Thursday, October 29, 2009

Anonymity and Cyber-Bullying

This is somewhat off-topic. However, as a blogger, I am interested in cases about blogging. Recently, I have come across coverage of two cases dealing with people who wanted to say mean things on-line under the cloak of anonymity. One case involved postings which were merely libelous and nasty, while another involved a determined campaign of cyber-bullying against two female law students.

Skanks of NYC

The current issue of the Federal Lawyer has an excellent article by Michael Tonsing entitled "A Fashion Model, a Mean-Spirited Name-Calling Detractor, a Blog, and at Least Four Teachable Moments," The Federal Lawyer (October 2009), p. 10. It is the story of a blogger who wrote five posts about a fashion model under the title "Skanks of NYC." The author also included some sexually suggestive photos of the model. The model, Liskula Cohen, sued Google to find out the identity of the blogger. The trial judge in New York granted this request over Google's objection. The outed blogger turned out to be another woman, who then sued Google for giving up her IP address. In an interesting case of chutzpah, the attorney for the outed blogger compared the right to hurl anonymous insults to the authors of the Federalist Papers who wrote under pseudonyms (but whose identities were well known). Mr. Tonsing concludes his article with a great pun: "Anonymity is not guaranteed. Proceed at your own risk in Cyberia. When is a door not a door? When it's ajar."


The other case, which I discovered from Prof. Nancy Rapoport's blog, is much darker and more disturbing. A website called AutoAdmit bills itself as "the most prestigious law school discussion board in the world." Two Yale law school students were subjected to a vicious smear campaign on the site. Some 39 different anonymous posters using names such as pauliewalnuts, Cheese Eating Surrender Monkey and Sleazy Z started a campaign which began with sexually explicit comments and escalated to statements suggesting that the women be raped and killed. According to a Complaint filed in United States District Court:

Two women who have done nothing except work hard in school and show promise of making contributions to society have been targeted because of their appearance and out of spite to be the subject of a campaign of pornographic abuse. Hiding behind pseudonyms and the smug assumption that their carefully-aimed hostility can pass as merely juvenile misconduct, the defendants have worked assiduously to harm the plaintiffs, for the sheer joy of destruction. Plaintiffs, whose character, intelligence, appearance and sexual lives have been thoroughly trashed by the defendants, now seek redress by bringing this action for damages and injunctive relief.
Complaint, Doe v. Unknown Defendants, Case No. 307CV00909, U.S. District Court for the District of Connecticut, p. 1.

The statements made on the discussion board, which were outrageous in their vulgarity, are set forth in detail in the complaint. Some of the tamer comments suggested that one of the students had bribed her way into Yale Law School and was having a lesbian affair with the Dean of Admissions, included anti-Semitic slurs about the students, stated that one of them had herpes and had numerous postings about the manner in which the posters wanted to have forced sex with them. The campaign went so far as to send anonymous emails to faculty of Yale Law School and a firm where one of the students had a summer clerkship suggesting that she would harm the reputation of both the Law School and the law firm.

The two students fought back, hiring Reputation Defender, which is an internet public relations firm, and filing suit in United States District Court. In the District Court suit, the plaintiffs sent subpoenas to the internet service providers of the anonymous posters seeking their identity. One such anonymous person, who went by the moniker AK47, sought to quash the subpoena. In an interesting opinion, U.S. District Judge Christopher Droney found that:

The forgoing principles and decisions make clear that Doe 21 has a First Amendment right to anonymous Internet speech, but that the right is not absolute and must be weighed against Doe II’s need for discovery to redress alleged wrongs. Courts have considered a number of factors in balancing these two competing interests. This balancing analysis ensures that the First Amendment rights of anonymous Internet speakers are not lost unnecessarily, and that plaintiffs do not use discovery to “harass, intimidate or silence critics in the public forum opportunities presented by the Internet.”
Ruling on Defendant John Doe 21's Motion to Quash Plaintiff's Subpoena and Motion to Proceed Anonymously, Doe v. Unknown Defendants, Case No. 3:07CV909 (D.Ct. 6/13/08). After weighing various factors, the Court concluded that the subpoena should not be quashed.

As a result of discovery, the Plaintiffs concluded that one of the posters was Matthew C. Ryan, an undergraduate student at the University of Texas. Other identities were discovered, but kept quiet during settlement negotiations. When names started to be named, settlements came quickly. Left unanswered was what motivated the attacks in the first place.

