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ZUPAN v. CALIFORNIA DEPARTMENT OF CORPORATIONS – Leagle.com May 24, 2011

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ZUPAN v. CALIFORNIA DEPARTMENT OF CORPORATIONSSUZIE ZUPAN et al., Plaintiffs and Appellants, v. CALIFORNIA DEPARTMENT OF CORPORATIONS, Defendant and Respondent.No. A128948.Court of Appeals of California, First District, Division Three.Filed May 23, 2011. NOT TO BE PUBLISHED IN OFFICIAL REPORTSThis is an appeal from a judgment following the trial court’s denial of a petition for writ of administrative mandamus (petition) filed by appellants Suzie and Paul Zupan. The underlying administrative proceedings resulted in decisions by respondent Department of Corporations (department) to revoke seven of appellants’ finance-related business licenses, permits and applications, and to bar them from holding certain positions of employment, management or control in the State of California. For reasons discussed below, we affirm the judgment.FACTUAL AND PROCEDURAL BACKGROUNDIn 2003, appellants, husband and wife, formed Latitude Capital Management, Inc. (LCM), a real estate loan brokerage firm of which Suzie Zupan was president and sole shareholder. In 2005, LCM and Suzie Zupan filed applications for investment advisor representative certificates, which were issued simultaneously by the department on June 8, 2005. In LCM’s application, Suzie Zupan was identified as LCM’s president and sole shareholder, but no mention was made of Paul Zupan or his role in the company.Subsequently, appellants formed the LCM High Income Fund, LLC (High Income Fund), followed by the Strategic Income Fund LLC (Strategic Income Fund), two mortgage pool investment funds managed by LCM.1 Both Funds eventually applied to the department for permits to offer and sell securities and lender/broker licenses pursuant to the California Finance Lenders Law, Financial Code section 22000, et seq. These applications, signed by Suzie Zupan under penalty of perjury, identified Suzie Zupan as president and person in charge of LCM, the Funds’ manager, without mentioning Paul Zupan or his corporate role. The High Income Fund was issued a lender/broker license on or about November 16, 2004, and a permit to offer and sell securities on or about March 2, 2005. The Strategic Income Fund was issued a lender/broker license on or about February 23, 2007, and a permit to offer and sell securities on or about July 5, 2007.Around this time, on July 18, 2006, Paul Zupan filed an application with the department for an investment advisor representative certificate. In response to specific questions on the application form, Paul Zupan disclosed that he had pled guilty to two felony counts of grand theft, for which he served prison time; his license to practice law had been suspended; he had resigned from the California State Bar with disciplinary proceedings pending for a crime of moral turpitude; and he had declared bankruptcy at least once. Also in this application, Paul Zupan identified his role in LCM as “clerk.” Based upon this representation that his corporate role was limited to that of clerk, the department issued Paul Zupan an investment advisor representative certificate on August 23, 2006.
1. We collectively refer to LCM, the High Income Fund, and the Strategic Income Fund as the “investment companies,” and collectively refer to the High Income Fund and Strategic Income Fund as the “Funds.”2. Appellants and a number of investors in the Funds later became involved in a separate civil lawsuit filed by appellants in California court.3. Paul Zupan was, among other things, a licensed real estate salesperson.4. Code of Regulations, title 10, section 1422 mandates, among other things, disclosure of the following information in an application for a lender/broker license: “ITEM NUMBER 6 OF APPLICATION (Corporations and Other Business Entities): . . . [¶¶] 6.b. Officers and Directors: [¶] List the full name of each of the officers, directors, managers, and trustees.[¶] 6.c. Person(s) Who Will Be In Charge of the Place of Business: [¶] Provide the full name, address, telephone number, and e-mail address of all managers as `person(s) who will be in charge of the place of business.’ `Managers’ are persons with authority to manage the operations of the organization in California. [¶] 6.d. and 6.e. Other Persons: [¶] List the full name of any other person with direct responsibility for the applicant’s proposed activities under the CFLL license in 6.d. and any other person that owns or controls, directly or indirectly, 10% or more of the applicant in Item 6.e.” (Emphasis added.)

In addition, the applicant must sign an execution page that includes, among other things, the following declaration:

“In the matter of the Application for a License under the California Finance Lenders Law, I, the undersigned, authorized to act on behalf of the applicant, declare that the following statements are true and correct: [¶] . . . [¶]

“4. That in the event of any change of its officers, directors, or any other persons named in this application, the applicant will file an amendment to the application containing the same information in relation to the new person(s) as is required in the application, within thirty days from the date of the change, with the California Corporations Commissioner.” (Cal. Code Regs., tit. 10, § 1422.)

