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Bankruptcy

A Texas Bankruptcy Lawyer's Blog

Case updates and commentary of interest to Texas bankruptcy lawyers.
By Stephen Sather

Post Frequency: 1.1/day

Last Entry: September 30, 2020 at 11:22:00

Circuit Court Denies Claim For Lack of Supporting Documentation

Posted on July 15, 2009
The 10th Circuit has ruled that a trustee's objection to an assigned proof of claim should be sustained based on lack of supporting documentation even though the debtor scheduled a similar claim. In re Kirkland, No. 08-2017 (10th Cir. 7/14/09). The opinion can be found here...

More About Judge Sotomayor and Bankruptcy

Posted on July 10, 2009
Supreme Court nominee Sonia Sotomayor?s questionnaire completed for the Senate Judiciary Committee contains a mind-numbing 173 pages of details about the prospective justice. If you need to know who she gave a speech to in 1993 or which single-sex club she belonged to until recently, this is the place to look...

Fifth Circuit Allows Ownership Expense on Paid For Vehicle

Posted on July 01, 2009
The Fifth Circuit has held that a debtor may claim an ownership expense on the chapter 7 means test even if the debtor does not have a loan or lease payment. In re Tate, No. 08-60953 (5th Cir. 6/10/09). In the Tate case, the debtors owned two paid for vehicles...

Supreme Court Grants Cert in Attorney Speech Case

Posted on June 19, 2009
The Supreme Court has granted certiorari in Milavetz, Gallop & Milavetz, P.A. v. United United States, 541 F.3d 785 (8th Cir. 2008), cert granted, 2009 U.S. LEXIS 4277 (6/8/09). The Milavetz case held that the provision in BAPCPA preventing attorneys from advising debtors to incur debt in contemplation of bankruptcy was an unconstitutional restriction on the right to free speech under the First Amendment...

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Supreme Court Decides One Case and Hints At Result in Another

Posted on June 18, 2009
While many continuing legal education conferences consist of regurgitations of things you already know, every once in a while, you gain an insight which makes it all worthwhile. Today at the State Bar of Texas Bankruptcy Section Bench-Bar Conference, I was fortunate enough to hear Nashville Bankruptcy Judge Keith Lundin tie together today's decision in Travelers Indemnity Co...

Chapter 11 in Texas: Introduction to the 2008 Cases

Posted on June 15, 2009
Enron filed in the Southern District of New York. However, there are still chapter 11 cases being filed in Texas. During 2008, there were a total of 701 chapter 11 cases filed in Texas. This will be the first of a series of posts examining the Class of 2008...

Another View on Chrysler

Posted on June 12, 2009
The Chrysler deal has now closed, proving that it is possible to do a multi-billion dollar asset sale on an expedited timetable when the U.S. government is your DIP lender and is directing the pace. I am still scratching my head at the ease with which this deal went through...

The Bankruptcy Opinions of Sonia Sotomayor

Posted on May 27, 2009
Yesterday President Obama nominated Second Circuit judge Sonia Sotomayor to take David Souter's place on the Supreme Court. As a District Court Judge in the Southern District of New York and as a Judge on the Second Circuit Court of Appeals, Judge Sotomayor has come across bankruptcy issues from time to time...

Lawyers, Guns and Money

Posted on May 13, 2009
"Send lawyers, guns and money."--Warren Zevon (1978).A new opinion out of San Antonio (home to the Alamo) contains the elements of lawyers, guns and money in a decision about exempting firearms. In re Wilkinson, No. 07-50189 (Bankr. W.D. Tex. 4/10/09)...

Court Clears the Way for Simultantaneous Causes of Action Based on Discharge Violation

Posted on May 05, 2009
Nature abhors a vacuum. When Congress restricted access to bankruptcy in 2005, many debtor?s lawyers became plaintiff?s lawyers, filing suit over automatic stay and discharge violations which might have been allowed to pass in an earlier time. Not only are debtor?s lawyers suing more often, they are also asserting more causes of action as illustrated by a recent opinion from the Western District of Texas...

His English Teacher Would Be Proud

Posted on May 04, 2009
Many of us forgot the formal rules of grammatical construction as fast as we could, but not Justice Breyer. In an opinion today, he delivered a grammatical tour de force. There are strong textual reasons for rejecting the Government?s position. As a matter of ordinary English grammar, it seems natural to read the statute?s word ?knowingly? as applying to all the subsequently listed elements of the crime...

Chrysler Seeks the Ultimate 363 Sale as the Treasury Department Dictates the Pace

Posted on May 03, 2009
Chrysler, LLC filed for chapter 11 bankruptcy on April 30 with the United States Treasury firmly in the driver?s seat (pun intended). In its first day filings, Chrysler announced that it would be seeking $4.5 billion in DIP financing from the Treasury and that it intended to affect a sale of substantially all of its assets to a newly created entity within 60 days...

The Human Face of Bankruptcy

Posted on May 03, 2009
This week I received an unhappy call from the wife of a debtor whose case I had written about. Although the article was posted nearly two years ago, someone had recently told her that her husband's name was mentioned on the internet. She found this very distressing...

Pennsylvania Judge Writes Epic Opinion on Technology and Professional Responsibility

Posted on April 26, 2009
Technology has dramatically changed the practice of law. Thanks to Westlaw and Lexis, it is no longer necessary to keep large expensive libraries. PACER and ECF have made court filings and filing documents available 24/7. I recently observed a case where the parties used GoToMeeting to handle thousands of pages of exhibits electronically...

