THE 11TH CIRCUIT CLARIFIES THAT NEW VALUE NEED NOT REMAIN UNPAID TO CONSTITUTE A VALID PREFERENCE DEFENSE

By: Jeffrey N. Schatzman

Schatzman & Schatzman, P.A.

Miami, Florida

            In Kaye v. Blue Bell Creameries, Inc. (In re BFW Liquidation, LLC), 2018 U.S. App. LEXIS 22504 * | __ F.3D __ | 2018 WL 3850101 (11^th Cir 2018), decided on August 14, 2018, the Eleventh Circuit Court of Appeals made clear that any reliance on its decision in Charisma Investment Company, N.V. v. Airport Systems, Inc. (In re Jet Florida System, Inc.), 841 F.2d 1082 (11th Cir. 1988), that the new value exception (11 U.S.C. § 547(c)(4)) only applies if any new value given remains unpaid, is misplaced. In Jet Florida System, the Eleventh Circuit was faced with determining whether rent payments made by the debtor to a landlord after the debtor had vacated the premises were subject to the new value exception.  In considering the exception, the court stated that § 547(c)(4) “has generally been read to require: (1) that the creditor must have extended the new value after receiving the challenged payments, (2) that the new value must have been unsecured, and (3) that the new value must remain unpaid.”  In re Jet Fla. Sys., at 1083.  The court ultimately rendered its decision by applying only the first element and found that there was no new value given by the landlord since the debtor had vacated the premises and therefore, no benefit was conferred upon the estate.

The Absolute Priority Rule (Probably) Still Applies in Individual Bankruptcy Cases

Stephen W. Sather

Barron & Newburger, P.C.

Austin, TX

The absolute priority rule under 11 U.S.C. §1129(b) is one of the fundamental principles of chapter 11.   Under the absolute priority rule, a debtor has three options:  (i)  obtain a favorable vote from all classes of unsecured creditors; (ii) pay unsecured creditors in full; or (iii) provide that interests junior to unsecured creditors will not receive or retain any property on account of their interest.

            In 2005, Congress amended the Bankruptcy Code to make Chapter 11 more like Chapter 13 for individual debtors.   Because of some inexact drafting a question arose as to whether the absolute priority rule continued to apply in individual cases.    While the majority view is that Congress did not abrogate the absolute priority rule in individual cases, there are still some circuits where the question remains open.

There are three relevant statutory sections.    First, section 1115 provides that property of the estate in an individual case included property acquired post-petition, including earnings from personal services.  Second, section 1129(a)(15) provides that in an individual case in which an unsecured creditor objected, the Debtor must submit his projected disposable income under the plan for a period of five years.

Finally, section 1129(b)(2)(B) provides that a plan would be fair and equitable with regard to a rejecting class of claims if:

(i) the plan provides that each holder of a claim of such class receive or retain on account of such claim property of a value, as of the effective date of the plan, equal to the allowed amount of such claim; or

(ii) the holder of any claim or interest that is junior to the claims of such class will not receive or retain under the plan on account of such junior claim or interest any property; except that in a case in which the debtor is an individual, the debtor may retain property included in the estate under section 1115, subject to the requirements of subsection (a)(14)* of this section. (emphasis added).

*--The reference to subsection (a)(14) should probably refer to subsection (a)(15) instead.

            The statutory provisions add certain post-petition property to the estate, require the Debtor to make payments of projected disposable income if a creditor objects and allow the Debtor to retain "property included in the estate under section 1115." This required an examination of just what property was included by section 1115. According to section 1115(a)

(a) In a case in which the debtor is an individual, property of the estate includes, in addition to the property specified in section 541—

(1) all property of the kind specified in section 541 that the debtor acquires after the commencement of the case . . . ; and

(2) earnings from services performed by the debtor after the commencement of the case. . . . .

Courts which have examined this language have divided between a "narrow" interpretation holds that "property included in the estate under section 1115" refers only to the post-petition property added to the estate, while the "broad" interpretation holds that section 1115's reference to "property specified in section 541" refers to all section 541 property. Under the broad interpretation, because section 1115 encompassed all section 541 property, the Debtor could retain all of his property without violating the absolute priority rule.   For a brief period of time, the broad approach seemed to be gaining favor.   However, today all circuit courts which have addressed the issue and most lower courts have followed the narrow approach in which the absolute priority rule continues to apply.

The trend in the cases is definitely in favor of the narrow approach.   The Fourth, Fifth, Sixth, Ninth and Tenth Circuits have all adopted this approach, while no circuit court has followed the broad approach.   While there is still a split of authority in the First, Seventh, Eighth and Eleventh Circuits, they are likely to come around to the narrow approach.

 

Circuit	Narrow Approach	Broad Approach	Status
First	In re Walsh, 447 B.R. 45 (Bankr. D. Mass. 2011); In re Lee Min Ho Chen, 482 B.R. 473 (Bankr. D. P.R. 2012)	In re Perez, 2015 Bankr. LEXIS 1488 (Bankr. D. P.R. 2015)	Courts split.  No consensus.
Second	In re Lucarelli, 517 B.R. 42 (Bankr. D. Ct. 2014);		Only case found follows narrow approach
Third	Brown v. Ferroni (In re Brown), 505 B.R. 638 (E.D. Pa. 2014); In re Grasso, 497 B.R. 448 (Bankr. E.D. Pa. 2013)		Only cases found follow narrow approach
Fourth	In re Maharaj, 681 F.3d 558 (4th Cir. 2012)		Definitely Narrow Approach
Fifth	In re Lively, 717 F.3d 406 (5th Cir. 2013)		Definitely Narrow Approach
Sixth	Ice House America, LLC v. Cardin (In re Cardin), 751 F.3d 734 (6th Cir. 2014)		Definitely Narrow Approach
Seventh	In re Gerard, 495 B.R. 850 (Bankr. E.D. Wisc. 2013); In re Draiman, 450 B.R. 777 (Bankr. N.D. Ill. 2011)	In re Johnson, 402 B.R. 851 (Bankr. N.D. Ind. 2009)	Courts split.  No consensus.
Eighth	Heritage Bank v. Woodward (In re Woodward), 537 B.R. 894 (8th Cir. BAP 2015)	In re Tegeder, 369 B.R. 477 (Bankr. D. Neb. 2007); In re O’Neal, 490 B.R. 837 (Bankr. W.D. Ark. 2013); In re Woodward, 2014 Bankr. LEXIS 1940 (Bankr. D. Neb. 2014)	Courts split.  No consensus.
Ninth	Zachary v. Cal. Bank & Trust, 811 F.3d 1191 (9th Cir. 2016)		Definitely Narrow Approach
Tenth	Dill Oil Company v. Stephens (In re Stephens), 704 F.3d 1279 (10th Cir. 2013)		Definitely Narrow Approach
Eleventh	In re Martin, 497 B.R. 349 (Bankr. M.D. Fl. 2013); In re Gelin, 437 B.R. 435 (Bankr. N.D. Fl. 2010); In re Steedley, 2010 Bankr. LEXIS 3113 (Bankr. S.D. Ga. 2010); In re Gbadebo, 431 B.R. 222 (Bankr. N.D. Cal. 2010); In re Rogers, 2016 Bankr. LEXIS 2398 (Bankr. S.D. Ga. 2016)	SPCP Group, LLC v. Biggins, 465 B.R. 316 (M.D. Fl. 2011)	Cases lean toward narrow approach

Creating a Circuit Split Regarding the Fair Debt Collection Practices Act: Rotkiske v. Klemm, --- F.3d ----, 2018 WL 2209120 (3d Cir. May 15, 2018)

By Hon. Judith K. Fitzgerald (Ret.)

Tucker Arensberg, P.C.

www.tuckerlaw.com

jfitzgerald@tuckerlaw.com

The United States Court of Appeals for the Third Circuit issued its opinion in Rotkiske v. Klemm, a unanimous, en banc decision yesterday that creates a clear split with the Fourth and Ninth Circuits.  The Third Circuit ruled that the statute of limitations for FDCPA violations is one year from the date of violation, not from the date of discovery.

