Third Circuit Widens the Circuit Split on Late-Filed Tax Returns

The Court of Appeals for the Third Circuit has joined the Fourth, Sixth, Seventh, Eighth, and Eleventh Circuits in employing a four-part test to determine whether debt associated with a late-filed tax return is dischargeable under section 523(a) of the Bankruptcy Code. This differs from the First, Fifth, and Tenth Circuits, which have held that a tax return that is filed late is not a “return” under section 523(a) of the Bankruptcy Code. As such, in those circuits, the debt associated with late-filed returns is not dischargeable in bankruptcy—even if they are only one day late.   

In Giacchi, the debtor filed his tax returns (Form 1040) late for years 2000–2002. The Court of Appeals for the Third Circuit, rather than using the one-day rule, applied a four-part analysis called the “Beard Test” in order to determine whether the returns qualified as “returns” under section 523(a). In order to qualify as a return under the Beard Test: (1) it must purport to be a return, (2) it must be executed under penalty of perjury, (3) it must contain sufficient data to allow calculation of tax, and (4) it must represent an honest and reasonable attempt to satisfy the requirements of the tax law. Only the fourth factor was at issue: whether the filing represents an honest and reasonable attempt to satisfy the requirements of tax law. The Circuit Court found that the tax debts were not dischargeable as the debtor, by filing the returns late with no real justification, did not make an honest and reasonable effort to comply with the tax law. 

This circuit split will not be resolved in the near future. In February of this year, the U.S. Supreme Court denied certiorari in a case on appeal from the Ninth Circuit on the tax return issue.   

For a more detailed discussion on this issue, please see the article authored by Anthony J. Manhart and Bodie B. Colwell: The Bankruptcy Code’s Return Policy: Another Hanging Paragraph Hangs Consumers Out to Dry. The article discusses recent cases, including: In re Fahey, 779 F.3d 1 (1st Cir. 2015), In re Nilsen, 542 B.R. 640 (Bankr. D. Mass. 2015) and Berry v. Massachusetts Department of Revenue, Case No. 15-41218-CJP (Bankr. D. Mass. June 30, 2016).

Bodie B. Colwell practices as an associate with Preti Flaherty's Bankruptcy, Creditors’ Rights and Business Restructuring group from the Portland office. She focuses on supporting bankruptcy, insolvency, and creditors’ rights clients.

Anticipated Amendments to Bankruptcy Rules Require Changes to Claims Filing Procedures

The US Supreme Court recently authorized a number of significant changes to the procedural rules applicable to bankruptcy proceedings. Absent Congressional intervention, which appears unlikely, the new rules will take effect on December 1, 2017. The amendments will most impact creditors dealing with consumer debtors in Chapter 13 cases, creating new deadlines for filing proofs of claim and allowing debtors to prosecute challenges to secured creditor claims through the plan submission and confirmation process. Some of the more significant changes are:

• Adoption of an “official” Chapter 13 Plan. The new rules provide for an “official,” standardized Chapter 13 Plan. Under amended Rule 3015(c), debtors will need to use the “official” form unless their jurisdiction has adopted its own local form, which must itself include the information outlined in Rule 3015.1. Among other things, Rule 3015.1 will require local form Chapter 13 Plans to include a paragraph requiring the debtor to highlighting any nonstandard plan provisions, provisions that limit any secured creditor’s claim to the value of its collateral, or provisions that seek to avoid a lien on the debtor’s real or personal property.
• Required Notice for Chapter 13 Confirmation Hearings and Objections to Confirmation. Rule 2002 has been amended to establish definitive notice provisions in Chapter 13 cases. A new subsection (2002(a)(9)) will require the debtor to provide creditors with at least 21 days’ notice of the deadline for objecting to Chapter 13 Plans. Another new subsection (2002)(b))(3)) calls for 28 days’ notice of the confirmation hearing in Chapter 13 cases.
• Proofs of Claim. The amendments will also alter the procedures for filing proofs of claim. Specifically:

• Rule 3002 is amended to clarify that secured creditors must file proofs of claim to have their claims allowed. (However, the Rule makes clear that a secured creditor’s claim will not be rendered void if it chooses not to file a proof of claim.)
• Rule 3002(c) makes changes to the periods for calculating the claims bar deadline in Chapter 7 (liquidation), 12 (family farmer), and 13 (individual debt readjustment) cases. For those types of cases, the deadline for filing a proof of claim will be reduced. Whereas the current Rule requires proofs of claim to be filed within 90 days after the initial §341 meeting of creditors, the revised Rule will require creditors to file their proofs of claim within seventy (70) days after the bankruptcy petition filing date.
• When a case is converted to a case under Chapter 12 or 13, the new, 70-day period for filing proofs of claim will run from the date of the court’s order converting the case. If a case is converted to a case under Chapter 7, a new time period for filing claims will begin running.
• Amended Rule 3002(c)(6) will allow the Bankruptcy Court to extend any proof of claim deadline if the debtor has failed to file a complete list of his/her creditors.
• New Rule 3002(c))(7) establishes a 2-stage deadline for filing mortgage proofs of claim where the claim is secured by an interest in the debtor’s principal residence.

