NBS Ledger: v02 i01

VO

L. 2, IS

SU

E 1

A NATIONAL BANKRUPTCY SERVICES PUBLICATION

The anti-cram down question

Role of the US Trustee’s Office

in bankruptcy

IF YOU ARE A CREDITOR, YOUR RIGHTS MAY BE IMPAIRED BY THIS PLAN

DANGER AHEAD

Close monitoring of all your case developments via one of the most technologically advanced Bankruptcy Loss Mitigation and Servicing systems in the nation allows up-to-the-minute information on the status of a specifi c case or your entire portfolio. Valuable time is saved and losses associated with delays in case resolution are avoided. It’s one more way we’re staying ahead of the game. Call today to fi nd out more.

NATIONAL BANKRUPTCY SERVICES

9441 LBJ Freeway, Suite 250 Dallas, TX 75243 1-800-766-7751

NBSdefaultservices.com

RESIDENTIAL MORTGAGE LENDERS AUTOMOBILE FINANCE COMPANIES BANKS, CREDIT UNIONS, & FINANCIAL INSTITUTIONS CONSUMER LENDING ORGANIZATIONS PORTFOLIO SERVICERS, OWNERS & INVESTORS

SO CHOOSE THE COMPANY WITH ONE OF THE MOST ADVANCED MANAGEMENT SYSTEMS TO KEEP ALL THE PIECES IN PLACE.

NB

S. H

AN

DL

ING

BA

NK

RU

PTC

Y C

AS

ES

SIN

CE

19

87.

DA

TA

ISS

UE

SPA

GE

1F

OC

US

WWW.NBSDEFAULTSERVICES.COM « VOL. 2, ISSUE 1

A NATIONAL BANKRUPTCY SERVICES PUBLICATION

IN THIS ISSUE

ISSUESA discussion of current trends

and issues in the world of bankruptcy and

bankruptcy servicing.

2

FOCUSInterviews with industry

professionals offering insight into servicing and

legal developments.

22

DATAInformation aggregated from

authoritative data sources detailing bankruptcy filing statistics around the nation.

16

TABLE OF CONTENTSDOWNWARD SLOPE » The anti-cram down question 2

DANGER AHEAD » If you are a creditor, your rights may be impaired by this plan 8

THE WATCHDOG » Role of the US Trustee’s Office in bankruptcy cases 14

BY THE NUMBERS » Taking a look at the state of bankruptcy 16

CASE STUDY » Affidavits: A creditor’s public face to the courts 22

HOT SEAT: LANCE VANER LINDEN » The client’s view of effective default servicing 23

Lance Vander Linden, Chairman [email protected]

Paul Bourke, CEO [email protected]

Larry Buckley, EVP of Business Development [email protected]

Brad Cloud, COO [email protected]

The Ledger is a National Bankruptcy Services publication. © 2010 National Bankruptcy Services • All Rights Reserved

9441 LBJ FREEWAY, SUITE 250 • DALLAS, TX 75243

Contributing Writers Hilary Bonial, Jennifer Brown, Larry Buckley, Adam Moore, Vin Shortess

Magazine Design The LTV Group, TheLTVgroup.com

THE LEDGER » WWW.NBSDEFAULTSERVICES.COM

PA

GE

2

11 U.S.C § 506(A)(1) sets forth that a creditor secured by a lien on property is a secured claim to the extent of the value of the creditor’s interest, and is an unsecured claim to the extent that the value of the creditor’s interest is less than the amount of the allowed claim.

In other words, in a Chapter 13 bankruptcy, a creditor has a secured claim up to the value1 of the collateral and any amount that exceeds the value of the collateral is treated as an unsecured claim. This treatment is often referred to as a “cramdown.” A cramdown is common on motor vehicle loans because they are often worth less than what the debtor owes, especially when negative equity from a trade-in vehicle is in-cluded in a new car loan.

The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) added an important paragraph to 11 U.S.C. § 1325, often referred to as the “hanging paragraph,”2 containing an exception to the use of §506 in a Chapter 13. In essence, the hang-ing paragraph states that §506 does not apply to a claim in two particular instances. The first instance occurs if the creditor has

a purchase money security interest securing the debt that is the subject of the claim, the debt was incurred within the 910-days preceding the date of the filing of the petition, and the collateral for the debt consists of a motor vehicle and was acquired for the personal use of the debtor.

The second circumstance arises when the collateral for that debt consists of any other thing of value, and if the debt was in-curred during the 1-year period preceding the filing. If a secured creditor’s claim meets these conditions set forth above, the debtor is required to pay the claim in full regardless of value, and the claim cannot be crammed down. Determining whether a secured creditor’s claim meets the requirements set forth in the hanging paragraph becomes a significant task.

As to the two circumstances listed in the hanging paragraph, we will save the discussion surrounding the second instance of collateral consisting of “other thing[s] of value” incurred within the 1-year prior to filing for another day. The focus of this article will be on the first half of the hanging paragraph, which is often referred to as the “910-day rule.”

BY JENNIFER H. BROWN

THE ANTI-CRAM DOWN QUESTIONCREDITORS ARE LEFT IN THE SHADOWS AS TO WHETHER THEIR LOANS WILL QUALIFY FOR THE 910-DAY RULE

[ turn the page ]

PA

GE

3


DA

TA

ISS

UE

SF

OC

US

GO

ING

DO

WN

? »

BY

JE

NN

IFE

R H

. BR

OW

N

Although the requirements seem rather straight forward, the 910-day rule has been the topic of a great deal of contested litiga-tion. Of the four requirements to the 910-day rule, the least litigat-ed requirement is that the debt must have been incurred within 910 days prior to the filing of the petition.

This rule is relatively straightforward, and it is safe to say that it either is 910 days old or it isn’t. Similarly, it seems fairly clear-cut if the collateral for the debt was for a motor vehicle. Generally, if it has wheels and an engine, it is a motor vehicle.

Another seemingly straightforward requirement to the 910-day rule is the concept that the motor vehicle must have been purchased for the personal use of the debtor, however this no-tion has been the topic of some case law. Questions arise such as, “If I drive my vehicle to and from work, is it for personal use?” and “I bought the vehicle for my daughter to drive, is that consid-ered personal use?”

Another issue arises when vehicles are used for both business and personal use. The majority of courts hold that it is the debtor’s burden to establish that a vehicle has been acquired solely for busi-

ness purposes, so as to make the hanging paragraph inapplicable.3 Similarly, many courts have found that if the personal use of

the debtor is significant and material, regardless of whether there is also some business use, the personal use requirement of the hanging paragraph has been met.4

The last, and most heavily litigated requirement to the 910-day rule, is whether a creditor has a purchase money security interest (PMSI) securing the debt that is the subject of the claim. This subject has been the topic of countless amounts of case law, and has reached almost every Circuit Court to decide the issue on the merits.

