American Bankruptcy Institute Update

December 13, 2005

In This Issue

Highlights

LEGISLATION

House Leaders Strike Deal with UAW on Pension Measure

House Education and the Workforce Chairman Boehner and Ways and Means Chairman Thomas announced today they had made concessions to unions on pension legislation and said the United Auto Workers now supports the bill, possibly clearing the way for a floor vote, CongressDaily reported today. The UAW had opposed the bill until today's negotiating session, and the prospect of the union carrying more Democratic votes gives GOP leaders more leeway for a possible floor vote. The floor schedule, however, is crowded and little time is available. Majority Whip Blunt today said a floor vote is likely this week, but he did not say when. "It's going to be a bipartisan effort," said Blunt, who previously had tamped down expectations that the House would act on the bill before the end of the year.

Boehner and Thomas agreed to ease provisions in their bill that prevent companies from increasing benefits to workers while their pension plans are in poor financial condition. The underlying bill is aimed at tightening pension rules and requiring companies to pay significantly more into their pension coffers. The UAW had complained that the bill was too restrictive for workers because it banned pension plans that were less than 80 percent funded from negotiating with workers for increases in pension payments. Boehner has argued that companies often promise generous future benefits even when their pension accounts are in bad shape. The union similarly had argued against the bill's restrictions on companies paying workers "shutdown" benefits.

In an announcement, Thomas and Boehner called the changes "modest." The changes "remain consistent with the bill's overall balanced approach of protecting worker and retiree pension assets while not forcing employers out of the defined benefit pension system our bill aims to strengthen," they said. "The UAW's support adds even more momentum to the ever-growing coalition of employer and labor support for the Pension Protection Act, and we expect the House to pass this measure before Congress adjourns this year." The Senate has passed a pension bill that differs from the House version.

FORMER HOUSE REFORMER WORKS TO EASE SARBANES-OXLEY RULE FOR SMALL BUSINESSES

One of the principal GOP figures in Congress’s response to the corporate accounting scandals at the beginning of the decade is now leading a coalition of health care, high-tech and venture-capital groups in an effort to relax the enforcement of the Sarbanes-Oxley Act, The Hill reported today. Former Rep. Jim Greenwood (R-Pa.) is president of the Biotechnology Industry Organization (BIO), which represents many of the kind of smaller publicly traded companies that have been among the most vocal critics of Sarbanes-Oxley and the burdens its corporate integrity standards have placed on businesses. BIO and the other groups are hoping to convince a Securities and Exchange Commission (SEC) advisory committee set to meet tomorrow that it should carve out certain exceptions to the law for smaller businesses.

As chairman of the House Energy and Commerce Committee’s Oversight and Investigations Subcommittee, Greenwood led a series of hearings in 2002 that helped cast light on the practices of companies such as Enron, WorldCom, Global Crossing, ImClone and Arthur Andersen. Greenwood retired from Congress and took over at BIO in January. Greenwood was among a cadre of House Republicans who pushed the leadership and the rank-and-file to adopt aggressive new requirements to promote corporate accountability. His transition from congressional investigator to corporate advocate has its critics, Greenwood acknowledges. Read more.

PRO BONO LAWYERS DIFFICULT TO FIND POST-BAPCPA

Debtors still can get a fresh start under new bankruptcy rules that took effect Oct. 17, but changes in the law make it much more complicated and expensive, the St. Louis Post-Dispatch reported Saturday. But the new rules also introduced liability risks for lawyers, making it almost impossible now to find one who's willing to take a pro bono bankruptcy case. Read more.

HOUSEHOLD DEBT SET NEW HIGH THIS FALL

Household debt and financial obligations relative to personal income reached a new high during the third quarter of 2005, just as a tough new consumer bankruptcy law went into effect. Statistics released on Friday by the Federal Reserve showed that a key measurement – the Financial Obligations Ratio (FOR) – reached a record 16.61, up 1.6 percent from the previous high set during the second quarter. The FOR is the estimate of the ratio of debt payments to disposable personal income, including mortgage payments, auto leases, rent, insurance, taxes and other consumer obligations. Read the full Fed Bulletin.

RISING INTEREST RATES: HOW LONG BEFORE THE DEBT BUBBLE BURSTS?

Ana Martinez-Perez has always relied on her credit cards to keep her going: to pay for health care, clothes for work, and even the basics such as food and gas. "I'm always dipping, and I'm always in debt," the Massapequa, N.Y., resident said, Newsday.com reported today. During the past few years, Martinez-Perez tried everything to get back into the black. But when she needed to do some work on her house and decided to expand the credit line, her payments went from $200 to $600 a month - a change she says her bank didn't warn her about. Now, Martinez-Perez is facing $4,000 in credit card debt on two different cards, on top of her mortgage and the home equity line. "I'm almost 60, and retirement's ahead," she said. "I just don't want this burden on me."

