BANKRUPTCY. How the dismissal of a bankruptcy case impacts creditors actions. Naming mediator brings authority to fractious Detroit bankruptcy case

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1 Westlaw Journal BANKRUPTCY Litigation News and Analysis Legislation Regulation Expert Commentary VOLUME 10, ISSUE 7 / AUGUST 1, 2013 WHAT S INSIDE AVOIDANCE 5 Amicus tells 4th Circuit that both spouses must seek bankruptcy to protect tenancy by entireties Alvarez v. HSBC Bank (4th Cir.) FRAUDULENT TRANSFERS 6 Fraudulent transfer not part of estate until trustee recovers it, creditor tells Supreme Court Rajala v. Lookout Windpower Holding Co. (U.S.) ASBESTOS 7 Supreme Court rejects Pfizer s bid to block asbestos suits Pfizer Inc. v. Law Offices of Peter G. Angelos (U.S.) 7 New Jersey federal court rejects reimbursement claims against G-I Holdings U.S. Gypsum Co. v. G-I Holdings (D.N.J.) COMMENTARY How the dismissal of a bankruptcy case impacts creditors actions Attorney John B. Butler III discusses the complexities of getting an automatic stay reinstated and the rules that apply after the dismissal of a bankruptcy case. SEE PAGE 3 MUNICIPAL BANKRUPTCY Naming mediator brings authority to fractious Detroit bankruptcy case (Reuters) Of all the legal maneuvers so far in Detroit s bankruptcy case by unions or the city s emergency manager, the one that may have the most impact was when the judge decided to name a mediator. CONTINUED ON PAGE 15 AUTOMATIC STAY 8 Collection of pre-bankruptcy attorney fees violated automatic stay In re Am. Med. Utilization Mgmt. Corp. (Bankr. E.D.N.Y.) 9 Claims against Casey Anthony must be determined by bankruptcy judge In re Anthony (Bankr. M.D. Fla.) DISCHARGE 10 No retroactive extension for nondischargeability filing, 9th Circuit says Anwar v. Johnson (9th Cir.) SOCIAL SECURITY 11 4th Circuit clarifies role of Social Security income in Chapter 13 plans Mort Ranta v. Gorman (4th Cir.) REUTERS/Rebecca Cook Detroit firefighters hold signs during an informational picket about the downsizing of the fire department outside the federal courthouse during day one of the city s municipal bankruptcy hearings July

2 Westlaw Journal Bankruptcy Published since May 2004 Publisher: Mary Ellen Fox Executive Editor: Donna M. Higgins Editor: Chip Giambrone, Esq. Managing Desk Editor: Robert W. McSherry Senior Desk Editor: Jennifer McCreary Desk Editor: Sydney Pendleton Westlaw Journal Bankruptcy (ISSN ) is published biweekly by Thomson Reuters. Thomson Reuters 175 Strafford Avenue Building 4, Suite 140 Wayne, PA Fax: Customer service: For more information, or to subscribe, please call or visit west.thomson.com. Reproduction Authorization Authorization to photocopy items for internal or personal use, or the internal or personal use by specific clients, is granted by Thomson Reuters for libraries or other users registered with the Copyright Clearance Center (CCC) for a fee to be paid directly to the Copyright Clearance Center, 222 Rosewood Drive, Danvers, MA 01923; ; How to Find Documents on Westlaw The Westlaw number of any opinion or trial filing is listed at the bottom of each article available. The numbers are configured like this: 2013 WL Sign in to Westlaw and on the Welcome to Westlaw page, type the Westlaw number into the box at the top left that says Find this document by citation and click on Go. TABLE OF CONTENTS Municipal Bankruptcy: In re City of Detroit Naming mediator brings authority to fractious Detroit bankruptcy case (Bankr. E.D. Mich.)...1 Commentary: By John B. Butler III, Esq. How the dismissal of a bankruptcy case impacts creditors actions... 3 Avoidance: Alvarez v. HSBC Bank Amicus tells 4th Circuit that both spouses must seek bankruptcy to protect tenancy by entireties (4th Cir.)...5 Fraudulent Transfers: Rajala v. Lookout Windpower Holding Co. Fraudulent transfer not part of estate until trustee recovers it, creditor tells Supreme Court (U.S.)...6 Asbestos: Pfizer Inc. v. Law Offices of Peter G. Angelos Supreme Court rejects Pfizer s bid to block asbestos suits (U.S.)... 7 Asbestos: U.S. Gypsum Co. v. G-I Holdings New Jersey federal court rejects reimbursement claims against G-I Holdings (D.N.J.)... 7 Automatic Stay: In re Am. Med. Utilization Mgmt. Corp. Collection of pre-bankruptcy attorney fees violated automatic stay (Bankr. E.D.N.Y.)...8 Automatic Stay: In re Anthony Claims against Casey Anthony must be determined by bankruptcy judge (Bankr. M.D. Fla.)...9 Discharge: Anwar v. Johnson No retroactive extension for nondischargeability filing, 9th Circuit says (9th Cir.) Social Security: Mort Ranta v. Gorman 4th Circuit clarifies role of Social Security income in Chapter 13 plans (4th Cir.)...11 Mortgage-Backed Securities: Slater v. A.G. Edwards & Sons Stock underwriters escape liability in class action (10th Cir.)...12 Disgorgement: In re Dean Bankruptcy judge penalizes attorney for lax practices (Bankr. E.D. Cal.)...13 Exemptions: Running v. Miller Single-premium annuity is not exempt property, trustee argues (8th Cir.)...14 News in Brief...16 Case and Document Index WESTLAW JOURNAL n BANKRUPTCY

