bankruptcy-court-sealShmeglar v. PHM Financial et al., 14-121 (Interpleader Plaintiffs)
Bankruptcy Court, Northern District of Illinois, Eastern Division
Issued November 18, 2014 by Judge Jack B. Schmetterer

In this Memorandum Opinion the Bankruptcy Court pries apart a Fed. R.  Civ. Pro. 12(c) Motion for Judgment on the Pleadings brought by banks and servicers who claim to be entitled to mortgage payments from the Debtor. In the process, the Court peers down the rabbit hole of securitized mortgages – the process of bundling loans into trusts, slicing trusts into securities, and trading the securities on Wall Street. And what the opinion reveals isn’t pretty.

Ultimately, this case is like thousands across Illinois, and tens of thousands across the country, in the past 10 years that arise from the clash between the big-money business of securitization and the reality of the subprime mortgage debacle. At the root of it all there was always this simple, but previously unthinkable, question:  Who owns my mortgage note and who should I be paying?

Whose Mortgage Is It Anyway?

So who should a homeowner be paying when their mortgage has been securitized, sold, transferred, allonged, and robo-signed? The gaggle of interpleading banks and mortgage services in this case thought it was obvious based on the documents on file with the Court that they were the right ones to pay. But was it really obvious based on documents alone? According to the Court, no it was not.

Every Trick In The Book

Indeed, these facts read like the Forrest Gump of the mortgage mess – virtually everything that had plagued homeowners across the country had happened here, too. No wonder the opinion covers nearly every hot-button tactic used by desperate homeowners over the years to keep from paying their mortgages: the impenetrable mortgage trust, the confusing and misleading array of servicers and transferees, the notes, allonges, and  robo-signed transfers in blank: it’s all here!

But wait, there’s more! This case even involves a Cook County foreclosure case in which judgment that was entered but no sale took place – so no “final confirmation” was issued. The result was an incomplete judgment and a lurking Stern v. Marshall problem. Oh no! And last but not least, even the Illinois enactment of the UCC was called on by the Opinion.

The Upshot

Following its thorough analysis, what does the Court conclude? Can the Debtor/Mortgagor rest easy knowing to whom he must make out his mortgage payment? Nope. Instead, the Opinion confirms that the mortgagee banks and servicers here, like others around the country, have tied themselves into a knot that can only be untangled following an evidentiary hearing (and maybe not even then).

So while there is no final answer to the Debtor’s question of who to pay, at least the Court seems to make the banks put their money where their mouth is. That’s got to count for something, right?

Your Turn

Want to share your thoughts on this post? Need to discuss your own situation? Call us in confidence at 630-378-2200 or reach us via e-mail at mhedayat[at]mha-law.com.

Cashmere

Kashwere, LLC vs. Kashwere USAJPN, LLC
Before the U.S. Court of Appeals 7th Circuit
Docket No. 13-3730 Decided November 13

The Facts

Diversity jurisdiction brought this complex commercial case before the 7th Circuit, which applied Illinois law to a series of trademark and business questions. At issue was whether the developer of chenille fabric under the tradename “Kashwere” (Selzer) could prevent a series of transactions via a non-compete agreement (“NCA”) and, conversely, whether the buyer of the Kashwere trademark (Kashwere LLC) could prevent Selzer from using a conduit company and distributors (Kashwere USAJPN) to get around that same NCA.

The Issues

The background in the case makes the opinion lengthy and complex: in fact, the Court goes out of its way to mention the convoluted facts and blames the litigants’ Attorneys for failing to keep it simple. But the issues are actually limited and familiar. In a nutshell, they are:

1) Can Kashwere LLC, as licensee of the Kashwere trademark, prevent Selzer from using USAJPN to market overseas via distributors; and
2) Can Kashwere USAJPN prevent Kashwere from allegedly violating the same NCA by attempting to sell directly into the Japanese market.

Put another way, the issues were:

(A) Does the NCA prevent distributors – not the signatories themselves but their distributors – from selling Kashwere?
(B) If not, do the equitable obligations of good faith and fair dealing implied in Illinois contracts prevent the same?

