All posts in Chapter 11

Here comes the split re: trustee reach back for 10 years!

The circuit split starts!  Following up on my post below, this 10 year reach-back period for trustees is starting to garner some traction!  Judge Pappas, one of the nicest and astute judges I have met, recently issued an extremely thorough 76-page opinion siding with the Florida bankruptcy judge that allowed the trustee to step in the shoes of the IRS and reach back much farther than the 4-year limitation to avoid a fraudulent transfer.

I love it when courts cite nullum tempus occurrit regi meaning “no time runs against the king” (gives me goosebumps) which implies that the United States (i.e. IRS) is not bound by state statutes of limitation in enforcing its rights.

Read more…

Chapter 11 Doesn’t Have To Be Quite So Paper Intensive

My oldest son asked me to look up a case in North Dakota.  A related case called J&J Oilfield Services, Inc. caught my eye.  The docket was some 479 items resulting in a confirmed plan.  So the case is nice and complicated.  But take a look at the employment app debtor’s counsel filed.  Employ App North Dakota  One page!  And one page for the Statement of Disinterestedness.  The Motion for Final Decree is here.  Final Decree North Dakota  One page.  It doesn’t have to be that complicated.

Sunnyslope Oral Argument En Banc Set for January 17, 2017: 3:30 pm

My discussion, What is the Value of Property in a Chapter 11 Plan? The 9th Circuit Goofs, of the debacle known as Sunnyslope is here and here.  Thankfully, the 9th Circuit decided to rehear the matter en banc.  The en banc hearing will take place in San Francisco on January 17, 2017 at 3:30 pm.  See you there?

Edict From Judge Maureen Tighe

Judge Maureen Tighe announced in court today that she is going to start sanctioning attorneys and chapter 11 debtors when the debtor does not appear personally at the Status Conference – per her status conference order.

5 NEW Forms for Individual Chapter 11 Cases in Judge Zurzolo Cases

Effective August 1, 2016,the following forms can be used in individual Chapter 11 cases in front of Judge Zurzolo:

(1) Disclosure Statement and Plan (combined document) [I WORKED ON THESE WITH HIM!]
(2) Notice of Hearing on Adequacy of Disclosure Statement
(3) Motion to Approve Adequacy of Disclosure Statement
(4) Notice of Dates and Deadlines Related to Confirmation of Plan
(5) Motion to Confirm Plan of Reorganization

Link to the Judge’s website here.

Last Add – Sunnyslope Goof Up

There was some serious discussion at one of the programs at the 9th Circuit Judicial Conference about Sunnyslope, more in the area of equitable mootness than in property valuation issues.   Someone reminded us that a confirmed plan in a corporate chapter 11 cannot be modified after it has been substantially consummated.  In Sunnyslope, everyone involved in the case agreed that the plan was substantially consummated.  The opinion says, ”the plan as approved by the bankruptcy court was substantially consummated, as all parties acknowledge.”  So it must be “unraveled,” – pitched out.   The court (the two person majority) concluded, “As a result, the plan of reorganization confirmed by the bankruptcy court and affirmed by the district court must be set aside.”  So I guess it will not be modified, the parties will simply start over four years later.     Read more…

LACBA Program: Successor Liability, 363 Sales, and Chapter 11

Successor Liability, 363 Sales, and Chapter 11: Buyers…

The panel will discuss the issue of successor liability in the context of a sale under 11 U.S.C. § 363 from the perspective of a buyer, seller, and creditors.

Program Title: 
Successor Liability, 363 Sales, and Chapter 11: Buyers, Sellers, and Creditors Beware!

Presented By:
Commercial Law & Bankruptcy Section

Thursday, July 28, 2016

Program Description:
The panel will discuss the issue of successor liability in the context of a sale under 11 U.S.C. § 363 from the perspective of a buyer, seller, and creditors.  The discussion will cover how to sell a business before the value is all gone, strategies to structure sales and asset transfers through plans and section 363 sales, exceptions to the “free and clear” rule, when a buyer may be liable for present or future claims of the debtor, rights and strategies of a purchaser facing successor liability, and methodology and considerations in attacking a buyer for successor liability.  The panel will also discuss key post confirmation jurisdictional considerations in evaluating what court may address these issues.

Hon. Julia W. Brand, United States Bankruptcy Court
Jeffrey I. Golden, 
Lobel Weiland Golden Friedman LLP
Whitman L. Holt,
 Klee, Tuchin, Bogdanoff & Stern LLP Read more…

What is the Value of Property in a Chapter 11 Plan? The 9th Circuit Goofs.

To cram down a secured creditor, the debtor must pay the “allowed secured claim” in full.  Section 506(a) tells us that the allowed secured claim is the value of the property.  It clarifies that by saying, “Such value shall be determined in light of the purpose of the valuation and of the proposed disposition or use of such property.”  That means that if the debtor intends to keep the property, it must be valued as a going concern, i.e., the value for the use that the debtor proposes.

In In re Sunnyslope Housing Limited Partnership  — F. 3d, —- (9th Cir. April, 2016), we have some weird facts that have resulted in a totally wrong ruling. Read more…

Penrod Giveth and Bos Taketh Away – A Response from Peter Lively

My sense is that Judge Watford should have referred to the creditor’s objection to Penrod’s 506b motion rather than its objection to her Plan’s confirmation.

By challenging the bankruptcy code’s ability to modify the vehicle loan (no use of 506 where negative equity was added to the loan originated within 910 days of the petition), the creditor was litigating enforceability of its contract as falling outside the scope of the code rather than acknowledge that it’s contact was subject to the code and fighting over how the code functions – like the more general modification of contract rights that are the focus of plan confirmation, relief from stay and such.

If you take Judge Watford’s premise that the contract rights were at play because of the creditor’s plan confirmation objection, then the only way to reconcile Bos and David’s RFS opinion is to view everything through the OJ Dream Team lense where the highest priced legal team prevail in court.

Best regards,

Penrod Giveth and Bos Taketh Away

I thought I knew where we are on attorneys fees after the 9th Circuit ruled in In re Penrod that a creditor fighting with a debtor in a bankruptcy case, is an effort by the creditor to collect its debt form the debtor, and therefore an “action on the contract” and therefore, assuming there is a right to attorneys fees in the contract, the bankruptcy court can award attorneys fees to the debtor.

My friend Peter Lively was surprised to hear me say recently that I think that Penrod allows for attorneys fees to the debtor anytime the debtor defeats any creditor efforts in a bankruptcy case including stay relief motions, oppositions to plan confirmation, battles over property values, cash collateral, plan fights.  His sense was that since Penrod was over the issue of bifurcating a car loan, it didn’t necessarily extend out to everything else.  He promised to look into it further.

In Penrod Judge Watford wrote:

“Under California law, an action is ‘on a contract’ when a party seeks to enforce, or avoid enforcement of, the provisions of the contract.  AmeriCredit sought to enforce the provisions of its contract with Penrod when it objected to confirmation of her proposed Chapter 13 plan.”

“AmeriCredit insisted that it was entitled to have its claim treated as fully secured.  The only possible source of that asserted right was the contract—in particular, the provision in which Penrod granted a security interest in her Taurus to secure ‘payment of all you owe on this contract.’” Read more…