers, the Bankruptcy Code allows municipalities to seek chapter 9 protection. But there is currently no chapter set aside for states that find themselves teetering on the brink of insolvency, nor have states needed one. Yet with major budget deficits, underfunded pensions and declining tax revenues, some say that states should have a legal framework within which to restructure. Skeel advocated the idea of state bankruptcy in The Weekly Standard, as well as in the pages of the Wall Street Journal between November 2010 and January 2011, and the view picked up steam once Newt Gingrich and Jeb Bush added their voices. "Creditors of states have a great deal [of difficulty] collecting from the state," Skeel said recently in resurrecting the idea of state bankruptcy. "It's really hard to get a state to pay you because of sovereign immunity." Read more. (Subscription required.)

REGULATOR FACES ANOTHER LAWSUIT OVER DODD-FRANK

The Obama administration's new rules for Wall Street suffered another setback this week as the financial industry leveled a lawsuit challenging a crucial piece of the regulatory overhaul, the New York Times DealBook blog reported on Friday. The CME Group, a giant Chicago exchange, sued its regulator last Thursday over a new rule that aims to shed light on the murky derivatives trading industry. The regulator, the Commodity Futures Trading Commission, drafted the rule in January under guidance from the Dodd-Frank Act. The case is part of the financial industry's broader legal assault on Dodd-Frank. As regulators hash out the final details of some 400 rules, Wall Street has shifted the fight from backroom lobbying to the courtroom. The trading commission has already been sued twice over Dodd-Frank rules, and Wall Street plans to turn up the heat on the Obama administration next year with a bevy of other legal challenges. Read more.

ANALYSIS: CHILD'S EDUCATION, PARENTS' CRUSHING LOANS

There are record numbers of student borrowers in financial distress, but millions of parents who have taken out loans to pay for their children's college education make up a less-visible generation in debt, the New York Times reported yesterday. For the most part, these parents did well enough through midlife to take on sizable loans, but some have since fallen on tough times because of the recession, health problems, job loss or lives that took a sudden hard turn. In the first three months of this year, the number of student loan borrowers aged 60 and older was 2.2 million, a figure that has tripled since 2005. That makes them the fastest-growing age group for college debt. All told, those borrowers owe $43 billion, up from $8 billion seven years ago, according to the Federal Reserve Bank of New York. Read more.

TWO MILLION COULD LOSE UNEMPLOYMENT BENEFITS UNLESS CONGRESS EXTENDS PROGRAM

More than 2 million Americans stand to lose their jobless benefits unless Congress reauthorizes federal emergency unemployment help before the end of the year, the Washington Post reported today. The people in danger of having their unemployment checks cut off are among those who have benefited least from the slowly improving job market: Americans who have been out of work longer than six months. These workers have exhausted their state unemployment insurance, leaving them reliant on the federal program. In addition to those at risk of abruptly losing their benefits in December, 1 million people would have their checks curtailed by April if the program is not renewed, according to lawmakers and advocates pushing for an extension. Read more.

ANALYSIS: DEEP DISCOUNTS ON FORECLOSED HOMES DISAPPEARING

A market analysis by Zillow found that the average national discount on a foreclosure in September has fallen to only about 8 percent below market value, the Washington Post reported today. That is a significant change from the 24 percent average markdown reported in 2009 during the depths of the housing bust, and another signal that the country's housing market is inching toward recovery. "There’s no such thing as a fire sale on a foreclosure right now," said Marc Joseph, a real estate agent in Fort Myers, Fla. "We’re getting back to that point where if something good hits the markets, we’re getting multiple offers again." According to Zillow, the deepest discounts can be found on foreclosures in the Pittsburgh area, at 27 percent. Cleveland, Cincinnati and Baltimore have average markdowns on foreclosures topping 20 percent. But in many hard-hit markets, particularly ones where home prices fell sharply and investors and buyers have swooped in to buy up foreclosures, discounts have all but vanished. Zillow found that in Las Vegas and Phoenix, there is "no discernible difference" between foreclosure and non-foreclosure sales. Read more.

OPEN PUBLIC HEARING ON CHAPTER 11 REFORM AT ABI'S WINTER LEADERSHIP CONFERENCE

ABI's Commission to Study the Reform of Chapter 11 will hold a public hearing on Friday, Nov. 30, at 11:15 a.m. (MT) during the Winter Leadership Conference in Tucson, Ariz., at the JW Marriott Starr Pass Resort. Members are welcome to provide testimony on their suggestions for ways to improve the operation of chapter 11. The hearing is the fifth in a series of public field hearings. Statements and video from all the recent hearings can be found at the Commission website at http://commission.abi.org.

Interested members should contact Sam Gerdano at sgerdano@abiworld.org for more details about in-person testimony. Those interested may also file written statements of any length for consideration by the Commission. All materials will be part of the Commission's record to be transmitted to Congress following the two-year investigation and report. Please consider this great opportunity to become part of the legal reform of the Bankruptcy Code.

The next public hearing will be Thursday, Nov. 15, at the CFA Annual Convention in Phoenix. For future Commission hearings, please click here: http://commission.abi.org/.

ABI IN-DEPTH

LATEST CASE SUMMARY ON VOLO: OVERSTREET V. JOINT FACILITIES MANAGEMENT, LLC (IN RE CRESCENT RESOURCE LLC; 5TH CIR.)

Summarized by Eric Lockridge of Kean Miller LLP

The Fifth Circuit ruled that an untimely Rule 59(e) motion to alter or amend a district court's judgment affirming a bankruptcy court's dismissal order does not extend the 30-day deadline to file a notice of appeal of the district court's judgment.

