Bankruptcy Law Section Kickoff Reception Welcoming Hon. Melvin S. Hoffman

Tuesday, September 14, 2010 4:30 PM

Boston Bar Association – 16 Beacon Street, Boston, MA

Description:

Join the Boston Bar Association Bankruptcy Law Section as it kicks off the fall season with a reception to welcome Judge Melvin S. Hoffman. Find out more about the Section’s opportunities to get involved (pro bono, emergency panel, mentor, CLE programs, brown bag speakers and more!)

To register, click here

Volunteer Lawyers Project Pro-Bono Initiative

The BBA Bankruptcy Section is deeply concerned about the growing need for effective legal representation by the most needy in our community, many of which are in desperate need of chapter 7 representation. One issue that has long challenged our ability to provide more direct pro bono representation have been issues of conflicts inherent within a large law firm practice. To that end, the Bankruptcy Section previously obtained advance limited conflict waivers from a variety of financial institutions, which in most instances waived any conflicts relating to that financial institution in cases that arose through the Volunteer Lawyers Project (VLP). Over the past several years, however, many financial institutions have become larger and several of our local banks have been merged into national banks, resulting in challenges to obtain additional advance conflict waivers.

While these advance conflict waivers are still in existence and a valuable tool, the Bankruptcy Section recognized that it needed to address the underlying conflict issues more broadly in order to enable large law firm practitioners to accept a larger volume of cases. The Bankruptcy Section’s Pro Bono Committee established a Large Law Firm Pro Bono Subcommittee (Subcommittee) to analyze different methodologies used by other bar associations to address the needs of chapter 7 pro bono debtors. The Subcommittee determined that a program in place in New York City might be useful as a guide in our jurisdiction that would allow for direct representation where a lawyer’s limited role would be in compliance with Massachusetts Rules of Professional Conduct.

The Subcommittee analyzed the ethical issues presented and made a request for an Ethics Opinion from the BBA Ethics Committee. As a result of these efforts, the BBA Ethics Committee issued Opinion 2008-01, which in brief allows a lawyer to represent a VLP chapter 7 debtor as long as the representation is not directly adverse to an existing client of the lawyer’s firm. For example, a lawyer would not be conflicted from representing a VLP Chapter 7 debtor merely because his/her firm represented a large financial institution and that institution issued a credit card to the Debtor and has an unsecured claim in the Chapter 7 case. To screen out whether there are special situations that might materially limit the volunteer lawyer’s ability to advise the pro bono debtor, the Ethics Opinion recommends that the volunteer lawyer run a conflict check only on the debtor and question the debtor at the initial meeting to determine the following:

(i) Does the debtor have one dominant creditor?
(ii) Does the lawyer regularly represent creditors in consumer collection actions?
(iii) Has a creditor of the debtor commenced a collection action against the debtor?
(iv) Is the debtor engaged in litigation in which the other side is represented by counsel?
(v) Has the debtor granted liens or made unusual payments during the previous 90 days?
(vi) Are there any facts indicating that a particular debt could be material to a particular creditor, such as another individual?

Depending on the answers to the above questions, the volunteer lawyer may be required to run additional conflict checks to evaluate whether a direct conflict exists with any of the debtor’s creditors and therefore whether he or she would be able to represent that debtor. However, it is anticipated that in many instances, the above screening questions would not result in a direct conflict and thus result in a greater number of lawyers representing chapter 7 debtors.

After obtaining the Ethics Opinion, the Bankruptcy Section and representatives of many of the large law firms in Boston solicited feedback from the Massachusetts Bankruptcy Bench on the scope of the proposed Initiative. After considering all of the alternatives, the Bankruptcy Section and many of the large law firms determined that it would be most beneficial to enlarge the scope of the Program such that a volunteer lawyer would represent a chapter 7 debtor for the entire case, recognizing that in most instances chapter 7 cases conclude shortly after the Section 341 meeting of creditors. If however, a conflict was not anticipated by the screening questions but nevertheless arose during the case, the lawyer would be allowed to seek replacement counsel and to withdraw from the Program.

We encourage all of our members and interested volunteers to review the full Ethics Opinion and outline of the Pro Bono Initiative. We are in the process of developing materials and will be conducting a Training Program on February 11, 2010 at 4 pm at the BBA. We hope to see many of you there. If you have any questions regarding the Ethics Opinion or the Initiative, please contact Doug Gooding at [email protected] or at 617-248-5277.

Boston Bar Association Ethics Committee Opinion 2008-01: Bankruptcy Pro Bono Initiative

