Neither Snow, Nor Rain, Nor Gloom of Government Shutdown Shall Stay the Bankruptcy Courts

There are many questions about what will happen if Congress does not pass an appropriations bill to continue funding the federal government beyond today. But we know one thing. Bankruptcy lawyers will not get a vacation.

The Bankruptcy Court for the Central District of California has announced that the federal judiciary will use other funds to allow federal courts to remain open. This is a short-term band-aid. But it should allow the courts to remain open for about three weeks through February 9, 2018.

During that time, scheduled hearings will be held as usual. Filings will be accepted. And hours of operation, availability of systems, and other services will continue as normal.

If circumstances change, the Court will issue another notice.

You can download the announcement here.

Mette K.

Cornyn & Warren Introduce the Bankruptcy Venue Reform Act of 2017

Earlier today, Senators John Cornyn (R-TX) and Elizabeth Warren (D-MA) introduced the Bankruptcy Venue Reform Act of 2017. The bill would require companies to seek bankruptcy protection where they have their principal assets or their principal executive offices. And it would eliminate the possibility of filing where they are incorporated and restrict their ability to file where an affiliate’s case is pending. The end result? The bill would effectively limit access to popular bankruptcy courts in New York and Delaware. If passed, this would represent a seismic shift for corporate bankruptcies.

The Rationale for the Bill: Preventing Corporate Abuse

Sens. Cornyn and Warren said in a joint statement that the bill is meant to strengthen the integrity of the bankruptcy system and build public confidence by preventing companies from “shopping” for favorable courts. The bill is also intended to allow employees at bankrupt companies, small business creditors, and others to participate in cases that will have tremendous impacts on their lives.

“Workers, creditors, and consumers lose when corporations manipulate the system to file for bankruptcy wherever they please. I’m glad to work with Senator Cornyn to prevent big companies from cherry-picking courts that they think will rule in their favor and to crack down on this corporate abuse of our nation’s bankruptcy laws.” -Sen. Warren 

The bill is endorsed by the Commercial Law League, Texas Bankruptcy Bar Association, Texas Hotel & Lodging Association, Boston Bar Association, Ag & Business Legal Strategies, and… the Iowa Bankers Association.

Another Viewpoint: Litigation at the Speed of Business

Proponents of the current system, however, argue that experienced courts and judges can better handle complicated issues in a big bankruptcy case. This leads to greater predictability, thus reducing the cost, risk and delay associated with bankruptcy filings. And those benefits, in turn, help to save businesses, preserve jobs, and reduce creditor losses.

The bill faces opposition from Gov. Carney and Delaware’s three federal lawmakers, who said in their own joint-statement that more than two-thirds of U.S. businesses in the Fortune 500 incorporate in Delaware to gain access to “Delaware’s world-class bench and bar with exceptional expertise in corporate legal issues, including bankruptcy.”

“Denying American businesses the ability to file for bankruptcy in the courts of their choice would not only hurt Delaware’s economy but also hurt businesses of all sizes and the national economy as a whole. Our economy thrives when the bankruptcy system is fair, predictable, and efficient. Experienced bankruptcy judges are critical to ensuring that companies can restructure in a way that saves jobs and preserves value.”

This is something I can now begin to speak to from some level of personal experience. After attending the Pre-Admission Conference for new Delaware lawyers held by the Delaware Supreme Court, two themes stood out. An unwavering insistence on civility and the highest ethical and professional standards. And an uncompromising commitment to delivering “litigation at the speed of business.”

Further Reading: Full Text of the Bill

The bill’s complete text is available here.

Mette K.

The CLLA Sets Its Sights on Bankruptcy Venue Rules… Again

I have barely unpacked my suitcases, and yesterday the Commercial Law League of America (CLLA) announced that a bankruptcy venue reform bill will be proposed this week in the U.S. Senate. The bill will to seek to change the venue rules for filing Chapter 11 business cases. If you want to view the CLAA’s press release, it is available here. (The CLLA previously supported S.314 (109th Congress 2005-2006) and H.R.2533 (112th Congress 2011-2012), which were not enacted.)

A Very Old Debate

The venue rules were already a long-standing topic of debate when I began practicing law over 20 years ago. In fact, the argument has been ongoing for roughly 40 years. And it has not dramatically changed over the decades. Rather, it is a debate that periodically ebbs and flows in public discourse.

If you’re a newcomer to the conversation, the gist of the debate is this.

  • On one hand, some people argue that current law gives debtors too much leeway in deciding where to file bankruptcy, allowing them to “shop” for favorable venues.
  • On the other hand, some people argue that existing venue laws work, allowing debtors the flexibility to choose a venue that provides them with the best opportunity to reorganize and maximize estate value.

