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Common Core: A Rotten Apple for Education
As much as conservatives and liberals may disagree over big government's permissible role in shaping school curricula, sometimes one act of arrogance and stupidity from on high is enough to unite the two sides behind local autonomy.
That may prove to be the case with a chart printed in the federally-backed Common Core national K-12 standards for English and math. Citing the National Assessment Governing Board as its guide, it asserts precisely how much of each student's reading henceforth must be devoted to classic literature and how much to "informational text."
The Word from the Common Core's savants is that non-fiction works (including a large dose of bureaucratese) must comprise at least 50 percent of each elementary child's reading assignments, with that proportion steadily rising to 70 percent by Grade 12. Supposedly, reading less of Orwell's "Animal Farm" and more of the Environmental Protection Agency's "Recommended Levels of Insulation" will make students more "career- and college-ready."
The mainstream news media have been painfully slow to report on the implications of the Common Core, with the result that a national poll last summer showed that 8 in 10 voters don't have a clue what this emerging curricular blueprint is all about. A scholarly group at the Hoover Institution has rated the Common Core as one of the most neglected education stories of 2012.
But at year's end, the brazenness of the reading mandate may be at last penetrating media consciousness, and outlets regarded as on the "liberal" side of the spectrum – notably, the Washington Post and Huffington Post – have done some break-out reporting.
For instance, an in-depth Dec. 2 article by the Washington Post's Lyndsey Layton reported the anguish of English teachers across the country in deciding what great poetry, novels and short stories they must cut from their instruction. You see, they must make way for such Common Core non-fictional hits as "FedViews" by the Federal Reserve Bank of San Francisco and "Executive Order 13423: Strengthening Federal Environmental, Energy, and Transportation Management" by those renowned wordsmiths at the General Services Administration.
Arkansas' Middle-School 2011 Teacher of the Year, Jaime Highfill, told the Post reporter of stripping six-weeks' worth of poetry from her eighth-grade English class in Fayetteville, Ark. plus eliminating several short stories and a favorite unit from the legends of King Arthur in favor of Malcolm Gladwell tomes on social behavior.
"I'm struggling with this, and my students are struggling," said Highfill. "With informational [testing], there isn't that human connection that you get with literature. And the kids are shutting down. They're getting bored. I'm seeing more behavior problems in my classroom than I've ever seen."
A number of educators responded that, in practice, the burden of teaching reading and writing falls to English teachers. Be that as it may, a bigger issue is the sheer arrogance of national-standards-setters in presuming to dictate right down to percentages how much literature or informational text students should or should not read in each class from kindergarten through high school.
The Common Core's clear preference for workforce-oriented reading matter is stirring the ire of academics across the political spectrum who perceive all this as an assault on the liberal arts.
Meanwhile, from a conservative perspective, Stanley Kurtz has written in National Review Online about the recommended governmental texts espousing such politically correct causes as "sustainability" and global warming alarmism. The potential clearly exists for a politicized national curriculum.
And then there's the whole issue of how Common Core will double down on fuzzy math and exclude content in algebra and geometry that is a prerequisite at almost every four-year state college.
Maybe that is a story the media can get around to reporting in 2013.
[First published in the Orange County Register.]


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After I installed 12.04, I think waiting a long time to choose between Windows 7 and Ubuntu is such a waste.
So I went into Windows 7 and set the default to Ubuntu and no waiting time (not the grub in Ubuntu). Now I can only access Ubuntu but I have something to do with Windows 7. I wonder how can I enter Windows 7?
There is no Windows 7 in my Grub menu. Even if I add one in, It said no such thing. Since this is Windows 7, I can't edit
boot.ini to fix it.
I have tried to punch F8 or the down arrow to stop the system turn to Ubuntu but, they all failed. I just want to enter Windows 7 and change that damn waiting time.


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Today I headed to a nearby camp ground which had some charcoal barbecue stands. I put in around 2 pounds of charcoal and put a thin slice of pork meat on the grill. After 40 mins, it was well...lukewarm. Also after around 10 min of burning, the charcoal had a layer of ash deposited on the surface and after that it hardly gave off any heat. My question is : To cook 1 or 2 pieces of pork or steak how much charcoal should I put? Also what can I do to make the flames rise a bit like in a campfire so that the flames actually touch the grill.
migrated from outdoors.stackexchange.com May 10 '12 at 13:19
This question came from our site for people who love outdoor activities, excursions, and outdoorsmanship.
You should first set fire to your coals.
The amount of coals isn't that important. Just make sure the ground is well covered. The more coals, the longer you'll have heat. Since you only want to grill a few pieces, your two pounds was certainly enough.
I suspect your fuel was being starved of oxygen. Charcoal burns well, but it requires a really strong oxygen supply. That's why, in a charcoal grill, you will see a grate that ensures airflow between the fuel and the bottom of the grill. Most likely, your lit coals were at the bottom of the pile, and were snuffed out by the unlit coals that were on top of them.
Start your coals in a chimney starter - use some shredded newspaper as kindling. Once the coals are going strong, remove the chimney, put the grate back on the grill, and then use the air vents to regulate temperature. The more air flowing thru the grill, the hotter it gets - narrow the vents to cool things down a bit. Remember, there will be vents on both the bottom and the top of your grill. Here is a more thorough article on the art of operating a BBQ grill.


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SuviCa Inc. of Boulder and CU-Boulder completed an exclusive license agreement for a CU drug screening technology to identify novel therapies for cancer.
The patented drug discovery tool, developed by Professor Tin Tin Su of the molecular, cellular, and developmental biology (MCDB) department, uses a genetically modified Drosophila fruit fly model to screen for compounds effective against various types of cancer, either alone or in combination with existing therapies.
The screening technique will be used to identify new clinical candidates using a methodology that is both time efficient and cost effective. Because it uses a whole-animal screening model, the technique can more easily eliminate drug candidates with undesired toxicity.
SuviCa Inc. is an early-stage cancer drug discovery and development company co-founded by Su, who now serves as its chief science officer.
Working in collaboration with scientists at CU-Boulder, the University of Colorado Anschutz Medical Campus, and Colorado State University, SuviCa is pursuing a promising discovery process based on several small molecules identified using its proprietary screening technology and targeted to a distinct cellular process. SuviCa researchers hope to discover and develop novel drugs used as standalone therapies or to prevent tumor recurrence following treatment with a variety of approved anti-cancer therapies.
SuviCa recently received funding from Colorado's Bioscience Discovery Evaluation Grant Program, an initiative launched in 2007 by the state of Colorado's Office of Economic Development and International Trade to provide early-stage, matching seed grants to enable the development and commercial validation of promising technologies that are licensed from Colorado research institutions.
SuviCa also received a grant from the Internal Revenue Service through the Qualifying Therapeutic Discovery Project Program aimed at small businesses. Current and future efforts will focus on identifying and optimizing additional lead compounds to enter into formal clinical testing.


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Following the Boston Marathon explosions, the Better Business Bureau wants to warn you of charity scams.
They say at least one scam on Twitter has already emerged and more are likely.
Tips they recommend include, take the time to check out the charity.
Be proactive and find trusted charities that are providing assistance.
Check if the agency is registered with the state, and watch out for vague appeals that don't identify the intended use of funds.
"Try to find out what they're going to do with the money, because so many times they'll say we want to help those people. Well, how do you want to help them? Are you going to contribute to the ones who lost a limb, are you going to help pay for different things for them? You want to find out exactly where they're going to use that money," said Linda Chambers of the Better Business Bureau.


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The angular momentum principle is a fundamental principle. So it can explain a large variety of phenomenon. Doesn't it need concepts like center of mass also for explaining phenomenon? Or just the angular momentum principle can explain these phenomenon?
closed as unclear what you're asking by Ben Crowell, Emilio Pisanty, Waffle's Crazy Peanut, Manishearth♦ Sep 8 '13 at 8:30
Please clarify your specific problem or add additional details to highlight exactly what you need. As it's currently written, it's hard to tell exactly what you're asking. See the How to Ask page for help clarifying this question.If this question can be reworded to fit the rules in the help center, please edit the question.
Even fundamental principles require a framework in which they hold. The conservation of angular momentum for example requires the concepts of space, time and mass. Before you can speak of angular momentum (and its conservation), you need to define what it refers to. In this case, it would be the rotational motion of some body around a certain axis. You have to be able to speak about motion (change in time), position (spatial properties) and fundamental properties of the moving object (mass).
That there exist fundamental principles (like conservation laws in classical mechanics, gauge invariance in particle physics, ...) does not mean there is nothing else to physics. It just means that these principles stand at the core of the physical description of our universe, and that their impact on the phenomena we observe is of great importance.


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Women's adidas Samba Suede Casual Shoes
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Stay comfortable and look fresh in these fresh, throwback adidas Originals athletic casual shoes.


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Cast: Andy Whitfield, Liam McIntyre, Lucy Lawless, John Hannah, Peter Mensah, Manu Bennett, Dustin Clare, Viva Bianca, Erin Cummings, Nick E. Tarabay, Craig Parker, Antonio Te Maioha, Jaime Murray, Katrina Law, Jai Courtney, Craig Walsh Wrightson
- Airs: 9pm Fridays
- Air Dates: January 2010 - April 2013
Blood and Sand: "Betrayed by the Romans. Forced into slavery. Reborn as a Gladiator. The classic tale of the Republic's most infamous rebel comes alive in the graphic and visceral new series, Spartacus: Blood and Sand. Torn from his homeland and the woman he loves, Spartacus is condemned to the brutal world of the arena where blood and death are primetime entertainment. But not all battles are fought upon the sands. Treachery, corruption, and the allure of sensual pleasures will constantly test Spartacus. To survive, he must become more than a man. More than a gladiator. He must become a legend.."
Gods of the Arena: "This prequel mini-series tells the story of the rise of the House of Batiatus and its champions before Spartacus entered the picture. Basking in the glow of the newest champion of the house, Gannicus, a young Batiatus is ready to overthrow his father and assume control of the ludus."
Vengeance: "The rebellion continues, and Gaius Claudius Glaber rallies his troops to Capua to stop Spartacus and his band of freed slaves. Will Spartacus choose vengeance or keeping his army together?"
War of the Damned: "With Glaber dead Spartacus and his army of rebels, now amounting to thousands, has become a force to be reckoned with. Determined to bring down the Roman Republic Spartacus leads his mass of freed slaves into a full out war. Rome's only hope is Marcus Crassus who, aided by young Julius Caesar, will do his might to crush Spartacus and his rebellion."