SUMMARY
The Ethics Committee of the Boston Bar Association has been asked to analyze a pro bono initiative (the “Pro Bono Initiative” or the “Initiative”) sponsored by the BBA’s Bankruptcy Law Section and the Volunteer Lawyers Project.
(I) The Pro Bono Initiative is carefully designed to meet an important need. Volunteer lawyers will help individual pro bono clients determine whether their circumstances warrant filing for Chapter 7 bankruptcy. Where warranted, a volunteer lawyer will assist the pro bono client in preparing and filing a Chapter 7 Petition, and may also accompany him/her to the Section 341 meeting. The lawyer’s role will end there. Many of the volunteer lawyers practice with major law firms, which represent financial institutions and other businesses. In any given case, it is quite likely that the volunteer lawyer’s firm will already represent, in one or more unrelated matters, a business that is a creditor of the pro bono client. If the volunteer lawyer’s bankruptcy assistance were viewed as giving rise to a conflict, then many firms would find it impractical to participate. The Bankruptcy Law Section sought to design the Pro Bono Initiative so that it will screen out any conflict problems.
(II) Several Boston banks have previously granted waivers that cover the proposed Initiative, but these waivers cover only a few of the many potential creditors in a Chapter 7 bankruptcy.
(III) A similar initiative in New York City has been supported by a formal ethics opinion of the New York City Bar Association.
(IV) In our opinion the volunteer lawyer’s limited role does not, per se, give rise to a conflict of interest, and the Pro Bono Initiative is carefully designed to screen out any special circumstances that could give rise to a conflict.
(A) Rule 6.5 permits the volunteer lawyer to participate in an initial consultation under the auspices of the program.
(B) Absent special circumstances, the lawyer’s limited role should not be viewed as representation directly adverse to a creditor under Rule 1.7(a), because the Chapter 7 proceeding is not directed “against” any particular creditor.
(C) The Pro Bono Initiative will screen out any special circumstances where the lawyer’s volunteer role might be materially limited by duties to existing clients, under Rule 1.7(b). Among other things, the Pro Bono Initiative will screen out any instance where the pro bono client has a claim or defense against an existing client of the lawyer’s firm. Likewise, the Pro Bono Initiative will screen out any instance where the pro bono client owes a debt that is material to an existing client of the lawyer’s firm.
Consequently, in our opinion the proposed Pro Bono Initiative is fully consistent with the Massachusetts Rules of Professional Conduct.
ANALYSIS
I. THE PRO BONO INITIATIVE.
The Ethics Committee received a thoughtful letter from the leaders of the BBA’s Bankruptcy Law Section, requesting our opinion. We attach a copy as Exhibit 1, because it describes the proposed Pro Bono Initiative in detail.
By way of example, it may be helpful to place in mind the contours of a typical Chapter 7 case. The Bankruptcy Law Section has explained that a typical case could run as follows. (i) An individual has no assets. He/she may have various consumer debts typically arising from credit cards, medical bills, auto loans, utility bills and other consumer items. (ii) The individual will prepare and file a Chapter 7 Petition. (iii) A Chapter 7 Trustee will be appointed. (iv) The Chapter 7 Trustee will ask about the filing in a brief Section 341 meeting (as explained below). (v) The Chapter 7 Trustee will then file a “no asset” report. (vi) Creditors will not object. (vii) The individual’s debts will be discharged, and the case will be concluded. Many (although not all) of the cases that would fall under the auspices of the Pro Bono Initiative would likely run in this typical pattern, we are informed.
A. Proposed Scope Of Engagement.
The Initiative proposes as follows:
The pro bono attorney would meet with the individual, review the individual’s situation, counsel the individual regarding filing for bankruptcy and other options, and, where appropriate, assist in the preparation of a Chapter 7 petition and related paperwork for the individual. The representation would be limited – after the assistance with the preparation of the documents necessary for the Chapter 7 filing, the individual would thereafter proceed pro se.
Exhibit 1, p. 1. In most cases, the volunteer lawyer would not sign the Chapter 7 petition, which means the lawyer would not independently vouch for the accuracy of the client’s representations. Exhibit 1, p. 2.
Often, the pro bono client would also benefit from having counsel present at the Section 341 meeting, and so we address that possibility as well. After a debtor has filed a Chapter 7 Petition, 11 U.S.C. §341 provides creditors an opportunity to examine the debtor under oath, in a setting that is colloquially referred to as the “Section 341 meeting.” Ordinarily, the duly appointed Chapter 7 trustee conducts this examination, and ordinarily the creditors do not attend the meeting, even though they receive notice of the meeting and have the right to attend. See, e.g., DeGiacomo, A Practical Guide To Consumer Bankruptcy (MCLE 2007), p. 60. Typically, we are informed, the Chapter 7 trustee examines a large number of debtors one after another in a conference room, asking each debtor standard questions, such as: (i) did you sign the Petition, (ii) are the Schedules accurate, and (iii) have you concealed any assets? The volunteer lawyer can readily predict these questions and can pose them to the pro bono client in advance. If these questions raise any concerns, the volunteer lawyer can withdraw. If these questions do not raise any concerns, then the volunteer lawyer may accompany the pro bono client to the Section 341 meeting, and this could be very helpful to the pro bono client, who may feel nervous or intimidated.1
B. Screening Questions.
During the initial consultation the volunteer lawyer will ask questions designed to identify any special circumstances that might affect an existing client of the lawyer’s firm. The volunteer lawyer will ask the pro bono client whether the client has any one dominant creditor that might be disproportionately affected by a bankruptcy filing. In addition the volunteer lawyer will review: (i) whether his/her own firm regularly represents creditors in consumer collection actions; (ii) whether a creditor has commenced a collection action against the pro bono client; (iii) whether the pro bono client is engaged in any litigation in which the other side is represented by counsel; (iv) whether the pro bono client has granted liens or made unusual payments during the previous 90 day preference period; and (v) whether there are any facts indicating that a particular debt could be material to a particular creditor, such as another individual. See Exhibit 1, p. 3. Also, the volunteer lawyer will explore the questions that are likely to be asked at the Section 341 meeting.
These screening questions will ensure that representation of the pro bono client would not be directly adverse to an existing client of the volunteer lawyer’s firm, under Rule 1.7(a). Such questions will also screen out any special situation that might materially limit the volunteer lawyer’s ability to advise the pro bono client, under Rule 1.7(b).
C. The Issue Presented.
In the example above, suppose the pro bono client owes $2,000 to Bank X, and suppose the law firm represents Bank X in commercial lending, which is wholly unrelated to the pro bono client. Would the Pro Bono Initiative place the volunteer lawyer in a conflict of interest position? In our opinion it would not, for the reasons stated in Part IV below.
II. SOME OF THE BOSTON BANKS HAVE PREVIOUSLY GRANTED WAIVERS, BUT MANY CREDITORS HAVE NOT.
Previously given waivers are helpful to a degree, but in most instances they will not be sufficient to cover the proposed Pro Bono Initiative. In connection with an earlier Boston Bar Association initiative, at least four banks graciously agreed to waive any conflict of interest where a volunteer lawyer provides bankruptcy services to a pro bono client. We were provided with copies of four waiver letters, which have dates ranging from 2001 to 2005. Each of these letters grants a waiver on condition that (in part) the indebtedness owed to the bank by the bankruptcy client is less than or equal to $25,000. These waiver letters tend to confirm that banks do not object to pro bono bankruptcy assistance concerning debts of a small size. However, one of the four banks no longer exists in the same form, and numerous other entities — including many from outside Boston — are creditors of today’s Massachusetts consumers. Thus in any particular case, most likely, the work of the volunteer lawyer under the Pro Bono Initiative will not be covered by existing waivers.
III. THE NEW YORK CITY BAR ASSOCIATION RECENTLY SUPPORTED A SIMILAR INITIATIVE.
The New York City Bar Association recently undertook a similar initiative. Its ethics committee provided extensive analysis in its Formal Opinion 2005-01. (A copy may be found at http://www.nycbar.org/Ethics/eth2005-1.htm.) The New York City Opinion is well reasoned, but it does not cite governing authority that is applicable in Massachusetts. Accordingly, we have undertaken our own analysis under the Massachusetts Rules of Professional Conduct.2
IV. ANALYSIS UNDER THE MASSACHUSETTS RULES OF PROFESSIONAL CONDUCT.
A. The Proposed Initial Consultation Is Permitted By Rule 6.5.
Much of the proposed initial consultation may be accomplished at a single-day meeting. During this initial consultation the volunteer lawyer will explore with the pro bono client whether a bankruptcy filing is or is not appropriate in view of the pro bono client’s personal financial circumstances. This step is addressed by Rule 6.5 of the Massachusetts Rules of Professional Conduct, which provides as follows:
Rule 6.5
(a) A lawyer who, under the auspices of a program sponsored by a nonprofit organization or court, provides short-term limited legal services to a client without expectation by either the lawyer or the client that the lawyer will provide continuing representation in the matter:
(1) is subject to Rules 1.7 and 1.9(a) only if the lawyer knows that the representation of the client involves a conflict of interest.