• Claims Objections. Rule 3012, as amended, provides that any party-in-interest may seek a determination of the amount and priority of any claim. Moreover, in a departure from current practice, the amended Rule will permit plan proponents in Chapter 12 and Chapter 13 cases to include objections to the amount and/or priority of claims in the body of the Plan. Rule 3007, as amended, will require that a party objecting to a proof of claim must serve the affected creditor by first-class mail directed to the name and address indicated on the filed proof of claim form. Under amended Rule 3007, the Bankruptcy Court will no longer be required to schedule or hold a hearing on every claim objection.
• Objections to Liens or Transfers of Exempt Property.  Consistent with revised Rule 3012, amended Rule 4003(d) will allow a request to avoid a lien or other transfer of the debtor’s exempt property to be made either by motion or in the debtor’s Chapter 13 Plan.

Again, these changes to the Bankruptcy Rules are scheduled to take effect on December 1, 2017. Creditors should become familiar with the new requirements and begin developing internal procedures as necessary to ensure compliance. 

Landlords Who Violate Bankruptcy Stay May be Ordered to Pay Emotional Distress Damages and Punitive Damages

Landlords should use caution in attempts to take possession of leased space once a tenant files bankruptcy.  Recently, in Lansaw v. Zokaites, the Third Circuit Court of Appeals upheld an order of the Bankruptcy Court for the Western District of Pennsylvania awarding of emotional distress damages and punitive damages against a landlord who violated the automatic stay. 

Under section 362(a) of the Bankruptcy Code, the filing of a bankruptcy petition operates as a stay against debt collection activities by creditors.  For violations of the stay, individual debtors can recover actual damages, including costs and attorneys’ fees, and punitive damages.  

In Lansaw v. Zokaites, the debtors operated a daycare in leased space.  The court found that the landlord violated the automatic stay on three separate occasions.

The first violation consisted of the landlord and his attorney visiting the daycare during business hours to take photographs of the debtors’ personal property.  During that visit, the landlord intimidated one of the debtors and backed her against a wall.

For the second violation, the landlord visited the daycare after business hours using his own key to enter and padlocked and chained the doors.  The landlord left an “interim standstill agreement” on the door, which provided that the landlord would remove the chains if the debtors agreed to certain conditions, including reaffirming the lease with the landlord.

For the third violation, the debtors had found a new property to lease but still had property in the old leasehold.  The landlord directed his attorney to send a letter to the debtors’ new landlord, demanding that the new landlord terminate a lease with the debtors, and stated that, if the new lease was not terminated, the landlord would file a complaint against the new landlord.  The landlord’s attorney also called the new landlord multiple times in an attempt to have the new lease terminated. 

For these violations of the automatic stay, the debtors were awarded $7,500 for emotional distress, $2,600 in legal fees, and $40,000 in punitive damages from the landlord. 

In the opinion, the Third Circuit Court of Appeals found that the bankruptcy code authorizes the award of emotional distress damages as a form of “actual damages,” and that the debtors presented sufficient evidence to support such a claim.  Additionally, the Court found that the debtors were properly awarded punitive damages. 

When a tenant files bankruptcy, a landlord should be extremely cautious in attempts to collect back rent, take possession of the property, or evict a tenant.  Lansaw v. Zokaites was an extreme case; however, violations of the automatic stay may arise from typical landlord activities, such as sending certain notices and applying a setoff against a security deposit.

Bodie B. Colwell practices as an associate with Preti Flaherty's Bankruptcy, Creditors’ Rights and Business Restructuring group from the Portland office. She focuses on supporting bankruptcy, insolvency, and creditors’ rights clients.

Supreme Court Rules: Even Gifts Must Play by the (Absolute Priority) Rule

Last week, the Supreme Court handed down its opinion in Czyzewski v.Jevic Holding Corp., stating that non-consensual, priority violating, structured dismissals are not allowed under the Bankruptcy Code.  In a well-reasoned opinion, the Court gave a simple answer to what has become a complex issue, especially in large Chapter 11 cases where the path out of bankruptcy is not always clear: the absolute priority rule is absolute (unless the affected parties agree otherwise).

Czyzeweski v. Jevic Holding Corp. Case

The Jevic case involved the demise of a trucking company. As it closed down and just before seeking bankruptcy protection, the debtor fired most of its employees, including a group of truck drivers (the “Petitioners”). After company’s Chapter 11 filing, the Petitioners sued the debtor and Sun Capital Partners (who had acquired Jevic in a leveraged buyout) for violation of the Worker Adjustment and Retraining Notification Acts (“WARN”).  The Petitioners won a $12.4 million summary judgment award against the debtor on their WARN claims, entitling them to (among other things) an approximately $8.3 million priority wage claim against Jevic’s estate. The Petitioners also pursued similar WARN claims against Sun outside the bankruptcy proceeding.