PMSI is not a term defined by the bankruptcy code, so courts are often required to look to applicable state law to determine whether a secured transaction is a PMSI. As many states have adopted the Uniform Commercial Code (UCC), it is important to note the UCC’s definition.

Under the UCC, PMSI is a security interest in goods that are collateral for an obligation that arises in connection with the sale of the goods to the debtor.5 A PMSI is generally a two party


PA

GE

4

transaction: the seller of the goods retains a security interest for the purchase price. Third party lenders can also hold a PMSI in a consumer good.

This takes place when the lender advances a purchase-mon-ey obligation, which is an obligation “incurred as all or part of the price of the collateral or for value given to enable the debtor to acquire rights in or the use of the collateral if the value is in fact so used.”6

The “value given” aspect of the definition is intended to make clear that the obligation can be to a finance company, rather than to a seller.7 But what happens to the PMSI status when there is negative equity rolled into the loan? Is negative equity “part of the price” or does it “enable the debtor to acquire rights”?

These questions have prompted much of the recent litigation that has taken place as to whether negative equity can be included in the definition of PMSI for the purpose of using the 910-day rule to avoid the loan being crammed down.

Courts across the country have disagreed on the issue, and out of the litigation three different schools of thought have emerged.

These theories set forth: (1) a PMSI secures the negative equity, (2) the “transformation rule”, and (3) the “dual-status rule.”

In very good news for creditors, the majority of courts hold that negative equity can be part of a PMSI, and therefore is not subject to the cramdown provision in a Chapter 13 bankruptcy.8

The United States Court of Appeals for the Seventh Circuit stated in the case, In re Howard,

[W]rapping negative equity into the purchase money security interest is often necessary to enable the purchase of the car, given the impediment to financing car purchase that Chapter 13’s cram-down provision would otherwise create. That necessity—which is underscored by the fact that in almost 40 percent of all car sales the consideration includes a trade-in with negative equity—is the justification for allowing the creditor to enlarge his secured interest to the prejudice of the debtor’s other creditors…. So on the one hand purchase money security interest, because they are limited to new-ly acquired assets of the debtor, need not be narrowly limited in order to protect creditors, and on the other hand allowing the pur-

[ turn the page ]

PA

GE

5


DA

TA

ISS

UE

SF

OC

US

GO

ING

DO

WN

? »

BY

JE

NN

IFE

R H

. BR

OW

N

chase money security interest to include negative equity—a per-mission that does no violence to the language of Article 9, though neither is it compelled by it—may be essential to the flourishing of the important market that consists of the sale of cars on credit.

The next rule regarding the purchase-money status of nega-tive equity is the “transformation rule.” Under the transformation rule, a PMSI does not secure the negative equity, and the presence of a non-purchase money obligation transforms the entire con-tract into a non-purchase money debt.9

In other words, if negative equity is present in the loan, the PMSI requirement of the hanging paragraph is not met, and the loan can be entirely crammed down. Some bankruptcy courts have followed this rule, but no district or circuit courts have followed.

The Maine bankruptcy court narrowly interpreted the hang-ing paragraph believing that, “Congress included no language to signal its intent that the hanging paragraph encompass debt that is only partially secured by PMSI.” The Court went on to state,

“[T]he plain language of the hanging paragraph of section 1325(a) clearly and unambiguously calls for an all-or-nothing rule.”10

The last rule that has been applied by the courts is the so-called “dual status rule.” This rule states that claims shall be bifurcated into purchase-money and non-purchase money debts, and the hanging paragraph applies only to the purchase-money compo-nent of the claim. For example, if a debtor traded in their vehicle and had $5,000 in negative equity rolled into the loan, the $5,000 would be considered an unsecured claim, and the remaining amount would be the secured portion. The most recent court to apply the dual status rule was the United States Court of Appeals for the Ninth Circuit in the In re Penrod case.11 The court reasoned,

[T]here is a difference between “price” and “value given to enable.” Both sellers and third party lenders can obtain purchase money se-curity interests. A seller obtains a purchase money security interest through a dealer financed sale, where the merchandise goes out the door upon the credit of the buyer. Payment is to be made to the dealer. A purchase money security interest is only valid for the “price” of the

JENNIFER HARDWICKE BROWN is an attorney with Brice, Vander Linden & Wernick, P.C., and has managed the

consumer bankruptcy portfolio since January 2008. Jennifer’s responsibilities include protecting the interests of

various major banks, credit unions, leasing and automobile finance companies. She received her Juris Doctorate

from the University of Oklahoma College of Law, and has been licensed to practice law since 2007.

CLEARING THE PILEUP OF AUTO

BANKRUPTCY. CLEARING THE PILEUP OF AUTO

BANKRUPTCY.




Call today to see how NBS can accelerate recovery through precision auto loan bankruptcy management services.

NBS_0002_Auto_CAdvisor_Full_1110.indd 1 6/29/10 1:53 PM

PA

GE

7


DA

TA

ISS

UE

SF

OC

US

GO

ING

DO

WN

? »

BY

JE

NN

IFE

R H

. BR

OW

N

CLEARING THE PILEUP OF AUTO

BANKRUPTCY. CLEARING THE PILEUP OF AUTO

BANKRUPTCY.




Call today to see how NBS can accelerate recovery through precision auto loan bankruptcy management services.

NBS_0002_Auto_CAdvisor_Full_1110.indd 1 6/29/10 1:53 PM

merchandise. A lender such as a finance company, bank, or credit union obtains a purchase money security interest when it makes funds available to the purchaser to buy the merchandise. The money is provided to the borrower to make the purchase. That language is somewhat broader than “price” because the money has to be traced from the lender to the borrower to the seller. Broad language is em-ployed to encompass third party financing, not to expand the scope of purchase money security interests.12

It is problematic that the hanging paragraph has been so highly litigated. Courts have been left to reach their own conclu-sions as to the definitions set forth in the 910-day rule. Due to the lack of consistent case law, all parties have suffered. In particu-lar, Congress and the courts have left lenders, as well as debtors, scratching their heads as to how the bankruptcy courts will treat negative equity in Chapter 13 cases. However, it is a windfall for creditors that the majority of court rulings have allowed negative equity to be included in PMSI, so as to save the loan from being crammed down. Although, I’m sure this chapter is not yet closed.

