The Trustee then instituted a number of adversary proceedings in the bankruptcy court seeking to avoid and to recover distributions that had been made to the investors in the Debtors. The Trustee claimed that transfers to the investors prior to the collapse of the Ponzi scheme were “fraudulent transfers”. The investors asserted an affirmative defense claiming that the transfers were “for value.” The Trustee moved for partial summary judgment. The bankruptcy court denied the motion, effectively upholding the availability of the investors’ affirmative defense.

The Debtors were formed purportedly to manage and operate them as hedge funds, each of which was structured either as a limited liability company or a limited partnership. In reality, the Debtors were used to operate a fraudulent Ponzi scheme whereby capital contributions made to the Debtors by later equity investors were used to repay earlier investors more than their investments were actually worth, as well as fictitious profits. This was done to perpetuate the illusion that the Debtors had positive investment gains, to keep existing investors from seeking recovery of their equity investments, and to induce prospective investors to make new equity investments.

The Court’s acceptance of that assumption should not be interpreted as a ruling on any factual or legal matter other than the “for value” issue of law: the sole issue argued and before us.

Each of the investor defendants made a capital contribution through execution of a limited liability company agreement, a limited partnership agreement, and/or a subscription agreement with one or more of the Debtors such that each investor defendant held an equity interest in one or more of the Debtors, denominated as a membership unit or limited partnership interest. At some point during the operation of the Ponzi scheme, each investor defendant received one or more transfers of property from one or more of the Debtors, representing returns of principal and/or purported profits on their equity investments.

With respect to Ponzi schemes, transfers made in furtherance of the scheme are presumed to have been made with the intent to defraud for purposes of recovering the payments.

However a transferee with an affirmative defense where the transferee acts in good faith and “[gives] value to the debtor in exchange for such transfer . . . .” The term “value” is defined to include “satisfaction or securing of a present or antecedent debt of the debtor.”

In the case of Ponzi schemes, the general rule is that a defrauded investor gives “value” to the Debtor in exchange for a return of the principal amount of the investment, but not as to any payments in excess of principal.

Any transfers over and above the amount of the principal — i.e., for fictitious profits — are not made for “value” because they exceed the scope of the investors’ fraud claim and may be subject to recovery by a plan trustee.

The Trustee hangs his hat on a line of cases holding that transfers to redeem an equity investment in an insolvent entity (initially made free of fraud) cannot constitute a transfer “for value.

In each of these decisions, investors exchanged shares of stock for other security interests, notes, or real property, all at a time when the corporations were insolvent. The courts held that the exchanges constituted fraudulent transfers because the stock returned to the corporations as part of the exchange was, at that time, virtually worthless due to the corporate insolvency.

The Trustee contends that these decisions should apply here because the Debtors were all insolvent at the time the transfers to the investor defendants were made, and any such transfers served only to redeem their worthless equity interests. The court disagreed, and found the argument to be unpersuasive for the simple reason that none of these decisions involved Ponzi schemes. Stated differently, none of the stockholders in those cases were fraudulently induced into making their initial investments so that none possessed fraud claims that would be satisfied in whole or in part by virtue of the later transfers.

Sidney Turner

www.SidneyTurnerllc.com

1. The tax is paid toward a year for which a tax return is due more than 3 years prior to the filing of the bankruptcy petition.
2. A tax return was filed more than two years prior to the filing of the bankruptcy petition.
3. The tax was assessed more than 240 days prior to the filing of the bankruptcy petition.
4. In addition, the tax must not be due to a fraudulent tax return and the taxpayer has not attempted to evade or defeat the tax.

The taxpayer who contemplates bankruptcy should consult with a professional who understands the nuances of the dischargeability of taxes as provided under the bankruptcy code. Because there are so many timing rules that have to be complied with, the timing of filing the bankruptcy petition is crucial in order to obtain the desired fresh start through the bankruptcy process.

Sidney Turner

www.SidneyTurnerllc.com

]]> http://www.sidneyturnerllc.com/blog/2011/09/tax-dischargeable-in-bankruptcy/feed/ 0 http://www.sidneyturnerllc.com/blog/2011/09/condo-community-turns-to-bankruptcy-to-remain-solvent/ http://www.sidneyturnerllc.com/blog/2011/09/condo-community-turns-to-bankruptcy-to-remain-solvent/#comments Wed, 14 Sep 2011 18:30:58 +0000 admin http://www.sidneyturnerllc.com/blog/?p=325 This is a great article by Daniel Vasquez  a Sun Sentinel Columnist about a subject close to my heart.  I have been talking about this for years. This shows how you can get an out of control situation back under control through the power of bankruptcy court.  I will send more later. Enjoy Daniel’s article

Sidney Turner

www.SidneyTurnerLLC.com

Daniel Vasquez

A Palm Beach County condo community is turning to an unusual solution to deal with foreclosure-related problems that are sapping its finances: Bankruptcy court. The approach, experts say, could point the way for other condo and homeowner communities struggling with financial problems because owners can’t pay monthly assessments.

In 2010, The Spa at Sunset Isles — with 232 units in Royal Palm Beach — was facing several common problems confronting South Florida communities. It had a large number of homeowners falling into foreclosure and unable to make mortgage or maintenance payments. Banks were reluctant to take title to “underwater” properties worth less than the mortgages owed. Last year nearly half of the owners — 104 — were in foreclosure and 160 had stopped paying maintenance fees.

Last summer the community had a bank balance of about $25,000 and was $126,000 in debt to vendors and creditors. It had to raise monthly assessments from an average of about $358 per month to $400 per month — depending on size of each home — and required owners to pay special assessments.
So to get out of financial trouble, the Spa’s board decided to file for Chapter 11 bankruptcy in August 2010 in the United States Bankruptcy Court in the Southern District of Florida West Palm Beach Division, said John T. Kinsey, the association’s attorney.

Fast forward to today: The community has emerged from Chapter 11 and now has more than $490,000 in its bank accounts and the board hopes to drop monthly assessments from a current average of $400 to $251 in 2012. John Bazos, president of the condominium association, said the board also plans to make capital improvements to the property, including repairing roads and fixing a broken water fountain at the entrance.

“The community had a complete turnaround from being destitute to being prosperous,” Bazos said. “The result is increasing the real estate value because the financial strength we were able to gain via the legal avenues of Chapter 11.”