Separately, the unsecured creditors’ committee pursued litigation against Sun and CIT Group, a secured creditor with which Sun had refinanced the debt incurred in Jevic’s LBO, for misdeeds in effectuating the leveraged buyout, fraudulent transfers, and preferential transfers. Eventually, Sun and CIT settled with the creditors’ committee. The deal provided that the estate would receive funds for administrative and some priority tax claims, with the remainder going to general unsecured creditors—skipping the priority wage claims of the Petitioners, and violating the priorities of the Bankruptcy Code (Sun admitted it did not want to fund the Petitioners’ WARN litigation against it).  The Bankruptcy Court approved the settlement and the District Court and Third Circuit Court of Appeals affirmed the decision.  The Supreme Court reversed and remanded, ruling that a bankruptcy court could not approve a structured dismissal that violated the priorities of the Bankruptcy Code.

Facing Bankruptcy

Jevic, like many Chapter 11 debtors, was faced with the difficult decision of how to get out of bankruptcy. The estate was administratively insolvent; it had $1.7 million in cash, which was not sufficient to pay administrative claimants in full, all subject to Sun’s lien. Unable to confirm a plan, Jevic was left with two options: conversion to a case under Chapter 7 or dismissal. Conversion would have resulted in the senior secured creditors receiving everything in the liquidation. If successful, a structured dismissal could provide some of the benefits of a plan—releases for the debtor’s management and professionals and, through a mechanism commonly described as “gifting” by a secured party of a portion of its collateral, payments to junior creditors who would otherwise receive nothing in a liquidation scenario.

At the tail end of a bankruptcy case, an administratively insolvent debtor such as Jevic is often at the mercy of its secured creditor, who holds a lien over all or substantially all of the debtor’s assets. Absent a “gift” from the secured creditor, the debtor often cannot offer any incentive to induce parties in interest to settle their disputes with the debtor (or pay its professionals). In Jevic, that gift came with strings attached: Sun would not permit payments to priority claimants who were also litigating against it. The Court cut one of those strings. Under Jevic, the party funding an end-of-case structured settlement cannot dictate terms that violate the absolute priority rule unless the adversely affected classes consent.

Consensual Dismissal

However, the Court left open the possibility for consensual dismissals that violate the priority scheme of the Bankruptcy Code. In addition, the Court specifically did not rule on the permissibility of other priority violating distributions, such as “first-day” pre-petition wage and critical vendor orders and “roll-ups” in debtor-in-possession financing, that allow certain prepetition creditors to be paid first on their prepetition claims in the early days of a bankruptcy case. Pointing to the policy rationale of preserving the debtor as a going concern and promoting the possibility of a confirmable plan, the Court did not address the viability of mid-case structured settlements that violate the Bankruptcy Code’s priority scheme but do not resolve the case. Neither of these rationales applies to an end-of-case settlement with an administratively insolvent debtor.

In addition, the Jevic case may provide additional leverage for taxing authorities and other priority claimholders in plan and/or dismissal negotiations, knowing that debtors (and their secured creditors) have one less arrow in their quiver.  And it remains to be seen whether secured parties will push for conversion to Chapter 7 of an administratively insolvent debtor when they can no longer dictate the terms of a structured dismissal to the detriment of priority claimants. Restructuring professionals should plan accordingly.

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For any assistance with bankruptcy and restructuring, contact Preti Flaherty’s Bankruptcy, Creditors’ Rights, and Restructuring Practice Group.

Rue Toland practices as an associate with Preti Flaherty's Business Law and Creditors' Rights Groups from the firm's Concord, NH office. Rue provides counsel on transactional and financing matters, secured and unsecured lending, out-of-court loan workouts, bankruptcy proceedings, and other distress situations.

Massachusetts Bankruptcy Court Finds that Debtor Can Claim an Exemption in Her Home Even if She Does Not Live There

In a recent decision, the bankruptcy court for the District of Massachusetts found that a debtor who had not lived at a property for over 30 years could still claim an exemption in that property, even though her principal residence was elsewhere.

The debtor owned a one-half remainder interest in property occupied by her elderly parents. On her Schedule C, she claimed an exemption in the property in the whole value of her interest, $14,945.29 under § 522(I) of the Bankruptcy Code. The Chapter 7 Trustee objected to the debtor’s claim of exemption and argued that because neither the debtor nor her dependents resided at the property, she could not properly claim an exemption.

At hearing, the Debtor testified that she had not lived in the property for over 30 years and that her parents lived there. The debtor further testified that she lived in another town because of a medical condition and that it was her intention to move to and live at the property permanently when her medical condition permitted.

Noting that there are several cases holding that a debtor can have more than one “residence” for federal exemption purposes, the bankruptcy court found that the debtor’s intent to eventually live at the property, along with her testimony that she was often there to care for her parents and regularly stayed overnight at the property, was there to care for her parents and kept items at the property, was sufficient for the debtor to claim an exemption in the property.

This case is similar to In re Denker-Youngs, which was discussed on this blog last summer. In that case, the bankruptcy court for the Eastern District of New York found that a debtor who was ordered to vacate his home could still claim an exemption in the property. Like that case, the bankruptcy court for the District of Massachusetts gave weight to the debtor’s intent and her testimony that she intended to return to the property as soon as she was able.

