Tabla de contenidos para September 2022 en ABI Journal

Christina Sanfelippo is an associate with Cozen O’Connor in Chicago and co-chair of ABI’s Young and New Members Committee. Patrick Clisham is the managing shareholder of Engelman Berger, PC in Phoenix and a member of ABI’s Board of Directors. Aaron Kaufman is a partner with Gray Reed in Dallas. Second Circuit Sets Bright-Line Rule for Automatic Stay Violations The Second Circuit Sets Bright-Line Rule for Automatic Stay Violations The Second Circuit recently established a bright-line rule for automatic stay violations: If the debtor is a named party in a proceeding or action, then the automatic stay applies to the continuation of that proceeding, and to the enforcement of an earlier judgment rendered in that proceeding. In Fogarty, the Second Circuit affirmed the district court’s opinion and held that a lender…

Brian Resnick is a partner, and Richard Steinberg and Matthew Masaro are associates, with Davis Polk & Wardwell LLP in New York. Congress granted bankruptcy courts in the U.S. broad geographical jurisdiction. For starters, Congress expressly granted bankruptcy courts in rem jurisdiction over all of a debtor’s property, “wherever located.”2 Moreover, the bankruptcy Code provides that the commencement of a chapter 11 case creates an estate comprised of all of the debtor’s property, also expressly including the phrase “wherever located.”3 In fact, it is that hook — that a debtor’s bankruptcy estate includes its property wherever located — that provides foreign debtors with the comfort to file for bankruptcy outside of a home jurisdiction.4 The U.S. bankruptcy court’s jurisdictional reach has frequently caught the attention of foreign debtors, including Alto…

Michael Traison is a partner in Cullen and Dykman LLP’s bankruptcy and Creditors’ Rights Department in New York and Chicago. Michael Kwiatkowski is Of Counsel in the firm’s Garden City, N.Y., office. Samantha Giuglianotti is a summer associate in the firm’s Garden City, N.Y., office and a student at St. John’s University School of Law. A fundamental concept of American bankruptcy law is to provide a “fresh start,” enabling businesses and individuals to have a second chance in their business or personal financial affairs. The U.S. Supreme Court has recognized “that a central purpose of the [bankruptcy] Code is to provide a procedure by which certain insolvent debtors can reorder their affairs, make peace with their creditors, and enjoy ‘a new opportunity in life with a clear field for future…

Mike Paek is the chief deputy clerk for the U.S. bankruptcy Court for the Southern District of New York in New York, an adjunct professor at Fordham University School of Law and a 2021 ABI “40 Under 40” honoree. In BFP v. Resolution Tr. Corp.,2 the U.S. Supreme Court held that the amount paid in a pre-petition mortgage foreclosure sale would conclusively establish “reasonably equivalent value” such that the sale could not be unwound post-petition as a constructive fraudulent transfer. A related issue has emerged in the wake of BFP: Does the Court’s ruling extend to pre-petition tax foreclosure sales, thereby exempting those sales from fraudulent-transfer attack? The circuits are split on this question. The Second, Third, Sixth and Seventh Circuits have ruled that tax foreclosures can be susceptible to…

REGISTER TODAY AT abiwlc.org LA QUINTA RESORT & CLUB, LA QUINTA, CA 40 UNDER 40 KEYNOTE As part of the annual celebration honoring this year’s class of “40 Under 40” honorees, Sebastian Terry will provide the Winter keynote. Known worldwide for pursuing an incredible list of 100 things that he wants to achieve before he dies, his story is surprisingly not about a bucket list. It’s about something more far-reaching: permission, choice, growth and connection. Affected by a curious mind and the death of a close friend, Terry experienced a moment in his life where he asked himself a simple question: “Am I happy?” The answer was “no,” so he decided to pen down a list of 100 things that he’d always wanted to achieve. Following his heart and armed…

