Mortgage Lienstripping Bill Advances in the House
By: Prof. Jack F. Williams
ABI Resident Scholar
The House Judiciary Committee approved an amendment in the nature of a substitute for H.R. 200 on January 27, sending the bill to the House floor where it may be attached to another measure for fast action. The bill is entitled "Helping Families Save Their Homes in Bankruptcy Act of 2009." The purpose of the bill is to provide a means through chapter 13 for a debtor to avoid a foreclosure and keep the primary residence. The bill is aimed at helping chapter 13 debtors who might have the means to afford their home, although they may no longer be able to afford their current mortgage. The core of the bill gives a bankruptcy judge in a chapter 13 case the discretion, within choreographed steps, to reduce the mortgage amount and alter other key terms on the principal residence, while partially protecting the lender in the event of a later sale after the property has appreciated in value. The bill is also intended to curb certain perceived abusive practices by lenders and servicers.
Materials from the Rocky Mountain Bankruptcy Conference
The 14th Annual Rocky Mountain Bankruptcy Conference was held Jan. 22-23 in downtown Denver at the Westin Tabor Center. This year's program provided attendees with an interactive learning experience led by a faculty of prominent bankruptcy judges as well as experienced practitioners. There were several sessions of particular interest to consumer bankruptcy professionals.
Panelists in the session "Consumer Workshop I: Knocked into a Cocked Hat - Means Test Unresolved Issues and Case Law Update," provided updates on decisive consumer rulings, calculations of national and local deductions and expense allowances for special circumstances. Ellen R. Welner of George T. Carlson & Associates in Englewood, Colo. moderated the panel, which included Loretta A. Burnett of Colorado Springs, Colo., Mark R. Stewart of Cheyenne, Wyo., Hon. William T. Thurman of the U.S. Bankruptcy Court (D. Utah) in Salt Lake City and John Turner of Colorado Springs, Colo. Please click the link below to view the relevant materials.
Knocked into a Cocked Hat - Means Test Unresolved Issues and Case Law Update
The second consumer workshop, "Robber Barons, the Old Homestead and the Beloved Model T - Mortgages and Auto Loans in Chapter 7 and 13 Cases," presented the mortgage creditor's perspective on proofs of claim, permissible chapter 13 plan language, relief from stay matters and lien stripping, and auto loans in chapters 7 and 13 in today's economic climate. Panelists included Britney Beall-Eder of Castle Meinhold & Stawiarski LLC in Denver, Tara E. Gaschler of The Gaschler Law Firm in Denver and Kim R. Wilson of Snow, Christensen & Martineau in Salt Lake City. Ellen R. Welner of George T. Carlson & Associates in Englewood, Colo. moderated. Please click the link below to view the materials.
The third consumer workshop, "Riding the Circuits - Case Law Update, Eligibility, Consumer Chapter 11," provided an update on appellate decisions about consumer provisions of BAPCPA as well as a checklist of considerations when filing personal chapter 11 cases. Duane H. Gillman of Durham Jones & Pinegar in Salt Lake City moderated the panel that included Stephen E. Berken of Berken & Associates in Denver, Kenneth L. Cannon, II of Durham Jones & Pinegar in Salt Lake City and Robert Padjen of Laufer and Padjen LLC in Englewood, Colo. Please click the link below to view the materials.
Riding the Circuits - Case Law Update, Eligibility, Consumer Chapter 11
The final consumer workshop, "Beat the Devil Around the Stump - Ethically Making Adversary Proceedings Affordable," gave step-by-step recommendations on how to represent a debtor in the most efficient and cost-effective way possible. The presentation began with the initial meeting with the debtor and progressed to taking a lawsuit to trial. Panelists included Hon. Elizabeth E. Brown of the U.S. Bankruptcy Court (D. Colo.) in Denver, Peter Lucas of Appel & Lucas PC in Denver and Holly Renee Shilliday of Snell & Wilmer, LLP in Denver. Duane H. Gillman of Durham Jones & Pinegar in Salt Lake City moderated. Please click the link below to view the materials
Beat the Devil Around the Stump - Ethically Making Adversary Proceedings Affordable
Materials from the Northeast Consumer Winter Forum
The 2009 Northeast Consumer Winter Forum was held Jan. 19 at the Social Law Library in Boston. This year's CLE programming included panel discussions led by experts on current substantive issues in consumer bankruptcy cases and a litigation skills forum, featuring advice from bankruptcy judges and litigators. There were several sessions of interest to the committee.
The session, "Balloons, Bargains (Cramdowns) and Bewares: Hot Issues and Best Practices in Chapter 13," outlined procedures and techniques for dealing with chapter 13 filings. Discussion included post petition plan defaults, the chapter 13 means test and cramdowns in chapter 13. Panelists included Carolyn A. Bankowski of the Office of the Chapter 13 Trustee in Boston, Catherine V. Eastwood of Partridge, Snow & Hahn, LLP in Providence, R.I., Joseph P. Foley of the Law Offices of Joseph P. Foley LLC in Boston and Nicholas F. Ortiz of the Law Office of Nicholas Ortiz, P.C. in Boston. Please click the links below to view the relevant materials.