Bodie B. Colwell practices as an associate with Preti Flaherty's Bankruptcy, Creditors’ Rights and Business Restructuring group from the Portland office. She focuses on supporting bankruptcy, insolvency, and creditors’ rights clients.

Exploring the Rule 3002.1 Minefield

In September 2016, the U.S. Bankruptcy Court for the District of Vermont ordered a mortgage servicer to pay a $375,000 sanction to a nonprofit legal aid organization for failing to comply with Rule 3002.1 of the Federal Rules of Bankruptcy Procedure. This appears to be the first time that a bankruptcy court has awarded sanctions after a violation of Rule 3002.1. If this decision—In re Gravel, 556 B.R. 561 (Bankr. D. Vt. 2016)—serves as a guidepost to other courts that encounter similar violations of this rule in the future, then secured creditors should pay attention. The price to pay for noncompliance may be considerable.

Until this decision, no court had considered what relief is “appropriate” for failure to comply with Rule 3002.1. In an article published recently in ABI Journal (subscription required) that I co-wrote with my colleague, Matt Libby, we explore the implications how this rule presents a number of potential pitfalls for the unwary creditor (despite its well-intentioned rationale), and we describe the creditor’s conduct in In re Gravel as well as the lessons to be learned from this case.

In sum, counsel representing mortgage servicers in chapter 13 cases must diligently advise clients on the importance of complying with Bankruptcy Rule 3002.1. Failure to do so will risk being subject to significant sanctions.

Anthony Manhart is a Partner at Preti Flaherty and serves as Co-Chair of the Bankruptcy, Creditors' Rights and Restructuring Group. His practice focuses on bankruptcy and creditors' and debtors' rights, representation of Chapter 7 trustees and various parties in formal insolvency and collection proceedings and out-of-court workouts. He also serves on the Panel of Chapter 7 Trustees for the District of Maine.

Supreme Court Hears Argument on Stale Claims and FDCPA

As reported on our blog (here and here), the Eleventh Circuit ruled that filing a time barred proof of claim does not violate the Fair Debt Collection Practices Act, an issue which has divided courts and Courts of Appeals. The Supreme Court heard argument on this issue on January 17, 2017. The transcript can be found here.

The advocates faced some tough question about the issues presented as well as the spirit and purpose of the Bankruptcy Code itself. This is bound to be an interesting opinion. We will keep you posted.

For any assistance with filing claims in bankruptcy cases, contact Preti Flaherty’s Bankruptcy, Creditors’ Rights, and Restructuring Practice Group.

Anthony Manhart is a Partner at Preti Flaherty and serves as Co-Chair of the Bankruptcy, Creditors' Rights and Restructuring Group. His practice focuses on bankruptcy and creditors' and debtors' rights, representation of Chapter 7 trustees and various parties in formal insolvency and collection proceedings and out-of-court workouts. He also serves on the Panel of Chapter 7 Trustees for the District of Maine.

Trustee Lacks Standing to Assert Legal Malpractice Claims on Behalf of Debtors

The Massachusetts Bankruptcy Court (Panos, J.) dismissed an adversarial proceeding complaint brought against debtor’s counsel which alleged legal malpractice. The trustee alleged that debtor’s counsel committed malpractice and asserted that the legal malpractice claims are assets of the bankruptcy estate. Debtor’s counsel moved to dismiss. After a hearing, the Court granted the motion to dismiss, ruling that the alleged malpractice claims were not property of the bankruptcy estate and that the trustee therefore lacked standing to assert them.

In the adversarial complaint, the trustee alleged that because debtor’s counsel failed to instruct his client to record a declaration of homestead, the debtor was only able to claim a Massachusetts homestead exemption in the amount of $125,000. Had a declaration of homestead been recorded prepetition, the debtor would have been able to claim a $500,000 exemption, which would have immunized him from a judgment obtained by the bankruptcy trustee. The trustee further claimed that by converting the case from a chapter 13 to a chapter 7 bankruptcy rather than having the matter dismissed and re-filed, the debtor missed an opportunity to have additional debt discharged.

In addressing the issue of the homestead claim, the Court ruled that the trustee lacked standing to bring his claim where the claims are not property of the estate but rather post-petition property. The Court noted that Section 541(a)(1) provides that commencing a bankruptcy case “creates an estate [that includes] all legal or equitable interests of the debtor in property as of the commencement of the case." Therefore, until the debtor filed his chapter 13 petition, no purported malpractice had yet accrued where no harm had yet been suffered by the failure to record the declaration of homestead. Accordingly, the claim did not exist until after the estate was created and therefore was post-petition property belonging to the debtor.

Moving on to the claim arising from the conversion of the case from a chapter 13 to a chapter 7 bankruptcy case, the Court similarly held that the claim was also not the property of the estate. Here, the Court found that the negligence which occurred during the pendency of the bankruptcy case logically could not have existed before the bankruptcy case commenced. Therefore, the earliest this claim could have accrued was upon conversion. Consequently, the Court held that “this was not a claim rooted in any way in the pre-bankruptcy past” and that the harmed caused by the malpractice “is entangled with [the debtor’s] ability to make a fresh start.” The Court therefore concluded that the trustee lacked standing to pursue the legal malpractice claim.

