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Analysis When Lenders Are Not Paid Back

ABI Bankruptcy Brief | August 20, 2013
 
  

August 20, 2013

 
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  NEWS AND ANALYSIS   

ANALYSIS: WHEN LENDERS ARE NOT PAID BACK

Much of the lending done in the U.S. relies on having both collateral and contractual obligations (loan covenants) that together provide the lender with assurance that the funds lent out will be repaid. Rather than putting up physical assets as collateral, governments often instead promise to repay bondholders out of a dedicated stream of income, such as via the tolls collected on a bridge or out of unspecified revenue from future taxes. It is not surprising, then, that a financial crisis involving trillions of dollars of bad loans led to legal conflicts and policy debates about the role of collateral and the sanctity of contracts, according to an analysis in today's New York Times Economix Blog. It seems likely that people owed money by the city of Detroit will get less than promised. One of the many elements in the city's bankruptcy proceedings is the treatment of the holders of general obligation bonds, which constitute $530 million out of the city's $18 billion in total debt. In the past, this type of municipal bond was considered relatively safe in that the borrowing authority was seen as having an implicit commitment to raise taxes as necessary to pay off the obligation. The proposal from Kevyn Orr, Detroit's emergency manager, however, would have these bonds paid back at only 20 cents on the dollar. With Detroit city services already threadbare, and with Orr's bankruptcy proposal foisting losses on retired city workers and current employees through reductions in pensions and other benefits, it seems only fair for bondholders to share in the pain. Bond insurers are likely to file suit, but success by Orr in upending the heretofore accepted view of general obligation bonds could inflict considerable pain on other municipal borrowers, who might well expect to pay higher interest rates to investors nervous that one day other cities might follow Detroit's example. Click here to read the full analysis.

COMMENTARY: NO BANKER LEFT BEHIND

The Detroit bankruptcy case has been cast as a contest between bondholders and pensioners that can be resolved only by shared sacrifice. In principle, there is no problem with that, although in practice, the pensioners' fair share will have to take into account their extreme vulnerability: Public pensions are not federally insured, and many municipal retirees do not receive Social Security. What is problematic is shared sacrifice that does not seem to apply to the big banks that abetted Detroit's descent into bankruptcy, according to a commentary in Friday's New York Times. Just days before its bankruptcy filing last month, Detroit reached its first settlement with creditors. The settlement was with UBS and Bank of America, and although the precise terms will not be nailed down until the bankruptcy judge weighs in, Detroit is set to pay an estimated $250 million to terminate a soured derivatives transaction from 2005 that was supposed to protect Detroit from rising interest payments on a chunk of its variable rate debt. By 2009, both interest rates and the city's credit rating were falling, forcing Detroit to pay the banks some $50 million a year and to pledge roughly $11 million a month in casino-tax revenue as additional collateral. The banks have agreed in a settlement to a discount of as much as 25 percent off what they are owed. But the haircut doesn't mean that the banks will suffer. The banks' 25 percent hit is nothing compared with the city's suggested 90 percent cut to the pensions' unfunded liability — which will result in benefit cuts that would be disastrous in both human and political terms and that the State of Michigan must prevent from happening, according to the commentary. Click here to read the full commentary.

DETROIT SCHOOLS SELL BONDS, FOR A PRICE

Detroit's public-school system sold $92 million in debt today at a substantial yield premium in the largest Michigan municipal-bond sale since Detroit's bankruptcy filing last month, the Wall Street Journal reported today. The Michigan Finance Authority, which sold the debt for Detroit Public Schools, offered the one-year debt at a yield of 4.375%. That compares with 0.18% on a typical triple-A-rated, one-year municipal bond, according to Thomson Reuters Municipal Market Data. The borrowing is backed by a pledge of state aid, a protection cited by some investors who placed orders for the debt. Still, some investors stayed away. Detroit's bankruptcy, filed July 18, has sparked concerns that municipal bonds may not be as safe as many investors once assumed. Kevyn Orr, the city's emergency manager, has proposed imposing cuts on some muni bondholders as the city looks to restructure more than $18 billion in debt. And while Detroit's school district is a separate entity from the city and isn't involved in its bankruptcy, it has still seen its share of financial struggles. It has been under state control, under a separate emergency manager, since 2009, and it has also lost more than 33,000 students, or 40% of its enrollment base, since 2010, according to S&P. Even so, holders of the one-year debt sold today should get paid even if enrollment falls as much as 33%, according to S&P. Click here to read the full article. (Subscription required.)

