Mortgage

Latest ABI Podcast Examines Mortgage Lien-Stripping Cases Before the Supreme Court

 
  

December 30, 2014

 
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LATEST ABI PODCAST EXAMINES MORTGAGE LIEN-STRIPPING CASES BEFORE THE SUPREME COURT

Former ABI Resident Scholar Prof. Lois Lupica is joined by Dennis Levine of Dennis LeVine & Associates, P.A. (Tampa) and Rich Thomson of Clark and Washington, P.C. (Atlanta) to discuss two cases recently granted certiorari by the Supreme Court (Bank of America v. Calukett and Bank of America v. Toledo-Cardona) involving mortgage lien-stripping in bankruptcy. Levine, who typically represents creditors, and Thomson, a debtors' lawyer, share their perspectives on arguments that may be raised before the Court for both cases. Click hereto listen.

For more information on these cases and other bankruptcy cases currently being considered by the Supreme Court, be sure to visit the ABI Newsroom

CFPB ISSUES REPORT ON STEPPING UP MILITARY FINANCIAL PROTECTIONS

The Consumer Financial Protection Bureau (CFPB) has issued a report highlighting how loopholes in the current Military Lending Act rules are racking up costs for servicemembers, NationalMortgageProfessional.com reported yesterday. According to the report, these gaps have allowed companies to offer high-cost loans to military families by skirting the 36 percent rate cap and other military-specific credit protections. The CFPB included these findings in a comment letter filed in support of the Department of Defense's proposal to broaden the scope of the Military Lending Act rules to cover deposit advance products, and more types of payday, auto title, and installment loans. In 2006, Congress passed the Military Lending Act to protect active-duty military personnel, active National Guard or Reserve personnel, and their dependents from predatory lending practices. In 2013, Congress amended the law by, among other things, giving the CFPB specific authority to enforce it. Read the full report.

For more information on servicemember protections and bankruptcy, be sure to pick up a copy of ABI's Bankruptcy and Debt under the Servicemembers Civil Relief Act from the ABI Bookstore.

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CREDIT-DEFAULT SWAPS GET ACTIVIST NEW LOOK

Hedge-fund managers are putting a new twist on credit-default swaps, using the contracts to fortify bets on troubled companies, the Wall Street Journal reported yesterday. The swaps, which work like insurance policies when companies default on bonds and loans, fell out of favor after Wall Street's outsize bets on the swaps soured during the financial crisis. Now, investors are increasingly combining credit-default-swaps trades with elements of activist investing to push companies toward default in some cases and away in others. Swaps buyers pay sellers an upfront fee and a steady flow of premiums in exchange for a guaranteed payout from the seller if default occurs. Historically, the corporate credit-default-swaps market was dominated by bets on giant borrowers with billions of dollars of debt outstanding. But that use has declined, while swaps contracts on the debt of smaller companies in financial distress has surged. The average market capitalization of the five most actively traded nonfinancial companies in the credit-default-swaps market has been about $6 billion since March, according to data from Depository Trust & Clearing Corp. and S&P Capital IQ. That's down from $20 billion at the end of 2013 and well below the $16 billion average since July 2010, when DTCC began collecting the data. Read more.(Subscription required.)

INVESTORS STRUGGLE TO GET INTO SOME PRIVATE EQUITY FUNDS

Pension funds, endowments and wealthy individuals that invest with private equity are finding it increasingly hard to get into the most sought-after funds, according to data and industry participants, the Wall Street Journal reported today. Private-equity firms, which raise money from such investors and then put it to work in various investment strategies, are generally filling their coffers faster this year from clients. The proportion of private-equity funds that reached or exceeded the maximum amount the firms set out to raise this year is at its highest level since at least 2009, according to a snapshot of funds for which private-equity tracker Preqin has data. Typically, firms put a limit on the size of the fund they are raising, known as a hard cap, at the beginning of the fundraising process. That hard cap generally can't be exceeded without approval from fund investors. As of Nov. 13, 55 percent of roughly 280 funds for which Preqin had hard-cap data reached or surpassed that maximum size. Last year, 43 percent of funds hit or exceeded those limits. Also, private-equity firms have taken an average of 16.4 months to raise capital for funds that have closed this year, Preqin data show. That's two months shorter than the average time it took to raise funds that closed in 2013.Read more.(Subscription required.)

Additionally, some of the largest private-equity firms are giving up their claim to fees that generated hundreds of millions of dollars for them over the years in the face of pressure from investors and heightened scrutiny from federal regulators, the Wall Street Journal reported yesterday. The investment firms usually collect the fees from companies they buy for providing services such as consulting, serving as directors and helping them make their own acquisitions. Instead of keeping some of the money, the buyout firms, in new funds they are raising, will now pass the fees on in full to investors in the funds. The payouts being reimbursed, known in the industry as transaction and monitoring fees, have provided many private-equity firms with a steady income stream augmenting their share of investment gains on deals, which remain the key source of profits from their buyout funds. The decision by private-equity firms to essentially reimburse investors with payments that can amount to tens of millions of dollars or more, sometimes on just one transaction, shows the increased influence wielded by investors such as public pension funds that historically accepted terms buyout firms proffered. To reimburse investors, the buyout firms don't actually pay cash. Instead, they lower separate management fees the investors owe by the same amount. For managing their money, private-equity firms typically charge investors between 1 and 2 percent of the cash they commit as a management fee. Blackstone, Apollo Global Management LLC, Carlyle Group LP and KKR collectively reported roughly $9 billion in management fees from their private-equity businesses between 2008 and the end of 2013, regulatory filings show. Read more.(Subscription required.)

