Scott St. Amand

Scott St. Amand

Rogers Towers

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Bankruptcy Trustee Lacks Standing to Bring Derivative Claim Against Bank’s Directors After Bank’s Closure and Receivership by FDIC

In April of 2010, the Office of the Comptroller of the Currency closed First National Bank Myrtle Beach, S.C., a wholly-owned subsidiary of Beach First National Bancshares, a bank holding company, and named the FDIC as its...more

9/26/2014 - Banks Chapter 7 Consumer Bankruptcy Court-Appointed Receivers Derivative Standing FDIC FIRREA OCC Trustees

Detroit Bankruptcy Update: Settlements and Feasibility

In Detroit’s ongoing restructuring effort, the city cleared a major hurdle last week by settling with its largest adversary, Syncora Guarantee, a New York based bond insurer. The settlement was negotiated just a week into the...more

9/18/2014 - Chapter 9 Detroit Municipal Bankruptcy

Non-Dischargeable Tax Debt Not Special Class of Unsecured Creditors

In numerous previous posts, we have noted that the purpose of the Bankruptcy Code is to help the “honest but unfortunate debtor.” Like gerrymandering, certain “creative” debtors have attempted to classify their...more

8/27/2014

Discharging the Brunner Test: Student Loan Debt in Bankruptcy

Twenty-seven years ago the Second Circuit was faced with a debtor who proposed to use the Bankruptcy Code to avoid her student loan debt – only five months after graduation. The Second Circuit came down harshly on Ms. Brunner...more

8/13/2014 - Consumer Bankruptcy Popular Student Loans Undue Hardship

Limits to the Duty to Preserve

Although a suit against a particular officer of a corporation for sexual harassment would clearly trigger a litigation hold, what must counsel do about less obvious players in a more abstract dispute? The recent case of AMC...more

8/6/2014 - Cisco Contract Disputes Corporate Officers Document Retention Policies Duty to Preserve Evidence

Detroit Bankruptcy Update: Restructuring the Restructuring Plan

On Friday July 25, 2014, the City of Detroit released a revised restructuring plan that provides for a reserve fund that may enhance the recovery for certain classes of unsecured creditors. The plan also creates a...more

8/1/2014 - Detroit Municipal Bankruptcy Restructuring

Social Media and Spoliation

As we discussed in our previous post regarding the Christou case, social media is discoverable – and consequently subject to a litigation hold. From an evidentiary standpoint, social media is not without its shortcomings, and...more

7/11/2014 - Evidence Litigation Hold Social Networks Spoilation

Detroit Bankruptcy Update: Sixth Circuit Throws Wrench into Restructuring Timetable

Earlier this month the Sixth Circuit Court of Appeals ruled that the appeal of Syncora Guarantee Inc. must be heard by the lower federal district court before the bankruptcy court may conduct its trial on the city’s proposed...more

7/8/2014 - Chapter 11 Detroit Municipal Bankruptcy Popular Restructuring

Eleventh Circuit Doubles Down on Lien Stripping

When the Fourth Circuit handed down its opinion in the case of In re Davis, which permitted lien stripping in “Chapter 20” proceedings, the stage was set for the Eleventh Circuit to expand debtor’s ability to escape from...more

6/30/2014 - BAPCPA Chapter 13 Chapter 20 Chapter 7 Consumer Bankruptcy Junior Lenders Lien Stripping Liens Mortgage Loan Originators Mortgages

Supreme Court Clarifies Stern v. Marshall

Not even Nostradamus could have predicted the profound effect that former Playmate Vickie Lynn Marshall (a/k/a Anna Nicole Smith) would have on the landscape of U.S. bankruptcy court jurisdiction. Nevertheless, two and a half...more

6/13/2014 - Article I Article III Commercial Bankruptcy Jurisdiction SCOTUS Stern v Marshall

Detroit Bankruptcy: The Next Step in the Grand Bargain

On Tuesday, June 2, 2014, the Michigan state senate passed a number of important bills, all of which are aimed to help lift Detroit out of its $18 billion bankruptcy. Approval by Governor Rick Snyder is all but guaranteed, as...more

6/6/2014

A Grand Bargain? Detroit Defends Restructuring Plan

Over the Memorial Day weekend, while many around the country were enjoying beautiful weather, the lawyers for the city of Detroit were busy filing a lengthy defense to their proposed restructuring plan, which is slated to be...more

6/4/2014 - Bonds Debt Restructuring Detroit Institute of Art Municipal Bonds Municipalities Pensions Public Employees Restructuring

A Lesson On What Not To Do In A § 363 Auction

For numerous corporate Chapter 11 debtors, the sale of some or all of the company’s assets may be the only way to reorganize the company’s debt. Section 363 of the Bankruptcy Code sets forth a specific procedure wherein the...more

5/30/2014 - 363 Sales Chapter 11 Commercial Bankruptcy

Effect of Automatic Stay in Quasi-Criminal Proceedings

The automatic stay of § 362(a) of the Bankruptcy Code is one of a debtor’s most powerful tools and protections, because it stays all proceedings and collection efforts. Under § 362(b), however, a debtor may not use the...more

5/1/2014 - Automatic Stay Consumer Bankruptcy

Detroit Bankruptcy Update: Plan of Adjustment Filed, Trial Set

Under the Chapter 9 Plan of Adjustment filed on Friday of last week, Detroit Emergency Manager Kevyn Orr urged retirees to vote on a quick exit from bankruptcy by offering smaller-than-expected pension cuts. For non-uniformed...more

2/28/2014 - Chapter 9 Detroit Municipal Bankruptcy

The Spoliation of Text Messages

In the era of Twitter and Instagram, it should come as no surprise that a party’s cell phone data, including text messages, may prove invaluable to an adverse party during the course of litigation. As with any other...more

2/28/2014 - Corporate Counsel Electronically Stored Information Mobile Devices Spoliation Texting

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

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

“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

Caveat Charities: Disgorging Donations as Fraudulent Transfers

The Bankruptcy Code permits a trustee to avoid transfers of property that a debtor has made within two years prior to its bankruptcy filing. In 1998, Congress added a safe-harbor provision for contributions to qualified...more

1/15/2014 - Charitable Donations Consumer Bankruptcy Disgorgement Fraudulent Transfers Religious Institutions Trustees

Litigation Hold Extends to Third Party Independent Agents

Insurance and financial institutions understand the importance of data preservation, but from time to time – usually in the throes of complex litigation – the specific requirements of federal and state data preservation laws...more

1/9/2014 - Litigation Hold Record Preservation Spoliation Third-Party Agents

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

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