TRANSUNION: AUTO LOAN DELINQUENCIES REMAIN FLAT DESPITE INCREASE IN LOAN BALANCES

The national auto loan delinquency rate (the percentage of accounts 60 or more days past due) remained relatively flat year-over-year, moving from 0.79% in Q2 2012 to 0.80% in Q2 2013, according to a newswire report today. On a quarter-over-quarter basis, the auto loan delinquency rate experienced an 8-basis-point drop from 0.88% in Q1 2013, according to data provided by TransUnion's Industry Insights Report. Auto loan balances continue to increase, jumping more than 4% between Q2 2012 ($12,875) and Q2 2013 ($13,435). Every state except for Michigan experienced an increase in average auto loan balances during this time frame. While subprime borrower debt increased more than 7% in the last year, delinquency levels for this segment remained about the same, moving from 4.94% in Q2 2012 to 5.02% in Q2 2013. Click here to read the full article.

ABI GOLF TOUR UNDERWAY; NEXT STOP IS THE SOUTHWEST BANKRUPTCY CONFERENCE ON THURSDAY

The 6th stop for the ABI Golf Tour is on Aug. 22 at the Incline Village Champion course, held in conjunction with ABI's Southwest Bankruptcy Conference. Final scoring to win the Great American Cup — sponsored by Great American Group — is based on your top three scores at seven scheduled ABI events, so play as many as you can before the tour wraps up at the Winter Leadership Conference in December. See the Tour page for details and course descriptions. The ABI Golf Tour combines networking with fun competition, as golfers "play their own ball." Including your handicap means everyone has an equal chance to compete for the glory of being crowned ABI's top golfer of 2013! A 22-handicapper won the tour event at July's Southeast Bankruptcy Workshop. There's no charge to register or participate in the Tour.

ABI IN-DEPTH

NEW CASE SUMMARY ON VOLO: AMERICAN BANK, FSB V. IN RE CORNERSTONE COMMUNITY BANK (IN RE AMERICAN BANK, FSB; 6TH CIR.)

Summarized by Bryan Robinson of Law Offices of Bryan Robinson

The Sixth Circuit Court of Appeals affirmed the ruling by the district court that, in regards to the competing secured claims by American Bank and Cornerstone Community Bank, in the funds of the insolvent debtor U.S. Insurance Group (USIG), held in an account at Cornerstone, American Bank's interest was superior to Cornerstone's interest and that Cornerstone had no right to the money. The court's decision was based on the Premium Finance Company Act, Tenn. Code Ann. §§ 56-37-101 et seq. (2008), which gave American a senior perfected security interest in the contested funds good against any competing interest claimed by Cornerstone.

There are nearly 1,000 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: § 502(b)(2) AND THE COLLECTION OF POST-PETITION INTEREST

The Bankruptcy Blog Exchange is a free ABI service that tracks 35 bankruptcy-related blogs. A recent blog post discusses the Ninth Circuit's decision that a creditor can collect post-petition interest from a nondebtor party even though the Code prohibits a creditor from asserting a claim for "unmatured interest."

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

A class of claims should not be considered impaired for purposes of § 1129(a)(10) if the impairment results from the plan proponents' exercise of discretion (i.e., artificial impairment) and not driven by economic need. (In re Village at Camp Bowie I LP).

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  CALENDAR OF EVENTS
 

2013

August
- Southwest Bankruptcy Conference
    August 22-24, 2013 | Incline Village, Nev.

September
- ABI Endowment Golf & Tennis Outing
    Sept. 10, 2013 | Maplewood, N.J.
- ABI Endowment Baseball Game
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- Lawrence P. King and Charles Seligson Workshop on Bankruptcy & Business Reorganization
    Sept. 18-19, 2013 | New York
- abiLIVE Webinar: Complex Requirements and Ethical Duties of Representing Consumer Debtors
     Sept. 24, 2013
- Bankruptcy 2013: Views from the Bench
    Sept. 27, 2013 | Washington, D.C.

October
- Midwestern Bankruptcy Institute Program and Midwestern Consumer Forum
    Oct. 4, 2013 | Kansas City, Mo.
- Professional Development Program
    Oct. 11, 2013 | New York, N.Y.


  


- Chicago Consumer Bankruptcy Conference
    Oct. 14, 2013 | Chicago, Ill.
- International Insolvency & Restructuring Symposium
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November
- Complex Financial Restructuring Program
   Nov. 7, 2013 | Philadelphia, Pa.
- Corporate Restructuring Competition
   Nov. 7-8, 2013 | Philadelphia, Pa.
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   Nov. 10-12, 2013 | Austin, Texas
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   Nov. 11, 2013 | Detroit, Mich.