NOTES1. How is the value defined? 11 U.S.C. § 506(a)(2) states, “If the debtor

is an individual in a case under chapter 7 or 13, such value with respect to personal property securing an allowed claim shall be determined based on the replacement value of such property as of the date of the filing of the petition without deduction for costs of sale or marketing. With respect to property acquired for personal, family, or household purposes, replacement value shall mean the price a retail merchant would charge for property of that kind considering the age and condition of the property at the time value is determined.” Obviously, the actual replacement value of a vehicle or other secured property can vary greatly depending on differing retail standards (e.g. NADA, Kelly Blue Book, etc.). Many courts and/or bankruptcy trustees have expressed their differing preferences for setting the valuation standard in their jurisdictions. This topic has been hotly debated, and some courts have developed their own means of determining value.

2. 11 U.S.C. § 1325(a)(9)* is referred to as the “hanging paragraph” because it was placed after subsection (9), however is not related to this subsection in any way. Rather, it appears to be related back to §1325(a)(5). Therefore, it is said to be “hanging” and is identified by an asterisk.

3. See In re Lowder, 2006 WL 1794737, citing Cypher Chiropractic Center v. Runski, 102 F.3d 744 (4th Cir. 1996).

4. In re Solis, 2006 WL 3298351 (Bankr. S.D. Tex., November 14, 2006).

5. U.C.C. § 9-103

6. Id. §9-103(a)(2).

7. In re Howard, 597 F.3d 852 (7th Cir. 2010).

8. See In re Peaslee, 585 F.3d 53 (2nd Cir. 2009); In re Price, 562 F.3d 618 (4th Cir. 2009); In re Dale, 2009 WL 2857998 (5th Cir. 2009); In re Westfall, 599 F.3d 498 (6th Cir. 2010); In re Howard, 597 F.3d 852 (7th Cir. 2010); In re Mierkowski, 2009 WL 2853586 (8th Cir. 2009); In re Ford, 574 F.3d 1279 (10th Cir. 2009); In re Graupner, 537 F.3d 1295 (11th Cir. 2008).

9. See In re Look, 383 B.R. 210 (Bankr. D. Me. 2008).

10. Id.

11. In re Penrod, 2010 WL 2794409 (9th Cir. 2010).

12. Id.


PA

GE

8

COVER STORY

BY VIN SHORTESS

IF YOU ARE A CREDITOR, YOUR RIGHTS MAY BE IMPAIRED BY THIS PLAN

[ turn the page ]

PA

GE

9


DA

TA

ISS

UE

SF

OC

US

DA

NG

ER

AH

EA

D »

BY

VIN

SH

OR

TE

SSDANGER

AHEAD


PA

GE

10

Bankruptcy is a legal procedure for dealing with debt problems of indi-

viduals and businesses. One of the primary purposes of bankruptcy is to give an honest debtor a financial “fresh start.” The fresh start is achieved by allowing the debtor to discharge (eliminate) their debts by follow-ing the procedure in the Bankruptcy Code.

Chapter 13 of the Bankruptcy Code provides for the adjustment of debts of an individual with regular income by permit-ting the debtor to repay all or a portion of their debts over a period of time specified in the plan.

A bankruptcy plan will result in a dis-charge of the debts listed in the plan if the debtor completes the payments that the plan requires.

As you may have guessed, not every plan will look the same. However, some bankruptcy court jurisdictions have creat-ed Model Plans that a debtor will file, much like a standardized form in which only the personal information changes. Of the 90+ bankruptcy court jurisdictions, 80 have model plans.

Of these model plans, 56 are mandatory, 17 are substantial compliance, and 7 are recommended. If the model plan the court provides is mandatory, the debtor must use the court-approved plan form.

For courts that require substantial com-pliance to the court-approved plan form, the debtor must submit a plan that is to a large extent similar to the form.

Keep in mind, the debtor may add dif-ferent charts or provisions as long as the majority of the plan he submits is the same as the substantial compliance form. If a court recommends a model plan, the debtor does not have to use the courts form at all.

The debtor may use the court’s form as a guide, but the debtor may also create his own plan, which can make them more dif-ficult to review. For the jurisdictions that have no model plan, the debtor’s plan can take any form, including one of the debt-or’s own creation.

A chapter 13 plan enables individuals with regular income to develop a plan to repay all or part of his or her debts. Under this chapter, the debtor proposes a repay-ment plan to the court to make install-ments to creditors over a period of three to five years.

Unless the court grants an extension, the chapter 13 debtor must file a repayment plan with the petition or within 14 days af-ter the petition is filed.

If the debtor’s current monthly in-come is less than the applicable state median, the plan will be for three years unless the court approves a longer period “for cause.” If the debtor’s current month-ly income is greater than the applicable state median, the plan generally must be for five years.

A chapter 13 plan must be submitted for court approval and must provide for payments of fixed amounts to the trustee on a regular basis, typically biweekly or monthly. The Trustee plays a significant role throughout the debtor’s entire bank-ruptcy process.

The plan is specifically designed to guide the trustee on how and when to re-pay the creditors. The trustee is respon-sible for reviewing the debtor’s proposed plan to make sure it is adequately funded in order to ensure that each creditor re-ceives payment through the plan, which may offer creditors less than full payment on their claims.

There are four types of claims: priority, administrative, secured, and unsecured. Priority claims are those granted special status by the bankruptcy law, such as most taxes and child support. Administrative claims are for the costs of preserving the bankruptcy estate – the debtor’s property and assets.

These expenses may include profes-sional fees (attorneys, accountants, etc.), taxes, court costs and other liabilities that arise during the bankruptcy. Secured claims are those for which the creditor has the right to take back certain property (i.e., the collateral) if the debtor does not pay the underlying debt.

In contrast to secured claims, unse-cured claims are generally those for which the creditor has no special rights to collect against particular property owned by the debtor.

The plan must pay priority claims in full unless a priority creditor agrees to dif-ferent treatment of the claim or, in the case of a domestic support obligation, unless the debtor contributes all “disposable in-come” to a five-year plan. After all priority claims are paid, the trustee will then pay out all administrative claims that are asso-ciated with the bankruptcy.

If the debtor wants to keep the collat-eral securing a particular claim, the plan must provide that the holder of the secured claim receive at least the value of the col-lateral. If the obligation underlying the se-cured claim was used to buy the collateral (e.g., a car loan), and the debt was incurred within certain time frames before the bankruptcy filing, the plan must provide for full payment of the debt, not just the value of the collateral (which may be less due to depreciation).

MELVIN “VIN” SHORTESS, JR. is an associate attorney at Brice, Vander Linden & Wernick, P.C. with a primary focus

on the Real Property bankruptcy portfolio. He is a graduate of Southern University Law Center and earned a LL.M.

Taxation at Southern Methodist University Dedman School of Law. He is licensed to practice in Louisiana and Texas.

