I am at the 2011 National Conference of Bankruptcy Judges in Tampa, Florida. For this first day, I heard a good mix of consumer and chapter 11 programs along with a provocative economist. Here are a few highlights.
Chapter 11 Issues
On the chapter 11 side, the topic du jour was In re DBSD North America, Inc., 634 F.3d 79 (2nd Cir. 2011) which was discussed by no less than three speakers. Prof. Troy McKenzie and Judge Mary Diehl each discussed the gifting aspects of the case, while Ronald Peterson talked about designation of votes in chapter 11.
The latest word on “gifting” (that is, a senior creditor ceding value to a junior class of creditors over the objection of an intervening class) is that is violates the absolute priority rule. DBSD North America presented an extreme version in that secured creditors gave up value to equity who would receive value on account of, among other things, their equity interest. The Second Circuit held that this was a clear violation of the absolute priority rule. However, other scenarios were not as clear. For example, in In re SPM Manufacturing Corp., 984 F.2d 1305 (1st Cir. 1993), a secured creditor and a junior class reached a gifting agreement. However, no plan was confirmed and the case was converted to chapter 7. After the secured creditor obtained relief from the stay, it announced that it would honor its prior agreement. The court of appeals held that the secured creditor could do whatever it wanted with its money.
It seems that “gifting” only raises an absolute priority rule problem when it occurs under a plan and is “on account of” an equity interest. If it is done in the context of a 9019 compromise and settlement or a 363 sale, it is more likely to work. It was also suggested that because the absolute priority rule was enacted with equity interests in mind, a gifting arrangement between two classes of creditors might pass muster.
Designation of Ballots
Ron Peterson discussed the history of designation of ballots. Prior to the Chandler Act in 1937, the Bankruptcy Act did not contain a provision for disallowing a ballot. However, a case involving a hotel in Waco, Texas prompted William O. Douglass to press for a disallowance of ballot provision. In that case, Hilton Hotels invested substantial monies in a hotel in Waco, Texas under a lease. The debtor cancelled the lease and filed for reorganization. Hilton Hotels bought up a blocking position in the debtor’s unsecured debt and insisted that the lease be reinstated. In that case, there was no provision to prevent the attempt to hijack the reorganization.
Since that time, designation of ballots has been allowed where a creditor votes to put a competitor out of business, acts based on sheer malice, acts on inside information or seeks to gain an unfair advantage over other similar creditors. In DBSD North America, the court of appeals affirmed a decision to designate ballots of a competitor who purchased a blocking position with the intent to gain control of the debtor’s telecommunications spectrum rights. On the other hand, where a creditor strikes a hard bargaining position but acts out of economic self-interest, its vote will be allowed. In the words of Gordon Gecko, “greed is good.”
I was disappointed that Ron did not discuss my case on designating ballots, In re The Landing Associates, Ltd., 157 B.R. 791 (Bankr. W.D.Tex. 1993). However, since he mostly stuck to circuit cases, this was not surprising.
Clifton Jessup gave an interesting talk on rights offerings. Fortunately, Judge Diehl made him explain what a rights offering was. A rights offering is an offer by the debtor to sell securities (usually equity securities) to its existing creditors at a discount in order to obtain financing to emerge from bankruptcy. Rights offerings also involve a backstop party who agrees to purchase any securities not purchased by others in return for a fee.
Nan Coleman from the Executive Office of the U.S. Trustee and Prof. Troy McKenzie discussed structured dismissals. A structured dismissal is a procedure where the debtor’s assets are sold and then a case is dismissed with conditions. Those conditions may include affirming protections to the purchaser in the 363 sale, releases to parties and a modified claims procedure. Ms. Coleman advocated that U.S. Trustee position that structured dismissals are contrary to the Bankruptcy Code and should not be allowed. She said, “Let’s be clear. It’s not a gift. It’s a quid pro quo. Someone is getting something and someone is giving up something. Prof. McKenzie offered a tepid defense stating that some features in structured dismissals raise eyebrows but that “perhaps they should be given a little room to develop before they are squelched.”
Employment of Counsel/Committee Solicitation
Employment of counsel and committee solicitation were both discussed in the ethics portion of the program. In an unusual opinion, Judge Michael Lynn has ruled that debtor’s counsel need not be disinterested. In re Talsma, 436 B.R. 908 (Bankr. N.D. Tex. 2010). If debtor’s counsel is owed fees, it may sell its claim prior to bankruptcy to avoid being disqualified for being a creditor. In re 7677 E. Berry Ave. Assoc., LP, 419 B.R. 833 (Bankr. D. Col. 2009). However, this did not work when payment for the claim was contingent on what the purchasing creditor received in the bankruptcy. In re Fish & Fischer, Inc., 2010 WL 5256992 (Bankr. S.D.Miss. 2010).
