Original article by Sara Randazzo at the Wall Street Journal.
A once-prominent Wall Street trader imprisoned in 2005 for embezzling $43 million from Merrill Lynch & Co. recently met the ire of a bankruptcy judge, who refused to let him get rid of his debts through bankruptcy because of repeated lies to the court.
The accumulation of deceits and excuses from Daniel Gordon “helped destroy his credibility and, quite frankly, insulted the intelligence of the court,” Judge Robert Gerber in U.S. Bankruptcy Court in Manhattan wrote in a Jan. 13 ruling. The court’s order, which follows a two-day trial held in May 2013, denied Mr. Gordon the ability to use the bankruptcy process to discharge tens of millions of dollars in debt.
Mr. Gordon filed for Chapter 7 protection in October 2009 after the Internal Revenue Service came after him to pay taxes on a portion of the stolen $43 million. By then two years out of prison, Mr. Gordon had reinvented himself as a businessman whose projects included lending money to professional athletes at steep interest rates.
Below is a great article discussing the American Bankruptcy Institute’s proposal to help small business debtors. The article first apppeared in the WSJ’s DealB%k by Prof. Michelle M. Harner.
When small and middle-market companies fail, families and founders often lose a business to which they have devoted not only most of their time but also most of their life savings. Others lose as well: employees, suppliers, communities and lenders. Consequently, a federal bankruptcy system that effectively and efficiently rehabilitates distressed small and middle-market companies is essential.
From Sara Randazzo of the Wall Street Journal
The Supreme Court appeared open Wednesday to clarifying the powers of nearly 1,000 judges in the federal court system, a group whose constitutional authority has come into question since a 2011 high-court decision involving the late Playboy playmate Anna Nicole Smith.
Depending on how the court rules in a case argued Wednesday, the bankruptcy-court system could remain mired in confusion over when it has the power to offer final judgments on certain issues. By extension, the ruling could also curtail the ability of the federal magistrate system to handle some of the work of district-court judges.
“This case is enormously important for the workload of the federal district courts,” said Erwin Chemerinsky, a constitutional scholar and dean of the law school at the University of California, Irvine.
Today, January 14, 2015, the Supreme Court is scheduled to hear oral arguments in the latest case before the Court regarding the bankruptcy court’s jurisdictional powers — Wellness International Network, Limited v. Sharif. The Court was not too interested in delving into this issue since the case was on the list of cases to be considered by the Justices at five separate conferences. Regardless, the Court finally granted certiorari to the Seventh Circuit’s decision on July 1, 2014.
The Court will address the following two issues:
(1) Whether the presence of a subsidiary state property law issue in an 11 U.S.C. § 541 action brought against a debtor to determine whether property in the debtor’s possession is property of the bankruptcy estate means that such action does not “stem from the bankruptcy itself” and therefore, that a bankruptcy court does not have the constitutional authority to enter a final order deciding that action; and
(2) whether Article III permits the exercise of the judicial powers of the U.S. by the bankruptcy courts on the basis of litigant consent, and if so, whether implied consent based on a litigant’s conduct is sufficient to satisfy Article III.
For more information: www.scotusblog.com/case-files/cases/wellness-international-network-limited-v-sharif/
“Many are the judgment creditors who gnash their teeth (metaphorical or otherwise) in chagrin when their collection campaign is stayed by a bankruptcy filing. Only slightly less frequent are the immediate post-filing threats that no quarter will be given. Such jeremiads, however, are not a sufficient basis for a universal conclusion of plan futility. And they certainly do not unequivocally establish the debtor’s bad faith. Economic considerations and rationality often result in resolution.”
In re Sullivan, —BR —, (9th Cir BAP, Dec 2014)
In Sullivan, the bankruptcy court dismissed the filing as a two party dispute with no hope of ever getting a plan confirmed. The BAP reversed. Credit bankruptcy attorney Sean O’Keefe for the great work.
The oral argument before the en banc panel will be March 16, 2015 in San Francisco. One of the attys has asked to have the argument moved since he will be out of town but I assume it will not be moved now that it is on the calendar. Doesn’t say who the nine judges will be.