In a bizarre sidenote, one of the libelled students is now the defendant in an action brought by a former employee of Auto-Admit. While attending law school, Anthony Ciolli worked for Auto-Admit as chief educational director. In their campaign to get Auto-Admit to take down the offending posts, the students and Reputation Defender publicly named Ciolli as administrator of the site and stated that he had refused to remove the postings. Ciolli was also named as a defendant in the initial lawsuit. Curiously, neither Auto-Admit nor its owner were named as defendants. Ciolli claimed that he had no control over the discussion board. However, when news of the scandal spread, a law firm rescinded its employment offer to him. While much of Ciolli's suit was dismissed on jurisdictional grounds or for failure to state a cause of action, it remains pending in the U.S. District Court in Philadephia.


The internet is a remarkable forum for the expression of ideas. Anyone can become their own publisher with a minimum of effort and can do so anonymously. However, anonymity can be a cloak for abuse. In the case of the Yale Law School students, they were subjected to nothing less than a gang rape of their reputations and psyches. It seems like a bit of an understatement to point out that online defamers are not the modern day equivalent of the authors of the Federalist Papers. In these cases, the outing of the anonymous authors was a good thing.

I choose to write under my own name and photo. I also don't write anything that I would be embarassed to have my mother read. For some time now, I have moderated comments on my bankruptcy blog. Besides filtering out comments which are really ads for male enhancement products, I have rejected several comments which made personal attacks on judges and litigants mentioned in my posts. As they used to say on Hill Street Blues, "Let's be careful out there."

Wednesday, October 21, 2009

Random Thoughts from the National Conference of Bankruptcy Judges--Day 3

Today was the final day of the NCBJ annual meeting. Two interesting things today. Heard a good discussion of Rule 2019 and the highlight of the conference, Supreme Court Associate Justice John Paul Stevens.

Rule 2019

I had never thought too much about Rule 2019. I knew that it was out there and that it required creditors to make some kind of disclosure, but that was about it. Judge Robert Gerber had an interesting take on the Rule. Under its current version, it requires any entity or committee (other than an official committee) representing multiple parties to file a verified statement of (1) the name and address of each person represented, (2) the nature, amount and date of acquisition of the claim (if the claim was acquired within one year before the petition date), (3) the pertinent facts and circumstances of the employment of the entity, (4) with reference to the time of the employment of the entity, the organization or the formation of the committee, the amounts of claims owned by the entity, the members of the committee, the times when acquired, the amounts paid and any sales or other disposition thereof. An amendment to the rule is being considered which would require disclosure of all interests of the committee members, but would not require disclosure of the price paid unless specifically ordered by the court.

As Judge Gerber noted, this Rule is most often honored in the breach. This raises the question of why. Part of the reason, according to Judge Gerber, is that parties are unlikely to throw rocks at each other if it would mean that they would have to comply with the rule also. As the judge noted, in big cases, the major fight is between groups of creditors rather than between the debtor and creditors. He observed that he spends his time refereeing disputes between hedge funds. The other reason is unfamiliarity.

The Rule dates back to the 1930s when ad hoc committees would appear in cases claiming to represent creditors, but actually controlled by insiders. Thus, the Rule ensured that parties dealing with an ad hoc committee knew whether it was a legitimate representative of creditors or a front for the insiders.

In modern practice, and especially under the proposed amended rule, disclosure would require disclosure of the underlying interest of entities participating in an entity. "People's private agendas matter," said the judge. In the modern world of hedge funds, a creditor may claim to hold $500,000,000 of bonds but hold a put to sell back $450,000,000, thus inflating their actual claim. If a creditor is shorting the debtor's stock, it could have an incentive to sink the reorganization while claiming to act as a creditor.

Justice John Paul Stevens

The conference came to its conclusion with a conversation with John Paul Stevens. There was a certain symmetry to this. In the CLLA's opening breakfast, Paul Begala talked about how he had named his son John Paul in honor of the Pope and how President Clinton had introduced him to His Holiness. The conference ended with another John Paul, this one the senior justice on the Supreme Court, having served since 1975. Justice Stevens will turn 90 this year. However, he was the picture of vitality, which he attributed to marrying a beautiful dietician (as well as playing tennis three times a week, golfing regularly and swimming in the ocean). He appeared genial and courtly in his bowtie (which he said that he wears because he never learned how to tie a regular tie).

Two bits of baseball trivia. In 1932, he attended a world series game at Wrigley Field where he saw Babe Ruth point to the outfield and then slam out a homerun. Some years later, he threw out the first pitch at Wrigley Field, a feat that meant more to his grandchildren than his service on the Supreme Court.

