TOUSA Fraudulent Conveyance Judgment Reversed by District Court

In a 113 page opinion, U.S. District Judge Alan S. Gold has reversed a controversial fraudulent conveyance judgment in the TOUSA bankruptcy case. In re TOUSA, Inc., Case No. 10-60017 (S.D. Fl. 2/11/11). You can find the opinion here.

A Series of Highly Unfortunate Events

TOUSA involved a network of related companies in the homebuilding business. They obtained liquidity for their operations through a revolving line of credit granted by Citicorp North America as administrative agent ("the Revolver"). Ultimately, the Revolver was guaranteed by the TOUSA subsidiaries and their assets were pledged as collateral.

Meanwhile, TOUSA entered into a Joint Venture with Falcone/Ritchie, LLC to acquire some of the homebuilding assets of Transeastern Properties, Inc. ("the TransEastern JV"). To fund the TransEastern JV, they took out new debt independently of the Revolver (the "TransEastern Debt"). The lenders on this debt were known as the TransEastern Lenders. TOUSA and some, but not all, of its subsidiaries, guaranteed the TransEastern Debt.

The joint venture did not go well and the TransEastern Lenders declared a default.

At this point, Citicorp became uncomfortable and demanded that the TOUSA subs pledge collateral for the Revolver. Because they wanted to continue benefitting from the funds available under the Revolver, they agreed.

Meanwhile, the TransEastern Lenders brought suit against TOUSA and the other parties liable on the TransEastern Debt. TOUSA saw that it had three choices: 1) litigate; 2) file bankruptcy or 3) settle. They didn't believe that they could survive an extensive lawsuit. They also were afraid that if the parent filed bankruptcy, funding for the operating subsidiaries would dry up.

With settlement being the only viable option, they settled. The TOUSA group took out new loans from, appropriately enough, the New Lenders. The debt to the New Lenders was guaranteed by the subsidiaries and the subsidiaries pledged their assets. Citicorp agreed to allow the New Lenders to have an equal lien on the assets that were already pledged to them.

The effect of this transaction was that a larger group of TOUSA companies (the "Conveying Subsidiaries") pledged their assets and guaranteed the new debt where previously, only the parent company and a few subsidiaries had been liable for the TransEastern Debt.

The settlement occurred on July 31, 2007. The TransEastern Lenders received payment of over $426 million on debt exceeding $600 million.

Unfortunately, the settlement with the TransEastern Lenders did not spell the end of the TOUSA troubles. August 2007 was described as a “once in a century credit tsunami,” a “Black Swan” event, and an “economic Pearl Harbor.” TOUSA and many of its subsidiaries filed chapter 11 on January 29, 2008. The Creditors' Committee filed suit against the TransEastern Lenders and the New Lenders asserting that the TransEastern settlement constituted a fraudulent conveyance.

The Bankruptcy Court found that the Conveying Subsidiaries did not receive reasonably equivalent value. The Court found that they did not receive any direct benefit from having their assets encumbered and that, on top of that, they failed to prevent the bankruptcy of the parent company. The Bankruptcy Court dismissed the prospect that the Conveying Subsidiaries would have been harmed by a default under the Revolver caused by the TransEastern litigation.

The Court also found that "the New Lenders and the Transeastern Lenders did not act in good faith and were grossly negligent when they engaged in the July 31 Transaction on the basis that there was 'overwhelming evidence that TOUSA was financially distressed.'” District Court Opinion, p. 38.

The Bankruptcy Court avoided the liens of the New Lenders and ordered the TransEastern Lenders to disgorge the payments it had received and to pay prejudgment interest.

The District Court Opinion

The District Court teed up the issues as:

(1) whether the Transeastern Lenders can be compelled to disgorge to the Conveying Subsidiaries funds paid by TOUSA to satisfy a legitimate, uncontested debt, where the Conveying Subsidiaries did not control the transferred funds, and

(2) whether the Transeastern Lenders are liable for disgorgement as the entities “for whose benefit” the Conveying Subsidiaries transferred the Liens to the New Lenders, where the Transeastern Lenders received no direct and immediate benefit from the Lien Transfer.

District Court Opinion, p. 42.

Parroted Findings Not Entitled to Clearly Erroneous Review

Normally "reasonably equivalent value" would be a fact question reviewed under the clearly erroneous standard. However, the District Court had harsh words for the Bankruptcy Court 's findings. The Bankruptcy Court adopted 446 out of 448 proposed findings from the Committee in whole or in part while adopting none of the 1,600 findings proposed by the Defendants. In its Brief, the Defendants contended that out of 500 pages of post-trial submissions, not "a single case, exhibit or other piece of evidence cited by them appears in the Opinion unless and to the extent it was also cited by the Committee."

The District Court stated:

The “clearly erroneous” standard of review for factual findings is relaxed in circumstances where a lower court adopted one party’s proposed order verbatim. (citation omitted). This practice has been heavily criticized and discouraged by the U.S. Supreme Court and by the Eleventh Circuit. (citation omitted). (“Many courts simply decide the case in favor of the plaintiff or the defendant, have him prepare the findings of fact and conclusions of law and sign them. This has been denounced by every court of appeals save one. This is an abandonment of the duty and the trust that has been placed in the judge by these rules. It is a noncompliance with Rule 52 specifically and it betrays the primary purpose of Rule 52—the primary purpose being that the preparation of these findings by the judge shall assist in the adjudication of the lawsuit. I suggest to you strongly that you avoid as far as you possibly can simply signing what some lawyer puts under your nose. These lawyers, and properly so, in their zeal and advocacy and their enthusiasm are going to state the case for their side in these findings as strongly as they possibly can. When these findings get to the courts of appeals they won't be worth the paper they are written on as far as assisting the court of appeals in determining why the judge decided the case.”) (citing J. SKELLY WRIGHT, SEMINARS FOR NEWLY APPOINTED UNITED STATES DISTRICT JUDGES 166 (1963).

District Court Opinion, pp. 44-45.

I have no way to know whether the Bankruptcy Court's wholesale adoption of the Committee's findings was the result of judicial laziness or simply because the Committee's lawyers were extremely persuasive. However, when the Court simply parrots back the findings proposed by one party, the court has ceased being a neutral arbiter and has become a mouthpiece for the winning party. As the District Court correctly noted, "When these findings get to the courts of appeals they won't be worth the paper they are written on as far as assisting the court of appeals in determining why the judge decided the case.”

Before You Can Figure Out If It Was a Fraudulent Conveyance, You Have to Figure Out What Happened

The District Court began its analysis by examining the substance of the transactions.

Those transactions involved three distinct asset transfers:

1. TOUSA caused certain of the Conveying Subsidiaries to convey the liens on their real property assets and become obligated to a collection of financial entities referred here as the New Lenders.

2. In exchange for the liens and the obligations, the New Lenders loaned funds and provided credit facilities, the New Loans, to TOUSA; and

3. TOUSA used the funds from the New Lenders in part to satisfy its $421 million debt to the Transeastern Lenders.

District Court Opinion, p. 47. The District Court then contrasted this analysis with the Bankruptcy Court's findings.

