The fourth quarter of 2017 was another slow period for Fifth Circuit opinions dealing with bankruptcy.  There was only one published opinion and there were several opinions that I found on the Fifth Circuit's page but were not in LEXIS.  Nevertheless, here they are for your consideration.   The cases cover mootness, standing, and verbal statements about financial condition.  Dick v. Colo Hous. Enters., LLC, 872 F.3d 709 (5th Cir. 10/4/17)Debtor sought to prevent a foreclosure sale including filing several bankruptcies.  Two years after the last bankruptcy was dismissed, the substitute trustee posted the property for foreclosure.   The Debtor obtained a TRO in state court.  The Defendants removed the case to federal court.  The U.S. District Judge denied the request for a preliminary injunction.   The Debtor appealed and requested a stay pending appeal in the Fifth Circuit.   The stay was requested the day before the foreclosure sale and was approved the next day.  However, by this time, the substitute trustee had already conducted the foreclosure sale and sold the property to the lender.The lender moved to the dismiss the appeal as moot.    The Debtor argued that the Court could still grant relief since it could order the lender to rescind the foreclosure.   The Debtor relied on an unpublished opinion.   However, there was a published opinion stating that "[i]f the debtor fails to obtain a stay, and if the property is sold in the interim, the district court will ordinarily be unable to grant any relief."   Matter of Sullivan Central Plaza I, Ltd., 914 F.2d 731, 732 (5th Cir. 1991).   Based on the rule of orderliness, the Fifth Circuit declined to extend its prior unpublished opinion.   The Court dismissed the appeal as moot, stating, "this court simply cannot enjoin that which has already taken place."Khan v. Xenon Health, LLC (In re Xenon Anesthesia of Texas, PLLC), 698 Fed. Appx. 793 (5th Cir. 10/16/17)(unpublished)Xenon Anesthesia of Texas, PLLC ("Xenon Texas") filed chapter 7 bankruptcy.   Khan and Xenon Health, LLC ("Xenon Health") each filed claims.   Khan objected to Xenon Health's proof of claim.  Khan was previously a member of Xenon Texas.   However, he was compelled to transfer his interest to another party in state court proceedings.   After he was compelled to transfer his membership interest, he withdrew his proof of claim.The Bankruptcy Court found that because Khan was not an owner of the Debtor and had withdrawn his proof of claim, he was not a party in interest who was entitled to object to a claim.   The Fifth Circuit affirmed.     Tow v. Bulmahn (Matter of ATP Oil & Gas Corp.),  Case No. 17-30077 (5th Cir. 10/27/17)(unpublished)Trustee brought claims against Debtor's officers and directors for approving preferred stock dividends on the eve of bankruptcy and approving certain bonuses.    The District Court dismissed.   The Fifth Circuit affirmed.    It was not enough to say that directors collectively approved dividends.  It was necessary to show which ones voted in favor.  Additionally, it was not sufficient to allege that dividends harmed the company's long term viability without additional explanation.   Bonus claims were also dismissed due to failure to adequately allege why bonuses were excessive.The Fifth Circuit also affirmed the ruling dismissing claims against the officers and directors who received the bonuses.  It quoted a New Hampshire Bankruptcy Court decision which stated that "Bad business decisions without more cannot form the basis for a fraudulent conveyance action seeking recovery of compensation paid to an officer or a director."    The Fifth Circuit also affirmed the dismissal of related conspiracy claims and denial of leave to amend after the Second and Third Amended Complaints.Garner v. Pillar Life Settlement Fund I, LP (Matter of Life Partners, Inc.),  Case No. 16-11436  (5th Cir. 11/29/17)(unpublished)Life Partners, Inc. sold undivided interests in life insurance policies that were found to be securities.  The company filed chapter 11 and a trustee was appointed.   Two different groups of investors filed adversary proceedings seeking class action status.   The class actions were consolidated and the reference was withdrawn to the District Court.   The Trustee and the named Plaintiffs  sought to certify a class for settlement purposes.   The District Court referred the matter to the Bankruptcy Court which conducted a hearing and recommended approval of the settlement.  The District Court approved the settlement.   A group of investors appealed approval of the class action settlement.   Meanwhile, Life Partners confirmed a plan which incorporated the settlement.     The objecting investors did not appeal plan confirmation and the plan was substantially consummated.    The Fifth Circuit found that it could not grant any effectual relief based on appeal of only the Settlement Agreement.   As a result, it dismissed the appeal as moot.Haler v. Boyington Capital Group, LLC (In re Haler), 2017 U.S. App. LEXIS 27034 (5th Cir. 12/29/17)(unpublished)The Debtor, Randall Lee Haler, was Executive Vice-President of McKinney Aerospace, L.P., a company that repaired and refurbished business jets.  Haler told Boyington, a customer of McKinney Aerospace, that McKinney was in "very fine legally financial shape" and had plenty of cash.  Apparently the company was not in very fine financial shape because when Boyington cancelled the contract, the company was unable to refund the unused portion of the funds obtained.   Boyington sued in state court and obtained a fraud judgment against Haler for $258,000.    When Haler filed for chapter 7 bankruptcy, Boyington sued to obtain a non-dischargeable judgment under 11 U.S.C. Sec. 523(a)(2)(A).  The Bankruptcy Court granted summary judgment based on the state court judgment and the District Court affirmed.  The Fifth Circuit reversed.  A non-dischargeable judgment under 11 U.S.C. Sec. 523(a)(2)(A) cannot be based on a statement respecting the debtor or an insider's "financial condition."   Under 11 U.S.C. Sec. 523(a)(2)(B), a non-dischargeable debt can be based on a written statement of financial condition.   The intersection of these two subsections means that oral statements of financial condition can never result in a non-dischargeable debt.The Fifth Circuit found that Haler's statements were made concerning McKinney's financial condition and therefore could not result in a non-dischargeable judgment.   The Fifth Circuit reversed the lower courts.

