All posts in Courts

Bankruptcy Appeals – BAP or District Court?

The Ninth Circuit 2018 Annual Report tells us that last year there were 277 appeals from bankruptcy courts in the Central District of California.  Total appeals in the 9th Cir were 623 so we are almost half.  Of the 277 in the Central District, 131 were to the BAP and 146 to the district courts.

Every appeals program I have been to since forever spends a healthy amount of time discussing which court is “better” for the appeal – the BAP or the district court.

Here is my take on how to decide which court to appeal in:

  • If the issue is truly a bankruptcy issue, it is rarely better to appeal to the district court.  Plans and confirmation, the automatic stay and preferences befuddle most district court judges and their clerks.  One district court judge told me that he is mystified that anyone would want him to resolve a bankruptcy issue.
  • If there is BAP precedence against you, the BAP is bound by its prior rulings so you might as well go to the district court which is not bound by BAP rulings in other cases.
  • If you suspect that the matter is going to go  to the 9th Circuit irrespective of the result at the first level of appeal, go to the BAP.  It will recognize the issue and explain it to the 9th Circuit for you.
  • The BAP is ruling pretty quickly these days.  You can expect a resolution within 3-4-5 months.  The district court in my experience takes a lot longer.
  • The BAP will almost always allow oral argument.  The district court rarely does (in my experience).
  • If the matter is really heavy duty state court -non-bankruptcy court – litigation, the district court might be better.  For example, claims objections based on state law.  The district court is likely more familiar and comfortable with non-bankruptcy litigation issues.

The idea that one court or the other will “rubber stamp” the bankruptcy court is ridiculous and insulting to the judges.

cdcbaa 6th Annual JIm King Program – September 7, 2019

Saturday, September 7, 2019

Southwestern Law School, 3050 Wilshire Boulevard, Los Angeles, CA 90010

11:00 a.m. to 1:00 p.m.

Sixth Annual James T. King Bankruptcy Symposium

Supreme Court: In re Taggart, Discharge Violations

SPEAKERS:

Daniel L. Geyser, Dallas, Texas
Prof. Dan Bussel, University of California, Los Angeles, School of Law
M. Jonathan Hayes, Resnik Hayes Moradi, LLP

Dan Geyser argued the Taggart case before the Supreme Court in April, 2019 and of course obtained a badly needed reversal of the Ninth Circuit opinion. In fact, Dan argued four cases this year in front of the Supreme Court! He is a graduate of Harvard Law School and a very entertaining speaker.

Dan has argued the following cases before the Supreme Court:

  • Taggart v. Lorenzen (creditor’s “good faith” does not preclude liability for discharge violations – reversing the Ninth Circuit).
  • Obduskey v. McCarthy & Holthus LLP (non-judicial foreclosures not covered by the Fair Debt Collection Practices Act).
  • U.S. Bank Nat’l Ass’n v. The Village at Lakeridge, LLC, (appellate standard of review in the “non-statutory insider” context).

His major cases at the circuit court of appeals level:

  • Garfield v. Ocwen Loan Servicing, LLC (Bankruptcy Code does not broadly repeal the Fair Debt Collection Practices Act in the discharge context). 811 F.3d 86 (2d Cir. 2016).
  • America’s Servicing Co. v. Schwartz-Tallard (In re Schwartz-Tallard) (attorney’s fees proper for prosecuting violations of the automatic stay – convincing the en banc court to overturn past circuit authority).

Prof. Dan Bussell teaches Bankruptcy and Contracts among other subjects at UCLA Law School. He is also a partner at Klee, Tuchin, Bogdanof & Stern LLP. Prof. Bussel received his law degree from Stanford Law School and clerked for Justice Sandra Day O’Connor after that. Published opinions in which Prof. Bussel served as appellate counsel include Stern v. Marshall (US Supreme Court); In re Penrod (US Supreme Court (on cert.) and 9th Cir.); Continental Insurance Co. v. Thorpe Insulation Co. (9th Cir. and US Supreme Court (on cert.)); and Motor Vehicle Insurance Co. v. Thorpe Insulation Co. (9th Cir.).

This will be an very entertaining discussion about the Supreme Court, the Ninth Circuit Court of Appeals, and Taggart, the discharge injunction, violations of the automatic stay and perhaps some predictions about where the court and the law is going.

 

Justice Elena Kagan comments at the 9th Circuit Judicial Conf

Elana KagenI had such a great time again at the 9th Circuit Judicial Conference last week in Spokane.  Plus I got to wander around my old alma mater Gonzaga University.

Justice Kagan attended the final get-together of the conference on the grounds of Gonzaga Law School.  I got to take the picture and shake her hand!  She is such a regular person with endless patience meeting and having her picture taken with everyone.  The last program of the conference the next day was an interview with her.  She made three particular comments that I thought were pretty interesting:

1.  During the almost two years when there were only eight of them, they really worked harder on the 4-4 votes.  They really didn’t want to rule 4-4.  I think most of us know that.  But she said that    typically with nine justices, they vote at the conference and at the end of the vote, someone wins.  The natural tendency is to move on.  But when the vote was 4-4, they would continue talking about it, sometimes for a long time, what can we do, how can we find a way to rule rather than just say we’re stuck?  She chuckled and said often the way out was to limit the scope of the ruling which may have been to a point that the ruling wasn’t terribly useful but at least it was a ruling.

2.  Justice Kagan was a law clerk for Justice Thurgood Marshall.  She loves the man.  He told the clerks countless stories.  She said she thinks he is the greatest litigator of the 20th century.  He argued probably 15 times before the Supreme Court.  But she added that there were times when he would argue before the Supremes and two days later do a trial in Mississippi.  He had a lot of experience in every venue and love to tell about it.

3.  Justice Kagan was asked whether she agreed with the perception that there is a growing “supreme court bar,” i.e., a fairly small group of lawyers focusing on the Supreme Court.  If so, is that good?  She said that the concept is generally right and that it is good for the court.  That is because those lawyers know what to expect, what the court wants, how to talk to the court, get intimidated a little less, and the court therefore trusts them a little more going into oral argument.  She commented that sometimes there are attorneys arguing before them that they wish had gone to one of the specialists.

Quote I want to Remember – Figuring out Congressional Intent

“[T]he Ninth Circuit has cautioned that attempting “to divine congressional intent from congressional silence” is “an enterprise of limited utility that offers a fragile foundation for statutory interpretation.” Polar Bear Prods., Inc. v. Timex Corp., 384 F.3d 700, 717 (9th Cir.2004).

Properly mailed item is presumed to have been received.

Wonder where it says that?  “The law presumes that a properly mailed item was received by the addressee.”  Hagner v. United States, 285 U.S. 427, 430 (1932).

Great cdcbaa Program June 8, 2019 – Handling Trial from Pre-Trial Proceedings until the Appellate Review

Please join us on June 8, 2019 as we present:
 
Judges on Trial! 
 
Hon. Catherine E. Bauer | U.S. Bankruptcy Court – Central District of California, Santa Ana Division 
Hon. Ernest M. Robles | U.S. Bankruptcy Court – Central District of California, Los Angeles Division  
Hon. Martin R. Barash| U.S. Bankruptcy Court – Central District of California, San Fernando Valley Division  
 
Moderator – Anerio V. Altman, Esq. 

 
Judges Bauer, Robles and Barash will discuss their approaches to handling trial from the Pre-Trial Proceedings until the Appellate Review.  The judges will submit themselves to the jurisdiction of the cdcbaa and answer questions from the audience.  Now the tables are turned!
 
Registration: 10:30 a.m. - 11:00 a.m.
Program: 11:00 a.m. - 1:30 p.m.
 
Southwestern Law School
Bullocks Wilshire Building Read more…

Nice Judicial Profile of Judge Scott Clarkson

The Business Law Section of the California Lawyers Assn has a nice Judicial Profile of Judge Scott Clarkson in its April 2019 eNews.  You can access that here.

Congratulations to Chief Judge Maureen Tighe

Image result for judge maureen tighe The Passing the Gavel ceremony yesterday at the 9th Circuit Court of Appeals in Pasadena was pretty fun.  I think it’s the fourth one I’ve been to now.  Outgoing Chief Judge Sheri Bluebond passed two gavels, one really large and one more ornate, to incoming Chief Judge Maureen Tighe before a huge throng of well-wishers and admirers.  Talk about hitting the ground running, the government shut down about the time Judge Tighe’s four year term began.  Judge Tighe told us she discovered quickly that there is no manual on how to deal with that.  So she met with the Chief District Court Judge Virginia Phillips, and the 9th Circuit staff, Cathy Campbell of course and others to try to figure out what to do.  She was determined to make sure the courts remained accessible to those who needed them which is what happened.  I say without exaggeration that if it came to a vote among bankruptcy lawyers today about who is the best judge in the Central District it would be Maureen Tighe.  She has the perfect blend of patience and firmness.  She has huge empathy for the parties, especially the little guy, along with the decisiveness the parties need from a judge.  Congratulations Judge Tighe.

Supreme Court Grants Cert in Taggart!

Last Friday, the Supreme Court granted cert in the Taggart case.  That is the discharge violation case that says

“the creditor’s good faith belief that the discharge injunction does not apply to the creditor’s claim precludes a finding of contempt, even if the creditor’s belief is unreasonable.” [emphasis added] 888 F.3d at 444

Lorenzen v. Taggart (In re Taggart), 888 F.3d 438, (9th Cir. April, 2018)

SFVBA Program This Friday – Supreme Court Opinions – Ahart and Hayes

Email from Steve Fox (obviously not written by me)

Dear All:

Friday’s bankruptcy program is the annual program on Supreme Court opinions.  What none of you get to enjoy (but I do) is the spirited back and forth discussion and argument which the two panelists, Judge Ahart and Jon Hayes, have had by email arguing about cases, what they mean and whether they have importance to bankruptcy practitioners. Read more…