Now that I have hit double digits as a neutral, I thought I would share some arbitration practice tips for attorneys based on lessons learned over the last 10 years. Be Prepared: I prepare for the preliminary case management and scheduling conference, the final hearing, and each of the hearings in between. You should too. Preparation includes reviewing the applicable arbitration clause and arbitration rules and understanding how they impact the relief you are requesting or the process you are hoping to establish. Be Focused: Arbitration is not an endurance competition. Be focused both in your writing and presenting. More is not better. It is just time-consuming. Concisely explain to the arbitrator(s) what you want and why you should get it. Be Realistic: As a general rule, neither the rules of evidence nor the rules of civil procedure apply in arbitration. There may be specific instances where there is a compelling need to challenge a specific exhibit or specific testimony. Similarly, there may be cases where extensive discovery is warranted. However, as a general rule, in arbitration discovery is more limited and evidentiary objections are overruled. Be in Touch: Not with the Arbitrator(s), but with the other side. The parties should meet and confer regularly throughout the arbitration, including before the preliminary case management and scheduling conference. Arbitration allows parties the flexibility to work together to tailor the process to the needs of their dispute. While every arbitration is different, being prepared, focused, realistic, and in touch (with the other side) can help the parties in all arbitrations. Disclaimer: Nothing contained herein constitutes legal advice nor does anything contained herein create a professional relationship. Arbitrator Insights - Practice Tips for Attorneys Based on Lessons Learned in Over 10 Years as an Arbitrator The post Arbitrator Insights: Practice Tips for Attorneys Based on Lessons Learned Over 10 Years as an Arbitrator appeared first on Sylvia Mayer Law.
Ten years ago, I shifted my practice from serving as an advocate (an attorney representing parties) to primarily serving as a neutral (an arbitrator or mediator). Those 10 years went by in the blink of an eye. Now that I have hit double digits as a neutral, I am pausing to reflect on the lessons that I learned over the last 10 years. Whether as a mediator or an arbitrator, here are my top 10 lessons learned: AB Cs: As a neutral, I rely heavily on the AB Cs. Not the alphabet, but AB Cs as an acronym for analyst, bartender, and chameleon. Like an analyst, I analyze the facts, the law, and sometimes the people. Like a bartender, I listen patiently, I listen early, and I listen often. Like a chameleon, I adapt throughout the process to meet the needs of the moment. Patience: I bring my patience with me to every mediation and arbitration. Dispute resolution is a process, and any process takes time. Timing: Each dispute is unique and finding the right timing varies depending on the parties (client and counsel), the nature of the dispute, the status of the dispute, and myriad other factors. Patience and the AB Cs help as I evaluate timing considerations in both mediations and arbitrations. Mindset: A flexible, open, and curious mindset is a critical aspect of dispute resolution. Participants’ mindsets often evolve throughout the process. While true in arbitration, it is often starker in mediation as participants’ mindsets shift from adversaries and advocacy to conciliation and closure. Emotions: People are people and people have emotions. Regardless of whether the dispute is business, consumer, or deeply personal, it is often driven by emotions. While emotions may not change the facts or the law, emotions often impact the path to resolution. X-Factor: Most disputes have an x-factor – meaning the thing that sways the ultimate outcome. The x-factor varies by dispute and sometimes, within a dispute, by party or perspective. Identifying, understanding, and exploring the x-factor is critical to reaching resolution. Receptivity: Receptivity refers to being open or receptive to resolution. Receptivity is a critical component of both mediation and arbitration. In mediation, the process is used to help parties move from conflict to resolution. In arbitration, while the resolution may not be consensual, the flexibility of the process and the ready access to a forum for resolution may help parties become receptive to closure. Candor: Candor with the neutral aids the process. In arbitration, during the preliminary hearing and scheduling conference, candor about the needs of the case allows me to tailor the schedule and process to fit the unique aspects of that dispute. In mediation, candor from counsel about the undercurrents, dynamics, and barriers to resolution aid in my ability to help the parties find a path to resolution. Authority: In mediation, there is no settlement without settlement authority. However, the settlement authority someone comes with to mediation may not be all of the settlement authority they can get. Do not let settlement authority become the barrier to resolution. Preparation: As Benjamin Franklin famously said, “by failing to prepare, you are preparing to fail.” I consider preparation to be an integral part of my role as a neutral, so I prepare for every mediation and every arbitration. The parties should too. Disclaimer: Nothing contained herein constitutes legal advice nor does anything contained herein create a professional relationship. ADR Insights - 10 Lessons Learned in 10 Years as a Mediator and Arbitrator The post ADR Insights: 10 Lessons Learned in 10 Years as a Mediator and Arbitrator appeared first on Sylvia Mayer Law.