5. LCM’s application for a lender/broker license, filed with the department on or about August 17, 2004 and signed by Suzie Zupan, identified one person — Suzie Zupan — as the person “in charge of the place of business.” Because Paul Zupan was not identified as a person in charge of the business in this application, there was no SIQ prepared on his behalf or any disclosures relating to his disciplinary history.6. The Form ADV is filed online with the Investment Advisor Registration Depository, which then forwards applications from California applicants to the department.7. On LCM’s Form ADV, filed on March 2, 2005 and signed electronically by Suzie Zupan, as LCM’s president, Suzie Zupan is the sole person listed in Schedule A. On August 16, 2007, an amended Form ADV was filed and signed electronically by Suzie Zupan on behalf of LCM. This amended form added James Wall as a direct owner and executive officer of LCM and designated both Suzie Zupan and Dois Brock as control persons. Subsequently, another amended Form ADV was filed and signed electronically by Suzie Zupan on behalf of LCM in early 2008. This amended form deleted James Wall as a direct owner and executive officer of LCM while continuing to designate Suzie Zupan and Dois Brock as control persons.8. Under Item 10 on LCM’s original Form ADV, as well as both amended forms, Dois Brock is the only person listed. Further, there is no disciplinary history provided for any advisory affiliate under Item 11 and the answer to Question F on all forms is “No.”9. On LCM’s original Form ADV, Suzie Zupan was the only reviewer identified. However, the amended form filed in 2007 added the following information: “[LCM] manages the LCM High Income Fund, LLC, which amounts to reviewing one account. Suzie Zupan and Paul Zupan are assigned to review this account. Review consists of managing the daily review of investments, maintaining sufficient liquidity and supervising receivables (loan servicing is contracted out.)” In addition, this amended form listed both Suzie Zupan and Paul Zupan in Schedule F, Item 6, when asked to identify “each principal executive of applicant or each person with similar status or performing similar functions.” Paul Zupan is also identified as the Operations Manager of Latitude Capital and Latitude Financial.10. LCM’s Schedule K for the High Income Fund listed only Suzie Zupan and Dois Brock.11. Appellants acknowledge they intended that Paul Zupan would eventually become an officer, director and shareholder of LCM, but only when appropriate for him to do so.12. For example, the ALJ permitted appellants to elicit testimony that one of the investors referred to Paul Zupan as a “scumbag” in an email to other members of the Fund, but then sustained an objection when appellants further asked the investor how he came “to believe that we were criminals and scumbags and committing a ponzi scheme.” In doing so, the AJL reasoned such evidence was irrelevant to whether appellants had a duty to disclose certain information to the department, and then added: “We could be here all day listening.”13. The requirements of these regulations, as well as the evidence relating to Paul Zupan’s corporate role and appellants’ submissions to the department, are set forth above. (See pp. 10-18.) We see no reason to repeat them here.14. Financial Code section 22169, subdivision (a) provides in relevant part: “The commissioner may, after appropriate notice and opportunity for hearing, by order, censure or suspend for a period not exceeding 12 months, or bar from any position of employment, management, or control any finance lender, broker, mortgage loan originator, or any other person, if the commissioner finds either of the following: [¶] (1) That the censure, suspension, or bar is in the public interest and that the person has committed or caused a violation of this division or rule or order of the commissioner, which violation was either known or should have been known by the person committing or causing it or has caused material damage to the finance lender, broker, or mortgage loan originator, or to the public. [¶] (2) That the person has been convicted of or pleaded nolo contendere to any crime, or has been held liable in any civil action by final judgment, or any administrative judgment by any public agency, if that crime or civil or administrative judgment involved any offense involving dishonesty, fraud, or deceit, or any other offense reasonably related to the qualifications, functions, or duties of a person engaged in the business in accordance with the provisions of this division.”15. Corporations Code section 25401 makes it “unlawful for any person to offer or sell a security in this state or buy or offer to buy a security in this state by means of any written or oral communication which includes an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading.”16. Specifically, in finding Paul Zupan not credible, the ALJ relied on the fact that he failed to advise Fields that dividends had been suspended in a “Monthly Update” emailed to her on September 18, 2007, the day before he allegedly gave her this information by telephone. Nor did Paul Zupan cross-examine Bright at the hearing regarding whether Fields told him that she had learned distributions were suspended. According to the ALJ, “if Paul Zupan had made such an unexpected disclosure [about the Fund's nonpayment of distributions], it would have been reasonable to document the disclosure and the investor’s acknowledgement of it in going forward with the investment.” Finally, the ALJ relied on the fact, reflected in the documentary evidence, that Paul Zupan in fact considered returning Bright’s investment in the High Income Fund and excluding him from the Fund’s subsequent write-down. According to the ALJ, it was unlikely Paul Zupan would have considered taking these actions had he disclosed to Bright and Fields prior to their investment that the Fund was not paying dividends.

