David

Judge David Kennedy’s 30 Years on the Bench, and My First Day in Bankruptcy Court

The Commercial Appeal in Memphis has a story about David Kennedy, the Chief Judge of the Bankruptcy Court in the Western District of Tennessee (Memphis), who recently celebrated his 30th year on the bench.

Judge Kennedy’s court was the first Bankruptcy courtroom I ever walked into. It wasn’t as a debtor or as a lawyer; my sister worked in the Court’s IT department, and the Judge, hearing I was a first year law student, invited me to observe during my spring break.

Having never been to court, having never talked to a Judge, and not really knowing what “bankruptcy” was, I was in way over my head.

But, between each of the docket calls, the bailiff came and took me back to the Judge’s chambers, where the Judge would review the issues raised in each matter with me and talk about the practice of bankruptcy law in general.

I listened intently, but–as you’d expect from a first year dreaming of a career as a prosecutor–I was drowning in deep waters. Even though none of it made any sense to me, I remember Judge Kennedy getting really fired up explaining one issue to me, and he pulled the Bankruptcy Code out to specifically read me 11 U.S.C. Sec. 1334, which states the jurisdiction of the Bankruptcy Courts.

Now, 13 years later (with eleven years of unexpected bankruptcy practice behind me), I never come across 11 U.S.C. Sec. 1334 without thinking about Judge Kennedy and the time he took to show me around and share his passion for Bankruptcy Law with me. He was so generous with his time with me and, who knows, maybe that day in Bankruptcy Court set my path a little bit for the career I ultimately have found.

In the years since, I’ve run into the Judge in a lot of different places–Memphis basketball games, the Midsouth Commercial Law Institute Seminars–but rarely in his courtroom. Here’s hoping I make it back soon.

Dept. of Labor Sues Bankrupt Builder to Recover 401(k) Amounts

The Nashville Post reports today that the U.S. Department of Labor filed a lawsuit against Corinthian Custom Homes, Inc. for failing to pay withheld employee funds into the employees’ 401(k) accounts. More details are available here.

This is a great sign that the government is watching employers’ bankruptcy filings for this very common issue and taking action when those employers dip into funds it had a fiduciary duty to protect. Corinthian Custom Homes left a lot of people unpaid, and it’s good to see that the Dept. of Labor is protecting the former employees from this type of theft.

Consumer Bankruptcies Still Rising as Business Filings Fall Off

The American Bankruptcy Institute released new data this week about business and consumer bankruptcies. The good news? (Well, it’s good, unless you ask a bankruptcy attorney.) Business filings were down nearly 6% from the beginning of 2010 through the third quarter, compared to the same 9-month period in 2009.

But consumers are still filing bankruptcy at increasing rates: “Nearly 1.18 million U.S. consumers sought protection from their creditors in court, a 12% increase over the same period in 2009,” explains Eric Morath of the Wall Street Journal’s Bankruptcy Beat blog.

Morath talked to ABI Executive Director Samuel J. Gerdano, who offered this insight: “Consumers and businesses moving in different directions reflects that individuals are still suffering under the effects of high unemployment and large debt burdens but businesses are often getting a reprieve from their lenders, allowing them to put off a bankruptcy filing.”

Here’s the release from the American Bankruptcy Institute.

Speaking at 2010 Tennessee Real Estate Law Conference, by M. Lee Smith Publishers

On December 9 and 10, 2010, I’ll be speaking at the 2010 Tennessee Real Estate Law Conference, presented by M. Lee Smith Publishers.

This group always puts on great seminars on relevant topics, and the faculty looks really strong.

My portion is going to be presented on December 10, at 2pm to 3pm, titled “A Primer on Real Estate Liens.” Here’s the full agenda.

Foreclosure Freeze from the Banks’ Perspective: Don’t Forget that the Borrowers Aren’t Paying

Disclaimer: I represent the banks. So, I read this piece in the Washington Post with biased eyes, but the central theme is spot-on: sure, the big banks screwed up their paperwork and their shoddy records are being exposed, but, at the end of the day, the borrowers still borrowed the money and aren’t paying it back.

The article goes on to make points that everybody should agree with: The paperwork issues raised are valid, and a bank that can’t answer these simple questions (such as, do you really own the debt?) shouldn’t be foreclosing. Also, this situation puts pressure on banks to finally take aggressive and sincere efforts to implement troubled loan restructuring programs.

The Calculated Risk blog first pointed to this article, and their comments section is wild with discussion.

Bank of America Foreclosure Freeze Unlikely to Help Homeowners

The Tennessean ran a story on the decision by Bank of America to freeze all pending foreclosures so BOA can review its documents and records for accuracy.

The root of all this mess is the wholesale practice of buying, assuming, and assigning mortgage debt. Unlike your local bank that keeps its own payment records and the original loan documents in-house, Bank of America may only have a computer printout with a (partial) copy of the relevant loan documents and a third party’s payment history, and there is probably nobody at BOA who can affirm and swear to the amount of the debt, the default, or the existence of the original loan documents.

So, when it came to light that one person was signing 100s of foreclosure authorizations a day without any actual review or knowledge of the status of the loans, BOA had no choice but to stop all foreclosures, lest it risk certain legal attacks on any of its foreclosures pending now or in the near future. Now that the cat is out of the bag, BOA has to deal with this issue head on and, frankly, I think we’ll be surprised at how difficult this problem ends up being for BOA.