3 COMMENTARY How the dismissal of a bankruptcy case impacts creditors actions By John B. Butler III, Esq. If your client s bankruptcy case gets dismissed, either for failure to abide by a Chapter 13 plan or follow through with other obligations, creditors are positioned to go after the debtor s assets, unless a stay is ordered or reinstated. The rules regarding what happens after the case is dismissed and how to obtain a stay are convoluted, however, creating traps for unwary practitioners. For example, if your client s Chapter 13 case was dismissed for non-payment and your client wants his case reinstated, you should know what to tell him may happen in the meantime. Say your client s Chapter 11 case was dismissed for failure to timely file a plan, and you are filing a motion to vacate the order of dismissal. You need to know what else to do to protect the debtor s assets. Many questions may arise when cases are dismissed. If your client is a secured creditor and the debtor s bankruptcy case has been dismissed, can the debtor s car be repossessed and sold? Can foreclosure resume on the debtor s real estate? If your client is a landlord with the debtor as a tenant, can the debtor be evicted once the case is dismissed? Is there a period of time the creditor has to wait before taking any action against the debtor? What impact does the debtor s motion to reconsider and vacate the order of dismissal have on the rights of creditors to act against the debtor or his property? A short examination of these issues will dispel some of the misconceptions practitioners may have about what happens when a bankruptcy case is dismissed. WHAT STAY APPLIES AFTER A BANKRUPTCY CASE IS DISMISSED? The short answer to this question is that no stay applies. Once the case is dismissed, the automatic stay of 11 U.S.C. 362(a) terminates, pursuant to 11 U.S.C. 362(c)(2)(B). In pertinent part, 11 U.S.C. 362(c)(2) provides: (2) the stay of any other act under subsection (a) of this section continues until the earliest of: (A) the time the case is closed; (B) the time the case is dismissed; or (C) if the case is a case under chapter 7 of this title concerning an individual or a case under chapter 9, 11, 12, or 13 of this title, the time a discharge is granted or denied Some attorneys mistakenly believe a temporary stay of the dismissal order arises under Federal Rule of Bankruptcy Procedure 7062 and Federal Rule of Civil Procedure 62(a). Rule 7062 simply says Rule 62 applies in adversary proceedings, and Rule 62(a) says, Except as stated in this rule, no execution may issue on a judgment, nor may proceedings be taken to enforce it, until 14 days have passed after its entry. Therefore, Rule 62(a) automatically applies a 14-day stay to the execution or enforcement of certain judgments in adversary proceedings. That seems straightforward enough, but does it apply to bankruptcy dismissals? Federal Rule of Bankruptcy Procedure 9014(c), which makes certain rules of civil John B. Butler III was law clerk to U.S. Bankruptcy Judge J. Bratton Davis, a standing Chapter 13 trustee for 15 years and an adjunct professor of bankruptcy law at the University of South Carolina School of Law. He is the author of the two-volume Bankruptcy Handbook published by Knowles Publishing and specializes in representing creditors in bankruptcy cases in South Carolina. procedure applicable in contested matters, 1 specifically does not apply Rule 7062 in contested matters, unless the court orders otherwise. As a result, courts have been consistent in finding neither the automatic stay 2 of 11 U.S.C. 362(a) nor the stay of Rule applies after dismissal of a bankruptcy case. WHAT ACTIONS MAY CREDITORS TAKE AFTER A CASE IS DISMISSED? Courts 4 have also been uniform in finding a creditor may pursue its legal and contractual rights against a debtor whose case has been dismissed, unless the court enters a specific order staying any action against the debtor or the debtor s property. After dismissal of a case, creditors have proceeded with foreclosure actions, 5 repossession of a car 6 and eviction. 7 Actions taken after reinstatement of the bankruptcy case and the concurrent reimposition of the automatic stay are, of course, violative of the automatic stay once it is reimposed. 8 WHAT EFFECT DOES A MOTION TO RECONSIDER THE DISMISSAL OF THE CASE HAVE ON ANY STAY? A motion to reconsider the dismissal of the case does not prolong any stay that may have existed while the case was pending. Neither a motion under Federal Rule of Civil Procedure 59(e) nor under Federal Rule of Civil Procedure 60(b) stays any action a creditor may take after dismissal of the case. 10 A debtor who is not appealing 11 the dismissal of his case but desires to protect his assets while waiting for reinstatement of his case must obtain reinstatement of the case on an emergency basis, before the creditor takes action. Otherwise, the debtor must obtain an order from the bankruptcy court specifically staying any actions until the case is reinstated. As one court stated: The debtors were not attempting a hollow reinstatement of their dismissed case; they were obviously attempting AUGUST 1, 2013 n VOLUME 10 n ISSUE 7 3

4 to reinstate the automatic stay. They did not seek extraordinary relief to accomplish that result. Knowing that a foreclosure sale was scheduled, the debtors safest course after dismissal of a chapter 13 case would have been to file an adversary proceeding and motion seeking a temporary restraining order to prevent the foreclosure sale from going forward while their reinstatement motion was pending. 12 Courts have been consistent in finding neither the automatic stay of 11 U.S.C. 362(a) nor the stay of Federal Rule of Bankruptcy Procedure 7062 applies after dismissal of a bankruptcy case. IS THE REINSTATEMENT OF THE STAY RETROACTIVE? Most courts hold that later reinstatement of the case does not retroactively reinstate the automatic stay during the period between when the case was dismissed and when it was reinstated. 13 In fact, some courts have held it was an error for a bankruptcy court to reinstate the automatic stay retroactively on acts taken during that period. 14 CONCLUSION The dismissal of a case that a debtor wants to reinstate is a perilous situation for both the debtor s attorney and the creditor s attorney. Knowing the applicable law and taking quick action may well be the difference between your client retaining or losing his property. WJ NOTES 1 The Advisory Committee Note to Federal Rule of Bankruptcy Procedure 9014 elaborates on what constitutes a contested matter: Whenever there is an actual dispute, other than an adversary proceeding, before the bankruptcy court, the litigation to resolve that dispute is a contested matter. For example, the filing of an objection to a proof of claim, to a claim of exemption, or to a disclosure statement creates a dispute which is a contested matter. 2 Fish Mkt. Nominee Corp. v. Pelofsky, 72 F.3d 4, 6 (1st Cir. 1995); In re De Jesus Saez, 721 F.2d 848, 851 (1st Cir. 1983); In re Singleton, 358 B.R. 253, 261 (D.S.C. 2006); In re Heghmann, 316 B.R. 395, (B.A.P. 1st Cir. 2004) aff d, 326 F. Supp. 2d 227 (D.N.H. 2004); In re Webb Mtn LLC, 414 B.R. 308, 335 (Bankr. E.D. Tenn. 2009); In re Hill, 305 B.R. 100, (Bankr. M.D. Fla. 2003); In re Jennings, 2001 WL , at *3 (Bankr. D.S.C. 2001); In re Frank, 254 B.R. 368, 374 (Bankr. S.D. Tex. 2000); In re Weston, 101 B.R. 202, 205 (Bankr. E.D. Cal. 1989), aff d, 123 B.R. 466 (B.A.P. 9th Cir. 1991), aff d, 967 F.2d 596 (9th Cir. 1992). 3 Fish Mkt., 72 F.3d at 6-7; In re Heghmann, 316 B.R. 395; In re Hill, 305 B.R. 100; In re Rivera, 280 B.R. 699, 701 (Bankr. S.D. Ala.2001); In re Garcia, 2005 WL , at *1 (Bankr. S.D. Fla. 2005); In re Frank, 254 B.R. at 374; In re Weston, 101 B.R. at In re Singleton, 358 B.R. 253 (creditor did not violate any stay by proceeding with foreclosure sale after dismissal of Chapter 13 case); In re Heghmann, 316 B.R. 395 (creditor did not violate any stay by obtaining writ of possession after one case was filed and before the next case was filed); In re Hill, 305 B.R. 100 (creditor did not violate any stay by holding foreclosure sale after chapter 13 case was dismissed and before it was reinstated); In re Frank, 254 B.R. 368 (creditor did not violate any stay by repossessing and selling car after dismissal of Chapter 13 case and before emergency hearing was held on debtor s motion to reinstate case; creditor, however, was liable for damages for improper notice of sale under state law). 5 In re Singleton, 358 B.R. 253; In re Hill, 305 B.R. 100; In re Johnson, 1999 WL (Bankr. W.D. Tenn. 1999). 6 In re Garcia, 2005 WL ; In re Rivera, 280 B.R. 699; In re Jennings, 2001 WL ; In re Frank, 254 B.R In re Heghmann, 316 B.R In re Diviney, 225 B.R. 762, 771 (B.A.P. 10th Cir. 1998) ( We hold that reinstatement of the third case restored the automatic stay as of August 26, 1996, so the stay was in effect on September 7, 1996, when the bank repossessed the car. ); In re Webb Mtn, 414 B.R. at 339 ( Although the automatic stay terminated by operation of law upon entry of the dismissal order, it went into effect once again when the plaintiff s case was reinstated, following its successful appeal of the dismissal order. ); In re Jennings, 2001 WL at *3 ( However, by reinstating debtors case, the court simultaneously reimposed the automatic stay from the date of reinstatement. ). 9 In re Singleton, 358 B.R. at 258 ( Accordingly, the court considers Singleton s motion to vacate the dismissal to determine whether Rule 60(b) authorized the bankruptcy court to vacate its dismissal order. ); In re Garcia, 434 B.R. 638, 643 (Bankr. D.N.M. 2010) ( The motion to vacate is really in the nature of a motion for reconsideration. Although the federal rules do not recognize a motion for reconsideration, these motions are dealt with under either Rule 59 or 60. ); In re Hill, 305 B.R. at 108 ( A motion to vacate an order of dismissal of a bankruptcy case, such as the one filed by the debtor in this case, has generally been considered as a motion pursuant to Rule ); In re Johnson, 1999 WL , at *2 ( The debtors motion is styled one to reinstate the case but the effect of such a motion is to seek the remedy of vacating the dismissal order; essentially, this is relief under Fed. R. Bankr. P ). 10 In re Hill, 305 B.R. at 108; In re Garcia, 2005 WL at *1. 11 With limited exceptions, a party s appeal of an order dismissing a case deprives the bankruptcy court from hearing any matters on the case while the appeal is pending. See Cotton v. Stalzer (In re Cotton), 250 F. App x 968, (11th Cir. 2007) ( In this case, the bankruptcy court dismissed the Chapter 7 case while the appeal of its earlier order denying Cotton s motion for the voluntary dismissal of the Chapter 13 case and converting it to a Chapter 7 case was pending in the district court. [W]e hold that the bankruptcy court lacked jurisdiction to enter the order of dismissal. ); Neary v. Padilla (In re Padilla), 222 F.3d 1184, 1190 (9th Cir. 2000) ( [W]e hold that the bankruptcy court lacked jurisdiction to proceed with Padilla s bankruptcy during the pendency of this appeal. ). 12 In re Johnson, 1999 WL at *2. See also, In re Hill, 305 B.R. at 110; In re Garcia, 2005 WL at *2 ( Accordingly, the only stay that could have prevented Trans World from repossessing the truck between the time that the order of dismissal was entered and the time that the court reinstated the case would have been one entered by separate order of court. No such stay order had been entered as of the date of the repossession, and as discussed above, the Section 362 automatic stay was no longer in effect when Trans World repossessed the truck. ); In re Weston, 101 B.R. at 205 ( [T]his court must find that the ten-day stay within those rules was not intended to apply to orders involving the dismissal of bankruptcy petitions without a contrary order of the court. ). 13 Nicholson v. Nagel (In re Nagel), 245 B.R. 657,662 (D. Ariz. 1999); In re Hill, 305 B.R. at ; In re Frank, 254 B.R. at 374; In re Jennings, 2001 WL at *3; In re Johnson, 1999 WL at *4. 14 In re Singleton, 358 B.R. at 261 ( In this case the court finds that the bankruptcy court had no authority to re-impose the automatic stay on property no longer included in the bankruptcy estate. ); In re Nagel, 245 B.R. at 662 ( A review of the case law provided by the parties and the court s own research reveals no basis in law for the proposition that the automatic stay continues after dismissal of a case. A retroactive reinstatement of the automatic stay is not consistent with this conclusion. ); In re Sewell, 345 B.R. 174, 180 (B.A.P. 9th Cir. 2006) ( We also question whether retroactive imposition of the automatic stay as if it had never terminated would be appropriate in these circumstances. ). 4 WESTLAW JOURNAL n BANKRUPTCY