The Bankruptcy Court found the Transeastern Lenders liable under Section 548 on two different bases of liability, for two distinct fraudulent transfers:

(1) as direct transferees of the New Loan proceeds paid in satisfaction of a valid antecedent debt; and (2) as entities “for whose benefit” the Conveying Subsidiaries transferred the liens to the New Lenders. In essence, the Bankruptcy Court found that the Conveying Subsidiaries had a property interest in the New Loan proceeds that TOUSA transferred to the Transeastern Lenders, received only minimal value in exchange for relinquishing that property, and were insolvent. Accordingly, the Bankruptcy Court voided the entire transfer and ordered the Transeastern Lenders to disgorge the funds received in satisfaction of the undisputed debt they were owed. [Op., p. 180–81]. The Bankruptcy Court’s Opinion adopted both of the Committee’s theories of liability in the same language used in the Committee’s post-trial papers with only the barest of word changes, and without attempting to harmonize these two mutually exclusive theories.

District Court Opinion, pp. 47-48.

This passage highlights an important aspect of applying fraudulent transfer law to complex financial transactions. Because these transactions involve multiple transactions and multiple parties, the way that you slice and dice the transactions may determine the outcome. The Bankruptcy Court collapsed the transactions into a single transfer where the assets of the Conveying Subsidiaries were used to pay the debt of the parent TOUSA. On the other hand, the District Court examined each transaction independently.

The District Court Rejects the Direct Transferee Theory

The District Court had no trouble rejecting the theory that the TransEastern Lenders were the recipient of a direct transfer of property of the Conveying Subsidiaries. The loan proceeds from the New Lenders were deposited into an account of a subsidiary which was not one of the Conveying Subsidiaries. The Conveying Subsidiaries never had any control over these funds. As a result, the Conveying Subsidiaries did not have a property interest in the funds paid to the TransEastern Lenders. The control test is important under the Eleventh Circuit decision in In re Chase & Sanborn Corp., 848 F.2d 1196 (11th Cir. 1988).

The District Court was dismissive of both the Bankruptcy Court's reasoning and the arguments advanced by the Committee on appeal.

Without any factual dispute in the record, both the First and Second Lien Term Loan Agreements directed that the proceeds of the New Loans be used to satisfy the Transeastern Settlement. Specifically, Section 4.12 of the agreements required the proceeds of the loans to be used to fund the “Acquisition,” defined as “the contribution by the ‘Administrative Borrower’ [TOUSA] to the Transeastern JV Entities of an amount necessary to discharge all amounts of outstanding indebtedness of the Transeasatern JV Entities.” [Trial. Exh. 360 §§ 1.1, 4.12]. Under the totality of the circumstances, the Bankruptcy Court’s findings and legal conclusions were neither “logical” nor “consistent with the equitable concepts underlying bankruptcy law.”

* * *

The Bankruptcy Court erred by failing to apply the Eleventh Circuit’s control test to the totality of the circumstances as established by the actual documents governing the transactions. Rather, it dismissed the test, expressly rejecting as “clearly wrong” the proposition that ‘control’ is an essential element of any property interest under Section 548. [Op., p. 157]. The Bankruptcy Court expressed the view that a control test “would negate the paradigmatic example of a fraudulent transfer, in which the owner of an insolvent corporation transfers corporate funds to a personal account for his personal use” because the owner’s de facto control over the funds cannot vitiate the corporation’s control over, and property interest in, the funds. [Id. at 158].

District Court Opinion, p. 49, 50-51. Similarly, the Court noted that, "In its Appeal Brief, the Committee offered no substantive response to the Transeastern Lenders’ position that the Conveying Subsidiaries never had any property interest in the New Loan proceeds, and thus transferred nothing to the Transeastern Lenders." District Court Opinion, p. 54.

District Court Finds Clear Error in Finding Lack of Reasonably Equivalent Value

In a mind-numbing discussion, the District Court found that the Bankruptcy Court committed clear error in finding lack of reasonably equivalent value. On the one hand, the Bankruptcy Court found that the Conveying Subsidiaries had only a minimal interest in the loan proceeds because they had been "forced" to agree to the use of these funds to pay the TransEastern Lenders. The District Court held that if the Conveying Subsidiaries had only a minimal interest in the loan proceeds, that they needed only to receive a minimal value to receive reasonably equivalent value.

The approaches taken by the Bankruptcy Court and the District Court illustrate the difference between a forest or the trees approach. The Bankruptcy Court looked at the forest. It concluded that the Conveying Subsidiaries' assets were encumbered to pay a debt of the parent. The District Court looked at the trees. The Conveying Subsidiaries encumbered their assets in return for loan proceeds. If those loan proceeds were used improvidently, that did not change the fact that they received reasonably equivalent value from the loan itself. They all had boards and the boards voted to approve the transaction.

At this point, the District Court opinion has an almost Alice in Wonderland quality. If you encumber your assets in return for loan proceeds in which you have a minimal interest, you need only receive minimal value in return. Of course, if the assets were encumbered by full value liens and the Conveying Subsidiaries received only a minimal interest in the net proceeds, it stands to reason that there is a disconnect here.

Indirect Value Is Still Value

The District Court returned to surer footing when it analyzed the question of indirect value. The Bankruptcy Court held that if the Conveying Subsidiaries did not receive direct value, that the TransEastern Lenders had the burden to prove receipt of indirect value. However, the District Court noted that the Plaintiff had the burden to prove lack of reasonably equivalent value, whether it was direct or indirect. Thus, the Bankruptcy Court placed the burden of proof on the wrong party.

The District Court concluded that "the record establishes beyond dispute that the Conveying

Subsidiaries themselves, as compared to only the TOUSA Parent, received indirect economic benefits, constituting reasonably equivalent “value,” in exchange for their lien transfers." District Court Opinion, pp. 63-64.

The District Court found that the Bankruptcy Court committed an error of law when it held that avoiding default under the Revolver could not constitute value to the Conveying Subsidiaries.

Nonetheless, I conclude that the Bankruptcy Court committed legal error in holding that the “avoidance of default and bankruptcy by the Conveying Subsidiaries” is as a matter of law “not property and therefore is not cognizable as ‘value’” under Section 548 of the Bankruptcy Code.

District Court Opinion, p. 64.

I think this is an important conclusion. Using the forest and the trees analogy again, at the forest level, it was reasonable for the Conveying Subsidiaries to conclude that avoiding the financial decapitation of their parent was in their collective interest. As Ben Franklin once said, "We must all hang together or we shall all hang separately." However, in this case, the Bankruptcy Court was looking at the trees when it concluded that the Conveying Subsidiaries encumbered their assets for the gratuitous benefit of their parent. If the economy had not descended into an economic black hole, the decision of the Conveying Subsidiaries to attempt to save themselves by saving their parent would have been quite sound. Reasonably equivalent value must be determined based on July 31, 2007 rather than August 2007.