The Decision

The Appellate Court concluded that the facts indicated Selzer was not playing fair (so licensee Kashwere LLC has a cause of action) but it is dubious whether the NCA would affect the right of distributors of USAJPN to sell the product once they bought it. In other words, the NCA could only bind the signatories, not prevent the distributors from selling the product.

The Upshot

The Opinion basically favors free commerce and reads the NCA – a document the parties hoped would prevent future litigation – narrowly. That narrow reading means that there is only the slightest wiggle room for Selzer, so licensee, Kashwere LLC, ought to obtain relief on remand (although not the draconian relief that it was seeking initially). As for Selzer and his would-be Japanese conduit USAJPN, they do not fair well in this opinion at all.

Your Turn

Want to share your thoughts on this post? Need to discuss your own situation? Call us in confidence at 630-378-2200 or reach us via e-mail at mhedayat[at]mha-law.com.

When Lien Strips Attack

As a Bankruptcy lawyer I can’t count how many times people have asked why Courts won’t reduce their mortgage debt to match the deflated value of their home, or why they should pay anything on that second mortgage, line of credit, or HELOC, when they’re underwater. I even discussed these questions and the state of the law concerning lien strips in this post. Now, the very cases referred to in that post have made it to the U.S. Supreme Court and the stage is set for the battle of the lien strip cases.

Of course this all started with the Supreme Court’s 1992 Opinion in Dewsnup v. Timm that the Bankruptcy Code does not permit the cramdown of a partially secured mortgage. Some Courts took this to mean that lien-strips are a no-no. Others interpreted it to mean that lien-strips were permissible under the right circumstances. So in some parts of the country a completely unsecured second mortgage can be stripped, but only in a Chapter 13 reorganization; while in other parts it can be stripped in a Chapter 7 liquidation, too.

So, with Courts in disagreement, what’s a home-owner to do? Remember, in Dewsnup the Court ruled the Bankruptcy Code doesn’t permit mortgages to be written down to the value of the home – even though that practice, known as the cram down,  is acceptable as to vehicles. Ironically, one of the Court’s primary concerns in Dewsnup was to prevent windfall gains to home-owners who strip away their loans, then enjoy the profits as their homes rise in value.

But that didn’t exactly happen, did it? These days, most people’s homes are more a burden than a boon. Luckily the Supreme Court has agreed to take another look at the question. And just in time: being underwater with your 1st mortgage while having an unsecured 2nd is the new normal. And nowhere is that more true than in Florida where both cases to be consolidated and heard by the Court, Bank of America v. Caulkett and Bank of America v. Toledo-Cardona, started off as Chapter 7 Bankruptcies.

In a nutshell, the issue to be decided is whether, in a Chapter 7, partially secured mortgages can be written down and unsecured ones written off, despite the Supreme Court’s Dewsnup decision. Here, Florida home-owners filed Chapter 7 and were allowed to strip their unsecured second mortgages. That decision by the Bankruptcy Court was affirmed by the Federal District Court as well as the 11th Circuit Court of Appeals. Bank of American now wants the Supreme Court to outlaw Chapter 7 lien strips once and for all.

Stay tuned to this station as the case goes up for argument and decision. We’ll bring you the opinion as soon as it’s available.

Your Turn

Want to share your thoughts on the largest municipal Bankruptcy in U.S. history? Need to discuss your own situation? Call us in confidence at 630-378-2200 or reach us via e-mail at mhedayat[at]mha-law.com.

Detroit SkylineThe Announcement

Recently Steven Rhodes, the Judge tasked with managing the largest municipal Bankruptcy in American history, cleared Detroit to emerge from reorganization and put to bed a series of hard-fought battles between creditors, citizens, employees, and pension recipients. Before approving the move though, Judge Rhodes issued a heart-felt plea to all involved: “move past your anger” and “fix the Motor City. What happened in Detroit must never happen again.” He also observed that “Detroit’s inability to provide adequate municipal services… is inhumane and intolerable, and must be fixed.”

Politicians and civic leaders, including Michigan’s Republican Governor Rick Snyder, hailed Friday’s decision as a milestone and a “fresh start” for the Motor City. Indeed, it was Snyder who originally agreed with State-appointed Emergency Manager Kevyn Orr to take the City into Chapter 9: a last-resort he had promoted during his re-election campaign.