He used his own experience in the navy to subtly critique Justices who take a strictly literal approach of statutes and the constitution. While he was serving in naval intelligence, a dispatch came through indicating a Japanese battleship was in an unexpected location. The previous officer of the watch sent out the alarm. Then a duplicate version of the message came through, indicating that the original message had been garbled and that it was just a routine communique from a Japanese personnel officer on a base on an island. His point was "In communications there can be garbles." He said this was useful in trying to figure out "Could (Congress) possibly mean what they appear to say." Of course, in law, you don't have the advantage of a duplicate communique appearing in non-garbled form, so that the analogy didn't completely work.

He said that oral argument is more likely to change the way that a justice analyzes a case, although sometimes it will change his position. He suggested that the purpose of petitions for rehearing was to let the defeated lawyer blow off steam, while saying that dissents let the unsuccessful lawyer know that someone listened to him.

Justice Stevens said that he didn't think there was a good chance for televising oral arguments. He stated that whenever you put television in, it changes things.
He noted that since cameras were added to confirmation hearings for Supreme Court nominees, Senators spent more time making speeches, delaying the actual questioning significantly.

When asked about rumors of his impending retirement, he said, "I don't know the answer either."

On the use of foreign law, he pointed out that state law was foreign law and that no one saw anything untoward about looking at persuasive opinions from state court judges. He added that if an English judge or a European judge wrote something persuasive, he would consider it. However, he did not consider himself bound by foreign law.

His final advice to lawyers was:

"You will be practicing for a long time. There will be temptations to take a short cut here or there. You will be appearing before the same judge over and over. The biggest asset is to earn the respect of the bar and the judiciary."

Final Thoughts

It was a good conference. As you can see from these posts, I heard a lot that I found interesting. I met some judges. I saw some shows. Not a bad way to spend three days.

Random Thoughts From The National Conference of Bankruptcy Judges--Day 2

The most interesting programs I attended yesterday concerned consumer issues in the Post-BAPCPA world and real estate issues. I attended several other informative presentations (including a lunchtime history of the Constitution from former Judge Kenneth Starr), but will focus on these two in the interest of length.

Consumer Issues

I started Tuesday off with Post-BAPCPA Case Update for Consumer Practitioners. The two most interesting issues here were standing and the proposed amendments to the Bankruptcy Rules affecting claims. This one was enjoyable because there were many bankruptcy judges in attendance who contributed to the discussion, including the Hon. Eugene Wedoff, Joan Feeney, Keith Lundin, Brenda Rhoades, Eileen Hollowell and Sheri Bluebond. (They weren't all there at the same time. I repeated this program).

Standing Issues

The standing debate arises when a servicer, debt buyer or some other party files a proof of claim or motion to lift stay. As an initial matter, Sec. 501 provides that a creditor may file a proof of claim, while Sec. 362(d) provides that a party in interest may file a motion for relief from stay. Party in interest is broader than creditor, so that the party in interest language would allow a mortgage servicer to file a motion for relief. However, the disparity is equalled out by Rule 3001(b), which allows an authorized agent to file a proof of claim. A servicer would qualify as an agent.

The next issue is whether the person filing the motion or claim actually owns it. This issue applies to debt buyers and securitization trusts among others. Judge Wedoff argued that on a motion for relief from stay, it is the creditor's burden to show lack of equity. This entails showing that the person is the creditor and the amount of the debt. Not answered was what happens when the party in interest seeks relief for cause. Since the entire burden is on the debtor, does the movant have to prove that they are the actual creditor?

This gave rise to a vigorous debate in both iterations of this presentation that I attended. One view was that a motion for relief from stay is simply relief from an injunction, so that issues of standing could be determined in state court. The counter view was that especially in Western states with non-judicial foreclosure, there is no court review so that lifting the stay was tantamount to disposing of the property. This places the burden on the debtor to seek an injunction against foreclosure in state court.

Another debate had to do with assignees and proofs of claim. Whose interest should be protected when there is an issue regarding ownership of the claim? Is it the debtor or the original holder of the claim? If the original creditor is given notice of the bankruptcy case and a purported assignee files the only claim on that debt, it is safe to assume that the claimant actually holds the claim. On the other hand, when an assignee files a motion for relief from stay, the debtor has a direct interest in whether the person seeking relief is authorized to do so.

These issues are exemplified by cases involving MERS and securitization trusts. MERS is a national clearinghouse for mortgage assignments. The creditor names MERS as the nominee for the trustee under the deed of trust. Thus, if the mortgage is assigned, MERS continues to act as nominee for whoever the current trustee happens to be. The problem arises when MERS files a motion for relief from automatic stay. MERS does not hold the note. It is merely the nominee of the trustee under the deed of trust. Several courts have held that this does not give them standing to file a motion for relief from stay. Securitization trusts also give rise to a problem. Mortgages are put into pools with an indenture trustee. However, in one case which was mentioned, the entity contributing the mortgage loan to the trust was never the holder. There was simply a gap in title.

