Bankruptcy Attorneys

Where a plaintiff purports to represent a class of injured persons in a suit brought against a defendant car manufacturer pursuant to Puerto Rico law, an order dismissing the complaint must be affirmed on the ground that no private right of action exists under the Puerto Rico Antitrust Act.

Diaz-Ramos v. Hyundai Motor Co., et al. (Lawyers Weekly No. 01-253-07) (10 pages) (Lipez, J.) (1st Circuit) Appealed from the U.S. District Court for the District of Puerto Rico (Docket No. 06-2026) (Aug. 30, 2007).

Bankruptcy

Prepayment penalty

Where a lender sought to enforce a prepayment penalty against a solvent debtor, the lower court erred by disallowing the penalty claim on reasonableness grounds.

“This bankruptcy dispute presents a question of first impression in this circuit concerning a commercial lender’s right to receive a bargained-for prepayment penalty from a solvent debtor. …

“[Creditor] UPS [Capital Business Credit] argues that section 506(b)’s reasonableness standard is not relevant to the question of whether an oversecured creditor is entitled to collect a contractually-based prepayment penalty from a solvent debtor. It directs us to section 502 of the Code and to a wealth of case law holding that if fees, costs, or other charges are deemed unreasonable, an oversecured creditor nonetheless may collect them as unsecured debt (subject to the provisions of section 502). In the alternative, it argues that the lower courts’ models of reasonableness are unsuited to the realities of modern commercial lending

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Barbara and Mike Dadswell of Signal Mountain spent most of the last year trying in vain to hang up on their long-distance telephone service.

Mrs. Dadswell said she signed on a year ago as a sales representative for “not one of the major” long-distance carriers. A month later, she said, she decided it was a company whose service she could no longer sell.

She said she and her husband attempted to

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PG&E Corp., in its bid to have a federal bankruptcy judge pre-empt some state laws that regulate its utility rates and operations, was trying to “improperly manipulate the bankruptcy laws,” state Attorney General Bill Lockyer said Tuesday.

Lockyer’s claim came in a filing that asked the judge to hold a full-blown trial before acting on that request, which is part of Pacific Gas & Electric Co.’s $13 billion bankruptcy reorganization plan.

PG&E aimed “to thwart state and local regulators’ authority solely to benefit (its) economic position,” Lockyer’s filing said in outlining the state’s opposition to some elements of the

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Robin Pittman has joined Beers Skanska Inc. in Winston-Salem as vice president of business development.

Patricia Marks has joined Senn, Dunn, Marsh & Roland, a full-service independent insurance agency, as a corporate account manager in the Employee Benefits Division.

Mark Thomas, national sales manager for the Greensboro Area Convention & Visitors Bureau, has earned the Certified Meeting Professional (CMP) designation from the Convention Industry Council (CIC).

Jennifer Oakes has joined the law firm of Bell, Davis & Pitt, P.A. in Winston-Salem, as a practicing.

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A trial attorney knows depositions are key. Depositions may make or break your case in court. The ability to properly prepare witnesses, take depositions and effectively use deposition transcripts is essential to your practice. This seminar will present practical information from two experienced New York attorneys.

Lisa Ferro Joslin is an attorney with the law firm of Deily, Mooney & Glastetter, LLP, in Albany, New York, and focuses in commercial litigation and employment law litigation and counseling. She litigates all types of commercial and employment law claims, and counsels employers in areas, including disciplinary action, diversity management, harassment and discrimination training and investigation, personnel policies and employee handbooks, employment contracts, restrictive covenants, separation agreements, confidentiality agreements and a variety of labor law issues. Ms. Joslin regularly lectures on litigation and employment law issues. She is admitted to practice in all New York courts and federal court in the Northern, Southern and Eastern District of New York. Ms. Joslin is a member of the National Employment Lawyers Association of New York, the New York State Bar Association, the Albany County Bar Association and the Capital District Womens Bar Association. She holds a J.D. degree, magna cum laude, from Albany Law School of Union University and a B.A. degree from the University of New York at Geneseo.