Keep in mind, however, that this “freeze” only applies to Bank of America mortgages, and so other lenders have no reason to cease foreclosure activity–on the contrary, they’d have every incentive to foreclose in order to get their inventory off the books (while the BOA foreclosures aren’t flooding the market).

The next few months will most likely not offer any guidance or resolution for borrowers. The foreclosure process will resume at some point, probably in early 2011, without any further issues. Those who don’t take any action, either by seeking modification or default forgiveness, will end up exactly where they are today.

New Attorney General Opinion Requires Advance Payment of Garnishment Fees

I get asked all the time: “After I’ve exhausted all the leads I have and still can’t find assets, what do I do to collect?” My typical response has always been to try a random bank levy.

A bank levy is a form of execution, issued through the clerk’s office, that directs a bank to freeze a judgment debtor’s bank account and send the funds, if any, to the judgment creditor. Obviously, it works best when you know where your debtor banks. Otherwise, you’re blindly asking banks if they have any money of the debtor and, depending on how many banks are in your area, that’s a lot of dead ends.

But, if you’re out of good leads, my reasoning has always been “What’s the harm?”

That was before Tennessee Attorney General Opinion No. 10-100, issued on September 27, 2010, changed the procedure on garnishments under Tenn. Code Ann. 8-21-401.

Under the old practices, you didn’t pay garnishment costs up-front; you only paid when your garnishment was successful. So, there was no disincentive from issuing as many garnishments as you wanted. Under this new opinion, the Clerk collects the $25 fee in advance.

This new opinion changes the strategy on blind garnishments, at least from a cost/benefit perspective.

The lesson? When your customer starts having payment problems, just keep a copy of an old check.

A Bankruptcy Filing Doesn’t Always End the Collections Process

Just because someone who owes you money files Bankruptcy, it doesn’t mean the that you’ll never receive any money and you should throw away your judgment.

Even in bankruptcy, there’s still a chance of monetary recovery. In addition to the benefits to the debtor (i.e. the discharge of debts), the secondary point of the bankruptcy process is to maximize return for creditors by organizing and selling the debtor’s non-exempt assets. But, to be candid, most creditors in bankruptcy only receive pennies on the dollar in the process.

Keep in mind, however, the success rate in Chapter 13 bankruptcy cases (where debtors repay a percentage of their debts over 3 to 5 years) can be as low as 20%, meaning that most of those cases end with a dismissal. A dismissal is good for a creditor, because there is no discharge of the debt. Instead, the full amount remains due and owing. Debts are eliminated only when debtors receive a “discharge.” That’s an important distinction to know.

Finally, remember that a bankruptcy discharge only discharges “debts”—not “lien” rights. So, if you’ve already obtained a judgment and recorded it as a lien, then your lien on the debtor’s property may survive the bankruptcy discharge. As a result, even though you can’t collect your debt, you can enforce your lien in the event of an attempted sale or refinance.

Of course, a bankruptcy filing invokes the automatic stay, which requires a cessation of all collective efforts. But, even though your collection may be stayed, that doesn’t mean that it’s the end of the line on your efforts.

Review Loan Documents in Advance of Collection to Avoid Delays and Potential Issues

The New York Times reports that foreclosures may slow down, as lenders have learned about mistakes in their processing of documents and default documentation.

Needless to say, finding a defect in documents isn’t uncommon (nor fatal), but the results can be catastrophic if the defects are found too late. The worst time to discover defects in your loan documents is after you’ve started the adversarial enforcement process.

At that point, it may be too late to have the customer agreeably sign any corrective documents. Even more dangerous is the Bankruptcy Trustee, who can exploit certain defects in security documents and take collateral from both the customer and you.

Before a creditor declares default, it should take a few minutes to review the signatures and terms of the loan documents and to confirm that your collateral documents are in order and properly recorded.

That way, every subsequent step in the collection action on those documents will be on solid footing.

Homeowners Remain Frustrated with Short Sale Process, and New Legislation Unlikely to Correct Issues

The Washington Post ran a story on the rise of short sale home transactions, along with the disappointment and frustrations home owners have with the process.

Generally, a “short sale” of a house is a sale for a purchase price that is less than the amount of the debt owed to the bank on the property. In order to do this, the home owners must obtain an agreement from their bank or lien-holders that the liens on the property will be released in exchange for the proceeds generated by the sale. Since the proceeds will not pay off the lender in full, the seller cannot force the bank to accept the deal–it can only be done with approval by all lien-holders.

And there’s the difficulty. In this foreclosure crisis, banks are overwhelmed with short sale proposals, all of which must be reviewed to determine if the “short sale” price is reasonable and better than the bank can do at foreclosure. In almost all cases, the prices will be better. But, still, the approval process requires that a bank officer agree to release the lien rights for something less than the bank is entitled to under its lien, which isn’t a decision that a bank can quickly make.

The most common complaint from sellers is that this process takes far too long, especially when there’s a buyer waiting who can simply move on to another house. In response, some law makers have filed legislation, HR 6133, that would require expedited processing and responses to short sale proposals.

This new legislation is unlikely to solve these issues, because who is to determine what is the proper timing to process short sales? Ten days? A month? And what’s the proper penalty? A forced sale? Release of the lien or deficiency rights?

I doubt that the legislators want to force their own terms onto what should be a typical “business decision” by the banks, and, if they do, there’s the risk that the lenders will simply respond immediately…with a “No” to all requests.