New Claims Opinion

One of the judges from New Hampshire mentioned the October 19 decision from the First Circuit BAP in In re Plourde, which can be found here. I have not had a chance to review this opinion in detail, but apprently it held that failure to file a claim in the proper form deprived it of prima facie validity, so that the creditor was only entitled to priority as a late filed claim. Not quite sure how they got to that result. It will likely go up to the First Circuit.

Proposed Rules Changes

The other interesting discussion concerned the proposed amendments to Bankruptcy Rule 3001(c) and Bankruptcy Rule 3002.1. The changes to Rule 3001(c) would require more documentation on a claim, including the most recent account statement on a credit card account, an itemized statement of interest, fees, expenses and charges, a statement of the amount necessary to cure an arrearage on a secured claim and an escrow account analysis if applicable. What is really significant about this amendment is that it states that the consequence of failing to provide this information on the claim is that the creditor would be precluded from using this information in any hearing "unless the court determines that the failure was substantially justified or is harmless." Furthere, the court may award sanctions in addition to or in lieu of exclusion of evidence. This is a huge change. Under the current rule, failure to properly document a claim deprives it of prima facie validity, but the creditor can still prove up its claim in a hearing. This rule would effectively provide that failure to properly document the claim means that it may be denied. Some of the speakers suggested that this was not too severe because the creditor could always amend the claim. However, in the Southern District of Texas, Judge Jeff Bohm has held that a creditor may not amend its claim without leave of court once it has been objected to. The rule is also huge because it allows sanctions for filing an improperly documented proof of claim. Under current law, sanctions may be awarded under Rule 9011 which has a safe harbor provision or under the court's inherent authority, which requires a finding of bad faith. Allowing sanctions for filing an improperly documented claim and nothing more is a quantum change.

Proposed Rule 3002.1 would require creditors with a security interest in the debtor's principal residence to file notice of certain charges and changes in payment amounts. If the payment amount changes post-petition due to an adjustment in the interest rate or the escrow amount, notice must be filed 30 days before the payment amount changes. The notice must be given in the same form applicable under non-bankruptcy law. Additionally, a creditor must file a notice of all fees, expenses or charges incurred post-petition as a supplement to its proof of claim. This notice must be filed within 180 days after the charges are incurred. The debtor and the trustee would then have one year to object to the charges. Additionally, the trustee would be required to file a statement indicating that the final payment necessary to cure an arreage on the mortgage has been made. All of these notices can be challenged in court. Failure to give the required notice would bar the charges.

These rules changes are open for comment at until February 16, 2010. If approved, they will go into effect on December 1, 2011.

Real Estate Issues

From there, I went on to the panel discussion on real estate issues moderaed by Prof. Mechele Dickerson from the University of Texas Law School. First up, was a summary of the state of the market from Ronald Greenspan with FTI Consulting. The residential real estate market has hit bottom and is on the upswing in all major markets except Detroit and Las Vegas. However, it had a steep decline, going from 1.7 million housing starts in 2005 to only 500,000 in 2009. Part of the reason that homes sales are recovering is the fact that the government is guarantying 80% of the new mortgages being made. One note of concern is that the level of vacant homes has risen from its typical rate of 1.0% to 2.5%, meaning that houses are sitting empty and subject to vandalism, blight, etc.

The outlook for commercial real estate is much darker. Commercial real estate did not peak until the first quarter of 2008 and has dropped precipitously. Sales ae down by 75%. Default rates have increased from 0.5% to 4.0%. Mr. Greenspan indicated that the commercial fundamentals could continue to go down for another three years.

The panel highlighted three recent real estate cases of interest. In Tousa, Inc., the bankruptcy court recently held that encumbering the property of one group of subsidiary companies to pay off the debts of a different subsidiary was a fraudulent conveyance. The opinion is some 180 pages long.

The panel opined that the Ninth Circuit BAP's opinion in Clear Channel has proven to be less problematic than anticipated. The Clear Channel opinion overruled approval of a Sec. 363 sale over the objection of a dissenting junior lienholder. It held that Sec. 363(f)(3), which allows sales free and clear of liens if the sales price exceeds the aggregate value of all liens refers to the total dollar amount of the lien, not the Sec. 506(b) value. Thus, you could not cut off the junior lienholder based on the argument that the lien was completely underwater. One case subsequent to Clear Channel allowed a sale under similar circumstances based on Sec. 363(f)(5) which allows sale free and clear of liens if the creditor could be forced to accept a monetary satisfaction "in a legal or equitable proceeding." In the specific case, Washington law allows a junior lienholder to be cut off in a foreclosure action, thus satisfying the section. The panel speculated about whether cramdown under chapter 11 would be "a legal or equitable proceeding" under the section.

