Monday, January 12, 2015

Bankruptcy Court Denies Request to Transfer Case to Delaware

The venue reform movement has focused on cases filed in Delaware and the Southern District of New York which are either not transferred (Enron and Energy Futures) or transferred at considerable time and expense (Patriot Coal).   However, a decision out of Texas denied a request to transfer an adversary proceeding to Delaware.    Think3 Litigation Trust v. Zuccarello (In re Think3, Inc.), No. 13-1081 (Bankr. W.D. Tex. 1/4/15), which can be found here.

What Happened

The Think3, Inc. case was unusual in more ways than one.    Think3 was incorporated in Delaware and had a large branch office in Italy.   An involuntary bankruptcy proceeding was filed against the company in Italy.   The Debtor filed a voluntary chapter 11 petition in Texas on May 18, 2011.   The Italian Trustee filed a Chapter 15 petition in Texas later the same year; however, recognition was denied and the petition was dismissed.  

The voluntary chapter 11 case resulted in a confirmed plan with a Litigation Trust.    The Litigation Trust sued certain former officers and directors, four of whom were residents of other countries, primarily Italy.   The intrepid Litigation Trustee was able to serve the foreign defendants through the Hague Convention.     

The Defendants brought motions to dismiss for failure to state a cause of action and motions to transfer venue.   The Court's ruling on the motions to dismiss contains an excellent discussion of Rule 12(b)(6) as well as Delaware breach of fiduciary duty law.  (The Court actually discusses all nine causes of action in great detail, but I stopped reading after breach of fiduciary duty).  Nevertheless, what interested me was the motion to transfer venue.    

The Motion to Transfer Venue

According to Judge Mott:
(T)he Director Defendants (Defendants Zuccarello, Costello, Kaufmann and Perry) have requested this Court to transfer venue of this adversary proceeding to the U.S. District Court for the District of Delaware.11 In support, the Director Defendants primarily rely on Think3’s incorporation in Delaware and the resulting application of Delaware corporate law to many disputes in this proceeding. However, without more, the Director Defendants have failed to meet their burden to demonstrate that transfer of venue to Delaware is warranted.
Opinion, p. 53.  

The Bankruptcy Court started with the presumption that the adversary proceeding belonged in the Court where the main proceeding had its venue.     It then cited a six factor test as follows:
(a) Efficiency and economics of estate administration;
(b) Presumption in favor of the “home court”;
(c) Judicial economy and efficiency;
(d) Fairness and the ability to receive a fair trial;
(e) The state’s interest in having local controversies decided within its borders; and
(f) Plaintiff’s original choice of forum.
The Court found that five out of six factors weighed in favor of retaining the case in the Western District of Texas.   Of course, the test seems to be weighted in favor of retaining venue.   Two of the six factors, the presumption in favor of the home court and the Plaintiff's original choice of forum , will always favor keeping the case.   The ability to receive a fair trial is a factor unlikely to arise in a bankruptcy setting.   As a result, the six factor test really boils down to efficiency and economics of estate administration, judicial economy and efficiency and the state's interest in having local controversies decided within its borders.

In its discussion of judicial economy and efficiency, the Court found that applying Delaware corporate law was not a major concern.
The primary thrust advanced by the Director Defendants in support of venue transfer is that substantive issues of Delaware corporate law are involved in this adversary proceeding, which would best be handled by a Delaware court. However, the “learning curve” of Delaware corporate law is not as great as the Director Defendants suggest. Bankruptcy courts are regularly called upon to decide issues of corporate law of another state. Indeed, Texas bankruptcy courts are often required to interpret Delaware corporate law; just as Delaware bankruptcy courts are often required to interpret Texas law.
Opinion, p. 55.   Although Judge Mott spent his legal career based in El Paso, Texas, he had a national practice.   As a result, having to apply Delaware corporate law does not appear to have bene a daunting task.   Indeed, due to the ubiquity of Delaware incorporation, there are probably a great many lawyers versed in Delaware corporate law who do not practice in Delaware. 