HOW TO USE ARTIFICIAL INTELLIGENCE IN YOUR LAW PRACTICE (“BE AN IMPLEMENTER) CLE OUTLINE DELIBERATE SOLOS PRESENTED ON 03-2008-2024Why You Should You Use Artificial Intelligence in your Law Practice:1. Effectively using technology can make the practice of law easier, more enjoyable and more profitable!2. Failing to use technology in your law practice may be considered "malpractice" by many State Bar associations.3. Artificial Intelligence is the most significant development in Legal Technology in the last 50 years: It will turn out to be more impactful to lawyers than the personal computer, email, smartphones, the Internet or Google Search4. It is also a “Disruptive Technology”-it will sneak up on and displace existing technology at a quick pace5. One argument against using Artificial Intelligence in law practice concerns confidentiality. Similar issues were raised years ago regarding email, but many State Bar associations ruled that email did not violate confidentiality.-My thoughts about Hallucinations are discussed below6. Google Search has become less reliable, according to reports from many users and a study by researchers in Germany.I have a Pixel phone, I use Google Docs, Google Drive & many Google products, but I am dissatisfied with many Google Search results.Advertising, Spam & Artificial Intelligence have corrupted Google searchesPaid placement ads have negatively impacted Google Search results***When you do a Google Search you get 10 blue squiggly lines, not answers to questions!Artificial Intelligence is an “Answer Genie”-you do not get 10 Squiggly Lines, you get answers to your questions in real time!Artificial Intelligence searches allow you to refine your search prompts after each search rather than having to do new searches in Google.7. On an average day I use Artificial Intelligence 20 times a dayII. HOW I USE ARTIFICIAL INTELLIGENCE PRODUCTS ON A DAILY BASIS:a. Flawlessly AI - Free AI Writing Checker-will review text up to 1000 characters long.It is free. You copy & paste text into the app to have it review or edit your writingI do not send out a lengthy email or blog post without using itIt is the best grammer checker program I have used b. Wordtune: Free AI Writing Assistant | Write Better Today https://www.wordtune.com/ c. chatLAW Q&A with AI Trained on Bankruptcy Law for Bankruptcy Research1. Free chatbot dealing with Bankruptcy law, created by a PHD in Computer Science with no Bankruptcy law experience2. Best Bankruptcy law research program I have ever used-in my opinion better than Lexis, Westlaw or Google Scholar3. You type in a question, it provides an Answer, citation to cases and a “SHOW AUDIT” link that directs you to the cited casesd. Image Creator from Microsoft & Google-these products are free, easy to use, you enter text and they produce an image that you can use for Blog posts, emails or social media.Microsoft Designerhttps://designer.microsoft.com/image-creatorGoogle ImageF Xhttps://aitestkitchen.withgoogle.com/tools/image-fxe. CLAUDE & PERPLEXIT Yi. In my opinion these are the 2 best free Artificial Intelligence search botsii. Claude by Antrop/c -incredibly easy to use & very accurate search results-it also has a “paper clip” icon that allows you to upload & search documents-Real life example: I uploaded a 65 page Bankruptcy Petition and asked Claude how many secured creditors and how many unsecured creditors were referenced in the Bankruptcy Petition and the average dollar amount of the claims: the results came back in 13 secondsiii Perplexity -results include footnotes -very accurate results-Jeff