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TOPEKA, Kan. (WIBW) - According to the latest data by the Kansas State Department of Education, 651 children in the Topeka school district are homeless.
Washburn university students discovered this fact - and many others about homelessness - as they created an art project to build a tent city right campus.
Scrawled on signs all over tent city, the facts were hard to miss.
"Unfortunately, one of the most shocking to me that's over there," said Christopher Bryant, pointing towards tent city, "...the majority of the people, the largest population of people that are homeless are children. And these are real facts and I want students at Washburn to be aware."
Bryant recounted how he saw hunger and homelessness first-hand during a study-abroad trip to Nicaragua in 2002. The sights of children picking through garbage dumps haunted him even after he returned.
Now he says wants his peers to know hunger and homelessness are happening right on our doorsteps too.
He approached an arts professor with the idea to have students create a tent city and learn about about the issues during the process. The idea was enthusiastically received by the art department.
Design and education students from six classes participated this year. They researched about hunger and homelessness in Kansas, nationally as well as internationally, and presented their findings on signs planted throughout the tent installations.
The display is part of series of events at WU to highlight National Hunger and Homelessness Awareness Week. Students are collecting food donations on site and, in coordination with the Oxfam Club at WU, there will be a Oxfam Hunger Banquet Tuesday and a meal served to the homeless on Thursday.


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5 Bizarre Ways Brain Scans Can Predict the Future
#2. The Likelihood of Your Party Animalism
Scientists at UC San Diego have done some comprehensive brain scans on teenagers and discovered something amazing: They all like masturbation and don't have very good taste. (Which might be why they're all reading Cracked. Hi, dudes! Radical! Uh ... skateboarding!)
Oh, and it also managed to suss out exactly which ones were going to become heavy drinkers in a few years. We guess that's pretty important too.
For instance, this man's children will most definitely resort to booze.
Yes, the brains of adolescents who would later engage in regular binge drinking actually had different activity patterns than those of their peers -- and well before the drinking ever started.
The experiment was conducted over a period of three years, wherein scientists gathered a group of 12-year-olds and began conducting MRIs on them. We'd love to know the exact wording of this request -- the one that convinced a whole bunch of parents to enroll their children in a long-term study regarding whether or not their brains put them at risk for a crippling addiction. We assume it started with approaching new parents and suavely whispering, "You guys look like you like to party ..."
"The crushing, inescapable urge to mask my shortcomings with vodka."
The actual experiment had the children working on a memory challenge while the MRI scan was being conducted. The researchers would flash a set of dots, wait for a little bit, then flash the set again and quiz the kids on the differences in color. The adolescents who would later engage in binge drinking showed less activity in the frontal and parietal regions of their brains (the areas associated with executive functions like problem solving) -- which is what you'd expect, right? The duller children fall victim to vice and addiction earlier. But that's not what's happening here. After three years, those same teenagers showed increasing activity in those regions, when decreasing brain activity over time is the norm.
In other words, something was turning on in their brains that didn't turn on in the normal kids, and that something may have some sort of correlation to their drinking later in life. Although keep in mind, this isn't necessarily alcoholism we're talking about here -- this is just episodic binge drinking (i.e. consuming five or more drinks in one sitting). As long as these kids aren't pulling a Leaving Las Vegas in their early 20s, we're going to go ahead and say that mysterious increase in brain activity is just their Party Lobe powering up like a Super-Saiyan in preparation for college.
#1. Artificially Generating a Sixth Sense
When we see things, it takes a few seconds for us to consciously understand what that thing is, exactly. There is a very short period of time between the brain receiving an image and the brain processing said image in a meaningful fashion. For the most part, it doesn't matter: You might open the fridge and stand perplexed for a moment, wondering what the frig this oblong white container is before recognizing that it's yogurt and putting it back in disgust. But whenever we see something dangerous, it sends out the P300 brainwave (you remember; the terrorist wave from earlier.)
Tracking that wave can mean something substantially more important than spotting yogurt before some accidentally gets in your mouth. If only there was some way to speed the image-to-danger-recognition process up, our soldiers could spot threats instantly and effectively gain superpowers.
"Either Al Qaeda's behind that hill ... or I've got a sinus headache."
And that's exactly what DARPA did. Meet Sentinel, which stands for "SystEm for Notification of Threats Inspired by Neurally Enabled Learning." Sentinel is the working designation for a pair of "cognitive-neural binoculars." This sounds like Star Trek gibberish at first, but the description is actually pretty accurate: When you put on a Sentinel rig and scan a battlefield, anything your brain registers as dangerous instantly triggers a series of flashing lights. Never again will one of our brave soldiers comically double-take over an enemy sniper pointing a barrel of death right at him. Because, technically speaking, his brain knows that threat is there well before his uh ... brain ... realizes it, we guess?
Whatever. All that matters is that it really works. When they tested Sentinel against regular ol' stupid binoculars, the Sentinel soldiers found 30 percent more threats on the battlefield. That's right: They were a full third more likely to sense imminent danger than a normal, unassisted human being. That's friggin' Spidey Sense!
"Psychic? Oh, no, I'm just getting a migraine. The gestures are exactly the same -- it can't be helped."
Now, if we could just get DARPA to fund our Military Web Shooters and Pun Generation Mouthpiece, we could have Battle Spider-Men deployed within the decade.
Agneeth can be contacted at firstname.lastname@example.com. XJ is an aspiring cyborg, and in his free-time he talks about the adventures of writing on his blog. Also, he'll love you for a whole minute if you follow him on Twitter.
For more ways the future is upon us, check out 5 Famous Sci-Fi Weapons That They're Actually Building and 6 Sci-Fi Technologies You'll Soon Have on Your Phone.
If you're pressed for time and just looking for a quick fix, then check out 3 Science Fictions We Really Just Built.
And stop by LinkSTORM to discover why you're already a binge-drinking alcoholic.
And don't forget to follow us on Facebook, Twitter, and Tumblr to get sexy, sexy jokes sent straight to your news feed. Are you on Google+? So are we!
Do you have an idea in mind that would make a great article? Then sign up for our writers workshop! Do you possess expert skills in image creation and manipulation? Mediocre? Even rudimentary? Are you frightened by MS Paint and simply have a funny idea? You can create an infographic and you could be on the front page of Cracked.com tomorrow!


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Is there an email provider that supports sending text messages to a phone # and will send you an email from it? Does it also support (image) attachments (say i see a funny ad on the subway, can i take a picture send send it)?
Google Voice supports this. You can have Voice forward text messages in Gmail or to another email address.
and there is a box after that to input any email address you want. I believe you can even reply to the SMS messages via email.
However, Google Voice does not support multimedia/image messaging, at least yet.
This might be not you are asking about, but it might solve your problem: use some e-mail to sms getaway service. There are many of them and they are very easy to find.
Personally, I'm using smsmail.ru, as it is in Russia, where I am too.


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10 Fun & Cheap Halloween Candy Alternatives
Candy, candy, candy! That's what's on most kids' minds as All Hallows' Eve creeps closer. This year, give those little goblins a fun surprise with cost-effective and unique alternatives to candy. Be a trendsetter this Halloween and pass out creative treats and toys. Who knows – you might become more popular than the house that passes out the king- sized candy bars!
1 of 11
Stickers are always a favorite among kids. When a dozen sheets of Halloween stickers cost less than $2, every little trick-or-treating ghoul will have a sheet to decorate folders, books, or themselves.
Next: Fake Fangs


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It's official: We are now $16 trillion in debt
posted at 6:58 pm on September 4, 2012 by Erika Johnsen
That. Just. Happened. There's been a bit of waffling on when exactly it occurred between last Friday and Tuesday, but regardless, that ship has sailed.
Total U.S. government debt eclipsed $16 trillion for the first time Friday, new government data show, as total federal borrowing continues marching toward the $16.394 trillion borrowing limit.
The Treasury Department said total government debt hit $16,015,769,788,215.80 on Friday, up $25 billion from the day before. The amount of federal debt subject to the borrowing limit is actually slightly less, as it doesn't include several types of borrowing, and it stood at $15.977 trillion on Friday.
Ah yes, remember when Obama promised he's cut the deficit in half by the end of his first term in office? Heh, that ol' chestnut. In actuality, President Obama has added over $5.4 trillion to the debt during less than four years in office, more than any other president and approximately a trillion more than President Bush during his full two terms in office. So, there's that.
Parting thought: How much is a trillion?
Related Posts:
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- It's official: We are now $16 trillion in debt « Hot Air | Baby Bluez
- During DNC Convention National Debt Hits $16 Trillion (Video)
- 16 TRILLION DOLLARS IN DEBT « American Glob
- Abortion and Anger, with a Side of Hypocrisy, in Charlotte this Week « Temple of Mut
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- On Political Idols | Dr. Leroy Huizenga
- NTKN: A Tale of Two Americas | The Differences of US….. Move US to Think
- Seriously?!?!? | The Plebian Council


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For example, can I keep Ambiance as main theme but assign elementary theme to elementary's app?
You can use the GTK environment variable
To get this to apply every time you launch a specific app, your best option is likely to create a custom .desktop file (launcher).
Create a custom .desktop file
The next time you launch the app from Unity (or your app launcher of choice) it will use the elementary theme.
Bonus: make it work when using command line
You may also want the app to launch with the elementary theme when launching it from the command line. To do so:
Its certainly possible, I don't have much of themeing experience, but when you navigate to
Note that the way you mentioned to theme your apps may require some work to be done (like having both Ambiance and Elementary work simultaneously, since every theme has a base file on top of which app specific styling is done, (a file
And this base theme file contains styling rules that specifically target the given theme, hence you cannot create Elementary like look and feel from Ambiance's base theme file without making some heavy changes, and even if you do, you'll loose Ambiance look itself.
Also, in GNOME, it is possible to have only single theme applied at a time, For Example, if you have used Appearance window in Ubuntu 12.04, you know can can select any single theme from the dropdown, in case you have used
One way you can do it by yourself is that, let the base theme file (
You may refer this for creating your own theme using template, Also there's a decent documentation on Gtk+ themeing.
The question is still valid and I found a way: any folder
Yes, the simple way is to point the application at the required path where your rc file lives, in the command that runs your application:
This on 12.04 for inkscape (which is still Gnome2 btw) produces this:
See more information about Gtk2 theme running here.
Yes you can, actually I googled and got some answers:
No we will create a script which will execute your program with custom theme:
Hope this helps, you have to remember only one thing, the format of the script as shown below:


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Series 350ec 3" Boat Decal Letter & Number Set, Red - Hardline
This item is found in the following Product Families
Series 350ec 3" Letter & Number Packs
Complete set of registration letters and numbers for your boat, pwc or snowmobile Includes 4 sets of A-Z, 0-9 Total of 146 decals Factory matched …
- Complete set of registration letters and numbers for your boat, pwc or snowmobile
- Includes 4 sets of A-Z, 0-9
- Total of 146 decals
- Factory matched colors from the manufacturer
- UV coated, fade, fuel and scratch resistant
- 3" legal size
- Solid body with no shading or outlines in our popular block font
This product ships in 1 business day.
Add to Cart and enter your Postal Code to determine the shipping charges and estimated delivery date.
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What exactly is Tabata ? Is it just a form of HIIT ?
What makes Tabata effective in fat burning or providing thermogenic effects ?
What exactly is Tabata ? Is it just a form of HIIT ?
What makes Tabata effective in fat burning or providing thermogenic effects ?
Tabata is a HIIT method and the process is very straightforward, from RossTraining.com:
It originated from a study performed by Dr. Izumi Tabata in which he discovered that the short bursts of high intensity were far more effective than slower paced, even rythmed exercise.
As for myself I have only implemented it with sprinting after reading more about it in this article from Mark Sisson, but I can say that it certainly does seem to be very effective and exhausting!
Here's a link to the Library of Medicine article discussing the effectiveness. Yes, it's a form of HIIT, the basic idea is 8 - 20 second intervals followed by 10 seconds of rest. Is it effective? the studies performed have shown it to be and I can tell you from first hand experience that it's the most effective program I've used to build endurance and loss weight (real weight, not just temp water weight). Like any other program, you get out of it what you put into it. You need to push the intensity of each exercise as much as you can and limit the rest periods between the exercises. You can apply the Tabata protocol to any body weight or light weight (including kettlebell) routines you have.
Here's the link to the Ross Training article again: http://www.rosstraining.com/articles/tabataintervals.html - worth reading a few times.
Here's a link to an interval timer I use: http://gymboss.com/ (you can also download iPhone timers).
Apply it to heavy bag training, running, kettlebells and you will be very happy with the results.
This is the single most exhausting training that you could take and yet it lasts so little. Regardless of the shape you are in, it's really hard. If you are in great shape, your sprint will be faster. If in mediocre shape, your sprint will be slower. But in general, if you push yourself, both types will be barely breathing at the end. :)
I don't recommend trying it if you are not in at least a reasonably good shape. There's an excellent Guerrilla Cardio iPhone app for it as well.
The base assumption is that after punishing yourself for those 4 minutes, you body is overloaded heavily and it will take hours to get back to normal rhythm. And for those hours, your blood will run faster through your body and thus chip away the accumulated fat. Hence it's recommended to do this on the off-days, when you are not practicing other stuff (gym, running etc).


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Main Content
You love having everything organized almost as much as you love your Toppers. Let your Western Kentucky pride help keep you orderly with this Lacing Secretary wallet. It features two cash slots, six card slots and six more removable card slots, as well as designated spots for your house and car keys. Also boasting an embossed WKU logo on the outside, this wallet matches superior structure with the perfect amount of team pride.
- Embossed metal logo
- Genuine leather
- ID window
- Imported
- Lacing detail
- Measures approximately 3.5" x 7" closed
- Officially licensed collegiate product
- Six card slots
- Six photo sleeves
- Two key holders
- Two money compartments
- Imported
- Brand: Enmon Accessories
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Manufacturer direct items are shipped directly from the manufacturer. These items are not available for international or expedited shipping.
Customized items can be personalized with options such as your name, your favorite number, and/or designs. Some options may be limited by league rules.


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Evaluate the speed of the algorithm GCM AES-128 and compare it whith speed of one of the stream chipher in eSTREAM. Can someone give such an assessment?
eBACS, as given by CodesInChaos, is a great resource, and it provides much more data than I could hope to give in this answer. However, the page is not explicit about whether or not AES-NI was used — looking at the results, it doesn't seem so.
For an extremely shallow analysis, but allowing us to know for-sure about hardware acceleration, we can use the command-line tool
So, on my system (which has an Intel i5 Ivy Bridge and thus the AES-NI instruction set), AES-GCM processes data at about 1.34 GB/sec while Salsa20-256 with HMAC-SHA1 only manages 0.30 GB/sec.
However, it's thanks to the aforementioned AES-NI instruction set that AES-GCM fares so well.
Note here that Salsa20-256 with HMAC-SHA1 outperforms AES-GCM. So, if your requirements allow you to use the AES-NI instruction set (e.g. the near-latest Intel chips), then AES-GCM is definitely the way to go. On the other hand, if your specs are more modest, you may want Salsa20-256 with HMAC-SHA1.
Another benchmarking tool is


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Background: I have been attempting to read the rating that is assigned in Adobe Bridge CS3 using the creative commons Metadata toolkit for php without success. I am using shared hosting so I do not have an oppotunity to recompile php with different modules.
Is php code available that could be used to read the rating that is embedded in the .jpg file? I have read that this is an xmp (xml) formatted section within the file.


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WACO (January 8, 2013)—Speed limits will be increased from 70 to 75 miles per hour on 18 highways in Bell, Bosque, Coryell, Falls, Hamilton, Hill, Limestone and McLennan Counties early this year, the Texas Department of Transportation said Tuesday.
The Texas Transportation Commission approved the increased speed limits last year in response to legislation approved by lawmakers raising the maximum speed limit on most highways to 75 miles per hour.
Crews have already posted new speed limit signs on portions of Interstate 35 in Hill County and part of State Highway 22 in Bosque County and new signs should be in place on the remaining highways by the middle of this spring, TxDOT said.
Highways on which speed limits will rise include Interstate 35, U.S. Highway 190, U.S. Highway 84, U.S. Highway 281, State Highway 195, State Highway 36, State Highway 53, State Highway 317, State Highway 6, State Highway 22, State Highway 144, State Highway 174, State Highway 7, State Highway 14, State Highway 31, State Highway 8, State Highway 164 and Farm to Market Road 2490.
Motorists must continue to observe the 70-mile-per-hour speed limit until new signs are installed, TxDOT said.


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5 Heartwarming Accomplishments by Hardened Prison Inmates
People are capable of some pretty amazing stuff, from beautiful works of art to the space shuttle to a device in your pocket that pulls pornography from the very ether. Unfortunately, we're also capable of some pretty terrible stuff, like robbery and murder and Bono. But sometimes, much like love and marriage, you just can't have astounding accomplishments without terrible crimes. Come, let us dip some criminal chocolate into the peanut butter of human endeavor and explore the most amazing feats accomplished by hardened prison inmates.
#5. Playing Professional Soccer
Dmitriy Shironosov/Photos.com
Maxim Molokoedov was caught trying to smuggle 6 kilograms of cocaine out of Chile by hiding it in hollowed-out children's books. That's not just crime; that crosses a philosophical line into cartoon villainy. We're pretty sure Cobra Commander tried the same thing with Snake Gas. Luckily, he was apprehended (we're referring to Molokoedov, although we're pretty sure the Joes nabbed ol' CC too) and sentenced to three years in a Chilean prison.
Remember, kids: Always check your books for Snake Gas and/or Chilean blow. Knowing is half the battle.
During his exercise time in the yard, Molokoedov gained quite a following when the other prisoners discovered that he was a much more talented athlete than he was a Hardy Boys antagonist. Other inmates even began trading amenities like deodorant, soap, and get-out-of-sodomy-free cards for a few paltry minutes of soccer training from Molokoedov. When word of his skills reached former Chilean national team player Franklin Lobos, he took a trip to the Santiago Penitentiary to see what all the hubbub was about. Lobos was so impressed with Molokoedov that he recommended him to the coach of the Santiago Morning, a Chilean professional team.
Maxim Molokoedov/Santiago Times
"Next to smuggling cocaine, soccer is my greatest passion."
Unlike most uptight nations, Chile didn't let a petty thing like being in the middle of a prison sentence stop the promising career of a young athlete. Accompanied by armed guards, Molokoedov played for the Morning during each of their home games -- he wasn't allowed at away games. Prison officials probably didn't want "plane tickets and fancy hotel rooms for drug smugglers" showing up on taxpayers' invoice. Molokoedov even passed up an opportunity to return to his native Russia, opting to stay in prison for another year just to keep playing for his beloved team. Either that man is the very definition of sportsmanship, or freedom in Russia is way worse than prison in Chile.
#4. Fighting Wildfires
Roger Rosentreter/Photos.com
Even with Smokey the Bear constantly up society's collective ass about the importance of not starting wildfires, every year, without fail, some jackass starts lighting firecrackers in a field and accidentally burns half the world down. Fortunately, there are numerous lines of defense between our fleshy meatsacks and a burning demise, like aircraft water drops, prescribed burns, and let's not forget those helpful convicted felons.
Lifesize/Thomas Northcut/Getty
"Never mind why I'm in here. I swear, mention that orphanage again and you can put out your own wildfires."
Normally, we call "a group of hardened criminals with axes wandering the woods" a slasher movie, but California's Wildland Firefighting Initiative has some different ideas. The initiative provides inmates with a full wildfire-management training program, teaching them firefighting tactics and safety practices before sending them into the heart of a wildfire to dig fire lines, move supplies, and generally help keep the entire Western seaboard from turning into a smoking crater.
Robert Van Beets/Photos.com
Fun fact: "Fire Danger" signs can double as "Holy Shit, Felons With Axes Danger" signs.
And we're not talking about a handful of teams spread out across the country: A huge portion of the manpower used to fight America's fires comes from prisoners. In fact, some of the higher-ups who organize and manage the firefighting efforts are starting to worry because there just aren't enough criminals safeguarding our nation's forests right now. So there you go, folks: Only you can prevent forest fires ... by robbing a Circle K.
#3. Accruing the Largest Collection of Four-Leaf Clovers in the World
Daniel Wiedemann/Photos.com
The only two things a prisoner has plenty of is time and regret. No inmate is sighing wistfully at a sunset and bemoaning how "there aren't enough hours in a day." Some convicts use this time to learn a trade, others start an education, and still others just mercilessly beat off like they caught their wang snitchin'. Then there's George Kaminski, who decided that as long as he was there, he might as well spend his 25-year sentence obsessively combing the yard for mutant plants. Kaminski held the Guinness World Record for collecting a staggering 72,927 four-leaf clovers.
Dan Bannister/Photos.com
This George Kaminski must be the luckiest man on the planet! Oh ... right.
After he was put away on a kidnapping charge in 1995, Kaminski spent every minute of his "free" time in various Pennsylvania prisons kidnapping shamrocks instead. That's 11 clovers a day, every day, for 18 years. And seeing as clovers don't generally grow in the concrete confines of a cell, Kaminski had to collect them all in the one or two hours he was allowed in the yard each day.
Giorgio Fochesato/Photos.com
Finding plants of any kind in most prison yards is no small feat.
Kaminski's reasoning behind the collection? He wanted to show a younger inmate that life inside prison isn't the end of the world, and even behind bars, you can do anything you put your mind to. Apparently the only crime Kaminski was truly guilty of ... was hope.
Oh, right, and also kidnapping. He definitely did that, too.