Rule 6.5 permits the initial consultation under the auspices of the Pro Bono Initiative, unless “the lawyer knows that the representation of the client involves a conflict of interest.” Thus we believe there is no need for a lawyer to run a conflict check before attending the initial consultation. However, we do urge the volunteer lawyer to gain familiarity with his/her firm’s representation of lenders, so that he/she will be in a position to detect and screen out any special circumstances that could give rise to a conflict otherwise.
An argument could be made that Rule 6.5 permits all of the proposed Pro Bono Initiative, since most of the Rule’s requirements are clearly met. First, the lawyer will be acting “under the auspices of a program sponsored by a nonprofit organization.” Second, the lawyer will be providing “short-term limited legal representation.” Third, there will be no “expectation” of “continuing representation” after the Chapter 7 filing and the Section 341 meeting, and in particular there will be no expectation that the lawyer will represent the pro bono client in responding to any objection by a creditor.
Nonetheless, we are not certain that the Pro Bono Initiative meets the spirit of subsection (1) of Rule 6.5. In those cases where the volunteer lawyer assists in preparing a Chapter 7 petition, the lawyer’s effort may continue over the course of several days (or longer if the lawyer goes to the Section 341 meeting). The volunteer lawyer would have time to run a conflict check in these cases. Depending on the results — and depending on further analysis — the volunteer lawyer could be in position to “know” that the representation at least potentially “involves a conflict of interest.” As a result, we are not fully confident that Rule 6.5 fully covers the proposed Initiative, and so we go on to consider whether there is any potential for a conflict of interest under Rule 1.7.
B. With Special Circumstances Screened Out, Filing The Chapter 7 Petition (And Going To The Section 341 Meeting) Does Not Constitute Representation Directly Adverse To A Creditor Under Rule 1.7(a).
Rule 1.7(a) provides as follows:
Rule 1.7(a)
(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:
(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
(2) each client consents after consultation.
Under Rule 1.7(a), does the proposed pro bono effort — i.e. helping to prepare a Chapter 7 petition and appearing at the Section 341 meeting — constitute representation “directly adverse” to a creditor? Where there are no special circumstances, we believe not. In reaching this conclusion we note that an analogous question has been addressed by Congress and by the courts applying the Bankruptcy Code. As these authorities necessarily imply, in ordinary circumstances a Chapter 7 Petition is not directed “against” any particular creditor. Thus filing a bankruptcy petition is not like filing a lawsuit on behalf of one creditor against another creditor, and it is not like filing a lawsuit on behalf of a debtor against a creditor.
Congress established a special procedure when it created Chapter 7. The Bankruptcy Law Section has explained that a Chapter 7 bankruptcy is an in rem proceeding. See Exhibit 1, p. 2. Filing the Chapter 7 Petition initiates a process that is designed to gather the assets and debts of the debtor into a bankruptcy estate, where they are allocated so as to “strike a fair balance” among creditors. See In re Frasier, 294 B.R. 362, 366 (Bankr. D. Colo. 2003); see also In re Welzel, 275 F.3d 1308, 1318-19 (11th Cir. 2001); United States v. Spicer, 57 F.3d 1152, 1156 (D.C. Cir. 1995). The City of New York Bar Association summarized:
The commencement of a typical Chapter 7 case is an in rem proceeding that triggers the automatic operation of a statutory framework for marshaling and distributing assets and discharging debt. Under that statutory framework, to the extent the debtor has non-exempt assets, those assets are distributed among the creditors in accordance with statutorily mandated criteria. To the extent debt is discharged (assuming no objection has been made to its discharge), that action likewise occurs by automatic operation of statute. In addition, to the extent adversary proceedings are brought by the Chapter 7 estate, the decision to do so is made by the court-appointed Chapter 7 trustee, not by the Chapter 7 debtor or his counsel.
New York City Bar Formal Opinion 2005-01, p. 3. See http://www.nycbar.org/Ethics/eth2005- 1.htm.
Congress expressly addressed the question — with respect to a later stage of a Chapter 7 proceeding — whether representation by a lawyer should be viewed as giving rise to a disqualifying conflict of interest. After the Chapter 7 Petition has been filed, a trustee is appointed. The trustee reviews the assets of the bankruptcy estate and pursues or defends any claims the estate may have. The trustee may retain an attorney. The “Bankruptcy Code contemplates that attorneys will, in unrelated matters, have multiple representations involving creditors and the debtor.” 1 Collier On Bankruptcy ¶ 8.03[9][b] at p. 8-54 (15th ed. 2008 rev.). 11 U.S.C. Section 327 provides as follows (emphasis added):
11 U.S.C. § 327
(a) Except as otherwise provided in this section, the trustee, with the court’s approval, may employ one or more attorneys, accountants, appraisers, auctioneers, or other professional persons, that do not hold or represent an interest adverse to the estate, and that are disinterested persons to represent or assist the trustee in carrying out the trustee’s duties under this title.
. . .
(c) In a case under Chapter 7, 12, or 11 of this title, a person is not disqualified for employment under this section solely because of such person’s employment by or representation of a creditor, unless there is objection by another creditor or the United States trustee, in which case the court shall disapprove such employment if there is an actual conflict of interest.
. . .
(e) The trustee, with the court’s approval, may employ, for a specified special purpose, other than to represent the trustee in conducting the case, an attorney that has represented the debtor, if in the best interest of the estate, and if such attorney does not represent or hold any interest adverse to the debtor or to the estate with respect to the matter on which such attorney is to be employed.
Congress provided in Section 327(c) that unless there is an objection, a lawyer may proceed to represent the trustee of the bankruptcy estate, even though the lawyer also simultaneously represents a creditor (in an unrelated matter). In the view of Congress, such a scenario does not, per se, present a disqualifying conflict of interest. By inference, the lawyer’s representation of the trustee is not viewed as a representation directly adverse to the creditor.
The volunteer lawyer in the Pro Bono Initiative will have an analogous role. However, the pro bono engagement will be much more limited than representation of a trustee under 11 U.S.C. § 327. The volunteer lawyer will represent the pro bono client only for a short time, and only for the initial steps of the Chapter 7 proceeding. Since the Chapter 7 trustee may later engage an attorney who simultaneously represents one of the creditors (in an unrelated matter), it seems natural that when the debtor initiates the Chapter 7 process, likewise, the debtor may engage an attorney who simultaneously represents one of the creditors (in an unrelated matter). Thus Section 327(c) teaches us, by analogy, that the scenario under consideration does not present a per se conflict of interest.3
Courts have addressed various objections in cases under 11 U.S.C. § 327. “Most courts agree that an adverse interest must rise to a certain level of materiality to create a conflict of interest that would disqualify a professional representing a debtor under the Bankruptcy Code.” 1 Collier On Bankruptcy ¶ 8.03[9][b] at p. 8-53 (15th ed. 2008 rev.).4 Some courts have ruled that a potential for conflicts may in some instances warrant disqualification, but they reject a per se rule. In re Martin, 817 F.2d 175, 182-183 (1st Cir. 1987) (depending on the particular circumstances, a lawyer may or may not be permitted to obtain a security interest from the debtor); In re Dynamark, Ltd., 137 B.R. 380, 381 (Bankr. S.D. Ca. 1991) (no actual conflict for firm representing both the creditor and the debtor, because chance of debtor and creditor competing was too remote); compare In re Filene’s Basement, Inc., 239 B.R. 850, 858 (Bankr. D. Mass. 1999) (in a factual situation quite different from the Pro Bono Initiative, merely the possibility of creditor bringing a suit against the debtor’s selected law firm was sufficient to disqualify the law firm from representing the debtor). Other courts have disqualified a law firm where they found an actual conflict. See e.g., Meespierson, Inc. v. Strategic Telecom, Inc., 202 B.R. 845, 848 (Bankr. D. Del. 1996) (creditor had a material claim against the debtor’s estate); In re American Printers & Lithographers, Inc., 148 B.R. 862, 864 (Bankr. N.D. Ill. 1992) (debtor owed creditor three million dollars); In re Grieb Printing Co., 297 B.R. 82, 86 (Bankr. W.D. Ky. 2003)(lawyer acting as trustee of bankruptcy estate had an obligation to maximize the estate’s claim as a creditor in a second bankruptcy, and therefore he should not have represented another client that was seeking to reduce the size of the second estate by pressing a disputed claim to insurance proceeds). Material claims were involved in all of the cases where disqualification has been ordered. These cases are very different from the proposed Pro Bono Initiative, because the proposed Chapter 7 filings will not be material to any existing client of the volunteer lawyer, and because the Initiative will screen out any special circumstances that could possibly give rise to direct adversity.
Our research did not disclose any case under 11 U.S.C. § 327 where (a) the lawyer represented a debtor in bankruptcy; (b) the debtor owed a non-material debt to a creditor; (c) the lawyer or the lawyer’s firm simultaneously represented that same creditor in an unrelated matter; and (d) the lawyer was disqualified for a conflict of interest.