Lightning Fast Recovery

By Bankruptcy standards Detroit’s case finished in a flash thanks to a series of deals between the City and major creditors, especially retirees who agreed to smaller pension checks (after the Judge reminded them that they had no protection under the Michigan Constitution) and bond insurers who relented on their push to sell the City’s art collection despite being owed more than $1 Billion. By contrast it took more than 2 years for Stockton, California to get out of Bankruptcy, while tiny San Bernardino is still operating under Chapter 9 more than 2 years after filing.

An Innovative Plan

Detroit’s Plan of Reorganization involves cutting pensions of non-public-safety retirees by 4.5%, completely discharging $7 Billion of debt, and spending over $1.7 Billion to demolish blighted buildings and improve basic services. In particular, Judge Rhodes praised the way contentious issues in the Plan were resolved: such as the deal to avoid selling artwork from the Detroit Institute of Arts, and to keep pension cuts from getting worse. In fact, while he said the pension deal bordered on “the miraculous,” he acknowledged that the necessary cuts would cause hardship for the many who would now have to get by on less than $20,000 a year.

Ultimately Judge Rhodes had to accept or reject Detroit’s Plan in full rather than cherry-picking sections. He relied on the advice of an expert, who deemed the Plan “feasible” and predicted that its success would depend on the fiscal skills of the Mayor and City Council, as well as a City Hall technology overhall. Maybe the most unusual feature of the Plan was its reliance on $816 Million put up by the State, foundations, philanthropists, and the Institute of Arts, in order to forestall even deeper pension cuts and avert the sale of art – a step the Judge warned “would forfeit Detroit’s future.”

What Went Wrong In The First Place

In retrospect, perhaps this was inevitable. After all, Detroit’s economy was clearly at the center of a “Perfect Financial Storm” consisting of municipal corruption, fiscal mismanagement, the long, slow decline in the auto industry, and widespread urban flight that strangled the population from 1.2 Million to 688,000 by 1980, turning whole neighborhoods into boarded-up wastelands. Adding insult to injury, despite encompassing more square mileage than Manhattan, Boston, and San Francisco combined, Detroit couldn’t even count on sufficent tax revenue to cover pensions, retiree benefits like health insurance, and debt service on funds borrowed to meet its budget burden. Still, the nail in Detroit’s coffin was the horrible debt deal made by former Mayor Kwame Kilpatrick, which locked it into paying high rates on its debt even as interest rates fell during the recession

Light At The End of The Tunnel

Detroit Regional Chamber President and CEO Sandy K. Baruah declared Detroit to be “on the cusp of a new era and primed to reinvent itself in a way many people did not think possible.” True. But what really matters is that the Motor City has a new direction and a long, hard, clean-up job ahead. Sure, Bankruptcy was the catalyst for change, but only the City and its residents – businesses, individuals, religious institutions, and government – can affect real change. Here’s hoping, Detroit. We’re all pulling for you.

Your Turn

Want to share your thoughts on the largest municipal Bankruptcy in U.S. history? Need to discuss your own situation? Call us in confidence at 630-378-2200 or reach us via e-mail at mhedayat[at]mha-law.com.

Franchise Business

Many small business owners find comfort and success capitalizing on a franchise. Franchisors use Non-Compete (“NCA”) and Non-Disclosure (“NDA”) clauses as well as mandatory arbitration provisions to protect themselves. But should such a provision be effective against a non-signing spouse? That was the question before the Appellate Court in the recent 7th Circuit case of Everett vs. Paul Davis Restoration. The short answer? Yes, it is.

The Family Business

Davis Restoration entered into a Franchise Agreement with Matthew Everett, husband of Plaintiff Renee, as the “principal owner” of Franchisee EA Green Bay. Sometime after signing as the sole owner of EA, Matthew transferred 50% of the company to his wife despite not securing permission from the Franchisor beforehand. Eventually, the Franchise Agreement was terminated and the 2-year non-compete provision took effect. Matthew then transferred the remaining 45% of EA to his wife, who continued to operate it under the name “Building Werks” from the same location with the same customers and employees. Moreover, the Franchisor contended, Building Werks continued to capitalize on its good will and reputation.

