Tabla de contenidos para May 2023 en ABI Journal

Coordinating Editor Aaron M. Kaufman Gray Reed & McGraw LLP; Dallas Coordinating Editor Bradley D. Pack Engelman Berger, PC Phoenix Coordinating Editor Christina Sanfelippo Cozen O’Connor Chicago Aaron Kaufman is a partner with Gray Reed & McGraw LLP in Dallas. Bradley Pack is a shareholder with Engelman Berger, PC in Phoenix. Christina Sanfelippo is an associate with Cozen O’Connor in Chicago and co-chair of ABI’s Young and New Members Committee. Failures by Debtors’ Counsel to Disclose Fee Arrangements “Will Not Be Taken Lightly” In In re Dordevic,1 counsel for the debtor disclosed that the debtor paid counsel $5,000 for services in connection with the chapter 7 case. After some discovery, the U.S. Trustee learned that counsel had actually received $21,500 from the debtor. After multiple attempts to convince debtor’s counsel…

Shane G. Ramsey Nelson Mullins Riley & Scarborough LLP Nashville, Tenn. John T. Baxter Nelson Mullins Riley & Scarborough LLP Nashville, Tenn. Shane Ramsey is a partner and vice chair of the Bankruptcy and Financial Restructuring Practice Group of Nelson Mullins Riley & Scarborough LLP in Nashville, Tenn., and a 2017 ABI “40 Under 40” honoree. John Baxter is a senior associate in the same office. Two recent decisions from the Fifth and Ninth Circuit Courts of Appeals have addressed a question that does not arise often: In a solvent-debtor chapter 11 case, is the debtor required to pay post-petition interest (or “pendency interest”) to unsecured creditors to render such claims unimpaired? If so, what is the applicable rate of interest to use? In addition, a subsequent decision from the…

Tyler Layne Holland & Knight LLP Nashville, Tenn. Morgan Allred Holland & Knight LLP Birmingham, Ala. Tyler Layne is a partner with Holland & Knight LLP in Nashville, Tenn. Morgan Allred is an associate in the firm’s Birmingham, Ala., office. A recent decision from the U.S. Bankruptcy Court for the Southern District of California in the chapter 11 case of Borrego Community Health Foundation1 exemplifies the mounting case law that is slowly eroding health care regulatory authorities’ ability to claim that their actions fall within the police and regulatory powers exception to the automatic stay. Building on the True Health decision by the U.S. Bankruptcy Court for the District of Delaware that the Centers for Medicare and Medicaid Services (CMS) were prohibited by the automatic stay from suspending payments to…

Amir Gamliel Perkins Coie LLP Los Angeles Amir Gamliel is a partner with Perkins Coie LLP in Los Angeles. He represents clients in business reorganizations, outof-court restructuring work and litigation involving complex financial transactions. Loan documents often contain provisions that require borrowers to pay an additional fee, known as a make-whole or prepayment premium, to the extent that they pay their debt in full prior to the loan’s maturity date. This additional fee is intended to “compensate the lender [for] the loss of anticipated interest” or “yield that was expected at the time they made their loans.”1 To determine whether the additional fee is collectible in bankruptcy, courts typically conduct a multi-pronged inquiry into whether it (1) has been triggered by the loan agreement, (2) is enforceable under applicable state…

James Truett is a student at Louisiana State University’s Paul M. Hebert Law Center in Baton Rouge, La. He is a junior associate for Vol. 83 of the Louisiana Law Review, a member of the Student Bar Association Safety and Sustainability Committee, and a member of the Federalist Society. A cross the U.S., various states lack uniformity in their bankruptcy homestead-exemption laws pertaining to when debtors qualify for the homestead exemption within their state. Unfortunately, this lack of uniformity frequently presents itself in the context of immigrant debtors who hold temporary visas. The problem of lack of uniformity as to whether an immigrant debtor will qualify for the homestead exemption is problematic, especially if the state has an unlimited homestead exemption. Florida is a perfect illustration of this unfortunate problem.…