Having addressed the case law under the analogous provisions of U.S.C. § 327, we return to the question at hand. So far as our research discloses, no court has ever criticized a lawyer for violating Rule 1.7(a), where all the lawyer did was to file a Chapter 7 Petition (and attend a Section 341 meeting) while simultaneously representing one of the creditors (in an unrelated matter).5 Under the proposed Pro Bono Initiative, where any special circumstances have been screened out, we believe that the limited role of the volunteer lawyer does not give rise to a conflict of interest.
C. The Proposed Initiative Takes Appropriate Steps To Identify And Avoid Any Special Circumstances Where The Lawyer’s Ability To Act Could Be Materially Limited Under Rule 1.7(b).
Rule 1.7(b) provides as follows:
Rule 1.7(b)
(b) A lawyer should not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests.
Informed by the previous pro bono experience in this area, the Bankruptcy Law Section has carefully crafted the proposed Pro Bono Initiative so that the volunteer lawyer will have a limited role, which is not materially limited by duties to existing clients of the lawyer’s firm.
First, the Pro Bono Initiative will be limited to serving individuals who have a financial need (under screening criteria of the Volunteer Lawyers Project). The size of the debts owed by the pro bono client will not be material to most of his/her business creditors.
Second, the volunteer lawyer will only undertake a limited scope of representation. See Exhibit 1, page 1. We concur with the New York Bar that such a limitation on the scope of representation is permitted and appropriate, provided that it is explained to the client. See New York Formal Opinion 2005-01, page 2. An engagement letter should state this explanation.
Third, before the volunteer lawyer goes to the initial consultation, the lawyer should obtain a general awareness of his/her firm’s representation of consumer creditors. That way the volunteer lawyer will be ready to spot any potential issues of the types noted below.
Fourth, armed with the answers to screening questions (see Part I(B) above), the volunteer lawyer will be able to evaluate the particular case. The volunteer lawyer should not take on the pro bono representation if the lawyer’s firm has represented a creditor in any matter that is related to the particular debt. Likewise, the volunteer lawyer should not take on the pro bono representation if the pro bono client owes a debt that is material to an existing client of the lawyer’s firm. Aside from those situations, if the screening questions do not identify any special circumstances, then there is no reason to believe that any existing client of the lawyer’s firm would have any objection to the lawyer’s volunteer role, and so there is no reason to believe that a reasonable person in the lawyer’s position would be materially limited in his/her ability to provide advice to the pro bono client.
Finally, we have also considered whether in any other respect the volunteer lawyer might be materially limited in his/her ability to advise the pro bono client. For example, suppose the volunteer lawyer recognizes that the consumer may have a defense to one of the debts. Does the volunteer lawyer need to stop the consultation, go back to the office, and run a conflict check? We think not, because Rule 6.5 is sufficient to cover the initial consultation. If a Chapter 7 filing is still the appropriate option — because the pro bono client has other debts6 — then it will be up to the bankruptcy trustee, not the volunteer lawyer, to challenge the contestable debt. Once a Chapter 7 trustee has been appointed, the trustee may object to a contestable debt, and if the objection prevails, then there will be more money left for distribution to the other creditors.
V. CONCLUSION.
The proposed Pro Bono Initiative calls for volunteer lawyers to play a carefully limited role. The Initiative calls for the volunteer lawyer to ask screening questions, which will identify any special circumstances that might involve an existing client of the volunteer lawyer’s firm. Absent such special circumstances, in our opinion the proposed representation does not give rise to a conflict of interest. Accordingly, in our opinion the Pro Bono Initiative is permitted under the Massachusetts Rules of Professional Ethics, and it is a welcome service by the bankruptcy bar.
1 Of course, it is up to the volunteer lawyer whether to accompany the pro bono client to the Section 341 meeting, or to cease services after helping to prepare the Petition. Either way, the limited scope of engagement should be set forth in an engagement letter. This will help to avoid any misunderstanding as to the extent of the lawyer’s role.
2 In addition to the Rules of Professional Conduct, where a lawyer is handling bankruptcy matters, the lawyer must also comply with the bankruptcy code and rules. See e.g., In re Creative Restaurant Management, 139 B.R. 902, 909, 911 (Bankr. W.D. Mo. 1992). It is beyond our scope to consider whether these require any additional safeguards, but it appears that the Bankruptcy Law Section has given careful consideration to them.
3 The analysis would be very different in a litigation engagement. If a pro bono client asked a volunteer lawyer to bring suit against a business, then of course the volunteer lawyer would need to run a conflict check. And if the proposed defendant turned out to be a client of the law firm, then the volunteer lawyer would face a conflict of interest — even if the firm represented the business only in unrelated matters.
4 The term “adverse interest” encompasses “two or more entities … [possessing] mutually exclusive claims to the same economic interest, thus creating either an actual or potential dispute between the rival claimants,” and also encompasses “any economic interest that would tend to lessen the value of the bankruptcy estate or that would create either an actual or potential dispute in which the estate is a rival claimant.” In re Nat’l Distributors Warehouse Co., Inc., 148 B.R. 558, 560 (Bankr. E.D. Ark. 1992). See also In re American Printers & Lithographers, Inc., 148 B.R. 862, 864 (Bankr. N.D. Ill. 1992).
5 We did note only one case where a lawyer was suspended for committing misconduct in the course of filing a Chapter 7 petition, and that case was very different from the Initiative proposed here. See In the Matter of Disciplinary Proceedings Against Krueger, 709 N.W.2d 857 (Wis. 2006). The debtor owed money to the attorney at the time the petition was filed. Thus the attorney himself held an interest adverse to the client he was representing in the bankruptcy case (a situation that would not occur as part of the Pro Bono Initiative). Moreover, the attorney did not disclose this debt on the Schedules to the Petition, and did not disclose it to the bankruptcy trustee. The attorney committed various other acts of misconduct as well, none of which bear on the Pro Bono Initiative.
6 It could also happen that the contestable debt would make the difference between filing for bankruptcy and not filing for bankruptcy. What should the volunteer lawyer do if he/she detects such an issue? (a) If the volunteer lawyer recognizes a conflict during the initial consultation, then the volunteer lawyer should explain that he/she has a conflict and should decline to proceed with the pro bono engagement. (Multiple law firms will participate in the proposed Initiative, and so most likely there will be other volunteer lawyers available who do not face the same conflict.) (b) If the volunteer lawyer does not recognize a conflict during the initial consultation, then the volunteer lawyer may point out that the pro bono client has a potential defense, explaining that the pro bono client will need to contest the issue pro se or else get help from a different program. (c) If the volunteer lawyer wants to represent the pro bono client in contesting the debt (although this is not part of the proposed Pro Bono Initiative), then the lawyer will need to run a conflict check, just as the lawyer would run a conflict check for any pro bono litigation engagement, since contesting the debt would involve representation directly adverse to a particular creditor.
EXHIBIT 1
November 5, 2008
Ethics Committee
Boston Bar Association
16 Beacon Street
Boston, MA 02108
Dear Committee Members:
We write to request that your committee consider and prepare an opinion concerning the following ethical issue of importance for a new Volunteer Lawyers Project (“VLP”) program being developed by the VLP and the Bankruptcy Law Section of the Boston Bar Association: the circumstances under which a pro bono attorney may assist a low income individual, who is proceeding pro se, in the preparation of a Chapter 7 bankruptcy petition without creating an impermissible conflict with the representation of other parties by the attorney’s firm in unrelated matters.
A. Background
Recently, there has been a significant increase in pro se bankruptcy filings in Massachusetts bankruptcy courts. Many of these pro se filings are being dismissed by the bankruptcy court because of mistakes or omissions that the pro se debtors have made in preparing their papers. The problems associated with the rise in pro se filings are sufficiently important that the bankruptcy court in Boston has recently hired a Pro Se Law Clerk to address the issue.
The VLP has agreed to host a program that would help address this problem. Under the new program, in broad outline, an individual contemplating filing for bankruptcy would be referred to an attorney for pro bono counseling and assistance. The pro bono attorney would meet with the individual, review the individual’s situation, counsel the individual regarding filing for bankruptcy and other options, and, where appropriate, assist in the preparation of a Chapter 7 petition and related paperwork for the individual. The representation would be limited – after the assistance with the preparation of the documents necessary for the Chapter 7 filing, the individual would thereafter proceed pro se. However, a certificate or cover letter would accompany the Chapter 7 petition, attesting that the Chapter 7 debtor has been assisted by a pro bono attorney through the VLP program.1