The recent case of General Growth Properties illustrates what happens when you have a large number of single purpose entities with a central cash management system. The lenders required that each entity have an independent director to keep them bankruptcy remote. However, the debtor simply replaced the independent director on the eve of bankruptcy without notice to the lender or the independent director being replaced. The court noted that the independent director's duty was to the entity rather than to the lender. The court refused to dismiss the bankruptcy cases of solvent debtors who were current upon their debts. The lenders argued that the cases had been filed in bad faith because the debtors were current and had not sought to negotiate with the creditor. The creditor also argued that reorganization was futile because they would not agree to any reorganization plan proposed by the debtor. Of course, this undercut their argument that the debtors should have negotiated with them. The court rejected the motions to dismiss.

The case also raised the issue of whether you could use income from one debtor to pay the expenses of another pursuant to a central cash management system. The court analyzed the issue as one of adequate protection and found that the creditor was adequately protected by the value of the collateral. The panel raised the question of whether the lending could have been challenged as a transaction not in the ordinary course of business. If the cash negative debtors were having to borrow money from the cash positive debtors and were not able to get DIP financing, then the financing would presumably be on less than market terms. Thus, the transaction would not be in the best interest of the lending entity regardless of whether the lender was adequately protected.

Another issue raised by aggregations of single asset real estate debtors is whether there must be an impaired accepting class in each case or simply one impaired accepting class under the plan. Sec. 1129(a)(10) references the plan. An unreported opinion in the Enron case says that you need one impaired accepting class overall rather than in each case.

Another interesting isssue discussed was a springing guaranty. This is a guaranty which only comes into force if the debtor files bankruptcy. Obviously, it is intended as a poison pill to deter bankruptcy filings. The question raised was whether this violated public policy by giving principals of the debtor an incentive to violate their fiduciary duty by not filing bankruptcy to protect their personal financial interest.

Tuesday, October 20, 2009

Random Thoughts from the National Conference of Bankruptcy Judges--Day 1

I am in Las Vegas for the National Conference of Bankruptcy Judges. The conference promises 2 1/2 days of events combining leading speakers and some frivolity.

I started off Monday by attending the Commercial Law League of America's breakfast with Paul Begala. Begala attended the University of Texas Law School around the same time that I did, but went on to work in the Clinton White House shortly thereafter. He is speaking on the topic Politics in America Today: Too Important to Be Left to the Politicians. However, it should have been titled Will Obama Crash and Burn. One of his central points was that presidents enter office with high expectations and high approval ratings, but inevitably run into scandals and reality which drag their approval ratings down. Some, like Presidents Reagan and Clinton recover, while others, like Jimmy Carter and George H.W. Bush do not. Begala's thesis is that some presidents succeed despite the unpopularity of their foibles. While Americans did not like Iran-Contra and the Monica Lewinsky affair, they liked Ronald Reagan and Bill Clinton. The key, according to Begala, is a belief in American Exceptionalism, the conviction that America is a place which, as de Tocqueville reported early on, contains unlimited opportunities. Reagan (morning in America) and Clinton (the Man from Hope) got this. Begala believes that Obama gets this also. As a matter of fact, his point is how can anyone go from being the grandson of a Kenyan goatherder whose father deserted him to president of the United States without believing in the promise and the magic of America. He contrasts this with a conversation he had with his haughty French brother in law who became suddenly silent when asked when France would elect a President of Algerian or Moroccan descent.

Upon entering the main hall, my first thought is that I am in a cavern. The speakers are way off in the distance. Most of the audience crowds around the back, leaving plenty of room up front for this willing to walk half a mile or so.

Barbara Houser, the incoming president of the NCBJ, gives a preview of next year's conference in New Orleans. When I think of Judge Houser, I think of serious, sober analysis. However, the promotional video shows the wild side of Judge Houser, speeding around New Orleans in what looks like a go cart, wearing a Saints jersey, eating beignets and wandering down Bourbon street in a feathery Mardi Gras mask. It is nice to know that even judges can have fun. (I will try to get the video for a future blog).

From there, the next topic is Obamanomics and the Future of Bankruptcy. Of course, as the panel later makes clear, Obama's key policies regarding economic stimulus and recovery are largely a continuation of the Bush administration's. First up is former Sen. Gordon Smith, who paints a picture of dire consequences when the demographic Tsunami of entitlements hits. If I heard him correctly, he said that at some point in the future, the gap between tax revenues and entitlement payments will equal the gross national product. He posits that the federal government will shift costs down to the states which will not have the ability to print money or engage in endless deficit spending. He wonders aloud whether the bankruptcy code will need to be amended to allow states to file for bankruptcy.

The panel which follows discusses the meaning of the Chrysler and GM cases. The economist on the panel argues that reorganization should be faster, more like a sale. The panel asks whether the current practice is a signal that the chapter 11 process is no longer viable.

Another panelist makes the point that BAPCPA has caused bankruptcies to fall and defaults to rise, which will lead to bankruptcies increasing. Currently 3% of prime mortgages and 14% of subprime mortgages are in default.

The economist addresses the problem of home foreclosures. She posits that lenders foreclose too often because they only consider their own costs and not the larger costs to society (kids having to change schools, vacant homes, property values crashing). Of course, like any good economist, she has a on the one hand this and one the other hand that approach. The current program of relying on voluntary modifications leads to too few modifications, while allowing cram-down in chapter 13 would lead to too many (i.e., people who could have paid their loans given a little time will be able to modify when they don't really need to).

Later in the day, I learn about the different types of recessions. Apprently, there are bathtub recessions, V recessions and hockey stick recessions. We are in a bathtub recession, which involves a steep slide followed by a long trough and a steep recovery. According to the speaker, we have reached the bottom of the bathtub and will stay there for at least three years.

The panel on chapter 11 bemoaned the fact that while we are seeing an uptick in chapter 11s, we are not seeing true reorganizations. Reorganizations today consist of 363 sales, orderly liquidations and cases with significant litigation which will pay off in a short period of time. Another change is that bankruptcy is now part of the process, rather than the focus of the process. In other words, bankruptcy is a tool used to implement a strategy developed ahead of time, rather than the means where the strategy is developed.

Another change is that almost every case of consequence runs the risk of administrative insolvency due to high amounts of leverage leading to the need for a speedy resolution.

One of the speakers argued that we have shifted from a rehabilitation process to a retribution process. Where there is risk, there is failure. He argued that we should give debtors a chance to reorganize after failure rather than penalizing them.

I learned a new term: fulcrum security. These are the secured creditors who stand to win or lose big time depending on the sucess of the reorganization. They are either first lenders who are undersecured or junior lenders. They are more like equity than secured creditors in that they are willing to take greater risks to try to achieve greater rewards. Some creditors in this category go into the case with a loan to own mentality.

Monday, October 19, 2009

Outrageous Creditor Behavior Leads to Small Damage Award

A debtor's suit against an abusive creditor seemed to have all the right elements: outrageous facts, creative legal theories and a sympathetic judge; but lacked just one thing, damages. Shane Eastman v. Baker Recovery Services, Adv. No. 08-5055 (Bankr. W.D. Tex. 10/15/09). The opinion can be found here.

The Facts

Based on the opinion from Bankruptcy Judge Leif Clark, the facts were pretty outrageous. A debtor filed a no-asset chapter 7 case and received a discharge. He inadvertently omitted a credit card that had been used by his ex-wife when they were still married. That account was sold to a debt buyer, who then filed suit against someone else named Shane Eastman in California. When the debt buyer realized that he had sued the wrong Shane, instead of dismissing his case, he had Texas Shane served with process in the California action.

At this point, the debtor's lawyer wrote to the creditor's lawyer and informed him that he was violating the discharge. The debtor, believing that his lawyer's letter had done the trick, did not answer. The debt buyer apparently didn't think the discharge applied to him, so he took a default judgment against the debtor in the California action without notice to the debtor.

The debtor learned about the judgment some time later when his security clearance with the Air Force was revoked. The debtor's lawyer demanded that the judgment be released. The creditor refused to do so unless he was paid $2,500 for his trouble. The debtor then had his bankruptcy case reopened. According to the judge, "It was the reopening of the case that finally motivated Baker to abandon his efforts to extort some payment out of Eastman in exchange for releasing the judgment." The use of the word "extort" gives some insight into the judge's view of the situation. The debtor got his security clearance back some five months after it had been revoked. However, during this period, he missed out on a potential opportunity for a career-advancing placement with a general.

The discouraged debtor believed that the episode had soured his chances for advancement in the Air Force and resigned several months later, some 11 years into his military career.

Creative Causes of Action

The creditor committed the following bad acts at a minimum:

1. He filed suit on a discharged debt;
2. He sued a consumer in a state where he did not reside;
3. He took a default judgment after being notified of the discharge; and
4. He demanded payment for releasing the judgment on the discharged debt.

These facts were pretty serious. Therefore, they justified more than just a simple action for violation of the discharge. The debtor's lawyer sued for violation of the discharge, violation of the Fair Debt Collection Practices Act, violation of the Texas Debt Collection Act, violation of the Texas Deceptive Trade Practices Act and tortious infliction of emotional distress.