Two attorneys with Spencer Fane LLP in Kansas City, Mo., have earned “Highly Regarded” honors in the IFLR1000 rankings for 2022. Scott J. Goldstein has been an ABI member since 1997. Eric L. Johnson has been an ABI member since 2001 and is a member of ABI’s Board of Directors. Ashland Bernard has joined Kramer Levin Naftalis & Frankel LLP in New York as an associate. She has been an ABI member since 2022. Kizzy Jarashow of Goodwin Procter LLP (New York) has been elected partner. She has been an ABI member since 2019. Jessica Haskell of O’Neil, Cannon, Hollman, DeJong & Laing SC (Milwaukee) has been elected chair of the Bankruptcy Section of the Milwaukee Bar Association. She has been an ABI member since 2018. Three attorneys with Brown…

2022-23 Hon. Kevin J. Carey (ret.) 2021-22 Robert P. Reynolds 2020-21 Hon. Barbara J. Houser (ret.) 2019-20 Alane A. Becket 2018-19 Edward T. Gavin 2017-18 Hon. Eugene R. Wedoff (ret.) 2016-17 Jeffrey N. Pomerantz 2015-16 James Patrick Shea 2014-15 Brian L. Shaw 2013-14 Patricia A. Redmond 2012-13 James T. Markus 2011-12 Geoffrey L. Berman 2010-11 Melissa S. Kibler 2009-10 Robert J. Keach 2008-09 John W. Ames 2007-08 Reginald W. Jackson 2006-07 Hon. Wesley W. Steen (ret.) 2005-06 John D. Penn 2004-05 Michael P. Richman 2003-04 Bettina M. Whyte 2002-03 Andrew W. Caine 2001-02 Richardo I. Kilpatrick 2000-01 Keith J. Shapiro 1999-2000 Ford Elsaesser 1998-99 Deborah D. Williamson 1997-98 Robert M. Fishman 1996-97 Robert M. Zinman 1994-96 Robin E. Phelan 1991-94 Robert E. Feidler 1989-91 Hon. William L. Norton, Jr. (ret.) 1987-89 Richard A. Gitlin 1982-87 L.E. Creel III The ABI Journal (ISDN: 1931-7522) is published 12 times per year for the price of membership by the American Bankruptcy Institute, 66 Canal Center…

Joshua W. Cox Stinson LLP Washington, D.C. Joshua Cox is Of Counsel with Stinson LLP in Washington, D.C., and represents trustees, creditors and business debtors in bankruptcy matters. Reps. Zoe Lofgren (D-Calif.) and Ken Buck (R-Colo.) introduced H.R. 1017 on Feb. 14, 2023, reigniting congressional consideration over the Bankruptcy Code’s venue requirements. Substantially similar to previous Senate and House bills dating back to as early as 2018, this recent proposed legislation, the Bankruptcy Venue Reform Act, seeks to rewrite 28 U.S.C. § 1408 to restrict corporate bankruptcy venue options by removing a debtor’s place of incorporation as an available qualification and instead requiring businesses to file in the jurisdiction of their principal place of business or where their primary nonliquid assets are located.1 Reps. Lofgren and Buck hope to both…

Gill Geldreich Tennessee Attorney General’s Office Nashville, Tenn. Gill Geldreich is deputy attorney general of the Tennessee Attorney General’s Office in Nashville, Tenn. In March 2022, the Second Circuit Court of Appeals decided in Springfield Hosp. Inc. v. Guzman that the executive decision of the Small Business Administration (SBA) to deny bankrupt debtors any eligibility for benefits provided in the Paycheck Protection Program (PPP) did not violate § 525‌(a) of the Bankruptcy Code.2 Background When the global COVID-19 pandemic arose in early 2020, Congress acted swiftly to support and stabilize the national economy. The Coronavirus Aid, Relief and Economic Security (CARES) Act established the PPP, which authorized the SBA to guarantee and eventually forgive loans to firms whose operations were negatively impacted by the pandemic.3 The CARES Act did not…