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We can encode sound and images in radio waves and send them, but presumably there's some physiological reason that we can't easily make a picture or video of a smell. Could we realistically break smells down into "primary scents", in analogy with "primary colors" and encode the information for easy reproduction?
There are only three kinds of optical receptors in the eye, but more than 900 kinds of olfactory receptors. Thus you can encode pictures with the three primary colors, but there is no small set of primary scents.
To transmit a smell via "primary scents", you'd have to create an artificial nose that monitors the response of each of the olfactory receptors, and then at the other end release a chemical mixture that has the exact same response pattern. (You won't find a one-to-one mapping of chemical compound to receptor.)
In expansion to biocs' excellent answer, I would like to highlight some practical limitations of this. Suppose we did manage to create a huge database of exact chemical mixtures which produce all smells recognisable by humans. You would still meet some complications:
I can't think of more at the moment but there probably are :)
In my view, the reason we can't transmit smell is that we don't understand it. That is, we don't have a solid understanding of how odor information is coded, so it is hard to imagine how to build a system that could reproduce that information.
This is sometimes discussed in terms of a multi-dimensional "odor space," where each odor could be described by its location along each dimension. The problem is that we don't really know what any of the dimensions are. By contrast, we know that visual space can be described by the intensity of a set of colors in a two-dimensional plane; auditory space is described by frequency and amplitude. It is clear that odors are comprised of chemicals, but we don't yet know where those chemicals fit in odor space. Understanding the odor space is a prerequisite to building a system that could transmit messages from it.
Also, to a great extent, how to engineer a smell transmission system is only partly a biological question. For instance, a CMYK printing system does a fine job at generating images that our RGB photoreceptors understand just fine. A telephone wire can transmit sound without a care about how the cochlea actually works. Transmitted pictures and transmitted sounds work because they activate our photoreceptors and auditory hair cells in the same pattern that the original images and sounds would. We can build systems to do this because we understand the nature of the information sensory systems decode, and we don't need a really deep understanding of the physiology to do that. (Of course, I think figuring out that physiology is great fun, but that's another point.) That is, to build a smell system, it's probably not really necessary to know what every one of the many olfactory receptors does. That's a detail of the way the mammalian olfactory system evolved. The important thing is to understand the nature of odor information. Then it really may be theoretically feasible to create a system to transmit odors.
A smell capsule with primary smells, concentrated non runny oils that can be heated up by a code sent to the capsule Then it will release the code, a built in fan will blow it to you from pc or phone, on a pc it could be renewed, maybe plugged in to a usb, Ive been thinking about this lately an have come to the conclusion that a smell Capsule would only need a collection of smells, if you type out banana there is a code behind the keys for the letter to appear, i think a smell program will be needed so that if some one sends you a coded image of a banana from there smell program the soon as you receive it and click on it the code will activate the same code in your program and you will smell the banana i have no idea how many primary smells there are or even if you can mix them but a collection of most common smells will do the job till the primary and mixing is masted, I believe a pc is missing the smell capability and it will come along just as many other things have, it would be great to smell the ocean while watching ships or even while sailing one on a simulator, a heating of a oil scent will do the job fine, A thin wire sitting in each concentrated thick scented oil and all the different oils in separate compartments with there individual codes inside a complex capsule and a fan to blow out the heated one that the thin wire heated up
protected by Chris♦ Jul 24 '15 at 6:50
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8 Health Foods That Are Bad For Your Health
Healthy foods, like reality show stars, tend to be both high-maintenance and tasteless. As lazy and spoiled people, we try to find any shortcuts we can to eating healthy without having to prepare fresh food or eat tofu.
Unfortunately, as we all learned from watching children's cartoons, taking shortcuts can lead to a hilarious comedy of errors. And diabetes.
#8. "Vitamin Waters"
The two biggest players in the "vitamin water" game are the original Vitamin Water, owned by Coke, and Sobe Life Water, owned by Pepsi, which should start to raise the red flags right there.
There are a bunch of other drinks playing the same game, with their light to clear colors and healthy sounding names that make it sound like they are plain old water with some nutrients added. Which is true, if you consider eight teaspoons of sugar a nutrient.
Al Pacino takes his daily vitamin supplement.
Vitamin Water and Life Water both contain 32.5 grams of sugar per bottle, so you might as well hydrate after a workout by drinking a bottle of water and tossing a full sized Snickers (30 grams of sugar) down your throat. But hey, at least that's half a Snickers less than a can of Coke, so really it might as well be water.
There are low calorie versions out there, like Vitamin Water 10, but it still has to appeal to their customer base: people who refuse to drink anything that isn't sweet, even their daily vitamins.
"Man, if only these came in doughnut form."
That means you're trading sugar for artificial sweeteners, and experts say that's a bad idea from multiple angles. Those sweeteners have some possible long-term side effects and might even trick your body into slowing down its metabolism, causing you to actually gain more weight than if you were on the regular stuff. But maybe your particular brand uses stevia, the trendy natural sugar substitute. Well, you should know it might even be more controversial than artificial sweeteners and has been banned in the EU.
Basically, you name a sugar substitute, and we'll name you an organ failure or type of cancer.
Which, coincidentally, is a fun party game at Weight Watchers meetings.
#7. Bran Muffins
Bran tastes terrible, and therefore must be good for you. One of the easier ways to stuff that sawdust-like substance down your reluctant gullet is with a bran muffin. Unfortunately, like Mary Poppins's medicine, any type of muffin you use is sending the good stuff down with a spoonful of sugar and enough fat to choke a Japanese Whaler.
The main ingredient in muffins is cake, and the main ingredient in cake is fat. If you noticed that muffin wrappers tend to be grease soaked to the point of translucence, you might have put this together already. But you might not know that a medium-sized blueberry muffin has more calories than a McDonald's Sausage McMuffin that's the same size. Almost half of those calories are from fat. Specifically, a third of the fat you are supposed to eat in an entire day.
Damn you, you delicious, puffy pastry ... aw, we can't stay mad at you.
Switching to bran doesn't stop the muffin from being worth its weight in sausage, egg and heart attacks. Assuming bran muffins are any better for you is like switching out the chocolate chips in chocolate chip cookies for raisins and declaring it health food. Structurally, it's still mostly cookie. Switching to a bran muffin gets you down to a just under the calorie count of a Sausage McMuffin, which is not the kind of breakfast that will get your body on the cover of Shapely Ass magazine.
Or even the soon-to-be-launched ASS! Magazine.
Trendy places like Starbucks are already on top of this with low fat muffins. As you can see, they brought the fat calories down to a much smaller percentage of the whole, but the overall calorie count is still very much in the McMuffin range. Also, taking the fat out of a muffin steals its soul. It's like a damned scone or some shit.
#6. Granola and Cereal Bars
Granola bars have to be good for you, right? Well, if they taste awful, then yes. If they taste good, it's probably the same ingredients that make candy bars taste good: sugar, fat and chocolate.
Sure, these bars all look really similar, with white or green boxes sporting pictures of lumpy beige bars and smiling women in yoga clothes, but they run the gamut from healthy sawdust bricks to Snickers bars in eco-themed wrappers.
"If this wasn't healthy, would I be eating it during yoga?"
The Quaker Oats True Delights Bar contains raspberries and chocolate and allegedly tastes pretty good, and it had better, because pound for pound, it's pretty much got the same amount of fat and calories as a Snickers bar. It's also this big.
Are your mouths watering, readers?
If you've got gigantic hands and therefore think that looks pretty big, basically it's only half the size of a Snickers (1.2 ounces versus 2.0 ounces) so there's a good chance you'll wind up eating two--or eating something else when you get hungry again. Either way you might as well have eaten the candy bar, for all the good it's doing you.
Plus, Mr. T endorses Snickers. So, there's that.
Sure, there are granola bars out there that are actually good for you and not made of candy, but they taste like freaking granola. If you want to be healthy, you gotta pay the price. Your body won't like doing without fat because through most of the history of our species, fat meant quick energy we could use to run away from a woolly mammoth. You can't trick your body into not wanting it--you just have to suffer through.
#5. Chewable Vitamin Tablets
Vitamin C has been touted as a cure-all for everything from preventing colds to curing cancer. The latter claim was popularized by Linus Pauling and eaten up by people who forgot that he got a Nobel Prize in chemistry and not medicine. The movement was dealt a bit of a setback when he died of cancer in 1994.
Anyway, Vitamin C may not cure cancer or AIDS (that's been claimed too) but it is good for you. And for people who hate oranges or pills, the only solution is chewable Vitamin C tablets.
Or maybe people just really want to devour Barney Rubble.
However, with some chewable tablets, while you are eating the tablets, the tablets are also eating you. The scientific name for Vitamin C is ascorbic acid, which gives you a hint as to the problem.
Studies have shown that in some cases, chewable Vitamin C tablets can cause people's teeth to erode.
Dentists suggest you brush your teeth afterwards (although dentists suggest you brush your teeth after everything) and try to buy a brand that has Vitamin C in its non-acidic form. Or man up and swallow the pill.
Unless you're some kind of pussy.


