Douglas J. Smillie

Douglas J. Smillie

Chair – Litigation

Commercial Litigation & Trials • Bankruptcy & Creditors’ Rights • Shareholder Disputes and Business Litigation • Employment, Non-Competition and Trade Secrets • First Amendment and Media Law

Douglas J. Smillie
Aug. 2, 2018

Court Holds Non-Collusive Sheriff’s Sale Not a Preferential Transfer

In an Opinion dated July 19, 2018, the Third Circuit Court of Appeals held that a transfer of property pursuant to a non-collusive sheriff’s sale is not a preferential transfer under Section 547 of the Bankruptcy Code. Under the Bankruptcy Code, certain transfers of property, or of a Debtor’s interest in property, can be avoided […]

Douglas J. Smillie
Sep. 13, 2017

Courts Continue to Award Damages for Stay Violations

  I recently reported on the Third Circuit Court of Appeals’ decision in In re Lansaw, in which the Court upheld the imposition of sanctions, including the award of emotional distress damages, for violations of the automatic stay. I suggested that creditors be guided accordingly. Despite the clear signals from the Courts, stay violations continue and the […]

Douglas J. Smillie
Sep. 6, 2017

Appeals Court Allows Final Chapter 13 Payment Beyond 60 Months

Few things in life are certain. Death. Taxes. Chapter 13 plan payments must be completed within 5 years. But wait – the Third Circuit Court of Appeals recently held that a Chapter 13 Debtor can receive a discharge, even if the final plan payment is made after 60 months. In a case of first impression […]

Douglas J. Smillie
Aug. 22, 2017

Pennsylvania Superior Court Holds Diversion to Bankruptcy Court Eliminates Dragonetti Act Claim

The Pennsylvania Superior Court has held that the removal of a state law claim from the state courts to the federal bankruptcy court pre-empted the defendants’ subsequent suit under the Dragonetti Act for wrongful use of civil proceedings. The facts are summarized as follows: Landlord commenced an action against Law Firm and its partners for […]

Douglas J. Smillie
Jun. 23, 2017

Supreme Court Rules Filing a Stale Claim is not an Unfair Debt Collection Practice

On May 15, 2017, the Supreme Court resolved a split among the Circuit Courts of Appeals, holding that the filing a time-barred / stale claim does not violate the Fair Debt Collection Practices Act. Midland Funding v. Johnson (U.S. May 15, 2017). The Fair Debt Collection Practices Act, 15 U. S. C. §§1692 et seq., […]

Douglas J. Smillie
May. 30, 2017

Emotional Distress Damages Upheld for Stay Violation

The current Bankruptcy Code went into effect on October 1, 1979. One of the fundamental provisions of the Bankruptcy Code is the automatic bankruptcy stay which, as its name implies, automatically halts almost all collection activity against the debtor and the debtor’s property. Even though the law has been around for close to 40 years, […]

Douglas J. Smillie
May. 17, 2017

Third Circuit Weighs in on Dischargeability of Late Filed Tax Debts

In a recent decision, the Third Circuit Court of Appeals determined whether Internal Revenue Service Forms 1040, filed after the IRS has made an assessment of the taxpayer’s liability, constitute “returns” for purposes of determining the dischargeability in bankruptcy of tax debts under 11 U.S.C. § 523(a)(1)(B).  In plain language, the question before the Court […]

Douglas J. Smillie
Apr. 18, 2017

Supreme Court Issues Long Awaited Jevic Ruling, Ending Structured Dismissals in Bankruptcy

As a general proposition, Chapter 11 bankruptcy proceedings can conclude in one of three ways:  (1) confirmation of a plan of reorganization (or liquidation); (2) conversion to Chapter 7; or (3) dismissal.  Ideally, a plan is confirmed in which creditors receive payment as required under the distribution scheme embodied in the Bankruptcy Code. Plans can provide […]

Douglas J. Smillie
Apr. 12, 2017

No Retreat, Baby, When You Surrender

Under Section 521 of the Bankruptcy code, an individual debtor is obligated to choose how to treat the collateral of a secured creditor. Under the Code, the choices are: reaffirm the debt, redeem the collateral, surrender it, or claim the property as exempt. The debtor must file a Statement of Intention which explicitly lists the […]

Douglas J. Smillie
Oct. 13, 2016

Strategies For Dealing With Preference Claims In Bankruptcy Cases

Understanding and clearly conveying possible defenses will aid businesses confronting bankruptcy preference clams.