J. Ellsworth Summers, Jr.

J. Ellsworth Summers, Jr.

Rogers Towers

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Eleventh Circuit Holds Replacement Value - Applies to Surrender of Collateral in Chapter 13 Plan

On March 27, 2014, the Eleventh Circuit (the “Court”) issued a ruling, which will have a major impact on how Chapter 7 and 13 debtors are able to treat claims of secured creditors. The issue in In re Brown, 13-13013, 2014 WL...more

4/3/2014 - Chapter 13 Commercial Bankruptcy

Recent Decision Caps Secured Creditor’s Credit Bid in §363 Sale to Purchase Price of Acquired Debt

It is well-settled that secured creditors are ordinarily entitled to credit bid their allowed secured claim in a sale pursuant to § 363 of the Bankruptcy Code (the “Code”). In Radlax Gateway Hotel, LLC v. Amalgamated Bank,...more

3/11/2014 - Bids Chapter 11 Commercial Bankruptcy Credit Bids Creditors Secured Creditors

Settling Pre-Petition Claims During a Pending Bankruptcy Proceeding

As we have discussed in previous posts, when a plaintiff or defendant in a pending civil lawsuit files for bankruptcy, the suit becomes part of the bankruptcy estate. Further, under § 541 of the Bankruptcy Code, the trustee...more

2/25/2014 - Consumer Bankruptcy Settlement

Paying Attorney’s Fees Not Reason to File Chapter 13

Of the three most common chapters of the Bankruptcy Code, Chapter 7 offers an insolvent individual the freshest of starts; yet it is not without its pitfalls. Under Chapter 7 a debtor is not permitted to pay his attorney in...more

2/19/2014 - Attorney's Fees Chapter 13 Chapter 7 Consumer Bankruptcy

Caveat Debtor: Disgorging Inheritance in Chapter 13 Cases

A recent case out of the 9th Circuit, In re Dale, revives a controversial subject for Chapter 13 debtors: whether an inheritance received more than 180 days after commencement of the case is part of the bankruptcy estate. ...more

2/11/2014 - Chapter 13 Chapter 7 Consumer Bankruptcy Disgorgement Inheritance

Dirt-for-Debt Buries Creditor with Risk and Uncertainty

In order to confirm a chapter 11 plan of reorganization, a debtor must satisfy all the provisions of §1129(a) of the Bankruptcy Code, except for §1129(a)(8). Section (a)(8) requires that each class of creditors either (i)...more

2/7/2014 - Chapter 11 Commercial Bankruptcy

Google Case Provides Spoliation Exception to Living Document Safeguard

Google has come under scrutiny in the last few years over collecting information from users’ email accounts to provide targeted advertising for its paid clients. ...more

1/28/2014 - Advertising Data Collection Data Mining Document Productions Electronic Communications Evidence Google Privacy Laws Spoliation

Gross Negligence Enough for Adverse Inference Instruction

In 2003, Judge Shira Scheindlin of the U.S. District Court for the Southern District of New York issued five landmark decisions, which have since shaped the landscape of electronic discovery and document preservation. ...more

1/24/2014 - Adverse Inference Instructions Destruction of Evidence Document Preservation Notices Electronically Stored Information Gross Negligence Intent Record Preservation Spoliation

“Saving Everything” No Defense to Spoliation Argument

As we discussed in our previous spoliation post, parties are required to place a litigation hold on all documents once litigation could be reasonably anticipated. Although there are certain definite “trigger events”, such as...more

1/20/2014 - Adverse Inference Instructions Data Retention Discovery Document Preservation Notices Document Retention Policies Email Policies Litigation Hold Spoliation

Case Update: Authority to Endorse Note and Mortgage IS Self-Authenticating

In our August 29, 2013 post, we reported on a shift in the case law regarding the self-authentification of the authority to endorse a note and mortgage. Subsequently, however, the court in Bennett v. Deutsche Bank National...more

1/15/2014 - Banks Deutsche Bank Mortgages Self-Authentication

Status as a Debtor not Enough to Confer Appellate Standing

“Standing” is a legal term of art that refers to a party’s ability to bring a cause of action, to intercede in one or to appeal the court’s judgment. To prove appellate standing in a bankruptcy proceeding, a party must show...more

12/26/2013 - Chapter 7 Commercial Bankruptcy Debtor-Creditor Standing Trustees

Detroit Bankruptcy Update: Direct Appeal to Sixth Circuit Permitted

Yesterday Bankruptcy Judge Steven Rhodes ruled that the appeals to his earlier holding that Detroit was entitled to proceed in its Chapter 9 Bankruptcy proceeding would be allowed to bypass a federal district court and head...more

12/18/2013 - Chapter 9 Detroit Municipal Bankruptcy

The Absolute Priority Rule in Individual Chapter 11 Bankruptcy Cases lives on … for now