5 AVOIDANCE Amicus tells 4th Circuit that both spouses must seek bankruptcy to protect tenancy by entireties A court-appointed amicus curiae has asked the 4th Circuit to stop a married couple from gaming the system by preventing only one spouse from declaring bankruptcy and then letting the couple strip off a lien against property they hold as a single legal entity. Alvarez et al. v. HSBC Bank USA NA, No , amicus brief filed (4th Cir. July 15, 2013). The couple argues that they can pursue an avoidance action in the husband s bankruptcy case to strip off an unsecured second mortgage on their residence. HSBC Bank USA, which holds the second mortgage, has taken no position on the couple s appeal before the 4th U.S. Circuit Court of Appeals. The appeals court subsequently appointed an amicus curiae, which now has filed an opposition brief. When the Alvarezes chose to make their home an entirety estate, they accepted the burdens as well as the benefits that that estate conveys, the amicus brief says. HUSBAND FILES BANKRUPTCY Jose Alfredo Alvarez filed a Chapter 13 petition in September 2010 in the U.S. Bankruptcy Court for the District of Maryland. He lives with his wife, Meyber, and their three children in Silver Springs, Md., in a house valued in Bankruptcy Court filings at around $440,000. The property is encumbered by a first mortgage of $440,000 held by Chase Home Finance and a second mortgage of about $75,000 held by HSBC, court records say. Alvarez claimed the house was exempt property as a tenancy by the entirety. When a married couple holds property in that fashion, each spouse owns the whole of it, not just a divisible share, meaning the husband and wife own it together as a single legal entity. Because of this condition, the husband s creditors cannot attach and sell his interest. Only creditors of both partners can seize both their interests. No objection was filed to the exemption, and HSBC did not file a proof of claim. Alvarez, joined by his non-debtor wife, later filed a joint adversary proceeding in the bankruptcy case to avoid HSBC s second lien. HSBC did not answer the complaint, and the Alvarezes moved for a default judgment. The Bankruptcy Court denied the unopposed motion, however, deciding that the couple both had to be debtors in bankruptcy for the court to avoid a lien on property held as a tenancy by the entireties. The District Court affirmed that decision. THE ALVAREZES TURN TO THE 4TH CIRCUIT The couple argues in a June 3 opening brief that, under Maryland law, joinder of the nondebtor spouse in a civil case or controversy before the Bankruptcy Court is sufficient to permit a lien avoidance to proceed to judgment. The court-appointed amicus curiae responds in a July 15 brief that the Alvarezes are trying to game the system by claiming bankruptcy protection to which they are not entitled. The brief says Maryland law and the U.S. Bankruptcy Code require that both spouses be debtors in order to put the entirety estate before the Bankruptcy Court. When the Alvarezes chose to make their home an entirety estate, they accepted the burdens as well as the benefits that that estate conveys, the brief says. The amicus says a decision reversing the Bankruptcy Court will lead to a windfall for the couple and the non-filing spouse because the couple will not have to repay the mortgage, and only the husband will have a public record showing that he filed for bankruptcy. The 4th Circuit s docket indicates that case is set for oral argument Sept. 17. WJ Attorneys: Appellants: John D. Burns, Greenbelt, Md. Amicus curiae: Lartease M. Tiffith, O Melveny & Myers, Washington Amicus brief: 2013 WL See Document Section A (P. 19) for the amicus brief. AUGUST 1, 2013 n VOLUME 10 n ISSUE 7 5