There are nearly 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: DEWEY LEBOEUF AVOIDS LITIGATION MORASS OF MOST LAW FIRM BANKRUPTCY CASES

The Bankruptcy Blog Exchange is a free ABI service that tracks 35 bankruptcy-related blogs. A recent post examines how the settlement in the Dewey LeBoeuf case has helped the firm avoid the failures that typically produce lengthy and litigious bankruptcy cases. For more on issues related to large firm bankruptcies, listen to a recent ABI podcast here.

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

Despite the "free and clear" language of Sect. 363(f), purchasers of assets in 363 sales may still be liable for injuries to unidentifiable future claimants. (In re Grumman Olson Indus, S.D.N.Y.).

Click here to vote on this week's Quick Poll. Click here to view the results of previous Quick Polls.

HAVE YOU TUNED IN TO BLOOMBERG LAW'S VIDEO PODCASTS?

Bloomberg Law's video podcasts feature top experts speaking about current bankruptcy topics. The podcasts are available via Bloomberg Law's YouTube channel so that you can access the programs from your computer or device of your choice! Click here to view the Bloomberg Law video podcasts.

INSOL INTERNATIONAL

INSOL International is a worldwide federation of national associations for accountants and lawyers who specialize in turnaround and insolvency. There are currently 37 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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Dec. 4-8, 2012
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Jan. 21, 2013
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Jan. 24-25, 2013
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Feb. 7-9, 2013
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Feb. 17-19, 2013
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  CALENDAR OF EVENTS
 

November
- Winter Leadership Conference
     November 29 - December 1, 2012 | Tucson, Ariz.

December
- Forty-Hour Bankruptcy Mediation Training
     December 4-8, 2012 | New York, N.Y.

2013

January
- Western Consumer Bankruptcy Conference
     January 21, 2013 | Las Vegas, Nev.
- Rocky Mountain Bankruptcy Conference
     January 24-25, 2013 | Denver, Colo.


  

 

February
- Caribbean Insolvency Symposium
     February 7-9, 2013 | Miami, Fla.
- Kansas City Advanced Consumer Bankruptcy Practice Institute
     February 17-19, 2013 | Kansas City, Mo.
- VALCON 2013
     February 20-22, 2013 | Las Vegas, Nev.


 
 
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Barney Frank Responds to GOPs Criticism of Dodd-Frank

ABI Bankruptcy Brief | July 24, 2014
 
  

July 24, 2014

 
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  NEWS AND ANALYSIS   

BARNEY FRANK RESPONDS TO GOP'S CRITICISM OF DODD-FRANK

Retired congressman Barney Frank, former chairman of the U.S. House Financial Services Committee, returned to Washington yesterday to defend 2010's regulatory overhaul, the Dodd-Frank Act that bears his name, following a report released this week by House Republicans criticizing the law, Bloomberg News reported yesterday. The hearing split along partisan lines in support of and in opposition to the wide-ranging law, which was passed in response to the 2008 financial crisis. Frank largely defended the law while endorsing some changes. He said that the Volcker Rule, which limits risky trading by banks, could be limited to larger institutions. Asset managers, he said, shouldn't be designated as systemically important, which would subject them to additional oversight by the Federal Reserve. Republicans on the panel countered that the law created a regulatory burden that has stunted lending and job growth. "Thanks to Dodd-Frank, it is now harder for low- and moderate-income Americans to buy a home," said current Committee Chairman Jeb Hensarling (R-Texas). Frank replied that Republicans' calls for more lending run counter to their past complaints of too much lending to lower-income borrowers. The hearing follows a report, released July 21 by House Republicans on the four-year anniversary of the Dodd-Frank Act, that concluded that the law actually strengthened the perception that some banks are too big to be allowed by the government to fail. Frank dismissed this notion, however, stating that "[t]he Dodd-Frank Act is clear: Not only is there no legal authority to use public money to keep a failing entity in business, the law forbids it." Click here to read the full article.

ANALYSIS: THE LINGERING, HIDDEN COSTS OF THE BANK BAILOUTS

The rescue of incumbent investors in the government bailout of the largest U.S. banks in the autumn of 2008 has been widely viewed as unfair for the way it applied different rules to different players. The use of the Troubled Asset Relief Program has been credited by the Federal Reserve and Treasury with preventing a financial collapse of the economy. The rescue, however, had a hidden cost for the economy that is difficult to quantify, but can be crippling, according to an analysis in yesterday's Wall Street Journal. New economic activity is hobbled if it is not freed from the burden of sharing its return with investors who bore risks that failed. The demand for new economic activity is enlarged when its return does not have to be shared with former claimants protected from the consequences of their risk-taking. This is the function of bankruptcy in an economic system organized on loss as well as profit principles of motivation, according to the analysis. Financial failure and the restructuring of assets and liabilities motivates new capital to flow directly into new enterprise activity at the cutting edge of technology — the source of new products, output and employment that in turn provide new growth and recovery. However, with only two balance-sheet crises in the U.S. in the past 80 years, 1929-33 and 2007-09, we have little experience against which to test alternative policies and economic responses. Click here to read the full analysis.

ANALYSIS: WILL DETROIT BE ABLE TO PAY ITS BILLS AFTER BANKRUPTCY?

