Scott St. Amand

Scott St. Amand

Rogers Towers

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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

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

Collecting Deficiency on Wholly-Unsecured Nonrecourse Loan (in Chapter 11)

Some of you who read the title of this post may have done a quick double-take, as it is well established that lenders may not collect a deficiency on a nonrecourse loan under state law. However, the Bankruptcy Code provides...more

12/17/2013 - Bankruptcy Code Chapter 11 Commercial Bankruptcy Deficiency Judgments Nonrecourse Loans Reorganizations Secured Debt Unsecured Debt

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

Issues of Agency in Garnishment Procedures

It is well established that after a judgment of default, a creditor may serve a writ of garnishment upon the debtor’s employer to collect the unpaid principal and interest of the underlying loan from the employee’s monthly...more

11/12/2013

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: Authority to Endorse Note and Mortgage Not Self-Authenticating

Establishing the authority to foreclose a note and mortgage is simple when the note and mortgage are held by the original lender....more

8/29/2013 - Endorsements Foreclosure Mortgages Self-Authentication

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: Dismissal for Failure to Prosecute: Debtor’s Bankruptcy Appeal Tossed for Delay by Eleventh Circuit

As creditors’ counsel, we have often faced debtors who file bankruptcy simply to delay and frustrate the collection process. A recent case out of the Eleventh Circuit typifies the no-nonsense attitude that bankruptcy and...more

8/8/2013 - Chapter 7 Consumer Bankruptcy Debt Collection Debtors Failure to Prosecute Student Loans

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

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