All posts in Courts

“Notice waived?”

This may seem odd to share but you’ve heard it before at a hearing: “.…notice waived your honor?

On CourtCall this morning, the judge said something interesting.

The matter was continued and counsel for non-moving party said, “thank you, notice waived?”

The judge paused and said politely, “was that a question…..because notice can only be waived by the non-moving party since it was the moving party who brought the motion.  By asking it as a question you are asking the moving party to waive notice.   So, in lieu of asking “notice waived (question mark)” the non-moving party’s counsel should say it as an affirmative statement — “notice waived (period)”  The moving party would ask it in a question “notice waived?”

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LABF Program – Annual State of the Court Presentation – October 15, 2018

LOS ANGELES BANKRUPTCY FORUM
EDUCATIONAL PROGRAM

October 15, 2018

ANNUAL STATE OF THE COURT PRESENTATION

Join us for a special presentation by the Honorable Sheri Bluebond on the state of the U.S. Bankruptcy Court for the Central District of California, and what we can expect in the next year.

The Aftermath of Jevic and the Survival of Structured Dismissals and Settlements

After Chief Judge Bluebond’s presentation, our panel will discuss the aftermath of the United States Supreme Court’s ruling in Czyzewski v. Jevic Holding Corp., and whether class-skipping settlements and structured dismissals have survived. The panel will focus on opinions from courts around the country that have addressed these issues since the United States Supreme Court ruling. Read more…

Judge Scott Clarkson to Give Lecture on Dutch Artist Rembrandt van Rijn

On October 25, 2018 at 12 noon to 1 pm Judge Scott Clarkson will give a lecture on the life and 1656 bankruptcy of the Dutch artist Rembrandt van Rijn.  It is a lecture and powerpoint presentation that will be held in the Ronald Reagan Federal Building and Courthouse, 411 West Fourth Street, Santa Ana, Room 4078, Located in the USBC Intake Department, which is found by taking the escalator up to the 2nd floor.

This is a preview of the lecture he is giving at the Denver Art Museum on November 30.  Rembrandt Lecture Flier

Where Does The Word “Bankruptcy” Come From?

There are two possibilities according to BankruptcyData:  the first and most recognized is that “bankruptcy” is a combination of Bancus (latin for bench or table) and Ruptus (broken).  Back in the days a banker would do his trading on an open marketplace bench.  If the banker would no longer be able to meet his obligations then his bench was physically broken as a symbolic gesture to show his failure and inability to negotiate or do business.  This phrase carried over to Italy where the term morphed into “banco rotto” which means broken bank.  The other source of origin for the word is believed to be from the French “banque route” which means a table trace which was a metaphor for a sign left at the banker’s table that was once in business but not is gone.

Will the Retirement of Anthony Kennedy Change the Makeup of the Court?

I could sit for hours and listen to Prof.  Erwin Chemerinski talk about anything.  He did his Review of the Supreme Court last week for the 9th Circuit Judicial Conf.  Before he spoke, Judge Jay Bybee put a whole bunch of statistics about the last Supreme Court term on the screen.  One statistic that kind of jumped out is that on every 5-4 vote last term, Kennedy voted with the “conservatives.”  That suggests that replacing Kennedy with a “conservative” judge will not change, significantly for sure, the judicial makeup of the court.

When Chemerinski spoke then he commented on that fact and said that Kennedy typically joined the “liberals” of the court in five specific areas and in those areas, the new makeup will be significant.  The five areas are:

  • Abortion
  • Affirmative Axtion
  • Gay rights
  • Exclusionary rule
  • Limits on the death penalty

More on Reaffirmation Agreements

I had a short very enlightening conversation on reaffirmation agreements with a bankruptcy judge at the 9th Circuit Judicial Conf last week.  The conversation started with my comment at the program I was doing that I don’t sign – ever – the attorney declaration in 524(c)(3).  The conversation was about the consequences of not signing it.  I now have a new way of looking at the whole process.

Section 524(c) states that a reaffirmation agreement is not enforceable unless:

(3) such agreement has been filed with the court and, if applicable, accompanied by a declaration or an affidavit of the attorney that represented the debtor during the course of negotiating an agreement under this subsection, which states that—
(A) such agreement represents a fully informed and voluntary agreement by the debtor;
(B) such agreement does not impose an undue hardship on the debtor or a dependent of the debtor; and
(C) the attorney fully advised the debtor of the legal effect and consequences of—
(i) an agreement of the kind specified in this subsection; and
(ii) any default under such an agreement;

(5) the provisions of subsection (d) of this section have been complied with; and
(6) (A) in a case concerning an individual who was not represented by an attorney during the course of negotiating an agreement under this subsection, the court approves such agreement as—

(i) not imposing an undue hardship on the debtor or a dependent of the debtor; and
(ii) in the best interest of the debtor.

So far so good.  If I sign the declaration, the agreement is enforceable.  If I don’t, it’s unenforceable.  Can’t the court approve it anyway?  That is certainly what I and I’m sure 99% of consumer bankruptcy lawyers think.  But the debtor is still “represented by an attorney” – me – so (c)(6) doesn’t seem to apply. Read more…

What If 3rd Party Ignores Your Subpoena For Documents?

You are in an adversary and need documents from a third person (not a party to the lawsuit).  You issue upon him a subpoena with the discovery request for documents (subpoena duces tecum).  He ignores it.  What do you need to do?  If your knee-jerk reaction was “…I’d file a motion to compel!” then you’d be wrong.  The answer is ….

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Burden of Proof – Preponderance v. Clear and Convincing

I had coffee with an evidence professor and after we finished discussing my wife’s homemade burrata, we moved onto burden of proof.   He reminded me, there are 2 parts the plaintiff has to establish — (a) burden of production and (b) burden of proof.

The first goes towards whether the plaintiff is able to show evidence to prove their case (i.e. did you put forth any documents, witnesses, tangible items?).  The second goes towards whether what you put forth reaches the level of persuasion necessary to convince the court you should win (see below).  A good way the professor summarized it is the first part is “what did plaintiff actually show?” and the latter is “was it enough?” Albeit it looks obvious, he said most plaintiff’s do not meet the first burden which should automatically preclude them from meeting the second. Read more…

The purpose of this letter … is to provide notice of a current crisis [In the Eastern District]

Since not all of us are members of the Eastern District, I wanted to share a letter signed by all nine sitting district court judges in the Eastern District. I have attached a copy to this blog. Judgeship+Letter+June+2018

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“Notice” per Rule 2002 versus “Service” per Rule 7004

Some practitioners give “notice” of their contested motion on a corporation when they have to “serve” it.  What’s the difference?  Let’s take a look….

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