American Bankruptcy Institute Update

October 6, 2005

In This Issue


Legislative Update

Senate Pension Bill Has One Hold Removed, Another Added

Sens. Mike DeWine (R-Ohio) and Barbara Mikulski (D-Md.) have placed a hold on pension legislation that Senate leaders had planned to vote on this week because of provisions that they say are anti-business, CongressDaily reported this afternoon. Finance Chairman Sen. Charles Grassley (R-Iowa), one of the bill's authors, remained opposed to their proposed changes, and the impasse could complicate the bill's passage, at least before Congress adjourns for next week's recess. The pension bill is a product of the merging of the versions from the Finance and Health, Education, Labor and Pensions committees. DeWine and Mikulski want to strip language that would require companies with low credit ratings to contribute more to their pension plans. Businesses have complained that credit ratings should not be used to determine the health of pension plans.

Grassley, however, said that the changes would make the bill similar to the HELP Committee's version. If that happens, Grassley told reporters, he "wants back" provisions of his original bill that he gave up in negotiations with the HELP panel. DeWine and Mikulski said that they are trying to work out the differences before a Senate vote, but DeWine suggested that it might be decided during the House-Senate conference.

Meanwhile, Sen. John Cornyn (R-Texas) officially lifted his hold on the pension bill. Cornyn said that the bill's authors had addressed his concerns that the bill benefited only bankrupt airlines that had frozen their pension plans and not carriers that have maintained their pensions. Senators reached a deal yesterday that would give all airlines an additional 14 years to pay their pension liabilities.

U.S. Trustee Program Relax Enforcement for Debtors Affected by Natural Disasters

The United States Trustee Program yesterday issued bankruptcy enforcement guidelines that take into account the hardships experienced by victims of recent hurricanes in the Gulf Coast region. The Program is taking the following steps to address the impact of current law and the BAPCPA upon victims of natural disaster:

-- Document Requirements -- Under current law and the BAPCPA, debtors provide documents such as payment advices and statements of income. U.S. Trustees will not file enforcement motions against debtors who cannot produce documents due to natural disasters, if they are otherwise eligible for bankruptcy relief.

-- Means Test -- Under the BAPCPA, individual debtors undergo a "means test" to determine whether they are eligible for Chapter 7 relief or whether Chapter 7 relief is presumed abusive. Generally speaking, the BAPCPA permits a debtor to rebut that presumption of abuse by showing "special circumstances." In determining whether to file an enforcement motion on grounds of presumed abuse, the Program will consider income loss, expense increase, and other adverse effects of a natural disaster to constitute "special circumstances."

-- Attendance at Creditors' Meetings -- U.S. Trustees will exercise flexibility and provide alternative means for a debtor to attend the mandatory meeting of creditors if, due to the adverse effects of a natural disaster, the debtor cannot appear personally and testify under oath in the district where the case is filed.

-- Venue -- U.S. Trustees will not raise or support venue objections in cases in which the debtor was displaced due to a natural disaster, unless the filing constitutes a systemic abuse or presents extraordinary circumstances.

-- Small Business Chapter 11 Bankruptcies -- U.S. Trustees will not take enforcement actions against Chapter 11 small business debtors who, as a result of a natural disaster, cannot reasonably be expected to perform statutory duties such as attending an initial debtor interview and filing financial reports. U.S. Trustees will not seek conversion or dismissal of a small business Chapter 11 case if the grounds for filing the case are attributable to a natural disaster and there are reasonable prospects for reorganization. U.S. Trustees will not oppose reasonable and necessary extensions of time to file a disclosure statement and confirm a reorganization plan, if a small business debtor cannot comply with the deadlines because of a natural disaster.

On Oct. 4, the Program announced a temporary waiver of the statutory requirements for credit counseling for bankruptcy filers in Louisiana and the Southern District of Mississippi due to the effects of Hurricane Katrina.

Read the release.