As reported by the New York Times and the New York Post, on February 5th, a taxi driver drove up to the steps of City Hall and took his own life.  Douglas Schifter posted on Facebook that morning that he had worked 100-120 consecutive hours almost every week for more than 14 years. Despite his grueling work schedule, he was no longer able to afford health insurance or vehicle maintenance and repairs and had maxed out his credit cards.  He blamed Governor Cuomo, Mayor de Blasio and former Mayor Bloomberg for increasing the number of livery cars and taxis on the streets of NYC.We feel for Mr. Schifter and other taxi drivers and medallion owners; his story and other stories we have heard are modern-day tragedies. By way of background, for those who aren’t familiar with the taxi industry in New York City, taxi drivers either own their own medallion or lease the use of a medallion to drive in the city. Our taxi driver clients indicate that on average they are working 30% longer each week and regrettably earning 30 to 40% less money each week. Their competition from Uber, Via, Lyft and black cars has increased tremendously, along with the costs associated with driving a cab.For those drivers that purchased their medallion in the last three years, the situation is equally bleak. Three years ago, taxi medallions were selling for approximately $1,300,000 per medallion. Last month’s sales based on data from the TLC indicate that the average medallion is now selling for approximately $186,000 – a drop in value of approximately 86%. Moreover, many of our clients have refinanced their medallions through banks or credit unions, and with the drop in the value of taxi medallions, those taxi medallions are also “underwater” (the value of the medallion is exceeded by the debt secured by it). Additionally, our clients tell us that the costs associated with owning a taxi medallion, such as the TLC mandated costs and expenses, have increased as well.Unfortunately, for taxi drivers, there are no easy solutions, other than to stop driving and consider another occupation or job. Fortunately for owners of taxi medallions, relief may be found in filing for personal bankruptcy or doing asset protection planning and a workout with the bank or credit union that holds their taxi medallion loan.If you’re an overburdened taxi medallion owner struggling with an underwater medallion or other debt, please don’t despair–we can help you.  Please contact Jim Shenwick.

The third quarter of 2017 had one blockbuster opinion reaffirming the finality of exemptions in Chapter 7 and several less remarkable decisions.   It was a slow quarter for bankruptcy.Rosbottom v. Schiff (Matter of Rosbottom), 701 Fex. Appx. 330(5th Cir. 7/17/17)(unpublished) The Debtor and his spouse conveyed their interests in a Louisiana residence to trusts.   They then sold the residence for $1,850,000 and each deposited half the money in their own account.   In 2005, Rosbottom divorced his spouse.  He purchased a condominium in Dallas using his share of the proceeds from the Louisiana residence.  He then conveyed the condo to his trust.   Rosbottom filed for bankruptcy in 2009.   He was convicted of bankruptcy fraud and a Chapter 11 trustee was appointed.   After the Trustee confirmed a plan, the Trustee and the ex-spouse brought a declaratory judgment action seeking to determine that the Dallas condo was property of the estate.The Bankruptcy Court found that the trust created by Rosbottom was invalid under Louisiana law because it violated Louisiana law prohibiting the conveyance of an undivided interest in community property.    The Fifth Circuit affirmed.    Because the creation of the trust was a nullity under Louisiana law, it never gained title to the Louisiana property.  When that property was sold and a new residence was purchased, that property belonged to the Debtor and was property of the estate.Cowin v. Countrywide Home Loans, Inc. (In re Cowin), 864 F.3d 344 (5th Cir. 7/18/17)This was a dischargeability case under 11 U.S.C. Sec. 523(a)(4) and (a)(6).    The Debtor entered into a scheme to purchase properties being foreclosed for unpaid condominium assessments.   The properties were subject to mortgage liens which were not extinguished by the sales.   The Debtor then arranged for a related party to purchase the ad valorem tax liens against the property and conduct a second sale.   The tax lien sale extinguished the mortgage liens.  However, the excess proceeds should have been paid to the mortgage lenders.  Instead, they were diverted to a company controlled by the Debtor.   This happened four separate times.Several lenders, including Bank of America and Countrywide, filed suit.   The Debtor filed two chapter 11 proceedings which were dismissed.   After the second bankruptcy was dismissed, the bankruptcy court retained jurisdiction over the adversary proceedings.  The Debtor entered into an agreed judgment with Bank of America.  After the Countrywide case was tried but before the Bankruptcy Court entered findings and conclusions, the Debtor filed a chapter 7 proceeding.   