Reversal of Fortune

The Franchisor reacted to the breach of its NCA by initiating arbitration with Mrs. Everett, who sought a declaratory judgment in District Court to the effect that she should not be bound by the Arbitration Clause because the Franchise Agreement was signed by her husband. The District Court, however, found “abundant evidence” that she had benefited from the Franchise Agreement and therefore could be compelled to arbitrate according its terms. This was the so-called Direct Benefits Doctrine.

Following arbitration, the Franchisor went back to Court to confirm the unanimous finding in its favor. To its great surprise, this time the District Court denied confirmation and declared that its earlier ruling had been in error. Now, the Court felt, the benefit to Renee from the Franchise Agreement had not been “direct” but “indirect” through her ownership interest in EA and relationship to her husband. As a result, she could not be compelled to accept the arbitration award.

The Doctrine of Direct Benefits Estoppel

The Franchisor appealed to the 7th Circuit, which set about deciding whether the obligation to arbitrate in such a document was limited to those who had personally signed it or could include non-signatories benefited by it. Ultimately the Appellate Court reached same basic conclusion drawn by the District Court the first time around: that the non-signing, benefited party could not escape her obligation to arbitrate because she was estopped from doing so by the Doctrine of Direct Benefits.

As the Court observed, a direct benefit is derived the subject agreement itself. An indirect benefit by contrast would be one derived from exploitation of the contractual relationship of the parties. The 7th Circuit found that Mrs. Everett received the same benefits as her husband, including the ability to trade on the name, goodwill, and reputation of the Franchisor. In fact, Mrs. Everett’s ownership in EA had only arisen because EA had been formed to satisfy the requirements of the Franchisor. In every sense, Renee had benefitted from Matthew’s relationship with the Franchisor.

The Upshot

Perhaps the primary message of this case was that those who live by the Franchise Agreement, die by the Franchise Agreement…. So to speak. If a party directly benefits from a deal, they should be made to comply with its less glorious features as well. After all, any other conclusion would end up handing franchisees a giant loophole.

Questions about your own situation? Business owner looking for answers? Call us in confidence at 630-378-2200 or reach out to us by e-mail at mhedayat[at]mha-law.com.

Gift CardIn the recent case of Beeman et. al. v. Borders Liquidating Trust et al. from the Circuit Court for the Southern District of New York decided on October 29, that Court examined what ought to happen when relief that could be granted, for practical reasons is not.

This controversial policy, referred to as “Equitable Mootness” means certain judgments will not be issued – even though they could – because doing so upsets the established order in a Bankruptcy case. It is obviously a touchy subject, but squarely within a court’s discretion.

Here, more than $17 Million had been distributed to creditors of Borders Bookstores in its Chapter 11 reorganization when 3 of its customers whose store gift cards became useless when it went bankrupt sought to be placed in a special “class” of claimants. The Plaintiffs started in the Bankruptcy Court but did not get traction there, so they proceeded in District Court.

In the Bankruptcy case below, the Court determined due to a variety of factors, including timing of the claims and the stage reached in the case, that Equitable Mootness should kick in.  The District Court agreed and clarified that the doctrine applied not only to ongoing reorganizations but to the ones, like this, that ended in liquidation – a s0-called “Liquidating 11.”

In its Opinion the District Court did point out the exceptions to the Equitable Mootness doctrine articulated in the 1993 case of Frito‐Lay v. LTV Steel(In re Chateaugay Corp.). But the Court also made it clear that this situation did not satisfy those conditions.

In the end, the decision in this case was complex, as were the legal principals, but the basic idea could be reduced to this: if you are a creditor in a Bankruptcy , act fast, be timely, and don’t let up. If you can’t do that, stay home and save yourself the Attorneys’ fees.

If you are a Creditor in a Bankruptcy case, call us in confidence at 630-378-2200 or via e-mail at mhedayat[at]mha-law.com.

CFPB

Recently I got an e-mail from the newly-formed Consumer Financial Protection Bureau (CFPB). You remember the CFPB, right? No? That’s alright. But you probably remember the agency’s public face, now-Senator Elizabeth Warren of Massachusetts.