Detroit is known by its most unwelcome attributes: Along with one of the highest murder and violent crime rates in the country, it currently is known as the most populous U.S. city to ever seek bankruptcy protection. But can it also enjoy the biggest recovery? According to an analysis in today's mlive.com, so much is still up in the air that it's not clear whether Detroit will be positioned to succeed a year from now. Does the city generate enough money to fix what ails Detroit if billions in debt are cut? Are the city's costs too high? Does it pay its workers too much? Are pensions too generous? Can the city endure a reduction in both spending and revenue and revive what is by most measures the most dysfunctional large city in America? At first blush, Detroit doesn't suffer from a revenue problem. It can count tax sources that most Michigan cities cannot (casino, utility and income taxes), and it gets the largest chunk of the state's revenue sharing. Its general fund (excluding money raised and spent by the water and sewerage department) generated nearly $1.7 billion in taxes and other revenues in 2011. At $2,346 generated per city resident, that's 42 percent higher than the median ($1,650) of the country's largest cities, according to a report last year by the Pew Charitable Trusts. Yet in documents filed with the bankruptcy court, Emergency Manager Kevyn Orr's experts have forecast that property tax revenues, which were $163.7 million in 2009, will fall below $100 million in 2017 and continue to fall until 2020. Utility taxes are also falling. Those (mostly downward) fluctuating revenue streams are what makes the city's fiscal future hard to predict. Click here to read the full analysis.

HISTORICALLY BLACK COLLEGES FACE UNCERTAIN FUTURE

For generations, historically black colleges and universities have played a key role in educating young African-Americans. However, facing often-steep declines in enrollment, these schools are struggling to survive, the Associated Press reported Tuesday. Over the last 20 years, five historically black colleges and universities — or HBCUs — have shut down, and about a dozen have dealt with accreditation issues. South Carolina State University, that state's only public historically black higher education institution, had its accreditation placed on probation last month after the school was cited for financial problems. Morris Brown College, a 133-year-old private institution in Atlanta, filed for bankruptcy in August 2012 and has received court approval to sell some of its property. Last year, North Carolina elected officials flirted with the idea of merging Elizabeth City State University, a public historically black college, with another institution after its enrollment had dropped by 900 students in three years. Historically black colleges were once the only option for most black students, who made up almost 100 percent of their enrollment in 1950. Now that black students have a much wider choice of schools, only 11 percent of African-American college students choose a historically black college or university. Click here to read the full analysis. (Free subscription required.)

GENERATION GAP HITTING GOLF INDUSTRY HARD

A drop in participation rates and disinterest among young people, particularly millennials, has sent both the retail and sporting ends of the golfing industry scrambling for a new business strategy, the Wall Street Journal reported yesterday. For the fifth year, overall participation in golf fell in 2014 as measured by the number of U.S. individuals who reported playing on a course at least once, according to Sports & Fitness Industry Association data. "It's slow, takes a long time to play; it's expensive," said Matt Powell, a SportsOneSource analyst. "As a sport, it doesn't reflect the kind of values millennials like — diversity, inclusion. Golf tends to not be those things." The drop-off in tee times has been taking a toll. On Wednesday, a bankruptcy judge approved the liquidation of Edwin Watts Golf Shops, a chain founded 46 years ago in Fort Walton Beach, Fla., that filed for chapter 11 bankruptcy protection in November. It blamed a decline in golf's popularity leading to slowing sales in the $5 billion U.S. golf-retail industry, as well as several "lackluster" product launches. Click here to read the full article.

NEW HOME SALES DECLINE IN JUNE

Sales of newly constructed homes fell by 8.1 percent (seasonally adjusted) in June compared to the prior month, and May's reported massive sales jump disintegrated due to revised numbers, Forbes reported today. Compared to June of last year, new home sales were down 11.5 percent, according to today's U.S. Commerce Department report. May's downwardly revised numbers — to an annualized rate of 442,000 from the initial 504,000 — mean that the reported 18.6 percent surge in new home sales was an overstatement. The housing recovery continues to be mixed: Prices continue to rise, helping underwater homeowners, but the pace of gains is slowing. Inventory is up, but we are still not back to the six-month supply that is considered a healthy market. Earlier this week, the National Association of Realtors released data showing that sales of existing (or previously owned) homes rose 2.6 percent in June. However, housing starts dropped by 9.3 percent that month. Housing economists point out that underlying economic factors — below-average growth in median household income, labor force participation, bank lending and household formation — may be stalling the housing recovery. Click here to read the full article.

NEW CASE SUMMARY ON VOLO: STUART V. MENDENHALL (IN RE MENDENHALL, 6TH CIR.)

Summarized by Kathleen DiSanto of Jennis & Bowen, P.L.

The Eleventh Circuit held that (1) the bankruptcy court did not abuse its discretion in interpreting its order granting a 60-day extension of the Rule 4007(c) deadline to file a complaint to determine the dischargeability of debt to mean that the extension ran from the date of the original deadline under Rule 4007(c); (2) the bankruptcy court properly denied Stan Stuart's untimely motion for extension of the Rule 4007(c) deadline because the bankruptcy court had no discretion to retroactively extend the deadline to file a complaint under § 523 of the Bankruptcy Code after it expired, as a bankruptcy court may only enlarge the time for filing a complaint to determine dischargeability if a motion for extension is filed before the time expires; and (3) the bankruptcy court's interpretation of its order did not violate Stan Stuart's constitutional rights.

There are more than 1,300 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: BANKS MIGHT NOT BE PREPARED FOR THE NEXT RECESSION

A recent blog post posits that the next downturn might pose different problems that the Federal Reserve's stress tests might not be designed to detect.

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

Credit-bidding should not be allowed in a bankruptcy sale.

Click here to vote on this week's Quick Poll. Click here to view the results of previous Quick Polls.

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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  CALENDAR OF EVENTS
 

2014

July
- Mid-Atlantic Bankruptcy Workshop
    July 31-August 2, 2014 | Cambridge, Md.

