Restructuring Bankruptcy through Mediation: Why in Bankruptcy, Imitation is the Sincerest Form of Learning

Bankruptcy mediation is the solution to reducing the skyrocketing costs of bankruptcy litigation.  John L. Joy, a 3L at Boston College Law School, and regular contributor to this blog, explores the use of bankruptcy mediation as a successful alternative to litigation.  Mr. Joy examines the mediation process used in Enron, Lehman Brothers, and Dewey & LeBoeuf and, as such, concludes that judges, attorneys and interested parties are well advised to look to the prior implementation of successful bankruptcy mediation procedures and protocol.

To read the full article please click this link:  RESTRUCTURING BANKRUPTCY THROUGH MEDIATION ARTICLE

BEWARE THE VANISHING HOMESTEAD EXEMPTION

On August 6, 2014, Judge William Hillman issued a decision in In re Marybeth Bauer Williams, 14-10559-WCH, addressing an issue of great importance to consumer bankruptcy lawyers. Judge HIllman was presented with an issue of first impression in Massachusetts that required him to interpret Section 11 of the Massachusetts Homestead Law which provides protection for proceeds generated by the sale of homestead property. That Section provides in relevant part that if a home is sold, the proceeds received on account of the sale are entitled to the protection of the Homestead statue “for a period ending on the date on which the person benefited by the homestead either acquires another home the person intends to occupy as a principal residence or 1 year after the date on which the sale or taking occurred, whichever first occurs.” In Williams, the Chapter 7 Trustee asserted that the protection afforded homestead proceeds terminated because the proceeds were not reinvested within one year and Judge Hillman agreed with the Trustee.

The Facts – The Debtor owned a home with her spouse. The parties separated and agreed to sell their home and split the proceeds, which they did on March 29, 2013, each receiving $31,640.49. The Debtor filed Chapter 7 on February 13, 2014, within one year of the sale of the home, listing $29,000.00 in a bank account on Schedule B and claiming the funds as exempt proceeds from the sale of her home on Schedule C pursuant to the Massachusetts Homestead Statute. The one year period provided under Section 11 of the Homestead statute expired post-petition on March 29, 2014 and the Debtor had not yet re-invested the proceeds in a new home. The Chapter 7 Trustee filed an objection to the homestead exemption, asserting that the Debtor’s exemption claim had vanished by operation of law and that all the proceeds in the bank account were property of the estate available for distribution to the Debtor’s creditors.

The Ruling – The Debtor argued that her exemption was fixed on the petition date – the proceeds were exempt on the date the petition was filed and that could not change with the passage of time. The Court acknowledged the general rule that exemptions are determined when a petition is filed but noted that the scope of the exemption must be determined by state law. The Court first explored the nature and extent of the protection afforded proceeds generated by the sale of homestead property by the Massachusetts statute, stating that the “protection afforded sale proceeds is not absolute.”   The Court noted that the effect of the one year limitation in Section 11 was not to terminate the homestead exemption but rather to limit its term. The Court also found that the time limit in Section 11 did not conflict with the Bankruptcy Code. Therefore, the Court concluded that the temporal limitation in Section 11 of the Homestead Statute was enforceable and ruled that the protection afforded the Debtor’s proceeds by Section 11 had expired. However, because the Debtor’s divorce proceeding was not yet concluded, the Court continued the Trustee’s objection generally, finding that the proceeds were exempt under Section 6 of the Massachusetts Homestead Statute until the Probate proceedings were concluded and the parties rights to marital property were fixed.

Takeaway – The one year time limit in Section 11 of the homestead statute is enforceable post-petition. Proceeds generated by the sale of homestead property that are not invested in a new homestead within one year after the sale date, even if the expiry of the one year period occurs post-petition, are not exempt from creditor claims.

Contributed by:

Donald R. Lassman
Law Office of Donald R. Lassman
781-455-8400
[email protected]

Bankruptcy Section — Important 2014-2015 Dates

Kickoff Reception – Thursday, September 4, 2014 at BBA from 5:30 to 7:30 p.m.

Steering Committee Meetings (SECOND Friday of every month at 8:30 a.m.)

September 5, 2014 – Rescheduled due to BBA Programming
October 10, 2014
November 14, 2014
December 5, 2014 – Rescheduled due to BBA Programming
January 9, 2015
February 13, 2015
March 13, 2015
April 10, 2015
May 8, 2015
June  12, 2015

Bankruptcy Section Brown Bag Dates (SECOND Tuesday of every month at noon).

September 9, 2014
October 14, 2014
November 4, 2014  – Rescheduled due to Veteran’s Day
December 9, 2014
January 13, 2015
February 10, 2015
March 10, 2015
April 14, 2015
May 12, 2015
June 9, 2015

25th Annual Bankruptcy Bench Meets Bar Conference – Omni Parker House Thursday, May 14, 2015

Welcome from the Section Co-Chairs

Welcome to the Bankruptcy Section!

Please join us on Thursday September 4, 2014 from 5:30 to 7:30 pm for the BBA Bankruptcy Section’s annual “kick-off” event. We are pleased that two distinguished chapter 7 trustees, Mark DeGiacomo of Murtha Cullina and Lynne Riley of Casner & Edwards, have agreed to share brief remarks about recent experiences briefing and arguing issues before the US Supreme Court. In addition, we will provide a brief overview of the coming year and, of course, allow plenty of time for networking.

The Section’s long-standing commitment to monthly “Brown Bag” lunches will continue this year – offering legal education seminars, training sessions and other social get-togethers covering timely consumer and business bankruptcy topics as well as strategic practice pointers for all of our members. The first Brown Bag lunch will be held on Tuesday, September 9th at the BBA, 16 Beacon Street in Boston.   A complete list of dates will be posted shortly.

The Bankruptcy Section is a forum for discussion and exchange of ideas, for professional training, for volunteerism and for dialogue among the bankruptcy bar and bench, seeking the improvement of the profession as a whole. The Bankruptcy Section is made up of many committees, each lead by volunteer co-chairs representing the diversity of bankruptcy practice in Greater Boston. In addition, the Section has appointed a number of member-liaisons to work with other sections of the BBA.

The Bankruptcy Section maintains a website with information about the Section and its upcoming programs, bankruptcy related news and information about our members and their achievements. See http://www.bostonbar.org/sections/bankruptcy-law.   We invite you to consult the site often, join the distribution list for the blog which is accessible on the site and contribute your news and insights with us.

Once again, welcome, and we hope you will become involved with the Bankruptcy Section and the BBA. If you would like to participate or learn more about Bankruptcy Section activities, please contact us.

Sincerely,

John & Adam

John G. Loughnane                              Adam J. Ruttenberg

Nutter McClennen & Fish LLP             Looney & Grossman, LLP

VLP PRO BONO HONOR ROLL

The Volunteer Lawyers Project of the Boston Bar Association (VLP) provides free civil legal assistance to low-income residents of Greater Boston, primarily through the pro bono services of private attorneys.  With your help, VLP makes access to justice possible for people who cannot afford a lawyer.

The following attorneys are commended for accepting a bankruptcy case from VLP during the months of May and June:

David Baker

Eric Blythe

Peter Fellman

Scott Hubbell

Marques Lipton

Henry Mitcheson

Joanna Morris

Kristofer Munroe

Nina Parker

Steven  Pohl

Adrienne Walker

Kevin Walsh

Neil Warrenbrand

Benjamin Zalman

 

B.A.P. to Hold Oral Argument on July 21, 2014

On Monday, July 21, 2014, the U.S. Bankruptcy Appellate Panel for the First Circuit (Judges Lamoutte, Deasy, and Kornreich) will hear oral arguments in several cases. The hearings will be conducted in Courtroom 5 (U.S. Tax Court), 12th floor at the McCormack Post Office and Court House, 5 Post Office Square, Boston, MA. The hearings commence at 9:30 a.m. and are open to the public. Please be courteous to the Panel and those appearing before the Panel and arrive early. To see the Scheduling Order, please go to the BAP’s website at www.bap1.uscourts.gov.

