Returning from summer recess, the justices of the Supreme Court held their first conference of the new term on Sept. 25 and announced yesterday that they will review 11 more cases involving nine questions of civil and criminal law.
Although the high court granted review in no additional bankruptcy cases beyond the two already on the docket for October and November, several certiorari petitions involving circuit splits have a better-than-average chance of attracting the justices’ attention and might be argued either late this term or in the term to begin in October 2018.
On Nov. 6, the high court will hear argument in Merit Management Group LP v. FTI Consulting Inc., 16-784 (Sup. Ct.), and decide whether the safe harbor in Section 546(e) applies if a financial institution only serves as a “mere conduit.” The outcome will indicate whether the Supreme Court reads the safe harbor narrowly or expansively. The case also tests whether “plain meaning” dictates barring lawsuits that would not result in the harm that Congress intended to prevent. To read ABI’s discussion of the case, click here. For the docket and the briefs, click here.
In U.S. Bank NA v. The Village at Lakeridge LLC, 15-1509 (Sup. Ct.), to be argued on Oct. 31, the Court will decide whether the standard of appellate review for non-statutory insider status is de novo or clearly erroneous, or a combination of both. Perhaps because they perceived no split among the circuits, the justices will not decide whether the purchaser of a claim automatically takes on the seller’s insider status. The Court gave the Solicitor General permission to participate in oral argument. For ABI’s discussion of the case, click here. For the dockets and the briefs, click here.
In both cases, ABI will report on the justices’ questions and comments at oral argument.
Several significant bankruptcy and consumer cases involving circuit splits are standing in the wings, to be considered for a grant or denial of certiorari at conferences to occur as early as October. The November issue of the ABI Journal will include a more detailed discussion of those cases. For the time being, though, here’s what they involve:
· Ivey v. First Citizens Bank & Trust Co., 16-1330 (Sup. Ct.). Question presented: Is a deposit into someone’s own bank account a “transfer” within the meaning of Section 101(54), despite legislative history seemingly to the contrary?
· Lamar Archer & Cofrin LLP v. Appling, 16-1215 (Sup. Ct.). Question presented: Is a false statement about one asset a statement of “financial condition” providing grounds for denial of discharge of a debt under Section 523(a)(2)?
· Ho v. ReconTrust Co., 17-278 (Sup. Ct.). Question presented: Are entities that foreclose mortgages — such as loan servicers, trustees under deeds of trust and their counsel — “debt collectors” whose activities are regulated by the federal Fair Debt Collection Practices Act?
· First Southern National Bank v. Sunnyslope Housing LP, 17-455 (Sup. Ct.). Question presented: In a chapter 11 cramdown, must a secured lender be forced to accept the value of the property given the debtor’s contemplated use when the lender could recognize a higher value through foreclosure?
· Leslie v. Hancock Park Capital II LP, 16-1136 (Sup. Ct.). Question presented: Must bankruptcy courts employ state or federal law in recharacterizing debt as equity?
· Tower Credit Inc. v. Schott, 17-444 (Sup. Ct.). Question presented: Can wages garnished within 90 days of bankruptcy be recovered as preferences, or does the time of the transfer relate back to the date before the preference period when the garnishment order was entered?
· Deutsche Bank Trust Co. Americas v. Robert R. McCormick Foundation, 16-317 (Sup. Ct.). Question presented: Does the safe harbor in Section 546(e) supersede state law and preclude even individual creditors from filing fraudulent transfer suits arising from leveraged buyouts?