2015

This year’s hot topics will include two cases currently pending before the U.S. Supreme Court: the Caulkett decision concerning lien-stripping on primary residences in chapter 7 cases, and the Harris case regarding distribution of funds held by a chapter 13 trustee upon conversion to chapter 7. The panel will discuss a new Ninth Circuit BAP decision, one of only two in the country, concerning the dischargeability of certain student debts to for-profit institutions, as well as an emerging trend of using the Eleventh Circuit Crawford decision and the FDCPA to challenge “stale” proofs of claim for student debt. The presentation will address lenders refusing to retake abandoned collateral, as well as conflicting results from disposable-income tests, and other issues that will be of interest to those representing parties in consumer cases.

While case flings are down, the disputes that rage on in the cases have continued on. The panel will address three (3) selected litigation issues impacting the process: (a) Discovery Matters In Bankruptcy Cases – “Get to the point, get there quickly, get there cost effectively, and get the facts and documents organized”; (b) Expert Witness Matters – “If they know more than you, they must be an expert – right?” Bankruptcy Judges are becoming more discriminating (and more selective) in who and what is a proper expert and the purview of expert testimony. The panel will discuss and explore the Daubert criteria for experts, and discuss practical and strategic issues related to the effective use of expert testimony in bankruptcy litigation; and (c) Examiner Reports In Bankruptcy Litigation – we paid a lot of money and used up a lot of time on this report – now what? The legal and strategic issues related to examiner reports in bankruptcy cases.

This panel will discuss the first-day orders necessary to keep a casino open (including regulatory interplay), including motions related to chips, loyalty programs and progressive play. Featured will be a discussion of the issues related to valuation and the extent of security interests, including cash as proceeds of gaming collateral and perfection of bankroll, along with issues related to plan confirmation and § 363 sales,‎ including regulatory limitations and protection of customer lists.

This panel will address disclosure issues relating to disinterestedness, compensation and reimbursement requirements, compensation of fees incurred defending fee applications, and flat-fee arrangements between chapter 7 debtors and counsel, and other issues.

John W. Lucas, Moderator Pachulski Stang Ziehl & Jones LLP; San Francisco Judicial Debate Resolved: The “disinterestedness” requirement should be strictly enforced under § 327 (no waivers or ethical walls). Pro: Hon. Randall L. Dunn U.S. Bankruptcy Court (D. Or.); Portland Con: Hon. Madeleine C. Wanslee U.S. Bankruptcy Court (D. Ariz.); Phoenix Business Debate Resolved: Acceleration of a debt obligation under a credit agreement should act to prevent the lender from enforcing a prepayment premium Pro: Lori Sinanyan Jones Day; Los Angeles Con: Michael H. Strub, Jr. Irell & Manella LLP; Newport Beach, Calif. Consumer Debate Resolved: Attorneys should be permitted to unbundle services under an engagement agreement with a consumer debtor. Pro: Samuel A. Schwartz The Schwartz Law Firm, Inc.; Las Vegas Con: John R. Bollinger Boleman Law Firm, P.C.; Hampton, Va.

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.