This case could well have originated in Delaware and remained there.    Because the company was incorporated in Delaware, current law would have permitted a filing there.   Had the main case been filed in Delaware, the presumption would have been that the adversary proceeding should have been filed there as well.   However, because the main case was filed in Texas, the presumption was in favor of Texas venue and here the case remained.   

The Difficulty With Multi-Part Tests for Venue

Interestingly, there are as many multiple factor tests for transfer of venue as there are cases.   In re BDRC Lofts, Ltd., No. 12-11559 (Bankr. W.D. Tex. 2012), an opinion by Judge Craig Gargotta which was partially relied upon by the Court in the Think3 opinion, contained a wider list of factors to consider, including:
1.  Efficient Administration of the Estate;
2.  Judicial Economy;
3.  Timeliness;
4.  Fairness;
5.  Proximity of creditors;
6.  Proximity of the debtor;
7.  Proximity of witnesses;
8.  the location of the assets;
9.  whether transfer will promote the economic administration of the estae;
10.  the necessity for ancillary administration.
BDRC was an opinion dealing with transfer of a main case rather than an adversary proceeding.  As a result, it was necessary to massage the factors some.

A recent opinion by Judge Marvin Isgur divided the factors into public and private and discounted the plaintiff's choice of filing.
The private factors are: (1) ease of access to sources of proof; (2) availability of compulsory process to secure attendance of witnesses; (3) cost of attendance for willing witnesses; and (4) all other problems related to ease, expeditiousness and expense of trial. The public factors are: (1) administrative difficulties because of court congestion; (2) local interest in having local cases decided at home; (3) familiarity of the forum with governing law; and (4) avoidance of conflicts of law problems or applying foreign law. No single factor is dispositive and the factors are not exhaustive. Rather district courts have discretion to adjudicate motions to transfer venue on a case-by-case basis.

Additionally, the Fifth Circuit has held that a party's choice of forum should be given little, if any weight in venue analysis.
In re Charles Michael Lucas, 2012 Bankr. LEXIS 5067 (Bankr. S.D. Tex. 2012) at *7-8.

With all of these tests out there, it raises the question of whether they are useful at all.  28 U.S.C. Sec. 1412 identifies two factors to be considered:  the convenience of the parties and the interest of justice.   Rather than developing elaborate lists of factors to be considered, it might be just as easy to tick off the specific facts that weighed into convenience of the parties and the interest of justice.   While it would not look as precise as a six or eight or ten factor test, it could be just as useful, especially when the multipart tests all allow the court to give more weight to whatever factors it deems most important.  Such a fluid test is more of an illusion than a clear standard.      

Final Note

 Having written an epic, 58-page opinion, Judge Mott concluded with a similarly epic conclusion.  He wrote:
When viewed through the restrictive prism that Rule 12(b)(6) requires, much of Plaintiff Trust’s Complaint will survive until another day. The Court realizes that there will be another side to the story told in the Complaint–and that facts and proof (not just allegations and plausibility) will ultimately govern the outcome. There are mountains to be climbed and defenses to be scaled for Plaintiff Trust to ultimately prevail. Equally evident is that the Defendants will be forced to defend this suit and their actions in what they likely consider to be a faraway land.

This arduous preliminary skirmish, which involved hundreds of pages of pleadings and countless hours of effort, has now come to the end. The Court will enter a separate Order on the Motions To Dismiss under Rule 12(b)(6) filed by the Defendants consistent with this Opinion, and denying the request to transfer venue to Delaware. The Court will also enter an Order requiring the parties to conduct a planning conference and submit a proposed scheduling order, so that the discovery stage of this proceeding can commence.
Opinion, p. 58.    Judge Mott often employs a well thought out turn of phrase in his opinions, as well as quotes from films and popular music.   I am glad that I finally had a chance to feature one of his writings.   

Thursday, January 08, 2015

A Cautionary Tale About Injunctions

Many bankruptcies are prompted by foreclosure postings.   Often the debtor must weigh whether to seek an injunction vs. filing bankruptcy.   A recent Texas case makes the point that simply getting the court to grant an injunction is not enough.   Unless the procedures are strictly followed, the injunction may not be valid.   However, that does not mean that the path will be easy as one substitute trustee found out.   The case is In re Chaumette, 2014 Tex. App. LEXIS 13799 (Tex. App.--Houston[1st.Dist.], 2014, orig. proc.).   