So, after coming out of the shoot a few years with the President’s blessing and much fanfare, the CFPB has released the first of several consumer-friendly web-based guides. This one is its Guide to Owning and Buying a Home.

The 3 primary resources offered on the CFPB site are:

Guide to Loan Options: For those just starting their home and mortgage search. Provides necessary information to choose the right mortgage.

Closing Checklist: For those closer to the end of the process, this guide helps prepare them to close.

Closing Forms-Explained: The CFPB breaks down the standard documents used at real estate closings and tells users what to look out for.

On the whole this isn’t a bad first offering. In fact, it could set an entirely positive footprint as the nation moves into the post-Great Recession era.

If anyone gives these resources a try please call or e-mail me with your thoughts.

Money Fight

So you’re doing business as usual and notice that payments from your customer are getting later and later. Turns out that customer is struggling to navigate in the sputtering economy. Waiting for your money is bad enough; but what if you receive a demand to refund what you’ve been paid? And not because of anything you’ve done but because your customer has filed for Bankruptcy?

Sound like a nightmare? Actually, it happens everyday. So what do you do if you’re next? That was the question addressed in the recent New York case of Davis vs. Clark-Lift, in which a reorganizing Chapter 11 Debtor paid vendors later and later as it listed towards Bankruptcy. But even those lucky creditors who got paid could not escape the demand of the Trustee (Davis) to fork over what they had received.

As the Court in Davis explained, to set aside a payment as a “Preferential Transfer” under Section 547(b) of the Bankruptcy Code the moving Creditor or Trustee must established that the Debtor made it:

(1) To an  existing creditor to satisfy an existing debt;
(2) While it was actually, or presumptively, insolvent;
(3) Within 90 days before filing its Bankruptcy case; and
(4) The payee therefore gets more than it otherwise would.

So if you got paid within 90 days before your customer filed Bankruptcy, it’s all over right?

Not exactly. Even if a payment qualifies as a Preferential Transfer the recipient can assert defenses. If successful, the payee retains the money. One of the most frequently-used strategies is the “Ordinary Course of Business” defense found in Section 547(c)(2) of the Code, which provides that a payment made in the ordinary course of business will not be avoided as a preference. The idea behind the defense is to permit a reorganizing Debtor to maintain a semi-normal relationship with some creditors: because rebuilding goodwill is key to a successful reorganization.

In the Davis case the Court’s analysis was primarily focused on what the “ordinary course of business” was; which in turn meant determining the most common and frequently-used payment terms for vendors during the relevant 90-day period. This means looking at all vendors at first; then vendors of a certain type; then payments of a certain type; and finally a comparison between terms bef0re the 90-day period began running and afterwards.

The decision in the Davis case, like many similar cases, was that the vendor had to disgorge what it was paid. What would it get in return? Perhaps a return of its goods so it could resell them and offset its losses? Nope. In return for disgorging the payment the vendor got a claim in the Debtor’s case. Most likely, it wouldn’t see the money. So now the vendor was out both its money and its property. Isn’t the law grand?

If you have seen situations like this or are yourself the subject of such a situation, call us in confidence at 630-378-2200 or reach us at mhedayat[at]mha-law.com.

House of Dollars

In LaSalle Bank N.A. vs. Cypress Creek 1, LP (Edon Construction et al.), 950 N.E.2d 1109 (2011), 242 Ill.2d 231 (Feb. 25, 2011), the Illinois Supreme Court ruled on the thorny problem of how to apportion proceeds from a foreclosure sale between the mortgagee bank and mechanics lien claimants when there weren’t enough proceeds arising from the foreclosure sale to pay both in full. In other words, who gets paid and who gets the shaft according to Sec. 16 of the Illinois Mechanics Lien Act?

Holdings

Here’s what the Court decided:

#1 Sec.16 of the Mechanics Lien Act gives lien claimants priority only as to the value of work in place (materials and labor).

#2 The Illinois S. Ct. case of Clark v. Moore, 64 Ill. 273 (1872) indicates that while the contractor is entitled to the value of unpaid work and materials used to improve the property (which would be in its Mechanics Lien), the value of paid-for work and materials should benefit the mortgage lender (mortgagee), not title holder (mortgagor) or the contractor.

