Biographies & Overviews

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ABI Consumer Committee Judicial Co-chair Hon. Dennis R. Dow

Dennis R. Dow was appointed a U.S. Bankruptcy Judge for the Western District of Missouri Circuit Court of Appeals in Kansas City, Mo. on November 10, 2003. Prior to joining the bench, Mr. Dow was a partner with the firm of Shook, Hardy & Bacon LLP. He has been continuously listed in The Best Lawyers in America in the area of bankruptcy law since 1995. Judge Dow participated in a broad range of cases representing many different types of clients with a wide variety of claims and interests, including trustees in chapter 7 cases involving significant assets, individual and corporate debtors in proceedings under chapter 7 and 11, and secured, unsecured and priority creditors and lessors in chapter 7, 11, 12 and 13 cases. He also participated in and tried numerous adversary proceedings and contested matters, including preference actions, objections to discharge, dischargeability, complaints and objections to confirmation of chapter 11 plans. His practice also included representing purchasers of assets from chapter 11 estates. Judge Dow is a member of ABI, the American Bar Association, The Missouri Bar and the Kansas City Metropolitan Bar Association. He is a judicial co-chair of ABI’s Consumer Bankruptcy Committee and has authored and co-authored several articles, including “Related Claims in Bankruptcy” Journal of Bankruptcy Law and Practice, Vol. 3, No. 1 (Nov./Dec. 1993); “Agreements in Bankruptcy: Sales or Leases?” ABI Law Review, Vol. 2, No. 1 (Spring 1994); and “Gramm-Leach-Bliley and the Bankruptcy/Collection” Attorney Norton Bankruptcy Law Advisor (Feb. 2002). He received his B.A. with honors from the University of Wyoming in 1975 and his J.D. in 1978 from Washburn University School of Law, where he was notes editor of the Washburn Law Journal.

ABI Executive Director Samuel J. Gerdano

Samuel J. Gerdano is the executive director of the American Bankruptcy Institute in Alexandria, Va. He joined ABI in May 1991. From June 1985 until May 1991, he was the chief legal counsel to Sen. Charles E. Grassley (R-Iowa) on the Subcommittee on Courts and Administrative Practice of the Senate Judiciary Committee, serving as minority chief counsel and staff director from October 1987. He was responsible for a variety of legal policy areas, including administrative law, antitrust, judicial nominations, intellectual property, criminal and constitutional law. The subcommittee also has jurisdiction over the U.S. Bankruptcy Code; Mr. Gerdano has thus far been involved in all major bankruptcy policy changes since 1985. Prior to serving the Senate Judiciary Committee, he was an Assistant Chief Counsel for Advocacy of the U.S. Small Business Administration in Washington, D.C. Mr. Gerdano graduated with honors from Syracuse University College of Law and received his B.A. in journalism magna cum laude from Syracuse University. He is the author and co-author of numerous articles on the judicial nominations process, alternative dispute resolution and litigation with the federal government, and is a frequent lecturer on bankruptcy and other legal issues.

ABI Consumer Committee Co-chair Dennis J. LeVine

Dennis J. LeVine is the founder of Dennis LeVine & Associates PA in Tampa, Fla., where he represents creditors in all bankruptcy courts in the state of Florida. The firm also represents creditors in commercial and consumer collection litigation throughout Florida. Prior to forming his own firm in March 1996, Mr. LeVine was named partner in the firm of Cramer, Haber, McDonald & LeVine PA in Tampa. He is Board Certified in Consumer Bankruptcy Law and Business Bankruptcy Law by the American Board of Certification, for which he also served on the Board of Directors. Mr. LeVine served as president of the Tampa Bay Bankruptcy Bar Association and is a member of The Florida Bar’s Business Law Section. He has published various articles in the ABI Journal, the Florida Bar Journal and the Cramdown, the quarterly publication of the Tampa Bay Bankruptcy Bar Association. He has been a speaker at many conferences throughout the United States. Mr. LeVine graduated Phi Beta Kappa from Tulane University and received his J.D. from George Washington University’s National Law Center.

