All posts in Appeals

Credit Card Companies Beware, California Appellate Court Finds That Their Evidence of Debt May Not Be Admissible

This is a summary of Sierra Managed Asset Plan, LLC, vs. Hale which was published by the California Court of Appeals on August 20, 2015. You can find the case here.

Consumer opened a credit card account with Citibank, N.A. He accumulated an unpaid balance of $10,138.41. Through a series of assignments, Sierra acquired Citibank’s rights as creditor. Sierra sought to enforce those rights through a lawsuit. Consumer did not deny the account, but he testified that he did not recall any of the details of the purchases on or the accrued balance of the account.

To prove that the defendant owed the money, Sierra had its agent testify and attach exhibits which substantiated the assignments leading to Sierra’s acquisition of rights as creditor on the account in question, the account agreement, and the account statements reflecting all of the charges culminating in the unpaid balance due. The account statements reflect purchases by a “David C. Hale,” with a listed address the same as that acknowledged by appellant at trial.

Consumer objected to receipt of the credit account exhibits attached to Sierra’s agent’s declaration on a variety of grounds, including hearsay and the lack of any foundation which would support their admission under the business records exception. (Evid. Code, § 1271.)

The Appellate Court agreed with Consumer, finding that the testimony did not provide substantial evidence of the foundation necessary for admission of the records pursuant to the business records exception to the hearsay rule.

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Fair Use is a Defense to DMCA Takedown Notices and Could Subject Copyright Holders to Attorney Fees

The Digital Millennium Copyright Act provides a potent mechanism for copyright owners to demand that certain copyrighted materials be taken off of websites. This is because online services providers are given immunity from liability as long as they “expeditiously” remove content after receiving notification from a copyright holder that the
content is infringing.

The idea behind giving service providers immunity is rooted in the idea that if all the service provider is dong is allowing people to post content, then the content poster, and not the provider, should be liable for the copyright violation. That makes sense. Service providers like YouTube would go out of business if they were held liable for all the copyrighted videos posted on there.

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BAP Oral Argument Tomorrow at Roybal

The BAP Oral Argument is tomorrow at Roybal at 1 pm.  (Not Friday).

This is from the BAP calendar.

OFFICE OF THE CLERK U. S. BANKRUPTCY APPELLATE PANEL OF THE NINTH CIRCUIT 

REVISED CALENDAR FOR: Thursday, October 22, 2015 Read more…

Appealing to the BAP

I attended two mcle programs in the last week dealing with appeals to the BAP.  The first was at the State Bar meeting in Anaheim last weekend and the second was Saturday with the cdcbaa.  Judge Laura Taylor, Sarah Stevenson, Staff Attorney for the BAP, and Alan Vanderhoff were the featured speakers in Anaheim.  Judge Barry Russell, Susan Spraul, BAP Clerk of the Court, and Kathleen McCarthy were the guests of honor at Southwestern School of Law yesterday.

Lots of good advice and things to think about.  Last year there were 428 appeals to the BAP and 427 appeals to the District Court. Read more…

9th Circuit Panel Chosen for In re Zachary

The 9th Circuit has finally chosen the three justices who will hear In re Zachary.   They are Richard Paez, Mary Murguia, and  Andrew Hurwitz.  Judge Paez wrote the Bellingham decision and I think is a friend of bankruptcy debtors.  Mary Murguia was appointed by Obama in 2011.  She is one of seven children of parents who emigrated from Mexico in 1950.  Andrew Hurwitz is also an Obama appointee from 2011.  He successfully represented several death row inmates before the Supreme Court in Ring v. Arizona getting a ruling that juries rather than judges make the factual determinations of whether there is aggravating circumstances to merit the death penalty.

I like this panel.  I am rooting of course for affirmation of In re Friedman.  Oral argument is 10/21 at Stanford.

cdcbaa Program on Appeals

HOW TO BE APPEALING TO THE BANKRUPTCY APPELLATE PANEL

October 17, 2015

Speakers:

Judge Barry Russell, United States Bankruptcy Court

Susan Spraul, Clerk of the Ninth Circuit BAP

Kathleen McCarthy Read more…

Thursday, September 24, 2015 – OCBA – Exemptions Case Law and Statutory Update

ORANGE COUNTY BAR ASSOCIATION
COMMERCIAL LAW & BANKRUPTCY SECTION

September Meeting

Exemptions Case Law and Statutory Update
 Learn about 2014-2015 developments regarding exemptions including recent case law imposing the burden of proof on the Debtor and allowed surcharges after Law v. Siegel;
 Discover best practices for maximizing exemptions without risking denial of discharge; and
 The panelists will also discuss proposed Senate Bill 308 increasing the homestead exemption to $300,000 across the board and eliminating the requirement to reinvest exemption proceeds.

D. Edward Hays, Esq., Partner, Marshack Hays LLP
Jeffrey I. Golden, Esq., Partner, Lobel Weiland Golden Friedman LLP Read more…

Most Commercial Speech is Not Activity Protected by California’s Anti-SLAPP Statute.

On August 20, 2015, the Los Angeles Division District Court was presented with the issue of whether false advertising on the internet was subject to anti-SLAPP protection. The case is In L.A. Taxi Cooperative, Inc. v. The Independent Taxi Owners Association of Los Angeles and a copy can be found here.

Apparently rival cab companies are purchasing pay per click advertisements on leading search engines which purport to be the rival company but really redirect customers to their own websites and numbers. An example is:

Kia Tehrany, director of operations for Yellow Cab, stated that he conducted a search using the terms “‘Yellow Cab Los Angeles.’” The results included the following:

Yellow Cab Los Angeles – Call 800-521-8294 or Book Online!
www.lataxi.com
Our Cabs get you there Fast & Safe.

Tehrany stated that neither the listed telephone number nor the website was owned or controlled by Yellow Cab. Instead, the website contained information related solely to taxi services provided by ITOA.

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Pop Quiz! How Long After Entry Of Order Confirming A Plan Can The Order Be Revoked? Hint: It’s Not What You Thought!

If an order confirming a Plan of Reorganization is procured by fraud, how many days from entry of order does one have to ask the court to revoke the order?

The answer depends on which chapter of the Bankruptcy Code we’re talking about! In a Chapter 12 or Chapter 13 case, one would have up to the 180th day after the date the order was entered to seek revocation of the discharge. In a Chapter 11 case, one would have up to the 179th day after the date the order was entered to seek revocation. That is a pretty tough lesson to learn the hard way.

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Tenants Beware: Stipulation to Judgment May Be Treated as Res Judicata

This blog is a quick review of Needelman v. DeWolf Realty Company which was entered on July 21, 2015.

The tenant entered into a stipulated judgment that specifically provided that Tenant waived “any claims he may have, which [the lessors] assert do not exist, to bring an attempted wrongful eviction against [the lessors] or any action in any way arising out of or concerned with his tenancy…” and stated that Tenant “agrees that any of his personal property remaining in the unit after he vacates or is evicted therefrom shall be considered abandoned property, and [the lessors] shall be entitled to dispose of it without any notice to Tenant or his attorney.”

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