EMERGING-MARKET DISTRESSED DEBT LOSS IS WORST SINCE 2008

Emerging-market distressed debt losses are the worst this month since the global financial crisis, Bloomberg News reported yesterday. Bank of America Merrill Lynch's Distressed Emerging Markets Corporate Plus Index fell 13.4 percent through Dec. 26, set for its worst performance since October 2008, as a tumble in the price of oil sparked a currency crisis in Russia. That brought this year's decline to 19.7 percent, the most in six years. High-yield distressed securities in the U.S. lost 8 percent, the indexes show. Emerging markets accounted for 14 of the 56 global defaults this year in Standard & Poor's coverage. Read more.

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USTP NOTICE OF PROPOSED RULEMAKING ON CHAPTER 11 MONTHLY OPERATING REPORTS

Section 602 of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) authorizes the U.S. Trustee Program (USTP) to issue rules requiring uniform periodic reports by debtors in possession or trustees in non-small business cases under chapter 11. The USTP just published in the Federal Register a notice of proposed rulemaking seeking public comment on the proposed rule and periodic report forms. The proposed rule is published in the Federal Register at 79 FR 66659 (Nov. 10, 2014) (to be codified at 28 C.F.R. pt. 58). The proposed rule, along with the proposed periodic report forms and instructions, may be viewed on the USTP's website. The proposed rule may also be accessed at www.regulations.gov. All public comments must be submitted on or before January 9, 2015, via www.regulations.gov. Please note that the proposed rule and forms only apply in chapter 11 cases filed by debtors that are not small businesses. Small business debtors are already required to use Official Form 25C, "Small Business Monthly Operating Report."

NEW CASE SUMMARY ON VOLO: STATION FINANCIAL V. MCCORMICK (IN RE MCCORMICK; 8TH CIR.)

Summarized by Bryan Robinson

 

The Eighth Circuit Bankruptcy Appellate Panel reversed the bankruptcy court's order denying Starion Financial's motion to compel payment of fees under the confirmed reorganization plan and granting the debtors' motion to disallow attorneys' fees and costs. The Bankruptcy Appellate Panel remanded the case back to the bankruptcy court for further proceedings consistent with the panel's opinion. There are more than 1,500 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: IRS AUCTIONING DEFERRED ANNUITY OF FORMER BASEBALL PLAYER

A recent blog post looks at the IRS auction of the deferred annuity the New York Mets owe to former major league baseball player Darryl Strawberry.

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

"Executoriness" should be dropped as a threshold requirement in § 365.

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

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    Jan. 19, 2015 | New Orleans
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    Jan. 22-23, 2015 | Denver

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    Feb. 25-27, 2015 | Las Vegas
 

  

 

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    March 5-7, 2015 | Tampa, Fla.
- Bankruptcy Battleground West
    March 24, 2015 | Los Angeles, Calif.

April
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    April 16-19, 2015 | Washington, D.C.

 

 

 
 
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Fourth Circuit Rules That Borrower May Sue after Three Years to Rescind Mortgage Loan

ABI Bankruptcy Brief | May 8, 2012

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May 8, 2012
 
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  NEWS AND ANALYSIS   

FOURTH CIRCUIT RULES THAT BORROWER MAY SUE AFTER THREE YEARS TO RESCIND MORTGAGE LOAN

The U.S. Court of Appeals for the Fourth Circuit has held that a lawsuit seeking rescission is timely where the consumer provided notice of rescission to the subservicer within three years of closing but did not file suit until after the three-year deadline had passed, according to a Ballard Spahr Legal Alert today. The May 3, 2012, decision in Gilbert v. Residential Funding LLC is the first by a federal appellate court to hold that a borrower need only send notice of rescission within the three-year period to validly exercise a right to rescind. The majority of courts to consider the question—including the Third and Ninth Circuits—have held that the requirement for the borrower to file suit within the three-year period is consistent with the language of §1635 of the Truth in Lending Act and prior precedent, including the U.S. Supreme Court's decision in Beach v. Ocwen Federal Bank. In its opinion, the Fourth Circuit rejected the subservicer’s reliance on Beach, observing that Beach "did not address the proper method of exercising a right to rescind or the timely exercise of that right" but only addressed whether §1635 was a statute of limitations that operated to extinguish the right after three years. Click here to read the full analysis.

For more on this case, including a full copy of the opinion, make sure to visit ABI’s Volo site.

LAWMAKERS PUSH TO EASE HOME REFINANCING

Senate Democrats today tried to drum up support for a plan that aims to boost the number of struggling homeowners able to refinance by allowing those with government-backed loans to win new loans, Reuters reported. Senator Robert Menendez (D-N.J.) circulated a draft bill outlining proposed changes to the Obama administration's Home Affordable Refinance Program during a Senate Banking Committee hearing today on the topic of home refinancing. The draft bill would provide streamlined financing options for homeowners who are current on their payments and have loans owned or guaranteed by Fannie Mae and Freddie Mac, the two government-controlled companies that have been propped up by more than $150 billion in taxpayer aid. However, it excludes a key piece of the White House plan that would let homeowners refinance into loans backed by the Federal Housing Administration, the U.S. government mortgage-insurer, even if their current loans are not backed by the government. More than 17.5 million borrowers with loans backed by Fannie Mae and Freddie Mac currently pay more than 5 percent interest, according to the draft, while mortgage rates are averaging under 4 percent currently nationwide. Many of those borrowers have been unable to access government initiatives such as HARP. Read more.

LOCKHART: FANNIE MAE REFUSED TO PUNISH COUNTRYWIDE FOR BAD DEBT

James Lockhart, who led the Federal Housing Finance Agency until 2009 and its predecessor, the Office of Federal Housing Enterprise Oversight, said that Fannie Mae refused to seek large amounts of mortgage repurchases from Countrywide Financial Corp. as the housing market began to crash, Bloomberg News reported yesterday. Lockhart said that he spent a lot of time pushing Fannie Mae executives to seek more “putbacks” on Countrywide loans that failed to match their promised quality. "They didn’t want to offend their largest customer," Lockhart, now the vice chairman at investment firm WL Ross & Co., said yesterday. "If people had known how bad the repurchases were going to get, we’d certainly have had a lot more disciplined underwriting," Lockhart said. Read more.