Kevin P. Hickey is an associate with the law firm of OConnell and Aronowitz in the firms litigation department, where he practices in a wide array of litigation claims. Prior to joining OConnell and Aronowitz, Mr. Hickey was an attorney with the Albany firm of Solomon and Solomon, P.C., where he primarily practiced in utility disputes and property damage claims, insurance subrogation, contracts, debtor-creditor law and real estate. He has tried and arbitrated several cases in fields ranging from negligence, personal injury, medical malpractice and property damage claims to contract disputes and labor and employment matters. During law school and after graduating, Mr. Hickey was an intern and attorney with the Schenectady law firm of DeLorenzo, Gordon, Pasquariello, Weiskopf and Harding, P.C., primarily practicing in negligence/personal injury, toxic torts and employment/discrimination claims. He is admitted to practice in all New York courts and Federal Court in the Northern, Southern, Eastern and Western Districts of New York. Mr. Hickey is a member of the Schenectady County Bar Association, the New York State Bar Association and ATLA. He holds a J.D. degree, cum laude, from Albany Law School of Union University and a B.A. degree from the University of New York at Albany.

This one-day seminar is designed for attorneys interested in maximizing their skills in taking and defending depositions.

To register for this event please click http://www.lorman.com/info/358675 or please call 866-352-9539 to speak with a Lorman Education customer service representative. Reference number for this event is 18189.

Source : prweb.com

Where U.S. creditors seek to recover assets from a company with property in both the U.S. and Canada, must the U.S. District Court for the Western District of New York recognize and enforce the earlier implied ruling (on ownership) of the Canadian court?

Sorting through the facts and refining the questions in In re Petition of KPMG, Inc., as Interim Receiver and Foreign Representative of Euro United Corp., U.S. Bankruptcy Judge Michael J. Kaplan reviewed the law pertinent to cases ancillary to foreign proceedings as set forth in 11 U.S.C. [section] 304, in light of the 1992 decision by the Second Circuit Court of Appeals in In re Koreag, Controle et Revision S.A., 961 F2d 341. In so doing, Judge Kaplan determined that a de novo determination of

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Years ago, when asset protection planning was a new idea, many attorneys were suspicious.

Some questioned ethics.

How things have changed.

Protecting business assets continues to be a hot topic, in part because of 2002’s Sarbanes-Oxley Act. Corporations have increased their directors and officers (D&O) liability coverage as the threat of corporate governance liability claims has become more personal post Sarbanes-Oxley. The responsibilities of directors and corporate officers require compliance with strict rules and reporting.

Outside directors serving on public boards are vulnerable to personal lawsuits. Remember the outside directors of WorldCom who paid $18

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Whether it’s the latest mega-merger news or an announcement of record quarterly profits, Canada’s banks regularly make headlines. Banks are a pervasive feature of modern financial life and a key element of our nation’s economy.

At some point in our lives, most of us will owe a bank money in the form of debt and service charges. These are legal obligations. What many people do not know is that there are significant and stringent legal duties and obligations owed by banks to their customers.

Banking is a business. Like any business, a bank enters into relationships with its customers. Legal duties flow from the different functions that banks perform. M.H. Ogilvie, in his Canadian Banking Law, 1991 has summarized these relationships very adeptly:

“Where a bank lends money to another person, whether secured or unsecured, the legal relationship is one of loan as between lender and borrower. Where a bank offers safekeeping or safety deposit box facilities, the legal relationship becomes one of bailment. Where a bank gives advice or induces reliance on its statements, any subsequent liability resulting from losses incurred in reliance by another person may be characterized in tort, thereby creating a tortious relationship, or as a fiduciary relationship in which there has been a breach of a fiduciary duty. When a third party undertakes to guarantee a loan made by a bank to its customer, the relationship is one of guarantee or of a secured transaction. Where another person places money on deposit with a bank the relationship has been characterized as one of contract or of debtor and creditor.”