This VLP program will provide important assistance to poor individuals and help to address the pro se filing problem presently faced by the Massachusetts bankruptcy courts. Moreover, we believe that attorneys at large law firms in Boston are eager to participate in a program such as this one. Unfortunately, many attorneys and firms are finding themselves unable to take on pro bono consumer cases because their firms represent or have represented creditors of the proposed pro bono debtor in other, unrelated, matters. In large commercial law firms in particular, the running of “conflict checks” reveals these relationships, and firms err on the side of not taking on the pro bono matter.
Conflict waivers can be very difficult to obtain under the circumstances, notwithstanding that the debt in question is probably de minimis to the firm’s creditor client and the firm’s prior or concurrent representation of the creditor is in an unrelated matter. The pro bono attorney will be faced with a difficult choice – either engage in the complex, sometimes awkward and possibly unsuccessful process of obtaining conflicts waivers from his or her firm’s creditor clients on account of de minimis debts, or abandon the effort to represent the pro bono debtor. Anticipation of this dilemma will discourage participation by large commercial law firm attorneys at the outset.
However, we suggest that pro bono attorneys may fulfill their ethical obligations prior to engaging in the limited representation contemplated by the VLP program by screening for certain conflicting circumstances in their initial interview with the pro se debtor. We submit that there is abundant legal support for this proposition which we will outline below.
B. LEGAL SUPPORT
A Chapter 7 bankruptcy is an in rem proceeding. Chapter 7 debtors surrender their non-exempt assets to the bankruptcy court and, in return, receive a stay of debt collection actions and, ultimately, a discharge of most of their debts. The surrendered assets are distributed among the creditors of the Chapter 7 debtor by a court-appointed trustee according to criteria set by law. If there is to be any litigation respecting the disposition of the bankruptcy estate that has been created (i.e. determining the amount or priority of a creditor’s claim), that litigation is the responsibility of the Chapter 7 trustee and not the Chapter 7 debtor. Chapter 7 bankruptcies benefit all creditors because they ensure an efficient and fair distribution of the Chapter 7 debtor’s assets among creditors’ claims. Accordingly, at least conceptually, an attorney assisting in the preparation of a debtor’s Chapter 7 petition is not adverse to any creditor.
The foregoing is, of course, somewhat of an over-simplification. There are circumstances in which a pro bono attorney’s assistance with the preparation of a Chapter 7 debtor’s petition could be adverse to a client of his or her firm. For example, if during the initial interview it appears that the pro bono debtor has only one creditor, the bankruptcy filing could be a strategic action by the debtor, “aimed” at that one creditor. In such circumstances, if this single creditor were a client of the pro bono attorney’s firm, an impermissible conflict might exist. Accordingly, in cases where the pro se Chapter 7 debtor has only one creditor, the pro bono attorney should not proceed with the representation without first undertaking a conflicts check and, if the creditor is a client, obtaining the consent to the representation from both the creditor client and the pro se debtor after full disclosure.
There are other circumstances, in addition to the single creditor scenario, where we believe that the pro bono attorney should undertake a conflicts check and obtain conflicts waivers, if necessary (for avoidance of doubt, we do not regard these circumstances as per se disqualifying): (i) the pro bono attorney’s firm regularly represents creditors in consumer collection actions; (ii) a creditor has commenced, or to the knowledge of the pro se debtor is about to commence, a collection action against the pro se debtor; (iii) the pro se debtor is engaged in litigation or any dispute in which the other side is represented by counsel; (iv) the pro se debtor has granted liens or made unusual payments in the previous 90 day preference period (if so, the Chapter 7 trustee will likely seek to recover from the recipient creditor); (v) if there are any facts indicating that any debt owed to a creditor could be significant for that creditor (e.g. a large amount owed to a private person); (vi) if the pro bono attorney is aware that his or her firm represents a creditor of the pro se debtor, but is not aware whether his firm represents such creditor against the pro se debtor (the pro bono attorney should check to ensure that the representation concerns unrelated matters, in which case there would be no conflict); or (vii) if there are any known circumstances that might give rise to discharge or dischargeability litigation (in which case the pro se debtor might need representation during the Chapter 7 case and the pro bono attorney should determine whether he or she is able to provide such representation).2
Accordingly, we suggest that pro bono attorneys advising a pro se Chapter 7 debtor in the context of the proposed VLP program could fulfill their obligations under Massachusetts Rules of Professional Conduct 1.7, 1.9 and 1.10 by ensuring in an initial interview that none of the above circumstances exist. However, if any of the above circumstances do exist, the pro bono attorney should either decline the representation or undertake a conflicts check and obtain conflicts waivers, if necessary.
Rule 6.5 of the Massachusetts Rules of Professional Conduct would seem to provide sufficient authority for the interpretation advanced here. Rule 6.5 provides that an attorney providing limited legal services to a client under the auspices of a program sponsored by a nonprofit organization or the court is subject to conflicts Rules 1.7, 1.9(a) and 1.10 only if the attorney knows that the representation involves a conflict of interest. There is precedent, as well, in other jurisdictions. The ethics committee of the New York City Bar has issued an opinion similar to that sought here relative to a comparable program.3
The proposed new VLP program is a program sponsored by a nonprofit organization involving limited representation just as contemplated by Rule 6.5 of the Massachusetts Rules of Professional Conduct. What we have suggested here are, in effect, subjects of inquiry appropriate in the context of assisting a pro se Chapter 7 debtor, knowing that a third party trustee takes over the case once the petition is filed, for the pro bono attorney to explore in determining whether he or she knows, pursuant to Rule 6.5, that the limited representation of the client involves a conflict of interest.
Finally, we will touch briefly on the issue of “ghost written” pleadings. This concern arises typically in the context of litigation, where pro se litigants could gain an unfair advantage by prevailing on the leniency of the court because of their pro se status, while at the same time receiving undisclosed advice and assistance from attorneys in the preparation of pleadings.4
We submit that this issue will not arise in the context of the proposed VLP program. First of all, the attorney assistance for the pro se Chapter 7 debtor will be fully disclosed under the VLP program, removing the issue of undisclosed (and hence unfair) assistance. Furthermore, Chapter 7 bankruptcy petitions and the related schedules would not seem to be the sort of pleadings where skilled assistance for the pro se debtor would disadvantage anyone – indeed, a well-prepared bankruptcy filing should benefit all parties by improving the efficiency and efficacy of the system.
C. CONCLUSION
We hope that the Ethics Committee will agree to consider the issue outlined here and prepare an opinion to the effect that: a pro bono attorney providing limited services to a pro se Chapter 7 debtor through the proposed VLP program is not subject to Rules 1.7, 1.9(a) and 1.10 of the Massachusetts Rules of Professional Conduct, pursuant to Rule 6.5, provided that he or she ensures in an initial interview that certain (identified above) conflicting circumstances are not present. Such an opinion would facilitate the participation of attorneys from large commercial law firms in the proposed VLP program and, in turn, help poor individuals and the bankruptcy courts.
Donald Lassman Adrienne K. Walker
Co-Chair Co-Chair
Bankruptcy Law Section Bankruptcy Law Section
1 As presently contemplated, the pro bono attorney would not sign the Chapter 7 petition, although he or she would not be precluded from doing so. Pursuant to the 2005 amendments to the Bankruptcy Code, an attorney’s signature on a Chapter 7 petition constitutes a certification that the attorney has performed a reasonable investigation and “has no knowledge after an inquiry that the information in the schedules filed with such petition is incorrect.” 11 U.S.C. § 707(b)(4). Accordingly, any program under which the pro bono attorney would become counsel of record and represent the debtor in the Chapter 7 bankruptcy would imply a heightened level of involvement that could limit attorneys’ ability and willingness to participate in such a pro bono program. In the typical “no asset” Chapter 7 bankruptcy case, further attorney representation of the Chapter 7 debtor after preparation of the petition and related paperwork is not necessary, because the proceeding is in rem (discussed below). Only in unusual circumstances, for example, if an objection to the discharge of a debt is filed, is further attorney representation of the pro se debtor important. The VLP, together with the Bankruptcy Law Section of the BBA, is also developing a program to provide assistance in these circumstances.
2 The pro bono attorney should determine whether his or her firm could take on discharge or dischargeability litigation should such matters arise with respect to the pro se debtor, and should disclose upfront to the pro se debtor whether he or she will be available, or whether the debtor should contact the VLP for further assistance, if litigation is commenced. Furthermore, if circumstances indicate that discharge litigation is possible, the pro bono attorney should carefully consider whether it is appropriate to decline to provide any further assistance to the pro se debtor.
3 See Association of the Bar of the City of New York, Committee on Professional and Judicial Ethics, Formal Opinion 2005-01, Pro Bono Consumer Bankruptcy Representation, a copy of which is enclosed.
4 See, e.g. Massachusetts Bar Association Ethics Opinion No. 98-1.