However, the Debtor did not file a suggestion of bankruptcy until after the Bankruptcy Court ruled that the debt was nondischargeable.   The Bankruptcy Court entered judgment in favor of Countrywide after it learned of the second bankruptcy filing.   Bank of America sued for a nondischargeable judgment in the second case.On appeal, the Debtor argued that the agreed judgment with Bank of America was a new debt which could be discharged and that the Bankruptcy Court violated the automatic stay by entering judgment in the Countrywide adversary.  The Debtor argued that the Bankruptcy Court erred in imputing his co-conspirator's actions to him.   The Fifth Circuit found that  he participated sufficiently in the conspiracy to have personal liability and that actions of a co-conspirator could be imputed to him.   Thus, the Court found that Cowin's actions constituted larceny and were nondischargeable under 11 U.S.C. Sec. 523(a)(4).    The Fifth Circuit found that it did have a clear precedent on whether the automatic stay prevented the Bankruptcy Court in one case from entering a judgment after a second case was filed.   The closest precedent the court had was that filing a proof of claim in a bankruptcy case did not violate the stay.   However, the Court found that any error was harmless because the Bankruptcy Court could have simply lifted the automatic stay to enter the judgment.   The Court did not directly address the claim that the Bank of America judgment extinguished any possible claim for nondischargeability.   However, the Supreme Court decision in Archer v. Warner, 123 S.Ct. 1462 (2003) seems to foreclose this argument.Hawk v. Engelhart (In re Hawk), 864 F.3d 364 (5th Cir. 7/19/17), vacated, 871 F.3d 287 (5th Cir. 9/5/17)A debtor filed a petition under chapter 7 and claimed an IRA account as exempt.  No party objected to the exemption.    Later it turned out that the Debtor had withdrawn the IRA funds and had not re-invested them within 60 days as required by the exemption statute.   The Trustee sued for turnover and prevailed in the Bankruptcy Court.   Initially, the Fifth Circuit ruled in the Trustee's favor, finding that exempt property must retain its exempt status throughout the case.  On petition for rehearing, the Fifth Circuit withdrew its opinion and distinguished its prior Frost opinion.   It held that in a Chapter 13 proceeding, property that was exempt could come into the estate once it lost its exempt status because of 11 U.S.C. Sec. 1306(a)(1).   I was one of the amici who sought to overturn the original decision.I have written about the opinion in depth at "Fifth Circuit Walks Back on the Disappearing Exemption Case," XXXVII ABI Journal 1, 38-39, 89-90, January 2018.Bynane v. The Bank of New York Mellon. 866 F.3d 351 (5th Cir. 8/3/17)Plaintiff bought a home.   Mortgage was assigned to a securitization trust.  Bank of New York Mellon was the trustee for the trust.    Property was sold at foreclosure to Guzman.   Plaintiff filed suit in state court which was removed to federal court.    Plaintiff sought to remand based on incomplete diversity.    District Court denied the motion and dismissed plaintiff's claims.    Court found that citizenship of trust was based on citizenship of trustee.   Because Bank of New York was domiciled in New York it did not defeat diversity.    Court declined to hold that trust was a citizen of each of the domiciles of its shareholders.    Plaintiff also sought to establish that Guzman transferred property to a Texas resident who should be considered the real party in interest.   Court said that it would determine diversity based on the actual parties not a non-party with a potential interest in the case.Court also rejected argument that Bank of New York did not hold good title because assignment to it was forged or was not authorized.   Court ruled that obligor could not defend itself on a ground that rendered the assignment voidable but not void.    The without authority ground would only make the assignment voidable.   While a forged assignment would be void, the Plaintiff did not meet the pleading requirements of Fed.R.Civ.P. 9 to establish fraud.Court also rejected promissory estoppel claim based on alleged promise from Bank of America to sign a modification agreement.    However, Plaintiff did not plead what the terms of the alleged modification were so that claim failed.Dorsey v. U.S. Department of Education (Matter of Dorsey), 870 F.3d 359 (5th Cir. 9/1/17)Debtor sought a hardship discharge under 11 U.S.C. Sec. 523(a)(8).    After his creditors successfully moved to re-open the bankruptcy case to file proofs of claim, the Debtor filed a notice of appeal in the main case.    Thereafter, the Court conducted a trial on the adversary proceeding at which the Debtor failed to appear.    The  Debtor then sought to amend his statement of issues and record in the District Court to include matters relating to the adversary proceeding.   The District Court found that because there was not a notice of appeal in the adversary proceeding, it lacked jurisdiction over the attempt to appeal from the adversary proceeding.   The Fifth Circuit affirmed.