[ turn the page ]

PA

GE

11


DA

TA

ISS

UE

SF

OC

US

DA

NG

ER

AH

EA

D »

BY

VIN

SH

OR

TE

SS

FOR THE JURISDICTIONS

THAT HAVE NO MODEL

PLAN, THE DEBTOR’S PLAN

CAN TAKE ANY FORM


PA

GE

12

Payments to certain secured creditors (i.e., the home mortgage lender) may be made over the original loan repayment schedule (which may be longer than the plan) so long as any arrearage is made up during the plan. Before the bankruptcy plan is approved, the creditor may be en-titled to adequate protection payments in order to protect the collateral from depre-ciation while the debtor still has it in his possession.

The plan need not pay unsecured claims in full as long as it provides that the debtor will pay all projected “disposable income” over an “applicable commitment period,” and as long as unsecured creditors receive at least as much under the plan as they would receive if the debtor’s assets were liquidated under chapter 7.

Because all creditors are typically treated equally under the plan, it becomes imperative for each creditor to determine how their loan is being treated. When a creditor disagrees with the way their claim is treated within the plan they may object in an attempt to block confirmation of the plan by the court.

A creditor may want to file an objection in several different situations and each creditor has different thresholds, which trigger a required objection.

In some jurisdictions, if the debtor’s proposed plan were confirmed before the creditor files an objection, the creditor would be barred from receiving any pay-ments underneath the plan. Therefore, objections play an important role in the chapter 13-bankruptcy process.

Typically, a creditor will want to file an objection if they are not listed in the debtor’s plan, situations where the arrear-ages listed in the plan are insufficient, and

if the debtor is cramming down their lien.An objection may be required in situ-

ations where the arrearages listed in the debtor’s proposed plan are less than the creditor’s arrearages listed in their proof of claim. Whether an objection is required depends on if the trustee pays per the debt-or’s plan or pays per the creditor’s proofs of claims.

If the trustee pays per plan, and the plan proposes to pay the creditor less than what is actually owed, the creditor must object to recover the full amount. If the trustee pays per proof of claim, and the plan pro-poses to pay the debtor less than what is actually owed, creditors need not object because the trustee will pay the creditors what they are owed.

When debtors cram-down a lien they propose reducing the principal amount of the secured claim to the fair market value of the collateral. A cram-down may be available where the value of the collateral, usually real estate or a vehicle, is worth less than the amount of the mortgage or vehicle loan.

The bankruptcy court has the power to reduce the amount of the debt secured by collateral to the actual value of the col-lateral. For example, if a vehicle is worth $10,000 but has a loan with a balance of $12,000, the court can cram-down the amount of the loan to the $10,000 value of the vehicle.

Cram-down is not available for a single family home that is the debtor’s principal residence. It is available for commercial real estate and multiple-family homes regardless whether the debtor resides at the property. Any claim amount that exceeds the collat-eral value will be treated as unsecured.

The bankruptcy judge must hold a con-

firmation hearing and decided whether the plan is feasible and meets the standards for confirmations set forth in the Bankruptcy Code. The confirmation hearing is held no later than 45 days after the meeting of cred-itors. (The meeting of creditors is required by section 341 of the Bankruptcy Code at which the debtor is questioned under oath by creditors, a trustee, examiner, or the U.S. trustee about his/her financial affairs.)

Creditors will receive 25 days notice of the hearing and may object to confirma-tion. When no objections to the plan are filed, the court may determine that the plan was proposed in good faith without receiving evidence on the issue.

If the court confirms the plan, the chap-ter 13 trustee will distribute funds received under the plan “as soon as is practicable.” If the court declines to confirm the plan, the debtor may file a modified plan. The debtor may also convert the case to a liquidation case under chapter 7.

If the court declines to confirm the plan or the modified plan and instead dismisses the case, the court may authorize the trust-ee to keep some funds for costs, but the trustee must return all remaining funds to the debtor, other than funds already dis-bursed or due to creditors.

Here at NBS, we have developed a sys-tem of classification for each plan that re-fers to the way a particular client loan is going to be treated in the bankruptcy.

Advising our clients of how their loan fits within the framework of a plan allows them to make an informed decision as to their next step in the process, including whether they should object to the confirma-tion of the plan by the court. By represent-ing you, we ensure that your rights and in-terests are fully protected and not impaired.

PA

GE

13


DA

TA

ISS

UE

SF

OC

US

DA

NG

ER

AH

EA

D »

BY

VIN

SH

OR

TE

SS

OBJECT IN AN ATTEMPT TO BLOCK

CONFIRMATION OF THE PLAN

BY THE COURT.


PA

GE

14

BY HILARY B. BONIAL

ROLE OF THE US TRUSTEE’S OFFICE IN BANKRUPTCY CASES

The Watchdog

IT SEEMS THAT EACH WEEK, there is a new story about the United States Trustee (“UST”) investigating the practices of a cred-itor. Whether it is affidavit execution, broker’s price opinion poli-cies, or standing issues, the inquiries from the UST’s office have greatly increased. If a secured creditor has not yet been contacted by the UST, they soon will be. Historically, the UST has been seen as a non-entity to most secured creditors, since their role – until recently – was seen as investigating Bankruptcy fraud committed by the Debtors. Beginning in late 2007, however, the UST began investigations and prosecutions as to secured creditor activities.

According to the US Trustee Program website (http://www.jus-tice.gov/ust/index.htm), the primary role of the U.S. Trustee Pro-gram is to serve as the “watchdog over the bankruptcy process.” As stated in the UST’s Mission Statement, “The USTP Mission is to promote integrity and efficiency in the nation’s bankruptcy sys-tem by enforcing bankruptcy laws, providing oversight of private trustees, and maintaining operational excellence.”

The United States Trustee’s Office is a division of the U.S. De-partment of Justice. Generally, the UST’s position in a bankruptcy case is to protect the public interest and trust in the Bankruptcy System. Bankruptcy Code §307 gives the UST broad authority, as they “…may raise and may appear and be heard on any issue in any case or proceeding…” While this does not give the Trustee an unconditional right to intervene, the courts have provided the UST with a great deal of latitude to investigate issues in particu-lar cases.1 The office of the US Trustee, permanently established

in 1986, is responsible for overseeing the administration of bank-ruptcy cases. The U.S. Attorney General appoints a US Trustee to each bankruptcy region. It is the job of the UST in some cases to appoint trustees, and in all cases to ensure that trustees admin-ister bankruptcy estates competently and honestly. U.S. trustees also monitor and report debtor and creditor abuse and fraud, and oversee their particular geographical regions, except for Alabama and North Carolina which are not part of the US Trustee Program. The main duties of the US Trustees are to supervise the Chapter 7 and Chapter 13 Trustees, but they also review debtor’s schedules and creditor’s claims to ensure compliance with the bankruptcy laws. It is the added emphasis on the review of creditor conduct in bankruptcy cases that has been making waves.