Bezos Amazon founder recently invested $250 million dollars into the companyiv. How I use Claude & Perplexity on a Daily Basis:-Legal Research-Document Drafting-Learning new areas of the law-Developing or implementing legal strategies in cases-As “Co-Counsel to bounce questions or strategies off-Suggesting documents to request in Discovery & Questions to ask at a deposition-Troubleshooting technology problems or issues-Recommendations for new tech apps to use-Training Tips: I am training for a half marathon. How do I train for that event?-Food recipes -General Searches in place of Google Searchf. Craft document Creator Artificial Intelligence i. Get a personalized document in secondsg. Podcast Search thru Artificial Intelligence Dexa & Listen Notes Dexa:https://dexa.ai/?utm_source=substack&utm_medium=emailListen Notes:https://www.listennotes.com/search/?q=Israel%20AND%20Gaza&sort_by_date=0&scope=episode&offset=0&language=Any%20language&len_min=0h. Canvahttps://www.canva.com/“Canva is a free graphic design platform that allows you to easily create invitations, business cards, flyers, lesson plans, Zoom backgrounds, and more using professionally designed templates”I used it recently to create a Zoom and Google Meet Background-easy to use & freeIII. How to Learn to Use Artificial Intelligence in your Law Practice:1. Use “Kaizen” Japanese approach of continuous gradual improvement2. Spend 15 minutes each day learning Artificial Intelligence-google alert web searches on Artificial Intelligence topics, read articles & youtube videos3. Sign up & read Dr Jeremy Caplan Wonder Tools Professor of Journalism at CUNY Wonder Tools Tools helps you discover the most useful sites and apps https://wondertools.substack.com/4. Sign up & read The Rundown Learn AI in 5 Minuteshttps://www.therundown.ai/subscribe?utm_source=www.therundown.ai&utm_medium=newsletter&utm_campaign=openai-changes-the-ai-video-world5. Learn the difference between “Prompt Engineering vs Search Queries” HOW TO WRITE AN EFFECTIVE PROMPT:-A Prompt needs background information and context to be useful!-Tell the Chatbot what you want it to do (give it Instructions) Example of a Prompt: I am a Bankruptcy attorney. I have a client, a Debtor, that wants to file a chapter 13 Bankruptcy Petition in the SDNY. The Plan will be a 5 year plan, if all creditors, including a creditor who got a judgment for an intentional tort, are not paid in full over 5 years, will the Debtor get a discharge?-The more prompts you write and use, the better you will become at Prompt Engineering!6. Go cold turkey: do not use Google Search for one day. Instead, only conduct searches on Claude, Perplexity, or ChatGPT and compare the results. 7. How to Prevent Hallucinations-BE ESPECIALLY CAREFUL & CHECK CITES TO LEGAL CASES WHEN USING ARTIFICIAL INTELLIGENCE FOR LEGAL RESEARCH!A. Use Perplexity which provides footnotes to its answers & is considered the most accurate chatbotB. Copy & paste your prompt into Claude, Perplexity, ChatGPT & Google and review the results from all searches to determine if the results are accurate or correct. If you are using Artificial Intelligence for legal research or to write a Motion or Brief check & shepardize the cited casesDo not let Hallucinations be a crutch to prevent you from using or learning Artificial Intelligence.Jim Shenwick, Esq 917 363 3391 [email protected] https://calendly.com/james-shenwick/15minPersonal & Business Bankruptcy, Bankruptcy Litigation, Workouts, Asset Protection Planning & Defaulted SBA EIDL Loans.We held individuals & businesses with too much debt!