Bankruptcy Young Bench Meets Bar Program

Time & Place: Thursday, February 4, 2010 – 4:00 pm Boston Bar Association – 16 Beacon Street, Boston

RSVP

Join us for the the Third Annual Young Bar Meets Bench program, a program intended to provide young practitioners with a unique opportunity to hear from the judges, the clerk of the court, and the chapter 13 trustee concerning issues and topics that are relevant to you. The event will be divided into two segments: an informational segment and a cocktail social. Do not miss this great event!

Panelists:Chief Judge Henry J. Boroff
United States Bankruptcy Court, District of Massachusetts
Judge William C. Hillman
United States Bankruptcy Court, District of Massachusetts
Judge Frank J. Bailey
United States Bankruptcy Court, District of Massachusetts
James M. Lynch
United States Bankruptcy Court, District of Massachusetts
Carolyn A. Bankowski Chapter 13 Trustee, Boston

Bankruptcy Law Section co-chairs: Adrienne K. Walker and Nina M. Parker
Membership Committee co-chairs: Jennifer V. Doran and Gina M. Barbieri
Young Lawyers Committee co-chairs: Lauren E. Darcy and Mackenzie L. Shea

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RSVP now at https://www.bostonbar.org/ebusiness/Meetings/EventDetail.aspx?ID=4058 to get started.

Questions: Contact us at [email protected] or 617-778-2040 x3

Save the Date

The 20th Annual Bench Meets Bar Conference is just around the corner. Mark your calender today.

Where: The Colonnade Hotel, 120 Huntington Ave., Boston

When: May 12, 2010, 2:00 – 8:00 p.m.

Section Co-Chairs’ Corner

Dear Friends and Colleagues:

As 2009 draws to a close, I want to take this time to thank all of our members for supporting the terrific work of our Section. Indeed, our Section has been extremely active this fall. In September we had the privilege of kicking off our 2009-2010 term with a fabulous welcoming reception for our newest addition to the Massachusetts Bankruptcy Bench, Judge Frank J. Bailey. Judge Bailey’s remarks were an inspiration to the practitioners and numerous court personnel that were able to attend the festivities. We are privileged to have him on the Bench. In addition to welcoming Judge Bailey, members were invited to tour the remodeled second floor of the BBA. For those of you who were not able to attend or take a tour, I encourage you to stop by 16 Beacon and tour the new second floor; the new space will make you seek out CLE and meeting opportunities in these rooms.

On October 1, 2009, the Section hosted its first CLE of the year. Many thanks to Jeffrey D. Sternklar and Russell J. Barron for serving as program chairs for The Intersection of Bankruptcy & Intellectual Property – it was a terrific presentation. Also, thanks to the hard work of our CLE Committee Co-Chairs, Jeanne Darcey and Bill McLeod, we have a terrific selection of upcoming CLE’s planned for this winter and spring, including a nuts and bolts program for representing a pro bono debtor, the annual consumer law update, and avoidance actions in leverage buyout bankruptcies. The Section is also delighted to continue with its newest tradition – the Young Bar Meets Bench program will be held on February 4, 2010. This program is especially suited for our law students, clerks and more junior practitioners. The highlight of the Section’s CLE programs will take place on May 12, 2010 – our annual Bench Meets Bar program.

The Section is also deeply involved in promoting legislation to amend the law on homestead and personal exemptions. This fall, our Law and Public Policy Committee Co-Chairs, Diane Rallis and Susan Grossberg attended public hearings and Susan gave testimony concerning this important legislation. I encourage all of you to visit the blog post from Diane and Susan on this issue. If you are so inclined, I encourage you to reach out to your state representative and senator on this matter and voice your personal opinions.

One important function of our Section is to keep our members apprised of changes in bankruptcy practice. On December 1, 2009, amendments to the Federal Rules of Bankruptcy Procedure, as well as to the Massachusetts Local Bankruptcy Rules went into effect. For a summary of the significant changes to the MLBR, please see the impressive summary prepared by our Practice and Procedures Committee Co-Chairs, Ethan Jeffery and Ken Leonetti.

A fun and relaxed way to connect with your colleagues and stay up to date in your practice has become our popular Consumer Rap sessions. Our Consumer Section Co-Chairs, Sanjit Korde and John Sommerstein organized two successful events this fall. I encourage you to reach out to Sanjit or John or to check our calendar page regularly for details on upcoming rap sessions, which are generally held in the evenings at the BBA or in one of our members’ conference rooms.