#3 In dividing sale proceeds between the mortgagee and the lien claimant, Illinois Courts have used one of two analyses:

(a) Market Value approach;

(b) The Contract approach.

Courts have also used subordination rules to supplement their analysis.

Conclusion

Under the facts of this case the Court determined that the value of unpaid work in place (the liened sum) should be tendered to the Contractor, except for those improvements paid for with mortgage funds or construction loan funds, which should inure to the Mortgagee. All other sums should go to the Mortgagee as well.

Mechanics Lien or construction law question of your own? See our Construction Primer and feel free to contact us for a confidential consultation.

foreclosure

The Federal Reserve and Government forecasters agree: the Great Recession is over. But is it? Not for millions of Americans whose homes remain underwater thanks to the sub-prime mortgage scandal. Nor is it over for the millions more who lost their jobs and have only been able to secure part-time work with less pay and no benefits.

For many the ultimate insult is when their bank refuses to work with them and turns a few missed payments into a full-blown foreclosure. So here are a few options for those who want to know their options.

Alternative #1: Short Sale

When you sell your home, you pay off the current mortgage with the buyer’s loan. But what if your home’s value has plummeted below the face amount of your loan? In that case a buyer’s offer wouldn’t even retire your mortgage – much less provide the down payment on a new home. So you’re stuck, right?

Wrong. If you secure a bona fide offer your lender must take it seriously: it must decide whether to hang on to your home and potentially foreclose, or take a “short payoff.” And it turns out that virtually all banks are willing to take a short payoff under the right circumstances. The result is a short sale.

If your lender agrees to the short sale price it will release its mortgage lien – most times without asking you to make up the difference. But to convince the lender, you typically need to list your house for at least 90 days and meet a gauntlet of conditions. To enhance your chances of success, choose the right advisors. Experienced Real Estate Brokers and Attorneys make the process much easier and radically increase your chance of success.

Alternative #2: Deed in Lieu

As the name implies, it is possible to give your lender permission to take your home – that is, tender the deed– instead (“in lieu”) of making the lender foreclose. To qualify for this remedy a homeowner must submit a hardship letter and follow a battery of steps. Note: in order for a deed in lieu to work there cannot be junior liens on the property.

Advantages:

Unlike a short sale, lenders do not take steps to obtain a deficiency judgment when a deed is tendered in lieu of foreclosure. This is a difference and an advantage (in theory) over short sales. But in reality, short sales rarely generate deficiencies anyway.

The deed in lieu also permits the homeowner to avoid the publicity, expense, and time commitment involved in a foreclosure action.

Disadvantages:

The primary disadvantage of the deed in lieu is that homeowners lose their property, including all equity, immediately. On top of that, both the conveyance of the house to the lender and the forgiveness of the deficiency are taxable events that can generate thousands in unforeseen liability for the homeowner.

Alternative #3: Bankruptcy

Most people think of Bankruptcy as the end of the road: the last stop on the spiral to the bottom. But hold on! Bankruptcy isn’t the deep, dark hole many believe it to be. In fact, when it comes to saving your home, it may just be the best thing that ever happened to a homeowner. Here’s why.

First, Bankruptcy is tax neutral. Unlike all the options above, absolutely no tax liability arises when debts are written off in Bankruptcy.

Second, regardless of the type of Bankruptcy employed – liquidation or reorganization – the result is to stop the foreclosure freight train in its tracks. And if the homeowner can manage to repay what they’re behind, the foreclosure can be stayed indefinitely.

Third, for those who don’t realistically expect to catch up, a liquidation Bankruptcy will relieve them of the mortgage debt permanently, and without causing any unwanted tax repercussions.

In fact, Chapter 13 Reorganization enables homeowners pay down mortgage arrears via a payment plan over as many as 60 months (5 years). During that time, all foreclosure activity is stayed. Homeowners can file for Chapter 13 Bankruptcy relief right up until the confirmation of the Sheriff’s Sale of their home.

Light at the End of the Tunnel

The short list in this post does not even get into the maze of regulations known as HAMP, HARP, and other government programs such as the Reverse Mortgage. These are also possible ways to go about saving your home from foreclosure. To learn more, drop us a line at mhedayat[at]mha-law.com or call for a confidential consultation. We are always happy to be of service.