6 FRAUDULENT TRANSFERS Fraudulent transfer not part of estate until trustee recovers it, creditor tells Supreme Court A creditor of a wind-power company has told the U.S. Supreme Court that no compelling reason exists to review a series of lower court rulings that alleged fraudulently transferred property does not become part of a bankruptcy estate until the trustee avoids the transfer and recovers the property. Rajala v. Lookout Windpower Holding Co., No , opposition brief filed (U.S. July 15, 2013). The Chapter 11 trustee for Generation Resources Holdings Co. argued in a June petition for certiorari that the 10th U.S. Circuit Court of Appeals got it wrong when it ruled earlier this year that the Bankruptcy Code s automatic stay does not apply to protect the property from consumption prior to completion of an avoidance action. The creditor, Lookout Windpower Holding Co., now counters in an opposition brief that the argument advanced by [the trustee] is far outside the mainstream. ASSET TRANSFER Eric C. Rajala, the trustee for GRHC, filed suit in the U.S. District Court for the District of Kansas against six individuals and numerous companies, claiming insiders fraudulently transferred its development and redemption rights in a wind power project to insiderowned companies. The District Court ultimately granted a motion by Lookout, which is owned by certain of the alleged insiders, to release nearly $7 million of the $9 million purchase price. The court rejected the trustee s argument that the Bankruptcy Code s automatic stay should have blocked the release of the funds. GRHC s bankruptcy estate did not include the alleged fraudulently transferred property, the District Court said, because it had not yet been recovered in the trustee s fraudulent transfer suit. Rajala appealed, and the 10th Circuit upheld the decision. The panel adopted the 2nd Circuit s holding in FDIC v. Hirsch (In re Colonial Realty Co.), 980 F.2d 125 (2d Cir. 1992), that held that the automatic stay does not apply to fraudulently transferred property under federal bankruptcy law, 11 U.S.C. 541(a)(3), until the transfer is avoided and the property is recovered. The 10th Circuit denied Rajala s request that it adopt the 5th Circuit s ruling in American National Bank of Austin v. MortgageAmerica Corp. (In re MortgageAmerica Corp.), 714 F.2d 1266 (5th Cir. 1983), that held that a debtor retains an equitable interest in fraudulently transferred property that makes it subject to the automatic stay even before it is recovered. TRUSTEE TURNS TO SUPREME COURT The trustee argues in a petition for certiorari that the 5th Circuit s reasoning should control the issue because the 10th Circuit s decision will motivate unscrupulous debtors to make pre-bankruptcy property transfers. Lookout Windpower counters that the majority of courts that have addressed the issue agree with the 2nd Circuit s holding that property alleged to have been fraudulently transferred is not property of the estate until it is recovered by the trustee. The creditor argues that the plain language of Section 541, which defines property of the estate, does not extend to property not yet recovered. The opposition brief further argues that no circuit split exists because the 5th Circuit decision relied on by the trustee is factually dissimilar to this case at issue and does not support his arguments. REUTERS/Hannibal Hanschke The case concerns the bankruptcy of wind-power company Generation Resources Holdings Co., which marketed wind turbines and other renewable energy products. Lookout adds that even if a split exists, a majority of courts reject [the trustee s] improper construction of the statute and follow the 2nd Circuit s decision in Colonial. The creditor further argues that acceptance of Rajala s position would create an assetfreezing injunction each time a Chapter 11 debtor-in-possession or trustee files a fraudulent-transfer action, without regard to Bankruptcy Code rules governing what constitutes property of the estate and the automatic stay. Lookout asserts that other, sufficient protections exist. [I]n situations where a bankruptcy trustee has a reasonable likelihood of establishing that a debtor has fraudulently transferred property to a friend, relative or shell company, a trustee has a legitimate basis for [seeking] injunctive relief, and a court may freeze such property, Lookout says. WJ Attorneys: Petitioner: Michael P. Healy, Lee s Summit, Mo. Respondent: Douglas M. Weems, Spencer Fane Britt & Browne, Kansas City, Mo. Opposition brief: 2013 WL See Document Section B (P. 24) for the opposition brief. 6 WESTLAW JOURNAL n BANKRUPTCY

7 ASBESTOS Supreme Court rejects Pfizer s bid to block asbestos suits The U.S. Supreme Court has rejected a petition by Pfizer Inc. to stop the filing of asbestos personal injury lawsuits against the company because, the drugmaker said, a bankruptcy trust has been created to handle claims against the subsidiary that produced the asbestos-containing products at issue in the suits. Pfizer Inc. v. Law Offices of Peter G. Angelos, No , cert. denied (U.S. June 24, 2013). The high court denied the petition despite having asked the U.S. solicitor general in January to file a brief expressing the United States view in the dispute. Pfizer asked the Supreme Court to hear its appeal of a 2012 decision by the 2nd U.S. Circuit Court of Appeals that said suits filed by the Law Offices of Peter G. Angelos could proceed. In re Quigley Co., 676 F.3d 45 (2d Cir. Apr. 10, 2012). The Baltimore-based law firm represents people suing Pfizer in Pennsylvania over injuries from exposure to Quigley Co. s Insulag product. Quigley made the asbestoscontaining insulation from the 1930s until the 1970s. Pfizer bought Quigley in 1968, and the subsidiary filed for bankruptcy in 2004, citing an overwhelming number of asbestos claims. The Angelos firm says Pfizer is liable for some plaintiffs personal injury claims because it put its logo on the product and on some advertisements for Insulag. Pfizer has argued that claims against the trust created through the Quigley bankruptcy should be the sole remedy for people who say they were injured by exposure to the insulation. The U.S. Bankruptcy Court for the Southern District of New York enjoined the Angelos lawsuits in It said Pfizer s alleged liability arose from its ownership of Quigley and that the claims must be channeled toward the trust. The U.S. District Court for the Southern District of New York reversed the Bankruptcy Court, and the 2nd Circuit affirmed, allowing the plaintiffs to sue Pfizer. The high court s denial means the Circuit Court s decision prevails. WJ ASBESTOS New Jersey federal court rejects reimbursement claims against G-I Holdings Former members of the asbestos Center for Claims Resolution have no right to force G-I Holdings Inc. to reimburse them for settlement payments the companies claim they made on G-I s behalf, a New Jersey federal court has ruled. U.S. Gypsum Co. et al. v. G-I Holdings Inc., No , 2013 WL (D.N.J. June 26, 2013). The agreement that created the CCR reserved the right for such claims to the center itself and not to individual members, the U.S. District Court for the District of New Jersey said in an unpublished opinion. The CCR was formed by several companies facing personal injury lawsuits for alleged exposure to their asbestos-containing products. The organization resolved lawsuits according to a formula under which member companies paid an agreed-upon proportion of settlements, the opinion said. Following G-I s filing for bankruptcy protection in the U.S. Bankruptcy Court for the District of New Jersey in 2001, several former CCR member companies said they began to make contributions to settlements that covered G-I s share toward the resolutions. Those companies, U.S. Gypsum Co., Pfizer Inc. and Quigley Co., filed a claim against G-I in the Bankruptcy Court to recover those amounts. G-I successfully moved for summary judgment. The Bankruptcy Court found that under the agreement that created the CCR, its former members waived their right to seek indemnity from other members for asbestosrelated claims. The former members appealed the ruling to the District Court. U.S. District Judge Dennis M. Cavanaugh agreed with the Bankruptcy Court. He said a primary goal of contract interpretation is to fulfill the reasonable shared expectations of parties at the time they made the agreement. The contract that created the CCR said gave the organization the exclusive right to seek collection from a member that did not make a payment required under the agreement, the judge noted. He concurred with G-I s assertion in a brief filed with the District Court that a clear purpose of the agreement that created the CCR was to avoid this type of litigation among its members. WJ Opinion: 2013 WL AUGUST 1, 2013 n VOLUME 10 n ISSUE 7 7

8 AUTOMATIC STAY Collection of pre-bankruptcy attorney fees violated automatic stay By Aaron Rolloff, Senior Content Writer, Westlaw Daily Briefing A lawyer violated a bankruptcy stay by diverting money owed to a bankrupt health care services company to cover fees for work he did for the company before it filed for reorganization under Chapter 11, a federal judge in New York has ruled. In re American Medical Utilization Management Corp., No , 2013 WL (Bankr. E.D.N.Y. July 2, 2013). Judge Carla Craig of the U.S. Bankruptcy Court for the Eastern District of New York found lawyer C. Steve Okenwa in contempt for getting a state court to direct a state health agency to send the money directly to him, and then refusing to ask the court to vacate the order. Although Okenwa did not have notice of the bankruptcy at the time he obtained the statecourt judgment and order, the bankruptcy trustee for American Medical Utilization Management Corp. subsequently notified him by telephone, Judge Craig said in the ruling. The fact that Okenwa did not seem to believe what he was told, or that he was on vacation in Florida at the time, did not excuse his failure to ask the state court to vacate the order in question, the judge said. He also refused to provide an address or fax number where proof of the bankruptcy could be sent to him, she noted. Okenwa s recalcitrance forced the trustee to ask the Bankruptcy Court to order the agency, the New York Department of Health, to pay the money to American Medical despite the state court s order. COSTS AND FEES The judge awarded the trustee compensatory damages, costs and reasonable attorney fees related to litigating Okenwa s violation of the automatic bankruptcy stay. Okenwa also made a motion for Judge Craig to recuse herself, saying that the judge had indicated she believed Okenwa had violated the automatic stay even before she heard evidence on the matter. Judge Craig found the motion to be untimely, but also unconvincing on the merits. Her statements that a failure to vacate the state court s order would be a violation of Although the lawyer did not have notice of the bankruptcy at the time he obtained the state court judgment and order, the bankruptcy trustee subsequently notified him by telephone, the judge said. However, she denied the trustee s request for about $2,000 in additional attorney fees and costs on behalf of American Medical s postpetition lender. The parties financing agreement, which the Bankruptcy Court approved, did not provide for compensation to the lender for its attorney fees in this dispute, the judge said. She also declined to award punitive damages, finding that Okenwa s actions did not rise to the necessary level of particularly egregious creditor misconduct. the automatic stay, and that compensatory damages for such a violation included attorney fees, were simply restatements of well-established principles of law. She found that the statements did not reflect the necessary high degree of favoritism or antagonism that would warrant recusal. WJ Attorney: Trustee: Avrum J. Rosen, Huntington, N.Y. Opinion: 2013 WL WESTLAW JOURNAL n BANKRUPTCY