Tom Riske Carmody MacDonald, PC; St. Louis Evan Miller University of Missouri School of Law Columbia, Mo. Tom Riske is a partner in Carmody MacDonald, PC’s Financial Restructuring and Bankruptcy Practice Group in St. Louis. Evan Miller is a thirdyear student at the University of Missouri School of Law in Columbia, Mo. Bankruptcy is often a tale of “too many creditors chasing too few dollars,”1 but what happens when creditors and parties-in-interest suspect that a debtor may have the ability to make meaningful distributions to creditors, and the debtor disagrees? This question highlights the tension between the creditors and debtors in motions to convert from chapter 7 to 11. The Thirteenth Amendment and Anti-Peonage Act both forbid involuntary servitude, and several debtors have continued to cite to these laws in…

Hon. Gregory L. Taddonio U.S. Bankruptcy Court (W.D. Pa.); Pittsburgh Hon. Gregory Taddonio is chief judge of the U.S. Bankruptcy Court for the Western District of Pennsylvania in Pittsburgh. Insolvency professionals have seen it before: An enterprise faced with decreasing demand for services is forced to reduce its workforce as a cost-containment measure in an effort to effectively manage resources. Only this time, the downsizing is happening on the bankruptcy bench. Absent any fanfare, the ranks of the nation’s bankruptcy judges are steadily declining through attrition. With bankruptcy cases at their lowest levels in more than three decades and aggregate filings in 2022 equivalent to just 30 percent of the cases filed in 2012,1 courts increasingly find they cannot justify the replacement of a departing bankruptcy judge, choosing instead to…

ABI President Soneet R. Kapila KapilaMukamal, LLP Fort Lauderdale, Fla. Soneet Kapila is a founding partner of KapilaMukamal, LLP in Fort Lauderdale, Fla. He previously served as ABI’s Treasurer. I transition into the coming year following a year of accomplishments under the presidency of Hon. Kevin J. Carey (ret.) of Hogan Lovells US LLP (Philadelphia). I would be remiss not to acknowledge the mentoring that I have received from the leadership of Past ABI Presidents Hon. Barbara J. Houser (ret.) of Barbara J. Houser LLC (Santa Fe, N.M.) and Robert P. Reynolds of Reynolds, Reynolds & Little, LLC (Tuscaloosa, Ala.) through the management meetings. In addition, Kevin (he directed me to drop the “judge” part) has been instrumental in my development by sharing his leadership with me on a…

ABI Lauches New TechBytes Podcast; Two Episodes Now Available A BI’s inaugural TechBytes podcast kicked off with ABI Emerging Industries and Technology Committee Co-Chair Matthew T. Faga of Markus Williams Young & Hunsicker LLC (Denver) talking with ABI Chief Operating Officer Karim Guirguis about the evolution of his career at ABI, and the technology that propels the organization forward. Catch the episode at abi.org/podcasts/inaugural-techbytes-podcast-evolutionof-technology-and-abi-ep-245. The second installment featured ABI Emerging Industries and Technology Committee Communications Manager Tara J. Schellhorn of Riker, Danzig LLP (Morristown, N.J.) talking with Prof. Juliet M. Moringiello, associate dean for Academic Affairs at Widener University Commonwealth Law School (Harrisburg, Pa.). They discussed proposed Uniform Commercial Code (UCC) amendments aimed at bringing the UCC into the digital age by providing commercial law rules for a new category…

Collapse of SVB and Signature Bank Draw Congressional Spotlight, Criticism in March Hearings Members of Congress utilized two congressional hearings at the end of March to deliver harsh criticism of bank executives and federal regulators in the wake of the failures of both Silicon Valley Bank (SVB) and Signature Bank on March 10 following a run on their deposits. As the SVB collapse represented the second-largest bank failure in U.S. history behind the 2008 failure of Washington Mutual, the hearings were primarily focused on federal regulatory oversight of the institutions and the methods employed to quickly stem the financial fallout from the banks’ failures. The Senate Banking Committee held a hearing on March 28 titled, “Recent Bank Failures and the Federal Regulatory Response,”1 which featured testimony from Martin Gruenberg, chair…