In re Universal Building Products, 2010 WL 4642046 (Bankr. D. Del. 2010) illustrates that state disciplinary rules apply when soliciting a committee. In that case, prospective committee counsel asked a Chinese speaking party they had a prior relationship with if he would contact Chinese speaking creditors. He was offered the position of translator for the committee. Model Rule 7.3 restricts direct solicitation of prospective clients and Delaware had adopted a version of this rule. Based on the violation of Rule 7.3, counsel was disqualified from representing the committee.
Untangling the Mortgage Morass: Rules, Rogues and Repairs
This panel handled the sexy topic of the new Bankruptcy Rules applicable to mortgage claims which takes effect in December 2011. The panel did a good job of laying out the history of the rules and issues likely to arise.
The rules had their genesis with Jones v. Wells Fargo Bank, 366 B.R. 584 (Bankr. E.D. La. 2007) and Padilla v. GMAC Mortgage, 389 B.R. 409 (Bankr. E.D. Pa. 2007). These cases raised the specter of a debtor successfully completing a chapter 13 plan and then immediately being posted for foreclosure based on undisclosed charges that accrued during the bankruptcy proceeding.
Under the new rules, there are three changes which will take effect in December. First, mortgage claims must include an attachment listing delinquent amounts as of the petition date, including any charges and the date they were incurred. Among other things, this will require disclosure of the amount of escrow shortage as of the petition date. Fed.R.Bankr .P. 3001(c)(2), Official Form 10, Attachment A. Next, mortgage creditors must give notice of a change in payment amount 21 days before it takes effect. Fed.R.Bankr. 3002.1(b), Official Form 10, Supplement 1. Additionally, mortgage creditors must give notice of post-petition fees and costs incurred every 180 days. Fed.R.Bankr.P. 3002.1(c),(d). Finally, at the conclusion of a chapter 13 case, the trustee or debtor must give a Notice of Final Cure Payment. Fed.R.Bankr.P. 3002.1(f).
The panel identified several interesting issues under these rules. One issue is that the form does not take a position on how to calculate the escrow shortage. The Third and Fifth Circuits have taken the position that any amount charged to the debtor for escrow pre-petition is escrow shortage, In re Rodriguez, 629 F.3d 136 (3rd Cir. 2010) and In re Campbell, 545 F.3d 348 (5th Cir. 2008), while one major mortgage servicer has taken the position that only amounts advanced out of pocket prior to the petition date constitute escrow shortage. As pointed out by Judge Eugene Wedoff (Bankr. N.D. Ill.), this makes a big difference. Because the escrow shortage is part of the pre-petition claim, it can be paid out over the life of the plan. However, if amounts accrued but unpaid are not considered pre-petition claims, then they are included in the post-petition escrow amount and must be paid within one year. John Rao stressed that it was important to avoid doublecounting by including the escrow shortage in the proof of claim and then seeking to recoup it post-petition as part of the ongoing mortgage payment. A petition for cert has been filed in the Rodriguez case and the Supreme Court has requested that the Solicitor General comment, which is a sign that the court may be considering granting the petition.
The new attachment to proof of claim must be signed. Faiq Mihlar suggested that before attorneys sign the attachment that they read the Third Circuit’s opinion in In re Taylor, 2011 U.S. App. LEXIS 17651 (3rd Cir. 2011) in which an attorney was sanctioned for signing claims without reading them or knowing whether they were accurate. He said that the best practice was to have the attorney prepare the attachment and have the client review and sign it. He said that while he enjoyed appearing in court, he preferred not to do so as a witness.
John Rao pointed out that the 21 day period for providing the notice of change in payment is the same period provided under RESPA. He said that the new form is merely a cover sheet and that the mortgage servicer may simply attach its regular notice of payment terms.
When giving notice of charges incurred during the case, it is only necessary to give notice of charges that will be sought to be charged to the borrower. It is important that charges only be listed once. For example, if a lender incurs attorney’s fees in one six month period and they are not paid, it should only report new attorney’s fees incurred subsequently and should not report the prior fees again.
If the creditor does not give timely notice of the fees incurred, it is barred from collecting them later. The failure to request fees could be the basis for judicial estoppel in a subsequent state court proceeding.
Mark Redmiles from the U.S. Trustee’s office explained the procedure for giving notice of completed cure payment. Within 30 days after completion of payments, the trustee or debtor must give notice that payments have been completed. The mortgage creditor has 21 days to respond. If the creditor does not respond, then the loan is deemed to be current.