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One of the best reissue record labels in the world is the UK's Cherry Red Records.
Out now from this great label is the reissue of Australian superstar Jimmy Barnes' 1985 self titled release "Jimmy Barnes."
This long out of print CD features 11 tracks. 7 written or co-written by Barnes plus 2 original Jonathan Cain (Journey, The Babys, Bad English) compositions: "Working Class Man" and "American Heartbeat" and the hit single "I'd Die To Be With You Tonight" written by Chas Sanford.
Other contributors to the album include Tommy Thayer (KISS), Waddy Wachtel and Charlie Sexton on guitars, Randy Jackson (American Idol) on bass, Tony Brock (Rod Stewart, The Babys) and Mick Fleetwood on drums and Jonathan Cain on keyboards.
"Jimmy Barnes" went on to sell more than 500,000 copies in Australian.
If you only own it on vinyl then it's time to upgrade to CD and if you've never owned it this is your chance.
Thanks again Cherry Red Records and keep up the good work we music fans appreciate it.


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Standard CVS-2500 Scrambler - Standard Horizon
Standard Horizon CVS-2500 is a 4 Code Voice Scrambler add-on board designed to fit the Stardard Horizon transceivers GX2000E, GX2100E, and GX3000E.
This product ships in 2 business days.
Add to Cart and enter your Postal Code to determine the shipping charges and estimated delivery date.
Most products and orders leave our warehouse in 1 business day. However, select items may take more processing time. Alaska and Hawaii orders please add 1 additional warehouse processing day.
Standard Shipping Policies
Please be careful when ordering this product, it has limitations that differ from our General 30-day Return Policy. After all, we want you to be satisfied with your order so you'll return again and again as an iboats.com customer, and to also recommend us to your boating friends
- Electronics/Software/Videos
- Electronics/Software/Videos are not returnable. Please be careful when ordering to choose the correct product.


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An area cheese business is facing it's second voluntary recall in just two months.
Kenny's Farmhouse Cheese is doing everything possible to make sure this doesn't happen again.
"Do I keep making? Do I shut it down until we know for certain?", this is something Kenny Mattingly asks himself everyday, "Still, you do all the best things you can do, all the good practices, and you just trust that you're going to make a good product again."
For Kenny, this family business wasn't always in cheese.
Fourteen years ago, he decided to grow a simple dairy farm into a cheese manufacturing company.
When Kenny decided to expand his growing business in July, he built a bigger building.
"The cheeses that were affected were made during the time that we were transitioning from the old building to the new. And we're reading that is your most vulnerable time to have a contamination," he says.
The FDA has asked restaurants and farmer's markets to notify customers of the contaminated Cheddar, Chipotle Colby, and Monterrey Jack cheeses.
Customers can receive a full refund.
These cheeses tested positive for listeria contamination.
"We might have some shortages. We might have to try something different during the next few months that they haven't tried before," Kenny says.
This may set him back this holiday season, but he has a lot of community support.
"Our customers have been very understanding and supportive, and you know I think anybody that knows us or has come to the farm realizes how hard we work to do things well," Kenny says, "I was renewed with energy to try harder. Going through this whole ordeal has been quite an emotional roller coaster, and you get downed, you get discouraged, you want to blame somebody else."
Kenny has hired consultants to help with making sure everything is made in a healthy way.
Kenny's Farmhouse Cheese is distributed in Alabama, Kentucky, Indiana, North Carolina, Tennessee, and Virginia.
To receive a full refund, you can return the product back to the location you bought it from.


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From Our 2013 Archives
New Health Insurance Site for Business Owners
By Julie Edgar
Reviewed by Lisa Zamosky
On Thursday, the Obama administration launched a "one-stop" web site intended to help business owners explore and understand their health insurance options under the Affordable Care Act.
The new "wizard tool" is for businesses of all sizes. It brings together information from the Health and Human Services Department, the Small Business Administration, and the Treasury Department.
The site, Business.USA.gov/healthcare, allows users to enter their location, size of business, and future insurance plans, and create a menu of information options. It also connects employers to information about tax credits and other aspects of the Affordable Care Act.
Along with individuals and families, businesses with 50 or more employees will be required to either carry health insurance for their employees or face a penalty for failing to do so. The law goes into effect Jan. 1, but the start date for the business requirement has been moved from Jan. 1, 2014, to Jan. 1, 2015. Smaller businesses (those with fewer than 50 employees) may qualify for tax credits if they choose to offer health insurance.
SOURCES: Press release, U.S. Department of Health and Human Services.


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Hybrid View
2 Jul 2012 8:11 AM #1
Sencha on IRC
Is there any channel for Sencha on IRC?
Kindly provide the server name.
This will be very helpful to ask question directly from other users on IRC. Should Sencha team provide web chat interface on Sencha.com?
2 Jul 2012 11:18 PM #2
5 Jul 2012 1:18 PM #3
that channel #ExtJs is real quite all the time.
Thank you for finding out that on irc. I am developing small apps in Sencha Touch 2 to understand basics thats why i think chat could be easy and quick way. Please see if you can help a bit more to find Sencha Touch 2 chat (free) anywhere on internet. i could not find that on freenode servers.


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Only just catching up on VGAs and this is probably all that matters.
Only just catching up on VGAs and this is probably all that matters.
Second best thing from the VGAs, just behind Dark Souls 2.
Yeah, but like Kotaku pointed out, no release date.
Which makes that April-May window all the more unlikely.
In fairness to you, Dark Souls 2 is all I could work out even happened from glancing at the front page on Saturday morning. So yeah pretty much.
Another instant purchase for me!
I would really like they make a Futurama or Simpson RPG too. I think Futurama have all the fantasy elements to make a comedy RPG.
Futurama as a point and click adventure would work wonders.
Never really enjoyed the PS2 game, though.
Matt Groening cartoons would take some colossal achievement to get a none-shovelware title these days. Plus you could not reproduce them visually like South Park can be.
That was a cheesy award show.
*yes all are
Award Show?!
I thought it was a show about vidja gaem traylors.
It was about tuning out after like seven minutes because the South Park shit was over.
I'm trying not to get excited about this because every time I get excited about a game it disappoints
I know that feeling, and my worry is that THQ's retarded money burning schemes will damage it somehow. Everything else leads me to think it is the game that the franchise so deserves. There is so much right about it. So much.
I hope it's as good as the N64 game.....
I just hope to God it isn't made into a platform for launching DLC instead of being an intrinsically compete game.
Shame on you for even bringing it up. And becoming a platform for DLC would count as a retarted THQ scheme like I fear.
Man... I can remember playing a lot of that game with 3 other friends back when I was a kid, and it was never anything short of just plain old fun. Our gaming get togethers were generally just south park and goldeneye. From piss covered snowballs to machines that forced enemies into showtime song and dance, that game had it all xD


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Has it ever happened that each of the 5 sponsored deals, on the same day, had a negative vote total?
I have seen 2 or 3 of the five sponsored daily deals have negative vote totals. Since I've only been coming here about a year I was wondering if there was ever a prior time when all 5 sponsored daily deals were so bad they all got voted down?
9 Answers answer
Never happened to my knowledge. I don't even recall when there were 3 that were in the minus.
I suppose if they ever decide to offer vacations, hair accessories, exercise equipment, shoes and streaming video on the same day ...
i have seen three in one day but only once and it was since they went to woot4.0
and yes, one was video related (blockbuster maybe?)
@narfcake: I am reasonably sure I have seen 3 in one day. I just don't remember when.
@moosezilla: Thanks @moosezilla. You've confirmed that I did see 3 negative sponsored deals in one day. I wasn't sure but I doubt we're both hallucinating about the same thing at the same time...Unless we're really the same person with a split personality, each having it's own Woot! account. :-)
@jnissel: I saw the three negative deals, maybe it was a month or two ago? However, I have never seen more than that.
@jsimsace: I thought it was further back than that but I could be wrong.
this occurred on 12-oct-11:
afaik this is the record for # of downvotes (from 24-feb-12):
@pinchecat: Thanks for posting them. I remember the Netflix one but not the other.
The perfect storm of sponsored downvoting would be any five of these:
Feather hair extensions
Exam Prep
one or more of those travel deals that require your contact info to actually see the deal
Body by Jake
Distressed Rocker Onesies


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10 Fun & Cheap Halloween Candy Alternatives
7 of 11
Spider and Bat Rings
What better way to accessorize the house-hopping haunters than with spider and bat rings? With a terrifyingly low price of $5 for 144 rings, you'll be cackling all the way to the bank with the money you saved!
Next: Glow-in-the-Dark Insects


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Red Roof Inn Dalton
Dalton, GA 30720
Conveniently located of I-75, the 100% non-smoking Red Roof Inn Dalton is less than a mile from Dalton Convention Center, Market Street Shoppes and Mountain Creek Harley Davidson. This hotel offers newly renovated rooms featuring flat screen TVs, new carpet and Serta bedding. Free breakfast; outside corridors, outdoor pool, guest laundry, coffee maker. Nearby, enjoy historic Civil War sites as well as a wide variety of recreational activities.
Info & Amenities
Hours of Operation
Sunday: All Day
Monday: All Day
Tuesday: All Day
Wednesday: All Day
Thursday: All Day
Friday: All Day
Saturday: All Day
Average Nightly Rate
Facility Amenities
Bus / Motorcoach Parking on Site, Complimentary Breakfast, Complimentary Local Shuttle, Free Parking, Full-Service Business Center, Outdoor Pool, Parking on Site, Restaurant Nearby
General Information
ADA-compliant, Family-friendly, Handicapped Accessible, Miles from Convention Center, Miles from Downtown, Pets Accepted
Group Amenities
Internet Connectivity
Free Wi-Fi
Near Interstate Highway
Room Amenities
Hair Dryer, In-Room Coffee Maker
Room Information
Number of Rooms (Total): 94


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The Bayou City Crossfire are looking for 2 more players to complete our roster. We're searching for a 2nd bracket pitcher to share the load. Plenty of innings available. We're also searching for another hitter to join an impressive lineup.
We practice in the NW/Cy-Fair area and are proud to have former University of Houston pitcher *Donna Bourgeois as one of our coaches. If you're looking for a team organized and funded to help your daughter advance and fulfill her potential then come find out about the Crossfire!
Contact Coach Paul at 281-687-1670 email@example.com to schedule a private tryout. All inquiries are confidential, all positions earned!
We believe in offering a complete program which includes top-of-the-line practice facilities, professional instruction, CrossFit training, nutritional education for athletes, and a positive, fun environment. It is our goal to take our young ladies as far as they want to go in the sport and strike a balance between life and softball.
The Crossfire is sponsored by Bayou City CrossFit gym and is a 501c3 non-profit organization.
*Donna Bourgeois was named Conference USA Newcomer of the Year and earned Second Team All-Conference en route to a 17-6 record with a 1.67 ERA at the University of Houston. As a professional softball player, Donna helped her team, the Chicago Bandits, win the 2011 National Pro Fastpitch Championship Series. Donna is also a Level 1 Certified CrossFit trainer and recently competed in the Reebok CrossFit Games.
Dream, Sweat, Dominate!
please tell me how to contact Coach Paul
You can contact Coach Paul at 281-687-1670 or at firstname.lastname@example.com
ACTIVE is the leader in online event registrations from 5k running races and marathons to softball leagues and local events. ACTIVE also makes it easy to learn and prepare for all the things you love to do with expert resources, training plans and fitness calculators.