E.D.N.C.: Lewis v. EquityExperts.org- Excessive Fees illegal under FDCPA Ed Boltz Thu, 03/21/2024 - 16:16 Summary: After allegedly falling $314 behind on her homeowners association dues, the HOA retained EquityExperts.org to "aggressively" collect and it eventually ran up costs by an additional $6,035, threatening sale of the property. Kimberli Lewis brought suit against EquityExperts.org, LLC alleging improper debt collection practices by EquityExperts.org in connection with delinquent homeowners association dues. Lewis's claims were based on violations of the Fair Debt Collection Practices Act (FDCPA), North Carolina Collection Agency Act (NCCAA), North Carolina Debt Collection Act (NCDCA), Unfair and Deceptive Trade Practices Act (UDTPA), and for common law unjust enrichment. She also sought class action certification, damages, and attorneys' fees. EquityExperts.org moved to dismiss her claims for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). The court granted the motion in part and denied it in part. The court found sufficient facts to support Lewis's FDCPA claim, focusing on the allegations that EquityExperts.org misrepresented the immediacy of foreclosure and attempted to collect fees not authorized by law or the association's covenants., following the 6th Circuit in holding that "the FDCPA prohibits collection of costs that exceed 'actual costs of collection,' or costs that are unreasonable or excessive beyond any relation to the value of the principal amount of the debt." Sparks v. EquityExperts.org, LLC, 936 F.3d 348, 352 (6th Cir. 2019). The claims under the NCCAA and NCDCA were also allowed to proceed, based on similar reasoning applied to the FDCPA claim. However, the court dismissed the stand-alone UDTPA claim, concluding that the allegations did not independently indicate "egregious or aggravating circumstances" beyond those necessary to support the other statutory claims. The unjust enrichment claim was also dismissed, as the court found that the payments made by Lewis did not constitute unjust enrichment. The court denied the motion to strike class action allegations, indicating that it was not clear from the complaint that class certification requirements under Rule 23 could not be met. Commentary: Start of course with the observation that most Homeowners Associations are evil. Secondly, this case and the holding that legal fees and collection costs violate the FDCPA if "unreasonable or excessive beyond any relation to the value of the principal amount of the debt", may also be relevant in bankruptcy. For example, when a mortgage servicer seeks $1,200 in attorneys fees for completing Proof of Claim for a debtor who is not delinquent on the mortgage, those fees might not only be unreasonable and subject to disallowance, but also could, subject to Midland Funding, LLC v. Johnson, give rise to counterclaims under the FDCPA. Blog comments Attachment Document lewis_v._equity_experts.pdf (263.75 KB) Category North Carolina Bankruptcy Cases Eastern District
Social Security Disability Insurance, or SSDI, is a Federal Program that helps many Americans who cannot support themselves through work because they are disabled. However, the program can be extremely competitive, and many potential SSDI applicants may be hesitant to work toward getting benefits because they have heard that it is so hard to get an application approved. It is not at all uncommon for people to get denied on their first SSDI application. In fact, most people are denied on their initial application to the program. SSDI is a very competitive program, and evaluators have many applications to sift through. However, even if you are denied the first time around, you should not give up on getting disability benefits. Many applicants get their application approved when it is later reconsidered. For help with your SSDI needs, call Young, Marr, Mallis & Associates at (215) 515-2954 for Pennsylvania or (609) 557-3081 for New Jersey and talk to our SSDI Attorneys today. How Often Do People Get Denied in SSDI Applications? According to the most recent complete set of statistics, 67% of SSDI applications were denied on their application. Of the individuals awarded SSDI benefits, roughly 21% got their benefits from their initial application, while between 2% and 8% got benefits after having their application reconsidered. This demonstrates that it can be tough to get SSDI benefits. However, statistics do not tell the whole story. Many individuals are denied because there are mistakes on their application or because changes in their lives make it so they no longer need SSDI. Those applications are technically denials, but the former is easily fixed by our SSDI lawyers, and the latter removes the need to get benefits from the program. Major Reasons SSDI Applications are Denied When an SSDI application is denied, it is usually not for no reason at all. True, there are a handful of complete errors, as the evaluators are only human, but generally, there is something wrong with an application that needs to be fixed or explained. Absence of Medical Evidence A major reason that SSDI applications are denied is that there is not enough medical evidence in the application to prove that the applicant meets the disability threshold. If this is the reason your application was denied, you should work with our attorneys to have us gather the necessary medical records to have a successful application on appeal. Prior Denied Application If you submitted an application that was later denied, it can make it more difficult, but not impossible, to have a later application approved. This is different from having an application appealed or given a hearing, as that would involve a reexamination of an existing application, not an entirely new one. Income Thresholds If