Black Sigma, LLC sought a temporary injunction against Michael Robinson to prevent a trustee's sale of its property.   On August 22, 2011, the trial court heard the movant's evidence then cut the hearing short stating that he had a criminal docket to attend to.   The trial court stated that the movant had put on enough evidence.  The creditor protested that he had evidence to put on as well but was not allowed to do so.   The trial court entered a temporary injunction which read as follows:
The Court, having held a hearing and received evidence from Plaintiff requesting injunctive relief and argument of counsel, if any, is of the opinion that Plaintiff's application has merit and an injunction should be and is hereby GRANTED.
The Court finds:
1. Plaintiff has a probable right on final trial to the relief that it seeks;
2. Plaintiff will suffer irreparable injury for which he has no legal remedy if this injunction is not granted.
IT IS, THEREFORE, ORDERED that Michael P. Robinson, Defendant in this cause and any alternate trustee appointed by him, Robinson's agents, servants, employees, and attorneys and all persons in active concert or participation with him be temporarily and/or permanently enjoined from conducting a foreclosure sale as substitute trustees on September 6, 2011 or anytime during the pendency of this case or until further order of the Court[.] 
The trial court then set a hearing on September 19, 2011 to allow the creditor to present evidence to try to persuade the court to dissolve the injunction.    However, the substitute trustee proceeded with the sale anyway.    The creditor came back on September 19 and 22, 2011 and put on its evidence only to have the trial court reaffirm its original ruling.   The creditor then filed an interlocutory appeal.   During the interlocutory appeal, the debtor filed a Motion for Contempt and for Referral to the Trial Court to Enforce Temporary Injunction."

The trial court commenced civil and criminal contempt proceedings against David Chaumette, the substitute trustee.    On November 19, 2012, the trial court found Chaumette guilty of civil contempt.   The trial court ordered him confined in the Brazoria County jail until he "purges himself of contempt by executing and recording a document in form acceptable to the Court, vacating the said substitute trustee's deed, effective September 6, 2011."   Eleven months later, the substitute trustee filed a "Rescission of Foreclosure Sale" in the real property records.   However, the trial court did not find this document to be acceptable.   The court drafted its own document which the substitute trustee did not sign because he felt it was inaccurate.   

On November 8, 2013, the trial court issued a capias for the substitute trustee's arrest based on the November 19, 2012 contempt order.    The substitute trustee filed an application for writ of habeas corpus.   The Court of Appeals granted the writ because the contempt order did not clearly specify what the substitute trustee had to do to purge himself of contempt.

Having failed to sustain a civil contempt order, the trial court held a two day trial which resulted in a criminal contempt order providing for the substitute trustee to be incarcerated for 45 days.   The substitute trustee filed a second application for writ of habeas corpus.    

The Court of Appeals granted the second writ of habeas corpus on the basis that the court's temporary injunction was void and therefore unenforceable.    Under Texas Rule of Civil Procedure 683, an order for temporary injunction must "set forth the reasons for its issuance."   According to the Court:
"'[T]he obvious purpose of [Rule 683] is to adequately inform a party of what he is enjoined from doing and the reason why he is so enjoined.'" (citation omitted)(emphasis in original).
Opinion, p. 12.     The Court of Appeals found that the temporary injunction did not meet this standard.
Here, the only part of the September 1, 2011 temporary-injunction order that can be construed as setting forth the reasons for its issuance reads as follows: "The Court finds . . . Plaintiff will suffer irreparable injury for which he has no legal remedy if this injunction is not granted." A statement indicating only that a plaintiff will "suffer irreparable injury for which he has no legal remedy" if injunctive relief is not granted does not comply with the specificity requirements of Rule 683.
Opinion, pp. 12-13.   

