Young Insolvency Professionals Mixer
February 29, 2016
10929 West Pico Boulevard
Los Angeles, CA 90064
Under 109(g), an individual (or family farmer) may not be a debtor if “(2) the debtor requested and obtained the voluntary dismissal of the case following the filing of a request for relief from the automatic stay provided by section 362 of this title”
I tell my clients that if we move to voluntarily dismiss a case after a relief from stay motion is filed, there will be a 180 day bar to refiling. Something in my brain changed the word from “following” to “after.” It turns out that they do not mean the same thing.
Section 109(g) was added to prevent debtors from abusing the system by dismissing their cases right before a hearing on relief from stay could be heard and/or granted; thereby depriving the creditor from obtaining an adverse ruling. It was not designed to bar debtors from filing cases in situations where relief from stay was filed years earlier or if issues with respect to the RFS motion were handled.
The most obvious example is the case where RFS is filed and the Debtor wins. Why would there be a bar? So keep this in mind the next time the UST requests a bar because RFS had been filed!
Warkentin v. Federated Life Ins. Co., 594 Fed. Appx. 900 (9th Cir. Cal. 2014) has a great lesson for litigators:
“These consolidated appeals concern a dispute over a [an insurance policy]. We vacate the district court’s order granting summary judgment to Federated and remand for proceedings consistent with this disposition.
“The parties are familiar with the facts, so we will not recount them here. After realizing he failed to timely oppose Federated’s motion for summary judgment, Warkentin filed an opposition and requested that the district court “continue the [summary judgment] hearing 14 days to allow [Federated] time to reply to [Warkentin's] Opposition.” This request was filed the night before the hearing on the summary judgment motion. (Emphasis added.)
“Warkentin’s request is most naturally read as a motion to extend the time for filing an opposition pursuant to Federal Rule of Civil Procedure 6(b). Under this rule, when a motion to extend time is filed “after the time has expired,” the court may extend the time upon a showing of “good cause” and “excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B). ”To determine whether a party’s failure to meet a deadline constitutes ‘excusable neglect,’ courts must apply a four-factor equitable test, examining: (1) the danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith.” Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1261 (9th Cir. 2010) (citing Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395, 113 S. Ct. 1489, 123 L. Ed. 2d 74 (1993)).
A district court abuses its discretion by failing to engage in this four-factor test or at least the “equitable analysis” captured by the test. Id . at 1261.”
Happy New Year!
The James T. King Bankruptcy Inn of Court meeting is scheduled for Tuesday, February 9, 2016 at 6:00 p.m.
Your host for the evening will be President Wes Avery and Program Moderator Hon. Neil Bason
We will be meeting at the Taix French Restaurant located at:
1911 Sunset Blvd.
Los Angeles, CA 90026 Read more…
From Chief Judge Sheri Bluebond:
After 40 years of practicing bankruptcy law and 10 years of being on the bench, the Hon. Richard M. Neiter has decided to retire effective as of 9/1/16. He should then have more time to enjoy with his wonderful wife, Lois, his five grandsons and their parents. We wish him well.
The new name is Brutkus Gubner Rozansky Seror Weber LLP. Their website is here. The announcement is here. Good lawyers – good people.
Commercial Law and Bankruptcy Section Meeting
January 28, 2016
Ethical Issues in Bankruptcy Debtor Representation
Time: 12:00 PM – 1:30 PM Read more…