The principle behind the absolute priority rule is simple: unsecured creditors should be paid before the debtor is entitled to retain property of the bankruptcy estate. In a corporate setting the absolute priority rule...more

12/12/2013 - Absolute Priority Rule BAPCPA Chapter 11 Commercial Bankruptcy Consumer Bankruptcy Creditors Debtors

Detroit Judge Clears Way for Largest Municipal Bankruptcy in Country’s History

The oral summary of Bankruptcy Judge Steven Rhodes’s opinion lasted roughly ninety minutes, and the forthcoming written opinion is rumored to be over one hundred and forty pages in length. In making his decision the Detroit...more

12/10/2013 - Chapter 9 Detroit Municipal Bankruptcy

BAPCPA Backfires: Unsecured Creditor’s Returns Decrease in Post-BAPCPA Landscape

A new study published by the American Bankruptcy Institute has found that the aggregate effect of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), which was passed in part to improve creditor...more

11/20/2013 - BAPCPA Consumer Bankruptcy Creditors

Chapter 20 in the Eleventh Circuit: Modification of Secured Claims Impermissible Without Discharge

Nearly a year ago to the day, we published a post regarding the uncertainty that bankruptcy practitioners and lenders faced when a Chapter 7 debtor received a discharge, and subsequently filed a Chapter 13 petition to strip...more

11/7/2013 - Chapter 13 Chapter 20 Chapter 7 Consumer Bankruptcy Cramdown Debtors Dischargeable Debts Lenders

When the FDCPA and the Bankruptcy Code Conflict: Which Controls?

As most lenders and banking litigators understand, courts construe the language of the Fair Debt Collection Protection Act (FDCPA) very broadly. As we have discussed in previous posts, an initial communication to collect a...more

10/24/2013 - Bankruptcy Code Conflicts of Laws Debt Collection FDCPA

Rogers Towers: The Shell Game: Bankrupt Debtor’s Concealment of Pre-Petition Claims

In commercial lending, as in law, no single practice area exists independently of another. Bankruptcy law often intersects with contract law and even personal injury law when debtors find themselves as the plaintiff or...more

9/5/2013 - Commercial Bankruptcy Commercial Loans Debtors

Rogers Towers: New York Bankruptcy Court Clears Way for McNeal Rehearing

The long-awaited rehearing of In re McNeal has been given the green light from an unlikely source – a New York Bankruptcy Court Judge....more

8/15/2013 - Chapter 11 Chapter 7 Consumer Bankruptcy In re McNeal Reversible Error

Rogers Towers: Motor City Meltdown: Municipal Bankruptcy in Brief - Chapter 9 Administration in a Nutshell

From March 2012 to March 2013, 76,467 bankruptcy petitions were filed in Florida under Chapters 7, 11 and 13. In contrast, since the Great Depression less than 500 municipalities have filed for Chapter 9 protection....more

8/13/2013 - Chapter 9 Creditors Detroit Economic Downturn Municipal Bankruptcy

Rogers Towers: Discharge and the Unscheduled Debt Part III: Collection of Non-Discharged Debt

The Bankruptcy Code provides that creditors holding nondischargeable claims may pursue post-confirmation collection efforts....more

7/9/2013 - Bankruptcy Code Consumer Bankruptcy Debt Debt Collection Unscheduled Debt

Rogers Towers: Discharge and the Unscheduled Debt Part II: Punitive Effects of Intentional Non-Disclosure

In our previous post we discussed the due process requirements that underpin a debtor’s bankruptcy discharge. We noted that a debtor’s failure to schedule an actual or potential claim may prejudice the debtor’s ability to...more

7/2/2013 - Consumer Bankruptcy Debt Debtors Due Process Fraud

Rogers Towers: Discharge and the Unscheduled Debt: Discharge Requires Due Process

Often referred to as the “holy grail” of bankruptcy law, a bankruptcy discharge releases the debtor from personal liability for certain specified types of debts....more

6/27/2013 - Creditors Debtors Dischargeable Debts Due Process Personal Liability

Rogers Towers: Denying Discharge for Passive Falsification of Financial Statements

As we have discussed in previous posts, if a debtor actively falsifies a financial statement to obtain a loan, such debt is not dischargeable in a subsequent bankruptcy proceeding under § 523(a)(2)(B) of the Bankruptcy Code....more

6/20/2013 - Consumer Bankruptcy Debtors Deceptive Intent Dischargeable Debts Falsified Documents Loans

Rogers Towers: Garnishing Professional Fees After Close of Bankruptcy Proceeding

It is not an uncommon practice for commercial lenders or real estate owners to employ a broker to assist with the sale of property for a commission. Recently, a corporation owning a marina in South Florida filed for Chapter...more

6/13/2013 - Broker Commissions Brokers Disgorgement Fees Garnishment Jurisdiction

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