The District Court opinion goes on for another fifty pages. However, the most important part is on page 64.

The District Court opinion is Act II of a drama which will continue to at least Act III and possibly Act IV. What it does is set forth two very different approaches to the same problem. The Eleventh Circuit panel which receives this appeal will have some deep thinking in store for them.

730-Day Rule Costs Debtor Homestead Exemption

The Fifth Circuit's recent decision in Camp v. Ingalls allowed an itinerant debtor to claim federal exemptions that would not have been available to him had he remained in Florida. That was a small victory for the debtor. However, a decision released just a few days later reveals the darker side of the 730 day rule for claiming exemptions. In the case of In re Fernandez, No. 09-32896 (Bankr. W.D. Tex. 1/26/11), which can be found here, a debtor was deprived of the generous homestead exemption allowed by both Texas and Nevada law where he had gone back and forth between these states.

What Happened

Alfred Fernandez owned a home in El Paso, Texas. When he was laid off from his job in El Paso, he relocated to Nevada for seven years. All the while, he continued to make the payments on his home in El Paso and planned to return. About a year prior to bankruptcy, he did return. When he filed for bankruptcy, he claimed his home as exempt under Texas law and the trustee objected. Then he amended his exemptions to claim the home as exempt under Nevada law and the trustee objected.

Because he had not lived in Texas for 730 days before bankruptcy, the Texas exemptions were not available to him. However, the trustee contended that Nevada law could not be used to exempt property located in Texas. The Bankruptcy Court agreed.

The Court's Ruling

Judge Leif Clark engaged in an exhaustive analysis of the legal issues involved. However, at its core, the ruling followed this logic:

1. Sec. 522(b)(3)(A) instructs the court to look to the law of the state where the debtor resided for the greater portion of the 180 days prior to 730 days if the debtor has not resided in one state for 730 days.

2. This provision requires application of Nevada law.

3. Although the Nevada exemption statutes do not expressly limit their application to property located within Nevada, it is reasonably clear that Nevada would not apply its internal exemption statutes to property located within other states. Judge Clark based this conclusion, in part, in a response given by the Nevada Supreme Court to a certified question, which noted in passing that the purpose of the exemption statute was to protect "the family, its individual members, and the community and state in which the family resides." He also noted that exemption laws exist to give guidance to Sheriffs as to what property they can levy upon. Obviously, a Nevada sheriff would not be levying upon property located in Texas, so there is no reason for Nevada to design an exemption statute to apply elsewhere.

4. Because the statute says to look to property that "is" exempt under the applicable state law, the Bankruptcy Court must apply state law in the same manner as the state would have.

5. As a result, the Debtor is not entitled to a homestead exemption under Texas or Nevada law. The Debtor could claim a homestead exemption under federal exemptions, but this exemption would only cover a portion of the debtor's equity in his residence.

The Court refused to adopt a construction in which the Bankruptcy Code effectively federalized state exemption laws. Instead, the Court applied state law in the manner in which the states would have applied it.

The Court acknowledged that its decision was not very palatable, stating:

The express language of section 522(b)(3)(A) certainly generates a result that many (including this court) would perceive to be unfair. But a perceived unfair result is not necessarily an absurd result. And absent such a finding, a court is obligated to apply the plain language of the statute as written. The language of the domiciliary requirement is, to this court, unambiguous and straightforward. Though the look-back period has changed, the structure of the provision is essentially unaltered from the original version enacted in 1978, and it is plainly and easily applied (albeit with unfortunate consequences in the case of traveling debtors). If the language of a statute is plain, then it is the duty of the court to enforce them according to their terms.

Opinion, p. 30.

While this is a harsh result, it appears to be one that Congress intended. Section 522(b)(3)(A) was intended to prevent debtors from moving to enhance their exemptions. Judge Clark's ruling is consistent with what would have happened if the debtor had remained in Nevada, namely, that he could not have claimed his Texas property as a homestead.

Federalized Exemptions

Judge Clark rejected the argument that the Bankruptcy Code transformed state laws into federal rules which could be applied independently of their state law moorings. While the context was different, I made a similar argument about the Bankruptcy Code federalizing state exemption laws in the case of In re Dyke, 943 F.2d 1435 (5th Cir. 1991). (If you read the published version, it incorrectly states that my firm represented an amicus party. In fact, there were two consolidated appeals and we represented one of the debtors). In Dyke, the issue was whether ERISA preempted the Texas Property Code exemption for retirement benefits in a bankruptcy case. The correct result, as later determined by the Supreme Court, was that the anti-alienation provisions in ERISA constituted an exemption under other federal law. However, a panel of the Fifth Circuit had previously rejected this argument. This led to the seemingly absurd result that while ERISA expressly prohibited alienation of retirement plan assets, state laws which effectively said the same thing were preempted by ERISA.

We argued that ERISA could not preempt state exemption laws in a bankruptcy case because the state law had become federalized when it was incorporated by the Bankruptcy Code. The Fifth Circuit adopted our reasoning but got there by a slightly different route. The Court stated:

Like Title VII, the Bankruptcy Code relies on state law to assist in the implementation and enforcement of its goals. The principal goal of the Bankruptcy Code is to ensure that a debtor comes out of bankruptcy with adequate possessions to have a "fresh start." (citation omitted). The Code adopts a federal exemption scheme which satisfies this goal; but recognizing that circumstances are different in the various states, the Code also "permits the states to set exemption levels appropriate to the locale." (citation omitted). If this Court were to interpret ERISA to preempt provisions of the state exemption schemes, the states would be unable to set enforceable exemption levels on retirement benefits. This would relegate many debtors to a federal exemption scheme which might be inappropriate to the locale. As a consequence, the enforcement scheme contemplated in the Bankruptcy Code would be modified and impaired.

Under the specific language of ERISA section 514(d), this Court cannot construe ERISA to modify or impair the policies of other federal laws. The Bankruptcy Code, in particular, is a federal law that ERISA cannot disturb. (citation omitted). The Texas legislature has created a state exemption scheme that advances the principal goal of the Bankruptcy Code. One such exemption in this state scheme, section 42.0021(a) of the Texas Property Code, permits bankrupt debtors to exempt the funds in their retirement plans. Tex. Prop.Code Ann. § 42.0021(a)(Vernon Supp.1991). If the ERISA preemption clause is enforced against section 42.0021(a), the preemption clause would impair the ability of the Bankruptcy Code to ensure -- through the Texas state exemption scheme -- that Texas debtors can get a "fresh start" after bankruptcy. Accordingly, this Court concludes that ERISA section 514(d) saves the Texas state exemption scheme from preemption. ERISA does not preempt section 42.0021(a) of the Texas Property Code.

In re Dyke, at 1449-50.

The Fifth Circuit held that the Texas Property Code advanced the policies of the Bankruptcy Code, but did not state that the Bankruptcy Code federalized state exemption laws. The nuance is important. If the state law had become federal law, it could have been interpreted as federal law. However, where it merely advanced the policies of the Bankruptcy Code, the case was weaker.