9 AUTOMATIC STAY Claims against Casey Anthony must be determined by bankruptcy judge By Lisa Uhlman, Senior Content Writer, Westlaw Daily Briefing Two putative creditors seeking to pursue personal-injury defamation lawsuits against Casey Anthony in Florida state court must first go through the claims allowance process in Anthony s Chapter 7 case, a bankruptcy judge has determined. In re Anthony, No , 2013 WL (Bankr. M.D. Fla. July 1, 2013). The potential burden to Anthony, who was acquitted in 2011 of murdering her 2-yearold daughter, if the cases were allowed to proceed in state court would be greater than the burden the creditors would face if the automatic stay were not lifted, U.S. Bankruptcy Judge K. Rodney May of the Middle District of Florida said. core questions of discharge eligibility, claims allowance and exception from discharge. In addition, the creditors claims are personal-injury tort claims, which, if a trial is required to settle disputed questions of fact, must be tried before a federal district court in accordance with the U.S. Supreme Court s ruling in Stern v. Marshall, 131 S. Ct. 2954, 2606 (2011), the judge said. The creditors claims involve disputes over their validity, amount and dischargeability that must be resolved by the Bankruptcy Court, the judge said. STERN V. MARSHALL Anthony, whose assets were depleted following her arrest and trial, filed for Chapter 7 protection in January seeking a discharge from the claims of Ray Kronk and Zenaida Gonzalez, who had sued her in state court alleging she defamed them during her trial. Judge May noted that Kronk s suit was in its beginning stages when the bankruptcy was filed and has not progressed, while Gonzalez s case had moved through discovery and summary judgment. However, trial on Gonzalez s last remaining claim was postponed to an indefinite date, the opinion says. The judge first said any damages for which Anthony may be liable to the creditors are claims under the Bankruptcy Code and that the U.S. Bankruptcy Court for the Middle District of Florida has jurisdiction over the Until a trial is necessary, however, the creditors claims involve disputes over their validity, amount and dischargeability that must be resolved by the Bankruptcy Court, Judge May said. DENYING THE MOTIONS Attempting to satisfy the so-called totality-ofthe-circumstances test for used to determine whether an automatic stay should be lifted, Kronk and Gonzalez argued that Anthony would face no hardship in defending herself in state court because she has counsel and that the parties and witnesses are closer to the state court. Further, they said, the state court is already familiar with the cases, and it would be more efficient to litigate the matters there. Rejecting those arguments Judge May said there was nothing to disprove Anthony s REUTERS/Red Huber/Pool Acquitted murder suspect Casey Anthony claim that she had no assets or income, neither defamation case is set for imminent trial, and there would be little prejudice to the creditors if their claims were adjudicated within the Chapter 7 case. The potential burden on the debtor, if the stay is lifted, is greater than the burdens on Mr. Kronk or Ms. Gonzalez, if the stay remains in place and the claims adjudication process proceeds in this case, the judge said. Even if the creditors were successful in state court, they would have to return to the Bankruptcy Court for determinations of the dischargeability of their claims, which would likely require a second round of litigation, the judge said. He therefore denied Kronk and Gonzalez s motions for relief from the stay and granted them 21 days to file their claims, object to Anthony s discharge and object to the dischargeability of their claims. WJ Attorneys: Debtor: Debra Ferwerda, Jacobson McClean Chemlir & Ferwerda, Winter Springs, Fla. Trustee: Allan C. Watkins, Watkins Law Firm, Tampa, Fla. Related Court Documents: Opinion: 2013 WL See Document Section C (P. 34) for the opinion. AUGUST 1, 2013 n VOLUME 10 n ISSUE 7 9

10 DISCHARGE No retroactive extension for nondischargeability filing, 9th Circuit says By Keith Harris, Senior Content Writer, Westlaw Daily Briefing A bankruptcy court has no discretion to retroactively extend the deadline for filing complaints seeking to have debts declared nondischargeable in a Chapter 7 case, a federal appeals court has affirmed. Anwar et al. v. Johnson et al., No , 2013 WL (9th Cir. July 2, 2013). The Federal Rules of Bankruptcy Procedure require claimants to request extensions before the deadline expires, regardless of extenuating circumstances or local bankruptcy rules, a panel of the 9th U.S. Circuit Court of Appeals said, affirming a district court decision. In 2009 D. Lee Johnson and David Vergeyle each filed individual Chapter 7 petitions in the U.S Bankruptcy Court for the District of Arizona. Johnson and Vergeyle were the founders, principal shareholders and officers of Xperex Corp., which previously had filed for Chapter 7 relief. Amina Anwar and David C. McClanahan, former employees of Xperex, asked the court to extend the deadline for filing a complaint challenging the discharge of debts. The court granted the motion, setting a new deadline for April 13, The Bankruptcy Court had established a mandatory electronic filing system and required nondischargeability complaints to be filed by midnight local time on the deadline date. The employees attorney attempted to file on the evening of April 13, but technical problems prevented him from electronically filing the complaints until after the midnight deadline. The bankruptcy judge granted the debtors request to dismiss the complaints as untimely and denied Anwar s request for a retroactive extension. The employees attorney attempted to file on the evening of April 13, 2010, but technical problems prevented him from electronically filing the complaints until after the midnight deadline. On appeal, the U.S District Court for the District of Arizona affirmed the Bankruptcy Court decision. The 9th Circuit affirmed the lower court decisions, saying bankruptcy courts may not grant equitable relief from the nondischargeability complaint deadline after it has passed. Federal Rule of Bankruptcy Procedure 4007(c), which sets a mandatory deadline for nondischargability complaints of 60 days after the first creditors meeting, allows a party in interest to move for an extension only before the time has expired, the panel said. The finality of this requirement is reinforced by the fact that other deadlines in the Bankruptcy Code explicitly permit retroactive extensions for good cause or excusable neglect, according to the panel. The panel said neither the Arizona Bankruptcy Court s electronic filing requirement nor the fact that the attorney missed the deadline by less than an hour entitled Anwar to an exception from the deadline. Nor did Arizona s Local Rule of Bankruptcy Procedure (n), which allowed for appropriate relief when electronic filing is untimely, grant the Bankruptcy Court discretion to approve the employees motion, since it was in conflict with the federal rule, the panel concluded. WJ Attorneys: Plaintiffs: Mark C. McClanahan, Portland, Ore. Debtors: Randy Nussbaum, Nussbaum Gillis & Dinner, Scottsdale, Ariz. Opinion: 2013 WL WESTLAW JOURNAL n BANKRUPTCY