CONSUMER CREDIT INCREASES BY MOST IN 10 YEARS

Consumer borrowing in the U.S. surged in March by the most in more than a decade on growing demand for educational financing and autos, Bloomberg News reported yesterday. Credit rose by $21.4 billion, the biggest gain since November 2001, to $2.54 trillion, according to Federal Reserve figures released yesterday. The advance was paced by a $16.2 billion jump in non-revolving debt, including student and car loans. Read more.

SENATE BALKS AT TAKING UP STUDENT LOAN BILL

With federal student loan interest rates set to double July 1, the Senate failed yesterday to get enough votes to take up a bill to extend low 3.4 percent rates for another year, CNNMoney.com reported. The vote was 52-45 to take up the bill, 8 fewer than the 60 needed to officially start debating the bill. Senate Republicans and Democrats are still negotiating a compromise, and the Senate could vote again this week. Many lawmakers in both parties agree that they would like to extend the current 3.4 percent rates for another year. They disagree, however, on how to offset the $6 billion it would cost to do so. House Republicans passed a measure that would pay for extending the lower student loan rate by cutting from a health care fund that promotes preventive care. President Obama vowed to veto that bill. President Obama and Senate Democrats want to pay for the measure by eliminating some tax benefits for small business owners. Read more.

In related news, a report found that the U.S. Education Department must step up its oversight of private student-loan debt collectors, improving the tracking of borrower complaints and changing its commission system to reward customer service, the San Francisco Chronicle reported today. Contractors hired by the government to chase defaulted borrowers fail to maintain "fair and efficient" systems to track complaints, according to the report, released yesterday by the National Consumer Law Center, a nonprofit advocacy group. The department weighs collection, rather than complaints, too heavily in awarding contracts, it said. With $67 billion of student loans in default, the Education Department has hired 23 private debt-collection companies to chase borrowers. They include Pioneer Credit Recovery, a unit of SLM Corp., the largest student-loan company, also known as Sallie Mae. In the year ended in September, the department received 1,406 complaints against the debt collectors, up 41 percent from the year before. Read more.

REGULATORS SEEK ALTERNATE PLANS ON MONEY MARKET FUNDS

Federal regulators are increasingly worried that the Securities and Exchange Commission could fail to complete more-stringent rules on money-market mutual funds, forcing officials to confront how else to rein in the $2.6 trillion industry, the Wall Street Journal reported today. While financial regulators would prefer the SEC to act on its own, some officials behind the scenes have started to investigate whether the Financial Stability Oversight Council, a special panel created by the 2010 Dodd-Frank financial overhaul, could act if the SEC can't agree on a proposal to shore up funds or reduce risk. Regulators' consideration of alternatives comes as the SEC has met internal and external snags in its efforts to complete a proposal aimed at reducing both money funds' vulnerability to credit shocks and investor incentives to flee the funds at the first sign of trouble. SEC Chairman Mary Schapiro has directed the campaign, which comes on top of an initial round of rule-tightening for the funds in 2010. Her proposals would limit investors' ability to sell all their funds immediately and change how the funds are priced. Read more. (Subscription required.)

REGISTER FOR THE LABOR & EMPLOYMENT COMMITTEE'S "EVOLVING LABOR ISSUES IN CHAPTER 11" WEBINAR

Make sure to mark your calendars for May 23 from 2-3 p.m. ET for the ABI Labor and Employment Committee's "Evolving Labor Issues in Chapter 11" Webinar. A panel of experts will be discussing recent developments in several large complex bankruptcy cases, including Hostess, Kodak, Nortel and American Airlines. The expert panel includes Babette A. Ceccotti of Cohen, Weiss & Simon LLP (New York), former chief counsel of the PBGC Jeffrey B. Cohen of Bailey & Ehrenberg PLLC (Washington, D.C.), Marc Kieselstein of Kirkland & Ellis LLP (New York) and Ron E. Meisler of Skadden, Arps, Slate, Meagher & Flom LLP. Issues to be discussed include:

• Hostess' efforts to eliminate their multi-employer pension plan contribution liability through motions to reject their labor agreements under Section 1113.
• Kodak's attempt to terminate retiree health benefits.
• The effect of the automatic stay upon efforts by the U.K. Pension Protection Fund and the U.K. Nortel Pension Plan to enforce its powers under the U.K. Pensions Act.
• American Airlines' efforts to reduce legacy costs in bankruptcy.

Click here to register.

U.S. TRUSTEE PROGRAM RE-OPENS COMMENT PERIOD ON PROPOSED GUIDELINES FOR ATTORNEY COMPENSATION IN LARGE CHAPTER 11 CASES

The U.S. Trustee Program has re-opened the comment period until May 21, 2012, on proposed guidelines for reviewing applications for attorney compensation in large chapter 11 cases ("fee guidelines"). The USTP also scheduled a public meeting for June 4, 2012, at the U.S. Department of Justice in Washington, D.C. on the proposed fee guidelines. Click here for more information on submitting comments or attending the public hearing.

ABI IN-DEPTH

LATEST CASE SUMMARY ON VOLO: GILBERT V. RESIDENTIAL FUNDING LLC (4TH CIR.)

Summarized by ABI Deputy Executive Director Amy Quackenboss

A lawsuit seeking rescission of a mortgage loan is timely under the Truth in Lending Act where the consumer provided notice of rescission to the subservicer within three years of closing but did not file suit until after the three-year deadline under the TILA had passed. The Fourth Circuit rejected the subservicer's reliance on the U.S. Supreme Court's desicion in Beach v. Ocwen Federal Bank, observing that Beach "did not address the proper method of exercising a right to rescind or the timely exercise of that right" but only addressed whether 15 U.S.C. §1635 was a statute of limitations that operated to extinguish the right after three years.

Nearly 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: CONGRESS ASKING TOO MUCH OF BANK REGULATORS

The Bankruptcy Blog Exchange is a free ABI service that tracks 35 bankruptcy-related blogs. A recent blog post discusses whether Congress is piling on too many rules for regulators to enforce without proportionately increasing the number or competence of examiners in the aftermath of the financial crisis.

Be sure to check the site several times each day; any time a contributing blog posts a new story, a link to the story will appear on the top. If you have a blog that deals with bankruptcy, or know of a good blog that should be part of the Bankruptcy Exchange, please contact the ABI Web team.

ABI Quick Poll
The debtor-in-possession model has proven too susceptible to abuse; a trustee should be appointed in every chapter 11 case, at least as a check on a DIP with more limited management authority. 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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  CALENDAR OF EVENTS

May
- New York City Bankruptcy Conference
     May 9, 2012 | New York, N.Y.
- 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.
- 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.

 
 
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State Bankruptcy Debate Returns

ABI Bankruptcy Brief | November 6 2012
 
  

November 13, 2012

 
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  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 [email protected] 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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  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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Report HAMP Increased Mortgage Renegotiations but Only Reached One-Third of Targeted Households

ABI Bankruptcy Brief | September 6, 2012
 
  

September 11, 2012

 
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  NEWS AND ANALYSIS   

REPORT: HAMP INCREASED MORTGAGE RENEGOTIATIONS, BUT ONLY REACHED ONE-THIRD OF TARGETED HOUSEHOLDS

A recent report by academics and Federal Reserve researchers revealed that the 2009 Home Affordable Modification Program generated an increase in the intensity of renegotiations while adversely affecting the effectiveness of renegotiations performed outside the program. Renegotiations induced by the program resulted in a modest reduction in the rate of foreclosures, but did not alter the rate of house price decline, durable consumption or employment in regions with higher exposure to the program. The overall impact of HAMP, according to the report, will be substantially limited since the renegotiations it induces will reach just one-third of its targeted 3 to 4 million indebted households. To read the full report, please click here.

COMMENTARY: TOO MUCH PROTECTION FOR DERIVATIVES IN BANKRUPTCY

Current "safe harbors" in the Bankruptcy Code are too broad and amount to little more than a subsidy to the derivatives industry, according to a commentary by Prof. Stephen Lubben in the New York Times DealBook blog today. The safe-harbor provisions Prof. Lubben addresses are derivatives and repo contracts that are exempt from the automatic stay, the prohibition on termination of contracts with the debtor, the prohibition on constructively fraudulent transfers and the prohibition on obtaining preferential treatment on the eve of bankruptcy. Similar provisions protect "securities contracts," and open up the argument that any transaction that occurs in the general vicinity of a broker-dealer is immune from the normal rules of bankruptcy. Prof. Lubben's concern with the safe harbors is not so much the statutory provisions but the role that courts have come to play in expanding the provisions beyond their already-broad statutory language. Read more.

DEBT COLLECTORS CASHING IN ON STUDENT LOANS

As the number of people taking out government-backed student loans has exploded, so has the number who have fallen at least 12 months behind in making payments — about 5.9 million people nationwide, up about a third in the last five years, the New York Times reported on Sunday. Nearly one in every six borrowers with a loan balance is in default. The amount of defaulted loans — $76 billion — is greater than the yearly tuition bill for all students at public two- and four-year colleges and universities, according to a survey of state education officials. In an attempt to recover money on the defaulted loans, the Education Department paid more than $1.4 billion last fiscal year to collection agencies and other groups to hunt down defaulters. Unlike private lenders, the federal government has extraordinary tools for collection that it has extended to the collection firms. Overall, the government recoups about 80 cents for every dollar that goes into default — an astoundingly high rate, considering that most lenders are lucky to recover 20 cents on the dollar on defaulted credit cards. Read more.

TOUGHER DODD-FRANK FIDUCIARY STANDARD FOR BROKERS STALLED

Despite support from both Wall Street and consumer advocates, a U.S. Securities and Exchange Commission proposal to raise standards for brokers advising retail investors has run aground, Bloomberg News reported yesterday. The SEC, which has been drafting a rule for almost two years, has scheduled no action on the measure as 2012 wanes and a presidential election approaches. SEC Chairman Mary Schapiro, who pushed to include the measure in the Dodd-Frank Act to ensure that clients receive equal treatment from brokers and investment advisers, said that other rules will probably take precedence in coming months. Dodd-Frank instructed the SEC to consider mandating that brokers operate under a fiduciary standard as rigorous as that for investment advisers. Lawmakers sought the uniform standard to eliminate investor confusion over the roles of brokers and advisers, and to protect customers from being overcharged or sold inappropriate products. Schapiro declined to predict when the SEC will act on the rule, which is considered optional under Dodd-Frank. The agency is "steadily working through all the mandated rulemakings," she said. Read more.

SOME EXPERTS SEE AIG BAILOUT SUCCESS AS A DOUBLE-EDGED SWORD

The Treasury Department estimated yesterday that its pending sale of shares in global insurance giant American International Group would put taxpayers in the black, four years after the government rescued the company in one of the largest bailouts of the financial crisis, according to a Washington Post report today. Officials estimated that after the sale, the Treasury and the Federal Reserve will have netted $194.7 billion from its AIG investment, about $12 billion more than the government committed in aid. The stock sale would leave Treasury with approximately 317 million shares in AIG — a 21.5 percent stake in the company, down from a high of 92 percent — and leave open the possibility for future additional profit as the government exits the company. However, some experts insist that even a largely successful bailout comes with its own set of circumstances. "It creates perverse incentives,” said Prof. William Black of the University of Missouri-Kansas City Law School. "There's an enormous danger to providing bailouts to systemically dangerous institutions and, in particular, bailing out their creditors 100 cents on the dollar." Christy Romero, the special inspector general for the government’s bailout fund, the Troubled Assets Relief Program, shares concerns that the success of the AIG bailout could lead investors to expect the government to rescue other firms whose failure could threaten the economy and thereby does not adequately discourage excessively risky practices. Read more.

