All posts in Courts

Favorite Quote By Late Justice Scalia’s Dewsnup Dissent

In a quick parenthetical Justice Scalia says “bankruptcy law has little to do with natural justice.”  I then reconcile this with Prof. MJH’s golden rule # 1 “bankruptcy really doesn’t do anything.”

Philosophical Friday thoughts.

Debtor’s Inherited IRA Not protected

Your client tells you “yes, I also have an IRA retirement account.”   Don’t stop there — ask them “is this your IRA that you created or you inherited from another person (i.e. spouse or parent)?”   If the latter — then be careful!  Inherited IRA’s can be taken by the trustee.  Why?  Because Justice Sotomayor, on behalf of the entire bench, said so in Clark v. Rameker (2014). Read more…

Supreme Court to Hear Consumer Bankruptcy Issue on Dischargeability 523(a)(2) – What is a “Statement of Financial Condition”?

On Jan. 12 the Supreme Court granted certiorari and will review Lamar, Archer & Cofrin LLP v. Appling, 16-1215 (Sup. Ct.), to resolve a split of circuits and decide whether a false oral statement about one asset is a statement of “financial condition” that must be in writing to result in denial of discharge of a debt under Section 523(a)(2).  The briefs are here.    It has not been set for oral argument.

The 11th Circuit has a nice summary of the issue in the first paragraph.

This appeal presents a question that has divided the federal courts: Can a statement about a single asset be a “statement respecting the debtor’s . . . financial condition”? 11 U.S.C. § 523(a)(2).  Ordinarily, a debtor cannot discharge any debt incurred by fraud, id. § 523(a)(2)(A), but a debtor can discharge a debt incurred by a false statement respecting his financial condition unless that statement is in writing, id. § 523(a)(2)(B).

Below is my brief on the issue resolved by the 9th Cir BAP.  Read more…

San Fernando Valley Bar Assn to Honor Judge Geraldine Mund

Email from Steve Fox,

Dear All:

The bankruptcy section is not conducting a meeting in February.  We will be back soon with some really good programs.

At the SFVBA’s annual judge’s night event on Thursday February 22, 2018 , Judge Mund is being honored.  The program will have a number of bankruptcy judges in attendance (along with state court judges) and it would be great to have a lot of bankruptcy attorneys in attendance for Judge Mund. Read more…

Notifying the State Court of the Automatic Stay

More stuff I didn’t know.  A person on the California Bankruptcy Specialists listserve complained that the Superior Court in Orange wanted him to pay a first appearance fee in order to file a Notice of Automatic Stay.  A tip of the hat to Frank X. Ruggier for his response, ”If you haven’t appeared, it is the other parties responsibility to file Notice of Stay.”

Rule 3.650(a) of the California Rules of Court requires the party who requested or caused a stay of the proceedings to notify the court of its existence, unless that party has not appeared or is not subject to the jurisdiction of the court, in which case the plaintiff in the pending action must immediately notify the court of the stay.  Therefore, if you or your assignee commenced a civil action to recover attorney’s fees and/or costs from the client, and the clients has not appeared in the action, it is the responsibility of you or your assignee to notify the court of the automatic stay.  Judicial Council Form CM-180 has been adopted for mandatory use in giving notice of a stay of proceedings, and a copy is attached for your use.

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.”  

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.

More on Sundquist: Are Fees Based on Contingency Fee Agreement here Reasonable?

No according to Judge Klein (in 40 pages).

Sundquist v. Bank of America (In re Sundquist) — B.R. — (Bkrtcy, E. D. Cal. Nov, 2017) Klein, J.

Issue:   Is it appropriate to “expunge” an attorney’s lien on the facts here?

Holding:   Yes.  The court here “canceled” the fee agreement between counsel and the debtor on the basis, in part, that fees exceeding $70,000 here were unreasonable.

Judge Christopher Klein

This is a 40 page diatribe excoriating the efforts of debtor’s counsel on behalf of the debtor.  It lays out very nicely however the rules of determining what fees are “reasonable” and how that determination intersects with state law.    Read more…

Hon. Harry Pregerson 1923 – 2017 RIP

Judge Harry Pregerson

I interviewed Judge Harry Pregerson about ten years ago in his chambers in Woodland Hills.  I was writing a short profile of him for the San Fernando Valley Bar Journal.  To say he regaled me over four hours with stories is to put it very mildly.  He was seriously wounded in the Pacific at the Battle of Okinawa when he was 22 years old.  He spent a few months I believe recovering on the island of Tinian.  He loved talking about the time he presided over the Oakland Raiders v. NFL trial, especially how smart the lawyers were and a few little tricks that they played trying to get an advantage with the jury.  In the bankruptcy arena, Judge Pregerson was on the panel in the Kagenveama case and later on the en banc panel in Flores where he dissented.

The article I finally wrote is below the jump.  The LA Times article on his death is here.

Judge Harry Pregerson
“Senior Judge on the Ninth Circuit Court of Appeals” Read more…

Nice Profile of Judge Laura Taylor, Chief Bankruptcy Judge in San Diego

This is a nice profile of Chief Judge Laura Taylor, written by Gary Rudolph for the state bar Business Law Section, Insolvency Law Committee eBulletin:

November 14, 2017  
Dear constituency list members of the Insolvency Law Committee, the following is a judicial profile of the Hon. Laura S. Taylor, Chief Bankruptcy Judge of the United States Bankruptcy Court, Southern District of California.  Gary Rudolph, a member of the Insolvency Law Committee, met with Judge Taylor to discuss her personal and professional background and her experience so far as a member of the bankruptcy bench.

In the Beginning

Judge Taylor has known since high school that she wanted to be a lawyer because it blended her interest in law and the political process.  After engaging in private practice, including taking time away from a successful bankruptcy and finance practice with a large law firm to represent  disadvantaged families on a pro bono basis through a non-profit program she helped to found, she set a new challenge for herself that would best use her talents and interests–namely, to become a judge.  Judge Taylor had two respected judges as mentors and role models to follow on this path to the bench–most immediately, her husband, the Hon. Timothy B. Taylor, Judge of the Superior Court for the State of California, and the Hon. Irma E. Gonzalez, United States District Judge (Ret.), who was Judge Taylor’s neighbor and whose daughter babysat Judge Taylor’s oldest son. Read more…