By WINNIE HU In Chicago, a 15-cent fee on Uber, Lyft and other ride-hailing services is helping to pay for track, signal and electrical upgrades to make the city’s trains run faster and smoother.Ride-hailing trips in Philadelphia are expected to raise $2.6 million this year for the city’s public schools through a 1.4 percent tax that will also generate more than a million dollars for enforcement and regulation of the ride-hailing industry itself. In South Carolina, a 1 percent ride-hailing fee has yielded more than a million dollars for municipalities and counties to spend as they choose.And Massachusetts began collecting 20 cents for every ride-hailing trip this month, earmarking the revenue to improve roads and bridges, fill a state transportation fund and even help a rival — the struggling taxi industry — adapt with new technologies and job training.As ride-hailing services become a dominant force across the country, they have increased congestion, threatened taxi industries and posed political and legal challenges for cities and states struggling to regulate the high-tech newcomers. But they are also proving to be an unexpected boon for municipalities that are increasingly latching onto their success — and being rewarded with millions in revenue to pay not only for transportation and infrastructure needs, but also a host of programs and services that have nothing to do with the ride-hailing apps.Now New York is seeking to join this growing wave with a new surcharge on ride-hailing and taxi trips that could become a central piece of an ambitious congestion pricing plan for Manhattan. A state task force has proposed fees of $2 to $5 per ride that would be among the highest in the nation — and could generate up to $605 million a year for the city’s failing subway system.“We used to have yellow cabs, we now have yellow cabs and black cars and green cars and every color in the rainbow and they cruise downtown Manhattan to pick up fares,” Gov. Andrew M. Cuomo has said. “That is one of the first places I would look to reduce congestion and to raise money.”Even as President Trump promotes a plan to rebuild the country’s tattered infrastructure, many local governments are not waiting to see what, if any, help Washington provides and are finding novel ways to pay for transportation and other public works projects.Across the nation, more than a dozen states and municipalities have imposed fees or taxes on ride-hailing companies or their passengers, or sometimes both, and many more are considering such measures, according to transportation and tax experts. Advocates for the charges contend that the ride-hailing cars should pay for using public streets and resources, contributing to gridlock and pollution, and siphoning passengers and fares from public transit.“If they want to share the pie, then they have to pay the price,” said Fayez Khozindar, the executive director of the United Taxidrivers Community Council, an advocacy group for taxi drivers in Chicago. “It’s fair because we know the city is short on funds and they want to fill the hole.”But some drivers and passengers for the ride-hailing companies say they have been unfairly singled out — in many places the new fees do not apply to taxis.“Uber and Lyft have always been an easy target for cities looking for new streams of revenue,” said Harry Campbell, a driver for Uber and Lyft in California who writes a popular blog, The Rideshare Guy.In New York and Chicago, Uber and Lyft have said they see their services as complementing the public transit systems and providing another option for riders, especially in transit deserts with few bus routes and train lines. Uber supports a congestion plan for Manhattan — even running an ad campaign backing the idea —as long as it does not single out for-hire vehicles.“A comprehensive congestion pricing plan that is applied to all vehicles in the central business district is the best way to fully fund mass transit, reduce congestion and improve transportation for outer borough New Yorkers,” an Uber spokeswoman, Alix Anfang, said. “A surcharge alone will not accomplish these goals.”Last year, New York State approved a 4 percent assessment on ride-hailing trips that begin outside New York City (rides in the city are already subject to state and local taxes). It is expected to raise $24 million a year for the state’s general fund though one state legislator, Senator John E. Brooks, a Democrat from Long Island, has proposed legislation to direct that revenue to local bus and commuter rail services. “We need to think creatively and outside of the box in order to improvefunding for local transit,” he said.The new fees and taxes are often part of broader regulatory measures as states and localities scramble to update tax codes and laws that have not kept up with the proliferation of app-based ride services. For instance, a Georgia state tax applies to rides in taxis but not ride-hailing cars even though they essentially do the same thing, said Carl Davis, research director for the Institute on Taxation and Economic Policy in Washington.“A lot of tax codes weren’t set up to take them into account,” Mr. Davis said.“They’re so new they didn’t even exist a decade ago. It’s an emerging tax issue, and states and localities are playing catch up.”South Carolina added a 1 percent fee to ride-hailing trips in 2015, in part to establish a single regulatory framework and block local efforts to charge prohibitively high fees to keep them out, state officials said. Now that fee has become a source of extra cash. The city of North Charleston, for instance, receives more than $30,000 annually and uses it for municipal operations.In Oregon, Portland officials initially barred Uber but eventually agreed to allow it and Lyft to operate through pilot programs. In 2016, the city sought to create a single standard for taxis and ride-hailing cars and assessed a 50-cent ride fee on both of them, which is paid by passengers.The 50-cent fee has added up to more than $8 million to help pay for city enforcement efforts, including spot inspections of cars and incentives to companies and drivers to choose wheelchair accessible cars. The fee “hasn’t been a barrier to the riders at all as the ride-hailing services have continued to expand,’’ said Dave Benson, a senior manager for the Portland Bureau of Transportation. “We haven’t seen the top yet.’’Still, many Portland taxi owners and drivers say the fee has hurt them more than their rivals. Noah Ernst, a superintendent for Radio Cab, said many taxi drivers feel the 50-cent fee means a smaller tip because passengers lump everything together when they pay. Taxi companies also face the headache of trying to collect the fee from drivers.He added that taxis continued to face more stringent safety, equipment and insurance requirements, and were targeted more often for inspections because their cars were easily identified by company colors and logos.“It’s not an equal playing field at all and we were trying to tell them this the entire time they were rewriting the code,” he said.As a result, he said, taxi companies are struggling and at least two have gone out of business. His company, Radio Cab, has lost more than a third of its business since 2015.Chicago officials have calculated that ride-hailing companies have cost the city about $40 million a year in lost revenue from transit fares, parking fees, licenses and permits. In 2014, the city imposed a 20-cent fee on ride-hailing trips in response to concerns that taxis were being undercut. Two years later, that fee went up to 50 cents, with an additional two-cent fee paid by the ride-hailing companies themselves. And now, the new 15-cent fee for the transit system brings the total to 65 cents for passengers.The city also assessed a separate $5 fee on passengers who were picked up or dropped off by ride-hailing cars at the major airports, the convention center and the Navy Pier, a popular tourist destination.The ride-hailing fees produced nearly $39 million for the city’s general fund in 2016, up from about $100,000 in 2014, according to city estimates. Last year’s revenue, which is still being collected, is expected to reach $72 million.“It’s a fairly new industry and once they actually got settled in the city we saw a lot of growth,” the Chicago budget director, Samantha Fields, said.Mayor Rahm Emanuel of Chicago, who has made modernizing the L a priority, said the new 15-cent fee was the first of its kind to raise money solely for public transit from those who might not even use it because they could afford the ridehailing cars. “I think it’s a progressive transportation tax,” Mr. Emanuel said. “It will make public transportation competitive with the rideshare industry.”In effect, Mr. Emanuel said, it will serve as a “backdoor approach” to fighting congestion created by the ride-hailing cars by helping shift more people — by their own choice — to the transit system. “There’s a congestion fee and I would just say the rideshare fee is kind of parallel parking into the same position,” he said.The 15-cent fee is projected to bring in $16 million this year, which will be turned over to the Chicago Transit Authority. The money will be used to secure additional funding through bond sales to pay for a total of $179 million in capital improvements, according to city officials.Kyle Whitehead, the government relations director for Active Transportation Alliance, a Chicago advocacy group for biking, walking and transit, said that the transit system contributes to the health of the city by getting more people out of cars, increasing exercise levels and reducing pollution — and it is now in dire need of money.“The public transit system benefits everyone who lives and works in the city, he said, “regardless of whether they’re using it.”Copyright 2018 The New York Times Company.  All rights reserved.

In Ohio and throughout the country, bankruptcy is identified by its chapters, most commonly Chapter 7 and Chapter 13 for consumers, and Chapter 11 for businesses. In fact, the chapters of bankruptcy have become ingrained in our culture, with people saying a struggling business may need to “file Chapter 11”. If you are struggling to make ends meet or feeling crushed under the weight of large debts such as credit card bills, you may be considering bankruptcy as an option. For most people in your situation, bankruptcy can help provide a fresh start within a number of months or years and, in the short-term, put a stop to creditor harassment, wage garnishment and other indignities. Before you take action to speak with an experienced Springfield, Ohio, bankruptcy attorney, take a few moments to learn about the types of bankruptcy that may be available to you as a consumer. Chapter 7 Bankruptcy This form of bankruptcy is the most direct route available to consumers who wish to wipe out unsecured debts such as credit card debt, medical bills, or deficiency balances due to auto repossession. For this reason it is often referred to as “straight bankruptcy”. In Chapter 7, non-exempt property (exempt property includes your home, a car, etc.) is converted into cash via liquidation. Then, a bankruptcy trustee will repay some of your outstanding debt and discharge remaining debts after 3-5 months.  Chapter 13 Bankruptcy Commonly referred to as “reorganization”, Chapter 13 is great for consumers who wish to get on solid footing without losing their assets. It can allow you the breathing room you need to refinance loans and create payment plans that work for you. After a three-five year repayment plan is complete, you will be free from your debts and have the opportunity to rebuild your credit. Ready for a fresh start? Contact us anytime for a free initial consultation. The post Ask A Springfield, Ohio Bankruptcy Attorney: What Chapter Is Right For Me? appeared first on Chris Wesner Law Office.