This case should remind practitioners to carefully consider the issue of standing whenever analyzing an adversarial proceeding claim. It also serves as a good reminder to all counsel that homeowners should record a declaration of homestead to be eligible take advantage of the heightened exemption amount available under Massachusetts law if things go south.

Matthew Libby is an associate in Preti Flaherty's Litigation Group, practicing from the firm's Boston office. He represents clients in commercial litigation and bankruptcy matters.

Eleventh Circuit Decides Surrender Means Just That

In the recent opinion of In re Failla, the Eleventh Circuit ruled that when a debtor indicates in a Chapter 7 bankruptcy schedules case that she or he intends to “surrender” property subject to a secured claim, the debtor can’t renege on that commitment. The Court of Appeals therefore affirmed the bankruptcy court’s order requiring the debtors to cease opposition to a secured creditor’s subsequent foreclosure of the surrendered property.

The Faillas indicated in their Chapter 7 Statement of Intention that they intended to surrender their residence, which was worth less than the mortgage loan it secured. The Chapter 7 trustee then abandoned the property, and the mortgage lender commenced foreclosure proceedings. The Faillas, who were still living in the house, filed state court pleadings contesting the foreclosure. Rather than simply seeking bankruptcy stay relief and proceeding in state court, the mortgage lender sought relief in the bankruptcy court, asserting that the debtors had surrendered their rights to the property, and had no right to contest the foreclosure. The bankruptcy court agreed and entered an order directing the Faillas to cease opposition to the foreclosure, failing which the court would revoke their Chapter 7 discharge.

The district court affirmed the bankruptcy court’s ruling, as did the Court of Appeals. Taking a dim view of the Debtors’ behavior, the Court reasoned that a § 521 “surrender” was a relinquishment of the debtor’s rights in the property to the bankruptcy trustee and the creditor, and that if the trustee then abandons the property, the surrendering debtor must “get out of the creditor’s way.” Noting that a debtor should not be able to “undo his surrender” by opposing the foreclosure in state court after having obtained a discharge in bankruptcy, the Court stated that “[i]n bankruptcy, as in life, a person does not get to have his cake and eat it too.”

For any assistance with secured claims in bankruptcy cases, contact Preti Flaherty’s Bankruptcy, Creditors’ Rights, and Restructuring Practice Group.

Supreme Court to Rule on Stale Claims and FDCPA

As reported on our blog, the Eleventh Circuit ruled that filing a time barred proof of claim does not violate the Fair Debt Collection Practices Act, an issue which has divided courts and Courts of Appeals. The Supreme Court has granted certiorari in the case of Midland Funding LLC v. Johnson. (See here.)  Presumably, this will resolve the circuit split on the issue and provide guidance for creditors and debtors on this tough issue.

Stay tuned. We will report back after the Supreme Court rules.

For any assistance with filing claims in bankruptcy cases, contact Preti Flaherty’s Bankruptcy, Creditors’ Rights, and Restructuring Practice Group.

Bankruptcy is Romantic: Maine Bankruptcy Court Holds That a Debtor’s Interest in Her Engagement Ring is Exempt

Recently, the Bankruptcy Court for the District of Maine held that a debtor’s interest in an engagement ring is exempt under Maine law. In re Cynthia A. Chaney, Case No. 15-20725. In that case, the debtor claimed the full value of her wedding and engagement rings, valued at $5,200, as exempt under Maine law. The Chapter 7 Trustee in the case objected, arguing that Maine law allows an exemption in jewelry up to a maximum value of $750. 

In Maine, a debtor may claim an exemption in the debtor’s “aggregate interest, not to exceed $750 in value, in jewelry primarily for personal family, or household use of the debtor or a dependent of the debtor and the debtor’s interest in a wedding ring and an engagement ring.” 14 M.R.S. §4422(4). The Trustee argued, based on legislative history and his reading of the surrounding provisions, that this language limited any exemption in any jewelry to $750 total, including wedding and engagement rings. The debtor argued that the statute created two categories of jewelry: personal jewelry with an aggregate value of $750, and a wedding ring and an engagement ring of unlimited value. 

The Bankruptcy Court found the language of the statute to be unambiguous: 

It allows debtors to protect two separate types of jewelry: (1) personal jewelry and (2) two rings connected to the institution of marriage. . . . The first category has a limit: debtors can exempt up to $750 of jewelry held primarily for personal family or household use. The second group has no limit: debtors are permitted to protect their full interest in a wedding ring and an engagement ring.

From the opinion, it is clear that in Maine a debtor can claim an exemption in two marital rings of unlimited value. Other New England states have different exemption limits for jewelry. For example, Massachusetts allows the debtor to elect either the Massachusetts state exemptions or the federal exemptions. Only the federal exemption has an exemption for jewelry—up to $1,600 in value (value adjusted on April 1, 2016). In New Hampshire, a debtor may exempt jewelry up to a value of $500. NH RSA 511:2. In New Hampshire, a debtor can also apply his or her “wildcard” exemption to protect jewelry with value above the $500 exemption.