11 SOCIAL SECURITY 4th Circuit clarifies role of Social Security income in Chapter 13 plans By Keith Harris, Senior Content Writer, Westlaw Daily Briefing A Chapter 13 debtor s Social Security benefits are not considered projected disposable income but must be taken into account when examining a debtor s ability to make proposed plan payments, a federal appeals court has ruled, vacating a district court opinion. Mort Ranta v. Gorman, No , 2013 WL (4th Cir. July 1, 2013). In a 2-1 ruling, a panel of the 4th U.S. Circuit Court of Appeals said a debtor is not required to make Social Security income available to creditors but a bankruptcy court must acknowledge the availability of such funds when determining a plan s feasibility. PLAN CONFIRMATION DENIED Robert D. Mort Ranta filed for Chapter 13 relief in the U.S. Bankruptcy Court for the Eastern District of Virginia in August Mort Ranta was $20,000 in arrears on his home mortgage. He owed nearly $13,000 in individual credit card debt and $8,000 in joint credit card debt with his wife. The 4th Circuit said Social Security benefits are not a part of a debtor s projected disposable income. plan to commit all projected disposable income toward the payment of unsecured claims. The Bankruptcy Court denied confirmation, saying the plan was not feasible. According to the court, Mort Ranta could not exclude the benefits from his disposable income figure and still claim that he would use them to make plan payments. After the Bankruptcy Court refused to grant him an interlocutory appeal, Mort Ranta appealed to the U.S. District Court for the Eastern District of Virginia, which affirmed the Bankruptcy Court s decision. CIRCUIT COURT VACATES LOWER COURT RULINGS On appeal the 4th Circuit vacated the District Court s decision and remanded Mort Ranta s case. As a preliminary matter, the panel determined it had jurisdiction to consider the appeal because bankruptcy proceedings allow for a flexible finality standard of review, which permits appellate courts to review discrete bankruptcy court decisions. The panel said Social Security benefits are not a part of a debtor s projected disposable income because that figure is derived from current monthly income from which the Bankruptcy Code explicitly excludes such benefits. However, for his plan to be feasible under Section 1325(b)(1)(B) of the Bankruptcy Code, 11 U.S.C.A. 1325(b)(1)(B), Mort Ranta need not show he had sufficient disposable income, only that his net income could cover the payments, the panel said. WJ Attorneys: Debtor: Daniel M. Press, Chung & Press, McLean, Va. Trustee: Eva Choi, Office of the Chapter 13 Trustee, Alexandria, Va. Opinion: 2013 WL Mort Ranta reported his current monthly income as $3,000 but listed an additional $3,300 in Social Security income. After subtracting his monthly expenses from his combined average monthly income, Mort Ranta s monthly net income was $525. Under his proposed plan, Mort Ranta would pay $525 per month for five years, paying off his mortgage arrears and joint credit card debt entirely, but paying less than 1 percent of his individual credit card debt. Trustee Thomas Patrick Gorman objected to the plan, saying Mort Ranta should have included his Social Security benefits in his calculation of his projected disposable income. Section 1325(b)(1)(B) of the Bankruptcy Code, 11 U.S.C.A. 1325(b)(1)(B), requires a debtor s AUGUST 1, 2013 n VOLUME 10 n ISSUE 7 11

12 MORTGAGE-BACKED SECURITIES Stock underwriters escape liability in class action The underwriters for the stock offering of a mortgage company with a portfolio of risky mortgage-backed securities had no duty to disclose those holdings to investors, a federal appeals court has ruled. Slater et al. v. A.G. Edwards & Sons, Inc. et al., No , 2013 WL (10th Cir. July 9, 2013). The 10th U.S. Circuit Court of Appeals affirmed a lower court s ruling that dismissed claims against the underwriters of residential mortgage lender Thornburg Mortgage Inc. s stock offering for allegedly misrepresenting Thornburg s investments in mortgage-backed securities. The investors claims failed because at the time the stock offering was made, it was not well known that investments in mortgage-backed securities would be disastrous, the appeal court panel said. A mortgage-backed security is a financial instrument backed by pools of mortgage loans whose principal and interest payments are distributed to investors with varying maturity dates, cash flows and default risks. The mortgage market began to decline in early 2008 and from Feb. 27 to March 6, 2008, Thornburg Mortgage s stock dropped by more than 90 percent. The underwriters sued included A.G. Edwards & Sons, BB&T Capital Markets, Citigroup Global Markets, Oppenheimer & Co., Bear Stearns and UBS Securities. Thornburg Mortgage was an originator and purchaser of home mortgage loans. The company also bought and sold MBS, the court s opinion says. Thornburg filed for Chapter 11 bankruptcy protection May 1, Prior to bankruptcy, the company had been having trouble obtaining financing from its usual sources so it made several public stock offerings in 2007 and The defendants underwrote the stock offerings for Thornburg, which consisted of prospectuses and the company s quarterly, annual and current financial reports. REUTERS/Lucas Jackson Although Thornburg said it possessed a significant chunk of MBS, it did not disclose in the financial information provided that it possessed $2.9 billion of purchased MBS, the opinion says. The mortgage market began to decline in early 2008 and from Feb. 27, 2008, to March 6, 2008, Thornburg s stock dropped by more than 90 percent, the opinion says. Thornburg shareholders sued the company, its officers and the stock offering underwriters in the U.S. District Court for the District of New Mexico. The suit said the underwriters had a duty to inform investors of the company s MBS investments because the investors believed the large MBS portfolio had caused Thornburg s collapse, the opinion says. The District Court granted the underwriters motion to dismiss, and the plaintiffs appealed. In re Thornburg Mortgage Sec. Litig., 683 F. Supp. 2d 1236 (D.N.M. 2010). Judge Timothy M. Tymkovich, writing for the three-judge panel, said the offering documents, when analyzed in the context of the mortgage market in 2007 and 2008, did not contain material misrepresentations or omissions. Absent a significant sign that the mortgage industry was on the verge of collapse, Thornburg s investment in MBS does not darken the marginally optimistic picture painted by the offering documents, the opinion says. At the time, few economists or investment professionals foresaw the timing and breadth of the downturn, Judge Tymokovich wrote. Additionally, the offering documents had disclosures and warnings that informed potential investors Thornburg was sensitive to the MBS market, the judge said. WJ Opinion: 2013 WL WESTLAW JOURNAL n BANKRUPTCY

13 DISGORGEMENT Bankruptcy judge penalizes attorney for lax practices By Keith Harris, Senior Content Writer, Westlaw Daily Briefing An attorney failed to adequately represent his clients in two unrelated Chapter 7 cases, supplying the debtors with insufficiently detailed fee agreements and misrepresenting that they had signed their bankruptcy filings, a California bankruptcy judge has ruled. In re Dean et al., No ; In re Searcy, No , 2013 WL (Bankr. E.D. Cal. June 28, 2013). U.S. Bankruptcy Judge W. Richard Lee of the Eastern District of California required attorney Gregory Blevins to disgorge his clients fees and to submit so-called wet signature pages along with any documents filed in the Bankruptcy Court. THE DEAN AND SEARCY BANKRUPTCIES Blevins electronically filed Chapter 7 petitions for Leslie Searcy in March 2012 and for David and Kelli Dean in May The filings purported to bear electronic signatures from the debtors. These debtors had signed one-page fee agreements that specified no legal services beyond a single statement: The attorney agrees to represent client in Chapter 7 bankruptcy filing. They paid Blevins flat fees. In both bankruptcy matters, Blevins supplied the trustee with incomplete documents, which required Searcy and the Deans to schedule a second creditors meeting. Blevins failed to appear for two of Searcy s creditors meetings and at least one of the Deans. Despite these setbacks and inconveniences, each set of debtors received a discharge, and both cases were subsequently closed. DEBTORS SEEK DISGORGEMENT With the assistance of new counsel, the debtors reopened their cases and sought Judge Lee ordered Blevins to disgorge his attorney fees to Searcy and the Deans. Blevins duty to advise and represent his clients was not delegable, and he violated local bankruptcy rules by sending his assistant to the creditors meetings when he was listed as attorney of record, the judge said. In both bankruptcy matters, attorney Gregory Blevins supplied the trustee with incomplete documents, which required his clients to schedule a second creditors meeting. disgorgement of Blevins attorney fees for exceeding the value of the services provided, pursuant to Section 329(b) of the Bankruptcy Code, 11 U.S.C.A. 329(b). The debtors said they had not met Blevins prior to their case filings and that the only legal advice they received came from Blevins assistant, Jeffrey Boggs. The debtors also said they did not remember signing their petitions and schedules. When they requested hard copies of the original documents, Blevins admitted the debtors did not sign any of their bankruptcy filings. Moreover, Blevins fee agreement did not satisfy the requirement in Bankruptcy Code Section 528(a) that bankruptcy attorneys provide clients with a written contract clearly and conspicuously explaining services and fees, according to Judge Lee. The judge also required Blevins to accompany any electronic filings with the Bankruptcy Court for the next two years with a physical wet signature page, proving that his clients reviewed and agreed to the documents. WJ Opinion: 2013 WL See Document Section D (P. 37) for the opinion. AUGUST 1, 2013 n VOLUME 10 n ISSUE 7 13