you have too much income, you can be ineligible for SSDI. There are thresholds for “substantial gainful activity which, once passed, prevent individuals from being eligible for SSDI. In 2024, the threshold for SDA is $1,550 earned a month for non-blind individuals and $2,590 earned a month for blind individuals. The amount for SDA is updated each year to account for inflation and other factors. Do SSDI Applications Take a Long Time to Finish? How long it takes to get your application through will depend on the facts and circumstances surrounding your case. The Social Security Disability website has a webpage detailing the things that can impact an SSDI application’s speed of going through the process. First, the nature of your disability can make an application go through slower or more quickly. Applicants with some disabilities, like blindness, may have their applications approved more quickly than applicants with other disabilities. Second, medical evidence requirements can slow down an application. Often, application evaluators will need medical records and other similar evidence to make a decision about your application. So, the quicker we can get that information into your account and to SSDI evaluators, the better. Third, evaluators may require that you undergo a medical examination before having your application approved, so an application can be delayed pending a medical checkup. Fourth, your application may need to be reviewed for “quality purposes.” This accounts for any potential hangups evaluators may have about your application. SSDI claims that it generally takes between six and eight months to fully review an initial SSDI application. Finally, when your application is approved, there is a subsequent waiting period of five months before Social Security starts paying you benefits. You get your first SSDI payments in the sixth full month after you are disabled, so you could wait longer than five months if your disability began in the middle of the month. Options After an SSDI Claim is Denied If your initial SSDI claim is denied, there are still options available to you to try and get the disability benefits you need. If your initial application is denied, you can file an appeal, request a hearing, and file a lawsuit in federal court. Appeal The first thing to do after your SSDI application is denied is to file an appeal. You can do this right up to 60 days after you get a notice that your application was denied. Administrative Hearing If your application is still denied after you request an appeal, you can have a hearing in front of an administrative judge. Much like in a court case, our lawyers will advocate for your SSDI eligibility at this kind of hearing. Federal Lawsuit If all else fails, you can sue in federal court. This lawsuit must be filed within 60 days of receiving notice that your appeal was denied. Call Our SSDI and Disability Lawyers Today to Discuss Your Claim If you have concerns about your situation, contact Young, Marr, Mallis & Associates’s SSDI Attorneys at (215) 515-2954 for Pennsylvania or (609) 557-3081 for New Jersey to discuss your claim for free.
M.D.N.C.: Atkinson v. Coats- Law Enforcement Officer involvement in Illegal Self-Help Repossession Ed Boltz Wed, 03/20/2024 - 01:39 Summary: When Carolina Repo attempted a self-help repossession of her car, Atkinson attempted to drive her vehicle away. Carolina Repo then slid the tow bar under the car to disable it, demanded that she exit it, and called the Harnett County Sheriff's Office. Deputy Sheriff Godrey arrived at the scene and directed Atkinson to exit the vehicle so that it could be repossessed. Intimidated by an armed law enforcement officer, Atkinson complied and Carolina Repo took the car. In addition to bringing suit against Carolina Repo (which was sent to arbitration), Atkinson sued Godfrey and Seriff Wayne Coats alleging a violation of 42 U.S.C. § 1983. Coats & Godfrey moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), arguing both that Godfrey's actions were no more than a “de minimus involvement in a private company’s repossession of Plaintiff’s vehicle . . ..” and that Godfrey is entitled to qualified immunity. Further, Coates argued that Atkinson failed to plausibly allege a "policy or custom" of the Sheriff's office that violated the Constitution. The district court, however, held that, when construed in the light most favorable to Atkinson, Godfrey's order to exit the vehicle so that Carolina Repo could repossess it was plausibly "active participation" Citing heavily from Marcus v. McCollum, 394 F.3d 813 (10th Cir. 2004) with respect to law enforcement involvement in a private repossession determination of whether Godfrey participated in a manner sufficient to constitute intervention and state action is a fact-intensive issue that involved many factors, including: Whether an officer: Came on the scene: at the request of the repossessor; with the repossessor; stood in close proximity to the repossessor; and/or and remained until completion of the repossession. Instructed the vehicle owner: not to interfere with the repossession; that she was not the rightful owner of the property; and/or To stop interfering or he would go to jail; Unreasonably: Accepted the documentation of the repossessor; and/or Recognized the rights of the repossessor over those of the debtor; Whether the debtor would have prevented the repossession if police had not been there; Whether, even if unintentional the officer intimidated the debtor into not exercising her right to resist. Whether the action of the officer were necessary to keep the peace and deescalate the repossession "[T]he overarching lesson of the case law is that officers may act to diffuse a volatile situation, but may not aid the repossessor in such a way that the