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Lenny Dykstra, former MLB All-Star, indicted for bankruptcy fraud – CNN May 24, 2011

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Lenny Dykstra was a three-time major league All-Star outfielderHe played for the New York Mets and Philadelphia PhilliesHe was indicted on 13 counts relating to bankruptcy fraudHe filed for bankruptcy in 2009

Los Angeles (CNN) — Lenny Dykstra, a three-time major league All-Star outfielder who played for the New York Mets and Philadelphia Phillies, was indicted Friday for bankruptcy fraud for allegedly selling items from his $18 million mansion in Ventura County, a federal prosecutor said.

Lenny Kyle Dykstra, 48, of Murrieta, California, was charged with 13 counts: bankruptcy fraud, obstruction of justice, four counts of concealing property from the bankruptcy estate, three counts of embezzlement from the bankruptcy estate, and four counts of making false declarations to bankruptcy court, according to a statement from spokesman Thom Mrozek of the U.S. Attorney’s office in Los Angeles.

Last month, Dykstra was arrested and charged with bankruptcy fraud, and he was released on $150,000 bond and ordered to seek outpatient substance abuse treatment.

The indictment is the result of conduct Dykstra allegedly engaged in after filing a bankruptcy case on July 7, 2009, Mrozek said.

If convicted on all charges, Dkystra could face up to 80 years in prison, Mrozek said.

After filing for bankruptcy protection, Dykstra allegedly “looted” his Sherwood Estates mansion in Thousand Oaks, California, lied about who stripped the mansion, and denied receiving money for having sold items that were owned by the bankruptcy estate, Mrozek said.

According to court documents, an attorney hired by the bankruptcy trustee estimates that Dykstra stole and destroyed more than $400,000 worth of property in the estate.

Among the property that Dykstra allegedly stole were silver- and gold-plated door knobs, gold fixtures, a grandfather clock, two desks, a chair, a Maitland-Smith dresser, chandeliers, electronic equipment, artwork, a stove and a framed piece of sports memorabilia about him, according to the indictment.

The former member of a New York Mets World Series champion team was arrested last month on what police said was suspicion of fraudulent auto purchases.

His attorney, Mark Werksman, characterized the case last month as “a scorched-earth bankruptcy proceeding” and blamed the auto-related accusations as a “vendetta” by former caretakers.

But the U.S. bankruptcy trustee for the central district of California, Peter C. Anderson, described the allegations in Dykstra’s case as “egregious.”

“The bankruptcy-related conduct charged in the indictment constitutes an egregious abuse of the bankruptcy system and will not be tolerated,” Anderson said in a statement.

The 13-count indictment supersedes a criminal complaint filed last month, officials said.

In the bankruptcy filing, Dykstra listed assets of $24.6 million and overall debts of $37.1 million.

Among the assets he listed are two residences: a Ventura County mansion in Lake Sherwood Estates that he purchased from Janet and Wayne Gretzky, which he estimated was worth $18.5 million; and a home in Westlake Village that he estimated was worth $5.4 million.

As a result of the bankruptcy filing, the residences and Dykstra’s personal property became part of the bankruptcy estate that would be used to pay off creditors.

Even though Dykstra was prohibited from liquidating any part of the estate, authorities alleged last month that he admitted in a bankruptcy hearing that he arranged the sale of sports memorabilia and furniture that were part of the estate.

Dykstra’s professional baseball career began in 1985 when he was drafted by the New York Mets at the age of 22.

A year later, Dykstra hit a lead-off home run in Game 3 of the World Series at Boston’s Fenway Park, after the Mets had lost the first two games. That spark rallied the Mets to a seven-game Series victory over the Boston Red Sox.