ABI IN-DEPTH

LATEST CASE SUMMARY ON VOLO: IN RE KNIGHT-CELOTEX LLC (7TH CIR.)

Summarized by Attorney Karl Johnson

Affirming the district court, the Seventh Circuit held that the bankruptcy court did not abuse its discretion by finding that a trustee was not judicially estopped from assigning claims against the principal of corporate debtors due to the trustee's failure to state an intent to pursue or abandon those claims in an application to employ counsel; instead, the omission was found to be a harmless violation of the disclosure requirements of Section 327(a) and Rule 2014(a) because the claims had been prominent in prior court records and because it "defie[d] belief to think that the trustee would abandon a possible multimillion dollar recovery on behalf of the companies’ creditors without a word."

There are more than 600 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: SECOND CIRCUIT TO WEIGH IN ON TRADING OF BANKRUPTCY CLAIMS

The Bankruptcy Blog Exchange is a free ABI service that tracks 35 bankruptcy-related blogs. A recent blog post examines how the Second Circuit Court of Appeals recently heard arguments in a case that could have substantial implications on the trading of bankruptcy claims. While the court could choose to resolve the case, Longacre Master Fund, Ltd. v. ATS Automation Tooling Systems Inc., based on a straightforward analysis of New York contract law, it may also take the opportunity to consider the controversial claims trading case of Enron v. Springfield Associates decided several years ago by the district court for the Southern District of New York.

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

Bankruptcy courts should have unfettered discretion in adjusting fee applications, even when no party-in-interest has raised objections.

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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STARTING THURSDAY:

SW 2012
Sept. 13-15, 2012
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SE 2012
Sept. 13-14, 2012
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NYU 2012
Sept. 19-20, 2012
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"WHEN IS AN INDIVIDUAL CHAPTER 11 THE BEST FIT?" LIVE WEBINAR
Sept. 27, 2012
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NABMW 2012
Oct. 4, 2012
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SE 2012
Oct. 5, 2012
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SE 2012
Oct. 5, 2012
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SE 2012
Oct. 8, 2012
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ABI YOUNG AND NEW MEMBERS COMMITTEE “TRENDING ISSUES: EXAMINERS AND SELECT PLAN CONFIRMATION ISSUES” WEBINAR
Oct. 15, 2012
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SE 2012
Oct. 18, 2012
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MEXICO 2012
Nov. 7, 2012
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4TH ANNUAL PROFESSIONAL DEVELOPMENT PROGRAM
Nov. 9, 2012
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SE 2012
Nov. 12, 2012
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SE 2012
Nov. 29 - Dec. 1, 2012
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MT 2012
Dec. 4-8, 2012
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ACBPIKC 2013
Feb. 17-19, 2013
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  CALENDAR OF EVENTS
 

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.
- "When Is an Individual Chapter 11 the Best Fit?" Live Webinar
     September 27, 2012
- 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.
- "Trending Issues: Examiners and Select Plan Confirmation Issues" Webinar
October 15, 2012

  

 

- International Insolvency and Restructuring Symposium
     October 18, 2012 | Rome, Italy

November
- U.S./Mexico Restructuring Symposium
     November 7, 2012 | Mexico City, Mexico
- Professional Development Program
     November 9, 2012 | New York, N.Y.
- Detroit Consumer Bankruptcy Conference
     November 12, 2012 | Detroit, Mich.
- 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

February
- Kansas City Advanced Consumer Bankruptcy Practice Institute
     February 17-19, 2013 | Kansas City, Mo.


 
 
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Survey U.S. Cities Still Face Fiscal Strain

ABI Bankruptcy Brief | September 18, 2012
 
  

September 18, 2012

 
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  NEWS AND ANALYSIS   

SURVEY: U.S. CITIES STILL FACE FISCAL STRAIN

A survey released on Thursday by the National League of Cities showed that America's cities are projecting a sixth straight year of revenue declines in 2012, although more financial officers feel that their municipalities are now better able to meet their fiscal needs, the Wall Street Journal reported on Friday. The survey, which included responses from 324 cities, also found that reserves are expected to fall as cities use the extra cash to weather the economic downturn. If projections hold, cities would have drawn down their reserves by nearly 50 percent since 2007. Employee and retiree health care costs and pensions were identified as having the largest negative impact on city finances, and looking ahead, underfunded pension and health care liabilities will persist as a challenge. Urban economies will also face declining or slow growth in future property taxes, given that the real estate market continues to sputter. Read more. (Subscription required.)

COMMENTARY: DESPITE LOW FED RATES, BANK BOND YIELDS ON MORTGAGE RATES CONTINUE TO INCREASE

While a 30-year mortgage with 2.8 percent interest could already exist, something in the banking system is holding it back, even though few experts agree on what that "something" is, according to a commentary today in the New York Times DealBook blog. Right now, borrowers are paying around 3.55 percent for a 30-year fixed rate mortgage that qualifies for a government guarantee of repayment. That's down from 4.1 percent a year ago, and 5.06 percent three years ago. Mortgage rates have declined as the Federal Reserve has bought trillions of dollars of bonds, a policy that aims to stimulate the economy. Last week, the Fed said that it would make new purchases, focusing on bonds backed by mortgages. While banks make mortgages, they have sold most of them into the bond market since the 2008 crisis, attaching a government guarantee of repayment in the process. The metric effectively encapsulates the size of the gain that banks make on those sales. In September 2011, banks were making mortgages with an interest rate of 4.1 percent. They were then selling those mortgages into the market via bonds that were trading with an interest rate, or yield, of 3.36 percent, according to a Bloomberg index. Bond yields have fallen a lot more than the mortgage rates banks are charging borrowers. Banks are not fully passing on the low rates in the bond market to borrowers, according to the commentary, but are instead taking bigger gains, thereby increasing the size of their cut. Read the full commentary.