Historically, the UST has concentrated their efforts in inves-tigating bankruptcy fraud perpetrated by debtors and petition preparers, but the recent economic downturn and rise in foreclo-sures, coupled with political pressure has recentered the focus on mortgage servicers. The first major cases were the UST’s inves-tigation of Countrywide. At the time, the issue was centered on whether the pre-petition arrears had been overstated in the Proofs of Claim, and if the post-petition mortgage payments had been properly applied.

Since then the UST’s interest in creditor’s practices has only grown. On April 15, 2009, the UST issued a directive to every Chap-ter 13 Trustee to conduct a detailed review of mortgage proofs of claim. The directive set out multiple criteria for review:

PA

GE

15


DA

TA

ISS

UE

SF

OC

US

TH

E W

ATC

HD

OG

» B

Y H

ILA

RY

B. B

ON

IAL

HILARY B. BONIAL is In-House Counsel to NBS and Of Counsel to

BVW. She is certified by the American Board of Certification, and

the Louisiana Board of Specialization in Consumer Bankruptcy.

• Verify that all supporting documents to perfect a credi-

tor’s security interest are attached to the claim.

• Verify that all pre-petition fees, costs and charges are

itemized. A breakdown of all items would need to in-

clude any prior servicer advances, escrow advances, al-

lowed attorney fees and costs.

• Determine whether the flat fee for Chapter 13 plan re-

view and proof of claim (if included) are reasonable and

fair. An objection or “other action” will be taken if there

is a finding of unreasonableness or fairness.

• Verify that a proof of claim has been filed and, if not,

make sure that the lender’s claim is not paid.

• A case will be referred to the U.S. Trustee’s office if the

Chapter 13 concludes that the fees, costs or charges are

“material and improper.”

If a claim failed in one area, Chapter 13 Trustees were directed to object to the claim, and notify the UST of the underlying is-sue. During this time, the UST’s policing has expanded into letter inqueries from the UST’s office directly to the filer of the claim. Often, the letters request further information to establish the amount of the claim – copies of invoices, a breakdown of and his-tory of the escrow advance, etc.

The push for the UST to become more involved has mostly been from the political side of their office. The disclosure of the Execu-

tive Office of United States Trustees (EOUST) shows a greater por-tion of their budget being dedicated to combating “mortgage cred-itor bankruptcy fraud.” It is known, through conversation with several UST Trial Attorneys, that there is an active Committee on Mortgage Servicer Fraud that meets periodically in Washington DC. There has been no indication that 2011 will bring a reduction in the level of interest shown by the UST.

So far this year, the UST’s letter campaign has now evolved into the filing of Bankruptcy Rule 2004 Motions. These are essentially are motions which seek the court’s approval for formal discovery to take place in a particular case. In short, it is the UST’s formal request for a deposition of the servicer. The discovery has taken the form of Subpoena Duces Tecum (request for documents), and Subpoenas to take depositions of officers of the servicers.

Generally, the UST has been requesting documentation on a servicers proof of claim process, broker’s price opinion policies, payment application policies, and foreclosure invoicing policies. It is unclear if the UST is attempting to use this information to set a baseline for nationwide mortgage servicing during bankruptcy. One this is clear, however, the UST’s role as a watchdog over all aspects of the bankruptcy process is expanding.

NOTES1. See In re Washington Mfg. Co., 123 B.R. 272 (Bankr. M.D. Tenn. 1991); In re Clark,

927 F.2d 820 (1st Cir. 1990); In re Chadwick, No. 05-37014 (Bankr. S.D. Fla.)


PA

GE

16

DATA

> 7.5

4.5 – 6

6 – 7.5

3 – 4.5

< 3

D.C.

2011 STATE-BY-STATE FILINGS PER CAPITA

NATIONAL PER CAPITAL FILINGS3.95%

FILINGS PER CAPITA: TOP 10

StateFilings Per

CapitaPercent Change1

Nevada 7.69 -3.41

Georgia 7.10 -0.82

California 6.2 -0.71

Tennessee 6.19 -1.67

Alabama 5.47 -1.69

Michigan 5.23 -1.47

Illinois 5.02 -1.23

Utah 4.92 -1.53

Arizona 4.73 -1.58

Kentucky 4.57 -1.03

FILINGS PER CAPITA: BOTTOM 10

StateFilings Per

CapitaPercent Change1

Alaska 1.10 -0.48

District of Columbia 1.40 -0.74

South Dakota 1.45 -0.99

Vermont 1.51 -1.11

South Carolina 1.54 -0.50

North Dakota 1.71 -0.76

New York 1.78 -1.06

Wyoming 1.81 -0.98

Montana 1.92 -1.11

Iowa 1.95 -1.26

PER CAPITA FILINGS BASED ON ESTIMATED JULY 1, 2009 CENSUS; 1. PERCERNT CHANGE VS PREVIOUS YEAR

PA

GE

17


DA

TA

ISS

UE

SF

OC

US

STATE-BY-STATE TOTAL 2011 BANKRUPTCY FILINGSAND PERCENTAGES OF CHAPTER 7 VS. CHAPTER 13

State Cumulative 2011 Filings

Ratio of Chapter 7 Filings

Ratio of Chapter 13 Filings

Alabama 2,147 36% 64%Alaska 64 88% 13%Arizona 2,600 78% 22%

Arkansas 1,032 49% 51%California 19,091 72% 28%Colorado 1,813 77% 23%

Connecticut 624 88% 12%Delaware 331 68% 32%

District of Columbia 70 84% 16%Florida 6,827 73% 27%Georgia 5,815 44% 56%Hawaii 245 73% 28%Idaho 483 85% 15%

Illinois 5,398 73% 27%Indiana 2,288 65% 35%

Iowa 488 88% 12%Kansas 562 62% 38%

Kentucky 1,643 72% 28%Louisiana 1,169 30% 70%

Maine 216 78% 22%Maryland 1,855 76% 24%

Massachusetts 1,335 75% 25%Michigan 4,342 82% 18%

Minnesota 1,517 86% 14%Mississippi 1,005 53% 47%

Missouri 1,829 65% 35%Montana 156 70% 30%Nebraska 447 68% 32%

Nevada 1,693 73% 27%New Hampshire 350 73% 27%

New Jersey 2,800 79% 21%New Mexico 429 94% 6%

New York 2,906 80% 20%North Carolina 1,665 47% 53%North Dakota 92 90% 10%

Ohio 4,007 71% 29%Oklahoma 780 80% 20%

Oregon 1,186 73% 27%Pennsylvania 2,502 69% 31%Rhode Island 346 82% 18%

South Carolina 586 48% 52%South Dakota 98 87% 13%

Tennessee 3,246 45% 55%Texas 4,686 39% 61%Utah 1,141 58% 42%

Vermont 78 83% 17%Virginia 2,524 66% 34%

Washington 2,285 76% 24%West Virginia 364 88% 12%

Wisconsin 1,791 76% 24%Wyoming 82 85% 15%

Total States and DC 101,029 67% 33%

2011 year-to-date totals. Continue reading for visual representations of 2010 state-by-state filings.