There are different legal obligations and duties that arise from some of these relationships, which for present purposes will be divided into two broad categories: contractual and fiduciary. It likely goes without saying that this is a complex and developing area, so this article is by necessity introductory in nature

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Bankruptcy law is a necessary feature of a modern economy, and the principles for a bankruptcy apply whether the debtor happens to be a sovereign or not. The essential point is that markets cannot handle situations of extreme financial distress or debtor-creditor workouts in an efficient manner without a sound legal framework. Indeed, Adam Smith himself was a champion of applying bankruptcy processes to insolvent sovereign debtors, arguing that when the situation warranted it, bankruptcy was a sensible alternative to the chaotic ways that sovereign insolvency was otherwise handled. (1) Thus, the fact that the private financial community continues to oppose a sovereign bankruptcy law is quite unconvincing, especially since an enormous number of countries has had a sovereign workout at some point in history.

Debt Relief to Promote Growth and Democracy

When the Berlin Wall fell and I was advising the Polish government on how to handle the debt it inherited from the Soviet Union, I knew that we needed to get the debt canceled so that free post-communist Poland would have a chance to resume economic growth, regain social stability and develop its democracy. The big opponent at the beginning was Germany, so I went to the Library of Congress and took out the 1953 London Debt Agreement that granted Germany a substantial reduction of its pre-war and post-war debts to allow the new German government to function and to consolidate democracy. I gave the Polish Finance Minister Leszek Balcerowiez a copy of the London Debt Agreement

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Bankruptcy, the process by which a debtor is declared unable to pay debts and the debtor’s property is administered for the benefit of creditors, has assumed particular importance in the wake of recent worldwide economic conditions. In fact, bankruptcy has been a part of legal processes for centuries.

The word itself, “bankruptcy”, is derived from the Italian phrase banca rotta or “broken bench”, which refers to the medieval practice of destroying a businessman’s trading bench for a failure to pay his debts.

Historically, bankrupts have been treated harshly _ often as criminals, but as the need to find an economically sound solution to the problems caused by failing businesses has periodically increased, bankruptcy has developed into a system designed to allow bankrupt individuals or companies the opportunity of reorganisation and rehabilitation, in addition to meeting the

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While many potential home buyers are eager to revel at the real-estate party, some homeowners are sobering up the hard way.

Dorothy Monroe is one of many homeowners who took advantage the low interest-rate environment of the past few years to refinance her mortgage and borrow more cash against the equity she’d built in her home. The 60-year-old Wilmington, N.C., resident used her new mortgage to consolidate her debts. “I was making good money then and could easily afford the payments,” she says. “But it turned out to be the biggest mistake I’ve ever made.”

After being laid off from her job as a kitchen manager, she suffered a cash crunch that left her unable to make the payments on her mortgage. After three months of missing payments, the foreclosure notice arrived.

Many homeowners who end up in this position resign themselves to losing their homes, but Ms. Monroe managed to avert foreclosure by finding new employment and negotiating a new loan with her lender, known in the industry as a loan “workout.”

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The technologies of the Internet age have spawned numerous new property rights, and as property rights evolve, methods of transferring those rights, both voluntarily and involuntarily, must evolve as well. One of the most visible property rights to emerge recently is the Internet domain name, the alphanumeric identifier that allows ordinary humans to find Web sites. Disputes over these names are already part of the business and legal literature, as in the early days of the Internet, speculators bought names in the hopes of transferring them for large sums of money to the companies that hold the trademarks to those names. (1) While the law governing these cybersquatting disputes is developing rapidly, through both case law and statute, (2) another area of “domain name law,” that of creditors’ rights in those names, is not. In this article, I explain the problems that a creditor who seeks an interest in a debtor’s domain name might face and suggest some solutions to these problems. I will address both the plight of the unsecured creditor who seeks to enforce a judgment by seizing a domain name and that of the secured creditor who wishes to create an enforceable security interest in a domain name as collateral for a loan.

To illustrate the problem, I will discuss two hypothetical loans to Bonnie Bordeaux, an Internet entrepreneur who wants to sell red wines online. She was lucky enough to register the name french-red-wine.com (3) for her Web site. Bonnie was fortunate to register the name because many people looking for French red wines on the Internet might just guess that french-red-wine.com is a site selling such a product. As a result, her Web site should receive a lot of business. In addition, the name is not eligible for trade mark protection, (4) so she need not worry about anyone else claiming rights in the name.

Bonnie needed money to start her business, so she approached First Bank for a loan. The First Bank loan officer was happy with Bonnie’s list of assets, which includes the domain name www.french-red-wine.com. Because the name is not eligible for trademark protection, First Bank believes that, if it can get control of the name, it will be able to sell the name without selling the goodwill of the business. If the site does a booming business because of the name, its resale value will be great. (5)

In this article, I will examine the problems that First Bank is likely to face from two perspectives: first, from the perspective of an unsecured creditor who obtains a judgment against Ms. Bordeaux, and then from the perspective of a secured creditor who wants to enforce its interest in her domain name after she defaults on the loan. The difficulties that both creditors will face illustrate the need for today’s courts and legislatures to develop means by which creditors can realize the value of new types of intangible assets.

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WASHINGTON — The heavyweights of the global finance community unveiled a set of voluntary guidelines on Monday aimed at making debt defaults less traumatic for nations and investors alike.

Major debt issuers like Brazil, Mexico, Korea and Turkey worked together with the Institute of International Finance, an influential group of private banks, to put together the principles announced in a news conference at the IIF headquarters here.

Its promoters hope the guidelines — the “Principles for Stable Capital Flows and

Source : accessmylibrary.com

Butchering the legacy you want to leave your loved ones with a homemade will or estate plan is as easy as botching do-it-yourself surgery, professionals say.

Balderdash, says Gary Mitchell, a retired TWA mechanic from Independence who drafted his own living trust a decade ago.

Mitchell drafted plans for himself and his wife, Willa Mitchell. He had few out-of-pocket expenses, just some self-help books and some off-the-shelf software in his home computer. Since then, Mitchell has helped friends and relatives draw similar plans.

Even staunch critics of homemade wills and trusts concede that virtually anyone can draft a will or create a trust to express their wishes after death. They just don’t think everyone should try, because potential pitfalls abound.

“It’s a minefield, and the more you learn about it, the more you are going to be very careful,” said Vic Van Walleghem, a retiree in Shawnee who considered writing his own plan 15 years ago but decided against it. “It’s not that expensive to go to someone who knows what they’re doing.”

It shouldn’t cost more than a few hundred dollars for a lawyer to draw up a relatively simple will, though complex plans can cost thousands.

Advocates of homemade plans say the process is detailed because of intricate layers of laws but within most people’s grasp.

“It takes just four lines of specific language to create a trust,” said Mitchell, who began learning the ropes by reading some self-help books in 1991. “After that, you just need to understand the concepts of the documents you are working with and to be articulate when you begin writing instructions.”

No one will truly learn how

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Secured creditors in the Shilo Inns bankruptcy case want to collect more than $204 million in debt and unpaid fees from the Portland lodging chain’s founder, Mark Hemstreet.

In March, trusts representing several national banks filed lawsuits in state court against Hemstreet seeking debt repayment, but they revoked the claims when most of the

Source : accessmylibrary.com

Butchering the legacy you want to leave your loved ones with a homemade will or estate plan is as easy as botching do-it-yourself surgery, professionals say.

Balderdash, says Gary Mitchell, a retired TWA mechanic from Independence, Mo., who drafted his own living trust a decade ago.

Mitchell drafted plans for himself and his wife, Willa Mitchell. He had few out-of-pocket expenses, just some self-help books and some off-the-shelf software in his home computer. Since then, Mitchell has helped friends and relatives draw similar plans.