Court Finds that Parents Convicted of Ponzi Scheme Received Value from Tuition Payments

Do parents receive something of value when they pay for their child to attend college? The Massachusetts Bankruptcy Court (Hoffman, J.) recently considered this exact question in DeGiamcomo v. Sacred Heart University, Inc., AP No. 15-01126 (August 10, 2016). In this case, after the debtor’s parents were convicted of investment fraud for operating a Ponzi scheme, a Chapter 7 trustee attempted to avoid and recover over $60,0000 in tuition payments made to an area college as fraudulent transfers under Bankruptcy Code § 548(a)(1)(B) and the Massachusetts Uniform Fraudulent Transfer Act, Mass. Gen. Laws ch. 109A. 

The trustee asserted that the “Ponzi scheme presumption” should have been applied, where, as the trustee claimed, the parents were insolvent at the time of the transfers and “received no reasonably equivalent value” from the college. The Ponzi scheme presumption is applicable where “the existence of a Ponzi scheme establishes that transfers were made with the intent to hinder, delay and defraud creditors.” Picard v. Merkin (In re Bernard L. Madoff Inv. Sec., LLC), 440 B.R. 243, 255 (Bankr. S.D.N.Y. 2010). The Court, however, rejected the trustee’s argument and applied a more narrow view of the presumption. The Court held that only transfers made in furtherance of the Ponzi scheme are subject to the presumption of fraudulent intent. Otherwise, the Court reasoned, funds spent buying groceries, payment medical bills, or supporting children would be subject to a trustee’s claw back.

Turning to the question of whether or not the debtor parents received any “value” for making tuition payments on behalf of their child, the Court noted that other jurisdictions have split on the issue: some holding that there is a “societal expectation that parents will assist” with college payments and denying attempts at a claw back, while other jurisdictions have held that tuition payments were avoidable where the parents had no legal obligation to pay the tuition. Here, the Court determined that the debtor parents did indeed receive something of value for the tuition payments other than mere “ethereal or emotional rewards.” The Court held that “[a] parent can reasonably assume that paying for a child to obtain an undergraduate degree will enhance the financial well-being of the child, which in turn will confer an economic benefit on the parent.” This “quid pro quo” was enough for the Court to deny the trustee’s attempt to claw back the tuition payments and enter summary judgment in favor of the college. 

As an interesting side note to the case, after the trustee appealed the ruling, the Bankruptcy Court Judge Hoffman filed a statement requesting direct appeal to the First Circuit. Assuming the First Circuit takes the appeal, we will see if the First Circuit agrees with the Bankruptcy Court’s analysis.

Divided Court Rules Proof of Claim for Stale Debt Does Not Violate FDCPA

With its recent opinion in In re Eric Dubois, Case No. 15-1945, the Fourth Circuit has joined Second, Third, and Seventh Circuits in ruling that proofs of claim filed for stale debt does not violate the Fair Debt Collection Practices Act.

Two debtors in separate bankruptcy cases filed Adversary Proceeding complaints against Atlas Acquisitions LLC, which had bought claims from pay-day lenders and filed proofs of claim in the bankruptcy cases. The adversary complaints asserted that Atlas had violated the FDCPA because the underlying claims were not enforceable under applicable state law because the statute of limitations had expired. The bankruptcy court concluded that Atlas’s filing of proofs of claims did not constitute debt collection activity proscribed by the FDCPA and granted Atlas’s s motions to dismiss the Adversary Proceedings. The debtors appealed.

The Fourth Circuit analyzed both the Bankruptcy Code provisions relating to claims and the FDCPA. Disagreeing with the bankruptcy court, the Fourth Circuit found that filing a proof of claim in a bankruptcy case does constitute collections activity regulated by the FDCPA. Digging deeper, and noting in particular that under applicable (Maryland) state law, the running of the statute of limitations did not completely “extinguish” a claim, the Court of Appeals also ruled that the Atlas claims were also properly asserted as claims under the Bankruptcy Code. 

Having found that the debt in this case was not extinguished, the court then analyzed whether filing a proof of claim for a time-barred debt violated the FDCPA and concluded that it did not. First, the court stated that if the bankruptcy system worked as it is statutorily written, there are safeguards against such claims being allowed, such as an objection by a trustee, the debtor or even other creditors. Second, the court noted that asserted claims can be discharged with finality in a properly-administered bankruptcy. The court posited that the harm to the debtor in a bankruptcy case was less than the harm to a consumer outside the bankruptcy context because of all of the protections and benefits available to a debtor under the Bankruptcy Code. Ultimately, the Court majority concluded that the filing of a proof of claim on a debt that is time-barred does not violate the FDCPA where the statute of limitations does not extinguish the debt.

Judge Diaz dissented, arguing that companies such as Atlas are gaming the bankruptcy system to try to obtain payments for unenforceable claims due to inattention of other parties in interest.

