Public Counsel’s Debtor Assistance Project (“DAP”) is having our annual Earle Hagen Memorial Golf, Tennis & Poker Tournament at Porter Valley Country Club on Monday, September 19, 2016.
We would greatly appreciate everyone’s help in making this year’s Tournament a great success! Your support makes it possible for Public Counsel to assist thousands of individuals and families. Below is a Public Counsel video that I hope you will enjoy. It helps me remember that together we can bring justice, opportunity, and hope to the most vulnerable members in our community.
Sciarratta v. U.S. Bank National Assn, 2016 WL 2941194 (California Court of Appeal, Nares, J., May 18, 2016)
Issue: Must a foreclosure sale be set aside where the foreclosing lender is not the actual owner of the loan at the time of the sale, or must the borrower show prejudice first?
Holding: Yes, “a homeowner who has been foreclosed on by one with no right to do so—by those facts alone—sustains prejudice or harm sufficient to constitute a cause of action for wrongful foreclosure.”
APPEAL from a judgment of the Superior Court of Riverside County, John Vineyard, Judge. Reversed and remanded.
Nares Huffman O’Rourke
The lender here filed a Notice of Default. Subsequently it assigned the loan to a different bank. Shortly after the foreclosure sale, the original lender assigned the loan to yet a second different bank who purportedly “purchased” the property at the sale. The court agreed that the lender that foreclosed was not the owner of the note at the time of the foreclosure. The borrower brought an action for wrongful foreclosure and the lender argued that there was no prejudice to the borrower since the conflicting transfers were paperwork mistakes and either way, the borrower was in default and had not cured. The trial court agreed with the lender and dismissed the case. Read more…
Your 2016-2017 Board:
Hale Antico, Co-President
Hon. Neil Bason, Co-President
Anthony Friedman, President Elect
Doug Flahaut, Vice President
Tamar Terzian, Secretary
Jeff Hagen, Treasurer Read more…
I get calls all the time from people who say that so and so owes them money and just filed bankruptcy. Did the debtor lie and cheat and steal when you loaned him the money or sold him the goods? No – well then I would take your files and pitch them in the ocean. You are out of luck. The debtor gets his fresh start.
Now I can say, “any chance the debtor hide some assets or transferred something he owned to some relative?” If so, the Supreme Court says that MIGHT form the basis for declaring the debt non dischargeable. If the debtor really did that I usually tell the client, we can ask the court to deny his discharge altogether under section 727 but then you are in line with all other creditors whose debts are likewise not discharged. But now we can go after the debtor alone under 523(a)(2) and have the debt discharged only as to us, not everyone else. Read more…
My friend Richard Girgado and I were discussing property taxes in court while waiting for a hearing yesterday. Richard represents the County of Los Angeles in its tax matters and is an exceptionally good guy and very helpful to debtor lawyers like me. I was complaining that if I sell my home and downsize, my property taxes will go up because the new home will cost more than the basis in my present home. Richard told me that a person who is over 55 years old and sells his home and buys another home for less than the sales price of the original home, gets carryover basis for property tax purposes. In other words, the taxes you are paying on your present home will be the same as on the new home. He even looked up the code section for me: Rev & Tax Code 69.5. One caveat is that this may not apply if you buy a home in a different county than the county you live on now.
This is an article based on a presentation Judge Watford made to Marquette a couple years ago. I had lunch with he and Judge Marty Barash last week. The Jim King Bankruptcy Symposium is going to be a great program. Judge Watford actually met with President Obama when he was being considered to replace Justice Scalia.
See you on August 13 at the Skirball Center. By the way, members are free of course and anyone else can attend for $25. Pay it at the door when you get there. Room holds 200.
Email from Maggie:
I wanted to thank everyone for their support in electing me to one of the At-Large positions for the 9th Circuit Conference Committee. It is a tremendous Read more…
Ozenne is the 9th Circuit case that announced that the BAP is not “a court established by Act of Congress,” and therefore cannot issue a writ of mandamus. The opinion is here. There is a pretty interesting discussion about “what is a court established by Act of Congress”? The BAP said “that’s us” and then denied the writ. The 9th Circuit panel (two of the three) said the BAP had no jurisdiction and therefore must dismiss the petition for the writ. Read more…
There was some serious discussion at one of the programs at the 9th Circuit Judicial Conference about Sunnyslope, more in the area of equitable mootness than in property valuation issues. Someone reminded us that a confirmed plan in a corporate chapter 11 cannot be modified after it has been substantially consummated. In Sunnyslope, everyone involved in the case agreed that the plan was substantially consummated. The opinion says, ”the plan as approved by the bankruptcy court was substantially consummated, as all parties acknowledge.” So it must be “unraveled,” – pitched out. The court (the two person majority) concluded, “As a result, the plan of reorganization confirmed by the bankruptcy court and affirmed by the district court must be set aside.” So I guess it will not be modified, the parties will simply start over four years later. Read more…
This resolution was adopted unanimously by the Lawyer Representatives at the 9th Circuit Judicial Conference last week.
A Resolution Concerning the Importance of an Independent Judiciary as the Third Branch of Government
WHEREAS, during this political campaign season, federal judges have been the targets of inaccurate and unfair accusations questioning their integrity and ability to render fair and unbiased decisions; AND Read more…