Remembering R. Glen Ayers (1947-2017)

R. Glen Ayers, who passed away on September 27, 2017,  was according to his obituary, "a force of nature in a bow tie."   He was a Southern gentleman.  He was at various times a professor, a judge, a practicing attorney and a Sunday School teacher.   He was a devoted family man.   To those of us who knew him as a bankruptcy professional, he was brilliant, irascible, and gracious often all at once.

The Life of Glen Ayers

Glen was born in Horry County, South Carolina.  He grew up feeding the chickens and hanging tobacco leaves.   He once described South Carolina as too small for a nation and too large for an asylum.

He graduated from Clemson in University in 1969.   At his funeral service, his law partner Bob Werner said that Glen could be counted on to state why Clemson was the champion, should have been the champion or would be in the future.   He earned a Master's Degree from the University of North Carolina in 1971 and served in the U.S. Army from 1971-72.

Glen met his wife Jan Miller Oldham on a blind date at Columbia College and married in 1972.   They had two children, Roderick and Claudia.    

Glen graduated summa cum laude from the University of South Carolina School of Law in 1975 and received an LLM from Harvard Law School in 1979.   If you are counting, that makes four degrees by the time he was 32.

Glen taught at St. Mary's Law School from 1981-1985.   According to Bob Werner, there were two types of lawyers in Bexar County, those who studied under Prof. Ayers and those who wished they did.    

Glen served as a Bankruptcy Judge for the Western District of Texas from 1985-1988.    More about that later.

After leaving the bench, Glen practiced in Washington, D.C. for a time and then returned to San Antonio where he practiced with Langley & Banack.    Bob Werner gave an anecdote about how Glen would be holding forth on some important story when the phone would ring with a call from a client or another counsel.   He said that Glen would pick up the phone and at that moment, whoever was on the phone would be the most important person in the world to him.   He would then resume the story in mid-sentence.    

Glen was a Sunday School teacher at United Presbyterian Church in San Antonio.   His friend, Robert Browning said that on the two Sundays before he passed away, they co-taught a class on Thomas Cahill's Heretics and Heroes.   Glen said that a heretic was someone who might one day be a hero.   His Pastor, Rev. San Williams, said that with Glen's death the collective IQ of the Sunday School class dropped precipitously.    

Pastor Williams used the text of Romans 14:7-9 to describe Glen's life, saying that he did not live to himself and neither did he die to himself.    In addition to his church work, he offered pro bono help to the San Antonio Battered Women's Shelter and the VA Clinic as well as helping individuals in need.

Glen leaves behind his wife of 45 years, Jan, his son Roderick, III, his daughter Claudia and her husband, George, granddaughter, Ellie and many family members and friends. 

The Bankruptcy Legacy of Glen Ayers

Glen came on to the Bankruptcy Bench in 1985 which was a tumultuous time in the bankruptcy world.   The jurisdictional scheme of the Bankruptcy Code had been declared unconstitutional the year before.    Texas was in the midst of a real estate crash which was flooding the courts with single asset chapter 11 filings.    Judge Ayers contributed thirty-six opinions to the fledgling West Bankruptcy Reporter which would not reach volume 100 until after his time on the bench.

In one of his earliest rulings, Judge Ayers reversed the Fifth Circuit.    In the case of In re Thompson, 59 B.R. 690 (Bankr. W.D. Tex. 1986), Judge Ayers discussed a recent Fifth Circuit decision stating:

Most commentators have found Allen to be a less than satisfactory opinion. Quite simply, the ruling is incorrect.

When Judge John Akard followed Judge Ayer's decision in In re Rogers, 63 B.R. 686 (Bankr. N.D. Tex. 1986), he was reversed.   This prompted Judge Akard to remark that he only followed the Western District of Texas once and he regretted it.   

In another early opinion, In re Hurbace, 61 B.R. 563 (Bankr. W.D. Tex. 1986), he ruled that equal co- partners did not owe each other a duty to account within the meaning of 11 U.S.C. Sec. 523(a)(4), a conclusion the Fifth Circuit would later reach in Matter of Gupta, 394 F.3d F.3d 347 (5th Cir. 2004), some eighteen years later.    

Another groundbreaking case was In re SI Acquisition, Inc., 58 B.R. 454 (Bankr. W.D. Tex. 1986) where he ruled that a creditor's suit against non-bankrupt parties seeking to pierce the corporate veil was not subject to the automatic stay.   While the Fifth Circuit disagreed with him, the case involved one of many areas that were unclear in the early days of the Bankruptcy Code.   

In In re Estate of Patterson, 64 B.R. 807 (Bankr. W.D. Tex. 1986), Judge Ayers ruled that a probate estate was not a "person" qualified to file bankruptcy.   

In re Fry Associates, Ltd., 66 B.R. 602 (Bankr. W.D. Tex. 1986) was an early decision discussing the concept of a bad faith filing for a single asset real estate entity.   However, in In re Oakgrove Village, Ltd., 90 B.R. 246 (Bankr. W.D. Tex. 1988), he declined to enter sanctions against a debtor exhibiting new debtor syndrome where the debtor reasonably believed that the bank would accept a workout proposal and did not oppose relief from the automatic stay.

In In re Triplett, 87 B.R. 25 (Bankr. W.D. Tex. 1987), Judge Ayers ruled that an objection to use of cash collateral should not be a substitute for a motion to dismiss or convert under Sec. 1112.    The Court wrote:  

 Here, the focus on collateral and its use interferes with proper analysis of the case. Instead of being concerned with one item of "cash", the creditor should draw the court's attention to all of the problems with the case so that the debtor can either be placed on a timetable, the case converted, or the case dismissed.

In a footnote he pointed out that both of the lawyers had been his law students and were used to his editorializing.   

In re Kipp, 86 B.R. 490 (Bankr. W.D. Tex. 1988) established that a party could not conduct a Rule 2004 examination when it had a pending adversary proceeding.

Judge Ayers dealt with creative classification in the case of In re Meadow Glen, Ltd., 87 B.R. 421 (Bankr. W.D. Tex. 1988) where he did not allow a secured creditor's deficiency claim to be separately classified from other unsecured creditors.   The ruling predicted the Fifth Circuit's holding in Matter of Greystone III Joint Venture, 995 F.2d 1274 (5th Cir. 1992) which also took a restrictive approach to classification (although the Fifth Circuit later moderated its position).   

In his final opinion, In re Abramoff, 92 B.R. 698 (Bankr. W.D. Tex. 1988), Judge Ayers ruled that a prepayment penalty combined with a due on sales clause constituted an unreasonable restraint on alienation and would not be enforceable under Texas law.    One of the lawyers on the case was Ronald King, who would shortly take Judge Ayers' place on the bench.

After leaving the bench, Glen Ayers had a long and productive career practicing in Washington, D.C. and San Antonio, Texas.   The cases that he tried as an attorney encompassed issues ranging from professional compensation, trustee liability, PACA, chapter 11 reorganization and property of the estate.

Final Thought

At the time that Glen passed away, we were working on a case together.   In our last conversation, he inquired, as he always did, about the health of one of my colleagues who had been experiencing some medical issues.   That was Glen Ayers.