repossession would not have occurred but for their assistance." Marcus v. McCollum, 394 F.3d 813 (10th Cir. 2004). The district court also held that Atkinson's allegations were sufficient to establish violations by Godfrey of her constitutional rights under the 4th and 14th Amendments as a “reasonable police officers should know from the established precedent in Fuentes that their role is not to be participants in property deprivations without notice and an opportunity to be heard.” Abbott v. Latshaw, 164 F.3d 141, 146 (3rd Cir. 1998). Lastly, as to Coates, the district court held that Atkinson pled sufficiently, even though "upon information and belief", that the Harnett County Sheriff did have "policies and customs" that led to the alleged constitutional violations. Commentary: Marxist snark of the day- It is always good when law enforcement choses to use the illegal threat of state violence in service of breaches of the peace by capital. See UCC § 9-609. This decision is on appeal to the 4th Circuit Court,. but it is unclear if NACA, NCLC or other consumer rights organizations are assisting. There also seems to be some unlikely attorneys, who normally represent consumers, appearing for other creditors in this case. To read a copy of the transcript, please see: Blog comments Attachment Document atkinson_v._coats.pdf (220.74 KB) Category Middle District
M.D.N.C.: Atkinson v. Coats- Law Enforcement Officer involvement in Illegal Self-Help Repossession Ed Boltz Wed, 03/20/2024 - 01:39 Summary: When Carolina Repo attempted a self-help repossession of her car, Atkinson attempted to drive her vehicle away. Carolina Repo then slid the tow bar under the car to disable it, demanded that she exit it, and called the Harnett County Sheriff's Office. Deputy Sheriff Godrey arrived at the scene and directed Atkinson to exit the vehicle so that it could be repossessed. Intimidated by an armed law enforcement officer, Atkinson complied and Carolina Repo took the car. In addition to bringing suit against Carolina Repo (which was sent to arbitration), Atkinson sued Godfrey and Seriff Wayne Coats alleging a violation of 42 U.S.C. § 1983. Coats & Godfrey moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), arguing both that Godfrey's actions were no more than a “de minimus involvement in a private company’s repossession of Plaintiff’s vehicle . . ..” and that Godfrey is entitled to qualified immunity. Further, Coates argued that Atkinson failed to plausibly allege a "policy or custom" of the Sheriff's office that violated the Constitution. The district court, however, held that, when construed in the light most favorable to Atkinson, Godfrey's order to exit the vehicle so that Carolina Repo could repossess it was plausibly "active participation" Citing heavily from Marcus v. McCollum, 394 F.3d 813 (10th Cir. 2004) with respect to law enforcement involvement in a private repossession determination of whether Godfrey participated in a manner sufficient to constitute intervention and state action is a fact-intensive issue that involved many factors, including: Whether an officer: Came on the scene: at the request of the repossessor; with the repossessor; stood in close proximity to the repossessor; and/or and remained until completion of the repossession. Instructed the vehicle owner: not to interfere with the repossession; that she was not the rightful owner of the property; and/or To stop interfering or he would go to jail; Unreasonably: Accepted the documentation of the repossessor; and/or Recognized the rights of the repossessor over those of the debtor; Whether the debtor would have prevented the repossession if police had not been there; Whether, even if unintentional the officer intimidated the debtor into not exercising her right to resist. Whether the action of the officer were necessary to keep the peace and deescalate the repossession "[T]he overarching lesson of the case law is that officers may act to diffuse a volatile situation, but may not aid the repossessor in such a way that the repossession would not have occurred but for their assistance." Marcus v. McCollum, 394 F.3d 813 (10th Cir. 2004). The district court also held that Atkinson's allegations were sufficient to establish violations by Godfrey of her constitutional rights under the 4th and 14th Amendments as a “reasonable police officers should know from the established precedent in Fuentes that their role is not to be participants in property deprivations without notice and an opportunity to be heard.” Abbott v. Latshaw, 164 F.3d 141, 146 (3rd Cir. 1998). Lastly, as to Coates, the district court held that Atkinson pled sufficiently, even though "upon information and belief", that the Harnett County Sheriff did have "policies and customs" that led to the alleged constitutional violations. Commentary: Marxist snark of the day- It is always good when law enforcement choses to use the illegal threat of state violence in service of breaches of the peace by capital. See UCC § 9-609. This decision is on appeal to the 4th Circuit Court,. but it is unclear if NACA, NCLC or other consumer rights organizations are assisting. There also seems to be some unlikely attorneys, who normally represent consumers, appearing for other creditors in this case. To read a copy of the transcript, please see: Blog comments Attachment Document atkinson_v._coats.pdf (220.74 KB) Category Middle District
Feel overwhelmed by the means test? Got new associates who need to become facile with it? Or just need a refresher on the means test, its idiocycrasies and opportunities? Join Jill Michaux and me for a FREE webinar on the means test, Thursday, March 21, at 10 am, PDT where we tackle the issues on […] The post Master the Means Test, Its Quirks & Quagmires appeared first on Bankruptcy Mastery.