The Bankruptcy Court allowed the debtor to proceed with all of these causes of action, finding that the bankruptcy discharge does not preempt other claims arising out of violation of the discharge.

The Court found liability on three out of five claims. With some understatement, the Court held that, "It is obvious to this Court that the Defendants violated Sec. 524(e) of the Bankruptcy Code." Although the Defendants claimed that the debtor was precluded from urging the discharge violation based on his failure to plead this as an affirmative defense in the California suit, the judge didn't buy it.

The Fair Debt Collection Practices Act prohibits a debt collector from making a "false, deceptive or misleading representation or means in connection with the collection of any debt." The Court followed Judge Easterbrook of the Seventh Circuit in ruling that "A demand for immediate payment while a debtor is in bankruptcy (or after the debtor's discharge) is 'false' in the sense that it asserts that money is due, although, because of the automatic stay (11 U.S.C. Sec. 362(a)) or the discharge injunction (11 U.S.C. Sec. 524), it is not." Thus, it was clear that the debt buyer and his lawyer had violated the FDCPA.

The Texas Debt Collection Act has a similar provision prohibiting the use of a "fraudulent, deceptive or misleading representation . . . misrepresenting the character, extent or amount of a consumer debt or misrepresenting the consumer debt's status in a judicial or governmental proceeding." The court found that filing suit on a discharged debt fell within this provision and thus found liability under the TDCA.

The TDCA also provides that a violation is considered to be a deceptive trade practice under the Texas Deceptive Trade Practice Act. However, to recover under the DTPA, a person must be a "consumer." Since the debtor never sought to acquire goods or services from the debt buyer, he did not qualify as a consumer under the DTPA and could not take advantage of that statute's remedies.

The court also found that the defendants were not liable for tortious infliction of emotional distress. To recover under this theory, the debtor would have needed to show that the defendant's actions were taken for the primary purpose of causing emotional distress. While the debt buyer's actions were outrageous, they were aimed at collecting the debt rather than inflicting emotional distress.

The Relief Granted

Having prevailed under three theories, the big question was what relief could be granted. The debtor sought to recover (i) actual damages, statutory damages and attorney's fees under the FDCPA; (ii) actual damages and costs and attorney's fees under the TDCA; (iii) economic damages and treble damages under the DTPA; and (iv) damages for the infliction of emotional distress. The debtor apparently did not seek damages for contempt for violation of the discharge injunction.

Because the court ruled against the plaintiff on the DTPA and tortious infliction of emotional distress, the best possible recovery for the plaintiff was under the FDCPA for statutory damages, actual damages and attorney's fees. The court awarded statutory damages of $1,000 as provided by the FDCPA and held that the debtor was entitled to recover attorney's fees. However, the court ruled that the debtor did not prove an entitlement to actual damages.

The debtor's primary theory of damages was that the judgment destroyed his Air Force career when his security clearance was withdrawn and he lost the opportunity to work for the general. The debtor presented evidence of what he would have earned if he had stayed with the Air Force and been promoted to Chief Master Sergeant. The court found that this fell within the category of "special damages," meaning damages that are of such an unusual nature that they would vary from individual to individual. In order to recover special damages, they must be specifically pled and may not be "too remote, uncertain, conjectural, speculative or contingent." This was a difficult burden for the debtor to meet. He acknowledged that promotion to Chief Master Sergeant was difficult to obtain. He also acknowledged that he did not apply for the position with the general because he was told not to bother. Because the debtor voluntarily left his position with the Air Force, it was impossible to tell whether he would have made Chief Master Sergeant and therefore impossible to award damages. He also failed to provide any evidence of his mental state as a result of the defendants' actions, so that he could not recover for emotional distress. Because these were the only items of damage pled, he was not able to recover for actual damages.

Final Lessons

This is a hard case. The creditor's actions were clearly outrageous. The judge was clearly offended. However, the only relief that the debtor received was the court's finding that the debt had in fact been discharged, $1,000 in statutory damages and reimbursement for his attorney's fees. Thus, his victory was more symbolic than substantial.

The defendants did not escape unharmed. They have the stigma of a finding from a federal judge that they violated the law. They also will have to pay both their own attorney's fees (which likely were substantial given that they hired a former bankruptcy judge to defend them) as well as the plaintiff's fees. However, it could have been much worse.

The bottom line is that good liability facts do not always translate into good damage facts. It seems unmistakably clear that loss of a security clearance would cloud a military career. But how does that translate into damages? In this case, the plaintiff had to prove what would have happened over nine years of a future military career that the plaintiff walked away from. Because there was no guaranty that he would have achieved his career goals with the Air Force, the damage theory did not work. There was clearly a lost opportunity. But how do you value a possibility? The harm was quite real to the debtor. However, the true damage of lost hopes and aspirations was too intangible to value.