He was traded in 1989 to Philadelphia, where the rest of his career was marked by successes as well as injuries, brawls and allegations of steroid use that he has denied. He earned the nickname “Nails” for his tenacity and confrontations on the field.

By the time he retired, Dykstra had earned $36.5 million from major league baseball, according to the website baseball-reference.com.

After retirement, Dykstra moved to California and started a profitable luxury car wash that he called The Taj Mahal. He expanded the business throughout Southern California and in 2007 sold it to investors, according to bankruptcy filings.

As a self-taught financial analyst, Dykstra proclaimed himself a financial guru and began writing a stock-picking website column. His prominence soared as a sports celebrity, entrepreneur and popular guest on numerous financial news broadcasts.

In 2008, Dykstra began publishing the Players Club, a glossy financial advice magazine exclusively for pro athletes to help them with wealth management and investment banking.

His purchase of the palatial Gretzy estate in 2007 for $14 million occurred a few months before the mortgage market collapsed. By the time Dykstra filed for bankruptcy in July 2009, he had accumulated loans totaling $21 million, bankruptcy records show.

The bankruptcy case is still ongoing. Dykstra has listed his only income as a $5,700 monthly pension from Major League Baseball, records show.

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Long Road Out of Bankruptcy – Wall Street Journal May 24, 2011

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[VALLEJO]Bloomberg News Georgia Street in Vallejo, Calif., which filed for bankruptcy in 2008.

VALLEJO, Calif.—City leaders say they expect Vallejo to emerge from bankruptcy protection by July as settlement talks with its creditors near final agreement, in a case being closely watched by the municipal-bond industry and by financially stricken cities across the country.

Vallejo, which filed for Chapter 9 protection in 2008, represents the biggest municipal bankruptcy in California since Orange County filed in 1994 and one of the largest in U.S. history.

In January, the city of 120,000 people some 30 miles northeast of San Francisco submitted a plan to exit from bankruptcy and began negotiating on a debt restructuring with major creditors. City leaders secured deals with Vallejo’s largest debt holder—Union Bank of San Francisco—and bond insurer National Public Finance Guarantee Corp.

Vallejo, Calif., hopes to emerge from bankruptcy soon. Other troubled municipalities:

Jefferson County, Ala.: Trying to avoid bankruptcy; grappling with $3.2 billion in sewer debt

Central Falls, R.I.: Overseen by a state official since last year.

Harrisburg, Pa.: Narrowly averted debt default last year when state infused cash; faces $288 million in debt from an incinerator project

Hamtramck, Mich.: Talk of bankruptcy receded after city collected $3.2 million in March from settlement with Detroit.

Officials faced pushback from lawyers representing city-worker retirees and some city unions, who objected to early versions of the plan because they lacked details on how some creditors would be treated. But recently the groups indicated they approve of the measures.

“We’re satisfied with progress so far,” said Kelly Woodruff, an attorney representing two city unions.

Under the plan, city employees will maintain their current pay and no additional jobs will be cut. But health-care benefits will be reduced for Vallejo’s more than 400 city-worker retirees and surviving spouses, with the city contributing about $300 a month to premiums, down from about $1,500 for some retirees. Current pension payouts will remain in place.

In the years leading up to the filing, the city’s expenses grew 11% annually while revenue rose only 3%. Vallejo was also saddled with contracts with its police and fire unions whose salary and benefits took up more than 70% of the city’s $65 million budget.

Those public-safety workers whose pay and benefits make up more than 70% of the city’s general-fund budget of about $65 million this fiscal year, took a big hit from the bankruptcy. The city scaled down its police force from a high of more than 150 officers to 90 today, and it closed three fire stations and cut the number of firefighters to 70 from more than 120. Funding for libraries, recreation centers and a convention center was also reduced.

In 2009, city leaders reached new agreements with the police, fire and management unions that reduced pension benefits for new employees, among other cuts. Last year, the city reached similar agreements with the union representing administrative workers.

Original bondholders have emerged from the reorganization unscathed, with the city having either repaid much of this debt or pledged to continue repayment. But Union Bank, owed about $50 million after guaranteeing debt repayment to investors, will receive 40% less than this amount under the settlement. Lawyers representing Union Bank declined to return emails and phone calls seeking comment.

National Public Finance Guarantee fared better, securing a deal allowing the insurer to continue to receive payment of nearly $5 million in debt owed, but over an extended period of time. The insurer also reached an agreement in a dispute with the city and California to guarantee that, in the event of a Vallejo default, the insurer would receive payment from state vehicle-license feeshanded down to cities.

“We are pleased to have reached an agreement,” said Kevin Brown, a spokesman for National Public Finance.

Dave Millican, Vallejo’s interim finance director, said, “We’ve turned the corner because our creditors realize it’s unlikely they will be able to get more money from the city.”

Creditors became pragmatic after U.S Bankruptcy Judge Michael McManus in the Eastern District of California said he wouldn’t force more concessions from Vallejo, Mr. Millican said.

Marc Levinson, Vallejo’s bankruptcy attorney, said the city’s ordeal was a cautionary tale for municipalities seeking an exit from financial troubles. The bankruptcy had cost Vallejo more than $9 million, largely from legal fees, he said, and services had been severely curtailed.

Lawyers representing retirees and unions attempted to fight the settlement plans, arguing that guarantees from Vallejo to continue pension payouts and payments to bondholders indicated funds were still available, according to court documents. Retirees wanted to reinstate benefits, while unions pursued funds lost in a fight over labor contracts.

Vallejo is expected to submit a final exit strategy, incorporating deals reached with creditors, by mid-May and a hearing for a final vote is expected in late June.

The plan calls for the city to defer debt repayments from its general fund until 2013. It also calls for some employees and retirees to be paid just 5% to 20% of some other claims, such as workers’ compensation, out of a $6 million fund over two years.The city set aside money from its reserves to establish the fund.

Write to Bobby White at bobby.white@wsj.com

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Howrey asks judge to throw out California bankruptcy proceedings – Thomson Reuters News & Insight May 24, 2011

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NEW YORK, May 4 (Reuters) – The defunct law firm Howrey LLP has asked a federal judge to throw out involuntary bankruptcy proceedings brought against it in California, saying the proper venue was the District of Columbia or Virginia.

In a motion filed with the U.S. Bankruptcy Court for the Northern District of California on Tuesday, Howrey argued that no major business decisions were made in California and most of its creditors were in the Washington metro area.

The bankruptcy petition was filed on behalf of three California-based creditors, who claimed that the law firm owes them a total of about $36,000. Those creditors are office supplies retailer Give Something Back Inc, court reporting company Jan Brown & Associates and Matura Ferrington Staffing Services Inc., which supplies contract attorneys.

Maureen Harrington, an attorney representing the creditors, said that her clients will challenge the motion and will seek to postpone a hearing scheduled for June 8 while they conduct discovery. The location of receivables, which could help determine proper venue, is not apparent from the firm’s statements, she said. Harrington is an attorney with Trepel McGrane Greenfield.

Judge Dennis Montali is presiding over the case.

In its motion, Howrey said that if the case is not moved to the Washington metro area, many of its creditors would be deprived of the chance to participate.

Included in Howrey’s motion was a five-page declaration by former Managing Partner Robert Ruyak, who described the rise and fall of the 56-year-old firm, culminating in a $50 million bill owed to its banker, Citibank.

The firm suffered a “significant decline in profits” beginning in 2009, and the departure of about 30 percent of its clients in 2010, Ruyak said in his declaration.

At its peak in 2008, Howrey had 743 attorneys in 16 offices, according to The National Law Journal. Washington was its largest center, with 304 attorneys.

At one time, the firm and its ancillary company, Cap Analysis Group LLC, employed 1,312 staffers, contract attorneys and partners worldwide. CapAnalysis was a financial and regulatory consultancy, Ruyak wrote.

Since the firm voted to dissolve on March 15, just 68 employees remain, Ruyak said.

The remaining employees and the firm’s dissolution committee are trying to close the firm’s books, which includes working with Citibank in an out-of-court wind down “so as to preserve as much value as possible” for creditors, Ruyak said.

The firm also is defending lawsuits in New York and California brought by former employees, who allege that the firm failed to warn workers of impending layoffs.

The bankruptcy case is In re Howrey LLP, U.S. Bankruptcy Court for the Northern District of California, No. 11-31376-DM.

For the creditors: Maureen Harrington of Trepel McGrane Greenfield.

For Howrey: Peter Gilhuly of Latham & Watkins.

(Reporting by Leigh Jones)

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Fewer people filing for bankruptcy – Buffalo News May 24, 2011

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Bankruptcies in Western New York continued to fall in April for the 11th straight month, driven, in part, by a slowdown in mortgage foreclosures and less credit available for borrowers to get into trouble.

New filings in Buffalo and Rochester fell 15.8 percent from April 2010 to 740, with drops recorded in both markets, according to figures from the U. S. Bankruptcy Court for the Western District of New York. The district includes 17 counties.

Specifically, filings fell 7.5 percent to 494 in Buffalo and 28.7 percent to 246 in Rochester.

Through April, new filings in 2011 fell 13.5 percent in Buffalo, to 1,619, and 16.5 percent in Rochester, to 889.

“Bankruptcy is a safety valve. If bankruptcies aren’t being filed, consumers are having fewer problems, and it’s a good thing for Western New York,” said Buffalo bankruptcy attorney Jeffrey M. Freedman. “It means more people have their houses in order and they’re not getting into trouble as much.”

—–

Cases filed January through April in eight-county Buffalo district

Buffalo district includes Allegany, Cattaraugus, Chautauqua, Erie, Genesee, Niagara, Orleans and Wyoming counties.

Source: U.S. Bankruptcy Court

—–

This fresh decline comes on top of a drop last year, as filings in the same period of 2010 were down 6.9 percent from 2009, when total filings were 3,153. Filings have fallen every month since last May.

“They’ve been steadily going down,” said Barry Sternberg, an Amherst bankruptcy attorney.

By contrast, while national figures are down slightly, that’s compared with very high figures a year ago. And certain markets in the Southwest and Southeast, including California, Nevada and Florida, are still reporting peak levels of new filings. Indeed, one of every six bankruptcy filings is in California.

“Our economy is different than

the national economy,” said Robert Gleichenhaus, partner at Gleichenhaus, Marchese and Falcone. “It never really rose as well as the national economy did. Therefore, it didn’t have as much of a dive to take.”

The reasons for the drop have more to do with secondary effects of the recession than with actual economic improvement.

As losses mounted during the crisis and recession, banks and credit card issuers sharply curtailed the availability of credit, particularly to less-creditworthy borrowers. They reduced credit lines, canceled cards, denied new applications, and cut back on marketing new credit cards. That means borrowers can’t run up as much debt.

“It’s not like it used to be 10 years ago when they were just mailing them out,” Freedman said. “You’re going to have less people with credit card debt.”

“Bankruptcy filings are driven by the amount of credit available in the marketplace,” Sternberg said. “So with fewer people having access to credit, fewer people are getting in trouble.”

At the same time, those who did have credit cut back on their own spending, fearful of economic conditions and job loss. So total consumer spending and debt are down, which means fewer people need bankruptcy protection.

“To the extent that consumer spending declines, that may be an indication that the amount of unsecured debt would decline as well,” said Carl L. Bucki, chief judge of the bankruptcy court in Buffalo.

Locally, by type of filing in April, there were 591 cases filed under Chapter 7 — 409 in Buffalo and 182 in Rochester—and 147 under Chapter 13 — 84 in Buffalo and 63 in Rochester. The vast majority were nonbusiness filings. There was also one case under Chapter 11.

Chapter 7 calls for business or consumer debts to be erased so the debtor can start over, while Chapter 13 reorganizes consumer debts but mandates a repayment plan. Chapter 11 is akin to Chapter 13, but for businesses.

Within the eight-county Buffalo region, 309 of the filings in April were in Erie County and 82 were in Niagara County. Another 38 were filed in Chautauqua County, while Cattaraugus County had 17, Orleans County had 16, Genesee County had 14, Wyoming County had 10, and Allegany County had eight.

Passage of the 2005 bankruptcy reform law cut the overall number of bankruptcy cases dramatically at first. The law imposed new hurdles for filers and required many to file under Chapter 13 rather than Chapter 7. But after the initial plunge, total filings in Western New York trended up for several years, before reversing in 2010.

Another major cause of the bankruptcy decline is a slowdown in the foreclosure process, both in New York and nationally.

Typically, Chapter 7 is used by debtors who have only unsecured debt — such as credit cards—while Chapter 13 is designed for those with secured debt, such as a mortgage or car loan. So when a foreclosure is initiated, one common tactic to stop the seizure of a home is to file for bankruptcy. Hence the surge in bankruptcies in past years as foreclosures picked up with the mortgage debacle.