December
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- ABI/St. John’s Bankruptcy Mediation Training
    Dec. 8-12, 2013 | New York


 
 
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Analysis Troubled Home Equity Loans Loom on the Horizon

ABI Bankruptcy Brief | July 17, 2012
 
  

July 17, 2012

 
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  NEWS AND ANALYSIS   

ANALYSIS: TROUBLED HOME EQUITY LOANS LOOM ON THE HORIZON

Even a strong recovery is unlikely to rescue many homeowners who are struggling under the weight of multiple mortgages, the New York Times reported today. At Wells Fargo, for example, in the quarter ended March 31, nearly 44 percent of the bank's home equity borrowers paid only the minimum amount due. The Office of the Comptroller of the Currency published in its spring 2012 "Semiannual Risk Perspective" that almost 60 percent of all home equity line balances would start requiring payments of both principal and interest between 2014 and 2017. The amounts owed in these lines of credit climb significantly in coming years. While $11 billion in home equity lines are starting to require principal and interest payments this year, the amount jumps to $29 billion by 2014, the office said. That is followed by a surge to $53 billion in 2015 and $73 billion in 2017. For 2018 and beyond, it is $111 billion. The properties backing many of these loans are no longer worth the amounts borrowed on them. In the first quarter of 2012, the top four banks held $295.1 billion in revolving residential lines of credit, according to Amherst Securities. Using data from the Federal Reserve, Amherst said that Bank of America held $101.4 billion; Wells Fargo, $93.3 billion; JPMorgan Chase, $84.4 billion; and Citigroup, $15.9 billion. As a result, the risks to borrowers cited in the comptroller's office report will also be faced by their lenders. Read more.

"UNDERWATER" MORTGAGE REFINANCING GROWS, BUT CRITICS PRESS FOR MORE ASSISTANCE

The number of homeowners refinancing their mortgages under a revamped federal program grew in May, but critics are still pressing a federal regulator to do more, the Wall Street Journal reported today. For the first five months of 2012, more than 78,000 homeowners who owe more than 105 percent of their property's value have refinanced using the government’s Home Affordable Refinance Program (HARP). That was up from about 60,000 in all of 2011, the Federal Housing Finance Agency said in a report yesterday. In May alone, 21,605 homeowners who owe more than 105 percent of their home's current value completed refinances through HARP. That was up from 15,371 in April and only 4,168 in May 2011. However, relatively few homeowners who are deeply "underwater"—meaning they owe more on their properties than their homes are worth—have completed the refinancing process. Only about 11,000 homeowners who owe more than 125 percent of their home's value have refinanced under HARP to date. Those numbers may rise further since a method to package those loans into mortgage-backed securities became available on June 1. Nevertheless, critics and analysts note that some of the biggest lenders are only refinancing their existing borrowers. They also say that the HARP rules make it hard for borrowers to refinance their loans with new lenders, causing consumers to pay higher-than-necessary rates. Read more. (Subscription required.)

ANALYSIS: NEBRASKA, NOT CALIFORNIA, IS THE OVERALL LEADER OF MUNICIPAL COLLAPSES

Quirks in local, state and federal law have made Nebraska home to almost one-fifth of the more than 220 chapter 9 bankruptcies filed in the U.S. since 1981, according to a nationwide review of federal court records, Bloomberg News reported yesterday. California, with more than 20 times Nebraska's population, is second, followed by Texas and Alabama. California may soon add to its total, as San Bernardino is considering whether to seek court protection this week. The main difference between Nebraska and other states is the kind of governmental bodies that file for bankruptcy: No town, city or county has sought court protection in the state. All 45 of Nebraska’s chapter 9 cases were by special tax districts, most of them owned by residential subdivision developers who used property-tax revenue to pay for streets, sewers and other infrastructure. Read more.

HSBC EXECUTIVES GRILLED IN U.S. SENATE AMID MONEY LAUNDERING ALLEGATIONS

HSBC Holdings Plc executives were grilled by lawmakers over claims that bank affiliates gave terrorists, drug cartels and criminals a portal into the U.S. financial system by failing to guard against money laundering, Bloomberg News reported today. Irene Dorner, president and chief executive officer of HSBC North America Holdings Inc., and other executives appeared in front of the Senate's Permanent Subcommittee on Investigations today at a hearing following the panel’s 335-page report that described a decade of compliance failures by Europe's biggest bank. One of the executives, David Bagley, HSBC's head of group compliance, said at the hearing that he would resign. London-based HSBC enabled drug lords to launder money in Mexico, did business with firms linked to terrorism and concealed transactions that bypassed U.S. sanctions against Iran, Senate investigators said in the report. "The problem here is that some international banks abuse their U.S. access," Senator Carl Levin (D-Mich.), who heads the subcommittee, said at the start of the hearing. “The end result is that the U.S. affiliate can become a sinkhole of risk for an entire network of bank affiliates and their clients around the world playing fast and loose with U.S. rules." Read more.

Click here to read the prepared witness testimony.

CAPITAL ONE SEES CREDIT CARD DELINQUENCIES INCREASE IN JUNE

Capital One Financial Corp. said that delinquencies at its U.S. credit card business rose in June, reversing a four-month decline, while charge-offs eased, MarketWatch.com reported yesterday. Capital One's 30-day delinquency rate for U.S. credit cards edged up to 3.16 percent last month from 3.14 percent in May, according to a filing with the Securities and Exchange Commission. At its international credit card business, the rate increased to 4.84 percent from 4.83 percent a month earlier. Auto-loan delinquencies fell to 5.55 percent from 5.76 percent. Read more.

ABI IN-DEPTH

“SUBJECTING BUSINESS PROJECTIONS TO SCRUTINY IN VALUATION DISPUTES” WEBINAR TO BE HELD ON JULY 30!

Reassembling the speakers from the highest-rated panel at the New York City Bankruptcy Conference this year, ABI will be holding a live webinar on July 30 at 11 a.m. ET titled, "Subjecting Business Projections to Scrutiny in Valuation Disputes." Panelists include:

  • Moderator David Pauker of Goldin Associates, LLC (New York)
  • Martin J. Bienenstock of Proskauer (New York)
  • David M. Hillman of Schulte Roth & Zabel LLP (New York)
  • Bankruptcy Judge Robert E. Gerber (S.D.N.Y.)

The panel will address:

  • How much deference should management projections be accorded?
  • How do you determine whether projections are unrealistically optimistic or pessimistic?
  • What is the relevance of "market consensus?"
  • How do management’s incentives impact projections?

The webinar is available to ABI members for $75 and is approved for 1.0 CLE hours in Calif., Ga., Hawaii, Ill., N.Y. (approved jurisdiction policy) S.C. and Texas. CLE approval is pending in Del., Fla., Pa. and Tenn. To register, please click here.

LATEST CASE SUMMARY ON VOLO: PEARSON EDUCATION, INC. V. ALMGREN (8TH CIR.)

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

The Eighth Circuit Court of Appeals affirmed the orders of the bankruptcy court striking the appellants' demand for a jury trial on the amount of damages in relation to copyright infringement claims and denying an award of attorney's fees sought pursuant to 17 U.S.C. Sect. 505.

More than 550 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: REACTIONS TO THE CREDIT CARD SETTLEMENT

The Bankruptcy Blog Exchange is a free ABI service that tracks 35 bankruptcy-related blogs. A recent post looks at reactions to a proposed deal, announced late on Friday, that would transfer almost $7.5 billion from the credit card networks to merchants. In exchange for that payoff, Visa and MasterCard will get a wide-ranging release from future litigation.

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 anti-modification rule for home mortgages in chapter 13 should be repealed, subjecting mortgage debts to bifurcation like any other secured claim.

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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
 

July
- Southeast Bankruptcy Workshop
     July 25-28, 2012 | Amelia Island, Fla.
-Valuation Webinar, July 30 at 11 a.m. ET

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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Commentary Is Richmond Calif.s Mortgage Seizure Scheme Even Legal

ABI Bankruptcy Brief | September 24, 2013
 
  

September 24, 2013

 
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  NEWS AND ANALYSIS   

COMMENTARY: IS RICHMOND, CALIF.'S MORTGAGE SEIZURE SCHEME EVEN LEGAL?

The possibility of using eminent domain to reduce underwater mortgage debt in the city of Richmond, Calif., survived several tough challenges a week ago, according to a Washington Post commentary on Sunday. The Richmond City Council decided to go ahead with the process after a long hearing that could have possibly derailed it. Meanwhile an attempt by Wells Fargo and Deutsche Bank to have the action shut down even before it properly started was tossed out by a U.S. district court. The arguments will now proceed to the two parts of eminent domain law: demonstrating public purpose for the takings and offering fair value. If the case succeeds, according to the commentary, it is likely that other cities that have been hesitant to adopt the tactic will consider moving forward. The biggest remaining worry, according to the commentary, is whether or not this proposal will permanently harm the ability of people in Richmond to obtain new mortgages. One of the main arguments from the banks is that the housing market is recovering at a rapid clip, and if this process scares off lenders, then it could hurt both future homeowners and the fragile economic recovery. Read more.

ANALYSIS: RETHINKING FANNIE, FREDDIE -- AND THE 30-YEAR MORTGAGE

While Congress debates how to replace Fannie Mae and Freddie Mac, an additional question has surfaced as to whether all Americans should continue to have relatively easy access to the pre-payable, 30-year, fixed-rate mortgage, the Wall Street Journal reported yesterday. The 30-year mortgage provides payments that are stable for the life of the loan, which makes finances easier to manage. In many other countries, homes are financed with adjustable-rate mortgages, where payments rise and fall with prevailing interest rates. The government plays an unusually large role in the U.S. mortgage market because banks don't like holding 30-year mortgages. During the 1980s, many savings-and-loan associations failed when rates jumped because the interest they had to pay to depositors soared above the payments they received on those 30-year mortgages (known as "interest-rate risk"). While Fannie and Freddie take on the risk by buying the mortgages from lenders, package them into securities and sell those to investors, they also promise to make investors whole when mortgages default. Those who want the government out of the mortgage business say the 30-year fixed isn't all it's cracked up to be. Because borrowers pay a lot of interest during the first few years of the loan, it's hard to build equity quickly. Defenders, however, say it's the wrong time to push more people into adjustable-rate loans because interest rates are likely to increase over the coming decade. Read more. (Subscription required.)

STRUGGLING SAN JOSE TESTS A WAY TO CUT BENEFITS

San Jose, the third-largest city in California, now spends one-fifth of its $1.1 billion general fund on pensions and retiree health care, and the amount keeps rising, the New York Times reported today. To free up the money, services have been cut, libraries and community centers closed, the number of city workers trimmed, salaries reduced, and new facilities left unused for lack of staff. From potholes to home burglaries, the city's problems are growing. The situation in San Jose is not anywhere near as dire as it is in Detroit or two other California cities, Stockton and San Bernardino, which are already in bankruptcy. But government officials and municipal bankruptcy experts across the country are watching San Jose closely because of a plan to reduce benefits, which was drafted by Mayor Chuck Reed (D) and passed by 70 percent of voters in a referendum last year. The plan is being opposed in court by unions that say that it is illegal under state law. It would introduce a second tier for new city employees involving much lower pension and health benefits. It would also alter pension benefits for existing workers, allowing them to choose either a similar, second-tier benefits plan or to pay significantly more out of their own pockets for the benefits they have come to expect. Read more.

SOME SMALLER BANKS STILL OWE TARP MONEY

Five years after the financial crisis, 113 small to midsize U.S. banks still owe taxpayers about $2.7 billion, turning what was supposed to be a short-term government lifeline into a long-term source of capital, the Wall Street Journal reported today. The banks, which received funds through the Troubled Asset Relief Program (TARP), pose a challenge for the Treasury Department, which is eager to get rid of its financial stakes but is finding many of the banks too weak to forgo government capital. Repaying the government is about to get harder, as quarterly dividend payments owed to the Treasury are set to nearly double to 9 percent. The institutions left in TARP highlight an incongruity in the banking sector: While much of the industry has returned to health, some smaller banks -- particularly those with heavy exposure to commercial real estate loans -- still are clawing their way back. Many of the banks are so weak that they have been unable to make required dividend or interest payments to the government: Seventy-nine of the remaining banks are behind, owing about $217 million to the government, according to the Treasury. Of those, 63 have missed 10 or more payments, which can be a harbinger of trouble: Anchor BanCorp Wisconsin Inc., which had a $110 million TARP infusion, missed at least 17 payments before filing for bankruptcy in August, wiping out the taxpayers' shares in the bank. California's Saigon National Bank owes roughly $1.5 million, plus an additional $390,000 in missed dividend payments. It has missed 18 of those payments, more than any other bank in the program. Read more. (Subscription required.)

ABI'S UNSECURED TRADE CREDITORS COMMITTEE INVITES YOU TO TAKE PART IN ITS OCT. 2 DISCUSSION: CONSIDERATIONS ARISING OUT OF CLAIM-TRANSFER TRANSACTIONS

Members are encouraged to join ABI's Unsecured Trade Creditors' Committee in a discussion on Oct. 2 at 4 p.m. ET about considerations that arise out of claim-transfer transactions. Bankruptcy claim transfers are an active part of the bankruptcy process in today's marketplace, and for this reason, the Judicial Conference of the United States imposed a new fee on each transfer, effective May 1, 2013. The moderator for the call, Neil B. Glassman of Bayard, P.A. (Wilmington, Del.), will lead a discussion focusing on the steps in a claim-sale transaction, standard provisions in the transaction documents, developments in the industry, and tricks and traps creditors' counsel can avoid. If you would like to participate on the committee call, please contact Martha Cannon at mcannon@abiworld.org.

ABILIVE WEBINAR NEXT WEEK LOOKS AT THE INTERSECTION OF INTELLECTUAL PROPERTY AND BANKRUPTCY: KODAK, NORTEL AND OTHER CASES

IP experts will shed light on the mysteries of understanding IP law and navigating the often puzzling sales processes, drawing from their experiences in Nortel, Kodak and other important cases, in an abiLIVE webinar on Oct. 3 from 1:00-2:15 p.m. ET. Speakers will include David Berten (Global IP Law Group, LLC; Chicago), Pauline K. Morgan (Young Conaway Stargatt & Taylor, LLP; Wilmington, Del.), Cassandra M. Porter (Lowenstein Sandler LLP; Roseland, N.J.), Kelly Beaudin Stapleton (Alvarez & Marsal; New York) and Christopher Burton Wick (Hahn Loeser & Parks LLP; Cleveland). To register, click here.