The community still faces financial difficulties because of the downturn in the market and the region’s pressing foreclosure problems. Five years ago, a two-bedroom, two bath home in the community sold for about $280,000. Today a similar home sells for around $45,000, say board members. But Kinsey said the bankruptcy filing saved the community from financial disaster.

Kinsey said the Spa’s board had to pay about $1,000 in court fees to file for bankruptcy and accrued about $50,000 in legal fees in the process.

By filing for bankruptcy protection in federal court, the community obtained court orders requiring banks to begin paying monthly assessments to the association and take title of homes in foreclosure, Kinsey said. Once the banks take title to units, they are required by Florida law to pay the monthly assessments for those units. And while most people think of financial reorganization under Chapter 11 as being only for major corporations, such as automobile companies and major airlines, condo and homeowners communities are also entitled to file for bankruptcy.

Some of the Spa’s homes had been locked in foreclosure proceedings for as long as 36 months, which meant that the association was unable to collect assessments from previous owners that had defaulted on mortgages or from the banks that hold the mortgage notes.

Florida laws could not achieve the same results, Kinsey said, because the statutes do not require banks to pay assessments before they take title nor require them to foreclose on a particular deadline. But in bankruptcy court, Chief Judge Paul G. Hyman had the authority to make the banks involved start paying the association their share of monthly assessments.

That’s because bankruptcy laws allow any entity that pays to maintain a bank’s collateral to recover its costs. In this case, the board was paying to maintain the common areas of the homeowners community, which are tied contractually to home loans in a shared community and considered part of the bank’s collateral. The next step was Hyman’s order, handed down in February, which enabled the association to force the banks to take title to units independent of their mortgage foreclosure actions.

“The association had to file Chapter 11 in order to accomplish any and of this,” Kinsey said. So far one bank has complied with Hyman’s orders and the association has begun filing lien foreclosure suits against the rest, Kinsey said.

Bazos said the community’s budget and morale are in the best shape in years.

“Our owners are very happy because their properties are standing on financially sound ground and the properties are easier to sell because you don’t have an association that is in default and you have an association that is able to make improvements to the property.”

dvasquez@tribune.com or 954-356-4219 or 561-243-6686. Daniel Vasquez‘ condo column runs Wednesdays in Your Money and at SunSentinel.com/condos. Check out Daniel’s Condos & HOAs blog for news, information and tips related to life in community associations at SunSentinel.com/condoblog. You can also read his consumer column Mondays in Your Money and at sunsentinel.com/vasquez.

Click for Source Article

Generally, taxpayer may discharge federal income taxes, depending on the age of the debt. Thus, they may be dischargeable in a Chapter 7 if ALL of the following criteria are met.

1. The tax is for a year for which a tax return is due more than 3 years prior to the filing of the bankruptcy petition;
2.A tax return was filed more than two years prior to the filing of the bankruptcy petition;
3.The tax was assessed more than 240 days prior to filing of the bankruptcy petition;
4.In addition, the tax must not be due to a fraudulent tax return, nor did the taxpayer attempt to evade or defeat the tax.

The taxpayer who contemplates bankruptcy should consult with a professional who understands the nuances of the dischargeability of taxes as provided under the bankruptcy code. Because there are so many timing rules that have to be complied with, the timing of filing the bankruptcy petition is crucial in order to obtain the desired fresh start through the bankruptcy process.

Sidney Turner

www.SidneyTurnerllc.com

The surge in bankruptcies that occurred in 2008 and 2009 featured a greater number of 363 sales followed by liquidating plans than in prior bankruptcy cycles. A “363 sale” refers to the sale of any asset that is allowed by the bankruptcy court under Section 363 of the U.S. Bankruptcy Code. Typically, the term is used to describe the sale of a majority of a business’s assets as an ongoing enterprise.

In a best-case scenario, a 363 sale might take a few weeks to execute, especially when a buyer is lined up prior to the filing and, because there are no realistic alternatives, no auction is held. Such was the scenario in both the General Motors and Chrysler Chapter 11 reorganizations. More likely, however, the process will take two to four months and sometimes longer.

Once the major assets are sold, the real work of the wind-down begins. The remaining assets are liquidated; the remainder of the company is wound down; secured creditors get their collateral (or more likely the cash equivalent of their collateral up to the value of their claims); and unsecured creditors’ claims are reviewed, valued, and then paid in full or in part, generally in accordance with the priority scheme in the Bankruptcy Code.

Sidney Turner

www.SidneyTurnerllc.com

ERIC MYERS, Plaintiff-Appellant,
v.
TOOJAY’S MANAGEMENT CORPORATION, Defendant-Appellee.

No. 10-10774
D.C. Docket No. 5:08-cv-00365-WTH-GRJ

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

May 17, 2011

PUBLISH

Appeal from the United States District Court

for the Middle District of Florida

Before TJOFLAT, CARNES and HILL, Circuit Judges.

CARNES, Circuit Judge:

Page 2

A section of the Bankruptcy Code prohibits employers from taking certain actions against people who are or have been in bankruptcy. 11 U.S.C. § 525. The first subsection of that section applies to government employers and provides that they may not “deny employment to, terminate the employment of, or discriminate with respect to employment against” a person on that ground. Id. § 525(a). The second subsection provides that a private employer may not “terminate the employment of, or discriminate with respect to employment against” an individual on that ground. Id. § 525(b). The primary issue this appeal presents is whether that second subsection prohibits a private employer from denying employment to an individual on the ground that he is or has been in bankruptcy, even though it, unlike the first subsection, does not say that. Elementary principles of statutory construction and common sense persuade us to answer that question in the negative.

I.

A.

In January 2008 Eric Myers filed a Chapter 7 bankruptcy petition with a bankruptcy court in North Carolina. The next month he moved from North Carolina to central Florida looking for a fresh start and found work as a shift supervisor at a Starbucks coffeehouse. In May 2008 the bankruptcy court

Page 3

discharged Myers’ debts. While still a supervisor at Starbucks, Myers came across an advertisement for a managerial position at a local TooJay’s Gourmet Deli restaurant. He expressed his interest in the position to Thomas Thornton, the regional manager of TooJay’s Management Corporation.

