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​BANKRUPTCY BULLETIN Editors-in-Chief Karl Johnson, Hellmuth & Johnson, PLLC Jeffrey Klobucar, Bassford Remele, P.A. Contributing Editor: Jackie Williams, Manty & Associates, P.A. Eighth_Circuit___McCormick_v__Starion_Finan_.pdf In McCormick v Starion Financial (In re McCormick) , 894 F.3d 953 (8th Cir. 2018) (Beam, J.), the Eighth Circuit held that “the entirety of the dealings” between the debtor and the creditor provided for attorneys’ fees even if the oversecured status arose from nonconsensual judgment liens. A creditor objected to the debtor’s second amended plan of reorganization because the plan did not provide for the ...
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This blog expands an article published in Bench & Bar of Minnesota (October 2018), as “Confidentiality Rules in the Age of Social Media – A Historical Perspective.”  This expansion adds discussion of a third value – the public interest in accurate information regarding a lawyer.  This explanation also explains how Minnesota has only one more disclosure permission than the ABA Model Rules. When, if ever, may a lawyer disclose confidential information to defend, outside a legal proceeding, against a client’s public accusation of serious misconduct?  “Never” and “almost never” are the answers proposed, respectively, by the Lawyers Board and the Minnesota ...
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​BANKRUPTCY BULLETIN Editors-in-Chief Karl Johnson, Hellmuth & Johnson, PLLC Jeffrey Klobucar, Bassford Remele, P.A.  Contributing Editor: Phillip J. Ashfield, Stinson Leonard Street, LLP Eighth_Circuit___U_S__Dept__of_Labor_v__Harris.pdf In U.S. Department of Labor v. Harris (In re Harris) , 898 F.3d 834 (8th Cir. 2018), Harris, the former CEO of Fairbault Woolen Mills (“Fairbault”), diverted withheld employee wages to be used for payment of health plan premiums toward corporate and personal expenses, thereby rendering his debt to the Department of Labor (“DOL”) nondischargeable under 11 U.S.C. § 523(a)(4). While Harris served as its ...
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On July 31, 2018, disciplinary charges were filed against a lawyer, Nelson. The charges included that in 2008 [sic!], Nelson sent a written solicitation to a prospective client.  The word “Advertisement” was at the top of the document.  In 2005, Rule 7.3 had been amended, to substitute “Advertising Material” for the previously-required “Advertisement.” [i] Explaining how ethics complaints are handled, the Office of Lawyers Professional Responsibility (OLPR) has assured Minnesota lawyers, “This is not a gotcha game.” [ii]   On the other hand, OLPR takes the position that discipline may be imposed, “regardless of whether an innocent oversight is to blame, ...
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​ BANKRUPTCY BULLETIN Editors-in-Chief Karl J. Johnson, Hellmuth & Johnson, PLLC Jeffrey D. Klobucar, Bassford Remele, P.A.  Contributing Editor: Charles E. Nelson, Ballard Spahr, LLP Judge_Fisher____In_re_Wigley.pdf In In re Wigley , Court File No. 16-43707, the bankruptcy court ruled that lease damage claims of a real property lessor are limited by § 502(b)(6) as to both the guarantor of the lease and the transferee of a fraudulent transfer from the guarantor. The debtor’s husband as guarantor for his restaurant Baja Sol’s lease, owed the landlord $2,238,000 pursuant to a state court judgment for past-due rent and future accruing rent. ...
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​ BANKRUPTCY BULLETIN Editors-in-Chief Karl J. Johnson, Hellmuth & Johnson, PLLC Jeffrey D. Klobucar, Bassford Remele, P.A.  Contributing Editor: Natasha Wells, Dorsey & Whitney LLP BAP____McDougall_v__Ag_Country_Farm_Credit_Services__PCA.pdf McDougall v. AgCountry Farm Credit Servs. (In re McDougall) , 587 B.R. 87 (B.A.P. 8th Cir. 2018) (Schermer, J.) The Eighth Circuit Bankruptcy Appellate Panel remanded a proceeding to the bankruptcy court for dismissal, holding that the bankruptcy court lacked jurisdiction to consider the state law dispute between non-debtors and a mortgagee.  The debtors filed an adversary proceeding against non-debtor ...
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​BANKRUPTCY BULLETIN Editors-in-Chief Karl Johnson, Hellmuth & Johnson, PLLC Jeffrey Klobucar, Bassford Remele, P.A. Contributing Editor: Andrew Stoebner, Lapp, Libra, Thomson, Stoebner & Pusch, Chtd. Judge_Ridgway__In_re_Jacklitch.pdf  In In re Jacklitch , No. 17-60624 (Bankr. D. Minn. Jul. 31, 2018), the bankruptcy court overruled the trustee’s objection to the debtor’s claimed exemption and allowed the exemption in funds held in an IRA. Under Minn. Stat. § 550.37, subd. 10, “[a]ll money received by, or payable to, a surviving spouse or child from insurance payable at the death of a spouse, or parent, not exceeding $46,000,” is exempt. ...
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​BANKRUPTCY BULLETIN Editors-in-Chief Karl Johnson, Hellmuth & Johnson, PLLC Jeffrey Klobucar, Bassford Remele, P.A.  Contributing Editor: Christopher Wilcox, Christensen Law Office PLLC Eighth_Circuit___Briggs_v__Reed.pdf In  Briggs v. Reed , No. 17‑1143 (8th Cir. April 25, 2018), the Eighth Circuit Court of Appeals affirmed the district court’s judgment affirming the bankruptcy court’s order sanctioning the appellant, an attorney, for contempt of an order compelling turnover and for misleading the court. The Appellate Court likewise affirmed a ruling that appellant’s request for reinstatement to practice before the bankruptcy court was ...
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​BANKRUPTCY BULLETIN Editors-in-Chief Karl Johnson, Hellmuth & Johnson, PLLC Jeffrey Klobucar, Bassford Remele, P.A.  Contributing Editor: Mary Sieling, Manty & Associates, P.A. Judge_Ridgway___In_re_Thomas.pdf In In re Thomas , No. 17-43661-MER (Bankr. D. Minn. Jul. 31, 2018), the court, applying the “snapshot rule,” held that homestead sale proceeds that are exempt on the petition date maintain their exempt status irrespective of whether the exemption expires post-petition. The debtor sold her homestead less than a year before filing her chapter 7 petition. In her schedules, the debtor exempted proceeds from the sale of her homestead ...
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​ BANKRUPTCY BULLETIN Editors-in-Chief Karl Johnson, Hellmuth & Johnson, PLLC Jeffrey Klobucar, Bassford Remele, P.A.  Contributing Editor: Christopher (C.J.) Harayda, Faegre Baker Daniels LLP Eighth_Circuit___Official_Committee_of_Unsecured_Creditors_v__Archdiocese_of_Saint_Paul_and_Minneapolis.pdf In The Official Committee of Unsecured Creditors v. The Archdiocese of St. Paul and Minneapolis, et al. (In re The Archdiocese of St. Paul and Minneapolis ), No. 17-1079 (8th Cir. Apr. 26, 2018), the Eighth Circuit affirmed denial of the Creditors’ Committee’s motion seeking substantive consolidation of more than 200 affiliated non-profit non-debtor ...
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It’s been a great lunch, with old friends from the bench and bar, and a few toasts are being made. Your cellphone rings. You learn that the Minnesota Supreme Court just issued an opinion reversing lower courts and deciding every issue in your client’s favor. Your office tried to let your client know, but she’s incommunicado for a week. May you share the good news at lunch? Or do the confidentiality rules prohibit disclosure without your client’s informed consent? To take the issue one step further, suppose that your recent appellate victory occurred just before your appearance in District Court, where the case would provide precedent helpful to another of ...
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​ BANKRUPTCY BULLETIN Editors-in-Chief Karl Johnson, Hellmuth & Johnson, PLLC Jeffrey Klobucar, Bassford Remele, P.A.  Contributing Editor: Kesha Tanabe, Tanabe Law Cedar_Rapids_Lodge_v_Seibert_SRN_544b.pdf Cedar Rapids Lodge & Suites LLC et al. vs. John F. Seibert et al., No. 14-CV-04839 (D. Minn. Feb. 7, 2018). Plaintiffs sued the debtor for fraud related to a Cedar Rapids hotel development in 2009; they obtained a judgement in 2012. While the litigation was pending in Iowa state court, however, the debtor’s net worth decreased by over $5.4 million and plaintiffs were unsuccessful in collecting the judgment. They responded by commencing ...
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​ BANKRUPTCY BULLETIN Editors-in-Chief Karl Johnson, Hellmuth & Johnson, PLLC Jeffrey Klobucar, Bassford Remele, P.A.  Contributing Editor: Kesha Tanabe, Tanabe Law BAP___Charles_Gabus_Motors__Inc___v__Tirrell.pdf In Charles Gabus Motors, Inc. v. Martin J. Tirrell, No. 17-6009, (B.A.P. 8th Cir. Sept. 6, 2017), the BAP upheld a decision of the bankruptcy court denying the debtor a discharge of his debts in accordance with a default provision set forth in a court-approved stipulation.  Debtor entered into the stipulation with a creditor who had previously commenced an adversary proceeding seeking denial of the debtor’s discharge under § 727. ...
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​ BANKRUPTCY BULLETIN Editors-in-Chief Karl Johnson, Hellmuth & Johnson, PLLC Jeffrey Klobucar, Bassford Remele, P.A.  Contributing Editor: Kesha Tanabe, Tanabe Law Supreme_Court____Lamar__Archer___Cofrin__LLP_v__Appling.pdf In Lamar, Archer & Coffrin, LLP v. Appling, the Supreme Court held that a debtor’s statement about a single asset can be a “statement respecting the debtor’s financial condition” under § 523(a)(2). When the “fraud” at issue is effectuated by such a statement, however, the Appling court noted that the statute “plainly heightens the bar to discharge” because the creditor must also satisfy the requirements of Section ...