ABI Resident Scholar Jeffrey W. Morris

Prof. Jeffrey W. Morris is the current ABI Robert M. Zinman Resident Scholar for the spring 2005 semester. Prof. Morris is one of the most distinguished academics in the bankruptcy field, earning his reputation for teaching, scholarship and service to leading bankruptcy organizations. He is a professor at the University of Dayton School of Law in Dayton, Ohio, and a member of the National Bankruptcy Conference (NBC), serving as its secretary and as a co-reporter of the NBC’s Individual Debtor Committee. He also serves on the Advisory Committee on Bankruptcy Rules and is an elected Fellow in the American College of Bankruptcy. His publications include Problems & Materials on Debtor/Creditor Law, a casebook co-authored with Prof. Douglas Whaley and published by Aspen Law & Business. After graduating from Washington & Lee School of Law, where he served as editor of the Law Review, he went into private practice before starting his teaching career.

ABI Consumer Committee Judicial Co-chair Hon. Thomas F. Waldron

The Hon. Thomas F. Waldron was originally appointed to the bench in 1985, and has been reappointed as a United States Bankruptcy Judge for the Southern District of Ohio at Dayton. He is currently Chief Judge of the Southern District of Ohio Bankruptcy Court. He also served as Chief Judge of the Bankruptcy Appellate Panel of the Sixth Circuit. He is a member of the adjunct faculty at the University of Dayton Law School and a contributing editor to the Norton Bankruptcy Law Practice Treatise. Judge Waldron has been a speaker at educational programs of the Federal Judicial Center, the National Conference of Bankruptcy Judges, the American Bankruptcy Institute, the National Association of Chapter 13 Trustees, and other national, regional and local organizations. Judge Waldron received his law degree from the University of Cincinnati Law School.

ABI Consumer Committee Co-chair Thomas J. Yerbich

Thomas J. Yerbich Holds a JD (with distinction) and LL.M. (Business & Tax) from McGeorge School of Law, University of the Pacific. Admitted to practice in California and Alaska with over 30 years experience, including 24 years representing debtors, trustees, creditors' committees and creditors in business reorganizations and consumer cases. Mr. Yerbich is certified by the American Board of Certification in both Business and Consumer Bankruptcy Law. A frequent CLE panelist on bankruptcy and tax law, he has written numerous articles on the subject of bankruptcy law. Co-vice chair of the ABI Consumer Bankruptcy Law section, Mr. Yerbich is the author of Fundamentals of Consumer Bankruptcy Law: Chapters 7 & 13 of the Bankruptcy Code. Formerly a sole practitioner in Anchorage, Mr. Yerbich currently serves in the temporary position as the Rules Attorney for the U.S. District Court in Alaska.

Overviews

ABI Consumer Committee Judicial Co-chair Hon. Dennis R. Dow

The first impact of the bankruptcy reform legislation may occur before its effective date. Conventional wisdom has it that the enactment of the legislation will result in a significant increase, during the period prior to the effective date, in the number of Chapter 7 bankruptcy filings. The act makes the most significant changes in bankruptcy law since the enactment of the Bankruptcy Code in 1978. The first and most obvious impact on the judiciary is simply the task of becoming familiar with the many and significant changes made by the legislation and of modifying bankruptcy rules, forms and procedures to accommodate the changes. The changes will have an impact on bankruptcy court clerk’s offices as the bankruptcy court now has an obligation to provide certain new notices to creditors, respond to requests for pleadings and generate statistics for later analysis on the effect of some of the changes made by the legislation. Some predict that because of new obligations imposed on debtors’ counsel, some lawyers will cease to do debtors’ work reducing availability of counsel for bankruptcy filers. If true, the number of pro se cases may increase in all jurisdictions, including some which have not had a traditionally high load of such cases. Pro se cases, because of the unfamiliarity of the debtors with the Bankruptcy Code and rules, frequently impose more demands on judges as well as others in the court system. The court will be required to conduct hearings on new kinds of requests for relief which would not previously have been filed. For example, as a result of new restrictions of the availability of the automatic stay for repeat filers, first day motions in Chapter 13 cases may become a new reality. The procedures for such motions, for example whether these requests may be brought by motion or require the filing of an adversary proceeding, have not been made clear. Depending on how many cases are affected by the new means test, the court may be holding significantly more hearings on this threshhold question of the debtors’ eligibility for relief than it did under the old regime of “substantial abuse” under § 707(b). The means test is complicated and extremely detailed and may require a substantial investment of judicial resources. In some instances, the Code employs new standards for granting or denying relief (such as “special circumstances” in abuse motions) without detailed explanation of the standard. The courts will be required to infuse meaning into these new phrases and apply them to individual circumstances. As is often the case with any significant legislative change, some provisions do not coordinate well with related provisions on similar subjects or create ambiguities which will require judicial resolution. Although apparently a technical amendments bill is already in the works, the scope of that bill is unclear. Demands on bankruptcy court time for hearings may increase not only as a result of litigation regarding the means test and reimposition of the automatic stay, but on discharge matters as well. This scope of dischargeable debts in Chapter 13 has been restricted, the amendments making nondischargeable in such cases debts which previously were subject to a completion discharge in Chapter 13 cases. Accordingly, the courts may be required to hear dischargeability challenges in Chapter 13 cases, such as on credit card debt, which they were not previously required to hear.

