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Posted:
August 27, 2012
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Bankruptcy Cases in the News

Bankruptcy Cases in the News

In a recent case, local Bankruptcy Court Judge Walter Shapero granted the Trustee’s Motion to dismiss a debtors’ case under 11 USC 707 (b)(3). The reason was that the debtors with “some belt tightening” should not have been in a Chapter 7 but had sufficient income to pay a dividend to unsecured creditors and so would have to elect to dismiss or proceed in a Chapter 13.

The case is Meletios Golematis, Case No.: 11-52238 out of the U.S. Bankruptcy Court, Eastern District of Michigan. The case turned upon whether the debtors were sufficiently needy – although technically qualified – for Chapter 7 relief. In other words, it was not alleged that the Debtors were dishonest or did anything wrong but argued whether they had an ability to repay some unsecured non-priority creditors going forward. The Court framed the inquiry as follows.

Authority to dismiss a case under Chapter 7 for abuse is derived from §707 (b)(1), which provides in part:

“After notice and hearing, the court, on its own motion or on a motion by the United States trustee, trustee (or bankruptcy administrator, if any), or any party in interest, may dismiss a case filed by an individual debtor under this chapter whose debts are primarily consumer debts, or, with the debtor’s consent, convert such a case to a case under Chapter 11 or 13 of this title, if it finds that the granting of relief would be an abuse of the provisions of this chapter.”

Under §707 (b)(3)(B), when bad faith is not a factor, courts examine the totality of the circumstances in determining whether the debtor’s financial situation constitutes abuse warranting dismissal. The UST carries the burden of establishing by a preponderance of the evidence the applicability of this ground for dismissal. In the Sixth Circuit a totality of the circumstances inquiry under §707 (b)(3)(B) involves an analysis of whether the debtor displays a lack of honesty or want of need, either of which alone may provide sufficient justification for dismissal. In re Krohn, 886 F.2d 123, 126 (6th Cir. 1989) In this case, the UST does not allege that Debtors display a lack of honesty. Instead, the UST questions whether Debtors are in need of relief under Chapter 7.

In determining whether a debtor is sufficiently needy to justify granting relief under Chapter 7, this Court analyzes whether the debtor has an ability to repay its unsecured non-priority creditors. Krohn, 886 F.2d at 126.

The case offers an excellent guide to lawyers and lay-people contemplating bankruptcies as to what are reasonable and necessary expenses for: private school tuition, children’s activities and sports, 401(K) contributions, home maintenance and overall abilities to fund a Chapter 13 plan. If you have these types of expenses you might wish to give this case a read to see how they are viewed locally – a genuine family expense or temporary luxury to be forgone for a while.

Again, the goal is equitable treatment to debtors and creditors. This is the way to a debtor’s fresh start and bankruptcy discharge. This case points out that it is not equitable to schedule unreasonably high costs of living to the creditors who would otherwise enjoy a little dividend on the debt owed to them.

[Guy Vining, a bankruptcy attorney, in metro-Detroit, maintains his office in Taylor, Michigan, where he serves the downriver communities of Monroe, South Rockwood, Gibraltar, Brownstown Township, Grosse Ile, Woodhaven, Trenton, Southgate, Riverview, Allen Park, Lincoln Park, Dearborn, Dearborn Heights, Westland, Wayne, and Ecorse. If you or a family member of friend would like a no-obligation no cost consultation/financial analysis, just call or E-mail Guy Vining of Vining Law Group, P.L.C to schedule a meeting.]

Posted:
May 10, 2012
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Bankruptcy Cases in the News

Bankruptcy Cases in the News

The 6th Circuit Court of Appeals issued an important and very interesting case recently in White v. Wyndham Vacation Ownership, Inc., 617 F3d. 472 (2010). This Court is the Court of Appeals for a great number of Midwestern Bankruptcy Courts, including the State of Michigan. The White case shows the importance of full disclosure of all assets in a consumer bankruptcy case. As we have discussed in the past blog postings, failure to make full disclosure can result in the dismissal of a case, attorney fees and in some instances, criminal charges.

