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Vol 12, Num 3 l 2015 in Review

Technology and Intellectual Property

► In This Issue:

A Letter from Your Co-chairs

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Nathan A. Carney
Carney Law Firm, P.A.

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Patrick A. Clisham
Engelman Berger, PC

As we wrap up another successful year for the ABI Real Estate Committee, we want to thank each of our members and our executive committee for making it all possible.  Here are a few highlights from the committee’s activities in 2015.

The 2015 Annual Spring Meeting

The Real Estate Committee paired with the Asset Sales Committee at the 2015 Annual Spring Meeting to present “Don’t Restrict My Sale: The Enforceability of Restrictive Covenants and Easements in Assets Sales in Bankruptcy.” The panelists included:

  • Gregory G. Hesse (Hunton & Williams LLP; Dallas)
  • Hon. Catherine Peek McEwen (U.S. Bankruptcy Court (M.D. Fla.); Tampa)
  • Alec P. Ostrow (Becker, Glynn, Muffly, Chassin & Hosinski LLP; New York)
  • Michael D. Sirota (Cole, Schotz, Meisel, Forman & Leonard, PA; Hackensack, N.J.)

The session was well attended, and the presentation involved an entertaining and interactive study of four hypotheticals. The panel was moderated by Judge McEwen, who did a superb job engaging the audience on each of the issues. We received very positive feedback from the audience immediately after the presentation, and the panelists remarked that it was the most fun they have had presenting at an ABI conference.
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Supreme Court Denies Stripping of Wholly Underwater Lien in Chapter 7: Dewsnup Lives On

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Brian A. Audette
Perkins Coie LLP

In Bank of America, N.A. v. Caulkett, the U.S. Supreme Court held that a chapter 7 debtor may not void, or “strip,” a junior mortgage that is completely underwater. To fully appreciate the Supreme Court’s decision, one must understand the interplay between § 506(a) and (d) of the Bankruptcy Code and the Supreme Court’s widely criticized decision in Dewsnup v. Timm.

Section 506(a) provides that “[a]n allowed claim of a creditor secured by a lien on property in which the estate has an interest ... is a secured claim to the extent of the value of such creditor’s interest in ... such property ... and is an unsecured claim to the extent that the value of such creditor’s interest ... is less than the amount of such allowed claim.”
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A Lease in Name Only: Manalapan’s Assignment of Leases under § 363

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Steven Kinsella
Fredrikson & Byron, P.A.
Minneapolis, MN

An Eastern District of Kentucky Bankruptcy Court recently held that mining leases did not constitute “true lease[s]” for the purposes of 11 U.S.C. § 365 and instead were “conveyance[s] of an interest in real property” governed by 11 U.S.C. § 363. The court issued its decision in two companion chapter 7 cases: In re Manalapan Mining Co. and In re Left Fork Mining Co.

Manalapan Mining Co. Inc. and Left Fork Mining Co. Inc. filed their respective chapter 7 petitions on Nov. 22, 2013, and the same chapter 7 trustee was appointed to oversee the administration of the cases. The debtors each owned certain mining permits and were parties to certain mining leases. In March 2015, the bankruptcy court approved transfers of the mining permits free and clear of all liens pursuant to 11 U.S.C. § 363(f).
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Fallout from the Foreclosure Crisis: An Anti-Deficiency Law Update

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Bradley D. Pack
Engelman Berger, P.C.

While the flood of residential foreclosures that characterized the Great Recession has dried up, appeals challenging the rights of lenders to recover their post-foreclosure loan balances are still finding their way through the appellate process. Anti-deficiency laws — which either prohibit lenders from suing for a deficiency judgment or limit the amount of such judgments — are at the forefront of such appeals. This article summarizes some of the most recent and significant appellate opinions interpreting and enforcing anti-deficiency legislation, as well as covering amendments to anti-deficiency laws themselves.
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Have You Watched a Complimentary Eye on Bankruptcy Session?

Launched in spring 2015, “Eye on Bankruptcy” is an online series produced by Bloomberg Law and ABI. Each program is aired on the last Thursday of each month and provides analysis of the latest case developments. Recorded at either Bloomberg’s New York studio or ABI's Virginia headquarters, each episode features commentary by top practitioners, academics and judges, hosted by Professor Michelle Harner (University of Maryland Francis King Carey School of Law).

Each episode explores:

  • Recent filings, motions, and decisions
  • Revisions to bankruptcy rules and forms
  • Changes in bankruptcy and restructuring

Visit online to learn more and view past recordings.

You Spoke, We Listened: ABI Offers an Upgraded Communications Schedule

This fall you should have noticed a change in the look, feel and frequency of communications that you are receiving from ABI. In an effort to cut down on the number of emails in your inbox, ABI launched a new weekly schedule that still includes the popular Daily Headlines and Bankruptcy Brief (reduced to Thursday afternoon, only).

New weekly highlights include:

Tuesday's delivery is the InSights newsletter, which highlights important information and benefits that you receive as an ABI member. Membership InSights will offer helpful tips about new ABI technology and benefits that will save time and money for your practice. Need to know what summaries were posted to Volo last week? Turn to next Tuesday's issue of Membership InSights for your answer.

Wednesday's InTouch newsletter provides you with upcoming programs specific to your circuit, as well as national programs that may be of interest to you. InTouch will also highlight online CLE and ABI publications designed to bring you quality information on the topics you care about most.

ABI would love to hear what you think about our new communication plan. Please contact us at

Registration for the
2016 Annual Spring Meeting
is now live! Mark this one off your list
before you even need to make
a new year's resolution list,
and we'll see you in D.C.!


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