2015-03-16 9:00 am Courtroom 1, 3rd Floor, San Francisco California – En Banc
||Time / Side
|US ex rel. Steven Hartpence v. Kinetic Concepts, Inc. - Relators Steven Hartpence and Geraldine Goedcecke appeal the district court’s dismissal of their qui tam claims under the False Claims Act against Kinetic Concepts, Inc., and KCI-USA, Inc. [2:08-cv-01885-GHK-AGR]
||America’s Servicing Co. v. Irene Schwartz-Tallard - America’s Servicing Co.appeals from the Bankruptcy Appellate Panel’s decision that a debtor was not precluded from recovering attorneys’ fees for defending against a creditor’s appeal of a finding that the creditor violated the automatic stay. [11-1429]
|Robert Smith v. Charles Ryan - Arizona state prisoner Robert Douglas Smith appeals the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his jury conviction and capital sentence for murder, kidnapping, and sexual assault. [4:87-cv-00234-JMR]
The 9th Circuit announced that Judge Sheri Bluebond has been reappointed to a new 14 year term effective this month. She will take over as the Chief Judge of the Central District on January 29, 2015.
The 9th Circuit announcement can be accessed here. It says
Judge Sheir Bluebond, 53, who maintains chambers in Los Angeles, came onto the bankruptcy bench in February 2001. Her reappointment to a second 14-year term is effective February 1, 2015.
Prior to her appointment, Judge Bluebond had engaged in private practice as a partner at the Los Angeles law firm of Irell & Manella LLP, where she had specialized in bankruptcy law since 1995. She was associated previously with the Los Angeles law firms of Murphy, Weir & Butler from 1991 to 1995 and Gendel, Raskoff, Shapiro & Quittner from 1983 to 1991.
Judge Bluebond received her B.A., summa cum laude, from the University of California, Los Angeles, in 1982 and her J.D., Order of the Coif, from the UCLA School of Law in 1985, finishing first in her class and serving on the UCLA Law Review.
Judge Bluebond is a fellow of the American Bankruptcy College and serves on the Executive and Bankruptcy committees of the Commercial Law and Bankruptcy Section of the Los Angeles County Bar Association. She serves as a frequent lecturer and panelist on various topics of bankruptcy law.
The U.S. Bankruptcy Court for the Central District of California, which is authorized 24 bankruptcy judges, reported 60,545 new filings in fiscal year 2014. Bankruptcy judges serve a 14-year renewable term and handle all bankruptcy-related matters under the U.S. Bankruptcy Code. Judges of the U.S. Court of Appeals for the Ninth Circuit have statutory responsibility for selecting and appointing bankruptcy judges in the nine western states that comprise the Ninth Circuit. The court uses a comprehensive merit selection process for the initial appointment. For reappointments, the court conducts a performance review and considers public comment evaluations.
Central District Consumer Bankruptcy Attorneys Assn.
As the 2014 Holiday Season gets underway, it is never too soon to renew your CDCBAA membership. We have had a wonderful 2014. Our seminars have included the Eighth Annual Review of the Ninth Circuit, When is Conversion Kosher, Who is the US Trustee, Meet the Chapter 13 Trustee’s Attorneys,Meet the Judge’s Clerks, Ask the Chapter 7 Trustee and Litigating Contempt. Our first Annual James T. King Bankruptcy Symposium: In Re Bellingham from the Insiders was a great success. As always, the Earle Hagen Golf, Tennis and Poker Tournament was not only a great success raising a record amount of money for Public Counsel but it was also a lot of fun. Finally, our Annual Calvin Ashland Award Dinner was well attended by not only our members but also the judges and trustees and honored our soon to be appointed Chief Judge Sheri Bluebond.
Desmond Hayes has been hard at work on our website and has made a new renewal page for 2015. He has added a slide to the home page. The new page also allows members to pay for other members. There is a link next to the paypal button that allows members to search for other members to add to their order.https://bklawyers.org/renew
The 2015 CDCBAA Board is already hard at work preparing for 2015. Jonathan Hayes will kick off our seminars on January 24, 2015 with the Ninth Annual Review of the Ninth Circuit with Judge Victoria Kaufman and newly appointed Judge Martin Barash. Roksana Moradi is hard at work putting together seminars on HOAs, Drafting Effective Settlement Agreements, and the Unscheduled Lawsuit. Jonathan Hayes is hard at work on the second Annual James T. King Bankruptcy Symposium which will be titled “Dear Congress!” Stella Havkin and Michael Gouveia are hard at work on our next CDCBAA Newsletter that will include valuable information. And if that were not enough, our listserve is an invaluable opportunity to share interesting issues with fellow members.
For all of the reasons listed above, please consider renewing your CDCBAA membership early. For those of you looking for a wonderful holiday gift for a colleague, consider the gift of CDCBAA membership. Finally, for those loyal members, consider introducing colleagues to the CDCBAA and encourage them sign up for what promises to be a fantastic 2015.
Happy Holidays to you all!!!
Nancy B. Clark
Attorney at Law
Borowitz & Clark, LLP
This article, written for the Association of Corporate Counsel, is directed at “investors.” You can access it here.