By Brian R. Pollock on Posted in Bankruptcy TrendsThe Sixth Circuit BAP has reversed the denial of a motion to dismiss an involuntary petition. A single petitioning creditor initiated the case of In re Zenga based on the putative debtors’ responses to interrogatories which identified 10 creditors. The putative debtors sought to introduce evidence of additional creditors. The bankruptcy court held the prior… Continue Reading
By Brian R. Pollock and Brian J. Levy on Posted in Bankruptcy Trends,Circuit SplitSometimes we forget that the Federal Rules of Bankruptcy Procedure differ from the Federal Rules of Civil Procedure by more than just the numbering scheme that adds two digits to the front of the bankruptcy rules. The defendants in Rosenberg v. DVI Receivables XIV, LLC, et al., failed to appreciate that there are also different… Continue Reading
By Brian R. Pollock on Posted in Bankruptcy Trends,Circuit SplitSeeing my Virginia Cavaliers lose to the Syracuse Orange and reading Mefford v. Norton Hospitals, reminds me that any discussion of judicial estoppel needs to be tempered by the doctrine’s exceptions and that the game is not over after the first half. In Mefford, the Kentucky Court of Appeals reversed the trial court’s summary judgment based on… Continue Reading
By Brian R. Pollock and Guest Blogger on Posted in Bankruptcy Trends,FDCPAWhen handling an FDCPA claim, there are many initial questions to ask. Besides the definitional issue, it is valuable to look for prior bankruptcies. When a debtor fails to disclose the claim on the bankruptcy schedules, judicial estoppel prevents the debtor from later asserting it. In Jarrett v. LVNV Funding, the Western District of Kentucky… Continue Reading
By Brian R. Pollock and Guest Blogger on Posted in Bankruptcy Trends,Chapter 11,Circuit SplitSimilar to pizza ingredients, artificial impairment of creditors results in artificial confirmation of the Chapter 11 plan. In Village Green I, GP v. Fannie Mae (In re Village Green I, GP), the Sixth Circuit affirmed the decision to vacate the confirmation order a second time. The debtor had three creditors: its lender, its former lawyer,… Continue Reading
By Brian R. Pollock on Posted in Bankruptcy Trends,Chapter 11,Proof of ClaimWhile I thought that only a Kentucky senator would object to his own legislation, Chapter 11 debtors in the Eighth Circuit must object to their own plan to have person-aggrieved standing for an appeal. In O&S Trucking, Inc. v. Mercedes Benz Financial Services USA (In re O&S Trucking, Inc.), the court affirmed the BAP’s dismissal of the appeal for… Continue Reading
By Brian R. Pollock on Posted in Bankruptcy Trends,CollateralWhile the number of ECF notices I receive may overwhelm my inbox, it is the rare occasion when I don’t recognize the case number. But that happened this week when a reaffirmation agreement came across the desk. The court “received” the document rather than “filing” it because the case had been closed for two months. Since I’ve… Continue Reading
By Brian R. Pollock on Posted in Bankruptcy Trends,Collateral,Interest Rates,Kentucky LawWhile hitting 5 out of 6 shots may be good on the court, it is not sufficient to prevent modification of a mortgage in the Bankruptcy Court for the Eastern District of Kentucky. The Court recently allowed debtors to modify the debt on their manufactured home despite the anti-modification provision 0f § 1322(b)(2). See In… Continue Reading
By Guest Blogger on Posted in Bankruptcy Trends,Chapter 11,Pop CultureEarlier this year, I became mildly obsessed with (Kentucky’s own) Sturgill Simpson. In addition to being an immensely-talented throwback musician, he appears to have predicted what many bankruptcy lawyers would be doing in 2015. The immensity and difficulty of coal cases is also why I haven’t done much blogging lately. From 2013, here’s Sturgill performing Old King… Continue Reading
By Eric J. Breithaupt on Posted in Bankruptcy Trends,SCOTUS,Stern v. MarshallIn a six to three majority decision, the Supreme Court limited the impact of Stern v. Marshall, 564 U.S. 2 (2011) by holding in Wellness International Network, Ltd. v. Sharif, 575 U.S.___(2015) ( decided on May 26, 2015), that private litigants may consent to have their claims adjudicated by a Bankruptcy Court. Since the release of… Continue Reading
By Brian R. Pollock on Posted in Bankruptcy Trends,FDCPA,Proof of ClaimAdding to the apparent deluge of issues surrounding the Eleventh’s Circuit decision in Crawford v. LVNV Funding, LLC, the Bankruptcy Court for the Northern District of Indiana has sanctioned two creditors for not being able to do math. More accurately, the Sekema court awarded sanctions of $1000 for no-showing a show-cause hearing to explain why… Continue Reading