Thus far, only the Eleventh Circuit has found that filing a proof of claim for a stale debt violates the FDCPA. The issue is on appeal in other jurisdictions. As with much of law in bankruptcy, a creditor should have a firm grasp of the law in the jurisdiction where the bankruptcy case is pending before asserting claims. For any assistance with claims in bankruptcy cases, contact Preti Flaherty’s Bankruptcy, Creditors’ Rights, and Restructuring Practice Group.

Ch. 7 Trustee Avoids Maine Mortgage Due to Incomplete Acknowledgment

Chapter 7 trustees’ success in avoiding mortgages with defective certificates of acknowledgement occurs with some regularity in Massachusetts.  See e.g. In re Giroux, 2009 WL 1458173 (D. Ma. Bankr. Jul. 27, 2011).  But it has not been that common in Maine.  Last month, however, a Chapter 7 trustee successfully avoided a Maine mortgage because of a defective acknowledgment and obtained the right to sell the property.  In re Bishop, No. 15-10554 (D. Me. Bankr. Jul. 28, 2016).  The Debtor’s mortgage included a certificate of acknowledgment which failed to state the location of the notary (Aroostook County, Maine) when he acknowledged the mortgage.

Pursuant to the Chapter 7 trustee’s strong-arm powers, 11 U.S.C. § 544(a)(3), the trustee argued that he could avoid the mortgage as a hypothetical bona fide purchaser for value.  As in other defective acknowledgment cases, the trustee argued that a defective mortgage or a mortgage which fails to meet recording requirements under applicable state law does not provide constructive notice, at least with respect to attaching lien creditors.  The Court rejected the bank’s argument that the acknowledgment was sufficient because it was clear the property and notary were located in Maine.  The Court noted that it is critical for an acknowledgement to state the location of the notary at the time of execution.  Without that statement, one cannot determine whether the notary had the authority required by the statute to acknowledge the mortgage.

Maine practitioners facing a certificate of acknowledgment issue should closely review 33 M.R.S. § 352, which governs defective acknowledgments.  § 352 offers protection to mortgagees against defects like this for mortgages made prior to January 1, 2013, and with respect to bankruptcies filed on or after October 15, 2015.

New Article Discusses whether a Late-Filed Tax Return Is a “Return”

As part of the American Bankruptcy Institute Northeast Bankruptcy Conference and Consumer Forum, Tony Manhart presented an article, which I co-wrote with him, on whether a late-filed tax return is a “return” under section 523(a) of the Bankruptcy Code. Courts are divided on whether the definition of “return” added by the Bankruptcy Abuse and Consumer Protection Act makes tax debt associated with all late-filed returns non-dischargeable. Courts in the First Circuit have found that late-filed returns are not “returns” and the associated tax debt cannot be discharged in bankruptcy.

The article discusses recent cases including: In re Fahey, 779 F.3d 1 (1st Cir. 2015), In re Nilsen, 542 B.R. 640 (Bankr. D. Mass. 2015) and Berry v. Massachusetts Department of Revenue, Case No. 15-41218-CJP (Bankr. D. Mass. June 30, 2016).

The full article is available for download on Preti Flaherty's website.

Debtors’ Lien-Stripping Attempt Likely Would Have Succeeded in New Hampshire

A North Carolina bankruptcy court recently denied a Debtors’ attempt to “strip off” a junior lien on their primary residence by rejecting the argument that the property should be valued near the time of plan confirmation.  In re Cooper, No. 11-02804-8 (Bankr. E.D. N.C. Jun. 8, 2016). § 506(a) provides that for purposes of determining the secured status of a creditor “value should be determined in light of the purpose of the valuation and of the proposed distribution or use of such property…or use or on a plan affecting such creditor’s interest.”   

The question before the Court was whether the home should be assigned a value as of the petition date or a date closer to plan confirmation for purposes of § 506(a).  In 2011, Debtors filed a Chapter 13 petition reporting two liens on their home a first lien of $90,000 and a second lien of $160,000.  If the Court used the value as of the petition date there would be enough equity to protect the second lien through plan confirmation.  If the Court used the value as of the confirmation date (less than $90,000), then the Debtors would succeed in stripping the second and wholly unsecured lien.  The North Carolina court invoked the majority rule which applies the petition date for valuing collateral, and therefore ruled that the second mortgage lien could not be “stripped” and remained in place, at least to the extent of the property’s value as of the petition date.

A Massachusetts bankruptcy court would have reached the same result.  In re Landry, 479 B.R. 1 (D. Mass. 2011).  But in New Hampshire bankruptcy court, the outcome would have been more favorable for the debtors, and the lien would have been stripped.  In 2013, Chief Judge Harwood adopted the “flexible approach” and ordered a valuation date for residential property near confirmation in the context of an individual Chapter 11.  In re Cahill, 503 B.R. 535 (Bankr. D. N.H. 2013).  Judge Harwood explained using the petition date for valuation fails to take into account the language in § 506(a) that value should be determined in conjunction with the purposes of the plan and the attendant valuation. 