In mid-July 2008 Myers had an interview with Thornton. According to Myers, he was told during the interview that he would be paid about $55,000 per year, that there was a bonus plan, and that there were other benefits such as health insurance. At the end of the interview a two-day on-the-job evaluation of Myers was scheduled, beginning Thursday, July 31, 2008 and ending Friday, August 1. Myers was to receive $100 pay for each of those two days, which was less than half of what he would have been paid if he had actually been hired for the position at his proposed salary.¹ Myers later explained that the on-the-job evaluation “was just so that we could both get a feel for the restaurant, that I would make sure I was comfortable doing it there, that [Thorton] was comfortable with me and the other restaurant managers were comfortable with me.”

On July 31, 2008, the first day of the on-the-job evaluation, Myers observed the operation of the restaurant, including its kitchen and its deli, to see how

Page 4

TooJay’s operated. Later Myers did some kitchen prep work and made a few deli sandwiches. He also completed several personnel forms: a personnel action form, federal tax forms, a medical history form, a payroll deduction authorization form, a form acknowledging receipt of the employee handbook, a driver safety form, and a federal form to verify employment eligibility.

The top of the personnel action form asked the TooJay’s manager or corporate officer to “Check Appropriate Box(s).” The options given, among others, were “New Hire,” “Rehire,” and “Other (explain).” On Myers’ form, the “Other(explain)” box was checked and the explanation written next to it was “OJE.” Below that, information about Myers was written in the “Employee Information” area, and in the remarks section was written: “2 days of OJE (on the job evaluation) at 100.00 per day.” Myers filled out his personal information on the other forms and signed where necessary. Many of the spaces that he filled out or signed were designated on the forms as “Employee Name” or “Employee Signature.”

On August 1, 2008, the second day of Myers’ on-the-job evaluation, he spent most of the day in the kitchen. He also completed more personnel forms. Those forms included an acknowledgment of receipt of a sexual harassment manual; a non-solicitation and confidentiality agreement; and an authorization and

Page 5

release of personal information for a background check.² The background check release permitted TooJay’s to “conduct a comprehensive review” including a review of Myers’ “credit history and reports.” Myers filled out and signed those forms in the appropriate spaces, many of which were designated as being for the “Employee” name or signature. For example, the new hire checklist, which listed all the forms that Myers had filled out, had his name on the “Employee Name” line. The checklist, however, also had the letters “OJE” written and underlined twice at the top of the page.

According to Myers’ trial testimony, at the end of his on-the-job evaluation Thornton scheduled him to begin work on August 18 without informing him that his employment would be conditioned on a clean credit history. According to Thornton’s testimony, however, he never offered Myers a job. When asked whether he had the authority to hire assistant managers, Thornton responded that he only “had the authority to interview and recommend the hiring of assistant managers.” Hiring was contingent on the background check, something that Thornton said he told Myers.

Page 6

On August 4, 2008, Myers gave Starbucks his two weeks notice. That was also the date on a letter that TooJay’s sent to Myers, informing him: “that we find it necessary to rescind our previous offer of employment. This decision was based in whole or in part, on the information provided us in a Consumer Report…. The report was prepared pursuant to an authorization signed by you at the time of the application.” Myers received the letter on August 12, 2008.

After Myers received that letter he called Thornton, who told him that he was not hired because of “a financial matter” and that he should contact Sharon Polinski in TooJay’s human resources department. He did, and Polinski told him that the only reason he was not hired was that he had filed for bankruptcy, and it was TooJay’s policy not to hire people who had done that. On August 13, 2008, Myers wrote a letter to William Korenbaum, TooJay’s President and CEO, whom he had never met, asking him to reconsider the company’s decision. Myers began by stating “I am writing to you in regard to my employment offer which was withdrawn by your company prior to the commencement of my employment.” After explaining why he thought that TooJay’s should hire him despite his bankruptcy, Myers closed the letter by expressing his hopes that TooJay’s would change its mind and stated that he “look[ed] forward to hopefully becoming a member of the TooJay’s family.”

Page 7

TooJay’s did not respond to Myers’ letter. Shortly after he wrote it, Starbucks let Myers return to his shift supervisor position at the same rate of pay but with fewer hours. TooJay’s eventually sent Myers a check for the payment it had promised him for the two days of his on-the-job evaluation.

B.

On September 2, 2008, Myers filed a lawsuit against TooJay’s. The complaint alleged, among other things, that TooJay’s had discriminated against him because of his bankruptcy, in violation of 11 U.S.C. § 525(b), by refusing to hire him and, alternatively, by terminating him from the job after it had hired him.³ TooJay’s and Myers filed cross-motions for summary judgment on the refusal to hire claim. The district court denied Myers’ motion and granted TooJay’s based on its conclusion that § 525(b) does not prohibit a private employer from refusing to hire someone because of a bankruptcy. TooJay’s had also moved for summary judgment on the wrongful termination claim, but the district court denied the motion after finding a genuine issue of material fact about the existence of an employment relationship between Myers and TooJay’s.

Page 8

During a two-day jury trial, Myers presented several witnesses and testified himself. During his testimony, Myers changed his tune several times about when he was hired. He testified at one point during direct that “I began my employment on… July 31st,” but at another point said that he was hired “[o]n the 31st or—or August 1st.” He testified on cross-examination that he was hired before his on-the-job evaluation began on July 31, 2008, and implied that the hiring took place after his interview with Thornton.⁴

At the close of the evidence, Myers moved for judgment as a matter of law, which the district court denied, sending the wrongful termination claim to the jury. Forty-three minutes later, the jury returned a verdict in favor of TooJay’s, responding to the first special interrogatory, “Do you find from a preponderance of the evidence… [t]hat the Plaintiff became an employee of the Defendant?” with: “No.” The district court entered judgment against Myers.

Myers filed a renewed motion for judgment as a matter of law and a motion for new trial, both of which the district court denied. He then filed a notice of

Page 9

appeal from the judgment, specifying the orders granting summary judgment to TooJay’s on his refusal to hire claim, denying his renewed motion for judgment as a matter of law on his wrongful termination claim, and denying his motion for a new trial as to that claim. This is his appeal.

II.

Myers has two claims that TooJay’s violated § 525(b). One claim is that it did so by refusing to hire him because he had filed for bankruptcy, and the other claim is that it actually did hire him but then terminated him because he had filed for bankruptcy. The first claim was rejected by the district court on summary judgment, while the second was rejected by the jury after a trial. He contends that the district court erred in granting summary judgment against him on the first claim and, alternatively, that it erred in denying his motion for judgment as a matter of law and his motion for new trial on the second claim.

