California Statute of Limitations – Tolled When the Defendant is Out of State? Maybe Not.

Someone commented at a program on the Supreme Court cases last year dealing with the Fair Debt Collection Practices Act (“FDCPA”) that the statute of limitations is tolled when the defendant is out of state.  “Hmm,” I thought, “another thing I didn’t know.”

Sure enough, Section 351 of the California Code of Civil Procedure states:

[i]f, when the cause of action accrues against a person, [the defendant] is out of the State, the action may be commenced with the term herein limited, after his return to the State, and if, after the cause of action accrues, he departs from the State, the time of his absence is no part of the time limited for the commencement of the action.

As my hobby is to review 9th Circuit cases, I stumbled across Capital Options, LLC v. Goldsmith (In re Capital Options, LLC) (Unpublished) No. 16-60054 (9th Cir. Jan. 2018).  In total dicta, the memorandum says,

Capital argues that because Goldsmith moved from California to Montana, § 351 tolls the SOL unless and until he returns to California.  However, because allowing § 351 to toll the SOL in this case would likely violate the Commerce Clause, Capital has not shown that the Bankruptcy Court’s decision was an abuse of discretion. [emphasis added]

Penthouse Global Media Files Chapter 11

U.S. Bankruptcy Court Central District of California (San Fernando Valley) Bankruptcy Petition #: 1:18-bk-10098-MB

Assigned to: Martin R. Barash Chapter 11
Date filed:   01/11/2018

 

Debtor Penthouse Global Media, Inc. 8944 Mason Ave. Chatsworth, CA 91311 LOS ANGELES-CA Tax ID / EIN: 47-2601335 represented by Michael H Weiss Weiss & Spees 1925 Century Park E Ste 650 Los Angeles, CA 90064 424-245-3100 Fax : 424-245-3101 Email: mw@weissandspees.com

More Comments from Aki re New Chapter 13 Plan Form

Some Common Errors with the New Plan – Part 2

I just wanted to touch on some common drafting errors/omissions that I have observed with the new plan. My sample has been limited but my hope is that clarification today will make for a smoother process for the bar, the trustees and the judges.  Here they are:

1. Class 7 and Adequate Protection Order Payments for a Leased Vehicle [Page 11 of Plan] – if your client has entered into an APO with a creditor for cure of an arrearage on a leased vehicle and your client’s intention is to make direct payments to Read more…

Central District Filing Stats for December and 2017

we finished 2017 at 37,262 petitions or about 6.5% fewer than 2016.

2017 2016 2015 2014
Jan 2,839 2,872 3,364 4,704
Feb 2,795 3,299 3,829 4,574
March 3,782 3,923 4,496 5,430
April 3,209 3,584 4,486 5,364
May 3,384 3,484 3,971 5,500
June 3,252 3,545 3,966 4,386
July 2,953 3,239 3,731 4,701
Aug 3,387 3,543 3,544 4,540
Sept 3,071 3,168 3,493 4,317
Oct 3,170 3,235 3,751 4,554
Nov 3,004 3,025 3,531 3,642
Dec 2,416 2,902 2,718 3,733
Total 37,262 39,819 44,880 55,445

Below is the breakdown of petitions for the year and the percentage of each category to the total.

Non-Commercial Commercial Chapter 7 Chapter 13 Chapt 11 Other TOTAL
34,377 2,892 27,598 9,299 365 7 37,269
92% 8% 74% 25% 1% 0% 100%

The chapter 13s come to 1,860 per trustee or about 155 per month.

Comments from Aki Koyama on Attorneys Fees in Chapter 13

ATTORNEY FEES

This is the final part of this series. I wanted to cover this section last because we are dealing with substantial form and procedural changes.

As an initial matter, the LBR has only been changed to make clear that if a RARA has been filed, it can be withdrawn with the written consent of your client. The ability to withdraw a RARA, once a RARA was filed in the case, was unclear in the prior language. As there is currently no official form for withdrawal of a RARA, you will have to draft your own pleading. See LBR 3015-1(v)(5).

As most of you are aware, most of the changes have come with the revised RARA and new supplemental fee application forms for post confirmation work and a new fee application for when the case has been dismissed or converted. Both of the new forms are limited to cases where a RARA has been filed.

The links for these forms are as follows: Read more…

Comments from Aki Koyama on the new Chapter 13 Plan Form

Some Common Errors with the New Plan

I just wanted to touch on some common drafting errors/omissions that I have observed with the new plan.  My sample has been limited but my hope is that clarification today will make for a smoother process for the bar, the trustees and the judges.

Here they are:

1. Post Petition Car Payments: if your client is making car payments directly and there is no arrearage on the car loan, please indicate that they are doing so by checking off the box for non-standard provisions [Page 2, section 1.4] and providing the detail in Section IV(D) Other Non Standard Provisions [Page 14]; Read more…

Supreme Court Rejects Petition in Sunnyslope

This morning buried in the 45 page listing of Supreme Court Orders is the Order denying cert in the 9th Circuit en banc Sunnyslope case.  The Order List is here.  I thought they might take it.  It is not terribly complicated and the case discusses trying to reconcile the Supreme Court decision in Associates Commercial Corp. v. Rash with the facts in Sunnyslope.  My posting on Sunnyslope is here.   Prof. Dan Schechter says the 9th Circuit was “shockingly wrong.”  

Shout Out to Jardee Transcription Service

The thought occurred to me that I should compliment Barb Jardee on the great job she did on the Meredith Jury transcript.  I sent her the video tape of Judge Jury at the Ashland Awards dinner and asked her to do her best.  With the echoes and other noise, it was very difficult to understand any of what Judge Jury was saying.  I thought there was a chance that it was impossible and would never get done.  But somehow Barb got about 80% of the words into a word file.  I sent that to Judge Jury and she was able to remember what she said and complete the transcript.

Barb was referred to me by Judge Mund a few years ago.  She has transcribed many things for me; oral histories, 341(a) transcripts, audio tapes I have made of client statements etc.  She is very quick, very accurate and very reasonable.  She is in Arizona so we do everything by email and Box Drop.

Barb’s email is barbjardee@msn.com.  I highly recommend her to you.  Her website is http://jardeetranscription.com.

Judge Meredith Jury’s Comments at the cdcbaa Ashland Awards Dinner

Judge Jury received the cdcbaa award as Judge of the Year at our annual Ashland Awards dinner last month.   Her comments were epic and the award so well deserved.  Luckily I was able to track down someone who taped her statement on an IPhone (or something).  I had the comments transcribed with Judge Jury’s permission and posted on the cdcbaa website.  You can read her statement here.   It is one of my greatest honors to count her as a friend.

Very Nice Article on Paid Preparers

How to Get Away With Bankruptcy Fraud

This article by Paul Kiel for ProPublica is really nice.  We all know it goes on and most of us wish we could help fix the problem.  The article shows why Judge Maureen Tighe should be up for canonization.

I sent Paul an email thanking him for the investigative work and the great article.  Here is his response:”

Thanks, Jon. I hope it leads to something!  Please let me know if you see any evidence of stepped-up enforcement or anything like that, because we publish our stories with the goal that they bring change.  There has been some chatter about a kind of task force between the debtor and creditor bar on the CACBA listserv, I think.