Friday, October 02, 2009

IRS Loses Out on Inheritance Bait and Switch

While the government has many powers, the Fifth Circuit recently decided that the IRS had no remedy when proceedings in a Louisiana state court deprived it of the benefits it was supposed to receive under a confirmed chapter 11 plan. The opinion can be found here. United States v. Lewis, No. 08-30964 (5th Cir. 10/1/09).

When Caroline and Nelson Hunt filed chapter 11 in the 1980s, they owed over $100 million in non-dischargeable taxes. As part of their plan, they agreed that any inheritance received by Caroline would go to the IRS. Caroline was the niece of Turner Hunt Lewis, who was in his 70s, childless and intestate at the time. This meant that if he died, his estate would be divided between his three nieces and nephews. His estate was ultimately worth $16.5 million.

However, when Mr. Lewis was on his deathbed some 13 years later in 2002, his nephews petitioned the state court in Louisiana for an inderdictment, which is like a guardianship. With the approval of the Louisiana court, they created a trust in which the share of the estate which would have gone to Caroline went to her children. The nephews acknowledged that they did this with Caroline's blessing for the purpose of keeping her share out of the hands of the IRS. The IRS was not given any notice of the proceedings.

Some years later, the IRS sued in federal court to set aside the trust. The District Court granted summary judgment against the IRS. In an unusually brief and blunt published opinion, the Fifth Circuit dispensed with the government's contentions.

The effect, and presumably the intent, of this course of action was to pass the estate to family who had no such tax obligation. Its legality is challenged here. The government has filed this federal suit claiming that the curators’ course of action was in fact contrary to Louisiana state law and that we should protect its rights by striking down the trust provision in favor of Caroline’s descendants and awarding Caroline the money she should have inherited, to be remitted to the I.R.S. according to the 1989 agreement.

We confess the considerable difficulty of understanding the basis under which this claim proceeds. In answering this question, we note what the United States has not alleged. The United States has not argued that any party committed tax fraud or violated any other specific internal revenue law with relation to the Turner Hunt Lewis Trust. The United States does not argue that Caroline or Nelson Hunt violated their agreement with the I.R.S. In essence, the government asks that we sit as a general court of review for a seven year old Louisiana district court trust law decision because it has the ultimate effect of redirecting the path of funds to a path beyond the reach of the federal government.

But the government has no claim to money that Caroline Hunt did not inherit, and the state court judgment decided no right of the government. Rather, it decided the authority of Lewis’s representatives to dispose of his property. Had Turner Hunt Lewis omitted Caroline Hunt from his will, the government would have had no recourse. His representatives did omit her. If their decision was effective, the matter ends. And a solemn judgment of a Louisiana state court with jurisdiction over the interdiction approved the omission of Caroline Hunt and is unchallenged. We see no reasoned basis for our authority to review that judgment and the I.R.S. offers none.

The government’s creditor relationship with the interdiction and state court judgment raises questions of standing and failure to state a claim. These issues are here not easily disentangled. Congress has given the I.R.S. access to federal courts to collect taxes, and – while this case pushes the outer limits of that license – we will reach the merits and affirm the district court’s rejection of the government’s claim. Ultimately, the government is unable to demonstrate any entitlement to the disputed moneys by virtue of its contract with Caroline Hunt.

Memorandum Opinion, pp. 3-4.

A concurring opinion noted that under Louisiana law, an affected party could have sought annulment of the judgment within one year of discovery if it was obtained through "ill practices." Having failed to utilize the remedy created by state law, the government was without a remedy in federal court.

The opinion is remarkable in that the Fifth Circuit panel chose to publish an opinion whose discussion did not cite any cases, statutes or rules (although the concurrence did reference the Louisiana annulment procedure). This could be seen as a public rebuke to the government both for pursuing a meritless claim and for failing to protect its interest.

While the precedential value of this opinion is minimal, it offers several practical lessons. The first is that state court judgments matter. Far too many debtors wait until after an adverse judgment has been rendered to seek bankruptcy relief. By that time, it may be too late. Once a judgment has been rendered in state court, it can only be challenged in state court no matter how badly it smells. The second lesson is to be careful in drafting plans and agreements. In this case, the expectation was that Caroline would receive an inheritance which would go to the government. However, there were many ways that expectation could have been thwarted. Caroline could have predeceased her rich uncle, he could have prepared a will excluding her or he could have lost the money in a casino. The fact that the nephews used a suspect, last minute move to divert the inheritance did not change the fact that the original promise was rather illusory to begin with.