On Gunslingers, Presumptions and Burdens of Proof

Posted on April 24, 2009
There have been an increasing number of cases dealing with objections to assigned credit card debt. These cases are a bit like a showdown between gunfighters with bad aim: there is a lot of shooting, but no one hits anything. While a gunfight where no one gets shot is a good thing, the court must still decide whether to allow or disallow the claim even when there is little or no evidence introduced...

Sign Costs Creditor $21,800

Posted on April 16, 2009
Chuck Newton's blog, stayviolation.com, has the details on a case he recently tried in which a creditor posted a sign in a small town stating: "BRAD COLLIER OWES ME $984.23 WILL YOU PLEASE COME AND PAY ME!" The Court awarded $21,820.00 in damages for violation of the automatic stay...

10th Circuit Affirms Denial of Employment of Attorneys Who Were Too Expensive

Posted on April 08, 2009
In these days of exponentially increasing hourly rates, a bankruptcy court told a creditors' committee that its proposed counsel was too expensive when there were local firms competent to do the work for half the cost. That decision was recently affirmed by the 10th Circuit Court of Appeals...

Leif Clark on Reaffirmations: Six Short Clark Opinions on Reaffirmation and What They Mean

Posted on April 07, 2009
Leif Clark is one of the most prolific judges on the bankruptcy bench today. His opinions are generally both scholarly and entertaining to read. However, one adjective which is not usually applied to his opinions is short. Therefore, it is worthy of note that in the past year, Judge Clark his written no fewer than six opinions denying approval of reaffirmation agreements and giving guidance to the parties with regard to the unreaffirmed debt, none of which is longer than three pages...

When Is a Small Business Debtor Not a Small Business Debtor?

Posted on April 06, 2009
One of the changes that the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 made to small business bankruptcy cases was to eliminate the ability to opt in to treatment as a small business debtor. However, it appears that the Bankruptcy Rules may have given back the option which Congress intended to take away...

Texas Chapter 11 Filings Double

Posted on April 05, 2009
Chapter 11 filings are a good indicator of how the economy is doing as well as the market for bankruptcy lawyers. If the latest filings are any indication, Texas bankruptcy lawyers are going to be very busy. In the first quarter of 2009, chapter 11 filings doubled over their level from the same time during 2008...

Remembering Our Colleagues

Posted on March 26, 2009
Yesterday I heard that a bankruptcy lawyer I know had passed away. It turned out to be a case of mistaken identity, much to my relief. However, it got me thinking that we have lost several members of our bar in the past months and I wanted to take a moment to remember them...

The Bankruptcy Reform Rube Goldberg Device

Posted on March 19, 2009
The Bankruptcy Code of 1978 was intended to simplify the law and make it more functional. In most respects, it worked beautifully. The same cannot be said for the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. Badly drafted is one of the kinder adjectives applied to it...

Exemption Cases Take a Campy Turn

Posted on March 16, 2009
When Bankruptcy Judge Craig Gargotta decided In re Camp, 396 B.R. 194 (Bankr. W.D. Tex. 2008), he staked out a unique position on how exemption laws should be applied when Sec. 522(b)(3)(A) requires application of the law of another state. Judge Gargotta concluded that Sec...

Accountant's Mistake on Financial Statement Leads to Non-Dischargeable Debt

Posted on February 11, 2009
A recent opinion from the Fifth Circuit demonstrates that non-dischargeable claims for false financial statements can extend beyond the traditional lender-borrower relationship and that a third party's error can create liability when it is knowingly adopted by the debtor...

Judge to Secured Creditor: The Loan has been PAID!!!!!

Posted on February 03, 2009
In the latest opinion from a single asset real estate case which has taken on the ferocity of a cage match brawl, the bankruptcy court has told a secured lender that it must treat its credit bid under Section 363(k) the same as if it had received a cash payment...

Texas Supreme Court Allows Malicious Prosecution Claim Based on Bankruptcy Adversary Proceeding to Proceed, Finds No Preemption

Posted on January 12, 2009
In an interesting case dealing with concurrent jurisdiction and preemption, the Texas Supreme Court has found that a state court had jurisdiction to consider a malicious prosecution action based upon an adversary proceeding. Graber v. Fuqua, No. 05-0303 (Tex...

What Do You Do With An Ombudsman?

Posted on January 08, 2009
Two of the new parties created by BAPCPA are the consumer privacy ombudsman and the patient care ombudsman authorized by sections 332 and 333 of title 11. In creating these positions, Congress acted to protect certain narrow constituencies deemed at risk in business bankruptcy cases...

2008 Was a Busy Bankruptcy Year for the Fifth Circuit

Posted on December 23, 2008
The Fifth Circuit has busy this year. They have been turning out bankruptcy opinions at a rate where they might consider changing the name of the court to the Fifth Circuit Court of Bankruptcy Appeals. So far I have written a dozen articles about their decisions this year...

Bankruptcy Court Limbers Up to Tackle Mental Gymnastics of Lien Avoidance

Posted on December 19, 2008
A Texas bankruptcy judge had to engage in some mental gymnastics to decide whether to avoid a lien on property exempted under the federal wildcard in emIn re Melissa Catherine Powell/em, No. 08-60204 (Bankr. W.D. Tex. 11/6/08). emPowell/em presented some interesting facts...

Fifth Circuit Relies on Constitutional Avoidance to Uphold Sec. 526(a)(4)

Posted on December 19, 2008
In a departure from rulings by the Eighth Circuit and several lower courts, the Fifth Circuit has held that Sec. 526(a)(4), which limits the advice debt relief agencies can give potential debtors "in contemplation of" bankruptcy, passes constitutional scrutiny...

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