The White case dealt with an interesting additional concept called “judicial estoppel.” Here is what happened. When Mrs. White signed and filed her bankruptcy petition she forgot to list as a possible asset of a lawsuit against her former employer, Wyndham. Apparently, the reason she had financial problems was because she had been discharged under circumstances which were suspicious of employment discrimination. A potential lawsuit is an asset.

Neither in her plan, nor in her schedules did she disclose to the Bankruptcy Court or her creditors that she had a significant cause of action for employment discrimination against her former employer, Wyndham. After her plan was approved and before she filed suit against Wyndham, she made some attempts to modify her bankruptcy schedules regarding the employment claim. Still, the U.S. District Court dismissed her lawsuit for discrimination, at her former employer’s request, based upon judicial estoppel and the 6th Circuit affirmed the dismissal. The 6th Circuit discussed in the opinion the doctrine of judicial estoppel:

    In the bankruptcy context, this court has previously noted that “judicial estoppel” bars a party from (1) asserting a position that is contrary to one that a party has asserted under oath in a prior proceeding, where (2) the prior court adopted the contrary position either as a preliminary matter or as part of a final disposition. [Citations omitted.] Id. At 476.

The White court noted that the doctrine was “utilized in order to preserve the integrity of the courts by preventing a party from abusing the judicial process through cynical gamesmanship.” Id. The Court further noted that it is the debtor’s absolute duty to disclose all assets to the Bankruptcy Court pursuant to various statutes in the Bankruptcy Code. Further, that based upon the purposes of bankruptcy:

  “[W]hen a bankruptcy court – which must protect the interest of all creditors – approves a payment from the bankruptcy estate on the basis of a party’s assertion of a given position that in our view is sufficient ‘judicial acceptance’ to estop the party from later advancing an inconsistent position.” [Citations omitted.]. Id. At 479.

The omission to list property or the true value assets is viewed as very significant when compared to the purpose of bankruptcy law. The White court specifically noted:

    “[T]he disclosure obligations of consumer debtors are at the very core of the bankruptcy process and meeting these obligations is part of the price that debtors pay in receiving the bankruptcy discharge. [Citations Omitted.] Viewed against the backdrop of the bankruptcy system and the ends it seeks to achieve, the importance of the disclosure duty can not be over emphasized. Id. At 480.

 
Dismissal of a significant claim was a drastic remedy. However, it was a remedy necessary to protect the bankruptcy court system. Had Mrs. White disclosed the Trustee might have brought the claim and any settlement or judgment could have been used to pay her creditors which would have got her out of her plan sooner, helping her and her creditors. When you and your bankruptcy lawyer file a petition for bankruptcy, yours assets (subject to proper exemptions) are no longer yours. The trustee has a right to bring those cases for the benefit of all administrative claimants and creditors. If all these folks get paid and there is money left over, the debtor will receive the balance.

The importance of the disclosure duty can not be over emphasized. Be sure to disclose all potential claims with your bankruptcy attorney. Otherwise, you will jeopardize your fresh start.

[Guy Vining, a bankruptcy attorney, in metro-Detroit, maintains his office in the city of Taylor, Michigan, where he serves the downriver communities of Monroe, South Rockwood, Gibraltar, Brownstown Township, Grosse Ile, Woodhaven, Trenton, Southgate, Riverview, Allen Park, Lincoln Park, Dearborn, Dearborn Heights, Westland, Wayne, and Ecorse. If you or a family member of friend would like a no-obligation no cost consultation/financial analysis, just call or E-mail Guy Vining of Vining Law Group, P.L.C to schedule a meeting.]