14 EXEMPTIONS Single-premium annuity is not exempt property, trustee argues A Chapter 11 trustee has asked the 8th Circuit to reverse a bankruptcy court s conclusion that funds in a debtor s single-premium annuity are exempt from the reach of creditors because the annuity meets the Internal Revenue Code s definition of a non-taxable retirement account. WESTLAW JOURNAL BANK & LENDER LIABILITY The litigation reporter provides coverage of ongoing proceedings involving banks and other financial institutions as well as news of the most important appellate, district, and state court cases affecting the industry. The publication also features coverage of the multitude of issues affecting banking since the passage of the Gramm-Leach-Bliley Act that took down the walls between commercial and investment banking. Running v. Miller; In re Miller, No , appellant s brief filed (8th Cir. July 8, 2013). A single-premium annuity does not meet the standards for an individual retirement annuity under the IRC, 26 U.S.C. 408(b), the trustee says in papers filed with the 8th U.S. Circuit Court of Appeals, because the statute requires multiple, annual premiums. Terri A. Running, a Chapter 11 trustee in Minnesota, objected when debtor Joseph M. Miller sought to exempt an annuity valued at over $236,000 from his bankruptcy estate. Miller purchased the annuity in 2009 with a single payment using funds rolled over from an existing individual retirement account, court records say. The annuity agreement calls for Miller to receive annual income payments of about $40,000 a year for eight years. It also allows Miller to make a one-time withdrawal of up to 75 percent of the value of any remaining payments. As part of his bankruptcy case, Miller claimed the annuity was exempt under 11 U.S.C. 522(b)(3)(C). The Bankruptcy Code provision removes from the reach of creditors retirement funds kept in accounts that are exempt from taxation under certain provisions of the IRC. Miller claimed the funds were in a taxexempt individual retirement annuity as defined by IRC Section 408(b), according to the trustee s brief. Running objected on the ground that Section 408(b) requires flexible, annual premiums. The U.S. Bankruptcy Court for District of Minnesota overruled the objection. It found that even though Section 408(b) contemplates annual premiums, the singlepayment annuity qualifies because Miller bought it with funds from an existing taxexempt individual retirement account. The trustee has now turned to the 8th Circuit, arguing that the Bankruptcy Court improperly interpreted Section 408(b) to include single-premium annuities. The Bankruptcy Court relied upon erroneous factors that have no basis in law and ignored the unanimous voice of other courts from multiple jurisdictions on this issue, the trustee says. Running claims the 9th Circuit Bankruptcy Appellate Panel and bankruptcy courts in Georgia and Wisconsin have interpreted Section 408(b) to exclude single-premium annuities. The trustee also argues the annuity does not qualify under Section 408(b) because it does penalize Miller for making an early withdrawal. Penalizing early withdrawals is a common characteristic of individual retirement annuities that fall within the definition at IRC Section 408(b), Running says. She closes her brief by challenging the Bankruptcy Court s conclusion that the annuity fits within Section 408(b) because Miller purchased it with funds rolled over from a tax-exempt individual retirement account. The Bankruptcy Court is essentially recharacterizing the annuity as having been purchased over a period of time with multiple flexible premiums because funds used to purchase [it] came from the sale of an asset that was purchased over a period of time with multiple payments, the trustee says. There is no statutory basis for this consideration, she says. WJ Attorneys: Trustee: Michael S. Dove, Gislason & Hunter, New Ulm, Minn. Debtor: Thomas H. Olive, Olive & Taber, Minneapolis Appellant s brief: 2013 WL WESTLAW JOURNAL n BANKRUPTCY

15 Detroit CONTINUED FROM PAGE 1 In re City of Detroit, No , arbitrator appointed (Bankr. E.D. Mich. July 23, 2013). In a July 23 filing in U.S. Bankruptcy Court, Judge Steven Rhodes said he would appoint another federal judge, Gerald Rosen, as a mediator. A mediator would be an authoritative voice for compromise in a contentious, messy case, the biggest-ever municipal bankruptcy filing in U.S. history. Detroit, which filed July 18, has more than $18 billion in debt and 100,000 creditors ranging from retired city workers to Wall Street bond investors. I think that s going to be the key move in the case, in terms of getting it toward a solution, Christopher Klein, a bankruptcy judge in Sacramento, Calif., said. Klein, who is overseeing the bankruptcy of the town of Stockton, spoke recently on a panel organized by the American Bankruptcy Institute. Rosen, a Republican, is chief district judge of the U.S. District Court for the Eastern District of Michigan. With a long career in Michigan politics and as a member of the conservative-libertarian Federalist Society, he brings a unique perspective to a case that touches on the subjects of states rights and property rights. Judge Rhodes in his court filing deemed a mediator necessary and appropriate but did not specify which issues he feels should be mediated. With Judge Rhodes yet to lay out how mediation will be used, Rosen s role is unclear. He could be asked to help broker a deal resolving the initial objections to Detroit s filing under Chapter 9 of the U.S. Bankruptcy Code, which governs municipal cases. Alternately, his services could be reserved for the more substantive fights over pay back. COMPLEX ISSUES Retirees have turned to Michigan state court to try to block Detroit s U.S. Bankruptcy Court filing, saying the state constitution protects their pensions. Webster et al. v. State et al., No , 2013 WL (Mich. Cir. Ct., Ingham County July 19, 2013). Creditors have also argued that Detroit Emergency Manager Kevyn Orr failed to negotiate with them in good faith to try to avoid the bankruptcy filing. On July 27 Michigan Attorney General Bill Schuette, a Republican, said he would defend retirees who risk losing public pensions because of Detroit s bankruptcy. This put him at odds with emergency manager Orr, who was appointed by Gov. Rick Snyder, a fellow Republican. But legal experts say that, ultimately, the case is likely to be resolved in bankruptcy court. If that happens, a mediator will have a disproportionate impact. Bankruptcy judges have much less power in Chapter 9 municipal bankruptcies than they do in corporate bankruptcies filed under Chapter 11 of the U.S. Bankruptcy Code. For instance, a judge in Chapter 9 cannot remove municipal officials or tell cities what to do with their property. Detroit s liabilities Break down of the major components of Detroit s $18.5 billion of liabilities. Special revenue bonds Includes $2.82 billion in sewage bonds and $2.52 billion in water supply bonds, among other issues Other liabilities $300 mln Swap liabilities $343.6 mln * Other Post Employment Benefits Source: City of Detroit Proposal for Creditors, June 14, 2013 F. Chan, 21/07/2013 $5.85 bln Unlimited and limited tax general obligation bonds liabilities $1.13 bln A mediator in Chapter 9 bankruptcies plays a central role, acting in settlement talks behind closed doors, unifying disparate creditors and advising them on the realities of the law. Marc Levinson, a partner at Orrick Herrington & Sutcliffe who represents Stockton, Calif., in its bankruptcy, said municipal bankruptcies feature less-sophisticated creditors who can benefit from a mediator to walk them through the process. A mediator can help discourage extreme positions and help bitter adversaries find common ground, said James Spiotto, a Chapter 9 expert and bankruptcy lawyer at Chapman & Cutler. It s a reality test, Spiotto said. Are they in the zone of reality or do they have no real basis for what they re saying? CANDIDATE-TURNED-JUDGE Unfunded OPEB* liabilities Including retiree health care costs $5.7 bln $3.5 bln Pension liabilities Pension-related certificates $1.43 bln Rosen was a partner at Detroit-based law firm Miller Canfield in 1990, when President George H.W. Bush named him to the federal bench. In the 1970s Rosen was a legislative assistant to Sen. Robert Griffin, a Michigan Republican, then ran for Congress in 1982, losing to Democrat Sandy Levin. He has served on the board of the Michigan chapter of the Federalist Society, which emphasizes states rights and strict adherence to the original meaning of the U.S. Constitution. Some of the most critical disputes in Detroit s case involve states rights, namely whether Michigan s state Constitution allows the city to cut the pensions of its retirees. But by the time the mediation comes to Rosen, AUGUST 1, 2013 n VOLUME 10 n ISSUE 7 15