Chapter 13 Many financial hardships manifest themselves in neglected bills, including income taxes, child support, monthly mortgage payments, among others. Chapter 13 Bankruptcy establishes payment plans so individuals from all walks of life retain financial control. In summary, Chapter 13 Bankruptcy halts foreclosures, delays repossession of one’s home, and keeps the IRS from making contact regarding unpaid taxes. Ultimately, Chapter 13 Bankruptcy provides flexible, practical opportunities for clients to address existing debts. After three to five years of compliance with the conditions set by a payment plan, discharge of debt or complete debt forgiveness may occur, disposable income and other factors considered. Such factors assist in calculating the debt one must repay. Often, people seek Chapter 13 Bankruptcy as an option to prevent home foreclosures, make up for unpaid automobile bills, and pay back accumulating taxes. Chapter 13 Bankruptcy presents itself as more of a reorganization, rather than a formidable liquidation process. It’s a feasible option for individuals who aim to keep their secured assets, such as housing. When state bankruptcy exemptions cannot shield these assets, Chapter 13 Bankruptcy warrants consideration. Frequently, people wanting to secure their nonexempt property of considerably high value elect to file for Chapter 13 Bankruptcy. Life brings countless unforeseen circumstances, including expenses that seem overbearing and steep. One should not feel embarrassment while filing for bankruptcy, and an experienced, qualified attorney can facilitate the process, helping individuals reach their long-term financial goals. Located in Troy, Ohio, Chris Wesner gives each case a thorough and practical evaluation. Call Chris Wesner Law Office, LLC to discuss alternative payment plans under Chapter 13 Bankruptcy. The post Consult a Troy, Ohio Bankruptcy Attorney for Chapter 13 Needs appeared first on Chris Wesner Law Office.

Getting pulled over in Ohio and getting arrested for an OVI (operating a vehicle while intoxicated) is a serious offense. Even if it is the first time that you have ever been pulled over, you should consult a lawyer for your case. Here are some reasons why you need a lawyer for an OVI in Ohio. Usually prosecutors will offer a plea offer, especially for first time offenders. If you want a better deal than what they are offering, you should consult with a lawyer. However, if you were involved in an accident or injured someone else, the law is not as forgiving. You will need a lawyer to help you through a trial if you have caused injuries to someone else or done damage to property. They will discuss possible defenses in order to dismiss your case or lessen your crime. If it is not your first offense, your lawyer will work with you to get the best deal possible. The law is not generally as kind to those who have already been convicted of an OVI. You will need an experienced lawyer to weaken their case against you. By hiring an experienced lawyer, you will spend less time in court. A good lawyer will have your case all prepared and he or she will be ready to fight for you. There may even be times when you won’t have to show up in court because your lawyer will be able to handle it. If you are arrested for an OVI, don’t hesitate to contact us for all of your legal needs. We would be happy to talk to you about your case to see how we can help you. We will do everything that we can so that one mistake won’t change the rest of your life. The post Why You Need a Lawyer For a OVI in Ohio appeared first on Chris Wesner Law Office.

  In Beem v. Ferguson, No. 16-11842, 2018 WL 718609  (11th Cir. Feb. 6, 2018) the 11th Circuit found that a late-filed adversary to deem a debt non-dischargeable could survive a dismissal request as it related back to an improperly, but timely filed motion to determine dischargeability.  The facts related to a dispute between business partners and after one partner had obtained summary judgment against the other.  After bankruptcy was filed by the loser in the state court defamation and abuse of process action, the attorney for the creditor filed an original and amended  'Motion to Dismiss or for Determination of Non-Dischargeability of His Debt' 7 days and 3 days prior to the extended deadline to file a complaint for dischargeability of debt.  After becoming aware of the error, counsel filed an adversary complaint five days after the deadline.  The bankruptcy court denied the debtor's motion to dismiss, finding both that it could extend the deadline for excusable neglect, and that the complaint related back to the timely filed motion.   The district court affirmed on the relation back ground.    Bankruptcy Rule 7015 incorporates Federal Rule of Civil Procedure 15. Rule 15(c) provides, in relevant part:(c) Relation Back of Amendments(1) When an Amendment Relates Back. An amendment to a pleading relates back to the date of the original pleading when: ...(B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out – or attempted to be set out – in the original pleading.   The circuit court set for a two part test for determining whether a complaint can relate back to a prior pleading.  The first issue is whether the motion functioned as an 'original pleading' to which the untimely complaint related back.  If so, the court must determine whether the complaint's non-dischargeability allegations 'arose out of the conduct, transaction, or occurrence set out - or attempted to be set out - in the original pleading.    The debtor/defendant argued that Rule 7015 only applies to pleadings, and a motion is not a pleading permitted by Rule 7007 in that Rule 7001(6) requires a nondischargeabililty claim to be pursued as an adversary proceeding, which must be commenced by a complaint per Rule 7003.  