PA

GE

18

STACKING UPTOTAL 2010 FILINGS BY STATE

NE

W M

EXI

CO

Tota

l Fili

ngs:

6,4

70NO

RTH

DA

KO

TATo

tal F

iling

s: 1

,595

MO

NTA

NA

Tota

l Fili

ngs:

2,9

49FLO

RID

ATo

tal F

iling

s: 1

10,3

04

AL

AS

KA

Tota

l Fili

ngs:

1,1

04

VIR

GIN

IATo

tal F

iling

s: 3

6,89

0

WA

SH

ING

TON

Tota

l Fili

ngs:

33,

890

PE

NN

SYL

VAN

IATo

tal F

iling

s: 3

8,58

1

IDA

HO

Tota

l Fili

ngs:

8,2

35

AL

AB

AM

ATo

tal F

iling

s: 3

3,72

7

MIS

SO

UR

ITo

tal F

iling

s: 3

2,47

1

KA

NS

AS

Tota

l Fili

ngs:

11,

058

CA

LIF

OR

NIA

Tota

l Fili

ngs:

255

,041

OH

IOTo

tal F

iling

s: 6

9,26

8

RH

OD

E I

SL

AN

DTo

tal F

iling

s: 5

,420

HA

WA

IITo

tal F

iling

s: 3

,959

TEXA

STo

tal F

iling

s: 5

7,32

5

MIS

SIS

SIP

PI

Tota

l Fili

ngs:

13,

934

DIS

TRIC

T O

F C

OLU

MB

IATo

tal F

iling

s: 1

,282

UTA

HTo

tal F

iling

s: 1

7,39

58

AR

IZO

NA

Tota

l Fili

ngs:

41,

589

WIS

CO

NS

INTo

tal F

iling

s: 2

9,99

0

GE

OR

GIA

Tota

l Fili

ngs:

77,

823

MA

SS

AC

HU

SE

TTS

Tota

l Fili

ngs:

23,

215

PA

GE

19


DA

TA

ISS

UE

SF

OC

US

DE

LA

WA

RE

Tota

l Fili

ngs:

4,2

29

ILL

INO

ISTo

tal F

iling

s: 8

0,66

3

OR

EG

ON

Tota

l Fili

ngs:

19,

779

VER

MO

NT

Tota

l Fili

ngs:

1,6

25

MIC

HIG

AN

Tota

l Fili

ngs:

66,

718

MA

INE

Tota

l Fili

ngs:

4,1

04

AR

KA

NS

AS

Tota

l Fili

ngs:

16,

117

NE

VED

ATo

tal F

iling

s: 2

9,33

6

IOW

ATo

tal F

iling

s: 9

,639

MA

RYL

AN

DTo

tal F

iling

s: 2

9,27

5

NE

W J

ER

SE

YTo

tal F

iling

s: 4

0,36

9

SO

UTH

CA

RO

LIN

ATo

tal F

iling

s: 9

,303

SO

UTH

DA

KO

TATo

tal F

iling

s: 1

,982

CO

NN

EC

TIC

UT

Tota

l Fili

ngs:

11,

396

IND

IAN

ATo

tal F

iling

s: 4

5,68

1

KE

NTU

CK

YTo

tal F

iling

s: 2

4,15

5

NE

BR

AS

KA

Tota

l Fili

ngs

7,65

9

NO

RTH

CA

RO

LIN

ATo

tal F

iling

s: 2

6,22

7

CO

LOR

AD

OTo

tal F

iling

s: 3

2,52

3

NE

W H

AM

PS

HIR

ETo

tal F

iling

s: 5

,507

LOU

SIA

NA

Tota

l Fili

ngs:

18,

934

WE

ST

VIR

GIN

IA

Tota

l Fili

ngs:

6,0

35

WYO

MIN

GTo

tal F

iling

s: 1

,516

NE

W Y

OR

KTo

tal F

iling

s: 5

5,59

6

OK

LA

HO

MA

Tota

l Fili

ngs:

14,

486TE

NN

ES

SE

ETo

tal F

iling

s: 4

9,47

5

MIN

NE

SO

TATo

tal F

iling

s: 2

2,07

4


PA

GE

20

DOT DATA2010 PER CAPITA FILINGS BY STATE

ALAZ GA

ID

KY MI

FLIL

IN

CT

HI

KS

MSNE

OR

PA

TX

MTMA

MN

LAMD

IA

AR

DE

PA

GE

21


DA

TA

ISS

UE

SF

OC

US

CA

CO

NH

OH

TN

RIUT

VAWA

WI

WV

NJ

OK

SD

VT

WY

SC

ME

NM

NY

NC

ND

MO

DC

AK

NV


PA

GE

22

CASE STUDY

AFFIDAVITSA CREDITOR’S PUBLIC FACE TO THE COURTS

An affidavit is the most common instrument for litigation in bankruptcy courts. More importantly, it has become the

public face of creditors to an increasingly adverse and scrutiniz-ing audience. Because creditors’ representatives rarely appear as witnesses in bankruptcy court on routine matters, these creditors’ sworn declarations are often the only statements that courts and other parties see in typical bankruptcy litigation.

As borrowers continue to file for bankruptcy in record setting numbers and the climate for creditors continues to suffer, the af-fidavit offers the creditor the ability to restore its image while at the same time advancing its interests in a case.

The simple origin of the word affidavit means to “swear upon an oath” and is a voluntary declaration of facts written down and sworn to by the declarant before an officer authorized to admin-ister oaths, most often a notary public. Affidavits allow an indi-vidual or entity to present evidence that carries more weight than a simple statement of facts. By swearing under oath, the statement rises above that of a simple statement to one that becomes admis-sible before a court of law. It is the “fid” in affidavit that means to trust, the root of the word fidelity.

Courts view the statements in an affidavit with more credibil-ity because the executor has sworn to the statements under oath, thus allowing receiving parties to trust its contents. Given that the affidavit is by far the most common, and the first look a bor-rower, court or opposing counsel sees of a creditor in litigation, it can serve as the easiest initial step a creditor can take in begin-ning to earn the trust, which creditors appear to have lost in the eyes of many courts and borrowers.