ABI Holds Successful Online News Conference

ABI President John Penn, Resident Scholar Prof. Nathalie Martin and Executive Director Sam Gerdano fielded questions from reporters across the country this morning about BAPCPA and its expected effects on the consumers and businesses.


ABI and The Georgetown University Law Center CLE will present a live Webcast of Bankruptcy 2005: Views from the Bench program tomorrow at 8:30 a.m. (EDT) via Thomson West’s WestLegalEdCenter. The Webcast, set to run at 3 hours and 45 minutes, will feature three timely topics:

First-day issues - updated with the latest legislative revisions. This program will cover the changes in procedures under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA).

Section 363  - This program will cover the new developments in §363, including an analysis of Precision Industries Inc. v. Qualitech and sales free and clear of leases and other valuable rights—updated with the latest legislative revisions.

Mass Tort Problems - including prepacks, legislation, future claims and Combustion Engineering.

The afternoon session (3-4p.m. EDT) covers such ethic issues as representation of creditors, conflicts and solicitation for appointment as counsel.

Click here for more information and to register.


The print edition of the 2005-06 ABI Annual Membership Directory is now available. This 21st edition lists more than 11,000 insolvency professionals, more than ever before, and is a symbol of ABI’s sustained membership growth. The Directory is one of the many benefits of ABI membership and is available exclusively to members. An online version of the Directory is available at the ABI World Web site (, which is continually updated. All members will receive a complimentary CD-ROM version of the Directory with their November ABI Journal.

This expanded print edition enables you to capitalize on the depth and diversity of our membership. In addition to indexing each member by geographic area, ABI committee, profession and practice area, there are references to firm size and certification to assist you in identifying colleagues for referrals. Included is a “Multiple Members by Firm” section, which permits you to easily locate all members from a particular law, accounting or turnaround firm. Members are also listed under other locations where they have offices, thus enhancing your ability to easily find bankruptcy professionals nationwide. Also included are e-mail addresses and firm Web site listings. The Endowment section includes guidelines for consideration of Endowment Fund grant proposals. The $55 cost of the printed version includes shipping and handling, Visit the ABI bookstore to order .


Please join us for the Eleventh Annual Rocky Mountain Bankruptcy Conference, to be held January 26–28 in beautiful downtown Denver, Colorado.

The educational program will provide attendees with an interactive learning experience led by a faculty of highly regarded bankruptcy judges and experienced practitioners. The roundtable format emphasizes discussion of relevant insolvency issues among the faculty and the participants.

This conference is an educational opportunity not to be missed! Up to 12 hours of CLE credit, including three hours of ethics, can be earned.

Register today!


Do You Know?

A new online tutorials hows you how to find daily news stories, information and bankruptcy opinions on ABI’s comprehensive Web site. The tutorial features a visual demonstration of how to locate these documents quickly and easily, and guides you through the navigation process. This is the fourth in a series of tutorials that will highlight the many resources and services available at ABI World.


The new bankruptcy law provides that courts will take into account board certification when awarding attorney fees under §330. The American Board of Certification is offering its exams several times this fall. You can prepare for the exams with a handy and affordable CD-ROM prepared by board-certified ABI members [C.R. (Chip) Bowles, Greenebaum Doll & McDonald; Jason Gold, Wiley, Rein & Fielding; Dennis LeVine, Dennis LeVine & Associates; Gary Marsh, MeKenna Long & Aldridge; Shannon Nagle, Stroock & Stroock & Lavan; Daniel Sklar, Nixon Peabody; Kent Snyder, Snyder & Associates; David Sykes, Duane Morris; Mark P. Williams, Norman, Wood, Kendrick & Turner]. The CD includes materials on consumer bankruptcy, business bankruptcy, ethics and creditors’ rights. Sample exam questions and answers are also included. Member price is $195.

Buy Now!

Latest Job Postings at ABI Career Center

Check out the ABI Career Center. The Center is a one-stop site for job seekers and employers in the insolvency community. Career Center resources are available free to both employers and job seekers. New positions are featured daily. The latest listings include: