The Free Press - Volume 1, Summer 2008

Editor's Note:  It is with a touch of sadness that we open this issue of The Free Press.  We mourn the passing of Chair, Ed Friedman, who had sent his Report from the Chair article shortly before his death, and we print it as he wrote it.  Ed Friedman., was Chair of the Creditors' Rights Section at the time of his death, and was a partner in the law firm of Weinstock, Friedman & Friedman, P.A.

Report from the Chair

By Ed Friedman, Esq.

They say time flies, and it has for me as your CRS chair.  In just a few short months my term will expire in New York.  It has been my privilege to act as your chair and an experience I will always look back on fondly.

CRS continues to evolve as a section, and needs to continue to reinvent itself to always stay relevant to our members.  The number one priority remains to continue to expand business opportunity to our membership, while providing top flight education to our members to facilitate "cutting edge" skills.

Initiatives need to continue in cooperation with the CLLA as a whole to bring new sources of membership to our members.  A good first effort was the successful retail-consumer day held at our Chicago meeting.  Continued vigilance is required to identify and grab onto the next large business opportunity that presents itself to the market.  We must remain proactive not reactive.

On the immediate horizon our members can rest assured that CRS is planning a full range of educational offerings providing between 7 and 9 hours of CLE credit.  Preliminary topics range from a paid speaker on trial techniques, and litigation tactics to programs on receivership, international collections, and bankruptcy basics.  Future topics being considered include Article 2A, Article 9, and a speaker on Cross-Examination.  See your New York materials for final educational offerings.

Section membership has remained stable but we must grow our numbers to remain strong. We can all do our part by asking one member to join with us.  This is a painless way to double our size, and there is no substitute for a personal invitation.  I would also encourage each of us to pay our section dues as they fall due.

Finally, there will be four open slots on the CRS Council up for election in New York.  Get involved and bring your ideas to the table.  Submit your name as a candidate through Beau Hayes, Nominating Committee Chairman.

Respectfully submitted. 

Ed Friedman

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Edward J. Friedman - In Memoriam

My dear friend Ed Friedman passed away on July 23, 2008, after a battling cancer for over two years. Ed's passing came as a shock to all of us since we all thought if anyone could beat cancer it would be Ed. I could recount all of Ed's achievements as an attorney and as a member of the CLLA but they would not be the true measure of the man. During his too short stay with us Ed was truly blessed. He had a wonderful family, great business partners and more friends than anyone else I know.

Our CLLA family will truly miss Ed. Ed and his wife, Helen, have been fixtures at CLLA events for over twenty-five years. Ed always gave more than he received. Ed was fun to be with and his enthusiasm was contagious. His good humor, intelligence and camaraderie made him a great friend and an asset to any endeavor he took part in.

While we mourn Ed's passing, I ask all of you to celebrate Ed's life. At the next CLLA event you attend raise a glass and toast to Ed's legacy of goodwill and friendship.

Robert S. Levy, Esq.

It is with great sadness & sorrow that I acknowledge the death of our beloved Chairman Edward J. Friedman of Baltimore, Maryland. Eddie was a bright light & a positive influence on all of us who knew him. He personified the definition of the phrase "good guy". He was a very exceptional human being who lived his life to the fullest. He worked hard & had a very successful practice but also knew how to have fun & enjoy the fruits of his labor. Eddie will surely be missed by all of us who knew him & loved him. However he will never be forgotten & his spirit will continue to live on in all of us who were fortunate enough to know him.

Mark J. Sheriff, Esq.

Membership Committee Report

By:  Doug Evans, Esq.

CRS membership is drawn from the pool of general membership of the CLLA.  In order to maintain membership levels, much less increase the membership, the CRS must show that a benefit is conferred on the members of the section by being a member.  It is incumbent upon CRS members to encourage non-CRS CLLA members to join the section, to talk up the networking, business and education benefits of section membership to non-CRS CLLA members and to follow through by forwarding business to and recommending CRS members to forwarders and clients.  Are you doing your part?  Can you do more?

Editor's Note:  Doug Evans is a principal of Evans & Green in Springfield, MO and is a board certified creditors rights attorney as certified by the American Board of Certification.  Accredited by the American Bar Association.  Neither the Missouri Supreme Court nor Missouri Bar review or approve certifying organizations or specialist designations.

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Washington Legislative Report

Excerpts from recent  Washington Hot News distributions

By David P. Goch, Esq.