The cases and issues on appeal are as follows:

MB 13-059 IN RE: Robert N. Lupo, Debtor

Jacobs v. Collins, Chapter 7 Trustee

Issue: Whether the bankruptcy court erred in denying creditor’s motion to sue chapter 7 trustee.

MB 13-061 IN RE: Jonathan W. Green, Debtor

Hunnicutt v. Green

Issue: Whether the bankruptcy court erred in dismissing creditor’s complaint seeking revocation of discharge.

MB 14-013, IN RE: Harborhouse of Gloucester, LLC, Debtor

MB 14-014 Desmond, Chapter 7 Trustee v. Raymond Green, Inc. as Trustee of Raymond C. Green Trust

Issue: Whether bankruptcy court erred in granting in part and denying in part motions for summary judgment in the chapter 7 trustee’s adversary proceeding objecting to the validity, extent, and priority of claimholder.

 

BBA’s Ethics Opinion Cited Favorably in New Jersey Supreme Court Decision Approving Volunteer Lawyer Program

On July 2, 2014, the New Jersey Supreme Court ruled that the New Jersey Volunteer Lawyers for Justice pro bono bankruptcy program does not present a conflict of interest under the Rules of Professional Conduct. Citing the BBA’s Ethics Opinion and the VLP Pro Bono Program with approval, the New Jersey Supreme Court ruled that a volunteer attorney can represent a low-income debtor in a no-asset Chapter 7 bankruptcy matter even if the attorney’s firm represents one or more of the debtor’s creditors in unrelated matters.

A copy of the New Jersey Supreme Court decision is linked here: NJ Supreme Court Decision (BBA Post) (S0405787x7A7A4)

Upcoming Diversity & Inclusion Program at the BBA – Let’s Get Real 2014: Surviving and Succeeding as a Diverse Attorney in Boston

On Wednesday, June 18 from 5:30 p.m. to 7:30 p.m., the BBA’s Diversity & Inclusion and New Lawyers Sections will be presenting “Let’s Get Real 2014: Surviving and Succeeding as a Diverse Attorney in Boston.”  All attorneys who are interested in the topic of the diversity & inclusion are welcome to attend.  This program is a great opportunity to discuss Boston’s legal community and the questions and topics that are on the minds of Boston’s diverse attorneys. 

Networking will take place from 5:30 p.m. to 6:00 p.m. and the panel will begin at 6:00 p.m.

Please click on the link to RSVP and for further event details:

https://www.bostonbar.org/membership/events/event-details?ID=15606

Contributed by:

Leslie F. Su
Minerva Law, P.C.
300 Brickstone Square, Suite 201
Andover, Massachusetts 01810
Tel: (978) 494-4695
email: [email protected]
website: minervalawpc.com

Nina Parker and ABI Consumer Committee Recognized at Annual Meeting

Congratulations to Nina Parker and the Consumer Committee of the American Bankruptcy Institute.  At the Annual ABI Spring Meeting in Washington D.C., the Consumer Committee was awarded the ABI Committee of the Year.  As co-chair of the Consumer Committee, Nina Parker accepted the award and was recognized for her outstanding efforts.

Brown Bag Lunch – New Fee Guidelines

On May 2, 1013, the Bankruptcy Law Section of the BBA sponsored a brown bag lunch entitled “The New Fee Guidelines – What They Mean, What They Do and How to Comply.”  Panelists, William K. Harrington and John P. Fitzgerald, explained the meaning and practical consequences of the new fee guidelines (Guidelines for Reviewing Applications for Compensation and Reimbursement of Expenses Filed Under United States Code by Attorneys in Larger Chapter 11 Cases) promulgated by the United States Trustee that became effective November 1, 2013.  The discussion included an interesting background perspective on the process of implementing the new guidelines and the intended goals.  The panelists offered an in-depth discussion of the significant changes and provided a handout for easy reference.  A copy of the handout can be found by clicking the following link: UST