The court rejected this argument, finding that Rule 7008 setting forth 3 requirements for a complaint:  (1) “a short and plain statement of the grounds for the court's jurisdiction[;]” (2) “a short and plain statement of the claim showing the pleader is entitled to relief;” and (3) “a demand for the relief sought.” Fed. R. Civ. P. 8(a). Rule]8(e) provides that ‘pleadings must be construed so as to do justice, and should be interpreted liberally to avoid dismissal on grounds of technical error.    Further, the court has previously ruled that filings were sufficient to constitute a complaint even when not so labelled.  Robinson v. City of Fairfield, 750 F.2d 1507, 1511 (11th Cir. 1985) (a plaintiff's application for the appointment of counsel which stated “legal nature and factual basis of his claim”); Judkins v. Beech Aircraft Corp., 745 F.2d 1330, 1332 (11th Cir. 1984) (a plaintiff's right-to-sue letter and “charge of discrimination”); Commodity Futures Trading Comm'n v. Am. Commodity Grp. Corp., 753 F.2d 862, 865 (11th Cir. 1984) (an application for an order to show cause was “the functional equivalent of a complaint”).  As the motions in this case satisfy the requirements for Rule 8, the court deemed it to satisfy the first test to allow relation back, by specifically requesting that the debt be held nondischargeable and seven pages of factual details supporting the allegations, which gave fair notice to the debtor of the claim and the grounds on which it rested.  On the same grounds the court rejected the debtor's argument that the complaint should be dismissed as the creditor filed a motion in the main case rather than an adversary complaint in a separate proceedings.  As the motion was the functional equivalent of a complaint under Rule 8A, the later filed complaint should be deemed filed when the motion was filed.   Likewise it rejected the argument that since the adversary was a different proceeding, it could not relate back to a document filed in the main case.  However, for purposes of Rule 15 all matters filed are within the same bankruptcy case even if in different proceedings.  The court also found the second test to be satisfied.  “The critical issue in Rule 15(c) determinations is whether the original complaint gave notice to the defendant of the claim now being asserted.” Makro Cap. of Am., Inc. v. UBS AG, 543 F.3d 1254, 1260 (11th Cir. 2008) (alteration and quotation omitted). Mr. Beem's later-filed complaint contains nearly-identical factual allegations regarding non-dischargeability as those in his timely motion.  As these gave adequate notice to the debtor that the creditor objected to the dischargeability of the debt.   Finally, the court determined that the granting of summary judgment was proper, finding that collateral estoppel applied from the state court judgment.   Collateral estoppel bars the relitigation of issues that have been adjudicated in a prior action, and applies to an adversary proceeding challenging the dischargeability of a debt.   Under Florida law, for collateral estoppel to apply, among other things, the issue at stake in this litigation must be identical to the one involved in the prior litigation. See Aronowitz v. Home Diagnostics, Inc., 174 So.3d 1062, 1066 (Fla. 4th DCA 2015). Issues are “sufficiently identical” when their elements and requirements “closely mirror” each other. See In re St. Laurent, 991 F.2d at 676.  The debtor argued that there was inadequate finding in the state court to support a willful and malicious count under 11 U.S.C. 523(a)(6). However under Florida law, a claim for abuse of process has three elements: “(1) the defendant made an illegal, improper, or perverted use of process; (2) the defendant had an ulterior motive or purpose in exercising the illegal, improper, or perverted process; and (3) the plaintiff was injured as a result of defendant's action.” Hardick v. Homol, 795 So.2d 1107, 1111 n.2 (Fla. 5th DCA 2001). Florida courts have further explained that an action for abuse of process consists of a “willful and intentional misuse of process for some wrongful and unlawful object or collateral purpose.” Gause v. First Bank of Marianna, 457 So.2d 582, 584 (Fla. 1st DCA 1984)   “Willful” in §523(a)(6) means “a deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury.” Kawaauhau v. Geiger, 523 U.S. 57, 61, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998) (emphasis in original). “Malicious” means “wrongful and without just cause or excessive even in the absence of personal hatred, spite or ill will.” In re Jennings, 670 F.3d 1329, 1334 (11th Cir. 2012) (quotation omitted). To establish malice “a showing of specific intent to harm another is not necessary. Since the abuse of process count requires the same requirement of willfulness or intent as §523(a)(6), as well as a requirement for an ulterior motive or purpose.  The debtor had a full opportunity to litigate these issues in state court, and cannot relitigate them in bankruptcy.  Michael Barnett www.hillsboroughbankruptcy.com

By GINIA BELLAFANTE  Last spring, Bhairavi Desai, a middle-aged woman without a driver’s license and thus an unlikely leader for thousands of mostly male drivers in the world’s largest market for hired vehicles, delivered emotional testimony in front of New York City’s Taxi & Limousine Commission about the mounting existential difficulties in her field.The executive director of the New York Taxi Workers Alliance, Ms. Desai had been a labor activist for 21 years but she had never seen anything like the despair she was witnessing now — the bankruptcies, foreclosures and eviction notices plaguing drivers who were calling her with questions about how to navigate homelessness and paralyzing depression.