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ABTJ Volume 34 Issue 4

In This Issue

Fall 2018 | Volume 34 | Issue 4

Bankruptcy & International Shipping Issues: 3 Things for a Non-Industry Person

The world of international shipping and customs is often extraordinarily complex – and that is without any bankruptcy issues to consider. But, in understanding the generalized players, rules and expectations for international shipping, those who become involved with the industry when a bankruptcy occurs will be able to navigate the field efficiently and effectively. This article will provide some nuts and bolts of what to expect should the bankruptcy and international shipping worlds intersect. Read Full Article

Omnia mutantur, nihil interit: How to Handle Crypto-Assets as a Trustee

In his Metamorphoses, Ovid wrote that “everything changes, nothing perishes.” Bitcoin, cryptocurrency, and blockchain have taken the world by storm, captured not only the imagination of intrepid entrepreneurs but also the focus of regulators, and changed how we conceive of money and property. What started with bitcoin has spread to hundreds of tokens or digital currencies. Entrepreneurs looking for an alternative to traditional methods of fund-raising (and some would-be fraudsters) joined the crypto boom, issuing their own tokens through Initial Coin Offerings (ICOs). Investors snapped up those tokens, much like the bitcoin that came before. Read Full Article

Pursuing Relief Against Foreign Adversaries

The increase in cross-border transactions is sure to increase the frequency with which trustees in bankruptcy will face disputes with non-U.S. persons. The resulting cross-border litigation may be as simple as objecting to a non-U.S. creditor’s proof of claim or as complicated as suing a non-U.S. person to recover damages for breach of contract or the proceeds of a pre-bankruptcy transfer.

This article, based on a presentation made by the author at the Annual Conference of the National Association of Bankruptcy Trustees in Sanibel Island in August 2018, identifies and discusses the following important factors trustees should consider before seeking relief in a U.S. court against non-U.S. persons: (1) how will the trustee accomplish service outside the U.S.? (2) how will the trustee establish that the U.S. court has personal jurisdiction over the non-U.S. person? (3) if desired, how will the trustee establish that U.S. law applies to resolution of the dispute? (4) how will the trustee conduct discovery needed outside the U.S. and admit the results at trial?, and (5) how will the trustee enforce a judgment if the non-U.S. person lacks assets in the U.S.? Read Full Article

Extraterritorial Application of Chapter 5 Avoidance Statutes

Sections 544, 547 and 548 of the Bankruptcy Code (the “Avoidance Statutes”) provide debtors-in-possession and trustees the power to avoid some transfers of a debtor’s interest in property made prior to the commencement of the bankruptcy case. Oftentimes, the issues are fairly straightforward. Surprisingly, however, the circuits are split with regard to the reach of the Avoidance Statutes in the increasingly common scenario where one or more of the transfers occurs outside the territorial borders of the United States, or where one or more of the transferees is located outside the country. Read Full Article

9th Circuit Bankruptcy Appellate Panel Concludes Bankruptcy Trustees Can Utilize Consent Directives

A consent directive is a “rare bird” investigatory tool that litigants in the United States may use to discover assets and information from debtors or third parties located anywhere in the world. Recently, the Ninth Circuit Bankruptcy Appellate Panel held that the Bankruptcy Code, (specifically, 11 U.S.C. §§105(a); 704(a)(1), (4); and 521(a)), permits and authorizes trustees to utilize consent directives in the administration of their estates. It would appear that chapter 7 trustees now have another arrow in their quiver to identify, and ultimately recover, hidden offshore estate assets. Read Full Article

When Tax Issues Are Taxing, “Who Ya Gonna Call?”

Chapter 7 Trustees, as opposed to individual or corporate taxpayers, have a complex relationship and a unique set of problems with the Internal Revenue Service. (“IRS”). In the performance of our Chapter 7 duties we often have dual functions with the IRS. We are called upon to prepare estate tax returns and pay administrative tax obligations due by the estate. We also are, in some instances, required to recognize and pay tax liens, and pay priority and unsecured claims to the IRS. We are both a tax filer and a tax collector and those roles can create issues by and between Trustees and the IRS. Read Full Article

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