A.

We will start with Myer’s refusal to hire claim, which is his primary one. Section 525 of the Bankruptcy Code provides individuals who are or have been in bankruptcy with some protection against discriminatory actions by employers. See 11 U.S.C. § 525(a)-(b). The acts against which they are protected depend on whether the employer is a “governmental unit” or a “private employer.” Id.

Page 10

Section 525(a), which was enacted first, provides in relevant part that:

[A] governmental unit may not… deny employment to, terminate the employment of, or discriminate with respect to employment against, a person that is or has been a debtor under this title or a bankrupt or a debtor under the Bankruptcy Act, or another person with whom such bankrupt or debtor has been associated….

Id. (emphasis added). Section 525(b), by contrast, provides in relevant part:

No private employer may terminate the employment of, or discriminate with respect to employment against, an individual who is or has been a debtor under this title, a debtor or bankrupt under the Bankruptcy Act, or an individual associated with such debtor or bankrupt….

Id. The conspicuous difference between the two subsections is that § 525(a), the one applying to government employers, explicitly forbids them from either denying or terminating employment because of a bankruptcy, while § 525(b), the one applying to private employers, forbids them from terminating employment because of bankruptcy but says nothing about denying employment because of it.

The district court’s reasoning, with which we are in full accord, is as follows:

A comparison of the words used in subsections (a) and (b) demonstrates that subsection (a) prohibits government employers from “deny[ing] employment to” a person because of his or [her] bankrupt status, whereas subsection (b) does not contain such a prohibition for private employers. Rather, the private sector is prohibited only from discriminating against those persons who are already employees. In other words, Congress intentionally omitted any mention of denial of employment from subsection (b), but specifically provided that denial

Page 11

of employment was actionable in subsection (a). Thus, by its plain language, the statute does not provide a cause of action against private employers for persons who are denied employment due to their bankrupt status. “Where Congress has carefully employed a term in one place but excluded it in another, it should not be implied where excluded.”

(citation omitted and first alteration in original). If TooJay’s were a governmental unit, Myers would have a refusal to hire claim; because it is not, he does not. Our conclusion flows along with a stream of decisions by other federal courts. See In re Burnett, _F.3d_, No. 10-20250, 2011 WL 754152, at *2 (5th Cir. Mar. 4, 2011); Rea v. Federated Investors, 627 F.3d 937, 940—41 (3d Cir. 2010); Burnett v. Stewart Title, Inc., 431 B.R. 894, 901 (S.D. Tex. 2010); Fiorani v. CACI, 192 B.R. 401, 407 (E.D. Va. 1996); Pastore v. Medford Sav. Bank, 186 B.R. 553, 555 (D. Mass. 1995); In re Stinson, 285 B.R. 239, 250 (Bankr. W.D. Va. 2002); In re Madison Madison Int’l of Ill., 77 B.R. 678, 682 (Bankr. E.D. Wis. 1987).

Myers argues, against the strong current of those decisions and contrary to the clear contextual meaning of the operative language in § 525(b), that we should broadly construe the language “or discriminate with respect to employment” in § 525(b) to include denial of employment. He believes that doing so would better effectuate the Bankruptcy Code’s remedial purpose of giving bankruptcy debtors a fresh start. His construction of § 525(b) does not hold water for a number of reasons.

Page 12

First, as we have already noted, § 525(a) expressly prohibits a government employer from refusing to hire someone based on a bankruptcy filing, while § 525(b) does not. The Supreme Court and this Court have often held, “[w]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Dean v. United States, _U.S._, 129 S.Ct. 1849, 1854 (2009) (quotation marks omitted); Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 300 (1983) (same) (quoting United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972)); Delgado v. U.S. Att’y Gen., 487 F.3d 855, 862 (11th Cir. 2007).⁵

Page 13

Had Congress wanted to cover a private employer’s hiring policies and practices in § 525(b), it could have done so the same way it covered a governmental unit’s hiring policies and practices in § 525(a). See Russello, 464 U.S. at 23, 104 S.Ct. at 300. That Congress did not speaks loudly and clearly. United States v. Crape, 603 F.3d 1237, 1246 (11th Cir. 2010); Delgado, 487 F.3d at 862 (“[W]here Congress knows how to say something but chooses not to, its silence is controlling.” (quoting CBS Inc. v. Prime Time 24 Joint Venture, 245 F.3d 1217, 1226 (11th Cir. 2001)).

The second reason we reject Myers’ position has two parts. The first part is that the “or discriminate with respect to employment” language is in both § 525(a) and (b), and it would be illogical to read the identical language in two successive subsections to have different meanings. See Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 232, 127 S.Ct. 2411, 2417 (2007) (“A standard principle of statutory construction provides that identical words and phrases within the same statute should normally be given the same meaning.”); Douglas v. Yates, 535 F.3d 1316, 1320-21 (11th Cir. 2008) (“Similar language contained

Page 14

within the same section of a statute must be accorded a consistent meaning.” (alterations omitted) (quoting Nat’l Credit Union Admin. v. First Nat’l Bank & Trust Co., 522 U.S. 479, 501, 118 S.Ct. 927, 939 (1998))).

The second part of this reason for rejecting Myers’ position is that the “or discriminate” language cannot have the meaning he attributes to it in § 525(b). It cannot because that language appears in a sentence providing that “a governmental unit may not… deny employment to, terminate the employment of, or discriminate with respect to employment against” a bankruptcy debtor. 11 U.S.C. § 525(a). If “discriminate with respect to employment” included the denial of employment, the words “deny employment” in § 525(a) would be meaningless, pointless, superfluous. And that “is an interpretative no-no.” In re Hedrick, 524 F.3d at 1189; see also Corley v. United States, _U.S._, 129 S.Ct. 1558, 1566 (2009) (“[A] statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.” (quotation marks omitted)); United States v. Menasche, 348 U.S. 528, 538-39, 75 S.Ct. 513, 520 (1955) (“The cardinal principle of statutory construction is to save and not to destroy. It is our duty to give effect, if possible, to every clause and word of a statute….” (quotation marks and citations omitted)); Polycarpe v. E&S Landscaping Serv., Inc., 616 F.3d 1217, 1223 (11th Cir. 2010) (“[I]t is our

Page 15

obligation to give meaning to all of the statutory language that Congress enacted.”); Huff v. Dekalb County, 516 F.3d 1273, 1280 (11th Cir. 2008) (“[We] must respect the longstanding general principle that courts must not interpret one provision of a statute to render another provision meaningless.” (quotation marks and alterations omitted)).