Before discussing how to make affidavits better, it is impor-tant to understand how and why affidavits are used in the first place. Affidavits act as an instrument to admit facts into evidence. A court relies on this presentation of evidence, along with evi-dence presented by the borrower or Trustee, to render a decision: one that protects the interests of the creditor, while attempting to reorganize the bankrupt borrower. These facts include, but are

not limited to, statements as to the details of the note and deed of trust, statements regarding subsequent assignments and trans-fers in the security interests, details regarding the payment his-tory that explains any delinquency and an explanation as to the equity in the property.

Affidavits are not always the same: both form and substance differ across jurisdiction. While not every jurisdiction requires the use of an affidavit in typical stay relief proceedings, those that do are not uniform on their requirements. Several jurisdictions have promulgated form affidavits for use by creditors. Califor-nia, for example, has promulgated its Real Property Declaration F 4001-1 M.RP.

In this document, the Court guides the creditor item by item, offering the affiant a set of choices and fill-in-the-blank opportu-nities enabling them to claim the relevant statements needed to establish the basis for relief from the automatic stay. It is impor-tant to understand the various jurisdictional requirements when reviewing and executing affidavits.

There are currently close to two hundred bankruptcy judges in 94 federal districts; couple those numbers with the fact that over a million and a half individuals filed for bankruptcy in 2010; and, it would be impossible for creditors to present live witness testi-mony in every motion, objection or adversary regarding their in-terests. Affidavits offer creditors an efficient means of presenting evidence before the court.

While an affidavit’s efficiency allows creditors the benefit of developing processes that enable them to timely review and exe-cute documents, it also presents the potential appearance of mass, robotic execution. The following are ways in which creditors can fine tune their affidavits, thereby avoiding the stigma of “robo-signing.”

ACCURACYThe vast majority of creditors strive to maintain their borrow-

ers’ accounts accurately and fairly; borrowers, in turn, strive to

BY ADAM R. MOORE

PA

GE

23


DA

TA

ISS

UE

SF

OC

US

AF

FID

AV

ITS »

BY

AD

AM

R. M

OO

RE

make their payments and simply wish to rise above the stain of de-linquency. Accurate figures provide creditors the opportunity to explain their position and need for relief in bankruptcy, but they also allow the borrowers the transparency necessary to gauge the status of their account. Accuracy of affidavits is the most visible, and the easiest to correct, issue with the drafting and submitting of affidavits.

For example, when an affidavit accompanies a Motion for Re-lief from the Automatic Stay, the story is a common one: a bor-rower debtor falls behind in post-petition payments, the creditor moves forward with a Motion for Relief and submits an affidavit that details the payment arrearage.

The creditor believes the borrower debtor to be delinquent in payments; the borrower believes their account to be current, or at least not as delinquent as the creditor believes. It is the detailed affidavit, the sworn statement of fact, that allows the creditor the ability to reliably present evidence detailing the de-linquency that serves as a basis on which litigation proceeds or a decision is rendered.

If the information in the affidavit is incorrect, it only hampers the ability to resolve the issue and undercuts the credibility of the moving creditor. Accurate payment information is of the utmost importance in the affidavit.

COMPETENT WITNESSThe news of the day continually focuses on the infamous

“robo-signer”: the allegation that individuals who execute docu-ments do so without even a cursory review of those documents. Stories of individuals executing hundreds of documents a day fill the news and seriously undermine the reputation and trust credi-tors possess in the eyes of the courts and borrowers.

While the basis and extent of these allegations can be debated elsewhere, the affidavit provides creditors a medium to showcase their competency.

It is vital that creditors ensure that the individuals who review

and execute affidavits in bankruptcy are fully aware of the mean-ing and substance of the facts contained in these sworn state-ments. These affiants must stand ready to be able to testify in open court as to the statements sworn to in an affidavit.

A good rule of thumb is that if an individual would not be able to testify in open court to the contents of the affidavit, then they are probably not the right person to be reviewing and executing the affidavit.

There has been recent discussions regarding the “custodian” language contained in affidavits. Often an affidavit will state that the creditor is the “custodian of records” and this legal term of art is used to qualify an individual’s ability to sign an affidavit and present the statements into evidence.

In mortgage default litigation, it is important to understand that this does not mean that the signer has physical possession of the note or deed of trust, but rather it is someone who has knowl-edge of the regular business practices of the entity on whose behalf they are signing. Custodian in the mortgage world often refers to the entity that is actually the holder or owner of the phys-ical loan documents.

The affiant is not stating they have physical possession of the loan documents when identifying themselves as the custodian, but rather that the information within the affidavit is accurate based upon a review of the records of regularly conducted activi-ties, that the notations were made at or near the time the events occurred, and entered by a person with direct knowledge of those facts.

CONCLUSIONAffidavits are a daily feature in default servicing. But where

there is a challenge, there is an opportunity: by providing accu-rate information by competent signers who understand the mean-ing and substance of affidavits, creditors will take a solid first step to restore their reputation as responsible and reliable participants in bankruptcy.

ADAM R. MOORE is an associate attorney at Brice, Vander Linden & Wernick, P.C. with a primary focus on

the Real Property bankruptcy portfolio. He is a graduate of the University of Texas at Austin and Southern

Methodist University Dedman School of Law.


DA

TA

ISS

UE

SPA

GE

24

FO

CU

SU

P C

LO

SE

WIT

H L

AN

CE

VA

ND

ER

LIN

DE

N »

BY

LA

RR

Y B

UC

KL

EY

HOT SEAT

THE LEDGER: What first led you to the prac-tice of creditor’s rights and bankruptcy?

LANCE VANDER LINDEN: I graduated from Drake University School of Law in 1982 and I had a friend from Iowa living in Dallas who en-couraged me to come to Texas. I was fortunate to land a job with Riddle & Brown, a prominent firm specializing in lender representation in-cluding litigation and transactional work. The firm’s practice evolved to include representing creditors in bankruptcy cases. Bill Brice and Mike Riddle were close friends and legal col-leagues who eventually formed the Brice-Riddle Group. I was lucky to come under the guidance and mentorship of Bill Brice, one of the finest trial lawyers in Dallas. Mr. Brice had a vision of building a bankruptcy servicing system that emphasized debtor performance and reporting by using technology and trained bankruptcy specialists. He asked me if I was interested in helping build and execute his vision. I said yes, and the rest is history.

L: A lot people might look at bankruptcy as something a bit on the dry side. What stoked your career-long interest?

LVL: Bill Brice was one of those people who believed that anything worth doing was worth doing right and doing it with passion. He told me early on that if I was interested in working with him I had to dive in head first. Mr. Brice believed in a lot of the same principles instilled in me by my father. The belief that hard work, taking things seriously, but not taking yourself too seriously was implanted in me early on and reinforced by Mr. Brice. Bankruptcy was and is complex. I saw that bankruptcy law incorporat-ed lots of interesting legal principles that were challenging and that also impacted businesses and consumers in many ways. Building our firm was very entrepreneurial which made our niche in the bankruptcy world enjoyable.