“Half my heart is just crushed,’’ she said, “and the other half is on fire.”The economic hardship that Uber and its competitors had inflicted on conventional drivers in New York and London and other cities had become overwhelming. For decades there had been no more than approximately 12,000 to 13,000 taxis in New York but now there were myriad new ways to avoid public transportation, in some cases with ride-hailing services like Via that charged little more than $5 to travel in Manhattan. In 2013, there were 47,000 for-hire vehicles in the city. Now there were more than 100,000, approximately two-thirds of them affiliated with Uber.While Uber has sold that “disruption” as positive for riders, for many taxi workers, it has been devastating. Between 2013 and 2016, the gross annual bookings of full-time yellow-taxi drivers in New York, working during the day when fares are typically highest, fell from $88,000 a year to just over $69,000. Medallions, which grant the right to operate a taxi in New York City, were now depreciating assets and drivers who had borrowed money to pay for them, once a sound investment strategy, were deeply in debt. Ms. Desai was routinely seeing grown men cry and she had become increasingly concerned about the possibility that they would begin taking their lives. On Monday morning, Doug Schifter, a livery driver in his early 60s, killed himself with a shotgun in front of City Hall in Lower Manhattan, having written a lengthy Facebook post several hours earlier laying out the structural cruelties that had left him in such dire circumstance. He was now sometimes forced to work more than 100 hours a week to survive he said; when he had started out in the 1980s a 40-hour week was fairly typical. He blamed politicians — mayors Michael R. Bloomberg and Bill de Blasio, Gov. Andrew M. Cuomo — and their acquiescence to the rich for permitting so many cars to flood the streets. He blamed the Taxi Commission for the fines and hassles it imposed.He had lost his health insurance and accrued credit card debt and he would no longer work for “chump change,’’ preferring, he said, to die in the hope that his sacrifice would draw attention to what drivers, too often unable to feed their families now, were enduring. He had forecast all of this doom in columns he had written for a trade publication called Black Car News, he wrote, but few had listened to him.Implicit in his testament was the anger he felt over the de-professionalization of his life’s work. Mr. Schifter had driven more than five million miles throughout his tenure, through five hurricanes and 50 snowstorms. He had chauffeured celebrities and worn a suit. He was not driving a car to supplement the income he was getting from his crepe business and he was not trying to make a little extra money for massage. He was not a participant in the gig economy; he was a casualty of it.For at least a century, the suicide as spectacle, prompted by a reversal of fortune, has typically been the practice of the wealthy. In the months after Wall Street’s crash in 1929, four people threw themselves out windows in New York (leading to the folklore that there had been many, many more such deaths). Decades later, Bernie Madoff’s son Mark hanged himself from a dog leash in his SoHo apartment. In 2016, Sanjay Valvani, a hedge fund manager accused of insider trading, slashed his throat in the bedroom of his Brooklyn townhouse, to much sensation in the tabloid and financial press. Poverty too often kills you without making you try.For taxi drivers staring down an even bleaker future of driverless cars at a moment when Washington considers a weekly paycheck bump of $1.50 an occasion to break out the layer cake, it is hard to see where the metaphoric Prozac will come from.The problems facing the city’s taxi drivers have become so bad, Ms. Desai said, that even on New Year’s Eve many complained that they roamed around unable to pick up fares. At about that time she had received a call from a woman who runs a community radio station in the Bronx, with an audience made up mostly of Dominican livery drivers. Two drivers that the host knew of had killed themselves and other drivers were on the show talking about the isolation and fear they saw all around them.In the days preceding his death, Mr. Schifter wrote about his decreasing faith in our politics and about his commitments to his spiritual life. “Forget the cliché you only live once it is not true,” he said in a Facebook post. “The clues are all about you if you take the time to seek them.”Copyright 2018 The New York Times Company.  All rights reserved.

Provided below is sales data from the sale of 46 unrestricted taxi medallions as reported by the TLC for January 2018, which includes 34 medallions sold in a bankruptcy auction. The estate sales for $245,000, $176,000 and $170,000 may be too low a value because these sales reflect a sale by the estate of a taxi medallion owner who died, and those “desperate sellers” are selling for tax purposes or to quickly dispose of a depreciating asset.  Factoring out the foreclosure and estate sales, the fair market value of a medallion based on January sales data appears to be approximately $186,000 based on the 34 medallions sold at the bankruptcy auction.  Auction sales with a bidding process often reflect fair market value.  Medallion owners with “underwater” medallions (where the loan balance exceeds the value of the medallion) should contact Jim Shenwick to discuss their options under the law. Price Type of Sale Number of Medallions $380,000 2 $380,000 2 $372,000 Bankruptcy 2 $372,000 Bankruptcy 2 $372,000 Bankruptcy 2 $372,000 Bankruptcy 2 $372,000 Bankruptcy 2 $372,000 Bankruptcy 2 $372,000 Bankruptcy 2 $372,000 Bankruptcy 2 $372,000 Bankruptcy 2 $372,000 Bankruptcy 2 $372,000 Bankruptcy 2 $372,000 Bankruptcy 2 $372,000 Bankruptcy 2 $372,000 Bankruptcy 2 $372,000 Bankruptcy 2 $372,000 Bankruptcy 2 $372,000 Bankruptcy 2 $250,000 1 $250,000 1 $245,000 Estate 1 $185,000 1 $181,000 1 $176,000 Estate 1 $170,000 Foreclosure 1 $170,000 Estate 1 $170,000 1