Why did the trial court grant the temporary injunction?   Why didn't the plaintiff's lawyer put this in the order?   Why did the substitute trustee proceed with the foreclosure after the trial court entered a temporary injunction?     The opinion does not say and the reader is left to wonder.   

Thus, because the order did not specifically state the reasons it was being granted, it was void and the substitute trustee could not be held in either civil or criminal contempt.    However, it took the substitute trustee (who is a former president of the Houston Bar Association according to the Texas Lawyer) three years to clear his name.    This case seems to be a tragedy of errors with no clear winner.   However, it provides a good object lesson in why it is important to read the rules carefully and avoid taking shortcuts in drafting.   Just because a judge will sign an order does not make it valid. By the same token, ignoring an order simply because it is void isn't a real good idea either.  

Wednesday, January 07, 2015

New Scottish Law Allows a BRO from a BADAS(S)

The new Scottish bankruptcy law which will take effect in April contains some great acronyms, including BADAS and BRO.    Unfortunately, the Bankruptcy and Debt Advice (Scotland) Act 2014 ("BADAS") is missing the second "s" which would make it a truly badass law.   From my brief review of an article by Rob Aberdein, the new Scottish law is a hybrid of Chapters 7 and  13 under BAPCPA.   However, it seems to cut out lawyers altogether, relying on a creature known as the Accountant in Bankruptcy ("AiB").

Like BAPCPA, a Debtor must obtain a credit counseling briefing before having his estate sequestrated, which is the Scottish version of bankruptcy.   This must be obtained from an "approved money advisor."    Additionally, the Debtor must later take a "financial education course."

One unique feature of BADAS is that much of the initial decisionmaking is delegated to the AiB, who may or may not be the same person as the Trustee.    According to Mr. Aberdein, 
The effect of the BADAS Act in this context is that the sheriff has been ‘pushed out’ of the sequestration process to the role of an appeal body where debtors or trustees seek review of a decision by the AiB.
(Note:  According to Wikipedia, in Scotland a sheriff is analogous to a judge and sits in a second-tier court called the Sheriff Court.   As best I can tell, the Sheriff is a bit like a County Court at Law Judge in Texas).   
The powers of the AiB include:
  • The AiB now has the power to make and vary Debtor Contribution Orders.
  • Applications for the recall of sequestration are to be made to the AiB and not the sheriff where a debtor has paid or is able to pay his/her debts in full. The AiB can also grant a recall of an award of sequestration.
  • Where the AiB is not the trustee, an application can be made by the trustee to the AiB for a direction in relation to any matter arising in the sequestration.
  • The AiB has the power to remove trustees or commissioners.
  • The AiB can extend the period (currently 28 days) where a trustee must adopt or refuse to adopt a contract.
  • A ‘Bankruptcy Restriction Order’ (‘BRO’) can be made by the AiB; and can now only be made by a sheriff if the AiB makes an application to this effect.
  • The AiB can make an order converting a Protected Trust Deed into a sequestration award. Previously, a petition had to be made to the sheriff.
  • In addition, the AiB can make an order to cure defects in procedure such as correcting clerical or ‘incidental’ errors in documents and can waive a failure to comply with a time limit.
  • The AiB can, instead of a sheriff, review and revalue if appropriate the valuation of contingent debts by a trustee.
 The Scottish version of the means test is the Common Financial Tool ("CFT").   The AiB uses the CFT to determine the amount of the contribution to be made by the Debtor.   The AiB may set the debtor's contribution at zero and may approve a moratorium on diligence of up to six months not more than once in a year.   

Under BADAS, creditors have 120 days of receiving notice of the statutory meeting to submit claims.  If no meeting is convened, they have 120 days from the date on which the trustee gives notice inviting submission of claims.    