FIRST ABI WORKSHOP PROGRAM LOOKS AT RISKY TIMES FOR SECURED LENDERS AND SERVICERS! ATTEND IN PERSON OR VIA LIVE WEBSTREAM

You will not want to miss the abiWorkshops series' inaugural program, "Risky Times for Secured Lenders and Servicers." The program is cosponsored by TMA (Chesapeake), IWIRC (D.C./Greater Maryland) and RMA (Potomac), and will be held on Nov. 6 from 9 a.m. to 3 p.m. ET in the ABI Headquarters Conference Center in Alexandria, Va. The abiWorkshops series provides attendees two great ways of participating: You can register to attend in person at the ABI Conference Center, or you can participate via a live webstream! Topics that will be covered on the Nov. 6 program include:

- Living with the New CFPB Mortgage Servicing Rules
- Business Lending: Navigating What Lies Ahead
- Business Lending: Recent Legal Developments

For more information or to register for the "Risky Times for Secured Lenders and Servicers" abiWorkshop on Nov. 6, please click here.

RECORDING AVAILABLE OF THE ABILIVE WEBINAR EXAMINING THE NEW U.S. TRUSTEE FEE GUIDELINES!

If you were not able to join ABI's recent well-attended abiLIVE webinar examining the U.S. Trustee Fee Guidelines for chapter 11 cases filed on or after Nov. 1, a recording of the program is now available for downloading! A panel of experts, including Clifford J. White, the director of the U.S. Trustee Program, discussed some of the ways the new guidelines could change day-to-day operations in firms, issues relating to the new market rate benchmarks, and how these changes might alter insolvency practice. The 90-minute recording is available for the special ABI member price of $75 and can be purchased here.

ABI GOLF TOUR UNDERWAY; LAST STOP FOR 2013 IS WINTER LEADERSHIP CONFERENCE IN DECEMBER

The 7th and final stop for the 2013 ABI Golf Tour is on Dec. 5 at the Trump National Golf Club, held in conjunction with ABI’s Winter Leadership Conference. Final scoring to win the Great American Cup — sponsored by Great American Group — is based on your top three scores from the seven ABI events. See the Tour page for details and course descriptions. The ABI Golf Tour combines networking with fun competition, as golfers "play their own ball." Including your handicap means everyone has an equal chance to compete for the glory of being crowned ABI's top golfer of 2013! A 22-handicapper won the tour event at July’s Southeast Bankruptcy Workshop. There's no charge to register or participate in the Tour.

ABI IN-DEPTH

NEW CASE SUMMARY ON VOLO: BANK OF AMERICA, N.A. V. ARMSTRONG (IN RE ARMSTRONG; 8TH CIR.)

Summarized by Bruce Weiner of Rosenberg, Musso & Weiner

The Eighth Circuit BAP affirmed the bankruptcy court's ruling that the debt owed by the debtor to Bank of America was nondischargeable under § 523(a)(4). The debtor received insurance checks payable to his business and the mortgage-holder on the property owned by the business. The debtor used almost all the money for personal expenses instead of repairs or paying it to the mortgage-holder. Bank of America succeeded the rights of the mortgage-holder. Because the mortgage-holder was a loss payee on the policy, it was the owner of the insurance proceeds, and therefore when the debtor failed to remit the funds or even inform the mortgage-holder about the funds, he knowingly took funds that he knew belonged to the mortgage-holder. The debtor was not lawfully entitled to use the funds, and therefore the obligation of the debtor to Bank of America was nondischargeable under § 523(a)(4).

There are more than 1,000 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: BANKRUPTCY COURT DECIDES IRS FORM 1099-C CONSTITUTES ADMISSION THAT BANK CANCELLED CLAIM

The Bankruptcy Blog Exchange is a free ABI service that tracks more than 80 bankruptcy-related blogs. A recent blog post examines a decision from the U.S. Bankruptcy Court for the Eastern District of Tennessee that highlights the interplay between bankruptcy and tax issues. In In re Reed, Judge Richard Stair, Jr. held that an Internal Revenue Service "Cancellation of Debt" Form 1099-C delivered by a bank to a debtor, who as a result of which reported cancellation-of-debt income, constituted an admission by the bank that its claim had been cancelled. The court emphasized that the issuance of Form 1099-C itself did not discharge the debt. Rather, the issuance of the form "reflects" the discharge or cancellation of the debt.

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

Success fees for financial advisors should be prohibited.