The combined effect of the conclusions from those two syllogisms is this one: The “or discriminate with respect to employment” language in § 525(a) means something other than discrimination in hiring; and it means the same thing in § 525(b) as in § 525(a); therefore, in § 525(b) the language means something other than discrimination in hiring. It must mean, instead, discrimination in some other aspects of employment, such as in promotions, demotions, hours, pay, and so forth.

The third reason we reject Myers’ argument is that, in essence, it calls for us to recast the meaning of § 525(b)’s language in a way that will better achieve one of the broad purposes Congress sought to achieve in the Bankruptcy Code, which is to give debtors who go through bankruptcy a fresh start. See Leary v. Warnaco, Inc., 251 B.R. 656, 658-59 (S.D.N.Y. 2000). But “we interpret and apply statutes, not congressional purposes.” Friends of the Everglades v. S. Fla. Water Mgmt. Dist., 570 F.3d 1210, 1226 (11th Cir. 2009) (quoting In re Hedrick, 524 F.3d

Page 16

1175, 1188 (11th Cir. 2008) (quotation marks omitted)); see also Fla. Dep’t of Revenue v. Piccadilly Cafeterias, Inc., 554 U.S. 33, 52, 128 S.Ct. 2326, 2339 (2008) (“[I]t is not for us to substitute our view of policy for the legislation which has been passed by Congress.” (quotation marks and alterations omitted)); Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79, 118 S.Ct. 998, 1002 (1998) (“[I]t is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”).

A statute is not a “Magic Eye” image. When presented with the plain text of a statute, we do not gaze at it blurry-eyed, attempting to see some hidden image formed by the broad purpose that lies behind the legislation. As the Supreme Court and this Court have explained, purpose-driven statutory interpretation “at the expense of specific provisions ignores the complexity of the problems Congress is called upon to address and the dynamics of legislative action.” Bd. of Governors v. Dimension Fin. Corp., 474 U.S. 361, 373-74, 106 S.Ct. 681, 688-89 (1986); Friends of the Everglades, 570 F.3d at 1227 (“[T]he legislative process serves as a melting pot of competing interests and a face-off of battling factions.”). “The provisions of legislation reflect compromises cobbled together by competing political forces,” Friends of the Everglades, 570 F.3d at 1227, and “[i]nvocation of the ‘plain purpose’ of legislation at the expense of the terms of the statute itself

Page 17

takes no account of the processes of compromise and, in the end, prevents the effectuation of congressional intent,” Dimension Fin. Corp., 474 U.S. at 374, 106 S.Ct. at 689. Judges and courts tempted to bend statutory text to better serve congressional purposes would do well to remember that Congress enacts compromises as much as purposes.

Or to put it in different terms, “we are not licensed to practice statutory remodeling.” United States v. Griffith, 455 F.3d 1339, 1344 (11th Cir. 2006); see also Ali v. Fed’l Bureau of Prisons, 552 U.S. 214, 228, 128 S.Ct 831, 841 (2008) (“We are not at liberty to rewrite the statute to reflect a meaning we deem more desirable.”); Pavelic & Leflore v. Marvel Entm’t Grp., 493 U.S. 120, 126, 110 S.Ct. 456, 460 (1989) (“Our task is to apply the text, not to improve upon it.”); Noble State Bank v. Haskell, 219 U.S. 575, 580, 31 S.Ct. 299, 300 (1911) (denial of rehearing) (Holmes, J.) (“We fully understand the practical importance of the question, and the very powerful argument that can be made against the wisdom of the legislation, but on that point we have nothing to say, as it is not our concern.”); Friends of the Everglades, 570 F.3d at 1224 (“[W]e are not allowed to add or subtract words from a statute; we cannot rewrite it.”); Wright v. Sec’y for Dep’t. of Corrs., 278 F.3d 1245, 1255 (11th Cir.2002) (“Our function is to apply statutes, to carry out the expression of the legislative will that is embodied in them, not to

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‘improve’ statutes by altering them.”); Harris v. Garner, 216 F.3d 970, 976 (11th Cir. 2000) (“We will not do to the statutory language what Congress did not do with it, because the role of the judicial branch is to apply statutory language, not to rewrite it.”).

Our holding that § 525(b) does not apply to refusals to hire is in accord with the holdings of the only two other circuits that have decided the issue. See In re Burnett, _F.3d_, No. 10-20250, 2011 WL 754152, at *2 (5th Cir. Mar. 4, 2011) (holding 11 U.S.C. § 525(b) does not prohibit private employers from denying employment to persons because of their status as a bankruptcy debtor); Rea v. Federated Investors, 627 F.3d 937, 940-41 (3d Cir. 2010) (same).

B.

Myers’ other claim, the one for wrongful termination in violation of § 525(b), is doomed by a defect different in kind from the one that defeated his refusal to hire claim. The legal premise of the termination claim is correct: A private employer cannot terminate an employee because he has filed for bankruptcy. But the factual basis he asserts for the claim—that he was hired and then fired because of his bankruptcy filing—was rejected by the jury. After hearing all of the evidence, and being properly instructed, the jury in answering a special interrogatory found that Myers had not proven by a preponderance of the

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evidence that he had ever become an employee of TooJay’s. On that basis the district court entered judgment against Myers on his wrongful termination claim. It thereafter denied his motions for judgment as a matter of law and for a new trial based on the weight of the evidence. Myers contends that both of those rulings were error.

We review de novo a district court’s denial of a renewed motion for judgment as a matter of law. Aronowitz v. Health-Chem Corp., 513 F.3d 1229, 1236 (11th Cir. 2008). And a motion for judgment as a matter of law may be granted only if after examining “all evidence in a light most favorable to the non-moving party” we determine “there is no legally sufficient evidentiary basis for a reasonable jury to find” for that party. Id. at 1236-37 (quotation marks omitted). We review a district court’s denial of a motion for new trial only for an abuse of discretion. Lipphardt v. Durango Steakhouse of Brandon, Inc., 267 F.3d 1183, 1186 (11th Cir. 2001). And “new trials should not be granted on evidentiary grounds unless, at a minimum, the verdict is against the great—not merely the greater—weight of the evidence.” Id. at 1186; see also Redd v. City of Phenix City, 934 F.2d 1211, 1215 (11th Cir. 1991) (“When there is some support for a jury’s verdict, it is irrelevant what we or the district judge would have concluded.”).