The Significance of the Venue Debate

Why does this matter? Because the District of Delaware and the Southern District of New York attract the largest share of Chapter 11 filings. In fact, they have attracted more than 75% of large public company filings since 2010.

What to Expect Next?

The bill was introduced on January 8, 2017.  More information is available in my follow up post.

Stayed tuned as I track the proposed bill and provide updates on the latest developments.

 

Mette K.

Procedures for Filing Bankruptcy Claims Changed Today! Read. Learn. Be Prepared.

Details matter.  After years of procedural wrangling, significant changes to the federal procedural rules take effect today.  While the changes are focused principally on streamlining procedures in consumer cases, they include provisions – such as a requirement that secured creditors file proofs of claim – that impact all cases.  Here’s a run through of some key points.  You can find the full text of the amendments here.

Proofs of Claims: Secured Creditors Beware!

  • Secured creditors must now file proofs of claim to have their claims allowed. Although in accordance with Section 506(d), if they don’t, their liens will not be rendered void for only that reason. FRBP 3002(a).

Claim Objections: Who to Serve, Whether to Have a Hearing, Where to Object

  • To object to a claim, you must serve the affected creditor by 1st class mail directed to the name and address on its filed claim form.
  • The Court no longer needs to schedule or hold a hearing on every claim objection.
  • Any party-in-interest may seek a determination of the amount and priority of any claim. Plan proponents in Chapter 12 and 13 may now include these objections in the body of a Plan.  FRBP 3007 & 3012.

Objecting to Liens or Transfers? File a Motion or Put It in a Chapter 13 Plan

  • Parties may now seek to avoid a lien or other transfer of the debtor’s exempt property by motion or in the debtor’s Chapter 13 Plan. FRBP 3012 & 4003(d).

Claim Bar Dates: Time It Right in Chapter 7, 12, and 13

  • Filing a claim in a voluntary Chapter 7 (liquidation), 12 (family farmer), or 13 (individual debt readjustment) case?  You must now file your claim within 70 days after the bankruptcy petition filing date.  For involuntary Chapter 7 cases, you have until 90-days after the order for relief is entered. FRBP 3002.
  • If a case converts to Chapter 7 or 13, the new, 70-day period will run from the date of the order converting the case. If it converts to Chapter 7, a new claims filing deadline starts running.  FRBP 3002.
  • The Court may extend these deadlines if the debtor has not filed a complete list of creditors. FRBP 3002(c)(6).
  • And a new 2-stage deadline is created for filing mortgage claims secured by an interest in the debtor’s principal residence. FRBP 3002(c)(7).

Chapter 13 Plans & Confirmation: Use the Form, Know Your Deadlines

  • An “official,” standardized Chapter 13 plan is created… unless your jurisdiction has adopted its own (consistent) local form.  FRBP 3015(c).
  • A debtor must provide creditors with at least 21 days’ notice of the deadline for objecting to Chapter 13 Plans and 28 days’ notice of the confirmation hearing in Chapter 13 cases. FRBP 2002(a)(9) and (b)(3).

Mette K.

Rule Changes for the Central District of CA: New Signature Requirements

Effective tomorrow, the Bankruptcy Court for the Central District of California has implemented a significant change in its signature requirements for documents filed through CM/ECF.

Documents requiring the signature of a debtor or any other party (with the exception of registered CM/ECF filers) must bear a holographic signature.  And the familiar Electronic Filing Declaration will no longer be accepted.  

Legal nerds and insomniacs can click on the following links to view the changes:

A complete list of new, revised, and retired local rules and forms for the Central District of California, effective as of December 1, 2017, can be found here.  Local forms are available here.  The changes include the following:

  • LBR 1002-1(f)): deleted and superseded by new LBR 9011-1.
  • LBR 1017-2(f): amended to specify that the Court retains jurisdiction in dismissed cases to enforce issues listed in LBR 1017-2(f).
  • LBR 3015-1: the national rules addressing chapter 13 were updated, effective 12/1/17, which necessitated a comprehensive update to this LBR.  Amendments also encourage uniformity and clarity in chapter 13 practice.
  • LBR 3020-1: amended to clarify the requirement for certain language to be included in a Chapter 13 plan confirmation order and specify the effect of conversion from Chapter 11 to Chapter 7.
  • LBR 7055-1(b): amended to reflect a change in the renumbering of 50 U.S.C. Chapter 50.
  • LBR 7064-1: amended to specify that bankruptcy evictions are handled by the U.S. Marshals Service and the exact language to be included in an eviction order.
  • LBR 7067-1: amended to reflect changes in the national registry fund fee structure and add a requirement to use a local form order.
  • LBR 9011-1: new LBR specifies signature requirements for electronically filed documents.

Mette K.