Bankr. W.D.N.C.: In re Best Wall- Bankruptcy Subject Matter Jurisdiction does not require Financial Distress Ed Boltz Fri, 03/15/2024 - 19:18 Summary: The bankruptcy court found that the lack of financial distress does not deprive it of subject matter jurisdiction. For a more detailed summary (which will recommend reading the entire 59-page opinion) see Rochelle's Daily Wire "Lack of Financial Distress Doesn’t Divest a Court of Subject Matter Jurisdiction".Commentary: Judge Beyer provides a very comprehensive survey of the history of bankruptcy law from the eighteenth century to the present writing that: While the language of the Bankruptcy Clause, the history of American bankruptcy law, and the Supreme Court’s descriptions of the bankruptcy power do not definitively answer, or even directly address, the question of whether constitutional subject matter jurisdiction requires a debtor in financial distress, the absence of support for the Committee’s argument is conspicuous. There are simply no cases at any level (of which this court is aware) that explicitly endorse the proposition that bankruptcy courts do not have subject matter jurisdiction unless a debtor has a sufficient degree of financial distress. This complements the recent law review article, by Rafael Pardo, Rethinking Antebellum Bankruptcy. This case (which has been appealed to the district court already) and its potential conflict with In re LTL Management LLC from the Third Circuit could lead to the Supreme Court to provide more definitive parameters for the scope of the Bankruptcy Clause beyond relying on the 182 year old opinion of Justice Catron (sitting as a Circuit Judge). To read a copy of the transcript, please see: Blog comments Attachment Document bestwalljurisdiction_compressed.pdf (401.91 KB) Category Western District
N.C. Ct. of App.: Causey v. Southland- Shareholders Cannot Intervene to Insurance Company Liquidation Ed Boltz Fri, 03/15/2024 - 19:14 Summary: The North Carolina Court of Appeals ruled in the case between Mike Causey, Commissioner of Insurance, and several insurance companies owned by Greg Lindberg, including Southland National Insurance Corporation, Bankers Life Insurance Company, and Colorado Bankers Life Insurance Company. GBIG Holdings, LLC, owned by Lindberg, appealed against the orders directing the liquidation of the insurance companies. The Court of Appeals held that as a shareholder, GBIG should not have been allowed to intervene and defend against the liquidation petition, as only a company’s directors are permitted to intervene to defend under N.C.G.S. § 58-30-95. Commentary: While it seems more obvious that Causey, as the North Carolina Commissioner of Insurance, would seek rehabilitation and eventually liquidation of an insurance company under N.C.G.S § 58‑30 et seq., this is yet another case where a failed business is being handled through avenues other than bankruptcy. Whether GBIG would be able to meet the requirements of 11 U.S. Code § 303 to file an involuntary Chapter 11 bankruptcy and seek to continue the reorganization there would seem to require at least two other entities holding claims is unknown, but could remove this case from state to bankruptcy court. To read a copy of the transcript, please see: Blog comments Attachment Document causey_v._southland_insurance.pdf (145.69 KB) Category NC Court of Appeals NC Courts