Posted:
May 8, 2012
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Bankruptcy Cases in the News

Bankruptcy Cases in the News

Judge Thomas Tucker of the U.S. Bankruptcy Court for the Eastern District of Michigan recently issued an interesting and important decision in the Mehlhose case (11-64190), the lengthy opinion discusses, among other things, the inherent power of the Bankruptcy Court to sanction (punish) debtors who do not play by the rules and make dishonest disclosures. In this case the Court determined that the husband-wife debtors had significantly under reported their income and filed their case in bad faith otherwise. Specifically, Judge Tucker determined that the debtors “lied under oath” concerning their income and filed a case that could not serve a legitimate purpose as they had or should have known that their particular debts were non-dischargeable. Consequently, it was determined that the case was filed in bad faith and merely for delay. The Court set up an evidentiary hearing that the debtors did not appear to testify and explain their actions. Judge Tucker noted that a Bankruptcy Court has both the inherent and the statutory authority to sanction misconduct:

In John Richards Home Bldg. Co., L.L.C. v. Adell (In re John Richards Homes Bldg. Co., L.L.C.), 404 B.R. 220, 226-27 (E.D. Mich. 2009), the court discusses the scope of a bankruptcy court’s inherent power to issue sanctions as follows:

    Bankruptcy Courts, like all courts, have an inherent power to issue sanctions, as explained by the Untied States Supreme Court in the Chambers case. See Chambers v. NASCO, Inc., 501 U.S. 32, 43, 111 S.Ct. 2123, 115 L. Ed. 2d 27 (1991) (“Courts of justice are universally acknowledged to be vested, by their creation with power to impose silence, respect, and decorum, in their presence, and submissions to their lawful mandates.” (Quoting Anderson v. Dunn, 19 U.S. 204, 6 Wheat. 204, 227, 5 L.Ed. 242 (1821)). The Sixth Circuit Court of Appeals has similarly stated that “[b]ankruptcy courts, like Article III courts, enjoy inherent power to sanction parties for improper conduct.” Mapother & Mapother, P.S.C. v. Cooper (In re Downs), 103 F. 3d 472, 477 (6th Cir. 1996). … [T]he inherent power to issue sanctions is not limited to only those instances where a party violates a court order. “The federal courts’ inherent power to protect the orderly administration of justice and to maintain the authority and dignity of the court extends to a full range of litigation abuses.” Mitan v. Int’l Fid. Ins. Co., 23 Fed. Appx. 292, 298 (6th Cir. 2001) (ruling that a court can award sanctions “when bad faith occurs”).

In addition to a bankruptcy court’s inherent authority to sanction misconduct, 11 U.S.C. § 105(a) provides a bankruptcy court with statutory authority to do so. It provides:

(a)The court may issue any order, process, or judgment that is necessary;or appropriate to carry out the provisions of this title. No provisions of this title providing for the raising of an issue by a party in interest shall be construed to preclude the court from, sua sponte, taking any action or making any determination necessary or appropriate to enforce or implement court orders or rules, or to prevent an abuse of process.

In the end, the Court noted that sanctions would well include attorney fees. Debtors were sanctions by having their case dismissed, being ordered to pay reasonable attorney fees and costs and having been barred from refilling for 2 years. In filing your case, make sure to make complete and honest disclosures of debts, assets and income to the court, trustee and your creditors.

That is the trade-off. To obtain a discharge and a fresh start, the debtor must make an honest and full disclosure. Do not jeopardize your life or liberty and fresh start.

[Guy Vining, a bankruptcy attorney, in metro-Detroit, maintains his office in the city of Taylor, Michigan, where he serves the downriver communities of Monroe, South Rockwood, Gibraltar, Brownstown Township, Grosse Ile, Woodhaven, Trenton, Southgate, Riverview, Allen Park, Lincoln Park, Dearborn, Dearborn Heights, Westland, Wayne, and Ecorse. If you or a family member of friend would like a no-obligation no cost consultation/financial analysis, just call or E-mail Guy Vining of Vining Law Group, P.L.C to schedule a meeting.]