Unintended Consequences

When Congress added the 730-day residency requirement into BAPCPA, it was no doubt trying to discourage debtors from making an exemption-enhancing move, such as the one made by Bowie Kuhn. However, under Judge Clark's logic, the actual consequence of the statute is to provide that the prior state's law will never apply, since states do not design their exemption statutes to have extra-territorial application. This will mean that migrant debtors will be limited to or receive the benefit of the federal exemptions. Since most states have opted out of the federal exemption scheme, this means that a choice that would have been unavailable to most debtors becomes the only choice.

Judge Clark, in a Scalia moment, was quick to point out that just because Congress didn't think through the consequences of its wording did not give the Court license to adopt a different construction.

It seems clear that the plain language of the statute yields an unfortunate result. Here, it deprives this debtor of his home, even though outside of bankruptcy, Texas law would preserve his home against the claims of his creditors. Yet an unfortunate result is not sufficient grounds to ignore the plain language of a statute. It is certainly never grounds to simply ignore Congressional intent, nor does it ever justify simply rewriting a statute a particular judge or judicial panel does not like. And that principle of judicial restraint must cut across all ideological lines, as it is central to the nature of the judiciaryʼs role in a constitutional form of government. (citation omitted). This statute plainly directs a court to deprive the unlucky debtor who has moved to the state of filing within the two year period prior to filing of the state exemptions not only of the state in which she resides but also of the state in which she used to reside, and gives her, in return, the right to claim federal exemptions (whether on the basis this court espoused in Battle or on the basis of the failsafe provision at the end of section 522(b)(3)). The result, in this case, is that the debtor will lose his house. The court takes no pleasure in being the enforcing officer of a wrongheaded and plainly unfair statute. But it is up to Congress, not the courts, to fix this problem.

Opinion, pp. 41-42 (emphasis added).

(Note: When I wrote about Justice Scalia's dissent in Hamilton v. Lanning, I stated, "Justice Scalia is willing to be a minority of one for the proposition that when Congress passes laws that are foolish or just plain wrong, that the courts have an obligation to throw their words back at them and yield a foolish judgment." Thus, a Scalia moment is one where the Court consciously renders an absurd judgment because the statutory text demands it. It is worth noting that the Supreme Court's jurisprudence interpreting BAPCPA has taken the opposite approach and has tried to make sense of the law regardless of what a strict reading of the text would dictate.).

The Fernandez decision is a big deal. While it is heartbreaking for Mr. Fernandez personally, the larger significance is that Judge Clark has indicted Congress for legislative malpractice for constructing a statute in which one portion (applying the law of the former state) will never apply. It will be interesting to see what the higher courts do with this difficult issue.

Fifth Circuit Doesn't Save the Save Our Springs Alliance But Time May

Another chapter in the Austin development wars has played out as the Fifth Circuit affirmed the Bankruptcy Court ruling denying confirmation of the plan of reorganization proposed by the Save Our Springs (SOS) Alliance, Inc. Matter of Save Our Springs (SOS) Alliance, Inc., No. 09-50990 (1/26/11). However, intervening developments have helped to keep the feisty environmental activist group alive. You can read the opinion here.

What Happened

The Fifth Circuit described the facts this way:

S.O.S. is a nonprofit charitable organization that sues municipalities and developers to ensure what it believes is responsible use of the Edwards Aquifer in the Texas Hill Country. Two of its lawsuits resulted in sizable awards of attorney’s fees to the defendants in those suits. One of the defendants, the Lazy Nine Municipal Utility District, assigned its award to Sweetwater Austin Properties, L.L.C. (“Sweetwater”). Unable to pay the awards, S.O.S. filed for bankruptcy in April 2007.

Opinion, p. 2.

The Court's description is accurate, although couched in measured, legal language. SOS was born out of a citizen revolt at an all night city council meeting about a proposed development. Since that time, SOS has waged legal holy war against developers in sensitive areas of the Edwards aquifer. Several of those lawsuits blew up in their face, resulting in large judgments for attorneys fees.

In its plan, SOS divided unsecured creditors into three classes and proposed to pay them $60,000 on a pro rata basis. The Bankruptcy Court rejected the SOS plan on the grounds that it had not demonstrated that it would be able to raise the $60,000 and that it had impermissibly gerrmandered the unsecured creditor classes. Because SOS was a "small business debtor," it was required to confirm a plan within 300 days. By the time the case was tried and the opinion was delivered, SOS was outside the 300 day window. SOS tried to change its designation as a small business debtor, but the Court did not allow this. As a result, the Bankruptcy Court dismissed the case.

The Fifth Circuit considered three issues on appeal:

1. Did the Debtor prove that the plan was feasible, that is, that it could raise the money?

2. Was the Debtor's separation of creditors into different classes permissible?

3. Should the Court have allowed the Debtor to change its small business designation?

The Court ruled against the Debtor on all grounds.

Feasibility, Fair and Equitable and the Non-Profit Debtor's Dilemma

The case of a non-profit debtor involves an interesting application of the absolute priority rule. Under the absolute priority rule, the requirement that a plan be "fair and equitable" includes the requirement that junior interests not receive or retain any interest unless unsecured creditors are paid in full or consent to the plan. However, a non-profit does not any equity holders. As a result, this requirement does not apply. It also means that the amount that a non-profit must pay to unsecured creditors in a cram-down situation is somewhat arbitrary.

The amount that a non-profit must pay is governed by the following rules:

1. The debtor must pay more than creditors would receive in a chapter 7 liquidation. This is often an easy test to meet because many non-profits have few if any tangible assets.

2. The plan must be filed in good faith. That means that the debtor must be legitimately trying to reorganize instead of simply avoiding payment of its debts.

3. The plan must satisfy the uncodified requirements of the "fair and equitable" test. Although "fair and equitable" includes the requirement that equity not retain any interest unless unsecured creditors consent or are paid in full, it also can include the Bankruptcy Court's estimation of whether the plan is "fair and equitable" in a general sense, sort of a judicial smell test.

4. Finally, the plan must be feasible. The debtor must be able to pay what it promises to pay.

The good faith, fair and equitable and feasible standards can impose conflicting demands. If a plan proposes to pay less than the debtor is capable of paying, then the plan may not be proposed in good faith or be fair and equitable. If the debtor proposes to pay more than it is capable of, then the plan is not feasible.

In this case, it appears that the debtor was so concerned with proving that it could not afford to pay more than the $60,000 proposed that it failed to prove that it could pay this amount.

The Court of Appeals summarized the evidence on feasibility in this manner:

At the five-day confirmation hearing, S.O.S. presented evidence of its strong fundraising history, indicated that it had pledges for $20,000 of the fund after soliciting its top donors, and expressed confidence that it could raise the rest within the sixty-day period. S.O.S.’s executive director testified, however, that it would be difficult to raise the rest of the funds, because many of S.O.S.’s donors wanted to prevent their money from going to judgment creditors in bankruptcy. Moreover, the executive director noted that it would be “extremely difficult” to take money from S.O.S.’s general operating fund, because “[w]e struggle to meet our monthly overhead every month,” and S.O.S. had told its general-fund donors that their money would not go to pay judgment creditors.

