2015 Northeast Consumer Forum

Young lawyers frequently learn that they will be working on a new chapter 11 case when they are directed to start drafting pleadings. This session, spearheaded by members of ABI’s Young & New Members Committee, is geared toward gaining an understanding of what precedes that moment by (1) advising and educating the new(er) generation of bankruptcy professionals on the background and “big picture” of a chapter 11 case, and (2) advising and educating the newest generation of bankruptcy professionals on pre-filing strategies. The panel will explore and help identify operational, financing and litigation problems that may be faced by distressed companies, then will explore both short-term and longer-term strategies that can be pursued before a petition is filed.

The trial team in this session will explore strategies to quickly discover essential facts relating to substantive and procedural legal defenses by discussing the use of discovery, the proper use of and best practices for motions for summary judgment and developing the summary judgment record, and strategies for opposing summary judgment in a contested matter to which Part VII of the Federal Rules of Bankruptcy Procedure apply. The context will be an objection to a proof of claim asserting legal defenses, including improper interest charges, based on a hypothetical case. The panelists will conduct several mock strategy sessions and a mock summary judgment hearing, and offer commentary from the trial team members.

May a trustee make a distribution to a secured creditor that has not filed a proof of claim? Should trustees or debtors file surrogate claims if secured creditors have not? Does a debtor’s failure to make post‐petition payments to a creditor defeat the debtor’s eligibility for a discharge? This panel will address the emerging case law on whether direct post‐petition payments as required by the plan are considered “payments under the plan” as contemplated by § 1328(a), the growing complications that may arise from a secured creditor’s not filing proofs of claim, and the impact of proposed rule changes on these hot issues.

This panel will explore the question of whether exemptions may be denied for bad faith and whether debtors may amend their claimed exemptions to assert a different statutory basis after an exemption has been denied, including the impact of potential res judicata and collateral estoppel claims. Case law developments since Law v. Siegel will be reviewed, as well as important strategic considerations for debtors, trustees and creditors.

Disclosing assets and verifying a debtor’s information is the calling card of any conscientious debtor’s counsel. But how do the rules governing professional responsibility interplay with debtor’s counsel’s obligations under the Code? A real housewife in New Jersey recently blamed her attorney for her prison sentence following her guilty plea for bankruptcy fraud. Did her attorney commit an ethical violation? This panel will examine the record behind this headline-making case, as well as other recent bankruptcy court decisions that examine the ethical conduct and obligations of debtor’s counsel.

Mortgage Regulation Update: New “Qualified Mortgage” and Ability-to-Pay Regulations, and Loan Servicing/Loss-Mitigation Regulations Practitioners can get up to speed on the new “Qualified Mortgage Rule” (the “QM”) and the ability-to-pay regulations to prepare for future mortgage claim disputes. This panel will discuss the changes to TILA and RESPA, as well as the new Consumer Financial Protection Board (CFPB) regulations on mortgage servicing.

State courts are increasingly relaxing their rules to allow attorneys to provide a-la-carte services to parties in cases appearing before them. However, bankruptcy courts have been reluctant to do so. Is it because the Bankruptcy Code is so complicated? Or is it because what is good for parties in state court is not good for those in bankruptcy court? This panel of experts will examine whether counsel can provide limited representation services to parties in bankruptcy matters and maintain their ethical obligations to the client.

How can you best advise a client who is unsure whether the stay or the discharge applies? How can you protect a debtor’s benefits offered by the automatic stay and the discharge? Stay violation litigation and discharge analysis are just two of the topics that this expert panel will examine.

Chapter 13 practice is complicated, and the days when a debtor’s 13 plan was quickly confirmed are few and far between. In addition to proposing confirmable chapter 13 plans, debtors’ attorneys (and in some cases chapter 13 trustees) are litigating defective mortgage claims and contentious objections to confirmation. How can debtors’ counsel ensure that they are compensated for these complicated cases that not only sit on the bankruptcy court’s docket, but often end up on appeal? This panel will discuss the challenges and practicalities of compensating chapter 13 debtors’ counsel in this ever-evolving area of bankruptcy law.

More and more litigation is emerging over the sloppy practices that were rampant during the real estate boom. Defective mortgages, flawed trusts and faulty deeds have all produced much litigation, but how can you tell if there is really a defect that you can either make a case out of, or need to protect your client from? In this practical and hands-on program, attendees will examine at least 10 different documents, all based on real cases, that demonstrate the defects that counsel need to not only be aware of, but to actually look for.