Mac VerStandig is the managing partner of The VerStandig Law Firm, LLC in Las Vegas and represents private lenders in chapter 11 cases. For the eighth time in a dozen years, pending before Congress is a bill that would amend federal bankruptcy exemptions to allow individuals to retain up to $3,000 in one or more firearms.1 If passed, the provision would mark the first amendment of § 522 since 20102 and would bring the Bankruptcy Code into general accord with the already extant statutory provisions of 13 states that furnish an exemption insulating fire-arms from collections. Of the 19 jurisdictions3 that permit debtors to elect between state and federal exemptions, only Wisconsin and Texas currently afford the express opportunity for natural persons to protect their fire-arms in bankruptcy (although, as…

Michael Tackeff is an associate with Bass, Berry & Sims PLC’s Litigation and Dispute Resolution Practice Group in Nashville, Tenn. There is a new trend — a requirement imposed by courts that preference complaints under § 547 must plead diligence. In 2020, Congress added new language to 11 U.S.C. § 547‌(b).2 The amended § 547 does not add any new requirement, but merely cautions trustees to be diligent about potential defenses that defendants may hold. Particularly, it reads, “Except as provided in subsections (c) and (i) of this section, the trustee may, based on reasonable due diligence in the circumstances of the case and taking into account a party’s known or reasonably knowable affirmative defenses under subsection (c), avoid any transfer of an interest of the debtor in property.”3…

George Singer is a partner with Ballard Spahr, LLP and is a Fellow in the American College of bankruptcy, and he formerly served as an attorney on staff with the National bankruptcy Review Commission. Adam Ballinger is an attorney with Kelley Wolter & Scott, PA, a 2017 ABI “40 Under 40” honoree and an adjunct professor at the University of Minnesota School of Law. They are based in Minneapolis. The bankruptcy Code vests a trustee with the responsibility to manage the debtor’s estate and ensures that it is accomplished by charging the trustee with statutory and fiduciary duties essential to the administration of a bankruptcy case. One of the powers that Congress granted trustees is the power to avoid and recover certain transfers of the debtor’s property that, if left…

Leslie Berkoff is a partner with Moritt Hock & Hamroff LLP in New York and chairs the firm’s Dispute Resolution Practice Group. John Loughnane is a partner in the Corporate and Transactions Department of Nutter McClennen & Fish LLP in Boston and co-chair of ABI’s Commercial and Regulatory Law Committee. Confidentiality is a core component of, and integral to, the mediation process. Parties entering into mediation reasonably expect that communications and disclosures will be treated as confidential to the fullest extent permissible under applicable law. Protection and fulfillment of that expectation is thus important, as is understanding limitations on confidentiality in the mediation context. Of course, not every mediation is successful. In some small number of instances, unfortunately, participants committed to a litigation strategy may attempt to seek discovery of…

Borrowers, Lenders Await Biden Administration’s Decision on Possible Extension for Student Loan Payment Pause At press time, the pause on federal student loan payments was set to expire on Aug. 31 as President Joe Biden had not indicated whether his administration would issue another extension. Although most debt-forgive-ness advocates, policy experts and loan servicers did not expect Biden to restart federal loan payments so close to the midterm elections, the White House’s drawn-out decision-making process on this issue has led to uncertainty for both borrowers trying to plan their finances and servicers who are unsure whether they need to start notifying loanholders about coming payments.1 Biden has extended the federal student loan moratorium, which began under former President Donald Trump, four times since he took office in January 2021. The…

Adam Gallagher is a partner with Simpson Thacher & Bartlett LLP’s European Restructuring Practice in London. Ignacio Buil Aldana is a partner with Cuatrecasas, managing partner of the firm’s London office and head of its Restructuring Practice. Francisco Marzá Tornel is a senior associate with Cuatrecasas and a member of the firm’s Restructuring Practice. Authors’ Note: Chapter 11 continues to represent the gold standard when it comes to influencing other countries’ reforms of their restructuring tools. Spain’s reforms, which will presumably take effect during the third quarter of 2022, are the latest example. The reforms are brought in to comply with the overarching requirement by the European Union (EU) that all member states must upgrade their restructuring toolkits (Brexit meant that the U.K. was not so required, but the toolkit was…