August
- ABI Endowment Baseball Event
    Aug. 13, 2014 | Baltimore, Md.
- Fourth Hawai'i Bankruptcy Workshop
    Aug. 13-16, 2014 | Maui, Hawai'i

September
- Southwest Bankruptcy Conference
    Sept. 4-6, 2014 | Las Vegas, Nev.
- abiLIVE Webinar: Understanding Make-Whole and No Call Provisions
    Sept. 9, 2014 |
- Golf & Tennis Outing
    Sept. 9, 2014 | Maplewood, N.J.
- CARE Financial Literacy Conference
    Sept. 11-13, 2014 | Dallas, Texas
- ABI Workshop: Lending to Distressed Companies
    Sept. 15, 2014 | Alexandria, Va.
- Lawrence P. King and Charles Seligson Workshop on Bankruptcy & Business Reorganization
    Sept. 17-18, 2014 | New York, N.Y.

  

 

October
- abiWorkshop: Government Contracting and Bankruptcy
    Oct. 6, 2014 | Alexandria, Va.
- Midwestern Bankruptcy Institute
    Oct. 16-17, 2014 | Kansas City, Mo.
- Views from the Bench
    Oct. 24, 2014 | Washington, D.C.
- Claims-Trading Program
    Oct. 30, 2014 | New York, N.Y.
- International Insolvency & Restructuring Symposium
    Oct. 30-31, 2014 | London

November
- Complex Financial Restructuring Program
    Nov. 6, 2014 | Philadelphia
- Corporate Restructuring Competition
    Nov. 6-7, 2014 | Philadelphia
- Chicago Consumer Bankruptcy Conference
    Nov. 11, 2014 | Chicago, Ill.
- Detroit Consumer Bankruptcy Conference
    Nov. 11, 2014 | Troy, Mich.

 

 
 
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More Homeowners Emerge from Underwater Status

ABI Bankruptcy Brief | March 19 2013
 
  

March 19, 2013

 
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  NEWS AND ANALYSIS   

ANALYSIS: MORE HOMEOWNERS EMERGE FROM "UNDERWATER" STATUS

Rising home values have lifted more borrowers out of the hole of owing more than their properties are worth, an encouraging sign for an economy still closely tied to the health of the housing market, the Wall Street Journal reported today. The number of "underwater" homeowners in the fourth quarter of 2012 declined by 1.7 million from a year earlier, meaning 1.7 million U.S. households have regained home equity, according to data released Tuesday by CoreLogic, a research company. Overall, the company said 21.5 percent of households with a mortgage were underwater at the end of 2012, down from 25.2 percent at the end of 2011. While the trends are encouraging, some newly above-water households are just barely at breakeven and therefore are a long way off from being able to change their finances in any significant way. And the overall ranks of those underwater remain large, at about 10.4 million, down from 12.1 million at the end of 2011, according to CoreLogic. Read more. (Subscription required.)

To see a state-by-state analysis of CoreLogic's 4Q 2012 data, be sure to check out ABI's Chart of the Day site.

FANNIE MAE SEES WAY TO REPAY BILLIONS TO U.S. TREASURY

The rebounding housing market has helped return Fannie Mae to profitability and now might allow the government-controlled mortgage-finance company to repay as much as $61.5 billion in rescue funds to the U.S. Treasury, the Wall Street Journal reported. The potential payment would be the upshot of an accounting move whereby the company would reclaim certain tax benefits that were written down shortly after the company was placed under federal control in 2008. The potential move was disclosed last week in a regulatory filing in which the company said that it would delay the release of its annual report, due yesterday, as it tries to reach a resolution with its accountants and regulator over the timing of the accounting move. The debate about when Fannie should be allowed to reclaim the deferred-tax assets comes as Fannie and its smaller sibling, Freddie Mac, are likely to show large profits in the coming quarters as the housing market gradually recovers from its prolonged bust. The potential payment also has political implications as lawmakers and regulators wrangle over the fate of the firms, which were placed into a federal conservatorship amid soaring losses. The Obama administration has publicly said that the two companies eventually would be wound down and has blocked them from retaining profits, but has done little to de-emphasize their role in the mortgage market. Read more. (Subscription required.)

CFPB ISSUES PROPOSAL TO SUPERVISE STUDENT LOAN SERVICERS

The Consumer Financial Protection Bureau on Friday issued a proposal to supervise nonbank servicers of private and federal student loans that qualify as "larger participants" in the student loan servicing market, according to an analysis yesterday by Ballard Spahr LLP. The proposal represents an attempt by the CFPB to significantly expand its supervisory authority over student loan servicers. Because it already has supervisory authority over larger banks and nonbank private student lenders, the CFPB believes it should oversee student loan servicing by those entities. The CFPB's current authority to supervise nonbank private student lenders, however, does not allow it to supervise the nonbank student loan servicers that do not offer or provide private student loans. The proposal would allow the CFPB to supervise servicing of private and federal student loans by such nonbank servicers. Comments on the proposal will be due 60 days after its publication in the Federal Register. Click here to read the proposal.

OBAMA CUTS STUDENT-DEBT COLLECTOR COMMISSIONS TO AID BORROWERS

President Barack Obama's administration slashed the commissions paid to private collection companies that chase overdue student loans, reducing an incentive to squeeze borrowers, Bloomberg News reported today. Previously, the U.S. Education Department paid a commission as high as 16 percent of the entire loan amount only if collectors convinced defaulted borrowers to make stiff monthly payments. Starting this month, the fee dropped to as low as 11 percent, regardless of payment size. With $77.4 billion worth of student loans in default, the federal government turns to an army of private collectors to pursue borrowers. These companies, which receive about $1 billion annually in commissions, have sparked growing complaints that they insist on high payments, even when borrowers qualify for leniency. Under the new schedule, collectors will no longer have an incentive to avoid offering affordable payments tied to borrowers' incomes. Read more.

