32nd Annual Northwest Bankruptcy Institute

Transcription

32nd AnnualNorthwest BankruptcyInstituteCosponsored by theOSB Debtor-Creditor Section and theWSBA Creditor Debtor Rights SectionFriday, April 5, 2019, 8:30 a.m.–5:30 p.m.Saturday, April 6, 2019, 9 a.m.–NoonOregon: 7.5 General CLE credits, 1.25 BusinessMarketing credits, and 1 Ethics creditWashington: 8.75 Law & Legal creditsand 1 Ethics credit

32ND ANNUAL NORTHWEST BANKRUPTCY INSTITUTEINSTITUTE PLANNERSThe Honorable Timothy Dore, U.S. Bankruptcy Court, Western District of Washington, Seattle, WAThe Honorable David Hercher, U.S. Bankruptcy Court, District of Oregon, Portland, OROren Haker, Stoel Rives LLP, Portland, ORBruce Mederios, Davidson Backman Medeiros PLLC, Spokane, WATodd Trierweiler, Todd Trierweiler & Associates, Portland, ORJason Wilson-Aguilar, Office of the Chapter 13 Standing Trustee, Seattle, WAOREGON STATE BARDEBTOR-CREDITOR SECTIONEXECUTIVE COMMITTEEWASHINGTON STATE BAR ASSOCIATIONCREDITOR DEBTOR RIGHTS SECTIONEXECUTIVE COMMITTEEBritta E. Warren, ChairLaura L. Donaldson, Chair-ElectJustin D. Leonard, Past ChairMargot D. Seitz, TreasurerErich M. Paetsch, SecretaryPenny Lee AustinWilliam J. CritchlowOren Buchanan HakerCassie K. JonesGarrett S. LedgerwoodJulia ManelaDouglas R. RicksKevin O’Rourke, ChairWilliam Malaier, Jr., Chair-ElectBruce Medeiros, Secretary/TreasurerThomas S. Linde, Immediate Past ChairJohn KaplanDavid KazembaAlexander KleinbergThomas NeelemanRuth NelsonMegan RueRebecca SheppardTodd TracyMelissa WilliamsThe materials and forms in this manual are published by the Oregon State Bar exclusively for the use of attorneys. Neitherthe Oregon State Bar nor the contributors make either express or implied warranties in regard to the use of the materialsand/or forms. Each attorney must depend on his or her own knowledge of the law and expertise in the use or modificationof these materials.Copyright 2019OREGON STATE BAR16037 SW Upper Boones Ferry RoadP.O. Box 231935Tigard, OR 97281-193532nd Annual Northwest Bankruptcy Instituteii

Thank you to our reception sponsors32nd Annual Northwest Bankruptcy Instituteiii

Save the Date!33rd AnnualNorthwest BankruptcyInstituteFriday, April 3, 2020Saturday, April 4, 2020Hyatt Regency Seattle32nd Annual Northwest Bankruptcy Instituteiv