Opinion, p. 3. Based on this evidence, the Bankruptcy Court concluded that SOS "offered no evidence at the hearing to show that it could [raise the $60,000]--no commitments, no evidence of relevant past performance, nothing."

The Fifth Circuit found that evidence of past fundraising was insufficient given that "raising funds during bankruptcy is more difficult than at other times" and that its donors were reluctant to contribute to pay judgment creditors.

The Fifth Circuit also dismissed the $20,000 in pledges because they were not firm commitments, only accounted for one-third of the amount required and that its major donors had been tapped.

At the Fifth Circuit, the standard of review is whether the Bankruptcy Court committed clear error. In my view, the Bankruptcy Court was overly dismissive of the evidence of past fundraising and the partial commitments. Unfortunately, the Debtor provided the Court with ammunition for this finding when it poor mouthed its ability to pay more. The Debtor could have won the feasibility battle by doing its fundraising in advance (with monies held in trust pending the court's ruling) or by having its major donors guaranty that they would make up any shortfall, but that would have opened it up to a charge that it was intentionally underpaying. By focusing on the wrong side of the equation, the debtor lost the feasibility battle.

Gerrymandering

An additional requirement for confirmation is that a plan be approved by at least one class of impaired creditors. If one creditor holds more than 33% of the unsecured claims, the debtor will not be able to obtain an impaired, accepting class unless the debtor has a secured class of creditors to accept the plan or can divide its creditors into multiple classes. In this case, the debtor apparently did not have any secured creditors, so it divided its unsecured creditors into three classes.

Separate classification of unsecured creditors became more difficult following the Fifth Circuit's ruling in Matter of Greystone III Joint Venture, 995 F.2d 1274, 1278 (5th Cir. 1991) that "ordinarily 'substantially similar claims,' those which share common priority and rights against the debtor's estate, should be placed in the same class." The Fifth Circuit backed away from this statement somewhat in In re Briscoe Enterprises II, Ltd., 994 F.2d 1160 (5th Cir. 1993)(finding that debtor had good business reasons for separate classification of unsecured claims). However, one part of the Greystone ruling which remains sacrosanct is that to justify separate classification, a debtor must treat the separate classes differently and have good business reasons for doing so.

In this case, the Debtor sought to have each of the three classes of unsecured claims share in the same pot of $60,000 on a pro rata basis. Thus, the Court of Appeals concluded, "SOS's plan treats all its unsecured creditors identically, so they should all have been in the same class absent a legitimate reason to classify them separately." Opinion, p. 7.

The Debtor argued that it had separately classified Sweetwater because Sweetwater had non-creditor interests. The Fifth Circuit acknowledged that this reason, if proven, would have been sufficient.

S.O.S. contends that the bankruptcy court erred, because Sweetwater has two “non-creditor interests” justifying separate classification. A non-creditor interest can justify separate classification if it gives Sweetwater “a different stake in the future viability” of S.O.S. that may cause it to vote for reasons other than its economic interest in the claim. (citation omitted). If such non-creditor interests in fact exist, they would justify S.O.S.’s classification scheme

Opinion, p. 8. It is certainly plausible that Sweetwater was motivated to punish SOS for its environmental zealotry. However, Sweetwater's principal testified that he just wanted to get his claim paid. Ironically, the Fifth Circuit found that Sweetwater's vote was not motivated by a desire to avoid future litigation with the Debtor because the litigation did in fact continue notwithstanding denial of the plan and dismissal of the case.

Given these facts, it would have been almost impossible to have the Bankruptcy Court's finding set aside as clearly erroneous. However, the opinion is significant because it explicitly recognizes that non-creditor interests are a proper reason for separate classification. Thus, the argument could work in a case with better evidence, such as a creditor which readily admitted its motives or one where the creditor would gain a non-economic benefit from the debtor's demise.

The Small Business Designation and Judicial Estoppel

As noted above, the long battle over confirmation caused the Debtor to run out the 300 day clock for confirming a plan. The Debtor argued that the Court erred in not allowing it to revoke its small business designation. The Fifth Circuit noted that while debtors can typically amend filings "as a matter of course at any time before the case is closed," that judicial estoppel was properly invoked to prevent the Debtor from doing so in this case. Having received the benefits of the small business designation, the Debtor could not renounce it once it became burdensome. This finding is unremarkable.

Meanwhile Back at the Sweetwater Ranch

While the appeal of the Bankruptcy Court order was ongoing, developments continued to occur on other fronts. SOS challenged the Sweetwater judgment on the basis that the judgment was rendered by a judge who had been defeated in his primary election and was therefore ineligible to preside over the trial. A Travis County District Court agreed and vacated the judgment, prompting one of SOS's attorneys (not Weldon Ponder) to proclaim "We won" on a bankruptcy listserve. However, that victory was taken away by the Third Court of Appeals. Sweetwater Austin Properties, LLC vs. SOS Alliance, Inc., 299 S.W.3d 879 (Tex. App.--Austin, 2009, pet. den.).

In October 2010, Sweetwater lost its property in one of the largest foreclosures in Travis County. The Bank resold the development within a month. Thus, despite the setbacks, SOS outlasted its adversary. It is not clear whether Sweetwater, the Bank or the new owner controls the judgment now.

Disclosure: My firm did some work for SOS prior to the bankruptcy. We voted our unsecured claim in favor of the Debtor's plan.

Antone's Records: A Tragedy in Three Acts and 46 Pages

Austin prides itself on being the Live Music Capital of the World. While many musicians travel to Austin with stars in their eyes, the reality is that it is difficult to earn a living in the music business, either as an artist or an independent record label. For the past eighteen months Bankruptcy Judge Craig Gargotta has received an extensive education on what can go wrong in relationships between record labels and their artists. This education was on full display in a 46 page opinion he wrote in Walser v. Antone’s Records, et al, Adv. No. 09-1010 (Bankr. W.D. Tex. 1/24/11). You can find the opinion here.

However, Judge Gargotta was not the only one receiving an education. I represented the debtors and the case was a real eye opener for me. This is the story of Antone’s Records, a tragedy in three acts.

Act I: Watermelon Records

During the 1980s and 1990s, Antone’s Records and Watermelon Records were hometown competitors in the music business. Watermelon was founded by Heinz Geissler, a German immigrant. Its catalog focused on Americana music. Antone’s Records was founded by nightclub owner Clifford Antone and focused on blues music. At some point during the 1990s, Dallas investor and music lover James Heldt acquired a majority stake in Antone’s.

Watermelon Records was the first to fall. Watermelon Records filed for chapter 11 relief in 1998. At the time, many of its artists were unhappy with the label. After a contentious three year case involving competing plans and shifting alliances, Watermelon confirmed a plan in which its assets were sold to Texas Clef Entertainment Group, Inc. Texas Clef was an affiliate of Antone’s Records which was formed to make the acquisition.