REPORT: FED RESEARCHERS SAY CONSUMER DOUBT WORSENED UNEMPLOYMENT

A Federal Reserve study said that the U.S. unemployment rate would be around 7 percent instead of the current 8 to 9 percent if not for the current level of doubt among consumers about economic issues including fiscal policy, Bloomberg News reported today. "Uncertainty has pushed up the U.S. unemployment rate by between one and two percentage points since the start of the financial crisis in 2008," Sylvain Leduc and Zheng Liu, research advisers at the San Francisco Fed, wrote in a paper released today. The Federal Open Market Committee on Sept. 13 announced that it will hold interest rates at near zero until at least mid-2015 and purchase $40 billion a month in mortgage debt until the labor market improves. The unemployment rate has exceeded 8 percent for 43 months, Labor Department figures showed Sept. 7. Consumers' doubts about the economy may have put a greater drag on the economy over the past few years, compared to previous recessions, because policymakers had never run out of room to lower the federal funds rate until 2008, Leduc and Liu said. Doubt played "essentially no role" during the 1981-82 recession and its subsequent recovery, when the Fed’s benchmark interest rate was much higher, the authors’ analysis showed. Read more.

COMMENTARY: “TREASURY” MOTORS

The Obama Administration is refusing GM's stock buyback because the automaker's shares are trading at around $24 – no mere tumble from the November 2010 IPO price of $33. Selling at that point would mean that the government would lose $15 billion, according to a Wall Street Journal editorial today. GM executives are requesting that Treasury offload at least some of its 500 million shares, or 26.5 percent of the company. The company is anxious to shed its “Government Motors” stigma as well as compensation ceilings that make it difficult to recruit talent. However, GM's share price needs to hit $53 for the U.S. to break even. Read more. (Subscription required.)

ABI IN-DEPTH

ABI MEMBERS WELCOME TO ATTEND ACB'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 in Chicago 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 nation’s leading judges, academics and bankruptcy professionals are among the speakers for the program. 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: FDIC V. AMTRUST FINANCIAL CORP. (IN RE AM TRUST FINANCIAL CORP.; 6TH CIR.)

Summarized by Tony Bisconti of Bienert, Miller & Katzman

In affirming the district court, the Sixth Circuit Court of Appeals found that language in a stipulated cease-and-desist order requiring a parent corporation to "ensure" that its subsidiary, a bank, maintain certain ratios was ambiguous, and it was also ambiguous with respect to the entity it supposedly obligated (whether it was the parent, the board of the parent or the subsidiary). The Sixth Circuit further found that based on a totality of the evidence considered, the district court did not commit error in determining that the cease-and-desist order was not intended to be a commitment of the parent corporation to maintain the capital of the subsidiary bank entitling the FDIC to payment under 11 U.S.C. §365(o).

There are more than 600 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: NINTH CIRCUIT HOLDS THAT NON-DISCHARGEABILITY ACTIONS ARE NOT SUBJECT TO ARBITRATION

The Bankruptcy Blog Exchange is a free ABI service that tracks 35 bankruptcy-related blogs. A recent blog post examines a recent ruling by the Ninth Circuit Court of Appeals rejecting two creditors' creative contention that the debtor’s debt to them should be denied a discharge under §523 for fraud in connection with a contract containing an arbitration clause resolved through arbitration proceedings. In Matter of Eber, 2012 WL 2690744 (9th Cir. 2012), the creditors and the debtor entered into an agreement relating to the construction and operation of the debtor’s beauty salon in Las Vegas. The agreement required that all disputes arising under the agreement would be arbitrated in New York. After disputes arose, the creditors commenced an arbitration proceeding against the debtor asserting claims for breach of contract, fraud and breach of fiduciary duty.

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

Bankruptcy courts should have unfettered discretion in adjusting fee applications, even when no party-in-interest has raised objections.

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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TOMORROW:

NYU 2012
Sept. 19-20, 2012
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COMING UP:

"WHEN IS AN INDIVIDUAL CHAPTER 11 THE BEST FIT?" LIVE WEBINAR
Sept. 27, 2012
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NABMW 2012
Oct. 4, 2012
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SE 2012
Oct. 5, 2012
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SE 2012
Oct. 5, 2012
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SE 2012
Oct. 8, 2012
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ABI YOUNG AND NEW MEMBERS COMMITTEE “TRENDING ISSUES: EXAMINERS AND SELECT PLAN CONFIRMATION ISSUES” WEBINAR
Oct. 15, 2012
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SE 2012
Oct. 18, 2012
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MEXICO 2012
Nov. 7, 2012
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4TH ANNUAL PROFESSIONAL DEVELOPMENT PROGRAM
Nov. 9, 2012
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SE 2012
Nov. 12, 2012
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SE 2012
Nov. 29 - Dec. 1, 2012
Register Today!

 

MT 2012
Dec. 4-8, 2012
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ACBPIKC 2013
Feb. 17-19, 2013
Register Today!