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We have already discussed Myers’ waffling on the witness stand about the date on which he believed he had been hired and his inconsistent statements about the purpose of his on-the-job evaluation, all of which undermined his credibility. See supra at 3, 8. It was undisputed that two of the employment forms expressly stated that he was at the restaurant only for an “OJE”—an on-the-job evaluation. And he was paid for those two days less than half the amount he would have received for two days work if he had been an employee. There was also the letter Myers wrote afterwards to TooJay’s President and CEO acknowledging that the “employment offer” was “withdrawn by your company prior to the commencement of my employment,” and stating that he “look[ed] forward to hopefully becoming a member of the TooJay’s family” in the future. See supra at 6-7.

That evidence was more than enough for the jury to discredit Myers’ contrary testimony and find that no employment relationship was formed. See Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189, 1193 (11th Cir. 2004) (“Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.” (quoting Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150, 120 S.Ct. 2097, 2010 (2000))); see also Owens v. Wainwright, 698 F.2d 1111, 1113 (11th Cir. 1983) (“Appellate courts reviewing a cold record give particular deference to

Page 21

credibility determinations of a fact-finder who had the opportunity to see live testimony.”). The district court did not err in denying Myers’ renewed motion for judgment as a matter of law.

Nor did the court abuse its discretion in denying Myers’ motion for a new trial. The jury’s verdict is not against the great weight of the evidence.

AFFIRMED.
——–

Notes:

^1. The proposed annual salary for the position, $55,000, would work out to daily pay of approximately $211—$55,000 divided by 260 work days (5 days a week for 52 weeks a year).

^2.Myers also completed a new hire checklist and a motor vehicle information form, though it is not clear from the record on which day of the on-the-job evaluation those forms were filled out.

^3.Myers also included in his original complaint a breach of contract claim under Florida law. And he amended the complaint on September 4, 2008 by adding a claim for unpaid wages under the Fair Labor Standards Act. The FLSA claim and the state law contract claim were both withdrawn by Myers in his response to TooJay’s motion for summary judgment.

^4.In his opening brief to this Court, Myers asserted that “[i]f [he] successfully completed the [on-the-job evaluation], TooJay’s was going to hire him,” which contradicts his trial testimony that he had been hired before starting the on-the-job evaluation. He also asserted in his brief that “[a]t the conclusion of the [on-the-job evaluation], Thornton offered [him] the Assistant Manager position, [he] accepted the position, and Thornton told [him] that he was hired.” But he states in the same brief that when he received TooJay’s letter dated August 4, 2008, he “did not know if he was not being hired or if he was being fired.”

^5.At oral argument Myers for the first time argued that under Gomez-Perez v. Potter, 553 U.S. 474, 128 S.Ct. 1931 (2008), we should not apply the selective inclusion presumption recognized in Russello because Congress enacted § 525(b) seven years after § 525(a). See Gomez-Perez, 553 U.S. at 486, 128 S.Ct. at 1940 (“Negative implications raised by disparate provisions are strongest in those instances in which the relevant statutory provisions were considered simultaneously when the language raising the implication was inserted.” (quotation marks and alteration omitted)). But in Gomez-Perez the Court also relied on “the fact that the prohibitory language in [the later-enacted statutory provision] differs sharply from that in the [earlier-enacted one]” and that the later statutory provision “was not modeled after [the earlier one] and is couched in very different terms.” Id. at 486-87, 128 S.Ct. at 1940.

In this case, as we have already discussed, the prohibitory language of § 525(b) does not differ materially from § 525(a), except for the conspicuous absence of the clause “deny employment to.” Compare 11 U.S.C. § 525(b) with 11 U.S.C. § 525(a). In enacting § 525(b), Congress obviously took the key language of § 525(a) and altered it in the one key respect that we are discussing. The selective inclusion presumption that applies in these circumstances, which has been followed as precedent by this Court for more than 38 years and was recognized by the Supreme Court in Russello and other decisions, is not weakened by the passage of seven years between the enactment of the two subsections of § 525. See United States v. Elliott, 62 F.3d 1304, 1311-12 (11th Cir. 1995) (applying the selective inclusion presumption where the two provisions had been enacted 20 years apart); see also Wong Kim Bo, 472 F.2d at 722.

Congress had § 525(a) in front of it when it enacted § 525(b). It used the same language for § 525(b) that it had in § 525(a) except it left out “deny employment to” in § 525(b). We presume that Congress did so for a reason.
——–

Sidney Turner

www.SidneyTurnerllc.com

The trustee appointed to unravel Bernard Madoff’s massive fraud is seeking to distribute recovered funds for the first time to the victims.

Trustee Irving Picard told a Manhattan bankruptcy court he is planning a $2.6 billion allocation, including an initial payout of $272 million.

Below is a link to an article in the Palm Beach Post

http://www.palmbeachpost.com/news/nation/ny-madoff-trustee-wants-to-start-paying-victims-1454512.html

Sidney Turner

www.SidneyTurnerllc.com

When you get to greedy it can come back and bite you.

It would force shareholders to give back money gained from simply selling their shares into a corporate buyout offer, based on the theory that the deal was so fundamentally flawed that it amounted to a fraud that should never have happened.

Creditors are going after the shareholders under a legal concept known as “fraudulent transfer.”  A similar concept the Madoff trustee is using to recover monies paid out to investors. The theory allows creditors to argue that the banks financing Tribune’s buyout and the shareholders who cashed out should have known the deal would destroy the company. As a result, the argument goes, the banks shouldn’t be allowed to recoup their loans and the shareholders should have to give back money they received.

Enjoy the Article below

Sidney Turner

www.SidneyTurnerllc.com

Sam Zell‘s top-of-the-market buyout of Tribune Co. cashed out shareholders about a year before the media company tumbled into bankruptcy protection. Now, those former holders are bracing for a possible barrage of litigation aimed at clawing back more than $8 billion in payouts.