 

Posted:
March 19, 2012
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Top Ten Bankruptcy Mistakes: Payment from Exempt Assets

TOP TEN BANKRUPTCY MISTAKES

# 4

Paying from Exempt Assets

The Bankruptcy Code in keeping with equitable treatment of creditors and fresh start considerations for debtors provides a comprehensive set of exemptions. Exemptions in Michigan are also provided under state laws so that the debtor may choose that set — either Federal or State — which are the most favorable.

Upon the filing of a petition in bankruptcy, 11 USC 541 states that all of the debtor’s property – legal or equitable – and wherever situated, becomes the property of the estate. The exemptions determine what property a debtor may keep for his fresh start. It is therefore critical to determine, based in the facts of each case, which set of exemptions to choose and whether the filing may proceed or should be delayed.

Competent advice on these issues is essential. When debts start to appear overwhelming get immediate advice. Otherwise, you may with good intentions hurt your family by paying dischargeable bills from exempt assets, which you could otherwise keep. For instance, it may be foolish to borrow from your 401-K (an exempt asset), with tax penalties, and use the money to pay a bill which could be eliminated by a Chapter 7 discharge. Before you make a major mistake make sure to talk to a bankruptcy lawyer so that your family is best protected.

[Guy Vining, a bankruptcy attorney, in metro-Detroit, maintains his office in Taylor, Michigan, where he serves the downriver communities of Monroe, South Rockwood, Gibraltar, Brownstown Township, Grosse Ile, Woodhaven, Trenton, Southgate, Riverview, Allen Park, Lincoln Park, Dearborn, Dearborn Heights, Westland, Wayne, and Ecorse. If you or a family member of friend would like a no-obligation no cost consultation/financial analysis, just call or E-mail Guy Vining of Vining Law Group, P.L.C to schedule a meeting.]

 

Posted:
March 19, 2012
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Business Litigation: Oppression of Minority Shareholders

BUSINESS LITIGATION CASES

BUSINESS TORT CASES

Minority Shareholder Oppression

 

Business Litigation: Oppression of Minority Shareholders

In years past, minority shareholders were frequently abused by majority shareholders with impunity. That is to say that the rights of minority shareholders were greatly constrained and limited. As a consequence their shareholder equity could be held up and used to benefit the majority shareholders who would take excessive salaries and benefits and other privileges not enjoyed by the minority shareholders. There were a few cases, which were the exception for instances forcing a corporation to pay a shareholder dividend.

In 1989 the legislature, however, enacted MCL 450.1489 with the purpose of providing minority shareholders a cause of action to complain in court against directors or those in control of the corporation. The statute provides a variety of relief which may be awarded to an aggrieved minority shareholder who is able to prove that the acts against him are: illegal, fraudulent or willfully unfair and oppressive. Oppression has been defined elsewhere to mean acts which are done under the color of authority which can be unnecessarily burdensome or severe or which weighs heavily.

This redress for wrongs against a minority shareholder gives such a minority shareholder, meaningful tools to level the playing filed. Among the remedies available the judge, upon a proper case, can even order a buy-out at a fair value so that the minority shareholders can get out and not be constantly victimized.

 

[Guy Vining, an attorney, in metro-Detroit, maintains his office in Taylor, Michigan, where he serves the local communities and the tri-county area. If you or a family member of friend would like a no-obligation no cost consultation, just call or E-mail Guy Vining of Vining Law Group, P.L.C to schedule a meeting.]

 

Posted:
March 8, 2012
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Business Tort Cases: Receivership and Cancellation of Shares

BUSINESS LITIGATION CASES

BUSINESS TORT CASES

RECEIVERSHIP AND CANCELLATION OF SHARES

 

    In a case a few years ago, VLG was able to successfully prosecute an action in behalf of one shareholder against his fellow shareholder-brother. This case was somewhat typical of a closely held corporation in that the brothers acquired the business from their parents and for sometime were successful and cooperative in running the company. Many of the formalities of the corporation had been over looked for years, however.

When personal disputes arose there were employment terminations, alleged personal injury and financial misconduct. In addition, the defendant’s wife commenced arguing that she was also a shareholder. It was alleged that the brothers were no longer 50/50 shareholders but each held 1/3 with defendant’s wife holding an additional 1/3.

After discovery of the basic facts and based upon this information VLG brought a motion for the appointment of a receiver. The motion was granted by the trial judge. A receiver can be appointed by the Court to conclude the sale and wind up the affairs of a business. MCLA 600. 2926, provides:

“Circuit court judges in the exercise of their equitable powers,
may appoint receivers in all cases pending where appointment
is allowed by law. This authority may be exercised in vacation,
in chambers and during sessions of the court… Subject to
limitations in law or imposed by the court, the receiver shall be
charged with all of the estate, real and personal debts of the
debtor or the trustee for the benefit of the debtor, creditors and the others interested.”

 

Black’s Law Dictionary (7th ed.) defines “receivers” as “[a] disinterested person appointed by the court, for a corporation or other person, for the protection or collection of a property that is the subject of diverse claims”. A receiver is an officer of the court who protects and preserves property on behalf of the parties to a lawsuit. 65 Am Jur2d, Receivers, § 1, p.351.
A Circuit Court’s decision whether to appoint a receiver is reviewed under an abuse of discretion standard. Jail Inmate v. Wayne County Executive, 178 Mich App 64, 651 (1981). Receivership is a harsh remedy and the Court should therefore consider less intrusive measures. Band v. Livonia Associates, 176 Mich App 95, 104 (1989). Extreme business stalemate and/or business misconduct must be usually demonstrated for the appointment of a receiver.
In addition, the trial court ultimately cancelled the stock which Plaintiff’s sister-in-law allegedly held. In her deposition the sister-in-law testified that she had provided services in exchange for the stock for years. The testimony also showed, however, that she had been paid for each and every service which she had earlier rendered. The trial ruled that she did not have any shares because they were not properly issued and because she had not paid any separate consideration for them. There can not be a legally binding commitment without separate consideration. As noted by legal scholars, to support a present contract or transaction, “past consideration is not consideration.” Contracts, Calamari & Perillo, 3rd Edition 1973, § 54, p 106.
Since plaintiff’s sister-in-law had been paid for her work she was not entitled to anything extra. In the regard, VLG cited the trial court to an interesting out-of-state case, Kelsoe v. International Wood Products, Inc., 588 So. 2d 877 [Alabama] (1991), there was a similar fact pattern to this case (out of state cases are not binding Michigan Courts, but sometimes can be persuasive). There an employee alleged an agreement to receive shares of stock from her employer because of years of good and faithful service. However, the Alabama Supreme Court affirmed a directed verdict in favor of the employer, holding:

It is a well-settled general rule that consideration is an
essential element of, and is necessary to the enforceability or
validity of, a contract. 17A Am Jur 2d Contracts § 117 (1991).
It is generally stated that in order to constitute consideration for a promise, there must be an act, a forbearance,
a detriment, or a destruction of a legal right, or a
return promise, bargained for and given in exchange for the promise. [citation omitted].

The undisputed evidence here shows that International Wood’s
promise to issue the stock to Kelsoe was gratuitous in nature
and was prompted only by Kelsoe’s past favorable job
performance. As such, International Wood’s promise was without consideration and created no
legally enforceable contract right. [citation omitted].

In the end, the business was sold, creditors paid and VLG’s client received a distribution of 50% of the returning proceeds. The sister-in-laws’s alleged shares were cancelled.

 

[Guy Vining, an attorney, in metro-Detroit, maintains his office in Taylor, Michigan, where he serves the local communities and the tri-county area. If you or a family member of friend would like a no-obligation no cost consultation, just call or E-mail Guy Vining of Vining Law Group, P.L.C to schedule a meeting.]