GAO Report concludes bankruptcy act increases Costs to Consumers, U.S. Trustee Program

A July 28th GAO report, entitled "Bankruptcy Reform: Dollar Costs Associated With the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005," concludes that the bankruptcy reform act made significant changes to the administration of bankruptcy relief, affecting the U.S. Trustee Program (USTP), the federal judiciary, consumers filing for bankruptcy, and private trustees and the result of that has been "increased costs to individual consumers filing bankruptcy resulting from higher attorney fees and filing fees, as well as new fees to meet credit counseling and debtor education requirements."
The GAO responded to the request to explore (1) the new law's resulting costs to the USTP and the federal judiciary, (2) new consumer costs, and (3) the act's impact on private trustees.
Focusing only on consumer bankruptcies for an audit period of from June 2007 through June 2008, in accordance with GAAP, the GAO estimated that the average attorney fee for a Chapter 7 case went from $712 in February-March 2005, to $1,078 in February-March 2007; in Chapter 13 cases, courts approved attorney fees rose in nearly all of the districts and divisions, with a 55+% in more than half the cases examined.
According to the GAO report, the USTP estimated that its costs to carry out new responsibilities of the act were approximately $72.4 million for fiscal years 2005 through 2007.
GAO also indicated the act affected Chapter 7 and 13 private trustees responsibilities and caseloads; increasing the time and resources they spend administering a case.
The report noted that the $60 fee Chapter 7 trustees collect for each case they administer remains unchanged after implementation of the act.
On July 22nd, the Administrative Office of the U.S. Courts filed its first annual report to Congress containing new bankruptcy statistics mandated by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005.
The "2007 Report of Statistics Required by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005," provides statistics about debtors such as their assets and liabilities, and income and expenses for the nation as a whole, as well as by judicial circuit and district. Available at: http://www.uscourts.gov/bnkrpctystats/2007/BAPCPAstats.html
Additionally, on July 28th, the Government Accountability Office released the following report, "Bankruptcy Reform: Dollar Costs Associated with the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005."

Bankruptcy Filing Date Treated as Plan Termination Date for Certain Purposes; Guaranteed Benefits; Allocation of Plan Assets; Pension Protection Act of 2006

Recently, the Pension Benefit Guaranty Corporation issued in the Federal Register a proposed rule to implement section 404 of the Pension Protection Act of 2006. Section 404 amended Title IV of ERISA  to provide that when an underfunded, PBGC-covered, single-employer pension plan terminates while its contributing sponsor is in bankruptcy, sections 4022 and 4044(a)(3) of ERISA are to be applied by treating the date the sponsor's bankruptcy petition was filed as the termination date of the plan. Section 4022 determines which benefits are guaranteed by PBGC, and section 4044(a)(3) determines which benefits are entitled to priority in "priority category 3'' in the statutory hierarchy for allocating the assets of a terminated plan.
Thus, under the 2006 amendments, when a plan terminates while the sponsor is in bankruptcy, the amount of benefits guaranteed by PBGC and the amount of benefits in priority category 3 are fixed at the date of the bankruptcy filing rather than at the plan termination date. This will, in most cases, reduce the amount of guaranteed benefits and the amount of benefits in priority category 3.
The PBGC is accepting comments on the proposal and comments must be submitted on or before September 2, 2008.

Editor's Note:  David P. Goch, Esq., is the CLLA Washington Legislative Counsel.

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CRS Promotion and Marketing Committee

By Nicholas D. Krawec, Esq.

Well summer is passing by quickly; perhaps too quickly. Before we know it the New York meeting will be upon us. As you may recall, in Chicago, we had a Creditors' Rights display at the CLLA booth in the exhibit room, with a lap top computer displaying the CRS website. We showed off our on-line directory, and that even attracted a few members to join. As I recall, the most successful recruiters were Blake Morris and Matt Burkinshaw. Kudos to you gentlemen for your efforts on behalf of the CRS. Also, my thanks to all of those who agreed to staff the CRS display and stood watch over the (my) laptop. Your unselfish help did not go unnoticed or unappreciated. Chances are very good that we will have a similar display in New York. Once again, I will be seeking volunteers to staff the display and to pitch membership in the Creditors' Rights Section to those who stop by our display.

Also, we have a new member of the Promotion and Marketing Committee, in addition to Marc Bressler, Jay Scheinfield and myself, Eva Engelhart of Ross, Banks, May, Cron & Cavin, P.C., in Houston, TX, has joined our ranks. Welcome, Eva! We are now up to four members on the committee. We can always use more help. If you are interested in helping to promote and market the Creditors' Rights Section, or staffing the CLLA booth's CRS display in New York, please contact me by email at nkrawec@bernsteinlaw.com.

