Law Review: Gouzoules, Alexander, Choosing Your Judge (January 29, 2024). SMU Law Review, forthcoming 2024, University of Missouri School of Law Legal Studies Research Paper No. 2024-18, Stafford Patterson Wed, 09/18/2024 - 00:54 Available at:   https://ssrn.com/abstract=4876697    Abstract: Accounts of American litigation pose a contradiction: Forum shopping is acceptable, but judge shopping is not. Formal disfavor toward judge shopping is pervasive, and attempts by parties to manipulate the assignment of their case are deemed abusive and even sanctionable. Nevertheless, sophisticated judge-shopping tactics have proliferated in specific areas of the law—particularly in challenges to executive branch policies and in the reorganization of large companies under Chapter 11. In these disparate areas, judge-shopping strategies have been deployed in high-profile cases, ranging from a challenge to the FDA’s authorization of an abortion drug to the opioid-driven bankruptcy of Purdue Pharma. In these cases and others like them, plaintiffs used permissive venue rules to reach small geographical divisions where a single, preferred judge hears all or nearly all cases. These trends led to recent and contested proposals by the Judicial Conference to encourage random assignment. This article first introduces a framework to distinguish between types of judge shopping, explaining why some forms are more problematic than others. Then, it compares judge shopping across areas of law, examining the basis for common intuitions against the practice. It concludes that judge shopping in the regulatory context is especially concerning, with its attendant impact on national governance and its selection away from judicial expertise in administrative law. In contrast, in bankruptcy cases, judge shopping can be disentangled from other controversial—and independently fixable—bankruptcy problems. When examined as a conceptually independent issue, judge shopping in the bankruptcy context raises relatively fewer concerns. Having concluded that judge shopping is more problematic in some areas than others, this article examines potential reforms to address it, including and in addition to the Judicial Conference’s recent recommendations. Alternative possibilities include the abolition of single-judge divisions, reforms to venue statutes, the use of three-judge district court panels to review certain cases, and the granting of judicial peremptory strikes.   Commentary:   While citing to two cases of judge shopping by consumers,  this is article does not address that in many districts consumer debtors are far more restricted in even venue shopping than corporations are, to the extent that consumers are often subject to bench bondage, where a single  judge personally hostile in regards to a particular issue,  whether vesting,  student loan discharge, or even Chapter 13 in general,  can have as results as unfair as when corporations are able to hand-select a preferred bankruptcy judge. Again an example of the disparate treatment of Fake and Real People in Bankruptcy.    With proper attribution,  please share this post.  To read a copy of the transcript, please see: Blog comments

 CELSIUS PREFERENCE CLAWBACK ADVERSARY PROCEEDINGS As many readers of our posts are aware, we have represented numerous former Celsius customers who have been sued in preference clawback actions in Adversary Proceedings in the SDNY Bankruptcy Court.We have also been retained by clients who have settled their cases and asked us to review the 10-page Settlement Agreements.At Shenwick & Associates, our bankruptcy and crypto experience has aided us in settling many cases on very favorable terms for the defendants.Recently, the Bankruptcy Court held a hearing and determined that outstanding settlement offers will expire at 5:00 p.m. on October 15, 2024. We believe it is in the best interest of most defendants to settle their actions as soon as possible.Clients who are defendants can contact Jim Shenwick, Esq. to discuss pending lawsuits or settlements.Jim Shenwick, Esq  917 363 3391  [email protected] Please click the link to schedule a telephone call with me.https://calendly.com/james-shenwick/15minWe help individuals & businesses with too much debt!

Thanks to inflation, you can make over $100,000 and still file for Chapter 7 bankruptcy.  Here in Illinois, a married couple without children can make up to $84,000 and still qualify for Chapter 7 bankruptcy. Even a family of 4 can make $120,000 and still be qualified to file Chapter 7. That’s all because of the “Means Test.”   What Is the Bankruptcy Means Test & How Does It Work?   The Bankruptcy Means Test is a calculation that takes your average monthly income from the past 6 months and compares it to the median income for a same sized household in your state. According to Cubit, the median income for households in Illinois in 2024 is $78,433. Even if you find yourself making more, your disposable income may be lower after deducting consumer debt obligations and monthly expenses such as rent, utilities, food, transportation, and childcare. If you make less than the median income, you can file Chapter 7 bankruptcy without regard to the Means Test if your filing is not otherwise considered “abusive”. Don’t worry; if you are thinking of filing a case, your budget probably leaves nothing over from paycheck to paycheck. Your bankruptcy case won’t be an abuse. You can check your eligibility by filling out the following means test forms: Form 122A-1: Chapter 7 Statement of Your Current Monthly Income Form 122A-2: Chapter 7 Means Test Calculation Form 122A-1Supp:  Statement of Exemption from Presumption of Abuse Under § 707(b)(2)   What If I Don’t Pass the Means Test?   You can still qualify for alternative debt relief solutions if you don’t pass the means test for Chapter 7 bankruptcy, such as debt consolidation or debt settlement. You can also file for Chapter 13 bankruptcy if you have regular income to make monthly payments. While in a repayment plan, creditors are legally prohibited from suing or garnishing wages. At Lakelaw, we will help you analyze your finances. Our bankruptcy lawyers will calculate the allowances and deductions you are entitled to take under the Means Test calculation. We will investigate whether there are special circumstances which allow you to overcome the presumption of abuse that arises if you want to file a bankruptcy case and make more than the median income cut-off points. If it turns out that you must file for Chapter 13, we will do everything legally possible to minimize the payments you would have to make during your Chapter 13 repayment plan.   Safely & Confidently Navigate Bankruptcy with Lakelaw   If you are thinking about filing for bankruptcy, it’s probably because the pressure of credit card payments, garnishment, collection calls, and other creditor harassment is driving you crazy.  Don’t be afraid. We at Lakelaw will take care of you with the kindness, courtesy, respect, professionalism, and dedication that has been our hallmark since we were founded in 1999. If we need to go to bat for you in court, we will always represent you fearlessly and zealously. With close to 50 years of practice, we can speak truth to power on your behalf. And we will.   Get a Free Confidential Consultation The post Means Test: Can I File for Chapter 7 Bankruptcy with $100K Income? appeared first on Lakelaw.

   Bankruptcy Boom: Why More Young Adults Are Drowning in Debt! Forbes has a very interesting and informative article about young adults, debt and surging bankruptcy filings by young people. The article can be found at https://www.forbes.com/advisor/debt-relief/bankruptcies-on-the-rise-gen-z-millennial-debt/At Shenwick & Associates we can confirm that many young people are filing for Bankruptcy. Jim Shenwick, Esq  917 363 3391  [email protected] Please click the link to schedule a telephone call with me.https://calendly.com/james-shenwick/15minWe help individuals & businesses with too much debt!

Book: Zackin, Emily & Thurston, Chloe - The Political Development of American Debt Relief Ed Boltz Thu, 09/05/2024 - 03:17 Available at:  https://press.uchicago.edu/ucp/books/book/chicago/P/bo215476067.html Summary: A political history of the rise and fall of American debt relief. Americans have a long history with debt. They also have a long history of mobilizing for debt relief. Throughout the nineteenth century, indebted citizens demanded government protection from their financial burdens, challenging readings of the Constitution that exalted property rights at the expense of the vulnerable. Their appeals shaped the country’s periodic experiments with state debt relief and federal bankruptcy law, constituting a pre-industrial safety net. Yet, the twentieth century saw the erosion of debtor politics and the eventual retrenchment of bankruptcy protections. The Political Development of American Debt Relief traces how geographic, sectoral, and racial politics shaped debtor activism over time, enhancing our understanding of state-building, constitutionalism, and social policy.  Commentary: The authors describe the legislative debates leading to the passage of BAPCPA , with "[g]roups representing the borrowers who would be the most affected by such changes ... not entirely absent ..., but they were also not very present."   Even from my own personal experience, this gives scant credit to the involvement of organizations such as the National Association of Consumer Bankruptcy Attorneys (NACBA),  NCLC, NACA and even the National Association of Chapter 13 Trustees (NACTT),  who were often fiercely engaged in these battles,  going back as far as the National Bankruptcy Review Commission which led to BAPCPA,  continuing through proposed judicial mortgage modification following the Housing Crash and then through the still catastrophic Student loan crisis.  I would opine that speaking with these organizations  would have broadened the understanding of more recent developments, including looking at recent efforts in the various states that continue to provide parallel debt relief.  An in-depth history of bankruptcy policy and legislation in the 21st century (and the 1990s)  has not yet truly  been written. With its attention,  however,  to Occupy Wall Street and its related groups,  this book does point to missed opportunities for alliances between those grassroots, debtor-driven organizations and the professional advocacy groups such as NACBA.  This book would have further benefit from proposing ideas for how those famously decentralized groups  could better coordinate in the future with an "elite" vanguard to promote legislation more friendly to consumer debtors. With proper attribution,  please share this post.  Blog comments Category Book Reviews

 Many Small Businesses Struggle with COVID-19 EIDL Loan RepaymentRecent reports highlight a growing concern for small businesses that received Economic Injury Disaster Loans (EIDL) during the COVID-19 pandemic. According to a Fast Company article, a significant number of these businesses are facing difficulties in repaying their loans.   The article can be found at https://www.fastcompany.com/91183555/eidl-loans-covid-19-small-businessesThe Scale of the IssueThe Small Business Administration (SBA) distributed approximately 4 million loans through the EIDL program, totaling $380 billion. As of late 2023, more than $300 billion remained outstanding. Unlike some other pandemic-era financial assistance, EIDL loans are not forgivable and must be repaid in full.Impact on Business OperationsBusinesses with outstanding EIDL loans are experiencing several challenges:Reduced access to additional creditLimitations on new investments due to existing debtPotential closure or bankruptcy for those unable to meet repayment termsOur ExperienceAs legal professionals specializing in business debt issues, we've worked with hundreds of companies struggling with SBA EIDL loans. These loans range from $20,000 to $2,000,000. Our observations align with the broader trend:The majority of our clients have been unable to make payments on their SBA EIDL loansMany have found it impossible to refinance these loansA significant number have either:Closed their businessesFiled for bankruptcyAttempted to negotiate workouts with the SBA Additional ComplicationsBusinesses defaulting on SBA EIDL loans face further challenges:Personal guarantee issuesCancellation of debt tax implicationsWe have extensive experience counseling clients on these complex matters.Seeking AssistanceIf your business has defaulted on an SBA EIDL loan or you're dealing with personal guarantee issues related to these loans, it's crucial to seek professional advice.Contact Jim Shenwick for assistance:Jim Shenwick, Esq.Phone: 917-363-3391Email: [email protected] schedule a 15-minute telephone consultation, please use our online scheduling tool.We specialize in helping individuals and businesses manage overwhelming debt.

 As many of our readers are aware, Jim Shenwick, Esq., a New York State licensed Bankruptcy attorney with extensive crypto experience, is representing numerous Celsius customers who have been sued in preference claw back adversary proceedings.  One of the most frequent questions we receive is whether clients should settle with Celsius or defend against the litigation. In this post, we'll explore why settling might be the better option for most defendants.  Why Settlement May Be Preferable  1. Legal Basis: While many clients believe these lawsuits are baseless or unfair, Section 547 of the Bankruptcy Code actually permits a debtor to file preference claw back actions. Our law firm has defended these actions across various industries, including retail, jewelry, garment, and crypto.  2. Cost of Defense: Defending against these actions can be expensive. Costs include:    - Retaining an experienced attorney    - Participating in mediation (paying half the cost)    - Engaging in discovery with the debtor    - Potentially going to trial before a bankruptcy judge  3. Time and Resources: These cases are often difficult and time-consuming to defend. Legal fees, mediation costs, and expert witness fees can range from $25,000 to $100,000. The process could take up to three years to reach trial.  4. Limited Defenses: Common defenses in preference cases include:    - "Ordinary course of business": This defense typically does not apply in crypto cases where most parties invested and withdrew funds in a single transaction.    - "New value": This defense requires that the customer bought more crypto from Celsius after their initial withdrawal. We have not encountered this scenario in our cases.  5. Untested Legal Arguments: Some attorneys and consultants suggest defenses based on Sections 546(c) and 546(g) of the Bankruptcy Code. However, these defenses require a judge to classify crypto as either a commodity, a security or a swap agreement.. While some government agencies such as SEC and the CFTC have taken these positions, we are not aware of any bankruptcy case that has made such a determination.  The Case for Early Settlement  1. Favorable Terms: In our experience, earlier settlements in preference litigation often come with more favorable terms for defendants.  2. Avoiding Escalating Costs for Both Parties: If the debtor is forced to litigate, try the case and prevails, settlements after judgment are likely to be significantly more expensive for defendants then pretrial settlements.  3. Learning from History: In the Madoff case, defendants who chose to litigate rather than settle often ended up losing their cases, paying substantial legal fees and expert witness fees, and having to pay the full judgment amount plus post judgment interest of 9% per anum.  Our Recommendation While each case has its unique facts, we generally recommend that Celsius defendants do the following:  1. Hire an experienced bankruptcy attorney with crypto knowledge. 2. Work towards settling their cases as soon as possible and for the lowest amount achievable.  Our firm has represented many Celsius defendants and has successfully settled numerous cases on favorable terms for our clients.  Contact Information  If you're a Celsius defendant looking to discuss your lawsuit or explore settlement options, please contact: Jim Shenwick, Esq. Email: [email protected] Phone: 917-363-3391  To schedule a 15-minute telephone consultation, please use this link: [Schedule a Call](https://calendly.com/james-shenwick/15min)   Disclaimer: This blog post is for informational purposes only and does not constitute legal advice. Each case is unique, and you should consult with a qualified attorney to discuss your specific situation.  