We encourage all of our members to become involved in the many activities of the Section, including participation in pro bono efforts such as the Reaffirmation Clinic, representing pro bono clients, or mentoring a lawyer that agrees to take on a consumer case. Especially in these significant financial times we’re living through, we are privileged to have the skills to provide access to justice for those that can not afford counsel. If you are able to volunteer, please do so. The Section is in the process of scheduling a training session and developing additional ways in which more of our members can volunteer. We look forward to announcing these projects in early 2010. For more information on our pro bono activities, please reach out to Doug Gooding and Elaine Benkoski, our Pro Bono Committee Co-Chairs.

And in this season of giving, I would like to encourage each of you to consider making year-end gifts to the Normandin Fund and the Carpenter Fund. These Funds were established to honor the memory of two of our beloved colleagues and the proceeds are used to support wonderful pro bono and community outreach programs, including the M. Ellen Carpenter Financial Literacy Program. Please consider making a donation today.

Finally, please remember to join us at our monthly brown-bag lunches, typically held on the Second Tuesday of every month at 12:00 pm at BBA headquarters.

– Adrienne K. Walker

Case Summaries

By Taruna Garg – Murtha Cullina LLP, Boston

Cross-Default Provision Inapplicable to Monetary Defaults Arising from Separate Executory Contract or Lease For Purposes of Assumption Under 365(a)

In re Szenda, 406 B.R. 574 (Bankr. D. Mass. 2009)

This case concerned an objection filed by a sublessor and franchisor to a chapter 13 debtor’s motion to assume a non-residential sublease pursuant to 11 U.S.C. § 365(a). The debtor was a franchisee of two Subway restaurants located in Millbury and Worcester for which he executed separate franchise agreements and subleases for each location. Due to the lack of profitability at the Worcester location, the debtor defaulted on his obligations under the sublease which led to the termination of the franchise agreement and sublease.

After filing his bankruptcy petition, the debtor sought to assume the sublease for the Millbury location pursuant to 11 U.S.C. § 365(a). The sublessor objected, arguing that under various cross-default provisions of the debtor’s franchise agreement, the debtor should be prohibited from assuming the Millbury sublease unless he cured monetary defaults arising from the franchise agreement and sublease that governed the operation of the Worcester restaurant.

The court noted the well-established rule that “[c]ross default provisions do not integrate executory contracts or unexpired leases that are otherwise separable or severable.” 406 B.R. at 580. Accordingly, in order to enforce cross-default provisions to apply to the debtor’s defaults under the Worcester agreements, the sublessor was required to demonstrate that the Worcester and Millbury agreements were “economically interdependent.” The court determined that the Millbury and Worcester Agreements were not interrelated, in that Subway did not show that it would not have entered into the Worcester agreement without the Millbury agreement and the consideration for one agreement did not support the other. As a result, the court held that the debtor was not required to cure monetary defaults arising from the Worcester agreements prior to assuming the sublease for the Millbury location.

Debtor’s Rescission of Loan Transaction For Lender’s Failure to Provide Required Notice May Require Tender of Amounts Due

Wells Fargo Bank, N.A. v Jasskelainen, 407 B.R. 449 (D. Mass. 2009)

This case involved an appeal of a final order by the bankruptcy court allowing chapter 13 debtors to rescind a loan transaction due to the mortgagee’s failure to provide each debtor with two copies of a Notice of Right to Cancel (“NOR”), a notice which discloses a borrower’s limited right to rescind a transaction required by the federal Truth-in-Lending Act (“TILA”) and the Massachusetts Consumer Credit Cost Disclosure Act (the “MCCCDA”). After an evidentiary hearing, the bankruptcy court concluded that a) the lender failed to sustain its burden of proof that each debtor received two copies of the NOR, and therefore violated the MCCCDA, b) that the lender’s failure to provide the NOR was not a ‘bona fide error’ entitling it to receive safe harbor protection under MCCCDA, c) the debtors’ rescission became effective immediately upon providing notice of rescission to the lender and d) the debtors’ notice of rescission terminated the lender’s security interest without any requirement for the debtors to return the loan proceeds.

On appeal, the district court determined that the evidence submitted to the bankruptcy court was sufficient to show that the debtors did not receive required copies of the NOR and that the lender’s failure, although likely inadvertent, was not the type of “clerical” error to qualify as a bona fide error pursuant to the MCCDA.

With respect to the bankruptcy court’s findings concerning the debtors’ rescission of the loan, the district court adopted a different view. First, the district court held that rescission did not become automatically effective upon the debtors’ mailing of a notice of rescission. Instead, if a lender disputes a borrower’s right to rescind, then a court must first decide whether the conditions for rescission have been fulfilled. Until such a determination is made, the borrower had only a claim of rescission.

Second, the district court adopted the majority position that courts have the equitable power to condition rescission upon tender by the borrower of the amounts owed on a loan. To hold otherwise, according to the court, would have the “net effect…[of allowing] a debtor [to] receive[] substantial sums of money or what amounts to a free house, while the creditor receives nothing, which would be contrary to the purposes of rescission.” Id., 407 B.R. at 461. Accordingly, the court remanded the case to the bankruptcy court to determine the appropriate conditions to impose upon the debtors’ exercise of rescission and recommended the bankruptcy court to consider traditional notions of equity, including factors such as the severity of the lender’s violation and the debtors’ ability to pay the outstanding balance.

Chapter 13 Plan May Include Payments Contractually Due to Undersecured Junior Mortgagee for Purposes of Calculated Projected Monthly Disposable Income Pursuant to § 1325(a)

In re Marshall, 407 B.R. 1 (Bankr. D. Mass. 2009)

The central issue in this case concerned whether above-median income chapter 13 debtors should be permitted to deduct payments “contractually due” to a junior mortgagee for purposes of determining their monthly disposable income pursuant to 11 U.S.C. §§ 1325(b) in instances where the debtors intend to seek a determination that the mortgagee’s lien is void and its claim unsecured based on the lack of equity in the property.

The debtors filed an amended chapter 13 plan which reflected a deduction for monthly amounts due for a second mortgage. In their plan, the debtors characterized the second mortgage as an unsecured claim due to the lack of equity in the property. On the same day, the debtors filed an objection to the secured status of the junior mortgage, which was subsequently sustained by the court. The chapter 13 trustee filed an objection to the debtors’ plan contending that the debtors should not be entitled to claim an expense deduction for the second mortgage, an unsecured claim, for purposes of determining their plan payment.

In analyzing two recent circuit decisions that considered this issue, United States Trustee v. Rudler (In re Rudler), 388 B.R. 433 (B.A.P. 1st Cir. 2008) and In re Burbank, 401 B.R. 67 (Bankr. D.R.I. 2009), the court considered the interplay between §§ 707(b)(2)(A)(iii) and § 1325(b)(3) of the Bankruptcy Code. For purposes of calculating disposable income under the means test pursuant § 707(b)(2)(iii), the court agreed that the express language of the statute permitted debtors to deduct payments to secured creditors that were “contractually due.” The more challenging issue concerned how the means test calculation of § 707(b)(2)(A)(iii) applied for purposes of calculating a chapter 13 debtor’s projected disposable income under § 1325(b)(3), which incorporated the means test calculation of § 707(b)(2).

The court adopted the approach set forth in Burbank, where the court reasoned that “…the term ‘projected’ modifies ‘disposable income’ and is not synonymous with the word ‘anticipated’ in this context. ‘Projected disposable income’ means ‘disposable income’ as defined by Section 1325(b)(2), projected over the ‘applicable commitment period.’ In turn, for debtors with above median income the ‘amounts reasonable necessary to be expended’ are determined in accordance with Section 707(b)(2). Burbank, 401 B.R. at 73-74 (internal citations omitted). Accordingly, the court held that the debtors were allowed to claim a deduction for ‘contractually due payments’ to a second mortgagee, although a motion for plan modification may later be filed to reflect the debtors’ actual financial situation.