TABLE OF CONTENTSSchedule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viiFaculty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix1.Socially Awkward: Understanding the Legal Ethics of Being Online . . . . . . . . . . .1–i— David Elkanich, Holland & Knight LLP, Portland, Oregon2.Bankruptcy Bermuda Triangle: Unbundling and Factoring in Consumer BankruptcyCases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–i— Edward Boltz, Law Offices of John T. Orcutt, Durham, North Carolina— Gary Dyer, Office of the U.S. Trustee, Spokane, Washington3A.Nonbankruptcy Alternatives to Asset Sales . . . . . . . . . . . . . . . . . . . . . . . 3A–i— Mark Northrup, Miller Nash Graham & Dunn LLP, Seattle, Washington3B.363 Sales: Pertinent Issues and Alternatives—Overview of 363 Sales . . . . . . . . . 3B–i— Timothy Conway and Leon Simson, Tonkon Torp LLP, Portland, Oregon3C.363 Sales: Pertinent Issues and Alternatives—Successor Liability and Free andClear Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3C–i— John Lucas, Pachulski Stang Ziehl & Jones, San Francisco, California4.Ninth Circuit Case Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4–i— The Honorable Frank Kurtz, U.S. Bankruptcy Court, Eastern District of Washington,Yakima, Washington— The Honorable Peter McKittrick, U.S. Bankruptcy Court, District of Oregon, Portland,Oregon— Ann Chapman, Vanden Bos & Chapman LLP, Portland, Oregon5.Student Loans and Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5–i— Edward Boltz, Law Offices of John T. Orcutt, Durham, North Carolina— Latife Neu, Attorney at Law, Seattle, Washington6.Presentation Slides: Rethinking Cramdown Interest Rates in Chapter 11 . . . . . . . . 6–i— Kevin Badgley, Davis Wright Tremaine LLP, Portland, Oregon— Professor Diane Lourdes Dick, Seattle University School of Law, Seattle, Washington— Brian Hulse, Davis Wright Tremaine LLP, Seattle, Washington7.Chapter 7 and 13 Trustee Hot Topics . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7–i— Russell Garrett, Jordan Ramis PC, Lake Oswego, Oregon— Wayne Godare, Office of the Chapter 13 Trustee, Portland, Oregon— Michael Malaier, Office of the Chapter 13 Trustee, Tacoma, Washington8A.Presentation Slides: The Highs and Lows of Marijuana Businesses and Bankruptcy:Banking and Finance Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8A–i— Susan Ford, Sussman Shank LLP, Portland, Oregon32nd Annual Northwest Bankruptcy Institutev

TABLE OF CONTENTS (Continued)8B.Presentation Slides: The Highs and Lows of Marijuana Businesses in Bankruptcy . . 8B–i— Thomas Buford, Bush Kornfeld LLP, Seattle, Washington8C.Presentation Slides: State-Law Remedies for Creditors of Marijuana Businesses . . 8C–i— Dominique Scalia, D. Bugbee & Scalia PLLC, Seattle, Washington9.Presentation Slides: Making Bank on Bankruptcy Using Social Media . . . . . . . . . .9–i— Daliah Saper, Saper Law, Chicago, Illinois32nd Annual Northwest Bankruptcy Institutevi

SCHEDULEFriday, April 5, 20197:30 Registration and Continental Breakfast8:30 Socially Awkward: Understanding the Legal Ethics of Being OnlineDavid Elkanich, Holland & Knight LLP, Portland, OR9:30 Transition Break9:35 Breakout A: Bankruptcy Bermuda Triangle: Unbundling and Factoring in ConsumerBankruptcy CasesEdward Boltz, Law Offices of John T. Orcutt, Durham, NCGary Dyer, Office of the U.S. Trustee, Spokane, WABreakout B: 363 Sales: Pertinent Issues and AlternativesTimothy Conway, Tonkon Torp LLP, Portland, ORJohn Lucas, Pachulski Stang Ziehl & Jones, San Francisco, CAMark Northrup, Miller Nash Graham & Dunn LLP, Seattle, WA10:35 Networking Break10:50 Ninth Circuit Case ReviewThe Honorable Frank Kurtz, U.S. Bankruptcy Court, Eastern District of Washington, Yakima, WAThe Honorable Peter McKittrick, U.S. Bankruptcy Court, District of Oregon, Portland, ORAnn Chapman, Vanden Bos & Chapman LLP, Portland, OR12:05 Lunch1:30 Chapter 13 Recent DevelopmentsKeith Lundin, U.S. Bankruptcy Judge (Ret.), Pittsburgh, PAHenry E. Hildebrand, III, Chapter 13 Trustee, Middle District of Tennessee, Nashville, TN3:15 Transition Break3:20 Breakout C: Student Loans and BankruptcyEdward Boltz, Law Offices of John T. Orcutt, Durham, NCLatife Neu, Attorney at Law, Seattle, WABreakout D: Rethinking Cramdown Interest Rates in Chapter 11Kevin Badgley, Davis Wright Tremaine LLP, Seattle, WAProfessor Diane Lourdes Dick, Seattle University School of Law, Seattle, WABrian Hulse, Davis Wright Tremaine LLP, Seattle, WA4:20 Networking Break4:30 Breakout E: Chapter 7 and 13 Trustee Hot TopicsRussell Garrett, Jordan Ramis PC, Lake Oswego, ORWayne Godare, Office of the Chapter 13 Trustee, Portland, ORMichael Malaier, Office of the Chapter 13 Trustee, Tacoma, WABreakout F: The Highs and Lows of Marijuana Businesses and BankruptcyThomas Buford, Bush Kornfeld LLP, Seattle, WASusan Ford, Sussman Shank LLP, Portland, ORDominique Scalia, D. Bugbee & Scalia PLLC, Seattle, WA5:30 Adjourn to Hosted Reception32nd Annual Northwest Bankruptcy Institutevii