Faiq Mihlar argued that the 21 day period was too short and that lenders would not have time to receive the document and act on it. This raised the possibility that conniving debtors could simply fail to make their last several payments before completion of the plan knowing that the lender would probably fail to respond to the Notice of Final Cure Payment. Judge Wedoff suggested that the creditor could request an extension of time under Rule 9006 if it could not respond within the deadline. He also suggested raising the time limit with the rules committee.
So You Think Consumer Bankruptcy Is Easy? Challenges of a Complex Code
This panel discussed several difficult consumer issues. However, the best comment did not relate to the specific topics. Judge Shelley Chapman (Bankr. S.D. N.Y.) acknowledged that prior to taking the bench eighteen months ago, she had only practiced chapter 11 law. She described the chapter 13 docket as “the hardest thing I have done so far.” She said that it was “a daunting task” facing a room full of consumer bankruptcy lawyers. Judge Chapman’s humility and candor were refreshing.
This illustrates how the selection of bankruptcy judges has changed. In the 1980s, the circuits often appointed judges with no prior bankruptcy experience. Today, the circuits tend to favor chapter 11 practitioners. While this is a marked improvement, it still leaves a gap in the judge’s experience.
The panel had a lively discussion on whether a wholly unsecured junior lien could be stripped in a chapter 20 case (a chapter 7 followed by a chapter 13). In a chapter 20 case, the debtor is not entitled to a discharge in the chapter 13 case. Can he strip off the junior lien based on its lack of security?
Judge Chapman opined that, perhaps it was her chapter 11 bias, but that “allowed secured claim” meant that a claim was secured within the meaning of Section 506(a),that secured claim equates to economic interest. She stated that she requires the second lienholder to grant a release and give it to the chapter 13 trustee to hold in escrow until completion of payments.
John Clement, the debtor’s lawyer on the panel, argued against lienstripping. He argued that secured claim referred to the state law security interest. He cited the Supreme Court decisions in Dewsnup v. Timm, 112 S.Ct. 773 (1992) and Nobelman v. American Savings Bank, 113 S.Ct. 2106 (1993) as evidence that the Supreme Court does not look favorably upon the economic definition of secured claim.
John Gustafson, a chapter 13 trustee, warned that practitioners should be careful how far they push the issue. While most circuits currently allow lienstripping in chapter 20 cases, the Supreme Court might not be so favorable.
John Gustafson discussed the problem of social security income in chapter 13 cases. Under the means test, social security income is not counted. However, what about the debtor who has a high income and is also receiving social security? Should this debtor be allowed to pay less? In chapter 7, the problem is addressed by the distinction between Section 707(b)(2) and 707(b)(3). While Section 707(b)(2) applies the means test, Section 707(b)(3) examines the totality of the circumstances in cases in which the means test is satisfied. Perhaps the good faith requirement of Section 1325(a)(4) should fulfill a similar purpose.
Frederick Clement noted that BAPCPA was intended to take discretion away from bankruptcy judges while the totality of the circumstances approach to good faith would grant discretion. Mr. Gustafson countered that “sure it’s subjective but so is Section 707(b)(3).” He likened it to putting a bandaid over our glasses and not looking at the social security income. He also suggested that if judges couldn’t consider extra social security income alone, perhaps they could consider it along with other factors, such as the debtor wanting to keep a Harley (apparently that’s a bad thing).
Frederick Clement talked about the tension between the binding nature of a plan under Section 1327(a) and the ability to modify a plan under Section 1329(a). If the debtor confirms a plan and later decides that he doesn’t want to pay as much, “is there some threshold other than I want to” when proposing a modification? If not, how is the plan binding? He gave the example of In re Noble, in which the debtor proposed to retain a vehicle and later sought to surrender it. The Court held that the Debtor was bound.
John Gustafson asked whether creative lawyers could draft around such future contingencies. He suggested that a debtor could offer to make extra payments up front in return for the option to surrender the vehicle later in the plan.
Frederick Clement pointed out that in Ransom v. FIA Card Services, 131 S.Ct. 716 (2011)and Hamilton v. Lanning, 130 S.Ct. 2464 (2010), the Supreme Court appeared to assume that debtors could modify their plans at will. He said “If that is the case, how are you bound at all?” He suggested that a plan could only be modified for substantial and unanticipated circumstances and only to address the specific changes authorized in Section 1329, such changing the payment amount or length of the plan. He noted that while you could change the term of the plan, you could not change the “applicable commitment period” so that an above median debtor could not shorten a plan to less than 60 months.