By Brian R. Pollock on Posted in Article 9,Bankruptcy Trends,CollateralIn Sunshine Heifers, LLC v. Citizens First Bank (In re Purdy), 763 F.3d 513 (6th Cir. 2014), a divided Sixth Circuit reversed the bankruptcy court’s finding that cattle leases were disguised security interests. Over the course of three years, Debtor Lee Purdy entered into several leases with Sunshine Heifers for a total of 435 dairy… Continue Reading
By Guest Blogger on Posted in Bankruptcy Trends,SCOTUS,Stern v. MarshallIf a time-traveler had visited me in the mid-1990s and told me that I would attend law school, I wouldn’t have believed it. If that visitor told me that I would graduate and subsequently become a bankruptcy lawyer, I would have said “that’s an oddly-specific prediction, but I still don’t believe you.” If the time-traveler then told me… Continue Reading
By Guest Blogger on Posted in Bankruptcy TrendsAccording to the American Bankruptcy Institute and Epiq Systems, Inc., total US bankruptcy filings are down 12% from the same time last year, with commercial bankruptcies down 24%. As the ABI Executive Director Samuel J. Gerdano points out in this article, “‘Low interest rates, tighter lending standards and high costs to file continue to be… Continue Reading
The Sixth Circuit BAP has reversed the denial of a motion to dismiss an involuntary petition. A single petitioning creditor initiated the case of In re Zenga based on the putative debtors’ responses to interrogatories which identified 10 creditors. The putative debtors sought to introduce evidence of additional creditors. The bankruptcy court held the prior… Continue Reading
Sometimes we forget that the Federal Rules of Bankruptcy Procedure differ from the Federal Rules of Civil Procedure by more than just the numbering scheme that adds two digits to the front of the bankruptcy rules. The defendants in Rosenberg v. DVI Receivables XIV, LLC, et al., failed to appreciate that there are also different… 
Seeing my Virginia Cavaliers lose to the Syracuse Orange and reading Mefford v. Norton Hospitals, reminds me that any discussion of judicial estoppel needs to be tempered by the doctrine’s exceptions and that the game is not over after the first half. In Mefford, the Kentucky Court of Appeals reversed the trial court’s summary judgment based on… 
When handling an FDCPA claim, there are many initial questions to ask. Besides the definitional issue, it is valuable to look for prior bankruptcies. When a debtor fails to disclose the claim on the bankruptcy schedules, judicial estoppel prevents the debtor from later asserting it. In Jarrett v. LVNV Funding, the Western District of Kentucky… 
Similar to pizza ingredients, artificial impairment of creditors results in artificial confirmation of the Chapter 11 plan. In Village Green I, GP v. Fannie Mae (In re Village Green I, GP), the Sixth Circuit affirmed the decision to vacate the confirmation order a second time. The debtor had three creditors: its lender, its former lawyer,… 
While I thought that only a Kentucky senator would object to his own legislation, Chapter 11 debtors in the Eighth Circuit must object to their own plan to have person-aggrieved standing for an appeal. In O&S Trucking, Inc. v. Mercedes Benz Financial Services USA (In re O&S Trucking, Inc.), the court affirmed the BAP’s dismissal of the appeal for… 
While the number of ECF notices I receive may overwhelm my inbox, it is the rare occasion when I don’t recognize the case number. But that happened this week when a reaffirmation agreement came across the desk. The court “received” the document rather than “filing” it because the case had been closed for two months. Since I’ve… 
While hitting 5 out of 6 shots may be good on the court, it is not sufficient to prevent modification of a mortgage in the Bankruptcy Court for the Eastern District of Kentucky. The Court recently allowed debtors to modify the debt on their manufactured home despite the anti-modification provision 0f § 1322(b)(2). See In… 
In a six to three majority decision, the Supreme Court limited the impact of Stern v. Marshall, 564 U.S. 2 (2011) by holding in Wellness International Network, Ltd. v. Sharif, 575 U.S.___(2015) ( decided on May 26, 2015), that private litigants may consent to have their claims adjudicated by a Bankruptcy Court. Since the release of… 
Adding to the apparent deluge of issues surrounding the Eleventh’s Circuit decision in Crawford v. LVNV Funding, LLC, the Bankruptcy Court for the Northern District of Indiana has sanctioned two creditors for not being able to do math. More accurately, the Sekema court awarded sanctions of $1000 for no-showing a show-cause hearing to explain why… 
In Sunshine Heifers, LLC v. Citizens First Bank (In re Purdy), 763 F.3d 513 (6th Cir. 2014), a divided Sixth Circuit reversed the bankruptcy court’s finding that cattle leases were disguised security interests. Over the course of three years, Debtor Lee Purdy entered into several leases with Sunshine Heifers for a total of 435 dairy…