PLASTIC-SHY YOUNG IN U.S. SPUR MOVE TO USE NEW CREDIT DATA

Thirty-nine percent of undergraduate students between the ages of 18 and 24 owned a credit card in 2012, down from 49 percent in 2010, a Sallie Mae and Ipsos Public Affairs survey found, Bloomberg News reported today. And young adults who do have credit cards are carrying smaller balances: A median of $1,600 in 2010 compared with $2,500 in 2001 for under-35 households, according to Federal Reserve data. The trend, rooted in stricter lending rules and weaker job outlooks for young Americans since the 2008-09 recession, has implications for the strength of the economy. Fewer are building the traditional credit histories that would help them obtain financing for the purchases of homes and cars, which is critical to economic growth. Credit bureaus and the lending industry are stepping up their search for new ways to bolster credit files, and young people who do not pay credit card bills often do pay mobile phone bills. As reporting agencies gather data from telephone, rent and other payments, some scoring models incorporate this information to help assess candidates' creditworthiness. Read more.

ANALYSIS: WORKERS SAVING TOO LITTLE TO RETIRE

Workers and employers in the U.S. are bracing for a retirement crisis, even as the stock market sits near highs and the economy shows signs of improvement, the Wall Street Journal reported today. New data show that powerful financial and demographic forces are combining to squeeze individuals and companies that are trying to save for the future and make their money last. Fifty-seven percent of U.S. workers surveyed reported less than $25,000 in total household savings and investments excluding their homes, according to a report to be released Tuesday by the Employee Benefit Research Institute. Only 49 percent reported having so little money saved in 2008. The survey also found that 28 percent of Americans have no confidence they will have enough money to retire comfortably—the highest level in the study's 23-year history. Read more. (Subscription required.)

NUMBER OF CASES FILED BY SEC SLOWS

The Securities and Exchange Commission is filing significantly fewer civil fraud cases this year as its efforts to punish misconduct related to the financial crisis start to ebb, the Wall Street Journal reported yesterday. The agency is likely to fall short this fiscal year of its record-breaking number of enforcement actions in the previous two years. The expected drop in the numbers could be a headache for Mary Jo White, the former prosecutor nominated by President Barack Obama to be SEC chairman. A Senate panel is set to approve White's appointment today, the last step before the full Senate votes on it. White last week told a Senate hearing that she would strengthen the SEC's enforcement function to ensure that "all wrongdoers … will be aggressively and successfully called to account." The slowdown in enforcement actions reflects changes in the economic cycle, according to SEC officials. "We're at a point of inflection in our enforcement program," George Canellos, acting SEC enforcement head, said last month. Market meltdowns on the scale of the 2008 crisis, when companies implode and trillions of dollars are wiped off asset values, tend to expose major frauds and produce big cases, Canellos said. "We're now in a different era," he added. Read more. (Subscription required.)

NEW ABI BOOK EXPLORES THE DEPTHS OF DEEPENING INSOLVNECY

Any company executive juggling the competing demands of the troubled firm and its obligations to investors, as well as litigators practicing on either side of the insolvency aisle, will be interested in ABI’s latest publication, The Depths of Deepening Insolvency: Damage Exposure for Officers, Directors and Others. Authors Kathy Bazoian Phelps (Diamond McCarthy LLP) and Prof. Jack F. Williams (Mesirow Financial) wrote the book from both the plaintiffs' and defendants' perspectives to offer a deep analysis of the legal principle known as "deepening insolvency." The book also provides potential defenses that may be asserted to deepening insolvency allegations, as well as a state-by-state list of significant case law on this issue. To find out more about the book or to pre-order your copy, please click here. (Make sure to log in using your ABI member credentials to obtain the ABI member discount.)

DON'T MISS ACB'S FREE EVENT, "THE AUTO BANKRUPTCIES: CHECKING THE REARVIEW MIRROR," ON MARCH 22!

ABI members are encouraged to register for the American College of Bankruptcy's "The Auto Bankruptcies: Checking the Rearview Mirror" on March 22 at Boston College Law School in Newton, Mass. The afternoon event will feature key players looking back at the events that led to GM and Chrysler being placed into bankruptcy and the lessons that have been learned from the cases. Panelists include:

Corinne Ball of Jones Day (New York), who served as lead bankruptcy counsel to Chrysler.

Matthew A. Feldman of Willkie Farr and Gallagher LLP (New York), who served as chief legal advisor to the Obama administration's Task Force on the Auto Industry.

• Hon. Arthur J. Gonzalez, a Senior Fellow at New York University School of Law and formerly the Chief Bankruptcy Judge for the U.S. Bankruptcy Court for the Southern District of New York, who presided over the Chrysler chapter 11 proceedings.

Harvey R. Miller of Weil, Gotshal & Manges LLP (New York), who served as lead bankruptcy counsel to GM.

The moderator will be Mark N. Berman of Nixon Peabody LLP (New York).

Registration for the afternoon event is free, so be sure to sign up today before it reaches capacity!

HOTEL BLOCK FOR ABI'S ANNUAL SPRING MEETING ALMOST SOLD OUT! REGISTER TODAY!

The hotel block at the Gaylord National Resort and Convention Center in National Harbor, Md., is almost sold out for ABI’s 2013 Annual Spring Meeting! Held April 18-21, 2013, ASM 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
• Creditors’ Committees and the Role of Indenture Trustees and Related Issues
• 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
• 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!