Editor's Note: Nicholas D. Krawec, Esquire is a partner in Bernstein Law Firm, P.C., where he specializes in creditors' rights and collection law, and commercial litigation throughout Pennsylvania. He is Board Certified as a Creditors' Rights Specialist by the American Board of Certification. In addition to chairing the CRS Promotion and Marketing Committee, he is Secretary of the Creditors' Rights Section.

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Why are you a CRS Member?

The objectives of the Creditors' Rights Section are:

  • To assist the CLLA in promoting the highest standards of integrity, honesty and performance among its various constituencies.
  • To advance the interests of creditors' rights in all proposed state and federal legislation.
  • To assist the business community in the preservation and advancement of its ethical standards, legal rights and interests.
  • To support the judicial process in securing fairness and uniformity.
  • To benefit the legal community by promoting elevated standards of integrity, honesty and competence in the practice of law through continuing legal education.

Why Do Creditors Retain Members of the Creditors' Rights Section?

  • Our members are comprised of competent attorneys whose practices are concentrated in the field of creditors' rights and who are involved with networks of peers dedicated to promoting high standards and excellence in service to their clients.
  • Our members are involved in the creation and dissemination of current changes in legislation and case law on a regional and national level.
  • Our members engage in continuing legal education in the areas of creditors' rights and bankruptcy.
  • Many of our members have achieved certification as a Creditors' Rights Specialist from the American Board of Certification (recognized by the ABA ).
  • Our members enjoy recognition for high professional standards from both the business and legal communities.

As stated at www.clla.org.

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Letters to the Editor:

Letters or comments can be sent to LVogel@salonmarrow.com or  brendam@kohnlaw.com.   In case you haven't received the word, The Free Press has instituted a "Letters to the Editor" column. If you don't want to take time out of your busy schedule to do research for a scholarly article, if you have a suggestion, recommendation, or constructive criticism to direct to the Section leadership or the Free Press editorial board, or if you just want to "vent" (in a non-abusive manner, of course), you  now have a forum. You can submit a letter any time it suits your fancy, and you need not wait until just prior to the publication of an edition of the Free Press. Submissions will be kept on file for future publication.

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Education Committee Report

By Matthew J. Burkinshaw, Esq. and Lorna Walker, Esq.

The Education Committee is very pleased with the education programs that are planned for the 88th Annual New York Meeting November 13-16, 2008.  This year the CRS will be sponsoring several programs.  Our featured program will be a trial advocacy workshop entitled Reel Justice! Power Passion & Persuasion in the 21st Century, presented by Dominic J. Gianna of Middleberg, of Riddle & Gianna in New Orleans, LA.  Mr. Gianna is an extraordinary seminar leader, long recognized as one of the foremost experts in advocacy training in North America.  He serves as Director of Trial Advocacy at Louisiana State University School of Law and has been recognized with the Hon. Robert Keeton Award from the National Institute for Trial Advocacy (NITA) as the most outstanding teacher of trial advocacy in the United States.  

The CRS will also sponsor a program presented by Beau Hays of Hays & Potter in Atlanta, GA on Bankruptcy Basics for Collection Attorneys.   A program on International Collections will be presented by Steve Frieze of Brooke North in London, England and David Franklin of Franklin & Franklin in Montreal, Quebec focusing on collection of debts on behalf of foreign clients in the US and the collection of debts in other countries on behalf of US clients.  Steven Gutter of Steven J. Gutter P.A. in Boca Raton FL will present a program entitled Fraud/Piercing the Corporate Veil: Debt Imputation to Debtor Insiders and Successors, or, Collecting from the Dead.

Finally, the CRS will co-sponsor a panel discussion on Receiverships presented by Bill Brandt and Kyle Everett of Development Specialists, Inc. in Chicago, IL, Joe Marino of Marino & Mayers, LLC in Clifton, NJ and Rick Mikels of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo PC in Boston, MA.

We are in the planning stages right now for programs for the spring of 2009 for Chicago.  As always, the Committee welcomes input on past, present and future education programs from all CRS members. We encourage you to approach us with an idea for a program or to volunteer to speak at an upcoming convention.  Speaking at a convention is a great way to raise your profile in the League which can in turn lead to more business for you and your firm.  Please feel free to contact one of us with your ideas.