Had the Debtors resided in New Hampshire they most likely would have succeeded in stripping the second lien.  At some point, the First Circuit Court of Appeals and/or the Bankruptcy Appellate Court will have to determine which approach should be the prevailing rule.  We think Judge Harwood has it right.     

This Week: Join Us at the ABI Northeast Bankruptcy Conference

The 23rd annual Northeast Bankruptcy Conference takes place this week, from July 14-17, at the Omni Mount Washington Resort in Bretton Woods, New Hampshire. This conference provides a great opportunity to gain insight into our industry. It also offers a forum to discuss current topics and network with knowledgeable colleagues.

On Friday, from 11:00 a.m. to 12:15 p.m., I will be moderating a consumer track panel session entitled, "Many Unhappy Returns - Another Hanging Paragraph Creates a Trap for Consumer Bankruptcy Lawyers."

The session's panelists include: Carl D. Aframe (Aframe & Barnhill, P.A.; Worcester, Mass.), Hon. Mildred Caban (U.S. Bankruptcy Court (D.P.R.); San Juan), and Celine E. de la Foscade-Condon (Department of Revenue (D. Mass.); Boston).

Here is a brief overview of the our session's focus:

"When is a tax return not a tax return? Bankruptcy can be very useful when seeking to discharge personal income tax obligations, but if the return has not been filed on time, dischargeability may be in jeopardy. Many courts have addressed this issue and have issued widely divergent views, including the First Circuit’s strict interpretation of what constitutes a tax return as announced by the majority in In re Fahey. This panel will focus on the development of the case law in the First Circuit, the information you must obtain from the taxing authority to determine when a tax return has been filed, what constitutes a return, and strategies to employ in the event that the tax return your client filed is defective and the taxes reported on that return are nondischargeable."

The Mt. Washington resort, located in the White Mountain National Forest, is a beautiful setting for what will prove to be an impressive collection of speakers and sessions.

For more information about the conference, visit the ABI conference website.

Ex Parte Attachment, and Priority, Reinstated to First in Time Creditor

In Estate of Summers v. Nisbet, the Maine Supreme Judicial Court reinforced the first in time, first in right nature of attachment and trustee process under Maine law.  Attachment and trustee process are powerful enforcement tools with which a plaintiff can place a lien on a defendant’s real or personal property while the case is pending, so that the defendant cannot transfer or abscond with property while being sued.
 
After a tragic fire at an apartment building in Portland, Maine that resulted in five deaths, the probate estate of Steven Summers, one of the victims, obtained a December 2014 ex parte attachment against the property of the building owner.  The probate estates of several other victims subsequently obtained attachments in February 2015 and asked the Superior Court to have the Summers ex parte attachment dissolved, asserting that the Summers estate had failed to demonstrate the “exigent circumstances” necessary for the grant of an attachment without hearing.
 
The Superior Court granted that motion, and dissolved the Summers estate’s original ex parte attachment and reinstated it as of February 2015.  As a consequence of the Court’s ruling, all five of the victims’ probate estates were left with attachments that were deemed to have been granted simultaneously.

The Summers estate appealed.  The Law Court vacated the trial court’s dissolution of the Summer ex parte attachment, ruling that the trial court had erred because no one had asserted or established that the Summers estate had failed to make the basic showing required for an attachment, and ordered the Summers attachment reinstated as of the date it was ordered, in first place.  In doing so the Court confirmed that under Maine attachment law, first in time is first in right, and that creditors in Maine must act expeditiously to protect their rights.

Debtor May Still Claim Homestead Exemption Even If He Was Kicked Out

The bankruptcy court for the Eastern District of New York found that a debtor who was ordered to vacate his home could still claim an exemption in the property. In a divorce proceeding several months prior to the bankruptcy filing, the debtor’s spouse had been granted exclusive occupancy of the home and the debtor was barred from entering the property. At the time of the bankruptcy filing, the debtor was prohibited by the state court order from residing at the property.   The chapter 7 trustee objected to the debtor’s homestead exemption and argued that because the debtor’s voter registration, driver’s license, tax returns and bankruptcy petition listed a different address, the debtor could not claim the homestead exemption. The bankruptcy court found that the state court order did not prevent the debtor from claiming a homestead exemption because the debtor had intended to occupy the property and was forced to leave by the state court order. The bankruptcy court also noted that the debtor’s failure to change his address was not sufficient to “undercut the Debtor’s claim of homestead exemption.”  In reaching its conclusion, the bankruptcy court gave weight to the debtor’s intent and his testimony that he considered the property his principal residence. The bankruptcy court stated that “the record reflects that, as is typical in a marriage, the Debtor considered [the marital property], where he resided with his spouse, and which they owned together, to be his principal residence, and only left the [martial property] when forced to do so by the [divorce occupancy order].” (In re Denker-Youngs, Case No. 15-41069 (Bankr. E.D.N.Y June 2, 2016)) Bodie B. Colwell practices as an associate with Preti Flaherty's Bankruptcy, Creditors’ Rights and Business Restructuring group from the Portland office. She focuses on supporting bankruptcy, insolvency, and creditors’ rights clients.