Make sure to register today!

ABI IN-DEPTH

TEE OFF ON THE NEW ABI GOLF TOUR!

Starting with the Annual Spring Meeting, ABI will offer conference registrants the option to participate in the ABI Golf Tour. The Tour will take place concurrently with all conference golf tournaments. The Tour is designed enhance the golfing experience for serious golfers, while still offering a fun networking opportunity for players of any ability. As opposed to the format used in the regular ABI conference events, Tour participants will "play their own ball." They will be grouped on the golf course separately from other conference golf participants and will typically play ahead of the other participants, expediting Tour play. Tour participants will randomly be grouped in foursomes, unless otherwise requested of the Commissioner in advance of each tournament. Prizes will be awarded for each individual Tour event, which are sponsored by Great American Group. The grand prize is the "Great American Cup," also sponsored by Great American Group, and will be awarded to the top player at the end of the Tour season. Registration is free. Click here for more information and a list of 2013 ABI Golf Tour event venues.

NEW BANKRUPTCY PROFESSIONALS: DON'T MISS THE NUTS AND BOLTS PROGRAM AT ABI'S ANNUAL SPRING MEETING! SPECIAL PRICING IF YOU ARE AN ASM REGISTRANT!

An outstanding faculty of judges and practitioners explains the fundamentals of bankruptcy in a one-day Nuts and Bolts program on April 18 being held in conjunction with ABI's Annual Spring Meeting. Ideal training for junior professionals or those new to this practice area!

The morning session covers concepts all bankruptcy practitioners need to know, and the afternoon session splits into concurrent tracks, focusing on consumer and business issues. The session will include written materials, practice tip sessions with bankruptcy judges, continental breakfast and a reception after the program. Click here to register!

LATEST CASE SUMMARY ON VOLO: GORDON V. PAPPALARDO (IN RE GORDON; 1ST CIR.)

Summarized by Jennifer L. Saffer of J.L. Saffer, P.C.

In this appeal by a debtor in her chapter 13 case, the Bankruptcy Appellate Panel (BAP) for the First Circuit affirmed, after de novo review, the bankruptcy court’s order sustaining the chapter 13 trustee’s objection to the debtor's claimed exemption in a scheduled remainder interest in real estate. Affirming the decision of the bankruptcy court, the BAP determined that the property claimed as exempt was not "owned" by the debtor as required by and within the meaning of Mass. Gen. Laws ch. 188, § 3(a); the debtor had elected Massachusetts exemption rules rather than the federal, as was her option under 11 U.S.C. § 522(b).

There are more than 800 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: CONGRESS, NOT FHFA, SHOULD BE REFORMING THE GSEs

The Bankruptcy Blog Exchange is a free ABI service that tracks 35 bankruptcy-related blogs. A recent blog post found that while there is an emerging bipartisan consensus on the way forward for the secondary mortgage market, Congress has punted on what should be done with Fannie Mae and Freddie Mac, and the (Federal Housing Finance Agency) FHFA is taking significant steps without hearings or public discussion.

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

Who will win the NCAA basketball tournament?

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INSOL INTERNATIONAL

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FRIDAY:

 

 

BBW 2013
March 22, 2013
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COMING UP

 

 

 

BBW 2013
April 5, 2013
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BBW 2013
April 10, 2013
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ASM NAB 2013
April 18, 2013
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ASM 2013
April 18-21, 2013
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NYCBC 2013
May 15, 2013
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ASM 2013
May 16, 2013
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ASM 2013
May 21-24, 2013
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ASM 2013
June 7, 2013
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ASM 2013
June 13-16, 2013
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NE 2013
July 11-14, 2013
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ASM 2013
July 18-21, 2013
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  CALENDAR OF EVENTS
 

2013

March
- Bankruptcy Battleground West
     March 22, 2013 | Los Angeles, Calif.
- ACB's Free Event, "The Auto Bankruptcies: Checking the Rearview Mirror" Program
     March 22, 2013 | Newton, Mass.

April
- ABI Live Webinar: "Legacy Liabilities : Dealing with Environmental, Pension, Union and Similar Types of Claims"
     April 5, 2013
- ABI Live Webinar: "Student Loans: Bankruptcy May Not Have the Answers - But Does Congress?"
     April 10, 2013
- "Nuts and Bolts" Program at ASM
     April 18, 2013 | National Harbor, Md.
- Annual Spring Meeting
     April 18-21, 2013 | National Harbor, Md.


  

 

May
- "Nuts and Bolts" Program at NYCBC
     May 15, 2013 | New York, N.Y.
- ABI Endowment Cocktail Reception
     May 15, 2013 | New York, N.Y.
- New York City Bankruptcy Conference
     May 16, 2013 | New York, N.Y.
- Litigation Skills Symposium
     May 21-24, 2013 | Dallas, Texas

June
- Memphis Consumer Bankruptcy Conference
     June 7, 2013 | Memphis, Tenn.
- Central States Bankruptcy Workshop
     June 13-16, 2013 | Grand Traverse, Mich.

July
- Northeast Bankruptcy Conference and Northeast Consumer Forum
     July 11-14, 2013 | Newport, R.I.
- Southeast Bankruptcy Workshop
     July 18-21, 2013 | Amelia Island, Fla.