16 any question of states rights may already have been decided. The case is also subject to Chapter 9 of the U.S. Bankruptcy Code. Reality trumps policy, reality should trump politics, and sometimes reality even trumps the law, said Patrick Darby of Bradley Arant Boult Cummings, who represents Jefferson County, Ala., in its Chapter 9 bankruptcy. And the reality in Detroit is, there s not enough money. USE HIM WISELY According to Darby, mediation works best when there is a clear issue and a limited number of parties. When there are two positions on a continuum, the mediator can help find middle ground, he said. Mediation has had mixed results in Chapter 9. A mediator was unable to help the city of Vallejo, Calif., reach new labor terms with two of its unions. In Stockton, Calif., mediation sessions prior to the city s bankruptcy filing helped settle some labor disputes, while other issues remain in mediation. Sessions typically start with parties together in a conference room presenting their sides, then splitting off into separate rooms, with the mediator shuttling between conferences with each side. It is less formal than court hearings while mediators are often judges, they don t wear robes, Spiotto said. Guys are usually in shirt sleeves, he said. Mediators try to relate openly and honestly to parties. They say, I m a federal judge, and here s how I think your argument is going to fare in court, Darby said. It Detroit s case, with many creditors battling over a limited amount of money, the process is not so cut-and-dried. The best mediator is still going to find it extremely difficult to broker a settlement, Darby said. WJ (Reporting by Nick Brown; editing by Eddie Evans and David Gregorio) NEWS IN BRIEF U.S. TRUSTEE PROGRAM, CITIGROUP SETTLE CONSUMER INFO SUIT The U.S. Trustee Program has unsealed a settlement with Citigroup Inc. that requires the financial giant to redact proofs of claim filed in bankruptcy cases nationwide that contained personal information, including Social Security numbers and birthdates, of nearly 150,000 consumer debtors and third parties. According to a July 15 statement by the Justice Department s U.S. Trustees office, the information had not been properly redacted. Citigroup also has agreed to notify all affected consumers and offer them one year of free credit monitoring, the Trustees say. A New York federal bankruptcy court approved the settlement last year, but it remained sealed to prevent potential wrongdoers from learning of the breach and seeking to victimize the affected consumers, the Trustees office said in a statement. In re Citi Replacement Filings, No , settlement unsealed (Bankr. S.D.N.Y. July 15, 2013). GROUP LED BY ACTOR CLOSES SALE ON COFFEE CHAIN TC Global Inc., the Chapter 11 debtor that operates as Tully s Coffee Shops, has announced completion of a sale of substantially all its assets to an investment group led by actor Patrick Dempsey. The group, Global Baristas, won a bankruptcy court auction for the assets earlier this year with a bid of $9 million. Seattle-based TC Global, which filed for bankruptcy last October, operated nearly 50 company-owned stores in Washington and California, plus additional licensed locations throughout the Western United States. The company said in a statement that it closed 19 stores in the wake of the bankruptcy. Global Baristas says it plans to continue to operate the remaining stores. According to TC Global, the sale does not impact the wholesale and online Tully s Coffee business, which Green Mountain Coffee Roasters Inc. purchased in In re TC Global Inc., No , notice of closing of sale filed (Bankr. W.D. Wash. July 1, 2013). SUPREME COURT LEAVES $500K DISGORGEMENT ORDER INTACT A Florida real estate agent has failed to convince the U.S. Supreme Court to review a series of federal court rulings that require him to return nearly $500,000 in commissions he received through the sale of a Chapter 11 debtor s marina property. The 11th U.S. Circuit Court of Appeals last fall upheld a bankruptcy court s finding that agent Christopher Denison had an undisclosed, presale relationship with the buyer. Denison allegedly received an offer to manage the marina property after closing. The 11th Circuit rejected his arguments that the Bankruptcy Court erred in finding an improper relationship existed and that the debtor s confirmed plan released all claims against professionals. One of the debtor s creditors, who opposed Denison s petition for certiorari, countered that bankruptcy courts may review compensation paid to courtappointed professionals. The Supreme Court denied Denison s petition without comment. Denison v. Marina Mile Shipyard Inc., No , cert. denied (U.S. June 17, 2013). 16 WESTLAW JOURNAL n BANKRUPTCY

17 CASE AND DOCUMENT INDEX Alvarez et al. v. HSBC Bank USA NA, No , amicus brief filed (4th Cir. July 15, 2013)...5 Document Section A Anwar et al. v. Johnson et al., No , 2013 WL (9th Cir. July 2, 2013) Denison v. Marina Mile Shipyard Inc., No , cert. denied (U.S. June 17, 2013) In re American Medical Utilization Management Corp., No , 2013 WL (Bankr. E.D.N.Y. July 2, 2013)...8 In re Anthony, No , 2013 WL (Bankr. M.D. Fla. July 1, 2013)...9 Document Section C...34 In re Citi Replacement Filings, No , settlement unsealed (Bankr. S.D.N.Y. July 11, 2013) In re City of Detroit, No , arbitrator appointed (Bankr. E.D. Mich. July 23, 2013)...1 In re Dean et al., No ; In re Searcy, No , 2013 WL (Bankr. E.D. Cal. June 28, 2013)...13 Document Section D In re TC Global Inc., No , notice of closing of sale filed (Bankr. W.D. Wash. July 1, 2013) Mort Ranta v. Gorman, No , 2013 WL (4th Cir. July 1, 2013) Pfizer Inc. v. Law Offices of Peter G. Angelos, No , cert. denied (U.S. June 24, 2013)... 7 Rajala v. Lookout Windpower Holding Co., No , opposition brief filed (U.S. July 15, 2013)...6 Document Section B...24 Running v. Miller; In re Miller, No , appellant s brief filed (8th Cir. July 8, 2013) Slater et al. v. A.G. Edwards & Sons, Inc. et al., No , 2013 WL (10th Cir. July 9, 2013) U.S. Gypsum Co. et al. v. G-I Holdings Inc., No , 2013 WL (D.N.J. June 26, 2013)... 7 AUGUST 1, 2013 n VOLUME 10 n ISSUE 7 17

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