Harold D. Israel Levenfeld Pearlstein, LLC; Chicago Sean P. Williams Levenfeld Pearlstein, LLC; Chicago Sheldon D. Stone Capstone Partners Detroit Harold Israel is a partner and Sean Williams is an associate with Levenfeld Pearlstein, LLC in Chicago. Sheldon Stone is a managing director with Capstone Partners in Detroit. In recent years, the restructuring community has been inundated with bankruptcies of health carerelated entities, including continuing-care retirement communities (CCRC).1 A CCRC, also known as a life-plan community, delivers independent living in an amenity-rich lifestyle for senior citizens, with access to onsite higher-level care should medical needs progress. This continuum of care ensures that residents have the stability of remaining in one place as they age, without the need to continually move facilities. CCRCs are usually funded by secured bond debt, monthly…

Andrew A. DePeau Robinson & Cole, LLP Hartford, Conn. Annecca H. Smith Robinson & Cole, LLP Hartford, Conn. Andrew DePeau is a partner and Annecca Smith is an associate with Robinson & Cole, LLP in Hartford, Conn. I n In re Burts Construction Inc.,1 the U.S. Bankruptcy Court for the Southern District of Texas recently addressed the applicability of a secured creditor’s lien rights in the debtor’s “accounts” under Article 9 of the Uniform Commercial Code (UCC). Specifically, the court considered whether the proceeds from a courtauthorized post-petition sale of the debtor’s real estate created an “account” that would be subject to the creditor’s pre-petition lien. Ultimately, the court concluded that under Texas UCC law, proceeds from a real estate sale are accounts that could be subject to an Article…

Jason B. Binford Ross, Smith & Binford, PC; Austin, Texas Jason Binford is a shareholder with Ross, Smith & Binford, PC in Austin, Texas. He is a former assistant attorney general of Texas and managed its Bankruptcy Regulatory Team. President Joe Biden signed the Infrastructure Investment and Jobs Act on Nov. 15, 2021. Included in the sweeping legislation were federal consumer-reporting requirements for cryptocurrency gains, and requirements for businesses to report transactions where the purchaser pays more than $10,000 worth of cryptocurrency. On March 9, 2022, President Biden signed the executive order on Ensuring Responsible Development of Digital Assets,1 noting that as of “November 2021, non-state-issued digital assets reached a combined market capitalization of $3 trillion, up from approximately $14 billion in early 2016.”2 The order boasted that the U.S.…

January (partial list) Christopher Gallutia Reynoldsburg, Ohio Cheevin Gardner Gardner Law Office Myrtle Beach, S.C. Steve Gelsosomo Cedar Financial Calabasas, Calif. Juan J. Gonzalez Atlantic Global Risk New York William Gordon King & Spalding Houston Brenton Gragg Allen Vellone Wolf Helfrich & Factor PC Denver Christopher D. Hall Hall & Mullis PC Valdosta, Ga. Michael Hanlon SC&H Capital Ellicott City, Md. Heather L. Harmon Venable LLP Miami Julie Harrison Norton Rose Fulbright US LLP Houston Nicholas Hasbun St. John’s University Jamaica, N.Y. Matthew Hauser Grant Thornton LLP Chicago Mark Healy Michael Moecker & Associates St. Johns, Fla. Paul Hennelly Grant Thornton Specialist Services Cayman Islands, Cayman Islands Cesar A. Hernandez Cesar A. Hernandez Law Office Aguadilla, Puerto Rico Kayla Holmes University of Wisconsin Middleton, Wis. Eric J. Howe Greenberg Traurig,…