L: What accomplishments are you most proud of during your years at Brice and NBS?

LVL: My greatest pride has been in helping grow our firm into an industry leader that em-ploys hundreds of people who have embraced a

culture based on client service and excellence. We like to believe we have a set of values and principles that make a difference in the lives of our employees and our clients.

L: What are some challenges facing NBS today?

LVL: Because of the complexity embedded in the bankruptcy process and the increasing demands for information from bankruptcy courts, the U.S. Trustee’s Office, Chapter 13 Trustee’s and debtors’ counsel, it has become imperative that we obtain client data and docu-ments that are verifiably accurate and correct in all respects. The sheer volume of filings and the jurisdictional nuances around the country have required NBS to invest millions of dollars in technology and people to ensure things are done correctly and timely.

L: What trends do you see emerging in bank-ruptcy over the next couple of years?

LVL: Bankruptcy filings have been steadily rising since the abrupt drop in filings that oc-curred after the Bankruptcy Reform Act was passed in 2005. 2006 was the low water mark in bankruptcy filings over the last 20 years. Be-cause of the financial crisis, the great recession, persistently high unemployment, decreased real property values and excessively high un-secured consumer credit levels, I expect bank-ruptcy to be an unfortunate but considerable part of the financial landscape for years to come.

L: What advice can you offer to creditors when facing rising volumes of bankruptcy cases?

LVL: Creditors need to have detailed processes and procedures regarding bankruptcy admin-istration and management. Highly trained sub-ject matter experts with deep domain knowl-edge and technology support are also critical to properly managing these portfolios. Build-ing internal expertise in the complex world of bankruptcy is expensive and time consuming. Servicers need to decide whether to build and maintain these types of processes and technol-ogy internally, or to look to external sources for assistance. Either way, the cases have to be properly managed in these high-risk times, for servicers and for lenders.

Lance Vander Linden is the Chairman of the Board of NBS and a founding shareholder of Brice, Vander Linden & Wernick. Lance has taken a passionate and abiding interest in bankruptcy law and servicing since the inception of the Brice law firm in 1987.

His leadership has guided NBS from its nascent beginnings as a single client provider for Lomas Mortgage in the late 1980s to the largest provider of mortgage and consumer bankruptcy outsourcing services in 2011.

Lance takes both personal and professional pride in continuing to drive innovative solutions designed to utilize bankruptcy as a loss mitigation tool that protects creditor’s rights and affords debtors all of the protections provided by the bankruptcy code.

BY LARRY BUCKLEY

Up Close with Lance Vander Linden

VA

ND

ER

LIN

DE

N

OUR MISSION IS SIMPLE. We strive to improve the bot-tom line performance of our clients’ bankruptcy portfolios through careful, efficient and client-specific management of each individual case.

NBS provides nationwide bankruptcy management services to the following types of organizations:

* Residential Mortgage Lenders

* Automobile Finance Companies

* Banks and Financial Institutions

* Consumer Lending Organizations

* Portfolio Servicers, Owners and Investors

NBS is a leader in bankruptcy servicing for the consumer fi-nance industry. NBS is a subsidiary of Advent International.

ABOUT NBS

NATIONAL BANKRUPTCY SERVICES COMPANY NEWS

NBS NEWS DESKWWW.NBSDEFAULTSERVICES .COM

SENIOR LITIGATION MANAGEMENT COUNSEL

BVW ANNOUNCES THE ADDITION OF EVERETT NEWIn January, Everett New joined Brice, Vander Linden & Wernick, P.C. as Senior Litigation Management Coun-sel to oversee and develop the firm’s litigation mat-ters, including loss mitigation, wrongful foreclosure, evictions, excess proceeds, fair-debt collection, in-junctions and temporary restraining orders, and bank-ruptcy adversary matters.

Prior to joining BVW, Everett was an associate in the Dallas office of San Antonio based Cox Smith Mat-thews Incorporated, where his practice included all aspects of commercial and business litigation, includ-ing landlord-tenant disputes, foreclosure and eviction cases, fraud, and bankruptcy adversary matters. Be-fore that, Everett was an associate in the Dallas based law firm Carrington, Coleman, Sloman & Blumenthal, where he practiced in the areas of corporate gover-nance, fiduciary duty, securities litigation, mass-tort litigation, medical malpractice defense, and SEC and NASD investigations.

Everett graduated summa cum laude from Texas Tech School of Law where he was a member of law review, an editor of Texas Tech Lawyer Magazine, and a Legal Practice Fellow. He also received the Professor Dean

Pawlowic Award and Trial Advo-cacy Jurisprudence Award.

In addition, Everett brings ex-perience from outside the legal profession. He spent four years (including his first year of law school) as a police officer in Lubbock, Texas, and almost five years managing offices for two national retail services companies, Norwest Financial and Enterprise Rent-a-Car.

Everett is also an active community volunteer. Current-ly he serves as a Program Director for the DBA/DAYL/DISD/EiF E-Mentoring program (www.dbamentor.org), as Co-Chair of the DBA’s Mentoring Committee, and as Vice-President of the North Dallas High School Partners-in-Education Board. Outside the office, Ev-erett enjoys spending time with his 7 year-old daugh-ter, Claire; his 3 year-old son, Spenser; and his wife Heather, an appellate attorney with Haynes & Boone.

You can reach Everett at 972.643.6643 (office),

214.498.4217 (mobile), or by email at [email protected]

LATEST NEWS

NBS is pleased to announce it has been en-gaged by TOYOTA FINANCIAL SERVICES (TFS) to assist in the solicitation, document management, monitoring and filing of reaffir-mation agreements for TFS’ portfolio of Chap-ter 7 bankruptcy cases.

“The TFS-NBS partnership affords NBS the opportunity to help drive improved financial performance and to assist in managing risk for TFS. It is a privilege to include TFS in the NBS list of highly valued clients.” Larry Buckley, EVP of Business Development for NBS

“After a lengthy vendor evaluation and vet-ting process we chose NBS as our partner to assist TFS in finding a scalable, affordable so-lution to assisting in the management of one our key bankruptcy processes. We appreciate the NBS commitment to adapting to our unique culture and way of doing business. We look forward to a long and mutually beneficial rela-tionship.” Julia Maicki, TFS’ National Manager, Field Services

TH

E L

ED

GE

RV

OL

. 2, IS

SU

E 1

NBS Ledger: v02 i01

Documents

Transcript of NBS Ledger: v02 i01