 
   
  CALENDAR OF EVENTS
 

September
- 38th Annual Lawrence P. King and Charles Seligson Workshop on Bankruptcy & Business Reorganization
     September 19-20, 2012 | New York, N.Y.
- "When Is an Individual Chapter 11 the Best Fit?" Live Webinar
     September 27, 2012
- 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.
- "Trending Issues: Examiners and Select Plan Confirmation Issues" Webinar
October 15, 2012
- International Insolvency and Restructuring Symposium
     October 18, 2012 | Rome, Italy

  

 

November
- U.S./Mexico Restructuring Symposium
     November 7, 2012 | Mexico City, Mexico
- Professional Development Program
     November 9, 2012 | New York, N.Y.
- Detroit Consumer Bankruptcy Conference
     November 12, 2012 | Detroit, Mich.
- 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

February
- Kansas City Advanced Consumer Bankruptcy Practice Institute
     February 17-19, 2013 | Kansas City, Mo.


 
 
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Percentage of Homes in Foreclosure Drops Nationwide

ABI Bankruptcy Brief | January 24 2013
 
  

January 24, 2013

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

PERCENTAGE OF HOMES IN FORECLOSURE DROPS NATIONWIDE

The percentage of homes in foreclosure dropped nationwide last month, although the percentage of borrowers behind on their payments increased slightly, the Los Angeles Times reported today. In a sign of continued recovery in the housing market, about 3.44 percent of mortgages were in some stage of the foreclosure process in December, according to Lender Processing Services Inc., a mortgage and consumer loan processing firm. That represents a nearly 2 percent decline from November and a roughly 18 percent drop-off from a year earlier. The percentage of mortgages that are 30 days or more past due stood at 7.17 percent last month, a 0.74 percent increase from November, LPS reported. Still, that rate declined 9 percent when compared with the same month in 2011. Read more.

COMMENTARY: BANK REFORM TAKES ONE FLAWED STEP FORWARD

While the Financial Accounting Standards Board (FASB) issued a draft of a new rule to change the way banks build reserves against losses on loans, the proposed rule is flawed conceptually and in its application, according to a Wall Street Journal commentary by Eugene A. Ludwig, CEO of the Promontory Financial Group and former Comptroller of the Currencey, and Paul Volcker, former chairman of the Federal Reserve System and namesake of the Volcker Rule included in the Dodd-Frank Act. It is a positive sign, according to the commentary, that the FASB recognizes that its existing rules on the Allocation for Loan and Lease Losses may have worsened the 2008 financial crisis. These rules limited bank reserves to those that are already "incurred." This all but ensures that banks' rainy day funds will be too skinny, particularly in periods when credit markets are under stress. The FASB's draft proposal to reform these rules incorporates what is known as the "Current Expected Credit Loss Model." It is meant to expand reserves to reflect losses that are expected over the life of the loan, and it is a big improvement over the existing regime. But as it stands, the proposal could create risks for the financial system as it could hurt small banks and their customers, according to the commentary. In an effort to ensure that everything is "auditable," the proposal ties the loan-loss reserve to what the accounting profession will decide is an acceptable "model." While the proposal is well-intentioned and makes clear that various models can be used, this model-driven approach is dangerous. Click here to read the full commentary. (Subscription required.)

FINANCIAL CRISIS SUIT SUGGESTS MORGAN STANLEY KNEW OF BAD INVESTMENTS

Hundreds of pages of internal Morgan Stanley documents, released publicly last week in a case against Morgan Stanley brought by a Taiwanese bank, shed much new light on what bankers knew at the height of the housing bubble and what they did with that knowledge, the New York Times DealBook blog reported today. The lawsuit concerns a $500 million collateralized debt obligation called Stack 2006-1, created in the first half of 2006. The documents suggest a pattern of behavior larger than this one deal: People across the bank understood that the American housing market was in trouble. They took advantage of that knowledge to create and then bet against securities and then also to unload garbage investments on unsuspecting buyers. Morgan Stanley is fighting the lawsuit, contending that the buyers were sophisticated clients and could have known what was going on in the subprime market. Read more.

LIBOR SUIT LIST SHOWS BARCLAYS PROBE SPANNED NY TO TOKYO

Barclays Plc senior executives, dozens of traders and the bank’s chief economist were all identified by regulators in a probe into interest-rate rigging that spanned continents, according to documents released in the U.K.’s first Libor-manipulation lawsuit, Bloomberg News reported today. Barclays is being sued by affiliates of Guardian Care Homes Ltd. that claim that an interest-rate swap should be annulled because it is linked to Libor, which Barclays tried to rig. Judge Julian Flaux in London rejected a bid by a group of employees identified in the Libor documents to prevent their names from being published ahead of a trial later this year. Among those identified in connection with the case were former Chief Executive Officers Robert Diamond and John Varley, and Jerry Del Missier, the bank’s former chief operating officer. The list of names, which Judge Flaux in London said had to be turned over to Guardian, was compiled from evidence that Barclays provided in the regulatory probes that led a 290 million-pound fine ($457.5 million) in June. Read more.

BLOOMBERG'S LATEST "BILL ON BANKRUPTCY" VIDEO: AMR MAKE-WHOLE OPINION VULNERABLE ON APPEAL

The case of the week on the Bloomberg bankruptcy video is the decision by Bankruptcy Judge Sean Lane who concluded that American Airlines is not obliged to pay several hundred million dollars in make-whole premiums even though debt would be repaid before maturity. Lee Pacchia and Bloomberg News bankruptcy columnist Bill Rochelle discuss how Lane's adverse ruling evidently was expected by the debt holders who believe the result may be better on appeal, if the dispute does not become moot in the meantime. Click here to watch.

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!

CURRENT ISSUES FOR FINANCIAL ADVISORS IN BANKRUPTCY CASES AT ABI'S 31ST ANNUAL SPRING MEETING

The 2013 Annual Spring Meeting, to be held April 18-21, 2013, at the Gaylord National Resort and Convention Center in National Harbor, Md., features a roster of the best national speakers, while the depth and scope of topics offer something for everyone. Specifically, four concurrent workshops will cover various “tracks,” including programs for attorneys in commercial cases, a track for restructuring professionals, a track of professional development programming and a track dealing solely with consumer issues. More than 16 hours of CLE/CPE is offered in some states, along with ethics credit totaling 3 hours, making the cost only about $50 per credit. In addition, committee sessions will drill down on other topics to provide you with the most practical and varied CLE/CPE experience ever. Sessions include:

• 17th Annual Great Debates
• Mediation: An Irrational Approach to a Rational Result
• Creditors’ Committees and the Role of Indenture Trustees and Related Issues
• The Individual Conundrum: Chapter 7, 11 or 13?
• The Power to Veto Bankruptcy Sales
• Real Estate Issues in Health Care Restructurings
• Law Firm Bankruptcies
• How to Be a Successful Expert
• The Ethical Compass: Multiple Ethical Schemes Applicable to Financial Advisors
• Chapter 9s, Nonprofits and Other Nontraditional Restructuring Processes
• And much more!

The Spring Meeting will also feature a field hearing of the ABI Commission to Study the Reform of Chapter 11, a report from the ABI Ethics Task Force, a luncheon panel discussion moderated by Bill Rochelle of Bloomberg News, and a Final Night Gala Dinner featuring a concert by Joan Jett and the Blackhearts!

Register today!

ABI IN-DEPTH

ABI LIVE WEBINAR: REVISITING RADLAX AND HALL – NEW LEGAL AND PRACTICAL IMPACT OF THE DECISIONS

See why this was the top-rated panel at the ABI Winter Leadership Conference last month! Join the expert panel on Feb. 19 from 12:00-1:15pm EST as the summarize and discuss the legal impact and practical implications of the Supreme Court’s 2012 decisions in Radlax and Hall. Participants include:

Susan M. Freeman of Lewis and Roca LLP (Phoenix)

Adam A. Lewis of Morrison & Foerster LLP (San Francisco)

• Prof. Charles J. Tabb of the University of Illinois College of Law (Champaign, Ill.)

Eric E. Walker of Perkins Coie LLP (Chicago)

Click here to register!

LATEST CASE SUMMARY ON VOLO: MASSACHUSETTS DEPT. OF UNEMPLOYMENT ASSISTANCE V. OPK BIOTECH LLC (IN RE PBBPC INC.; 1ST CIR.)

Summarized by Hale Yazicioglu, Bartlett Hackett Feinberg P.C.

The First Circuit BAP, adopting the expansive definition of “interest” in § 363(f) of the Bankruptcy Code, held that “interest” in § 363(f) includes all obligations that may flow from ownership of property, including the right to tax the purchaser of the debtor’s assets at the same high rate imposed on the debtor. The First Circuit BAP first evaluated its jurisdiction on appeal and found that the bankruptcy court order approving the stipulation entered into between the parties effectively terminated the litigation, and therefore was a final judgment from which the parties could appeal to the BAP.

There are more than 700 appellate opinions summarized on Volo, and summaries typically appear within 24 hours of the ruling. Click here regularly to view the latest case summaries on ABI’s Volo website.

NEW ON ABI’S BANKRUPTCY BLOG EXCHANGE: THIRD CIRCUIT REJECTS WAIT-AND-SEE VALUATION APPROACH AND ACCEPTS LIENSTRIPPING IN § 506(a)

The Bankruptcy Blog Exchange is a free ABI service that tracks 35 bankruptcy-related blogs. A recent post examines In re Heritage Highgate, Inc., in which the Third Circuit held that the fair market value of property as of the confirmation date controls whether or not a lien is fully secured. Additionally, the court held that lienstripping is permissible in a chapter 11 reorganization.

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'S INDUBITABLE EQUIVALENTS: TELL US A TUNE AND WE'LL SING YOU THAT SONG!

ABI's Indubitable Equivalents need your help: Tell us your favorite Rock and Roll tune - that elusive classic that takes you back, makes your feet tap, your head bang, and your horns come out! If we pick your song, you get widespread promotion by the band and you'll receive a free CD of IE’s greatest hits!

To enter, log onto www.abiband.com or “like” the Band’s Facebook page.

The fine print: No purchase necessary. You can enter as many times as you want. Multiple winners will be selected. Winners will be announced on the IE website and on Facebook. Entry deadline: January 31.

ABI Quick Poll

After Stern, bankruptcy courts do not have the constitutional authority to enter final judgments on fraudulent conveyance claims.

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:

 

 

ACBPIKC 2013
Feb. 7-9, 2013
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COMING UP:

 

 

ABI Live Webinar: Revisiting RadLAX and Hall- New Legal and Practical Impact of the Decisions
Feb. 19, 2013
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ACBPIKC 2013
Feb. 20-22, 2013
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Paskay 2013
March 7-9, 2013
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BBW 2013
March 22, 2013
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"Nuts and Bolts" Program at ASM- A Must for Junior Professionals or Those New to Bankruptcy Practice
April 18, 2013
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ASM 2013
April 18-21, 2013
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  CALENDAR OF EVENTS
 

2013

February
- Caribbean Insolvency Symposium
     February 7-9, 2013 | Miami, Fla.
- ABI Live Webinar: Revisiting RadLAX and Hall- New Legal and Practical Impact of the Decisions
     February 19, 2013
- VALCON 2013
     February 20-22, 2013 | Las Vegas, Nev.


  

 

March
- 37th Annual Alexander L. Paskay Seminar on Bankruptcy Law and Practice
     March 7-9, 2013 | St. Petersburg, Fla.
- Bankruptcy Battleground West
     March 22, 2013 | Los Angeles, Calif.

April
- Annual Spring Meeting
     April 18-21, 2013 | National Harbor, Md.


 
 
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