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
 

2013

September
- Bankruptcy 2013: Views from the Bench
    Sept. 27, 2013 | Washington, D.C.

October
- abiLIVE Webinar: The Intersection of Intellectual Property and Bankruptcy: Kodak, Nortel and Other Cases
     Oct. 3, 2013
- Midwestern Bankruptcy Institute Program and Midwestern Consumer Forum
    Oct. 4, 2013 | Kansas City, Mo.
- Professional Development Program
    Oct. 11, 2013 | New York, N.Y.
- Chicago Consumer Bankruptcy Conference
    Oct. 14, 2013 | Chicago, Ill.
- International Insolvency & Restructuring Symposium
    Oct. 25, 2013 | Berlin, Germany

November
- abiWorkshop: "Risky Times for Secured Lenders and Servicers"
   Nov. 6, 2013 | Alexandria, Va.

  



- Complex Financial Restructuring Program
   Nov. 7, 2013 | Philadelphia, Pa.
- Corporate Restructuring Competition
   Nov. 7-8, 2013 | Philadelphia, Pa.
- Austin Advanced Consumer Bankruptcy Practice Institute
   Nov. 10-12, 2013 | Austin, Texas
- Detroit Consumer Bankruptcy Conference
   Nov. 11, 2013 | Detroit, Mich.
- Delaware Views from the Bench
   Nov. 25, 2013 | Wilmington, Del.

December
- Winter Leadership Conference
    Dec. 5-7, 2013 | Rancho Palos Verdes, Calif.
- ABI/St. John’s Bankruptcy Mediation Training
    Dec. 8-12, 2013 | New York


 
 
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Detroit Needs Residents but Sends Some Packing

 
  

July 1, 2014

 
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  NEWS AND ANALYSIS   

DETROIT NEEDS RESIDENTS, BUT SENDS SOME PACKING

While Detroit Mayor Mike Duggan pledges to stem the flood of departures that have crippled the bankrupt city and to begin increasing the city's population for the first time in decades, tens of thousands of residents are on the verge of losing their houses for failing to pay their property taxes, the New York Times reported on Friday. In a city that desperately needs to hold onto residents, there is a virtual pipeline out. At least 70,000 foreclosures have taken place since 2009 because of delinquent property taxes. And more than 43,000 properties -- more than one in 10 in this city -- were subject to foreclosure this year, some of them headed for a public auction where prices can start as low as $500.Tax foreclosures have grown so steeply that county officials have lately had to forgo pursuing tens of thousands of additional properties that have fallen far enough behind to risk foreclosure. Other cities wrestle with unpaid taxes, too, but the size of Detroit's problem is staggering. Contributing factors are soaring rates of poverty, high taxes despite painfully diminished city services and a long pattern of lackadaisical tax collection by the city. In some cases, homeowners have abandoned properties and simply quit paying taxes, and foreclosure may be the only way to get a house back into the hands of people who actually want to live there and pay their share. In other cases, those who lose or abandon their houses sometimes end up buying other houses at auction -- sometimes for as little as $500 -- and begin the cycle again, although new rules are in place to take back properties sooner if taxes are again not paid. Either way, the city fails to get all the tax revenue it is owed. Political leaders here acknowledge that the flood of tax foreclosures has become a problem, and say they are making efforts to improve the situation by lowering property assessments -- and thus tax bills -- and by trying to help people find steady incomes. Read more.

CORINTHIAN COLLEGE STUDENTS AWAIT THEIR FATE AS BREAKUP LOOMS

Corinthian Colleges Inc.'s 72,000 students will soon be swept into the biggest collapse the U.S. for-profit education industry has ever seen, Bloomberg News reported today. Corinthian, which also owns the Heald and WyoTech career schools, as well as an online university, is scheduled to present a plan to the Education Department today to sell most of its 107 campuses and close others. The wind-down comes after the U.S. Department of Education cut Corinthian's access to student aid following more than a decade of complaints. Lawsuits against Corinthian in two states allege that at some schools instructors don't teach, the isolated and the unemployed are badgered into enrolling and the ultimate mission is to lure in students to seize federal money. Corinthian, based in Santa Ana, Calif., has been accused of falsifying grades and job-placement data, luring students with non-existent programs and pushing them into high-interest, subprime loans they can't repay. Read more.