Few of the artists filed claims in the Watermelon Records bankruptcy case. A group of artists was very active in the case and succeeded in having their records carved out of the sale. The plan of reorganization confusingly provided that artists who filed proofs of claim would be treated as parties to executory contracts and would receive a cure offer. Since most of the artists did not file claims, this provision applied to only a few parties. However, the artists did not receive cure offers. Instead, they received a pro rata share of the funds available to unsecured creditors.

Even though the plan was not followed, none of the parties seemed to take notice. Texas Clef re-released many of the Watermelon titles.

Act II: The Walser Suit

Antone’s, Texas Clef and sister label, Texas Music Group, drew the ire of many of their artists and publishers when they were slow to issue royalty statements and pay royalties.

In 2004, Texas yodeler Don Walser, known as the Pavarotti of the Plains, hired a lawyer and demanded that the label provide him with his royalty statements. After three tries, the label rendered an accurate statement and paid most of the royalties. However, this occurred after the expiration of a deadline to cure defaults. Nonetheless, Mr. Walser accepted the payments. Nothing more occurred until March 2005, when Mr. Walser filed a suit against the label timed to coincide with the South by Southwest Music Festival.

While many of the artists would dispute this, my belief is that the Antone’s labels were guilty not of malice, but failure to keep up with rapidly changing technology. During the 2000s, the sale of music began to shift from cassettes and compact discs to digital downloads. This new distribution channel multiplied the label’s reporting requirements exponentially. Compact discs are sold as a unit containing all the tracks. The record label generally used one domestic distributor and one or more foreign distributors. With digital downloads, consumers could purchase individual tracks or albums. In the early days of digital downloads, there were many competing digital download sites who often provided their reporting in inconsistent formats. It required many man hours to assemble all of this data into a statement. Having downsized its operation to save costs after Mr. Heldt was unwilling to continue subsidizing the labels’ losses, the labels were simply unable to keep up with reporting for over 100 releases. It was not until 2009, after chapter 11 had been filed, that in-house computer wiz Tristan Ader developed an automated database which synthesized the information received into a statement.

Meanwhile, the Walser lawsuit rocked along in Texas state court. The suit metastasized to include six defendants, including the three record labels, James Heldt, Heinz Geissler (now an Antone’s employee) and label president, Randolph Clendenen.

Act III: The Antone’s Bankruptcy

On November 18, 2008, on the eve of trial in the state court action, the three labels filed for chapter 11 relief. Ironically, it was during the bankruptcy case that the labels first began to generate timely statements and make timely royalty payments.

The Walser case was removed to bankruptcy court. The suit remained on hold for a lengthy period while the U.S. District Court considered a Motion to Withdraw Reference.

History repeated itself as competing plans were once again filed. The debtors filed a plan based on payments from cash flow and a new capital contribution from James Heldt. The Official Creditors’ Committee filed a plan proposing to sell the debtor’s assets to a new label for $125,000. At the last moment, the Creditors’ Committee sought to move up the auction from after confirmation to the confirmation hearing itself. An auction was held at the confirmation hearing with James Heldt making the high bid. However, the court rejected his bid and accepted the next highest bid, which came from New West Records. During the bidding process, the sale price doubled from the original offer.

In a mediated settlement, the Debtors, the Official Creditors’ Committee and James Heldt agreed to allow the New West sale to go forward at a slightly higher price with several other concessions. At this point, it became clear that Antone’s would not continue as an independent label. However, there was still the Walser suit to try. This trial was held in bankruptcy court over three days in May 2010. Although Mr. Walser’s estate had filed a proof of claim for $300,000, the estate’s attorney asked for damages of $1 million in closing argument.

On January 24, 2011, the Bankruptcy Court rendered its opinion denying substantially all of the relief requested by the Walser estate.

The Court’s opinion methodically analyzed and rejected the claimant’s theories. Among other findings:

· The Walser estate could not claim the masters embodying his recordings. When a record company pays for the recording of a musical performance, that recording belongs to the record company. The Court found that any claim for rescission of the recording agreement was pre-empted by the Copyright Act and that the Walsers had failed to meet the high standard for imposing a constructive trust under Texas law.

· The record company did not owe a fiduciary duty to the artist. Where Mr. Walser had representation from both an agent and an attorney, he did not rely on the record company to act on his behalf. There was not a relationship of trust and confidence under state law where he affirmatively distrusted the record company. In its ruling, the Court distinguished a case involving Apple Records and the Beatles.

· The record company did not commit fraud when it failed to provide royalty statements in a timely manner. As the Court stated, “No evidence exists that demonstrates actual fraud.”

· The Walsers could not recover damages for emotional distress or punitive damages on a breach of contract claim.

· The Walsers could not pierce the corporate veil to impose liability on the individuals associated with the record labels. Under Texas law, mere failure to observe corporate formalities was not a ground for piercing the corporate veil. On a contract claim, it was necessary to show actual fraud rather than merely constructive fraud to pierce the corporate veil. Where James Heldt had loaned millions of dollars to the company and had never taken a salary, there were no grounds for piercing the corporate veil.

The Court’s opinion is a valuable resource for cases involving constructive trusts, rescission, breach of fiduciary duty and piercing the corporate veil. Many of these issues involve routine Texas state law questions. However, there are so many questions addressed in this opinion that there is something for many people.

In the end, the Walser estate was awarded an unsecured claim for $28,161.41, an amount conceded by the Debtors and which had been tendered prior to bankruptcy, together with pre-judgment interest of $1,025.15, which was the amount the Debtors conceded was owed. The Court also allowed the Walser estate to apply for an award of attorney’s fees, but cautioned that it must segregate out the time spent on relief which was not granted.

This is a case brimming with ironies. The suit which pushed the debtors into bankruptcy was ultimately rebuffed. However, because the artist and publisher creditors did not support the plan proposed by the Debtors, the assets of the Debtors were sold to a new label. Hopefully for the artists, the third time will be the charm.

Fifth Circuit Adopts Literal Reading of Exemption Statute

One of the reforms adopted by BAPCPA was to increase the amount of time a person had to spend in a state before he could take advantage of that state's exemptions. Under 11 U.S.C. Sec. 522(b)(3)(A), a person must live in a state for 730 days to claim that state's exemptions. If the debtor does not satisfy the 730 day requirement, the law of the state where the debtor lived for the greater portion of the 180 days prior to the 730 days applies. This provision was meant to make it harder for a debtor to enhance his exemptions by moving to a new state prior to bankruptcy. However, a new opinion from the Fifth Circuit shows that the statute can have some unintended consequences. Ingalls v. Camp, No. 09-50852 (5th Cir. 1/21/11). You can find the opinion here.

The debtor moved from Florida to Texas during the 730 days before bankruptcy. As a result, he was required to use exemptions available under Florida law. The debtor claimed federal exemptions. However, Florida law prohibits "residents" from using federal exemptions. The trustee objected, contending that the court should apply Florida law as if the debtor were still a resident of Florida. The Bankruptcy Court agreed and sustained the objection. In re Camp, 396 B.R. 194 (Bankr. W.D. Tex. 2008).