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BANKRUPTCY BULLETIN Editors-in-Chief Karl Johnson, Hellmuth & Johnson, PLLC Jeffrey Klobucar, Bassford Remele, P.A.  Contributing Editor: Karl Johnson, Hellmuth & Johnson, PLLC Judge_Kressel___In_re_The_Archdiocese_of_Saint_Paul_and_Minneapolis___Joint_Memo.pdf Judge_Kressel___In_re_The_Archdioces_of_Saint_Paul_and_Minneapolis____UCC_plan.pdf Judge_Kressel___In_re_The_Archdiocese_of_St__Paul_and_Minneapolis___debtors_plan.pdf             In two orders and a joint memorandum, the bankruptcy court denied confirmation of competing plans proposed by the committee of unsecured creditors and the debtor in In re The Archdiocese of Saint ...
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​ BANKRUPTCY BULLETIN Editors-in-Chief Karl Johnson, Hellmuth & Johnson, PLLC Jeffrey Klobucar, Bassford Remele, P.A. Contributing Editor: Amanda Schlitz, US Bank Eighth_Circuit___Marshall_v__Educational_Credit_Mgmt__Corp_.pdf In Marshall v. ECMC et al. (In re Marshall) , Nos. 18-1843, 18-1845 (8th Cir. May 23, 2018), the Eighth Circuit reviewed the BAP’s dismissal of an untimely appeal for lack of jurisdiction. In the underlying case, the bankruptcy court overruled the debtor’s objection to the proof of claim of ECMC and MOHELA, its successor, and denied the debtor’s emergency motion to invalidate the transfer of claim by ECMC ...
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There is a surprising gap in the law and literature about conflicts of interest.  Lawyers frequently provide advice and render opinions, both formal and informal.  However, leading authorities generally do not address when these legal services create a “directly adverse” conflict.  Advising and opining is not mentioned in the thirty-five comments to the current client conflict rule. [i]   The Office of Lawyers Professional Responsibility devoted an entire article to directly adverse conflicts, but did not mention advising and opining. [ii] A conflict arises when a law firm represents one client “directly adverse” to another.  Rule 1.7(a), Minn. R. Prof. Conduct. ...
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​ BANKRUPTCY BULLETIN Editors-in-Chief Karl Johnson, Hellmuth & Johnson, PLLC Jeffrey Klobucar, Bassford Remele, P.A. Contributing Editor: James Brand, Fredrikson & Byron, P.A. Eighth_Circuit___Paddock__LLC_v__Bennett.pdf In The Paddock, LLC v. Bennett (In re Bennett) , No. 17-6025 (8th Cir. B.A.P. April 19, 2018), the Eighth Circuit Bankruptcy Appellate Panel analyzed Iowa state law regarding fixtures and concluded that the debtors’ manufactured home was personal property, rather than real property.  As a result, the debtors were able to confirm a chapter 13 plan that treated an installment sale contract, secured by their manufactured ...
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​ BANKRUPTCY BULLETIN Editors-in-Chief Karl J. Johnson, Hellmuth & Johnson, PLLC Jeffrey D. Klobucar, Bassford Remele, P.A.  Contributing Editor: Natasha Wells, Dorsey & Whitney LLP Judge_Sanberg___Kelley_v__McDonald__In_re_Petters_Co___Inc__.pdf Judge_Sanberg___Kelley_v__Stapleton__In_re_Petters_Co___Inc__.pdf In companion cases, Kelley v. McDonald (In re Petters Co., Inc.) , Adv. No. 17-4107-KHS (Bankr. D. Minn. Jan. 17, 2018), and Kelley v. Stapleton (In re Petters Co., Inc.) , Adv. No. 17-4108-KHS (Bankr. D. Minn. Jan. 17, 2018), the bankruptcy court denied the defendants’ motions to dismiss the trustee’s fraudulent transfer actions, ...
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​ BANKRUPTCY BULLETIN Editors-in-Chief Karl J. Johnson, Hellmuth & Johnson, PLLC Jeffrey D. Klobucar, Bassford Remele, P.A.  Contributing Editor: Richard J. "Jay" Reding, ASK, LLP Fulmer_v__Fifth_Third_Equipment_Finan__Co___In_re_Veg_Liquidation__Inc__.pdf   In Fulmer v. Fifth Third Equip. Fin. Co., et al. (In re: Veg Liquidation, Inc.) , 2018 WL 1465496 (B.A.P. 8th Cir. Mar. 26, 2018), the Bankruptcy Appellate Panel for the Eighth Circuit affirmed the dismissal of an adversary proceeding on the basis that it was an impermissible collateral attack on a prior 363 sale order. Two years after the bankruptcy court approved the sale of the debtor’s ...
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