It's a familiar story for many consumers, who have been relying on every kind of debt - from credit cards and second mortgages to home equity lines of credit, or student and car loans - to stay afloat, especially as they face stagnant wages and less job security. Some are racking up debt to pay for extravagances such as vacations or fancy SUVs. But many are forced to turn to credit cards to pay for necessities such as medical expenses, car repairs and even groceries. Their borrowing and spending has propped up the economy, two-thirds of which depends on the consumer. Now, a small needle may be enough to prick the so-called debt bubble and bring some consumers' spending - and, potentially, the expanding economy - to a crashing halt. Read more.

REGISTER NOW FOR ABI’S 14th ANNUAL BANKRUPTCY BATTLEGROUND WEST

For the past 13 years, ABI has presented its Bankruptcy Battleground West program to the Los Angeles area insolvency community. The 14th annual program, to be held March 10, 2006, at The Century Plaza in Los Angeles, is titled “Everything Old is New Again: New Rules, New Players and New Strategies for Chapter 11 Practice.” The program will also include a luncheon presentation by bankruptcy attorney Patrick Shea, the former mayoral candidate for San Diego who advocated a chapter 9 filing to help solve the city’s financial problems. This year’s program promises to be exciting and informative. Don’t miss out!

Timely topics include:

  • Vanishing Pensions and Shrinking Retirement Benefits: Does Chapter 11 Allow a Company to Take Away with One Hand What It Gave with the Other?
  • Code Blues–New Issues for Health Care and Hospitals: An Analysis, Discussion and Debate of Issues Involving Health Care, Hospitals Under the Amended Bankruptcy Code.
  • Luncheon Presentation: Should San Diego File Chapter 9 to Restructure Its Debts?
  • The New Face of American Reorganization and Restructuring
  • The Business Bankruptcy Law 6 Months Later: Has Anything Really Changed?

Register today and earn 6.25 hours of CLE credit!

REGISTER NOW FOR ABI’S CARIBBEAN INSOLVENCY SYMPOSIUM

Join ABI in Miami Beach for the Second Caribbean Insolvency Symposium, to be held Feb. 9 - 10, 2006, at Eden Roc Resort & Spa.

This year’s program brings together top international speakers to discuss up-to-the-minute issues in international insolvency and restructuring. The program features a faculty of outstanding scholars, judges and practitioners from across the United States, the Caribbean and South America. 

Timely topics include:

  • CAFTA and New Chapter 15: Forum-Shopping in the Caribbean
  • Introduction to the New Bankruptcy and Restructuring Law in Brazil
  • Small Business and Individual Chapter 11 under BAPCPA
  • Tough Ethical Dilemmas after BAPCPA
  • Dealing with Disasters: The New Bankruptcy Law after a Natural Disaster
  • Views from the Bench (featuring judges from Florida and Puerto Rico)

Register today and earn 5.25 hours of CLE credit!

BLOG ON BAPCPA

ABI World is now home to a blog on the latest case law interpreting the bankruptcy amendments. Created by David L. Rosendorf, ABI member and a shareholder at Miami’s Kozyak Tropin & Throckmorton, P.A., the ABI BAPCPA Blog provides regular commentary, analysis and an opportunity for you to post comments. Recent posts have covered the various homestead opinions, credit counseling, revised automatic stay provisions and the interim rules. The latest discussion centers on In re Collins, which confirmed that a motion to extend the automatic stay and avoid termination pursuant to 11 U.S.C. 362(c)(3) must be served on all affected creditors. Check out the blog here, and feel free to weigh in.

UPDATED FOR THE NEW LAW: WHEN WORLDS COLLIDE: BANKRUPTCY AND ITS IMPACT ON DOMESTIC RELATIONS AND FAMILY LAW, THIRD EDITION

Divorce and bankruptcy are alike in that each attempts to provide a "fresh start," but the laws are often in conflict. This resource, now updated to include BAPCPA changes, was developed for an ABI educational program to help family court judges better identify and deal with bankruptcy issues, such as the impact of the automatic stay, the power of the courts to enjoin state courts, property of the bankruptcy estate, the impact of the bankruptcy discharge on alimony, child support, maintenance and property settlements, post-petition divorce actions and exempt property. Appendices feature relevant sections of the Bankruptcy Code, a list of cases and articles on the topic, and a directory of bankruptcy judges and bankruptcy court clerks. Softbound, 120 pages. Order today!

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NEW ON-DEMAND CLE: BEST OF MID-ATLANTIC WORKSHOP 2005

“Anything but Bankruptcy: ABCs, Receiverships & Other Alternatives” will be held live on Jan. 18, 2006, at 2 p.m. EDT. This “Best of ABI” program covers winning strategies involving state and federal receiverships, assignments for the benefit of creditors, out-of-court workouts and more. 90 minutes, $95. Click here for more information.

GET INVOLVED!

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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: