Case to read for tomorrow

City of Chicago, Illinois v. Fulton,  926 F.3d 916  (7th Cir 2019)

Issue:   Does the City of Chicago violate the automatic stay when it continues to “hold” a debtor’s vehicle after the filing of a chapter 13 petition?

Holding:   Yes.

According to the 7th Circuit, “In this consolidated appeal of four Chapter 13 bankruptcies, we consider whether the City of Chicago may ignore the Bankruptcy Code’s automatic stay and continue to hold a debtor’s vehicle until the debtor pays her outstanding parking tickets.”  A previous 7th Circuit case called Thompson required turnover on these same basic facts and the 7th Circuit refused to overturn it.  The Thompson case ruled that holding onto an asset is exercising control which is an “act” which violates the stay.  It held that turnover is compulsory “under a plain reading of §§ 363(e) and 542(a) and the Supreme Court’s decision in Whiting Pools.”  363(e) requires the court to “prohibit or condition such use . . . [of property of the estate] as is necessary to provide adequate protection of such interest” (meaning turnover is required?).    542(a) says “a creditor in possession of property of the estate ‘shall deliver [it] to the trustee.'”

The City argued that it needed to retain possession “to prevent the loss or destruction of the vehicles” but it apparently offered no evidence that giving the vehicle back would result in loss or destruction.  Further it could and should “seek protection on an expedited basis” under 363(e).  The City argued that it had a lien perfected by possession and that § 362(b)(3) excepted it from compliance, i.e., the stay does not apply to acts “to continue the perfection of” its lien.  The court responded that there are other ways to perfect liens and in any event, “the City’s possessory lien is not destroyed by its involuntary loss of possession due to forced compliance with the Bankruptcy Code’s automatic stay.”  The City also argued that this is an act to enforce its “police or regulatory power.”  The court chided the City saying this is “an exercise of “revenue collection” rather than police power.

The court concluded, “the City needs to satisfy the debts owed to it through the bankruptcy process, as do all other creditors.”

Note:  The court says that this ruling is in line with the 9th Circuit in California Employment Development Department v. Taxel 98 F.3d 1147 (9th Cir. 1996).

The City argued to the Supreme Court that this ruling ignores its ruling in Citizens Bank of Maryland v. Strumpf, 516 U.S. 16 (1995)(bank may put a “temporary” administrative freeze on the debtor’s bank account upon learning of the bankruptcy filing without violating the automatic stay under Section 362(a)).  But this case is not discussed anywhere in the 7th Circuit opinion.

Need a volunteer to defend a bankruptcy debtor in a non-dischargeability action

I have agreed to represent a debtor – pro bono – who has been sued to have the debt declared non-dischargeable.  The guy was in an altercation and was arrested.  The “victim’s” finger was broken.  My guy has his side of the story.  The “victim” has demanded $5 million.

Anyway I took the case as part of the UWLA Bankruptcy Litigation Clinic.  This is a great case for a student or new atty to get involved in.  You will work side by side with me.  You will be “second chair” at trial.  The legal issues are not complex but it will likely go to trial downtown – several months from now.  In the meantime there will be discovery, depositions etc.  If you have taken a bankruptcy course, but are not yet an attorney, you can be certified by the bankruptcy court and actually argue some portion of the case.

If you are interested send me an email at jhayes@rhmfirm.com.

You must be prepared to spend a few hours a week on the case for the next several months.  There will likely be weeks of no work.  This will go to trial.    Let me know.

Summary of the Duties of the Board of Directors

This is such a great summary of the duties of the board of directors from three attorneys at Sidley Austin LLP – Claire H. HollandHolly J.Gregory and Rebecca Grapsas:

Responsibilities of the board (supervisory)

Board’s legal responsibilities

What are the board’s primary legal responsibilities?

The primary legal responsibility of the board is to direct the business and affairs of the corporation (see DGCL, section 141). While the functions of a board are not specified by statute, it is generally understood, as noted in the ALI’s Principles of Corporate Governance and other codes of best practice, that board functions typically include:

  • selecting, evaluating, fixing the compensation of and, where appropriate, replacing the CEO and other members of senior management;
  • developing, approving and implementing succession plans for the CEO and senior executives;
  • overseeing management to ensure that the corporation’s business is being run properly;
  • reviewing and, where appropriate, approving the corporation’s financial objectives and major corporate plans, strategies and actions;
  • understanding the corporation’s risk profile and reviewing and overseeing the corporation’s management of risks;
  • reviewing and approving major changes in the auditing and accounting principles and practices to be used in preparing the corporation’s financial statements;
  • establishing and monitoring effective systems for receiving and reporting information about the corporation’s compliance with its legal and ethical obligations, and articulating expectations and standards related to corporate culture and the ‘tone at the top’;
  • understanding the corporation’s financial statements and monitoring the adequacy of its financial and other internal controls, as well as its disclosure controls and procedures;
  • evaluating and approving major transactions such as mergers, acquisitions, significant expenditures and the disposition of major assets;
  • providing advice and counsel to senior management;
  • reviewing the process for providing adequate and timely financial and operational information to management, directors and shareholders;
  • establishing the composition of the board and its committees, board succession planning and determining governance practices;
  • retaining independent advisers to assist the board and committees;
  • assessing the effectiveness of the board, its committees or individual directors; and
  • performing such other functions as are necessary.

Continue reading

Insider trading issues

I received an email from a student re insider trading, specifically re what is a tippee.  Take a look at my post a couple of years ago on the Supreme Court case of Salman v. US.

https://profhayesuwla.com/2016/12/07/supreme-court-clarifies-meaning-of-tippee-in-insider-trading-dispute/

The Supreme Court clarified that “a tippee’s liability for trading on inside information hinges on whether the tipper breached a fiduciary duty by disclosing the information.   A tipper breaches such a fiduciary duty, we held, when the tipper discloses the inside information for a personal benefit.”

The Supreme Court then said that a “close personal relationship” is enough as far a receiving a personal benefit.

Keep in mind that many cases require “scienter” i.e., bad intent, intent to avoid a law.  Keep in mind also that the information must be “material non-public information.”

The student also asked whether the same transaction could also violate general securities laws, i.e., a sale of a security that is not registered and not otherwise exempt.  Answer:  Of course and that must be considered.

Agency question from student

Hello Professor, I had a quick question regarding agency law, or more specifically the ratification portion.

Ratification

Principal will be liable to a third party for an unauthorized contract entered on its behalf, if the principal accepts benefits of the contract. The principal must have knowledge of the contract, the terms and nevertheless accept the benefits.

Does this mean that the principal, after giving either actual (implied or express) or apparent authority, and having knowledge of the contract its terms and its acceptance be ratified or must it be that he must have knowledge of the contract and terms and be required to accept the benefits?

Response: Continue reading

Is there a partnership here?

This is a brief (case summary) I wrote in 2013.  Bankruptcy case.

Utnehmer v. Crull (In re Utnehmer), 499 B.R. 705 (9th Cir. B.A.P. 2013)
Issue:   Was a partnership actually formed here such that the debtor owed fiduciary duties to the creditor which may be non-dischargeable under Section 523(a)(4)?

Holding:   No.

Judge Alan Jaroslovsky, Northern District California

Pappas, Dunn, Jury

Opinion by Pappas

The debtors decided, in 2005, to build a large “spec home” in Venice Ca which would be sold then for a profit.  They borrowed $100,000 from Crull giving Crull a promissory note which was due on sale of the property but no longer than 12 months.  “The Parties agreed that $50,000 of the initial $100,000 loan was intended to be super[s]eded by execution of a formal operating agreement which would recharacterize this $50,000 of the lenders’ interest as an investors’ equity interest in a limited liability company to be formed, with a 10% annual preferred return, and 35% participation in profits on a prorated basis.  The documents for formation of the limited liability company, and the operating agreement, were supposedly being drafted.”  The lender received interest payments for about two years.  The property was finally finished and sold but the loan was not repaid since there were insufficient funds available.  The debtors filed chapter 7 and the lenders filed a non-dischargeability complaint alleging fraud and willful and malicious injury.  The court commented that there was no fraud or willful injury but there appeared to be defalcation by a fiduciary “if a partnership arrangement is shown.”  After trial, the court stated, “If your client was a fiduciary in relation to the venture and cannot account for the proceeds, I think that that’s enough to establish defalcation.”  He entered judgment against the debtor. Continue reading