SCHEDULE (Continued)Saturday, April 6, 20198:00 Breakfast and Late Registration9:00 Judges RoundtablesThe Honorable Marc Barreca, U.S. Bankruptcy Court, Western District of Washington, Seattle, WAThe Honorable Trish Brown, U.S. Bankruptcy Court, District of Oregon, Portland, ORThe Honorable Timothy Dore, U.S. Bankruptcy Court, Western District of Washington, Seattle, WAThe Honorable David Hercher, U.S. Bankruptcy Court, District of Oregon, Portland, ORThe Honorable Brian Lynch, U.S. Bankruptcy Court, Western District of Washington, Tacoma, WAThe Honorable Peter McKittrick, U.S. Bankruptcy Court, District of Oregon, Portland, ORThe Honorable Thomas Renn, U.S. Bankruptcy Court, District of Oregon, Eugene, OR10:30 Networking Break10:45 Making Bank on Bankruptcy Using Social MediaDaliah Saper, Saper Law, Chicago, ILNoon Adjourn32nd Annual Northwest Bankruptcy Instituteviii

FACULTYKevin Badgley, Davis Wright Tremaine LLP, Seattle, WA. Mr. Badgley concentrates his practice oncommercial real estate and finance transactions. His finance practice includes representation of bothlenders and borrowers in connection with real estate term loans, construction loans, and asset-basedlending transactions. He also has experience representing lenders in providing construction andpermanent financing for multifamily residential projects that qualify for low-income housing tax creditsand tax-exempt bond financing. He is a member of the Washington State Bar Association and the StateBar of Michigan.The Honorable Marc Barreca, U.S. Bankruptcy Court, Western District of Washington, Seattle, WA.Prior to taking the bench in 2010, Judge Barreca was a partner with K&L Gates LLP, where his practiceincluded representing Chapter 11 creditor committees and debtors-in-possession, secured and unsecuredcreditors, and municipalities in commercial bankruptcy cases, buyers of assets from bankruptcy estates,and creditors and debtors in workout negotiations. Judge Barreca is cochair of the American Bar AssociationBusiness Law Section Business Bankruptcy Committee Bankruptcy IP and Technology Subcommitteeand past chair of the Washington State Bar Association Creditor-Debtor Section.Edward Boltz, Law Offices of John T. Orcutt, Durham, NC. Mr. Boltz represents clients in Chapter7 and 13 and related consumer rights litigation, including fighting abusive mortgage practices anddeveloping solutions for student loans. Mr. Boltz is past president and current member of the NationalAssociation of Consumer Bankruptcy Attorneys (NACBA) Board of Directors and cochairs its LegislativeCommittee. He also serves on the Bankruptcy Council for the North Carolina Bar Association and theAmerican Bankruptcy Institute Consumer Commission. In April 2008, Mr. Boltz testified on behalf ofNACBA in Congress regarding the need for changes to the Bankruptcy Code to protect National Guardand Reservists from the harsh results of the means test, which was enacted as the National Guardand Reservists Debt Relief Act. Mr. Boltz is a frequent speaker on bankruptcy issues at both nationaland local seminars. He is a member of the North Carolina State Bar, where he has been certified as aspecialist in consumer bankruptcy law.The Honorable Trish Brown, U.S. Bankruptcy Court, District of Oregon, Portland, OR. Judge Brownis Chief Judge of the U.S. Bankruptcy Court for the District of Oregon. Prior to her appointment to thebench, she was in private practice focusing on bankruptcy and corporate reorganizations, loan workoutsand foreclosures, real estate transactions, and mediating and arbitrating all aspects of debtor-creditor,real estate, and contract disputes. Judge Brown is a member of the Oregon State Bar Debtor-CreditorSection, chair of the National Conference of Bankruptcy Judges Finance Committee, and a member ofthe Commercial Law League. She is licensed in Oregon, Washington, and Virginia, and she is certifiedin business bankruptcies by the American Board of Certification.Thomas Buford, Bush Kornfeld LLP, Seattle, WA. Mr. Buford represents clients in all aspects ofcommercial insolvency, including debtors, committees, trustees, and receivers, in Washington andAlaska. Prior to joining Bush Kornfeld, Mr. Buford was the Assistant United States Trustee in Seattle,Anchorage, and Portland.Ann Chapman, Vanden Bos & Chapman LLP, Portland, OR. Ms. Chapman focuses her practice oncomplex consumer and small business bankruptcy matters for individuals in Chapter 7 and 13. She alsohandles workouts for small business owners and represents creditors in contested matters in Chapters 7and 13. She is a past chair of the Oregon State Bar Debtor-Creditor Section, has served on the section’sExecutive Committee, and has been an active member of many of the section’s subcommittees overthe years. She is the 2014 recipient of the section’s William N. Stiles Debtor-Creditor Section Awardof Merit for her service to members of the Debtor-Creditor Section, including her contributions to legaleducation, pro bono activities, and the promotion of professionalism among lawyers in the section.32nd Annual Northwest Bankruptcy Instituteix

FACULTY (Continued)Timothy Conway, Tonkon Torp LLP, Portland, OR. Mr. Conway’s practice includes Chapter 11 corporatereorganizations, workouts, debtor-creditor law, and commercial litigation. He has substantial experiencerepresenting Chapter 11 debtors-in-possession, creditors’ committees, secured and unsecured creditors,and enterprises seeking to acquire assets. He is admitted to practice in both Oregon and Washington.Professor Diane Lourdes Dick, Seattle University School of Law, Seattle, WA. Professor Dick is anAssociate Professor of Law at Seattle University, where she focuses her teaching and scholarship oncommercial finance, corporate bankruptcy and out-of-court restructuring, mergers and acquisitions,and corporate taxation. Professor Dick regularly consults with attorneys, investors, private equity funds,and think tanks about commercial finance, bankruptcy and insolvency, and business taxation. ProfessorDick is Treasurer of the Washington State Bar Association Business Law Section, and she is a memberof the WSBA Legal Opinions Committee, the Washington Corporate Act Revisions Committee, and theWashington Citizen Commission for Performance Measurement of Tax Preferences. She has beeninvited to deliver lectures at the Harvard Kennedy School, The Brookings Institution, and professionalassociation meetings, law schools, and graduate tax programs around the country. A prolific author,Professor Dick has published or has forthcoming articles in law reviews, peer-reviewed journals,practitioner-oriented publications, and prominent commercial law blogs. Her scholarship has beenshowcased by The New York Times and Reuters Breakingviews and has been cited and discussedby courts and litigants. She has coauthored reports in Washington and Florida providing guidance forlawyers overseeing business and commercial real estate transactions. She is admitted to practice inWashington, Florida, and the District of Columbia.The Honorable Timothy Dore, U.S. Bankruptcy Court, Western District of Washington, Seattle, WA.Judge Dore was sworn in as a bankruptcy judge for the Western District of Washington on April 4, 2011.Prior to his judicial appointment, Judge Dore spent his entire 23-year legal career at the Seattle lawfirm of Ryan Swanson & Cleveland PLLC; he served as chair of the firm’s bankruptcy and creditors’rights group for more than a decade. He also served a term on the firm’s executive committee. The vastmajority of Judge Dore’s legal work in private practice was in bankruptcy law and situations involvingfinancial distress. Judge Dore represented many Chapter 11 debtors in business cases and Chapter7 trustees in all types of cases. His practice included adversary proceedings, appeals, out-of-courtworkouts, and receiverships. He also served as a receiver and a Chapter 11 trustee. Judge Dore hasbeen involved in various activities supporting Consumer Education and Training Services (CENTS).Gary Dyer, Office of the U.S. Trustee, Spokane, WA. Mr. Dyer is the Assistant U.S. Trustee in Spokaneand Seattle, Washington, and Anchorage, Alaska. He has been with the United States Trustee’s Officefor 30 years in offices in California, Washington, Oregon, and Montana.David Elkanich, Holland & Knight LLP, Portland, OR. Mr. Elkanich focuses his practice on litigation,with an emphasis on legal ethics and risk management. He advises both lawyers and law firms in awide range of professional responsibility matters. In addition, Mr. Elkanich has a commercial litigationpractice, where he regularly represents clients in the financial services industry. Mr. Elkanich is anadjunct professor at Lewis & Clark Law School, where he has taught the required ethics course(Regulation and Legal Ethics) since 2012. He is an active member of the Oregon State Bar, includingservice on the Discipline System Review Committee and Legal Ethics Committee. He is also a memberof the Multnomah Bar Association, the Association of Professional Responsibility Lawyers, and the ABACenter for Professional Responsibility. Mr. Elkanich is admitted to practice in Idaho, Washington, andOregon.32nd Annual Northwest Bankruptcy Institutex