Even staunch critics of homemade wills and trusts concede that virtually anyone can draft a will or create a trust to express their wishes after death. They just don’t think everyone should try, because potential pitfalls abound.

“It’s a minefield, and the more you learn about it, the more you are going to be very careful,” said Vic Van Walleghem, a retiree in Shawnee, Kan., who considered writing his own plan 15 years ago but decided against it. “It’s not that expensive to go to someone who knows what they’re doing.”

It shouldn’t cost more than a few hundred dollars for a lawyer to draw up a relatively simple will, though complex plans can cost thousands.

Advocates of homemade plans say the process is detailed because of intricate layers of laws but within most people’s grasp.

“It takes just four lines of specific language to create a trust,” said Mitchell, who began learning the ropes by reading some self-help books in 1991. “After that, you just need to understand the concepts of the documents you are working with and to be articulate when you begin writing instructions.”

No one will truly learn how successful

Source : accessmylibrary.com

For all practical purposes, every bit of the EFCC report on the PTDF affair is what the Ndoma Egba report is exactly about. Going carefully through it, you are left in no doubt that the Committee relied on the Commission’s submission to draw its conclusions, leaving all other evidences at its disposal. Indeed, it doesn’t even pretend about this.

So, let us isolate the EFCC submission for critical analysis subjecting it to its own evidences and conclusions, and, in doing so, deal first with the issue of PTDF placements in Trans International Bank, TIB, since it is central to the matter, of course, Mofas excluded.

The summary is as follows:

a. That PTDF on July, 16, 2003, placed USD10 million {about N1.28 billion} in the Bank.

b. That, on December 24 of the same year, it placed an additional USD20 million (about 2.56 billion)

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The federal judge overseeing Pacific Gas & Electric Co.’s bankruptcy case asserted in a decision Friday that the authority to set rates belongs to state regulators, signaling that he will not raise rates to help the financially ailing utility.

“The Bankruptcy Code, and the bankruptcy court, were designed to resolve debtor-creditor problems,” Judge Dennis Montali wrote. “State agencies are where issues such as rates for electricity are handled.”

The decision resolves — at least for now — the single largest issue for consumers in the PG&E case: Whether the judge would jack up rates to help PG&E pay its creditors. Montali did allow himself an opening for future court-ordered increases, but the language of his ruling makes clear he is inclined to leave the rate-setting issue to the Public Utilities Commission.

Consumer groups

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WASHINGTON _ The heavyweights of the global finance community unveiled Monday a set of voluntary guidelines aimed at making debt defaults less traumatic for nations and investors alike.

Major debt issuers like Brazil, Mexico, Korea and Turkey worked together with the Institute of International Finance, an influential group of private banks, to put together the principles announced in a news conference at the IIF headquarters here.

Its promoters hope the guidelines _ the “Principles for Stable Capital Flows and Fair

Source : accessmylibrary.com

This article, the second in a series on collecting deceased consumer debt, focuses on the hodgepodge of state laws governing the collection of consumer debt once a consumer becomes deceased. There is a comparison of the rules of the game under the Uniform Probate Code and other state probate laws, and discussion of the probate claims process and the general process of pre-death collections, the applicability of certain other laws after death, and the extent to which current probate laws are inappropriate to the current realities of the consumer credit industry.

Death has a way of complicating things. The consumer credit industry’s procedures are fairly standard across the spectrum of the debtor-creditor relationship, ranking from qualification, to extension of credit, to collection during life. Except for certain state law variations, of course, the processes, procedures, and laws governing privacy, collection practices, foreclosures, credit reporting, lawsuits, and bankruptcies tend to be quite harmonious and even complementary. Whatever happens, we all pretty much have procedures and forms in plate to deal with it.

However, once a consumer dies, things get a little weird because: 1) the rules of the game change suddenly; 2) creditors often may not know what the new rules are until the game is nearly over; and 3) the clock begins to tick away well before creditors even know the game has changed. This is the “two-minute drill.”

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