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Judge Karlin
BAP UT-10-069 In Re Ruiz - Document Text
- Details
- Category: Judge Karlin
- Published: 18 August 2011
- Written by Judge Karlin
U.S. Bankruptcy Appellate Panel
of the Tenth Circuit
August 17, 2011
Blaine F. Bates
IN RE JOSE L. RUIZ, also known asJoe Ruiz, and CARRIE RUIZ, alsoknown as Carrie Lee Ruiz,
GARY E. JUBBER, Trustee,
JOSE L. RUIZ and CARRIE RUIZ,
BAP No. UT-10-069
Bankr. No. 10-25368
Chapter 7
Appeal from the United States Bankruptcy Courtfor the District of Utah
David R. Hague (Gary E. Jubber, Trustee, and Ashton J. Hyde with him on thebrief) of Fabian & Clendenin, Salt Lake City, Utah, for Appellant.
T. Jake Hinkins of Hinkins Law, LLC, South Jordan, Utah, for Appellees.
Before CORNISH, Chief Judge, BROWN, and KARLIN, Bankruptcy Judges.
KARLIN, Bankruptcy Judge.
Appellant, Gary E. Jubber, Trustee (the "Trustee"), appeals the bankruptcy
court's decision denying his motion to require Appellees, Jose L. Ruiz and Carrie
Ruiz ("Debtors"), to turn over estate assets. After oral argument and a review of
the record, we reverse the order of the bankruptcy court.
During the one month period preceding the filing of their Chapter 7
bankruptcy petition, electronically filed on Saturday, April 24, 2010, Debtors
wrote four checks on a checking account they held at Zions Bank (the "Zions
account"). These four checks were in the following amounts and designated
purposes: 1) $2,196.50 on March 29, 2010 to purchase hay used in Debtors'
business; 2) $200.00 on April 1, 2010 for a charitable donation; 3) $240.00 on
April 16, 2010 for a business purpose; and 4) $1,118.47 on April 23, 2010 to pay
Debtors' monthly mortgage payment. None of these checks had been honored by
Zions Bank on the date they filed their petition.
Debtors filed their Schedules of Assets and Liabilities, Statement of
Financial Affairs, and Statement of Social Security Number (which contains only
the last four digits of that number) with their petition. On the schedules, Debtors
listed various checking and savings accounts, including the Zions account.
Debtors indicated under penalty of perjury that the Zions account balance on the
date of filing was $10.02. In reality, there was $3,764.99 in the account, because
none of the four checks had been honored. All four checks then cleared within
four days of the filing: one check cleared the account on Monday, April 26, two
cleared on Tuesday, April 27, and the last cleared one day later, on Wednesday,
April 28.
The Trustee was appointed as the panel Chapter 7 Trustee on the same date
the petition was filed.1 He conducted a first meeting of creditors pursuant to 11
U.S.C. § 3412 on June 10, 2010. During or before that § 341 meeting, the Trustee
discovered that none of these checks had cleared the Zions account prior to the
1 There is no evidence in the record when this Trustee received actual notice
that he had received his appointment.
2 All future statutory references are to the Bankruptcy Code as amended bythe Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, 11
U.S.C. §§ 101 - 1532 (2005), unless otherwise specifically noted.
filing date.3 As a result, the Trustee filed a motion to require Debtors to turn over
the amount that had been in the Zion account on the date of the petition.
This Court has jurisdiction to hear timely filed appeals from final
judgments and orders of bankruptcy courts within the Tenth Circuit, unless one of
the parties elects to have the district court hear the appeal.4 Neither party elected
to have this appeal heard by the United States District Court for the District of
Utah. The parties have, therefore, consented to appellate review by this Court.
The Trustee filed his notice of appeal within fourteen days of the
bankruptcy court's Memorandum Opinion denying the Motion for Turnover, and
therefore the appeal was timely.5
"For purposes of standard of review, decisions by judges are traditionally
divided into three categories, denominated questions of law (reviewable de novo),
questions of fact (reviewable for clear error), and matters of discretion
(reviewable for 'abuse of discretion')."6 The parties agree, as does this Court,
that this appeal involves only questions of law. Therefore, the matter is subject to
a de novo review. De novo review requires an independent determination of the
issues, giving no special weight to the bankruptcy court's decision.7
3 The Trustee only seeks turnover of $3,524.99, or $240.00 less than theactual account balance on the date of filing. Although the record does not revealwhy the Trustee sought this lesser amount, this difference is immaterial to theissue of whether the Trustee can succeed on his motion for turnover.
4 28 U.S.C. § 158(a)(1), (b)(1) and (c)(1); Fed. R. Bankr. P. 8002; 10th Cir.
5 Fed. R. Bankr. P. 8002(a).
6 Pierce v. Underwood, 487 U.S. 552, 558 (1988); see Fed. R. Bankr. P.
8013; Fowler Bros. v. Young (In re Young ), 91 F.3d 1367, 1370 (10th Cir. 1996).
7 Salve Regina Coll. v. Russell, 499 U.S. 225, 238 (1991).
The bankruptcy court, while recognizing a split in authority on this issue,
held that the Trustee could not recover from Debtors the amount that was in the
checking account on the date of filing. Although the court recognized that the
Debtors' interest in the account on the date of filing became property of the
estate, it dismissed the Trustee's contention that the funds in the checking account
constituted estate property. Instead, the bankruptcy court held that the checking
account merely constituted a debt owed by the bank to the Debtors, and it was the
right to collect on this debt, rather than the funds themselves, that constituted
property of the estate.8
Having determined that it was only the right to collect on a promise to pay
from Zions Bank to the Debtors that constituted property of the estate, the
bankruptcy court then turned to the issue of whether Debtors had any duty to
collect on that promise to pay for the benefit of the estate. The bankruptcy court
held that Debtors had constructively turned over this property by disclosing to the
Trustee in their schedules the existence of the checking account. The court then
held that the Debtors were under no duty to collect on debts owed to the
bankruptcy estate, and that it was the Trustee's obligation to collect on that debt,
either directly from Zions Bank if he sought turnover, or from the payees of the
funds through avoidance proceedings. Based on these findings, the bankruptcy
court denied the motion for turnover.
The starting point for analyzing the Trustee's motion for turnover is with
the language of the pertinent statute, 11 U.S.C. § 542(a), which provides that "an
See In re Ruiz, 440 B.R. 197, 201 (Bankr. D. Utah 2010) (noting that"Zions Bank was in possession, custody and control of the funds on deposit andthe funds belonged to Zions Bank on the petition date. The Debtors were in
possession, custody, and control of a promise to pay from the bank to theDebtors.").
entity . . . in possession, custody, or control, during the case, of property [of the
estate] . . . shall deliver to the trustee . . . such property or the value of such
property[.]" According to the Trustee, because Debtors were in control of the
funds contained in their checking account on the date they filed their petition, the
Trustee may properly seek turnover of those funds directly from Debtors for
ultimate distribution to their creditors. Debtors deny that they were in control of
the funds in the checking account, and more importantly, that they have any duty
to repay those funds.
The funds in the checking account were property of thebankruptcy estate.
The first question is what precisely constituted property of the bankruptcy
estate on the date of filing. The bankruptcy court held that it was only Debtors'
right to collect on a debt from the bank that constituted property of the estate, not
the funds themselves. This Court disagrees.
The primary basis for Debtors' contention, as well as the bankruptcy
court's holding, that the estate's interest in the checking account amounted to
nothing more than a beneficial interest in Zions Bank's promise to pay the funds
held in the account (as opposed to the money in the account), is derived from
language contained in Citizens Bank of Maryland v. Strumpf.9 In Strumpf, a
Chapter 13 debtor had both a checking account and a delinquent loan with the
creditor bank on the date he filed his petition. When the petition was filed, the
bank placed an administrative hold on that part of the funds contained in the
checking account required to offset any pre-petition debt that debtor owed the
bank on the loan. The debtor brought an action against the bank, alleging that the
bank had violated the automatic stay under § 362(a)(7), because the
"administrative hold" was actually an improper "setoff" of the debtor's funds in
violation of the automatic stay.
The Supreme Court held that the bank's actions did not constitute a setoff,
and thus it had not violated the automatic stay.10 Following that holding, the
Court also briefly dismissed the debtor's contentions that the bank had violated §
362(a)(3) and § 362(a)(6), noting that the bank did not actually take possession of
any of the debtor's property or exercise control over debtor's property. Instead,
the Court held that the bank merely failed to perform its promise to pay the debtor
the funds held in the account.11
Although this Court recognizes that the language contained in the
concluding paragraph of Strumpf does facially support Debtors' position, the
context of that case is entirely different from the case currently before this Court.
Strumpf solely involved the automatic stay and the relationship between the bank
and the debtor in that context. The issue of what constituted property of the
estate under § 541 was neither argued nor decided. For that reason, this language
in Strumpf is not dispositive under the facts, or the issue presented, in this case.
The relationship between Zions Bank and Debtors was considerably
different than the typical debtor-creditor relationship that existed in Strumpf.
Debtors maintained the right to withdraw the funds in their account at any time, to
direct Zions Bank to deliver the funds to any third party, or to leave the funds on
deposit. Although Zions Bank did make a promise to pay the funds in the account
to Debtors, the checking account constituted much more than that promise and
Debtors' rights to those funds exceeded those of a typical creditor.
Well established Tenth Circuit precedent directs that "the scope of section
541 is broad and should be generously construed[.]"12 The bankruptcy court's
10 Id. at 19-20.
11 Id. at 21 (noting that a bank account "consists of nothing more or less thana promise to pay, from the bank to the depositor").
12 Williamson v. Jones (In re Montgomery), 224 F.3d 1193, 1194 (10th Cir.
attempts to narrow the scope of § 541 in relation to funds on deposit in a checking
account does not satisfy the standard the Court must apply when considering §
541. Given the limited applicability of Strumpf to the facts of this case, and the
broad scope the Court is required to use in applying § 541, the Court adopts the
prevailing view of nearly every court to consider this issue by holding that the
funds in the Zions account, rather than merely the promise to pay over those
funds, constituted property of the bankruptcy estate.13
Debtors had control over the funds in the checking account"during the case."
The Court next turns to the question of whether Debtors had "possession,
custody, or control" of the property "during the case," such that they can be
required to turnover the property, or its value, to the Trustee pursuant to § 542(a).
There is no question Debtors had neither actual "possession" nor "custody" of the
funds in the checking account "during the case." Undoubtedly Zions Bank, and
12 (...continued)
13 See, e.g., In re Pyatt, 486 F.3d 423, 427 (8th Cir. 2007) ("the fundstransferred by the [pre-petition] checks are property of the estate"); In re
Brubaker, 426 B.R. 902, 905 (Bankr. M. D. Fla. 2010), aff'd, 443 B.R. 176 (M.D.
Fla. 2011) ("both schools [of thought] agree that the funds are property of theestate"); Yoon v. Minter-Higgins, 399 B.R. 34, 42–44 (N.D. Ind. 2008) (holdingmoney in the debtors' bank account on the petition date became property of theestate); In re Parsons, No. 05-00321, 2006 WL 3354513, at *1 (S.D. Ind. Nov.
17, 2006) ("Funds on deposit in a debtor's checking account . . . on the petitiondate are property of the bankruptcy estate."); In re Schoonover, No. 05-43662-7,2006 WL 3093649, at *2 (Bankr. D. Kan. Oct. 30, 2006) ("This Court has locatedeight decisions that address this issue. As a threshold matter, all eight decisionsagree that the money [in the checking account] is property of the estate."); In re
Spencer, 362 B.R. 489, 491 (Bankr. D. Kan. 2006) ("the funds remained in [thedebtors'] possession and control at the date of the petition, were property of theestate, and were therefore subject to turnover."); In re Sawyer, 324 B.R. 115, 121(Bankr. D. Ariz. 2005) ("Indeed, a review of Section 541 provides that thecollected funds in the Debtor's account became property of the bankruptcy estateeither pursuant to Section 541(a)(1) or (a)(2)"); In re Taylor, 332 B.R. 609, 611(Bankr. W.D. Mo. 2005) ("property of the estate includes the funds in theaccount");In re Dybalski, 316 B.R. 312, 316 (Bankr. S.D. Ind. 2004) ("the Fundsare property of the estate").
later the entities that received the funds from the account post-petition, are the
only entities that would satisfy those requirements. However, Debtors most
certainly had "control" over the funds "during the case," as § 542(a) requires.
At any time prior to the filing of the petition, and up to the time the funds
were withdrawn by the third parties to whom Debtors had written pre-petition
checks, Debtors had the ability to withdraw all funds in their account, to close the
account, to stop payment on any outstanding checks, and to transfer the funds
from the account to another account. There can really be no question that these
Debtors had nearly total control over these funds on the date they filed the
petition, and this control extended through the following Monday for one check,
Tuesday for two checks, and Wednesday for the last of those checks.
This leaves the final question of whether that control, which lasted for at
least two days after the case was filed, constitutes control "during the case,"
which is required by § 542(a). Although a handful of courts have held that an
entity must have current possession of the actual funds at the time the trustee
makes the demand for turnover,14 most courts have held that the requirement for
turnover under § 542(a) should apply to any entity that held the estate's property
at any time during the pendency of the case.15 As noted by the Seventh Circuit
Court of Appeals in Diversified Products,
The statute . . . requires the delivery of the property or the value of
the property. Otherwise, upon receiving a demand from the trustee,
the possessor of property of the debtor could thwart the demand
simply by transferring the property to someone else. That is not what
14 See, e.g., In re Pyatt, 486 F.3d at 429 (holding that an entity must havepossession of the estate property at the time of the turnover proceeding to beliable for turnover under § 542(a)).
15 See, e.g., Beaman v. Vandeventer Black, LLP (In re Shearin), 224 F.3d 353,356 (4th Cir. 2000) (holding that current possession is not a prerequisite for aturnover demand and that a trustee need only show "possession, custody orcontrol" at some point "during the case") and Boyer v. Carlton, Fields, Ward,
Emmanuel, Smith & Cutler, P.A. (In re USA Diversified Prods., Inc.), 100 F.3d53, 55 (7th Cir. 1996).