FACULTY (Continued)Susan Ford, Sussman Shank LLP, Portland, OR. Ms. Ford focuses on resolving complex businessproblems for clients, both in and out of the courtroom. She advises businesses and individuals onstrategic entity governance and restructuring issues. She specializes in Chapter 11 reorganizations,liquidations, and receiverships. Ms. Ford’s trial practice includes business and commercial litigationcases, regulatory-related actions, and bankruptcy litigation. She practices primarily in Oregon andWashington but also appears in jurisdictions outside the Pacific Northwest. Ms. Ford is the immediatepast chair of the firm’s Business Restructuring and Bankruptcy Group. Ms. Ford is a member of theAmerican Bankruptcy Institute, the American Bar Association, the Multnomah Bar Association, theTurnaround Management Association Northwest Chapter board, the National Turnaround ManagementAssociation Network of Women, the Oregon State Bar Debtor-Creditor Section, Business LitigationSection, and Business Law Section, and the Washington State Bar Association Creditor Debtor RightsSection. Ms. Ford is a regular speaker and moderator at continuing legal education programs.Russell Garrett, Jordan Ramis PC, Lake Oswego, OR. Mr. Garrett focuses his practice on bankruptcyand creditors’ rights, commercial litigation, real estate, and general business matters. He has broadexperience in a wide range of business issues, as well as bankruptcy and other commercial litigation,real property transactions, leases, and complex issues involving shareholder disputes and fiduciaryrepresentation, including receiverships and trustees. He frequently helps clients with statutory issues,LLC member disputes, easements, boundary line disputes, and other business concerns. He serveson a panel of Chapter 7 Trustees for the Western District of Washington. Mr. Garrett is a memberof the American Bar Association Young Lawyer Division Fellows, the Clark County (Washington) BarAssociation, the Federal Bar Association, the Oregon State Bar Debtor-Creditor Section LegislativeSubcommittee, the Washington State Bar Debtor-Creditor Section; Litigation Section; Real PropertySection; and Probate and Trust Section, the American Bankruptcy Institute, and the National Associationof Bankruptcy Trustees. He is also a Delegate in the Oregon State Bar House of Delegates. He isadmitted to practice in Oregon and Washington and before the U.S. Supreme Court.Wayne Godare, Office of the Chapter 13 Trustee, Portland, OR. Mr. Godare has been the StandingChapter 13 Trustee for the Portland Division of the United States Bankruptcy Court since 2010. Prior tohis appointment, he was staff attorney at the trustee’s office for 10 years. He is a member of the NationalAssociation of Chapter 13 Trustees. He is admitted to practice in Arizona, Wyoming, and Oregon.The Honorable David Hercher, U.S

4:30 Breakout E: Chapter 7 and 13 Trustee Hot Topics Russell Garrett, Jordan Ramis PC, Lake Oswego, OR Wayne Godare, Office of the Chapter 13 Trustee, Portland, OR Michael Malaier, Office of the Chapter 13 Trustee, Tacoma, WA Breakout F: The Highs and Lows of Marijuana Businesses and