If successful, any litigation would represent an unprecedented legal development, some lawyers said. It would force shareholders to give back money gained from simply selling their shares into a corporate buyout offer, based on the theory that the deal was so fundamentally flawed that it amounted to a fraud that should never have happened. Under the best-case scenario, creditors likely would get back only between $2 billion and $3 billion, the amount necessary to make unsecured creditors whole.

While most lawyers said such cases are difficult to prove, former shareholders are girding for the worst, in some instances talking with lawyers and investors about plans to sock away money in anticipation of any litigation.

Creditors are going after the shareholders under a legal concept known as “fraudulent transfer.” The theory allows creditors to argue that the banks financing Tribune’s buyout and the shareholders who cashed out should have known the deal would destroy the company. As a result, the argument goes, the banks shouldn’t be allowed to recoup their loans and the shareholders should have to give back money they received.

In certain instances, merely demonstrating a company was insolvent at the time of a leveraged buyout can leave deal participants exposed.

Hedge fund Stark Investments, one of Tribune’s biggest investors prior to the 2007 buyout, already has begun setting aside money in anticipation of a settlement or judgment, said people familiar with the matter.

Others on Wall Street are hunting for new ways to profit from it.

Prime-brokerage executives at Deutsche Bank AG are in discussions about setting up an operation through the distressed-debt trading desk that would match buyers and sellers of bankruptcy claims related to the shareholder litigation, said a person familiar with the matter. While banks have set up such market-making operations for creditors’ claims, the possibility that shareholders could have to cough up payments expands the market for trading claims.

Deutsche Bank’s prime-brokerage business caters to dozens of hedge funds that could want to bet on the probability that claims against shareholders will succeed, an opportunity one bank executive called “creative thinking” by the bank.

In the lawsuit filed in Delaware bankruptcy court last year, Tribune creditors allege that Mr. Zell’s buyout was “among the worst in American corporate history.” The creditors’ complaint said an unnamed engineer of the deal likened it to “carrying a fat person up [Mount] Everest, hopefully it doesn’t kill us.” The lawsuit was filed by Tribune’s official committee of unsecured creditors, which serves as a watchdog in the bankruptcy case and represents bondholders and a variety of other creditors.

Tribune declined to comment. Jon Wasserman, general counsel for Mr. Zell’s Equity Group Investments, said the bankruptcy examiner found no evidence that Mr. Zell acted in bad faith.

Hedge funds, mutual funds, former Tribune executives and even family trusts and a large foundation are ensnared in the suit. The deal swelled the company’s debt to roughly $13 billion before Tribune was forced to seek bankruptcy protection.

Aurelius Capital Management LP, a large Tribune bondholder, recently said in bankruptcy court that it also could go after shareholders in state courts to disgorge payouts from the deal.

“Former Tribune shareholders likely face a daunting task in defending their receipt of proceeds from the mountain of debt used to finance this deal,” said Bill Welnhofer, managing director and head of restructuring at investment bank Robert W. Baird & Co. in Chicago. “The company’s business model had already started showing signs of weakening.”

The owner of the Chicago Tribune, Los Angeles Times, Baltimore Sun and several television stations used more than $11 billion in debt financing from several Wall Street banks to back the deal and pay off existing shareholders, money some creditors believe belongs to them.

A bankruptcy-court examiner last summer found it “highly likely” that Tribune was “rendered insolvent and without adequate capital” as a result of the deal. The examiner, Kenneth Klee, said some financial projections made by Tribune management as the deal neared closing were too rosy and bore the “earmarks of a conscious effort” to make the company’s financial condition appear better so the buyout could be completed. The examiner found Mr. Zell didn’t act in bad faith.

Tribune’s reorganization plan would shield the lending banks, including J.P. Morgan Chase & Co., Citigroup Inc., Bank of America Corp. and the former Merrill Lynch & Co., which is now owned by BofA, from any future litigation. In exchange, the banks have agreed to pay money to bondholders that those creditors wouldn’t normally receive in a bankruptcy. Shareholders and some former Tribune executives, though, remain exposed. The banks declined to comment.

Courts have generally held that shareholders aren’t liable in leveraged buyouts that later collapse unless the case involves actual fraud with evidence that shows clear intent, said Richard Levin, a bankruptcy lawyer at Cravath, Swaine & Moore LLP.

“It’s tough to prove actual intent because there usually is not a smoking gun,” he said. “Usually, these deals are driven by an intent to make a good business deal, not harm existing creditors.”

For Stark, the potential litigation exacerbates an already precarious position. In 2007, Stark managed $13 billion for investors. But it suffered investment losses in 2008 and some of the worst client withdrawals in the industry, leaving it with $3 billion now, with investors still waiting for several hundred million dollars more in redemptions that haven’t yet been paid, said people close to the matter.

Stark has told clients that the Tribune bankruptcy “could get messier,” and the hedge-fund firm is being conservative by holding back money, said one person familiar with the matter.

Other large former shareholders targeted by Tribune creditors include the Chandler family, among Tribune’s largest owners at the time of the buyout, and the McCormick and Cantigy foundations. The trio held at least a third of Tribune’s shares and reaped more than $2 billion in the buyout, according to creditors.

Tribune’s former chief executive, Dennis FitzSimons, also is targeted.

Representatives for the Chandlers didn’t respond to requests for comment. The foundations declined to comment. Mr. FitzSimons, also the McCormick foundation’s board chairman, declined to comment.

Write to Mike Spector at mike.spector@wsj.com, Jenny Strasburg atjenny.strasburg@wsj.com and Shira Ovide at shira.ovide@wsj.com

1. To provide a “fresh start” for economically viable debtors;

2. To promote equality of distribution among similarly situated creditors;

3. To concentrate the activities of judgment creditors into a single court of broad and exclusive federal jurisdiction;

4. To provide “breathing space” to a debtor, permit a structured process outside of a quick liquidation to enhance asset values, and a determination by creditor classes of a “plan” for the distribution of the value of those assets.

When is Chapter 11 useful?

1. To provide an opportunity for financially troubled but economically viable company to restructure and continue operations, either under new ownership or a new financial structure, or by removing debt impediments to viability such as ruinous unsecured debt or disastrous contracts; or

2. To provide an orderly liquidation of a failed business that possesses assets that will have an enhanced value if sold for their “going concern” value or that need to be marketed through a special process, or that would benefit from the retention of current management and continuing operations throughout the liquidation process.