Under BADAS, the debtor can obtain a discharge within six months under the Minimal Assets Process ("MAP").   The MAP is pretty stringent.   A debtor cannot have debts of more than 17,000 pounds (about $25,000), assets of more than 2,000 pounds (about $3,000), no single asset worth more than 1,000 pounds (about $1,500) and cannot own land.    
There is not an automatic discharge of the debtor outside of the MAP.    Instead, the Trustee (who may also be the AiB) must submit a report within 10 to 12 months as follows:
The report must also state whether, in the opinion of the trustee, the debtor has complied with any contribution order, co-operated with the trustee, complied with the statement of undertakings, made a full and fair surrender of the estate, made full disclosure of all claims the debtor is entitled to bring against other persons and has delivered to the trustee all relevant documents relating to the debtor’s estate and financial or business affairs.
What this suggests to me is that instead of making payments from current monthly income over a period of time, the debtor is expected to make a lump sum contribution to the creditors within approximately a year of filing.     Of course, I may be wrong.   If you desire more information about BADAS, I would suggest that you fly to Scotland and play a round of golf with Mr. Aberdein.   His email address is


Sunday, January 04, 2015

Ten Most Memorable Quotes of 2014

Here is a look back at some of the most memorable quotes that appeared in A Texas Bankruptcy Lawyers Blog last year.

10. Asarco, L.L.C. v. Jordan Hyden Womble Culbreth & Holzer, P.C. (In re Asarco, L.L.C.), 751 F.3d 291 (5th Cir. 2014), cert. granted, 2014 U.S. LEXIS 4913 (2014).
Too frequently, court-appointed counsel for debtor[’s] and the official creditor committees’ interests in a case, sharing the mutual goal of securing approval for their fees, enter into a conspiracy of silence with regard to contesting each other’s fee applications. (citation omitted).
While the Asarco case is better known for its holdings on fee enhancements and fees for defending fees, Judge Edith Jones wrote to suggest that there are not enough objections to fee applications filed. 

9. Judge Angie Alias’s review of The Interview
On this holiest of holy days–the day on which Christians celebrate the birth of Jesus of Nazareth, and in this season in which men and women of all faiths and nations endeavor to spread peace on earth and goodwill toward men–I would do something completely different. I would support every artist’s creative freedom. I would quietly pay homage to every artist’s First Amendment Right to write, speak, or otherwise express whatever he wants, no matter how offensive. I would do my own small part in telling world governments, monolithic corporations, and anonymous hackers that censorship and stifling of artistic freedom (even bad artistic displays) will never be tolerated in our American society. 
Judge Alias’s comments were significant not only because they were the first guest post in this blog, but because an Article I judge was willing to stand up for the right of Seth Rogen and James Franco to make movies in bad taste notwithstanding threats from North Korea.

8. Declaration of Robert Marie Mark Karpeles in Case No. 14-31229, Mt.Gox, Inc. (Bankr. N.D. Texas). 
Bitcoins are "created" through a computer software algorithm which, at any point in time, resides on thousands of computers on the Internet. Persons who accept to certify bitcoin transactions over the bitcoin peer-to-peer network are remunerated by the issuance of a fixed number of bitcoins which evolves over time. The certification is done by the solving of an "algorithm" with the use of ever-more powerful computers. These persons are called "miners" and the process of obtaining bitcoin in this fashion is called "mining." 
Finally someone explains what a bitcoin is. 

7. Fed economist William Strauss speaking at NCBJ. 
Bankruptcy is good. Unemployment is good. They are necessary evils. . . . Unemployment makes workers available to industries that are rising. Bankruptcy makes resources available to industries that are rising. 
It’s comforting to hear that what we do is worthwhile. However, it’s a little creepy that he seems to be channeling his inner Gordon Gecko.

6. Judge Jeff Bohm in Case No. 12-32096, In re Cody Smith (Bankr. S.D. Texas). 
Over my dead body. I do not like mediation. I think it is wasteful for the most part and you all needed to get my permission. 
Judge Bohm has some outspoken opinions and he is not shy about expressing them. While he is often provocative, he is always thoughtful.

5. Obsidian Financial Group, LLC v. Cox, 740 F.3d 1284 (9th Cir. 2014). 
The protections of the First Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities, engaged in conflict-of-interest disclosure, went beyond just assembling others’ writings, or tried to get both sides of a story. As the Supreme Court has accurately warned, a First Amendment distinction between the institutional press and other speakers is unworkable: “With the advent of the Internet and the decline of print and broadcast media . . . the line between the media and others who wish to comment on political and social issues becomes far more blurred.” 
For obvious reasons, I was impressed that the Ninth Circuit was not willing to relegate obnoxious bloggers to second class First Amendment freedoms.