But foreclosures have slowed considerably or even ground to a halt in the past year, partly because of the national controversy over so-called “robo-signing.”

That’s where mortgage servicing companies and law firms admitted they signed court affidavits and other legal paperwork attesting to facts and circumstances they did not know. That was part of an assembly-line process designed to speed up foreclosures to ensure defaulted properties could be handled quickly and efficiently.

The admissions led to nationwide moratoriums on foreclosures while banks reviewed and resubmitted court documents.

And in New York, it led to a new court mandate for attorneys to personally attest to the facts and documents, putting their own credibility at risk.

As a result, lenders and lawyers have initiated far fewer foreclosures. The drop in bankruptcies in Buffalo in April was entirely due to Chapter 13 cases, according to court statistics.

“It’s caused a delay in the process,” Baumeister said. “People are able to stay in their homes and not have to file.”

Additionally, state law in New York now requires borrowers and creditors to meet in a settlement conference to try to work out a loan modification or other solution before a foreclosure can proceed. Such conferences have been particularly successful in upstate and especially Western New York, alleviating the threat of foreclosure.

“If people aren’t under the pressure or they’re resolving it in state court, then there’s less need for bankruptcy,” Bucki said. “You don’t need to use that method of last resort.”

jepstein@buffnews.comnull

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California has no business dictating terms of local government bankruptcy – San Francisco Chronicle (blog) May 24, 2011

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By Marti Brown Don’t our state legislators have anything better to do than sponsor legislation creating more red tape and oversight for cities on the brink of municipal bankruptcy? The state can’t even…

By Marti Brown

Don’t our state legislators have anything better to do than sponsor legislation creating more red tape and oversight for cities on the brink of municipal bankruptcy? The state can’t even balance its own budget, but wants to oversee how cities deal with their fiscal crisis. Really?

There are more than 450 incorporated cities and towns and 58 counties in California. In the past 60 years, two cities and one county have filed for bankruptcy. I’d hardly call that opening the floodgates.

Yet AB506 would require a state committee-appointed mediator to work with both the municipality and interested parties in resolving fiscal problems. While this sounds relatively benign, mediation frequently sides with labor and focuses on the narrow confines of individual disputes. It does not result in a comprehensive evaluation of the entire budget, and what cities can and cannot afford to pay for. Even the bill states that “the rights of workers to collectively bargain shall be fully enforced and respected in the mediation process.” So, what about the rights of taxpayers to manage the salaries and benefits of public employees via the political process? In addition, mediation takes time. When a municipality is on the edge of bankruptcy, it is out of time and has no remaining choices as the doors of city hall are about to close.

Supporters of AB506 would have us believe that the provisions of the bill are for the good of the public and cities. But what they fail to mention is that this bill and its predecessors are heavily backed by public safety unions. These are the very same unions that fought the City of Vallejo for two years during its bankruptcy proceedings and cost the city approximately $5 million in attorney fees. It’s every union’s right to collectively bargain and to fight for its membership. But we do not need our state legislators usurping the authority of local elected officials and interfering in the financial problems of local government.

Vallejo’s depleted public services and programs are a direct result of its former unsustainable public safety contracts and plummeting sales and property taxes — not bankruptcy. In the first two years of bankruptcy, Vallejo saved $32 million. The only other way to have attained these savings and stayed out of bankruptcy would have been with major concessions from its public safety unions, which they were not willing to make. Prior to bankruptcy, the city spent more than two years in negotiations with its labor unions trying to solve its fiscal problems.

No city would file for bankruptcy unless there was no alternative. Bankruptcy not only ruins a city’s bond rating, it devastates its image and credibility at every level — from working with its employees to dealing with its creditors to attracting new businesses to addressing critical public safety needs. This is precisely why AB506 is unnecessary, because no city would voluntarily choose bankruptcy.

Besides, there is an oversight process to ensure a bankruptcy filing is not abused: a city must petition the U.S. Bankruptcy Court and prove its case before a seasoned bankruptcy judge.

As a Vallejo city council member and dues-paying public employee, I can tell you that no city needs Big Brother mandating how it resolves its financial problems and pushing it to prioritize public employee interests ahead of everyone else’s.

Marti Brown is a Vallejo city council member and senior planner in the Sacramento Housing & Redevelopment Agency.

Posted By: Lois Kazakoff (Email, Twitter) | May 22 2011 at 04:55 PMCalifornia has no business dictating terms of local government bankruptcyShare

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