 

Judge Hardiman, writing for the full court, stated: 

This appeal requires us to determine when the statute of limitations begins to run under the Fair Debt Collection Practices Act (FDCPA or Act), 91 Stat. 874, 15 U.S.C. § 1692 et seq. The Act states that “[a]n action to enforce any liability created by this subchapter may be brought in any appropriate United States district court ... within one year from the date on which the violation occurs.” 15 U.S.C. § 1692k(d). The United States Courts of Appeals for the Fourth and Ninth Circuits have held that the time begins to run not when the violation occurs, but when it is discovered. See Lembach v. Bierman, 528 Fed.Appx. 297 (4th Cir. 2013) (per curiam); Mangum v. Action Collection Serv., Inc., 575 F.3d 935 (9th Cir. 2009). We respectfully disagree. In our view, the Act says what it means and means what it says: the statute of limitations runs from “the date on which the violation occurs.” 15 U.S.C. § 1692k(d).

Rotkiske v. Klemm, No. 16-1668, 2018 WL 2209120, at *1 (3d Cir. May 15, 2018)

PRE-PETITION “NEW VALUE” COUNTS TOWARD THE PREFERENCE DEFENSE; POST-PETITION “NEW VALUE” DOES NOT

By:  Hon. Judith K. Fitzgerald (Ret.)

Tucker Arensberg, P.C.

1500 One PPG Place

Pittsburgh, PA  15222

jfitzgerald@tuckerlaw.com

In an opinion that is informative although not precedential, In re AE Liquidation, Inc., No. 17-1794 (May 4, 2018)(which can be found here), the Court of Appeals for the Third Circuit considered both the ordinary course and the new value defenses to a preference action.  Regarding the ordinary course issue, the appellate court detailed facts of record that established that collection actions taken during the preference period were unilateral pressure tactics that derailed the defense. 

No Monkeying Around With This Opinion - Naruto v. Slater, No. 16-15469, 2018 WL 1902414 (9th Cir. Apr. 23, 2018)

By Hon. Judith K. Fitzgerald (Ret).

Tucker Arensberg, P.C.

                          

In case you are curious about the extent of animal rights under the law, take a look at this new decision in the Ninth Circuit, Naruto v. Slater, 2018 WL 1902414 (9th Cir. Apr. 23, 2018).  Naruto, an Indonesian macaque, picked up a camera that was left unattended in a reserve by David Slater, a photographer, and took some selfies back in 2011.  The pictures were apparently worthy of publication, so Mr. Slater published them in 2014.  The monkey sued.  Well, actually, the People for the Ethical Treatment of Animals, Inc. (“PETA”) sued as Naruto’s Next Friend, for copyright infringement.  The case worked its way to the Court of Appeals for the Ninth Circuit, where the court framed the issue this way:

We must determine whether a monkey may sue humans, corporations, and companies for damages and injunctive relief arising from claims of copyright infringement. Our court's precedent requires us to conclude that the monkey's claim has standing under Article III of the United States Constitution. Nonetheless, we conclude that this monkey—and all animals, since they are not human—lacks statutory standing under the Copyright Act. We therefore affirm the judgment of the district court.

 Naruto v. Slater, No. 16-15469, 2018 WL 1902414 (9th Cir. Apr. 23, 2018) (footnote omitted).

Better Think Twice Before You Tell Your Debtor Client to Pay You with a Credit Card

Jeffrey N. Schatzman

Schatzman & Schatzman, P.A.

Miami, Florida

If you represent individual debtors and take credit cards for payment of your fees, you might want to re-think that policy.  On March 30, 2018, the Eleventh Circuit Court of Appeals in Cadwell v. Kaufman, Englett & Lynd, PLLC, Case No. 17-10810, reinstated a suit against Kaufman, Englett & Lynd (“KEL”) for violation of 11 U.S.C. Sec. 526(a)(4).   You can find the opinion here.

Requiring Credit Cards Concerns Client

Loyd Cadwell had sought the services of KEL to file a chapter 7 bankruptcy case.  Following the initial meeting, Cadwell entered into a retainer agreement with KEL that provided for KEL to be paid a fee of $1,700.00 to represent Cadwell in the chapter 7 case.  The agreement provided for payments to be made in installments over several months.  Cadwell alleged in his complaint that he was instructed by KEL to make the installment payments by credit card. Cadwell made the initial payment and three additional installments with two different credit cards.  Thereafter, Cadwell terminated the engagement with KEL and sought the services of another firm to assist him with his bankruptcy.

Cadwell’s new attorneys noticed the credit card payments and filed suit on behalf of Cadwell for violation of 11 U.S.C. § 526(a)(4), seeking return of fees paid to KEL and punitive damages of $1 million.  The lawsuit is also proposed as a class action.