December 8, 2014 – LABF – Bankruptcy Community Holiday Party


Los Angeles Bankruptcy Forum
25th Anniversary
Bankruptcy Community Holiday Party

December 8, 2014
6:30 to 8:30 p.m.

Mr. C. Beverly Hills
1224 Beverwil Drive
Los Angeles, CA 90035

November 20, 2014 – 2014 William J. Lazarow Awards Reception

Public Counsel’s
Debtor Assistance Project

2014 William J. Lasarow Awards Reception

Recognizing Outstanding Pro Bono Service

The Roybal Federal Building
Main Lobby & Reception Hall
255 East Temple Street
Los Angeles, CA 90012

Thursday, November 20, 2014
6:00 – 8:00 p.m.

October 23, 2014 – OCBF – Judges’ Night

The Orange County Bankruptcy Forum

October 23, 2014

Judges’ Night
Differing Perspectives on Important Legal Issues

Participating Judges include:
Hon. Theodor C. Albert
Hon. Catherine E. Bauer
Hon. Scott C. Clarkson
Hon. Richard Neiter
Hon. Deborah J. Saltzman
Hon. Erithe A. Smith
Hon. Scott H. Yun

Jess Bressi, McKenna Long & Aldridge LLP

(Additional Judges may be included at a later date)

Westin Hotel
686 Anton Boulevard, Costa Mesa
(Across from South Coast Plaza at Bristol Street and the 405 Freeway)

October 23, 2014
5:30 – 6:15 p.m. – Check in/No-Host Cocktails
6:15 – 7:00 p.m. – Dinner
7:00 – 8:30 p.m. – Program

Until October 15th
Member $85/Non-Members $100/Government Employees $50

After October 15th
Members: $95/Non-Members $110/Government Employees $55

MCLE 1 hour credit


Debtors + Class Action: Stir Carefully

You remember the class action quartet, right? Numerosity, Commonality, Typicality,  and Adequacy of Representation.

The Supreme Court in Wal-Mart Stores, Inc. v. Dukes (2011) took issue with plaintiff’s lack of commonality with other members’ claims.

But much recently, the Hon. James Otero of our local U.S. District Court of the Central District, took issue with the last requirement – adequacy of representation. In Alakozai v. Chase Investment Services Corp. (Oct. 2014), the court denied certification of the class on the following grounds: (a) plaintiffs’ claims were not “typical” of other members, and (b) the plaintiffs could not “adequately represent” the class.

Sitting at the edge of your seat, you ask — why!? Simple, the plaintiffs failed to disclose their personal bankruptcy filings, and failed to mention their class action claim in their bankruptcy schedules. Tsk-Tsk-Tsk.

To summarize, the court found that plaintiffs who had a personal bankruptcy pending would have other priorities that would obscure their full attention to the class action case, and that the plaintiff’s right to sue in the class action belonged to the trustee not the debtor (since the Ninth Circuit has said in Cloud v. Northrop Grumman,  all causes of action that accrued before the filing were property of the estate).  As such, argued the U.S. District Court, it was not the plaintiff’s claim to begin with – rather the Trustee’s. So you can’t “adequately represent” the class, if you are not the representative at all.

The case stands for the proposition that a District Court, at least in Judge Otero’s courtroom, will deny certification if the named plaintiff(s) do not disclose their bankruptcy filings or fail to list the class action in their schedules.

Rule of thumb: fully vet your plaintiff’s in the class action, and disclose if plaintiff’s have filed bankruptcy. Failure of which is, in legal parlance, a “big no-no”.


Full opinion at

Contempt Actions

The Central District Consumer Bankruptcy Attorneys Assn (cdcbaa) is putting on a program a week from this Saturday, Oct 25 at Southwestern Law School in downtown Los Angeles.  You can get the information here.  My friend Ray Aver, bankruptcy litigator par excellence will be telling us how to litigate violation of the automatic stay and discharge injunctions.  Judge Neil Bason will be on the panel and West Los Angeles attorney Gary Wallace.

Violations of the stay and discharge injunction seem to have become common here.  We will be filing one tomorrow.  A creditor filed an abstract during a previous case.  It is void as a matter of law.  The creditor refuses to remove it.  It has prevented our client from refinancing the property.  I recently received an award of $8,000 against a creditor who was suing my client after the bankruptcy case ended and the discharge was entered.  He would not back off even though I gave him 10 chances.  We are also seeing a lot of creditors ignoring confirmed chapter 11 plans.   The plan often changes the terms of secured debt, the mortgage payment on rental property being the most common.  The plan gets confirmed and the client sends in the new amount.  The bank sends it back and tells the client it’s the wrong amount.  The bank often starts foreclosing and ignores our letters.  We are filing requests for OSC re Contempt.  The court gives us the OSC without a hearing which sets a hearing.  The trickiest part is the damages, you have to prove damages, not just complain about it.

Come listen to Ray Aver.  It’s worth it.


October 23, 2013 – Los Angeles County Bar Foundation Gala

Los Angeles County Bar Foundation Gala

Thursday, October 23, 2014
6:30 PM
Bel Air Bay Club
16801 Pacific Coast Highway
Pacific Palisades, CA

General Admission $300

Please join in as the Foundation celebrates over 50 years of community service and honors the following for their extraordinary contributions to the legal community and to the people of Los Angeles:

Shirley and Seth Hufstedler – Vanguard of Justice Award
Mattel – Corporate Community Service Award

Investor in Hope Sponsors Include:
Gibson Dunn
Morrison Foerster
The Morrison Foerster Foundation

To Register call LACBA Member Services at 213-896-6560

Getting Paid: SCOTUS To The Rescue

Should you be paid for your services? ’Absolutely!‘, you yell at the first person in front of you.

Should you get a bonus for the hard work you did on behalf of debtor’s estate, which allowed the estate to recoup a lot of assets? ”Well of course…” you murmur under your breathe — “In Re Smith (2002) says so!”

Not so fast. The Supreme Court will answer the latter question by the end of the term. Submit those fee-apps quickly…just in case.

The Court will be tackling the issue of whether fees that resemble a form of bonus to the fee applicant, and costs incurred in defending that fee application should be compensable?

Ironically, on the fifth Tuesday in September – yes, fifth – the Court granted certiorari to the Fifth Circuit’s Baker Botts LLP v. Asarco LLC (“Asarco”), to answer this question.

The story unfolds like this — the law firm of Baker Botts represented Asarco during the company’s $1.7 billion bankruptcy settlement in 2009, which at the time was the largest environmental bankruptcy in U.S. history.

During the complicated case, Baker Botts did an exceptional job in recouping assets valued at nearly $7 billion via a successful fraudulent transfer litigation. Baker Botts submitted a $120 million fee application — plus a $4 million bonus to themselves for their hard work in recouping such assets for the estate.

I assume Baker Botts argued “‘but-for’ our hard work, the debtor’s estate would not have realized $7 billion of recouped assets”. While applauding the firm’s hard work, the bankruptcy judge agreed. The Debtor was livid at such a fee application, and vehemently objected. In defending its fee application, Baker Botts incurred an additional $5 million. Now, should Baker Botts be able to recoup this $5 million additional fee?  We will find out.

While the bankruptcy and district court approved the fees under §330 — the Fifth Circuit said not so fast.  The Fifth Circuit said those fees do not benefit the debtor’s estate nor are they necessary for the administration of the case — and as such, sorry Baker Botts, but you do not get those fees.

Baker Botts immediately filed a petition to the high court arguing that the Fifth Circuit’s decision conflicts with the Ninth Circuit’s (which allows the bankruptcy court discretion to award such fees under 330(a)).

Our Ninth Circuit, in In re Smith (2002), has said that fees stemming from those types of services that Baker Botts performed are “actual and necessary services”, and thus compensable. Phew.

Come June 2015, the circuit split shall be resolved, and we should finally find out how discretionary §330 can be.



For further information, please see the source: ABI World, In Asarco Case, by Valeria Morrison and John Farnum.



11th Annual cdcbaa Calvin Ashland Awards dinner

The cdcbaa annual dinner is Thursday November 6, downtown at the LA Hotel, formerly the LA Marriott.  It is at 2nd and Figueroa.

 We are honoring Judge Sheri Bluebond as our Judge of the year.  At least 8 judges have sent us rsvps.

 The dinner is free to members but you must sign up on our website so we can tell the hotel how many will attend.  The info from the website is below.

 I hope to see you there.  Nancy Clark will be sworn in as our new President.

2014 Calvin Ashland Awards Dinner

The LA Hotel (formerly the LA Marriott) – 333 S. Figueroa Street, Los Angeles, CA 90071

Please join us for a night of celebration to honor the Hon. Sheri Bluebond – this year’s Calvin Ashland Judge of the Year. Location: The LA Hotel (formerly the LA Marriott Hotel). 333 Figueroa Street, Los Angeles, CA 90071 Jazz Trio featuring Bruce Campbell followed by dinner and awards presentation at 7:00 p.m. Reception and no-host bar at 6:00 p.m. cdcbaa MEMBERS: 2014 cdcbaa annual membership fee includes one free ticket to this dinner. Please complete the form and indicate your meal preference. Members must RSVP prior to October 24, 2014 to attend the dinner at no cost. NON MEMBERS AND GUESTS: $95 for on-time non members and guests with RSVP and payment received by 10/24/14* $125 non members and guests RSVP and payment received after 10/24/14. $150 at the door. $75.00 Judicial Officers/ Government Employees

David Hahn Memorial Service

Thanks to Sheila Pistone for this.  David Hahn was a good guy.

Celebration of Life

Wednesday, October 15, 2014

You are welcome to gather and visit with friends and the family at 5:00 pm.
The Celebration of Life will begin at 5:30 pm.  Food and beverages will be served.

The service will take place beachside in northern San Clemente . Parking will be available in the area around the San Clemente DMV (2727 Via Cascadita, San Clemente , CA. Attendees will then walk one block across the PCH to the beach where the service will be held.

Please note: It is recommended that you dress casual and prepared for the beach and the weather. You may want to bring a lawn chair and blanket with you. After the Celebration we invite you to all enjoy a toast and the sunset together.

SFVBA October 16 Noontime Program on 9th Cir. Bankruptcy Opinions with counsel and Judge Ahart

SFVBA October 16 Noontime Program on 9th Cir. Bankruptcy Opinions with counsel and Judge Ahart

On Thursday, October 16, 2014, starting at 12 noon sharp, the Bankruptcy Section of the San Fernando Valley Bar Association will present a program on 9th Circuit bankruptcy opinions from the past year. The panelists are Judge Ahart, Ray Aver and Gregory Salvato.

The program is important because none of us can keep up with the opinions issued by the 9th Circuit. Many important opinions will be covered by the panelists. The program materials are substantial. As always, the panelists will take questions and comments during the program.

The program charge (which includes the program, the materials and lunch) is inexpensive:

Member $30.00

Non-Members $40.00

Member at Door $40.00

Non-Member at Door $50.00

Government rate – contact me. It’s real cheap.

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