PUERTO RICO SWAP COST AT RECORD HIGH BEFORE BOND PAYMENTS

Investor confidence in Puerto Rico's ability to repay debt is sinking as the cost to protect commonwealth bonds against default has more than doubled since June 12 to the highest ever, Bloomberg News reported today. Puerto Rico Electric Power Authority bondholders are awaiting payment today on maturing debt after legislators last week enacted a law meant to allow some government entities to restructure outside bankruptcy. A revision of Prepa's $8.6 billion in debt would be the largest ever in the $3.7 trillion municipal-bond market. Prices on some Prepa bonds increased today, data compiled by Bloomberg show. Prepa's trustee, U.S. Bancorp, has the money for today's payment on $204 million in bonds, said David Millar, a New York-based spokesman for the Government Development Bank, the commonwealth's financial agent. Even with the money, the trustee can withhold funds if it believes Prepa needs them for legal fees or other expenses, said Lyle Fitterer, who helps manage $33 billion of municipal bonds at Wells Capital in Menomonee Falls, Wis., among them some of the bonds due today. The market reflects the uncertainty. It costs about $1.5 million annually, the most ever, to protect $10 million of commonwealth debt for 10 years through credit-default swaps, according to data provider CMA, which is owned by McGraw Hill Financial Inc. The crisis reflects a broader malaise in the island commonwealth, whose tax-free debt is held in 66 percent of U.S. muni mutual funds. Puerto Rico's economy has struggled to grow since 2006 and its unemployment rate of 13.8 percent is more than double the U.S. average. About 45 percent of its residents are in poverty, according to U.S. Census data. The commonwealth for years has borrowed to keep its government functioning, and investors hungry for the rewards of risky debt kept lending. Read more.

REGULATORS ISSUE HELOC RESET GUIDANCE

Four federal regulatory agencies and the Conference of State Bank Supervisors today issued guidance to financial institutions regarding home equity lines of credit (HELOC) nearing their "end-of-draw" periods, CreditUnionTimes.com reported today. The guidance encouraged financial institutions to effectively communicate with borrowers about the pending reset, and provides broad principles for managing HELOC risks. The regulators said that they recognize that financial institutions and borrowers may face challenges as HELOCs near their end-of-draw periods. Many borrowers will continue to meet their contractual obligation when their loan resets to an amortizing payment or reaches a balloon maturity. However, some may find it difficult to make higher payments or to refinance their existing loans due to changes in their financial circumstances or declines in property values, and could need loan modification. The guidance described how financial institutions can effectively manage their potential exposures under these circumstances, including specific examiner expectations regarding risk mitigation strategies and documentation. Additionally, the appropriate accounting and reporting procedures for HELOCs nearing their end-of-draw periods were also included. Read more.

Click here to read the guidance letter.

CHIEF BANKRUPTCY JUDGES REACT TO BELLINGHAM DECISION

On June 16, 2014, ABI presented a panel of chief bankruptcy judges who discussed the new U.S. Supreme Court decision in Bellingham as well as other hot topics. Bankruptcy Judges Dennis R. Dow (W.D. Mo.), C. Ray Mullins (N.D. Ga.), Brendan Linehan Shannon (D. Del.), Cecelia G. Morris (S.D.N.Y), and Barbara J. Houser (N.D. Tex.) reviewed the Bellingham decision and provided commentary on what effect it will have on the bankruptcy courts. You can still hear what these judges had to say by purchasing the program by clicking here.

ARGENTINIAN DEBT CRISIS AND ITS IMPLICATIONS FOR SOVEREIGN DEBT RESTRUCTURING? WATCH JAMES MILLSTEIN'S PRESENTATION AT THE CROSS-BORDER SYMPOSIUM

Not able to catch James Millstein's presentation on Argentina and the future of sovereign debt restructuring on June 20 at ABI's Cross-Border Symposium? Watch the full presentation in ABI's Newsroom.

NEW CASE SUMMARY ON VOLO: NATIONAL HERITAGE FOUNDATION INC. V. HIGHBOURNE FOUNDATION (4TH CIR.)

Summarized by Cara Murray of Whiteford Taylor & Preston LLP

The Fourth Circuit affirmed the bankruptcy court's ruling that the non-debtor release provision in the debtor's chapter 11 reorganization plan was unenforceable.

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: WHILE FILINGS MAY BE DOWN, BANKRUPTCY CASES BECOMING MORE COMPLEX

A blogger recently examined the composition of their cases over the past two years and found that, while the number of filings may have decreased, the cases require just as much time due to the complexity of the cases and the requirements of the Code.

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

A special Bankruptcy Code chapter 14 should be created for "TBTF" (too-big-to-fail) financial institutions.

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
- abiLIVE Webinar: Proposed Chapter 14 and the Future of Large Financial Institution Resolution
    July 15, 2014 |
- Northeast Bankruptcy Conference
    July 17-20, 2014 | Stowe, Vt.
- Southeast Bankruptcy Workshop
    July 24-27, 2014 | Amelia Island, Fla.
- 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.
- 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. 16-17, 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.

November
- Chicago Consumer Bankruptcy Conference
    Nov. 11, 2014 | Chicago, Ill.

 

 
 
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