4. Judge Stephen Higginson, dissenting from the Fifth Circuit’s denial of rehearing en banc in BP RE, LP v. Waxahachie Dodge (In re BP RE, LP), 744 F.3d 1371 (5th Cir. 2014). 
I will not belabor the importance of a case that, in effect, strikes down a federal statute and whose result may disrupt the way our district and bankruptcy courts handle a large volume of routine bankruptcy business. 
This was a Fifth Circuit case holding that consent was not available in Stern v. Marshall cases. In dissenting from rehearing en banc, Judge Higginson showed that he understood the magnitude of the problem.

3. Judge Edward Prado, specially concurring in Barron & Newburger, P.C. v. Texas Skyline Interests, Ltd. (In re Woerner), 758 F.3d 693 (5th Cir. 2014). 
Even though we find no error in the bankruptcy court’s use of the Pro–Snax standard to resolve the attorney fee application in this case, I write separately to note that the Pro–Snax standard may be misguided. It appears to conflict with the language and legislative history of § 330, diverges from the decisions of other circuits, and has sown confusion in our circuit. 
Judge Prado deserves a judicial courage award for following a dubious Fifth Circuit precedent while recommending that the en banc court re-examine the case. Usually it is a dissenting judge who suggests en banc rehearing. Here it was the judge who wrote the court’s opinion.

2. Executive Benefits Insurance Agency v. Arkison, 134 S.Ct. 1365 (2014). 
If the claim satisfies the criteria of §157(c)(1), the bankruptcy court simply treats the claims as non-core: the bankruptcy court should hear the proceeding and submit proposed findings of fact and conclusions of law to the district court for de novo review and entry of judgment. 
While not answering the question posed to the Court, Justice Thomas gave the reassuring message that there was a means to comply with Stern v. Marshall. In other words, he let us know that it was not time to panic just yet.

1. Law v. Siegel, 134 S.Ct. 1188 (2014). 
It is hornbook law that §105(a) “does not allow the bankruptcy court to override explicit mandates of other sections of the Bankruptcy Code.” (citation omitted). Section 105(a) confers authority to “carry out” the provisions of the Code, but it is quite impossible to do that by taking action that the Code prohibits. 
What could be better than a case where the lawless debtor was named Law? In a case taylor made for him, Justice Scalia let us know that section 105 is not a mandate to override the Bankruptcy Code. This is now so obvious that I roll my eyes at myself whenever I am forced to rely on section 105 for a proposition with no other support. 

Honorable Mentions:

Judge Harlin Hale in Case No. 14-30699, In re Buffet Partners, Ltd. (Bankr. N.D. Texas). 
Not much law, statutory or otherwise, exists regarding structured dismissals of this type. 
A statement of the obvious.

Judge Jeff Bohm in No.10-41603, in In re Karl Stomberg (Bankruptcy S.D. Texas). 
The fact of the matter is that she's a creditor in this case, and I don't know how on God's green earth one attorney can represent an ex-spouse and an ex-spouse without having a fair amount of ill feeling in the pit of his stomach, but obviously Mr. Braun concluded he could. 
Another statement of the obvious. Although this hearing took place in 2010, I just saw it in 2014.

Jeffrey Lasker, president of the Richmond Fed, speaking at NCBJ. 
You might be wondering why a central banker, the head of a regional Federal Reserve Bank, is interested in bankruptcy — particularly since distressed banks and other financial firms have for decades been handled outside the Bankruptcy Code, through discretionary processes that at times involve government-funded protection of depositors and other creditors. But in fact, that is precisely the source of my interest: I have come to believe that such discretionary actions played a critical role in the financial crisis of 2007-08. 
This probably should have been higher up on the list. However, I fear that his comments will fall on deaf ears. The current Congress is unlikely to have any interest in too big to fail legislation of any stripe.