the statute says . . . and can't be what it means.16
In In re Majors,17 admittedly an unpublished decision, another panel of this
Court held that § 542(a) does not require current possession, so long as the trustee
can establish that an entity held the estate property at some point during the
pendency of the case—including immediately following the filing of the petition.
This panel affirms the holding in In re Majors that "[t]he obligation to turnover
extends not just to property presently in someone's possession, custody or control
but to property in its 'possession, custody or control during the case.'"18 This
Court shares the concern expressed in Majors that "if a lack of present
possession, combined with an explanation, constituted sufficient compliance,
little, if any, purpose would be served by the statutory alternative of requiring
delivery of 'the value of such property.'"19
In fact, if the statute is read to require current possession of the property,
the language allowing a trustee to alternatively recover "the value of the
property" would become superfluous, as the trustee could only recover the
property itself. It is an elementary canon of statutory construction that "a statute
should be interpreted so as not to render one part inoperative."20
We do wish to address one argument in support of requiring current
16 Diversified Prods., 100 F.3d at 56 (emphasis and citation omitted).
17 Rajala v. Majors (In re Majors), 330 B.R. 880, 2005 WL 2077497 (10thCir. BAP 2005).
18 Id. at *3.
19 Id. (quoting Boyer v. Davis (In re U.S.A. Diversified Prods., Inc.), 193 B.R.
at 874-75, aff'd sub nom. Boyer v. Carlton, Fields, Ward, Emmanuel, Smith &
Cutler, P.A. (In re USA Diversified Prods., Inc.), 100 F.3d 53 (7th Cir. 1996)).
See also Hill v. Muniz (In re Muniz), 320 B.R. 697, 700 n.2 (Bankr. D. Colo.
2005) (holding the fact a trustee cannot demonstrate a debtor's possession ofestate property at the time of turnover action merely means that his remedybecomes a money judgment for the value of the estate property, rather than anorder for turnover).
20 Dept. of Revenue of Or. v. ACF Indus., Inc., 510 U.S. 332, 333 (1994).
possession of property in a turnover action under § 542(a), which was raised by
the Eighth Circuit Court of Appeals in In re Pyatt,21 and which Debtors here
argue. In In re Pyatt, the court held that current possession or control was
necessary to avoid the possibility of double recovery by the trustee. In other
words, In re Pyatt suggests that if current possession was not required, a trustee
could, under our facts, require the Debtors to turnover the $3,764.99 under § 542,
then immediately turn around and file avoidance actions against the check
recipients under § 549, thus doubling this single asset for the benefit of the estate.
The Eighth Circuit noted that § 550(d) specifically limits a trustee to a
single recovery in actions under §§ 544, 545, 547-549, 553(b) and 724(a), but
makes no mention of such a limitation for actions under § 542(a). The court
inferred from that language that "[t]he absence of such a prohibition suggests that
the drafters did not intend to authorize a trustee to proceed under § 542(a) against
everyone who may have had control over property of the estate at some point after
the petition was filed."22
Although at first glance this appears to be a strong argument in favor of
Debtors' position that current possession or control is required, a closer
examination shows at least two flaws in this argument. First, it would be
extremely unusual for § 542(a) to be referenced in § 550(d), as a matter of
statutory construction. Every other statutory provision that is limited by § 550(d)
relates to the Trustee's powers to avoid transfers for the benefit of the estate.
Unlike §§ 544, 545, 547-549, 553(b) and 724(a), § 542(a) is not an avoidance
provision. It requires turnover of estate property and places the burden on those
who have possession, custody, or control over estate property to turn it over to the
trustee. Therefore, little, if anything, should be read into the failure to include
21 In re Pyatt, 486 F.3d 423, 427 (8th Cir. 2007).
22 Id. at 427-28.
§ 542(a) in the provisions of § 550.
Secondly, the Eighth Circuit's concerns about the potential for a double
recovery by the trustee are not entirely remedied by the holding that an entity
must have current possession, custody, or control over estate property to be
subject to a turnover action by a trustee. For example, in a case where funds
remain in a checking account on the date a trustee seeks turnover, both the bank
(which would currently be in possession of the funds) and the debtor (who would
currently be in control of the funds) could be the subject of the trustee's turnover
demand. So the double recovery the In re Pyatt court feared could still occur
under its interpretation.
As the Trustee in this case noted at oral argument, no trustee seeks to
recover the same asset twice, but they most assuredly want to collect it once. In
addition, if a trustee sought a double recovery, the party from whom the second
recovery was sought could raise as an equitable defense to turnover that the bank
account constituted effectively a single asset, and the trustee should not be able to
recover the same asset twice.
This Court reaffirms the holding of In re Majors by recognizing that current
possession of estate property is not a required element for turnover pursuant to
§ 542(a). The fact that § 542(a) specifically allows a trustee to recover either the
property itself, or the value of such property, clearly establishes that a party need
not be in actual possession of the property at the time of the turnover demand to
fall within the scope of § 542(a).
The Trustee is entitled to collect from Debtors the funds that
were in the checking account on the date of filing.
The Trustee has satisfied all of the elements required under § 542(a) to
establish a claim against Debtors for turnover of the funds that remained in the
Zions account on the date they filed their bankruptcy petition. The Court will,
however, briefly address some of the policy concerns that have been raised in this
and similar cases where a debtor had written pre-petition checks that cleared the
debtor's checking account post-petition, and where the trustee sought to collect
those funds directly from the debtor, rather than by using other remedies provided
in the Code.
The Court recognizes that the result of this decision places Debtors in a
difficult position. The funds that were in their checking account on the date they
filed their case are admittedly no longer available to them, as Zions Bank honored
those checks, and debited those amounts from their account, within four days after
they filed the case. This will therefore require Debtors to pay the funds
twice—once to the creditors23 to whom the checks were originally payable, and a
second time to the Trustee. Although this result does little to advance the
Bankruptcy Code's policy of providing Debtors a fresh start through bankruptcy,
it does promote an equally valid policy of providing for a fair and equitable
distribution of Debtors' assets to their creditors.24
23 The Court notes that one of the checks was written to a charity, and not acreditor. In that case, obviously, Debtors would have no obligation to replace thefunds. One must also remember, however, that if the Trustee brought an action toavoid the post-petition transfer under § 549, and recovered that transfer for theestate under § 550, the holder of the note secured by the mortgage, for example,
would be entitled to a claim under § 502(h) for the amount it was required toreturn to the Trustee. That claim would retain its secured status, leaving Debtorsin the same position with regard to the amount of money they owed the noteholder on the secured claim. See In re Laizure, 548 F.3d 693, 697-98 (9th Cir.
2008) (holding that a claim determined and allowed under § 502(h) retains thesame characteristics it held prior to the filing of the bankruptcy petition), and In
re Bankvest Capital Corp., 375 F.3d 51, 62 (1st Cir. 2004) (holding that a securedcreditor's claim that is avoided as a post-petition transfer is entitled to that samesecured claim following turnover to the trustee). See also David Gray Carlson,
Security Interests in the Crucible of Voidable Preference Law, 1995 U. Ill. L.
Rev. 211, 356 (1995) ("Payments received by a secured party are analyticallydifferent. Prior to bankruptcy, the 'payment' extinguished the antecedent debt.
Once the payment is returned, it ought to be the case that the old debt, once dead,
is now revived. This is universally assumed to be true, and § 502(h) more or lesssupports this conclusion[.]").
24 See Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 94 (1989) (Blackmun,
J., dissenting) (noting that "one of the central goals" of the bankruptcy process is"the fair distribution of assets among creditors."), S.E.C. v. Wealth Mgmt. LLC,
The Court also notes that Debtors could have prevented this result. Debtors
could have merely waited until all outstanding checks had cleared the bank before
filing their petition. However, if immediate filing was required, because of a
financial emergency such as a pending foreclosure, Debtors could have stopped
payment on the outstanding checks, or simply closed the bank account. In
addition, Debtors could have provided notice directly to the bank that they had
filed a bankruptcy petition, which would have created a duty on the part of the
institution to not honor the checks.
The Court understands Debtor's argument that the latter of the three options
could theoretically have subjected them to criminal charges,25 assuming a
prosecutor was able to show that Debtors issued the checks knowing that they
would not be honored by the bank. However, this result would be no different for
Debtors if they personally stopped payment on the checks or if they expected and
relied on the Trustee to stop payment on the checks as part of his duties under
Fed. R. Bankr. P. 2015(a)(4). If Debtors wrote those checks knowing that they
would be filing for bankruptcy protection before the checks cleared the bank and
that the checks would not be honored (either because Debtors closed the account
or the Trustee placed a freeze on the account), the potential criminal liability
would appear to attach regardless of who prevented the checks from clearing.26
24 (...continued)
628 F.3d 323, 334 (7th Cir. 2010) (noting the goal of a liquidation bankruptcy is
"the fair distribution of the liquidated assets"), and In re Luongo, 259 F.3d 323,
330 (5th Cir. 2001) (noting that "[t]he bankruptcy court's responsibility in
administering the estate is not only to achieve a fair and equitable distribution of
assets to the creditors, but also to relieve the honest debtor from the weight of
oppressive indebtedness and permit him to start afresh.") (internal quotation
marks omitted).
25 Utah Code Ann. § 76-6-505 (West 2011).
26 The Court notes that many, if not most, jurisdictions require the state to
prove actual intent to defraud when prosecuting an individual for writing a bad
check. As Chief Judge Kressel of the Eighth Circuit Bankruptcy Appellate Panel
The Court also acknowledges that the Trustee could have sought recovery of
these funds from others. Specifically, the Trustee could have notified Zions Bank
of the bankruptcy filing, consistent with his duty under Fed. R. Bankr. P.
2015(a)(4), so that the bank would be on notice to not honor the checks.
However, this option will rarely be practical or effective, because this solution
assumes a trustee receives accurate information within days or even hours of the
commencement of the case that would enable the trustee to send such notice, and
for the bank to receive the notice, before a check is honored.
This case provides a good example why this is not practical. This
bankruptcy was filed on a Saturday. It would be a rare situation for a panel
trustee to 1) be sitting in his or her office on a weekend, with staff, in the off-
chance a bankruptcy would be filed; 2) that he would necessarily be the one
appointed as the panel trustee on that new case; 3) that the schedules would show
the existence of enough money in a checking account worth immediately acting
on; and 4) that the schedules would provide sufficient information to allow the
trustee to contact any listed banking institutions. In addition, since all four checks
cleared within four days of the bankruptcy filing (and one the first business day
after it was filed), even if the Trustee had mailed the letter the first business day
the case was received, he could not have prevented that check from being honored.
These facts show that even if the Trustee had immediately complied with
the requirements of Rule 2015(a)(4), it is not only possible, but likely, that most
or all of the checks written pre-petition would have cleared the account by the
time the bank received the notice. Accordingly, compliance with Rule 2015(a)(4)
noted in his concurrence in In re Pyatt, however, "there is clearly no purpose todefraud if a bankruptcy debtor stops payment on a check in fulfillment of thedebtor's duties under a federal statute." In re Pyatt, 348 B.R. at 788 n.13. The
distinction between proving that a check was written with intent to defraud, orthat a check was written with knowledge that it would not be honored (as requiredin Utah), appears to be minimal.
is not the solution to the issue presented under the facts of this case.
Secondly, if debtors are not properly counseled, they may inadvertently
indicate in their schedules the balance they show in their check register, rather
than the accurate amount actually still within their account. That is what appears
to have happened here; Debtors listed the account with a $10.02 balance instead of
the actual amount of $3,764.99. Since panel trustees stand to only receive $60 in
a no-asset case, the system is not set up to require those same trustees to spend
their personal assets to seize a $10 bank account.
In addition, the first time panel trustees typically receive a debtor's full
social security number is usually a minimum of four to five days after the
bankruptcy filing, when the § 341 notice is received from the Bankruptcy Noticing
Center. Accordingly, especially in cases where the debtor has a common last
name, notice to a bank without a full social security number could well be
ineffective to provide actual notice of the bankruptcy. Had the Trustee in this
case waited the typical amount of time to receive the full social security number
before sending a notice to Zion Bank, all checks would have cleared.
Finally, the Trustee could admittedly seek to recover the funds directly from
the payees of the checks by pursuing separate avoidance actions under § 549. As
the Trustee argues, however, that approach would oftentimes be extremely
uneconomical when there are numerous checks in relatively small amounts.
Instead, the Trustee argues that the bankruptcy estate was better served by
following the path he chose to follow—seeking reimbursement through a single
entity without the need to file four separate adversary proceedings, with the estate
paying a separate filing fee for each one. His approach is both allowed by the
Code, and satisfies his "duty to collect the property of the estate 'as expeditiously
as is compatible with the best interests of the parties in interest.'"27
For the foregoing reasons, the decision of the bankruptcy court should be,
and hereby is, reversed. The Trustee has shown that he is entitled to an order
compelling Debtors to turnover $ 3,524.99, the amount he sought in his turnover
motion under § 542(a).
Accordingly, we REVERSE the bankruptcy court.
In re Spencer, 362 B.R. at 493 (quoting 11 U.S.C. § 704(a)(1)).
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