Mortgage Modifications Cramdowns in Chapter 13 Cases
Procedures and Techniques in Dealing with Wholly Undersecured
Chapter 13 Means Test Case Summaries
Panelists in the session "Hot Chapter 7 Issues: Breezing Your Way through Chapter 7 - Getting a Quick NDR (No-distribution report) and Defending a U.S. Trustee §707 'Finding of Abuse' Letter," discussed pre-filing considerations, preparations for a section 341 meeting and important post-meeting follow up. The panelists included John J. Aquino of Anderson Aquino LLP in Boston, Joseph B. Collins of Hendel & Collins, PC in Springfield, Mass and Gary Donahue, the Acting Assistant U.S. Trustee in Boston. Please click the link below to view the materials.
The panelists in the session "Litigation Skills Part One: The As to Zs for Trials on Lift Stay and Mortgage Claim Contests in Chapter 13," outlined how to best draft pleadings that deter litigation while anticipating any obvious challenges. Deirdre Keady of Harmon Law Offices in Boston and John S. McNicholas of Korde & Associates in Chelmsford, Mass. were the panelists. Please click the link below to view the relevant materials.
The As to Zs for Trials on Lift Stay and Mortgage Claim Contests in Chapter 13
In the session "Litigation Skills Part One: Understand Claims for Relief and Burdens, either §362(d)(1) or (d)(2)," panelists gave tips and examples of how to draft responsive pleadings to lift stay and how to respond to motions for relief relating to property. Gary W. Cruickshank of Gary W. Cruickshank, Attorney at Law in Boston and Amy Lipman-White of Stanton & Davis in Marshfield, Mass. spoke. Please click the link below to view the materials.
Understand Claims for Relief and Burdens, either §362(d)(1) or (d)(2)
The panelist for the session "Litigation Skills Part One: Preliminary Hearing," outlined general guidelines for one to follow when preparing for a hearing before the U.S. Bankruptcy Court. Mark DeGiacomo of Murtha Cullina LLP in Boston presented. Please click the link below to view Mr. DeGiacomo's materials.
The session, "Pretrial Orders and Discovery: The Trial," gave helpful information about the intricacies of trial law. The panelists discussed how to best present the elements of a case, the presentation of witnesses and how to judge relevancy of evidence. Charles R. Bennett of Hanify & King, PC in Boston and Edmond J. Ford of Ford, Weaver & McDonald, P.A. in Portsmouth, N.H presented. Please click the link below to view the materials.
Panelists for the session "Pretrial Orders and Discovery: Post-Trial Proceedings," discussed good rules to follow when dealing with the bankruptcy appellate process. Examples of how to file and what to consider were explained and further resources for appellate issues given. Patrick P. Dinardo of Sullivan & Worcester LLC in Boston and Michael J. Goldberg of Cohn, Whitesell & Goldberg LLP in Boston presented. Please click the link below to view the materials.
The session, "Litigation Skills Part Two: Let's Litigate (Trial Techniques)," covered very important litigation skills that every consumer attorney should use in trial. Topics included rules on evidence, witness competancy and testimony and admission of business and financial records. Analysts for the panel included Charles R. Bennett, Jr. of Hanify & King, PC in Boston, Hon. Henry J. Boroff, Chief Judge of the U.S. Bankruptcy Court (D. Mass.) in Boston and Hon. Joan N. Feeney of the U.S. Bankruptcy Court (D. Mass.) in Boston. Panelists included Hon. J. Michael Deasy of the U.S. Bankruptcy Court (D. N.H.) in Manchester, N.H., Christopher M. Lefebvre of Lefebvre & Lefebvre, PC in Pawtucket, R.I., Nina M. Parker of Parker & Associates in Winchester, Mass., F. Bruce Sleeper of Jensen Baird Gardner & Henry in Portland, Maine and Anne J. White of Klieman, Lyons, Schindler & Gross in Boston. Patricia Antonelli of Partridge, Snow & Hahn, LLP in Providence, R.I. moderated. Please click the link below to view the relevant materials.
Let's Litigate (Trial Techniques)
Panelists in the session "Pretrial Orders and Discovery," discussed the debtor's use of discovery to aid mortgage litigation in bankruptcy, applicable rules and considerations for compelling discovery from uncooperative parties and final pre-trial preparation. Panelists included Michael J. Goldberg of Cohn, Whitesell & Goldberg LLP in Boston and David M. Nickless of Nickless and Phillips, PC in Fitchburg, Mass. Please click the link below to view the relevant materials.
Committee Session at the 27th Annual Spring Meeting
The 27th Annual Spring Meeting will be held April 1-4 at the Gaylord National Resort and Convention Center, just south of our Nation's Capitol in National Harbor, Md. This year's conference will have a special focus on the tough policy choices facing the new administration and Congress. The Consumer Bankruptcy Committee will hold a joint session on Thursday afternoon at 4:00 p.m with the Bankruptcy Taxation Committee. Hon. Linda B. Riegle of the U.S. Bankruptcy Court (D. Nev.) in Las Vegas will moderate the panel for the session entitled "The Financial Nuts and Bolts of Representing a (Really) Small Business." Panelists will include Charles F. Rosen of the Law Offices of A. Lavar Taylor in Santa Ana, Calif. and Steven A. Schwaber of the Law Offices of Steven A. Schwaber in San Marino, Calif. Click here to register now!