The District Court reversed and was affirmed by the Fifth Circuit. The basis for its reasoning was straightforward. "Residents" of Florida could not use federal exemptions. Camp was not a "resident" of Florida. Therefore, he could select federal exemptions even though his exemptions were determined under Florida law.

The Court of Appeals began with the canon that "courts must presume that a legislature says in a statute what it means and means in a statute what it says there." Opinion. p. 3. The Court found it to be pretty clear that the Florida legislature did not intend for non-residents to be precluded from using federal exemptions.

Therefore, Florida’s opt-out statute, by its own express terms, does not apply to nonresident debtors, who remain eligible to use the federal exemptions because nothing in Florida law specifically disallows them from doing so. (citations omitted). Here, because Camp was not a Florida resident at the time he filed his bankruptcy petition, Florida law does not restrict his access to the federal exemptions.

Opinion, p. 5.

The Fifth Circuit's analysis appears pretty clear, at least as a matter of Florida law. After all, why would Florida care if non-residents claimed federal exemptions? The difficulty with the opinion is that Sec. 522(b)(3)(A) expresses a federal policy that mobile debtors should receive the same exemptions that they would have received if they had stayed put.

States naturally draft their exemption laws to apply to their residents, since that is who they have authority over. It would be simply incomprehensible for Florida to draft an exemption statute to apply to residents of Texas. Florida could have drafted its law to refer to persons to whom Florida law applies, but why would it? Florida is interested in Floridians, while Congress has the responsibility for looking after the broader, national interest.

Congress said to look to Florida law to determine the exemptions of the debtor in this case. Congress could have been more clear and said that the debtor's exemptions would be determined under Florida law as though the debtor still resided in Florida. However, it seems pretty clear that that is what they meant.

In this particular case, the debtor received exemptions which would not have been available to him if he had remained in Florida. However, it is easy to imagine a case where state exemptions depended on residency of the state so that the peculiar wording of a state exemption law could deprive the debtor of exemptions he would otherwise have been entitled to if he had remained in the prior state.

I am a strong proponent of plain meaning analysis. However, this may well be a case where the plain meaning isn't so plain. We know what Congress was trying to accomplish. For those who are not enamored of BAPCPA it is easy to chortle at Congress for shooting for a specific result and falling short through poor drafting. However, in this particular case, the drafting was not particularly obtuse, inelegant or contradictory.

This case is somewhat ironic because of the manner in which it resolved a split between bankruptcy judges in the Western District of Texas. Judge Leif Clark articulated the position adopted by the Fifth Circuit in In re Battle, 366 B.R. 635 (Bankr. W.D. Tex. 2006). Judge Craig Gargotta wrote the opinion which was reversed in the Camp case. Judge Clark has a reputation for being a deep thinker who will go out on a limb in support of a contrarian position. Judge Gargotta has a reputation as being a straightforward by the numbers jurist. Thus, it is ironic that Judge Gargotta took the more nuanced, intellectual position, while Judge Clark said plain meaning full speed ahead. This is the nature of BAPCPA. Reasonable minds can and will disagree and sometimes the results will be surprising.

Disclosure: I represented the Trustee in this case in the appeal to the Fifth Circuit. I was the attorney who did not prevail.

While I am uneasy with the result here, I wish to commend my colleague, Robert W. Berry, who represented the debtor. Mr. Berry has a consumer bankruptcy practice. After receiving an unfavorable ruling from the bankruptcy court, it would have been easy to let the result lie. Instead, Mr. Berry stuck with his client and took the case through two levels of appellate review. That is what good lawyers do.

Bankruptcy, BAPCPA and the Social Contract

Once upon a time, I had a client tell me that he loathed bankruptcy because bankruptcy was socialism and he only believed in market solutions. While his use of terminology was imprecise, it is beyond dispute that bankruptcy represents government changing the terms of privately negotiated contracts. If you substitute government action for socialism and substitute private contract for the market, his point is well taken but wrong.

Government Intervention in Private Decision Making: It Cuts Both Ways

While bankruptcy constitutes government interference with private contracts, private contracts would be of limited enforceability without the assistance of government. We are so accustomed to the idea that contracts may be enforced through government action, whether it be through suit on a promissory note or laws governing secured credit, that it is easy to forget that enforceability of contracts depends on the collective agreement that contracts should be enforced against the will of the non-complying party.

It is possible to imagine a contract regime which operated entirely without the intervention of government. In that instance, credit would only be extended based on trust or force. If a debtor did not pay, the creditor's recourse would be limited to not extending any more credit in the future, social pressure such as shunning or in the extreme case, violence. Alternatively, credit could be extended based on the creditor taking possession of collateral and not giving it back until the debt was paid.

While you can imagine a contract system that functioned without the help of government it would be inefficient. As a result, we have laws allowing enforcement of contracts and recognizing secured transactions because they facilitate the extension of credit, encourage economic growth and avoid violence as a means of contract enforcement. In other words, laws enforcing contracts improve the general welfare.

The Social Contract (No, It's Not the Movie About Facebook)

Collective action to enforce contracts is an example of the social contract. The framers of the Constitution were inspired by the social contract theories of Hobbes, Locke and Rousseau. According to Hobbes, life would be "nasty, brutish and short" absent political authority. Under social contract theory, people band together and surrender some of their autonomy in return for security, protection of property rights and the general welfare.

Because enforcement of contracts is a creature of the social contract, government will not blindly enforce all contracts. You cannot go to court and enforce a contract to put a hit on someone or sell a child. In Texas at least, the courts will not enforce a gambling debt. While we believe generally in freedom of contract, there are some contracts which should not be enforced because they are bad. There are also some methods of enforcing contracts which are not allowed. Shakespeare notwithstanding, you cannot secure a debt with a pound of flesh or other body part. The reason is simple. If you could use a writ of execution to actually execute someone , the state would be implicated in using violence to enforce private contracts. Generally we think that is a bad idea.

Bankruptcy Laws and the Social Contract

Bankruptcy laws are an example of the state saying we will enforce private contractual rights but only so far. The power to enact uniform bankruptcy laws is one of the enumerated powers granted to Congress, but it is not a power which must be utilized or utilized in any particular form. For the first hundred years of the nation, bankruptcy laws were utilized to respond to specific crises and were often focused on punishing debtors rather than helping them. It was not until the Bankruptcy Act of 1898 that we had a permanent law which placed limits on how debts could be enforced.

The discharge and fresh start are based on the idea that a person who is faced with crippling levels of debt will not be a productive member of society and will not be able to take care of his or her family. Reorganization laws benefit society by preserving jobs, equitably distributing insufficient assets and minimizing loss of going concern value. Bankruptcy laws are not an example of government interfering with the right of private contract, but a limitation on the extent to which government will facilitate the right of private contract.

So, my argument is that bankruptcy is no more socialist than opening the courthouse to breach of contract suits. In either case, the state is lending its power to the enforcement of private agreements within defined limits.

