Bankruptcy Litigation Committee

ABI Committee News

Sixth Circuit Declines to “Blindly Adopt Till” - Announces Nuanced Approach to Cramdown Interest Rates

In Bank of Montreal v. Official Committee of Unsecured Creditors (In re American HomePatient, Inc.), 2005 WL 1949548 (6th Cir. Aug. 16, 2005), the Sixth Circuit, relying heavily on a footnote from Till v. SCS Credit Corp., 541 U.S. 465 (2004), introduced a “nuanced approach” in determining the correct cramdown interest rate in a Chapter 11 case.  The Supreme Court in Till held that the formula approach is the appropriate method of calculating cramdown interest in chapter 13 cases. Id. at 479–80.  While the court in Bank of Montreal does not explicitly reject Till in the chapter 11 context, the court does not use Till’s formula approach. 

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Coming Soon - Direct Appeals of Bankruptcy Decisions to the Courts of Appeal


Direct Appeals of Bankruptcy Court Decisions

Buried deep within the technical amendments of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) is a provision permitting direct appeals from bankruptcy courts to circuit courts of appeal. BAPCPA §1233(a)(2)(B). This section amends the present appellate provisions of 28 U.S.C. §158(d)(2) and might prove to be one of the most significant provisions of BAPCPA for bankruptcy litigators. Far removed from the debates that raged in the mid-1970s over the propriety of direct appeals from a non-Article III court to the courts of appeal, the new provisions address the need to accelerate resolution of significant issues in ordinary bankruptcy cases, or even ordinary issues in significant bankruptcy cases. It is likely that this provision will generate a substantial volume of appellate authority as the certification and authorization provisions are interpreted by several courts of appeal over the next few years.

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The Barton Doctrine: Gatekeeper for Actions Against Trustee and Counsel

For trustees, and those of us who represent trustees, the Barton Doctrine is an especially helpful rule that provides a measure of protection from lawsuits while in the performance of our duties. The Barton Doctrine was a creation from common law by the U.S. Supreme Court in Barton v. Barbour, 104 U.S. 126, 129, 26 L.Ed. 672 (1881). In Barton, the Supreme Court held that in order to sue a court-appointed receiver, the petitioning party must first seek leave of the court that issued the receiverís appointment. The Supreme Courtís holding was based in part on the reasoning that the appointing court has in rem jurisdiction over the receivership property. Thus, without leave of the appointing court, the forum in which the receiver was sued lacked subject-matter jurisdiction over the action. Of course, subject-matter jurisdiction, or lack thereof, can be raised at any time. Although a rather risky proposition, it can even be raised for the first time on appeal. Torrez v. Edwards, 107 P.3d 1110 (Colo. App. 2004) (Barton Doctrine raised for first time on appeal).

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Agenda for the 2005 Winter Leadership Conference

The Financial Advisors, Litigation and Professional Compensation committees will jointly present a mock trial of an objection to final professional fees and a program on changes important to our committees under the new law.