ABI Consumer Committee Co-chair Dennis J. LeVine

From a secured creditor’s perspective, I anticipate the effect of the major changes from the Code to the Reform Act will be:

- a significant reduction in the effect of serial filings

- expedited confirmation hearings in Chapter 13

- a reduction in "cram downs" of personal property liens in Chapter 13

- codifying "retail value" for personal property valuations

- greater likelihood of adequate protection payments being made without
Court intervention

The changes in the Code are designed to make the bankruptcy process move along more quickly. The change in the valuation standard in Section 506, which applies to valuations in both Chapter 13 cases and redemption in Chapter 7 cases, clearly will benefit the recoveries of secured creditors.

On the other hand, the unknown and unintended consequences of the changes in the Code may undercut the "gains" which secured creditors anticipate. For example, debtors may simply surrender their older secured property (e.g. their used cars) and purchase a new one just before filing bankruptcy. What we can be sure of is that the debtor’s bar will "fight back", and Bankruptcy Judges may be of the mind to interpret the new provisions of the Code so as to support the arguments made by debtors’ attorneys.

ABI Consumer Committee Judicial Co-chair Hon. Thomas F. Waldron

Judge Waldron:
From my judicial perspective, the initial major change from the Code to the Reform Act will be the new hearings necessitated by the Reform Act. By new hearings, I mean court proceedings which have never previously been held in the bankruptcy court. [i.e., § 109(h) - eligibility and a possible waiver “satisfactory to the court” of a required credit counseling and budget briefing?; § 342 – “effective” notice in the proceeding before the court?; § 362(c)(3) & (4) – will a stay be in effect, or extended, in proceedings involving certain repeat filings? – and many more] The Reform Act contains many new terms, often not defined, which will cause new factual presentations and new legal arguments requiring new hearings and resulting in new bankruptcy court decisions. In the existing bankruptcy court system, which is currently under funded, understaffed and facing a continuingly burgeoning caseload, a clear concern for the court, creditors and debtors is whether these new hearings, which will inevitability result in justice delayed, will also result in justice denied.

ABI Consumer Committee Co-chair Thomas J. Yerbich

From the debtor’s perspective, the Act has created a sea change beginning with pre-filing requirements and extending through discharge, These may be summarized as follows. First, undergo credit counseling before filing the petition and then complete a course in financial management before receiving a discharge.Second, reduced availability of chapter 7 for those with the means to pay debt. Third, provide additional documentation, verification and justification for expenses, Fourth, if income exceeds the applicable median income for the state of residence, face significant changes in lifestyle in order to obtain relief. Fifth, may “assume” residential and personal property leases along with reaffirming secured debts.Sixth, make more of their financial records part of the public records. Seventh, if subject to a domestic support order, maintain postpetition payments current, Eighth, meet more stringent domiciliary requirements for state exemptions. Ninth, automatic exemption of qualified pension plans whether state or federal exemptions are taken.Tenth, if income exceeds the applicable median income for the state, subject to a lengthened plan duration of five years.