That brings us to BAPCPA. How well does BAPCPA fulfill the social contract? I would argue that substantively, BAPCPA is a perfectly appropriate drawing of the boundaries of the social contract. The Means Test, limits on homestead exemptions and treatment of 910 vehicles are all ways in which lines are drawn in favor of more personal responsibility. However, there are many parts of BAPCPA which add burdens on the system with no corresponding benefits. Credit counseling and the Debt Relief Agency rules were intended to serve a consumer protection function, but do not in practice. The means test is so ambiguously worded that even the Supreme Court has difficulty figuring out what it means. It also encourages gamesmanship to arrive at a desired result. Sections 362 and 523 have had so many exceptions and clauses grafted onto them that it is impossible to read through them in one sitting.

Trying to Make Sense of An Imperfect Essay

I don't think that I have completely succeeded in tying the social contract ideas of Hobbes, Locke and Rousseau to private contracts and bankruptcy. However, I hope that I have at least suggested the following points:

1. Enforcement of private contracts does not involve man in a state of nature unhindered by the state, but rather involves the state intervening in the private affairs of men to further the common good.

2. Just as the state can act to enforce private contracts, so can the state place limits on the extent to which it will enforce private contracts.

3. When the state acts to limit the freedom of private contract, it does so based on improving the general welfare at the expense of some individuals.

4. Bankruptcy laws further the social contract when they advance some aspect of the general welfare, such as encouragement of risk taking, support of the family unit, preserving economic value or promoting individual responsibility.

5. Bankruptcy laws hinder the social contract when they impose costs without corresponding benefits or reward the use of resources to get around the policies that the laws were intended to promote.

Third Circuit Holds That Attorney Letter Can Form Basis for FDCPA Claim

A new opinion from the Third Circuit Court of Appeals could lead to more claims under the Fair Debt Collection Practices Act being filed in Bankruptcy Court. Allen v. LaSalle Bank, N.A., No. 09-1466 (3^rd Cir. 1/12/11) held that correspondence from a debt collector to a consumer’s attorney could be actionable under the FDCPA. You can find the opinion here. Although Allen did not arise in a bankruptcy case, it involves a fact pattern likely to be seen in bankruptcies.

The Facts

The case began when Dorothy Rhue Allen failed to make the final payment on her 30 year mortgage. LaSalle Bank retained Fein, Such, Kahn & Shephard, P.C. (“FSKS”) to file a foreclosure action. At the request of Allen’s attorney, FSKS provided a payoff letter. Less than three weeks later, Allen filed a class action counterclaim and third party complaint asserting that FSKS’s response violated the FDCPA. LaSalle promptly released the mortgage and dismissed the foreclosure action.

Not content with this result, Allen filed a class action against FSKS, LaSalle and the servicer for the loan in the U.S. District Court for the District of New Jersey. Although she initially made other arguments, she later conceded that her complaint was based solely on a violation of 15 U.S.C. §1692f(1), which prohibits “the collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.” She alleged that the amounts charged to her exceeded the actual charges or the amounts allowed by court rule. For example, she alleged that FSKS demanded $910 in attorney’s fees when a court rule permitted only $15.43, $335 for searches when court rule permits only $75, $160 for recording fees when the actual fee was only $60 and $475 for service of process when statute and court rule limited reimbursement to $175.

The defendants moved to dismiss. The District Court, relying on precedent from the Seventh Circuit, held that a communication from a debt collector to a consumer’s attorney should be analyzed under the standard of a competent attorney. Because a competent attorney would have recognized the charges as being excessive and objected to them, the District Court held that the complaint failed to state a cause of action.

The Third Circuit’s Opinion

The Court of Appeals reversed. It found that §1692f(1) was a strict liability statute which did not depend upon the nature of the recipient (which would be the least sophisticated consumer or competent attorney under other FDCPA provisions). Attorneys who regularly collect debts through litigation are considered to be debt collectors. The FDCPA defines “communication” as “the conveying of information regarding a debt directly or indirectly to any person through any medium.” Thus, the attorneys were debt collectors and the letter to the consumer’s attorney constituted an indirect communication with the consumer herself.

The Court wrote:

The FDCPA is a strict liability statute to the extent it imposes liability without proof of an intentional violation. If an otherwise improper communication would escape FDCPA liability simply because that communication was directed to a consumer’s attorney, it would undermine the deterrent effect of strict liability.

In this case, the District Court sub silentio concluded that a communication from a debt collector to a consumer’s attorney was generally covered by the FDCPA but that it is to be analyzed from the perspective of a competent attorney. The District Court, however, did not have the benefit of Allen’s concession that her claims were predicated only upon § 1692f(1), which defines the collection of an unauthorized debt as a per se “unfair or unconscionable” debt collection method. The only inquiry under § 1692f(1) is whether the amount collected was expressly authorized by the agreement creating the debt or permitted by law, an issue we leave for the District Court.

Opinion, pp. 8-9.

The Third Circuit’s ruling places it in agreement with the Fourth Circuit, Sayyed v. Wolfpoff & Abramson, 485 F.3d 226, 232-33 (4th Cir. 2007) and in conflict with the Second and Ninth Circuits, Guerrero v. RJM Acquisitions LLC, 499 F.3d 926, 934-39 (9th Cir. 2007); Kropelnicki v. Siegel, 290 F.3d 118, 129-31 (2d Cir. 2002).

The Third Circuit also rejected a claim that New Jersey’s litigation privilege claim would bar the claim.

Nonetheless, the FDCPA does not contain an exemption from liability for common law privileges. “[C]ommon law immunities cannot trump the [FDCPA]‟s clear application to the litigating activities of attorneys,” (citation omitted), and, like the Fourth Circuit, we will not “disregard the statutory text in order to imply some sort of common law privilege.”

Opinion, p. 9.

Other courts have split over whether there is a litigation privilege defense to FDCPA claims. Newburger & Barron, Fair Debt Collection Practices, ¶1.07[11][k] (A.S. Pratt & Sons 2009).

Bankruptcy Implications

The Third Circuit’s holding has tremendous implications for bankruptcy cases. Debt collectors regularly communicate information regarding consumer debts in bankruptcy cases. Proofs of claims, motions for relief from the automatic stay and objections to plans all involve as “the conveying of information regarding a debt directly or indirectly to any person through any medium.” It is not unknown for these documents to include charges prohibited for law, such as post-petition interest or attorney’s fees on an unsecured or under secured debt. Under the Allen decision, it is possible that courts could impose strict liability on creditor communications and filings in bankruptcy court.

It is important to note that the Second Circuit recently held that “the filing of a proof of claim in bankruptcy court cannot form the basis for an FDCPA claim.” Simmons v. Roundup Funding, LLC, 622 F.3d 93 (2^nd Cir. 2010). This is just one facet of the ongoing debate over the relationship between bankruptcy law and the Fair Debt Collection Practices Act. While Allen does not directly address this controversy, it seems likely that it will add fuel to the fire.