Editor's Note:  Lorna Walker, Esquire and Matthew J.Burkinshaw are Co-chairs of the CRS Education Committee.  Matthew Burkinshaw, Esq. serves on the Executive Council of the CRS and Co-Chairs the Education Committee.  He is the principal attorney of Burkinshaw Law Offices, P.C. in Milford, MA.  The firm concentrates in handling commercial and retail collection matters throughout Massachusetts.  Lorna Walker, Esq. is a principal in the firm of  Sweet & Walker in San Francisco, CA, specializing in commercial collection.  The firm handles all collection matters, including insurance premiums collections, trucking claims, etc.  Lorna has been practicing for 15 years and has specialized in collections litigation for the last 13 years. 

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PRACTICE GROUPS – New Connections

By:  Rick Johanson, Esq.

The Section recently established a number of Practice Groups to encourage members who are interested in particular areas of commercial law to interact.  Each group will ultimately determine the nature and extent of its activity.  We expect communication to be primarily via e-mail but conference calls or gatherings at CLLA meetings are possible.

We hope that you will want to join one or more groups to bring new ideas and energy.  The groups may provide a basis for referral of work, to share knowledge of state laws and as a vehicle to establish new contacts.  Their success depends on the members

At present there are nine (9) groups:

  1. CLLA CRS Construction Law Practice Group
  2. CLLA CRS Foreclosure Practice Group
  3. CLLA CRS Insurance Practice Group
  4. CLLA CRS Landlord Tenant Practice Group
  5. CLLA CRS Leasing Practice Group
  6. CLLA CRS Medical Claim Practice Group
  7. CLLA CRS Retail Practice Group
  8. CLLA CRS Subrogation Practice Group
  9. CLLA CRS Transportation Practice Group

I am acting as the initial coordinator for each of the groups.  You can join one or more of them by e-mailing me at rjohanson@ehjlaw.com.

Get involved – get connected.  The CLLA is THE NETWORK for Commercial Law.

Editors Note:  Rick Johanson is a partner in Engel, Hairston & Johanson, P.C. in Birmingham, AL.

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Newsletter Committee Report

This newsletter is circulated three times per year electronically in the Spring, Summer and Fall (and via fax for those not online).  Members are encouraged to submit articles of interest or letters to the editor for inclusion along with a short bio for publication.  The annual Best Feature Article award is noted elsewhere in this issue.  The award and gift will be presented at the CRS meeting in New York.   Current co-editors are Liviu Vogel, Esq., Salon Marrow Dyckman Newman & Broudy LLP, New York, NY  and Brenda Majewski, Administrator, Kohn Law Firm S.C., Milwaukee WI. 

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Creditors' Rights Section seeks candidates for positions on the Executive Council.

The Creditors' Rights Section elections will be held in New York at the CRS General Membership Meeting on November 15, 2008. We are seeking candidates for the position of Secretary (an Officer's position) and four positions on the Executive Council.  The Secretary serves a one year term and the Council members serve three year terms on the Executive Council. We want and need your involvement. This is your opportunity to make a difference in this very important section of the League.

Please submit the form to Beau Hays by August 25, 2008 if you are interested in running for any of the open positions.

Contact information:

Beau Hays,
Hays & Potter, PC, 3310 Henderson Mill Road; Suite 203; Atlanta, GA 30341

Phone: 770-934-8858   
Fax: 770-934-8932

Email: beau@haysandpotter.com

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Future Leaders?

In the tradition of the CLLA's summer convention, a gathering of young ladies and gentlemen (not yet members) was had at my home in Weston, Connecticut.  Every region of the league was represented except the Mid-western.  Present were Brendan Nahmias (Western), Steven Johanson (Southern), Alexa Weiner (New England), and Gabrielle and Ryan Vogel (Eastern). A good time was had by all.

Regards,

Liviu Vogel, The Free Press Co-editor

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NOMINATIONS SOUGHT FOR 2009 AWARD OF EXCELLENCE

The Creditors' Rights Section of the Commercial Law League of America is seeking nominations for its Award of Excellence, which was established to recognize outstanding contributions in the field of law affecting creditors' rights. The first recipient of this award, in 2005, was Professor James J. White who, along with Robert Summers, published the most widely recognized treatise regarding the Uniform Commercial Code. The recipient must be a lawyer, legislator, professor of law, or judge, whose work has substantially and positively made an impact on creditors' rights. The recipient will be selected for presentation of the Award at the Annual Meeting of the League held in Chicago in May, 2009. Nomination forms are available at www.clla.org.

Calendar of Events

August 6 - 9, 2008
Leadership and Strategic Planning meeting and training

September 19, 2008
Western Region one day meeting

November 13 - 16, 2008
New York Eastern District Meeting:  Sheraton New York Hotel and Towers

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