When is it not useful?

1. To postpone the death of an irretrievably failed business that lacks significant salvageable assets;

2. To halt a foreclosure entirely upon speculative hope that something will turn up in a few weeks;

3. To escape the oppressive terms of a secured lender with a blanket lien on all business assets (except in a few rare instances);

4. When a consensual workout or an assignment for the benefit of creditors in state court would work and is the less costly alternative.

Use of bankruptcy as a sales vehicle

1. Under § 363 (f) of the Bankruptcy Code, a debtor may sell property of the bankruptcy estate free and clear of liens, claims and encumbrances, subject to certain restrictions. This allows debtor to make assets more marketable by severing third party claims and cleaning title.

2. Under certain conditions, a bankruptcy court can also, pursuant to § 363 (f), permit the debtor to sell property for which the debtor holds only a partial interest or where the debtor’s interests are contested by a third party.

II. First Steps in a Chapter 11 Case

Petition and Initial Filings

A chapter 11 case is commenced by filing a petition. The petition consists of an official form (or a document that substantially conforms to the official form) that requires the debtor to estimate the amount of its assets and liabilities. The required initial filings also include a list o the top 20 creditors and their addresses, parties with whom the debtor has executory (existing) contracts and leases, a corporate resolution authorizing the filing (if the debtor is a corporation) and an attorney’s verified statement disclosing the attorney’s fee arrangement.  A matrix of creditor addresses is also often required under the bankruptcy jurisdiction’s local rules.

Often filed initially, however, not required to be, are the schedules listing all secured and unsecured creditors, their potential claims, and the debtor’s assets and a list of equity security holders. Finally, a statement of financial affairs (called the “SOFA”) is required to be filed, a form document of some length that provides for a more detailed view of the debtor’s finances and situation regarding such things as litigation and property transfers pre-petition.

“First Day Motions”

Because the bankruptcy process initiated by the bankruptcy petition places the debtor under court supervision and restricts its ability to operate its business, a debtor must in the first instance obtain court permission to operate realistically. So-called “first day motions” are not necessarily filed the first day, but with an operating business they are often required to be filed and heard by the bankruptcy court as soon as possible, if not, in fact, the first day. Typical first day motions include:

 1. Employee Wages

2. Cash Collateral

3. Debtor in Possession (“DIP”) Financing

4. Retention Motions

5. Utilities

III. Small Business Debtor v. Non-Small Business Debtor

A small business bankruptcy case is a chapter 11 case involving a small business debtor, whom the Bankruptcy Code defines as a person engaged in commercial or business activities other than owning or operating real estate with debt no greater than (as of December 28, 2009) $2.19 million, not including debt to insiders and affiliates.

All chapter 11 debtors must attend meetings and timely file schedules and tax returns and allow the UST to inspect its books, but the 2005 amendments to the Bankruptcy Code added other obligations for the small business debtor. One theme of the small business amendments is that creditors deserve more and better information, presented in understandable and recognizable formats. Many sections of the small business amendments were framed with this goal in mind. As a result, small business debtors must file balance sheets, income statements, and cash flow statements with the petition, or state under penalty of perjury that none exist.

Small business debtors can receive only a 30 day extension of its time to file schedules and statement of financial affairs. In a small business case, the United States Trustee is required to conduct an initial interview with the small business debtor before the Section 341 meeting. Senior management and counsel are required to the initial debtor interview, as well as scheduling conferences and meetings of creditors.

IV. Leases and Executory Contracts

1. Leases

Section 365(d) (4) requires a debtor to assume or reject a lease of non-residential real property within 120 days of the petition date or the lease will be rejected. The court upon motion may extend the deadline an additional 90 days. No additional extension is permitted accept with the written approval of the landlord. The deadline may force a debtor to make premature decisions as to its future needs related to subject real estate, since, not atypically, a Chapter 11 debtor may not have its financing in place or its plan formulated (particularly if it turns on settlement of litigation) by the 210 day deadline.

In large retail cases, where there may be dozens of leases and sites to analyze, this requirement may be particularly burdensome. Leases may be rejected, assumed, or assumed and assigned, in accordance with the rules discussed below for executory contracts.

2. Executory Contracts

Section 365 of the Bankruptcy Code provides a debtor with authority to assume or reject an executory contract subject to court approval. In re Carlisle Homes, Inc., 103 B.R. 524, 534 (Bankr. D. N.J. 1988) the court explained: The purpose of § 365 is, in part, to enable the debtor to take advantage of favorable agreements that benefit the estate. The Bankruptcy Code does not define “executory contract.” The legislative history of § 365, however, is instructive as to the meaning of the term in the bankruptcy context. An executory contract is one on which performance remains due to some extent on both sides.

Upon rejection, the debtor must pay “rejection damages”, consisting of damages for breach of the contract, however, despite the fact the contract is rejected after the filing of the bankruptcy petition, the claim is as a general unsecured pre-petition claim and thus subjected to the limitations of any pro rata distributions to unsecured creditors. A debtor may also assume a favorable contract, and obligate itself to pay a “cure amount” and provide adequate assurance of future performance. Cure amounts are paid in full amount as a current obligation.

With some exceptions, a debtor may also assume and assign (i.e. sell) a favorable contract to a third party, subject to court approval. In such instances, the third party pays the cure amount and provides the adequate assurance of future performance. With both executory contracts and leases, upon assumption, the debtor is required to meet post-assumption obligations under those contracts and leases as those obligations come due.

But the grass needs to be cut, and you need to pay the lifeguards at the pool, etc. If all the homeowners decided they didn’t need to pay their HOA dues, every homeowner would lose access to the pool, would have to put up with overgrown weeds and the accompanying pests and other problems.

Our biggest losses come from homeowners filing bankruptcy, because HOA dues are forgiven by that process, as are liens on the house. Otherwise, we can collect when the house is sold.

The question becomes what to do when a homeowner abuses the process and stays in a home and does not pay, forcing the remaining homeowners to support him.

We have recently succeeded in assisting a HOA with a recalcitrant homeowner who had filed bankruptcy and wanted to stay without paying past, present or future payments as the foreclosing lender was not actively pursuing its foreclosure action.
For more information please visit us at http://www.sidneyturnerllc.com/and this article at http://www.palmbeachpost.com/money/real-estate/west-palm-beach-country-club-feels-the-sting-120574.html