Adam Herring is the associate general counsel for Consumer Practice in the Executive Office for U.S. Trustees in Washington, D.C., and a 2019 ABI “40 Under 40” honoree. Scott Bomkamp is a trial attorney in the Orlando, Fla., office of the U.S. Trustee Program. The bankruptcy Code generally prohibits the post-petition payment of a chapter 7 debtor’s attorney’s fees based on a pre-petition retainer agreement.1 As a result, the debtor must traditionally pay the entire fee for the case in full before the case is filed, unless the debtor’s attorney is willing to file the case with no recourse to compel post-petition payments.2 Many have suggested that this statutory structure presents a barrier to accessing the bankruptcy system for those who may most need relief.3 The increasingly prevalent practice of…

Lucas Schneider is a partner in Stinson LLP’s Bankruptcy and Creditors’ Rights Division in Denver, where he represents clients including lenders, utilities, insurers and equipment lessors in business bankruptcy cases. A follow-up to Mark Shaiken’s Fresh Start in his 3J series, Automatic Stay presents the next engaging endeavor of Kansas City bankruptcy attorney Josephina Jillian Jones (referred to as “3J”) as she devoutly works to protect her client, a fledging jazz club business operated by a community-minded couple who took on more challenges, and personalities, than they bargained for with their lender. The couple, the Rapinoes, parlayed their successes as upstanding real estate developers to start reinvigorating Kansas City’s historic jazz scene by opening a series of clubs in 2013. The COVID-19 pandemic, and the entailing loss of revenue, directly…

Five professionals were among those named as “America’s Rising Stars” for 2022 by Global M&A Network. Adeola Akinrinade of EisnerAmper LLP (New York) has been an ABI member since 2016. Liz N. Boydston of Polsinelli (Dallas) has been an ABI member since 2010 and is a 2020 ABI “40 Under 40” honoree. Matthew R. Brooks of Troutman Pepper Hamilton Sanders LLP (Atlanta) has been an ABI member since 2009. Swapna V. Deshpande of Ankura Consulting Group, LLC (New York) has been an ABI member since 2019 and is a 2020 ABI “40 Under 40” honoree. Evan T. Miller of Bayard, PA (Wilmington, Del.) has been an ABI member since 2010, is co-chair of ABI’s Real Estate Committee and is a 2021 ABI “40 Under 40” honoree. Stephenie Biernacki Anthony has been…

February (partial list) Paul A. Randolph Office of the U.S. Trustee St. Louis Norman S. Rosenbaum Rosen & Associates, PC New York Tirzah Roussell Bradshaw, Fowler, Proctor & Fairgrave Des Moines, Iowa Nicholas Sabatino Orrick, Herrington & Sutcliffe Reno, Nev. Rajiv Seth Deloitte Transactions Aberdeen, N.Y. Lori S. Simpson Federal Judiciary Greenbelt, Md. Shanon Slack Slack Law Group APC Irvine, Calif. Eleanor Cattron Smith Vanguard Legal Associates PC Livonia, Mich. Steffen R. Sowell Winstead PC Houston Stephanie Swanter Nova Southeastern University Fort Lauderdale, Fla. Jonathan Swinson Ziegler Diamond Law Clearwater, Fla. Mardig Taslakian Signature Bank Woodland Hills, Calif. Sandra J. Tatoian Goldenberg Heller & Antognoli, PC Edwardsville, Ill. J. Henk Taylor Warner Angle Hallam Jackson, et al. Phoenix Elyssa Harvey Tenenblatt Holland Law Group Bradenton, Fla. Tamar Terzian Terzian Law…