Wrap up from Amelia Island NACBA Workshop
Anytime you spend time rubbing shoulders with other committed bankruptcy lawyers, you learn something.
Some learning occurs in the presentations. Some on the other hand is the product of what my fellow Californian Jay Fleischman calls hallway magic.
Share, trade, question, complain to other bankruptcy attorneys in the conference hallways, and you end up seeing new issues, new approaches, and new opportunities.
Nuggets from the workshop
I spent a lot of time speaking at Amelia Island, so I missed the chance to sit in on programs I wanted to catch. It will be the recordings for me, I guess.
Here’s my big three from the programs I did make:
Intentions are important
In Blixseth , the debtor’s failure to file a statement of intentions deprived the estate of property with substantial equity. There were two failures involved: the debtor failed to file a statement of intentions, and the trustee failed to file a motion to determine that the collateral had value to the estate.
The result was that the stay was lifted as to the collateral and the property was removed from the estate.
I have always understood that relief from stay lifted the injunctions but didn’t remove property from the estate. Thus a foreclosure sale after relief from stay but without abandonment resulted in the tax consequences of the sale falling to the estate.
Got to read this case closely on this issue. Henry Sommer in the Case Update suggested that an opportunity for the debtor might exist where the secured creditor is friendly to the debtor . What if governing, non bankruptcy law might entitle the debtor to any surplus upon sale?
Tickling the truth from the debtor
Getting our clients to let down their hair and tell us the whole story is always a challenge. Elaine Dowling‘s presentation on the Statement of Financial Affairs had some real treasures on extracting information about gambling history from clients.
Ask a client straight up about gambling, and they are reluctant to admit losses. Her approach was to start the questions small, subtle, and innocuous: have you bought a lottery ticket recently? Much less resistance to admitting to buying a $2 scratcher than to casino gambling.
Ask if they visit the track or the casino. About how often do you go? How much money do you take? How much do you generally bring home?
Coming at a situation that your client may see as sinful or shameful in small steps may allow you to get the story.
Elaine pointed out that gambling winnings belong in question 2 on the SOFA; and losses later on. She felt that the two should not be netted out for reporting on the SOFA.
Precious little privilege
For me, the big kahuna concerned attorney client privilege. Judge Thomas Waldron pointed out that no privilege exists when information is communicated for the purpose of publishing the information publicly.
Thus consider that questionnaires prepared by clients in connection with a bankruptcy filing may be discoverable. Even oral conversations may not be protected.
How often is a client’s furtive question to you start, “this is confidential, isn’t it?” My blythe assurances that it is protected may have been overstated.
If you didn’t make it to Amelia Island, don’t miss the convention in San Diego in April, and the next workshop in New Orleans.
If you were in Amelia Island, what was the most compelling thing you learned?
If you missed out on the latest on marketing a bankruptcy practice, join Jay and I in Los Angeles December 8 for the Essential Online Marketing Toolkit. One day full of immediately useable info on websites, seo, and content creation.
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