Case Summaries

By Kathleen Rahbany – Craig and Macauley, P.C., Boston

Failure to Timely File a Notice of Appeal May Be a Jurisdictional Bar to Obtaining Direct Review by the First Circuit Court of Appeals

Weaver v. Harmon Law Offices, P.C. (In re Weaver), 319 Fed. Appx. 1 (1st Cir. 2009)

In an unpublished decision, the First Circuit Court of Appeals declined to hear a direct appeal from an order of the Bankruptcy Court, even though the question certified for review may have been “sufficiently important” to justify a direct appeal.

The defendants sought to have the First Circuit determine “[w]hether or not the act of postponing a mortgage foreclosure sale during a pending bankruptcy violates the automatic stay.” The Bankruptcy Court’s determination was adverse to the defendants. The defendants failed to timely file a notice of appeal of the Bankruptcy Court’s order or to timely seek consent of the First Circuit Court of Appeals to directly review the Bankruptcy Court’s order. This procedural defect made it ‘substantially possible’ that the First Circuit Court of Appeals was without jurisdiction to hear the defendants’ direct appeal. Consequently, the court held that it would not hear the direct appeal because even it determined the question at issue, its holding would be unlikely to result in a “definitive resolution” because the court may have been without jurisdiction to hear the matter in the first place.

Means Test Permits a Deduction from Income of Installment Payments Due for Property to Be Surrendered

Morse v. Rudler (In re Rudler), 576 F.3d 37 (1st Cir. 2009)

The First Circuit Court of Appeals upheld the Bankruptcy Court and Bankruptcy Appellate Panel rulings that the means test permits a debtor to deduct from his income installment payments that are scheduled to come due to a secured creditor, even for property that is later to be surrendered during the debtor’s bankruptcy proceeding.

The means test requires a debtor to calculate whether a presumption of abuse arises by subtracting certain statutorily permitted deductions from current monthly income. Under section 707(b)(2)(A)(iii)(I) of the Bankruptcy Code, a debtor is entitled to deduct expenses incurred “on account of secured debts” so long as the payment is “scheduled as contractually due to [the] secured creditor[] in each of the 60 months following the date of the petition.” An issue comes up when a debtor intends to terminate those payments by surrendering the collateral but also deducts those expenses from current monthly income on the means test, where, but for that deduction, a presumption of abuse would arise.

The First Circuit Court of Appeals noted that precedent interpreting section 707(b)(2) is split but that the majority view, based on the plain language of the statute, permits a debtor to deduct secured payments even if the property securing the debt will later be surrendered. Courts following the majority view primarily consider the phrase “scheduled as contractually due” in the forward-looking context suggested by the phrase “following the date of the petition.”

The First Circuit Court of Appeals determined that “scheduled as contractually due” requires a current assessment of obligations, not one that envisions the future termination of payments that are contractually owed at the time that the debtor completes the means test calculation. Likewise, the court found that the phrase “following the date of the petition” requires a current assessment of payments scheduled to come due after the petition date, not a projection of anticipated changes in those payments. The court concluded that such an interpretation does not lead to an “absurd” result because it avoids uncertainties attendant when a debtor intends to surrender property, but such intent is unperformed at the time when the means test is conducted.

First Circuit Resolves Questions of First Impression

Braunstein v. McCabe, 571 F.3d 108 (1st Cir. 2009)

The Chapter 7 trustee brought a turnover action to recover certain insurance proceeds which were paid to the debtor. The debtor made a jury demand in his answer to the turnover complaint. The turnover complaint was subsequently consolidated with litigation pending before the United States District Court for the District of Massachusetts.

The district court denied the debtor’s jury demand and the debtor appealed that decision. The First Circuit held that there is no jury right with respect to a turnover action brought under section 542 of the Bankruptcy Code. The court noted that there is no statutory right to a jury trial in section 542 actions brought by a trustee in district court and that the Bankruptcy Code fails to address the issue. Accordingly, the court looked to the Supreme Court’s decisions determining whether a jury right exists under the Seventh Amendment. Those decisions prescribe a three-part test which requires a court to: (1) determine whether the action involves rights that are legal or equitable in nature because the “Seventh Amendment applies to actions brought to enforce statutory rights [as opposed to equitable rights] that are analogous to common-law causes of action ordinarily decided in English law courts in the late 18th century;” (2) “examine the remedy sought and determine whether it is legal or equitable in nature”; and (3) if the first two prongs indicate the existence of a jury right then “decide whether Congress may assign and has assigned resolution of the relevant claim to a non-Article III adjudicative body that does not use a jury as factfinder.” The court observed that the second prong of the test is weighed more heavily than the first. The court then examined American legal history and determined that there was no common law turnover cause of action, that any analogous action was equitable in nature and that the remedy for a turnover action is also equitable. Accordingly, since the first two prongs indicate no jury right, the third prong was inapplicable.

The First Circuit then addressed the meaning of “ordinary course of business” for purposes of using, selling or leasing estate property under section 363 of the Bankruptcy Code. The court established a two-part analysis, the first part being a “horizontal dimension test” and the second being “a vertical dimension, or ‘creditor expectation,’ test.” The “horizontal” test requires a court to determine whether the transaction is common for the industry engaged in by the debtor. The “vertical” test assesses whether the transaction subjects a hypothetical creditor to economic risk that the creditor would find unacceptable when extending credit – in other words, the court must ask whether the transaction is “ordinary” to the creditor-debtor relationship. The purpose of the analysis is to determine whether creditors are entitled to notice and a hearing prior to consummation of the proposed transaction.

October 15th Hearings Scheduled on Amendments to Homestead and Personal Property Exemptions

Bills filed in both the Massachusetts House of Representative and the Senate to amend and update the Homestead exemption and the exemptions for personal property have been scheduled for hearing before Joint Committee on the Judiciary on Thursday, October 15th at 1:00 p.m. in Room A1.

A brief description of the bills, House Bills 1584 and 1585 and Senate Bill 1619 and links to the text of the bills are provided in a separate blog submission on this page. Members of the Bankruptcy Section are urged to express their opinion of the legislation and its effect upon consumers to the members of the Joint Committee on the Judiciary listed below, on or before October 15th :

Cynthia Stone Creem of First Middlesex and Norfolk- Chair
Steven A. Baddour of First Essex – Vice-Chair
Gale D. Candaras of First Hampden and Hampshire
Jack Hart of First Suffolk
Thomas M. McGee of Third Essex and Middlesex
Bruce E. Tarr of Essex and Middlesex
Eugene L. O’Flaherty of Chelsea – Chair
Christopher N. Speranzo of Pittsfield- Vice-Chair
James H. Fagan of Taunton
Colleen M. Garry of Dracut
Marie P. St. Fleur of Boston
John V. Fernandes of Milford
Katherine Clark of Melrose
James J. Dwyer of Woburn
Danielle W. Gregoire of Marlborough
Lewis G. Evangelidis of Holden
Daniel K. Webster of Pembroke

In submitting your comments to the members of the Joint Committee on the Judiciary, please make it clear that your comments reflect your own professional views, and should not be construed to reflect the position of the Boston Bar Association or the Boston Bar Association Bankruptcy Law Section.