 
 
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Senate Panel Approves Bill to Ease Small Business Bankruptcies

ABI Bankruptcy Brief | May 24, 2012
 
  
May 24, 2012
 
home  |  chart of the day  |  blogs  |  bankruptcy code and rules  |  statistics  |  legislative news  |  volo
  NEWS AND ANALYSIS   

SENATE PANEL APPROVES BILL TO EASE SMALL BUSINESS BANKRUPTCIES

The Senate Judiciary Committee today approved bipartisan legislation that would modify the chapter 11 bankruptcy process to help small companies remain in business and preserve jobs, AccountingToday.com reported. The bill was introduced last month by Sens. Sheldon Whitehouse (D-R.I.) and Charles Grassley (R-Iowa) and was passed by the Judiciary Committee today. "Chapter 11 was designed for large publicly-traded corporations and does not work for many small businesses," Whitehouse said. S. 2370, the "Small Business Reorganization Efficiency and Clarity Act," would give debtors and courts 45 additional days (for a total of 90) to confirm their bankruptcy plans. While the current 45-day deadline was intended to expedite small business cases, it has proven to be an insufficient amount of time for many debtors and courts, according to the bill's authors. The bill would also eliminate an ambiguous "catch all" reporting requirement that results in unnecessary filings and wasted attorney hours. In addition, the bill would allow small business debtors to retain pre-filing counsel and other professionals even if such professionals have small claims against the estate. Read more.

For the full text of S. 2370, the "Small Business Reorganization Efficiency and Clarity Act," please click here.

SURVEY: MEDICAL COSTS PUSHING AMERICANS FURTHER INTO CREDIT CARD DEBT

Left-leaning research and policy center Demos released the results of a survey showing that many low- and middle-income Americans are paying for medical bills with their credit cards, the HuffingtonPost.com reported today. The survey sampled 997 adults in February and March who had carried credit card debt for at least three months and found an average debt of $7,145 with $1,678 attributable to medical costs. Almost 50 percent of American households bought out-of-pocket medical expenses on credit, the survey found. Even though the average credit card debt reported this year decreased from its $9,887 level in 2008, the percentage of American families taking on credit card debt for spending related to necessities remains about the same as during the financial crisis. About two in five households used their credit cards for basic living expenses such as groceries and rent, according to the Demos survey. To read the full survey, please click here.

COMMENTARY: FULL DISCLOSURE FOR STUDENT BORROWERS

Nationally, about two-thirds of bachelor's degree recipients now borrow from either public or private lenders, up significantly from the early ’90s, when about 45 percent of graduates borrowed from all sources, including family, according to an editorial in yesterday's New York Times. According to an analysis by the Federal Reserve Bank of New York, the average debt for student borrowers last year was about $23,300, while 10 percent owed more than $54,000 and 3 percent owed more than $100,000. Federal law requires schools to provide students minimal "entry" and "exit" loan counseling. Many schools market themselves to students without explaining the real costs of attendance. Letters informing them about financial aid awards often blur the distinction between loans and grants to make the school look like a better deal than it is, according to the editorial. The Obama administration has taken some important steps to address these problems. A proposal would require colleges to clearly disclose costs in a standardized "shopping sheet" that would let students see the aid they are receiving and the debt that they would incur. Later this year, it plans to post an Internet "scorecard" that rates each college nationally on affordability and value — defined by graduation rates and whether graduates earn enough on average to repay their debts. Read more.

SENATORS SEEK TO REMOVE BANKERS FROM 12 REGIONAL FED BOARDS

Senators Bernie Sanders (I-Vt.), Barbara Boxer (D-Calif.) and Mark Begich (D-Alaska) introduced legislation on Tuesday that would remove banking industry executives from the 12 regional Fed banks' boards of directors, Bloomberg News reported yesterday. "Allowing currently employed banking industry executives to serve as directors on the boards of directors of Federal Reserve banks is a clear conflict of interest that must be eliminated," according to the text of the bill, released today by Sanders. The structure of the central bank is under new scrutiny following a $2 billion trading loss at JPMorgan Chase & Co., whose chief executive officer, Jamie Dimon, is on the board of directors of the New York Fed. This is "not a perceived conflict, but a real conflict of interest when bank presidents and employees of banks sit on the very boards that regulate them and sometimes bail them out," Boxer said. Read more.

ANALYSIS: DEWEY'S DOWNFALL TOOK WEEKS; CLEAN-UP LOOMS FOR YEARS

Dewey & LeBoeuf LLP, a law firm with a 103-year history, collapsed in a matter of weeks, but cleaning up the debris may take years, Bloomberg News reported today. A trickle of partner defections in March turned into a torrent, with at least 250 of Dewey's 304 partners having now found new jobs. All five senior partners named to a new chairman’s office in March have left, and the firm faces a criminal probe. The staff at the firm’s Manhattan offices has been gone for more than a week. Joff Mitchell of Zolfo Cooper, a restructuring company, is winding the firm down while dunning former clients for bills they have little incentive to pay in full. That is bad news for the firm's creditors, including bank lenders owed at least $75 million and bondholders owed $125 million or more. Other creditors range from partners who got pay guarantees worth about $100 million to the firm's janitors, who have sued for about $300,000 in unpaid bills. Read more.

NEW-HOME SALES AMPLIFY OPTIMISM ABOUT HOUSING

Sales of newly built homes continued to pick up momentum, another sign that the long-beleaguered housing market is in recovery mode, the Wall Street Journal reported today. New-home sales for April rose 3.3 percent from March and were up 9.9 percent from a year earlier to a seasonally adjusted annual rate of 343,000, the Commerce Department said yesterday. While new homes account for about 10 percent of the housing stock sold each year, sales of previously owned homes have also shown strong gains recently, suggesting that the industry's improvements are widespread. The National Association of Realtors said on Tuesday that sales of previously owned homes, which make up the bulk of the housing market, rose 3.4 percent in April from the previous month. Read more. (Subscription required.)

For more, make sure to check out yesterday’s ABI Chart of the Day on new-home sales.

WEBINAR ON JUNE 26 TO EXAMINE SUPREME COURT'S RULING IN RADLAX CASE

Having already examined the oral argument in a previous ABI media teleconference, panelists will reconvene for an ABI and West LegalEd Center webinar on June 26 to discuss the Supreme Court's forthcoming ruling in RadLAX Gateway Hotel LLC v. Amalgamated Bank, expected to be handed down in June. CLE credit will be available for the webinar that will last from 2:00-3:30 p.m. ET.

Experts on the program include:

David Neff of Perkins Coie LLP (Chicago), the counsel of record for petitioner RadLAX Gateway Hotel LLC and participant in the argument.
Jason S. Brookner of Andrews Kurth LLP (New York), whose article was cited in the brief for the respondent.
• Prof. Charles Tabb, the Alice Curtis Campbell Professor of Law at the University of Illinois College of Law, who recently published a paper titled "Credit Bidding, Security, and the Obsolescence of Chapter 11."

ABI Resident Scholar David Epstein will be the moderator for the webinar.

The webinar costs $115 and purchase provides online access for 180 days. If you are purchasing a live webcast, you will receive complimentary access to the on-demand version for 180 days once it becomes available. Click here for more information.

ABI IN-DEPTH

JUNE 5 WEBINAR WILL EXAMINE HOW TO HANDLE AN ADMINISTRATIVELY INSOLVENT ESTATE

Panelists from one of the top-rated sessions at the 2011 Winter Leadership Conference are going to reconvene for an ABI and West LegalEd Center webinar on June 5 titled, "Handling the Administratively Insolvent Estate- What to Do When Your Chapter 11 Goes South." CLE credit will be available for the webinar, which will last from 11 a.m. - 12:30 p.m. ET.

Speakers include:

Robert J. Feinstein of Pachulski Stang Ziehl & Jones LLP (New York)
Cathy Rae Hershcopf of Cooley LLP (New York)
Robert L. LeHane of Kelley Drye & Warren LLP (New York)

Robert J. Keach of Bernstein Shur (Portland, Maine) will be the moderator for the webinar.

The webinar costs $115, and purchase provides online access for 180 days. If you are purchasing a live webcast, you will receive complimentary access to the on-demand version for 180 days once it becomes available. Click here for more information.

LATEST CASE SUMMARY ON VOLO: WRIGHT V. OWENS CORNING (3D CIR.)

Summarized by Omid Moezzi from the Office of Chapter 13 Trustee Nancy Curry

The Court of Appeals affirmed the district court's ruling that the plaintiff's (Charles and Ethanne Waldo) claims could have been litigated in the federal bankruptcy action and previous state court actions. As such, the district court correctly granted defendant's (Ocwen Loan Servicing) motion to dismiss on the basis of claim preclusion due to previous lawsuits filed by the plaintiff.

More than 500 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: SMALL-BANK M&A HINDERED BY FAULTY LOGIC ON VALUATIONS

The Bankruptcy Blog Exchange is a free ABI service that tracks 35 bankruptcy-related blogs. A recent post said that merger and acquisition activity by small banks is still being hindered by faulty logic in thinking that valuations will return to their pre-financial crisis levels.

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 few “net winners” in a bankrupt Ponzi scheme should be required to turn over to the trustee any returns in excess of their original investment (with no special defenses or exceptions), to be distributed to the many “net losers” victimized by the scheme. Click here to vote on this week's Quick Poll. Click here to view the results of previous Quick Polls.

INSOL INTERNATIONAL

INSOL International is a worldwide federation of national associations for accountants and lawyers who specialize in turnaround and insolvency. There are currently 37 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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Next Event

 

MEMPHIS 12
June 1, 2012
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COMING UP

 

ABI'S "Handling the Administratively Insolvent Estate- What to Do When Your Chapter 11 Goes South" Webinar
June 5, 2012
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CS 2012
June 7-10, 2012
Fees Go Up Sunday! Register Today!

 

 

NE 2012
July 12-15, 2012
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ABI'S Webinar to Discuss the Supreme Court's Forthcoming Ruling in RadLAX Gateway Hotel LLC v. Amalgamated Bank
June 26, 2012
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SE 2012
July 25-28, 2012
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MA 2012
August 2-4, 2012
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SW 2012
Sept. 13-15, 2012
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SE 2012
Sept. 13-14, 2012
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SE 2012
Oct. 5, 2012
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  CALENDAR OF EVENTS

May
- ABI Labor and Employment Committee's "Evolving Labor Issues in Chapter 11" Webinar
     May 23, 2012

June
- Memphis Consumer Bankruptcy Conference
     June 1, 2012 | Memphis, Tenn.
- ABI'S "Handling the Administratively Insolvent Estate- What to Do When Your Chapter 11 Goes South" Webinar
     June 5, 2012
- Central States Bankruptcy Workshop
     June 7-10, 2012 | Traverse City, Mich.

July
- Northeast Bankruptcy Conference and Northeast Consumer Forum
     July 12-15, 2012 | Bretton Woods, N.H.

  

- Southeast Bankruptcy Workshop
     July 25-28, 2012 | Amelia Island, Fla.

August
- Mid-Atlantic Bankruptcy Workshop
     August 2-4, 2012 | Cambridge, Md.

September
- Southwest Bankruptcy Conference
     September 13-15, 2012 | Las Vegas, Nev.
- Complex Financial Restructuring Program
     September 13-14, 2012 | Las Vegas, Nev.

October
- Bankruptcy 2012: Views from the Bench
     October 5, 2012 | Washington, D.C.

 
 
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