Application of the Automatic Stay Against Environmental Claims

Adam P. Strochak, of Weil, Gotshal & Manges LLP, considers the extent to which an environmental action is precluded by application of the Bankruptcy Code section 362 automatic stay or the bankruptcy courts discretionary power under Code section 105. This analysis is an excerpt from Collier Monograph...

Emotional Distress Damages for Violations of the Automatic Stay

In this LexisNexis Emerging Issues Analysis, Mazy Hedayat examines the issue of emotional distress damages for violations of the automatic stay, as well as the burdens of proof and persuasion to be met by any who wish to seek such damages. NOTE: The link to the U.S. Code below may be accessed by...

Sternberg v. Johnston, 582 F.3d 1114 (9th Cir. Oct. 1, 2009)

In this Emerging Issues Analysis, the author looks at a decision from the Ninth Circuit that effectively creates a circuit split on the issue of whether attorney's fees are available not only for remedying a stay violation but also for the efforts in collecting damages for the violation. The Ninth...

Jones v. Wells Fargo Home Mortgage, Inc. (In re Jones)

This Emerging Issues Analysis examines a bankruptcy court's decision to order the implementation of certain accounting procedures where punitive damages alone would not make the mortgage company change its behavior. The court relied on its own inherent authority as well as the authority granted...

In re Lehman Bros. Holdings Inc. Raises Questions About Application of Safe Harbors to Complex Financial Products

This Emerging Issues Analysis analyzes a case that narrowed the protections that the Bankruptcy Code was thought to provide to participants in the derivatives markets. The court ruled that "flip" provisions of swap documents triggered by a Lehman Brothers bankruptcy are unenforceable and...

Court Rules That Regulatory Actions Can Violate the Stay, Especially When You Say You Are Trying to Collect a Debt

An opinion from San Antonio Bankruptcy Judge Leif Clark examines when a claim against a non-debtor can violate the automatic stay. The short answer is: when the creditor says he is doing it to collect from the debtor. The long answer requires an examination of the interplay between 11 U.S.C. Sec...

U.S. High Court Seeks Solicitor General's Comments on Bankruptcy Conflict

WASHINGTON, D.C. - (Mealey's) The U.S. Supreme Court on June 20 asked the U.S. solicitor general for comment on a bankruptcy case in which the Bankruptcy Code and the Real Estate Settlement Procedures Act (RESPA) are in conflict as it relates to a lender's right to require debtors to deposit...

Daniel J. Weiner on the Automatic Stay in Partnership Bankruptcies

by Daniel J. Weiner In this Emerging Issues Analysis, Daniel J. Weiner examines the treatment of the automatic stay in partnership bankruptcies, including the treatment of stay actions against non-debtor general partners by courts relying upon the automatic stay provisions under Bankruptcy Code...

D&O Insurance: Advancing Defense Costs in Bankruptcy

After entity coverage began to be added to the D&O insurance policy a couple of decades ago, a recurring problem in the bankruptcy context was whether or not the D&O policy proceeds were property of the estate under Bankruptcy Code Section 541 (a) and subject to the automatic stay under Bankruptcy...

Bridging the Gap: In re Murphy, 493 B.R. 576 (Bankr. D. Co. 2013)

The court may dismiss a Chapter 13 bankruptcy case if the debtor fails to make her required payments. The debtor then loses the protection of the automatic stay and must go through the time and expense of re-filing and starting a new five-year repayment plan. To mitigate this harsh consequence, courts...

Third Circuit Holds that Debt Collectors Must Generally Comply with the Bankruptcy Code and the Fair Debt Collection Practices Act

In Simon v. FIA Card Services, N.A. , the U.S. Court of Appeals for the Third Circuit recently ruled that a debtor in a bankruptcy proceeding is not unconditionally precluded from bringing claims under the Fair Debt Collection Practices Act (the “FDCPA”) [ an enhanced version of this opinion...