Bankr. E.D.N.C.: In re Lyles- Violation of the Automatic Stay Ed Boltz Fri, 08/30/2024 - 19:40 Summary: The Lyles brought a motion for sanctions against Corey Heating, Air Conditioning, & Plumbing Inc. (Corey Inc.) for violating the automatic stay under 11 U.S.C. § 362, alleging that despite the filing of Chapter 13 bankruptcy case, Corey Inc. continued to send monthly payment invoices to the Lyles for a prepetition debt. The court found that Corey Inc.'s actions constituted a willful violation of the automatic stay, awarding the Debtors' bankruptcy estate $325 in nominal damages and $1,250 in attorney fees. However, the court rejected Mrs. Lyle's personal claims for her own medical damages,  finding that only Mr.  Lyles was "the target of the attempted debt collection" and that even if that was not the case,  Mrs.  Lyle's  layman testimony  did not convincingly tie specific medical costs to the debt collection letters. Commentary: This is the kind of stay violation that bedevils not only debtors but debtors'  attorneys,  specifically the low level disregard and continued collection activity particularly by small creditors.  Mere monthly statements,  which would be of little consequence for many people,  can take on heightened importance for debtors that have been through the sweat box of debt collection  that led to their bankruptcy filing.   Collection demand after the filing of bankruptcy  can leave these battered and bruised debtors to distrust  their own attorneys and the whole system when the automatic stay does not protect them fully.  This can be further exacerbated  when judges struggle to  recognize that debtors are often  eggshell skull victims and not as resilient as others in the face of this kind of debt collection. With proper attribution,  please share this post.    To read a copy of the transcript, please see: Blog comments Attachment Document in_re_lyle.pdf (214.13 KB) Category Eastern District

N.C. Ct. of App.: Myers v. Broome-Edwards- Self-Help Eviction as Unfair and Deceptive Practice Ed Boltz Fri, 08/30/2024 - 14:47 Summary: The North Carolina Court of Appeals affirmed the trial court's decision, which found that the defendants, Sandra Broome-Edwards and Donald Blair, violated the North Carolina Unfair and Deceptive Practices Act (UDPA) by executing a self-help eviction against the plaintiff, Henry Myers. After  multiple eviction actions were dismissed (including one with prejudice),  the defendants locked Mr.  Myers out of his home and disposed of his belongings, actions the court deemed illegal without judicial process.  Despite the defendants' arguments on appeal, the Court of Appeals upheld the trial court’s findings that these actions were unfair and deceptive, and that Blair, acting as Broome-Edwards' agent, was also liable. The court rejected the defendants' claims, including that res judicata should bar the case, as that argument had not been raised prior to the appeal.  The court also found that Blair, as  the agent for Broome-Edwards, was not shielded from liability by respondeat superior, since the Ejectment of Residential Tenants Act expressly applies to agents and landlords. The trial court’s decision to award treble damages and attorney’s fees to Myers was affirmed.  Commentary: Nice work by the folks at Legal Aid of North Carolina. This case also undermines the frequent assertion by  rent-to-own  creditors and other personal property lenders, that the refusal by a consumer to surrender collateral absent a claim and delivery order,  insulates the creditor's self-help repossessions against any breach of the peace (including the employment of off-duty law enforcement). With proper attribution,  please share this post.  To read a copy of the transcript, please see: Blog comments Attachment Document myers_v._broome-edwards.pdf (125.33 KB) Category NC Court of Appeals

E.D.N.C.: Hagins v. Carrington Mortgage- Frivolity Review Ed Boltz Tue, 08/27/2024 - 16:56 Summary: The court reviewed Marquita Hagins' pro se application to proceed in forma pauperis  and her associated complaint. The court allowed her application solely for the purpose of conducting a frivolity review, as required under 28 U.S.C. § 1915(e)(2)(B). During this review, the court found while a pro se  plaintiff is entitled to more leeway than one represented by an attorney,   Hagins’ complaint, which alleged fraudulent conveyance of a mortgage deed and other violations, lacked sufficient factual basis to support her claims under the cited federal statutes, such as the Fair Debt Collection Practices Act (FDCPA) and various criminal statutes that do not provide for private rights of action.  Additionally, the court found no valid basis for federal jurisdiction or any clear state law claims to support diversity jurisdiction. As a result, the magistrate judge recommended that Hagins’ complaint be dismissed without prejudice, meaning she could potentially refile if she corrected the deficiencies. Hagins was given until June 5, 2024, to file objections and the failure to do so could result in the presiding district judge adopting the recommendation and barring her from appealing the decision. Commentary: With no further filings,  this case was then dismissed on July 16,  2024. With proper attribution,  please share this post.  To read a copy of the transcript, please see: Blog comments Attachment Document hagins_v._carrington_mortgage.pdf (217.46 KB) Category Eastern District