Dean Prober RIP

Attorney Dean ProberEmail from my friend Lee Raphael,

It is with indescribable sadness that we inform our friends, clients, and business associates of the passing of Dean Prober, the firm’s senior partner and president. Dean passed away peacefully March 1, 2018, surrounded by his family after a heroic battle with cancer.

Dean was a graduate of UCLA and Southwestern School of Law. Dean’s passion for his practice and the law was second only to his unending love and devotion to his family, friends and co-workers. As one of the firm’s original partners, Dean worked tirelessly to build a law practice dedicated to the belief that you should never over promise to the client but instead do your darned best to surpass their expectations. The firm will carry on in Dean’s memory under the continued direction of managing partner Lee Raphael. Read more…

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.

Is There a Duty of Adult Children to Support Their Parents?

Yes says California Family Code Section 4400:

Except as otherwise provided by law, an adult child shall, to the extent of his or her ability, support a parent who is in need and unable to maintain himself or herself by work.

Thanks and a tip of the hat to Shai Oved for pointing this out at the cdcbaa program on Elder Abuse last Saturday at Southwestern Law School.  I immediately forwarded the code section to my kids lest they forget.

Marijuana Dispensary Tenant in Chapter 13 Debtor’s Commercial Property – Sua Sponte Dismissal Valid?

I’m surprised this was not a published BAP decision –  chapter 13 debtor filed to stop a foreclosure of a commercial property with a dispensary as a one of the tenants :::cue the audience gasps:::

Debtor’s chapter 13 plan proposed to sell that commercial property with the dispensary and pay all creditors.  The bankruptcy court immediately dismissed the case on the grounds that the postpetition rents and sale were ill gotten gold basically (criminal in nature).  The BAP vacated the dismissal and remanded it to the court to make proper findings as to why it should dismiss.  From my reading of the case, it appears to me that the courts are becoming more mainstream and comfortable with dispensaries and not immediately concluding that any mention or involvement with a dispensary is criminal and grounds for sua sponte dismissal.

See case here 

LABF Program – March 12, 2018

How You Do D&O and Bankruptcy
Join our esteemed panelists as they explore issues regarding D&O litigation and bankruptcy.  Our panelists will discuss the differences in D&O litigation between California law and Delaware law; how you choose the forum: State Court vs. District Court vs. Bankruptcy Court; as well as the payment and advancement of defense fees and costs, covered vs. uncovered claims, and who owns the D&O insurance proceeds.

Hon. Martin R. Barash — United States Bankruptcy Court
Cynthia M. Cohen — Glaser Weil
Richard L. Wynne — Jones Day
William N. Lobel — Pachulski Stang Ziehl & Jones Read more…

Can a Trucker Use “Homestead” To Exempt His 18-Wheeler with a Sleeping Compartment?

Yes — in Wisconsin anyhow.  In a Wisconsin case, debtor had a semi truck with a cab and he wanted to exempt it under that state’s homestead exemption.   He sleeps in the cabin, has a bunk bend, refrigerator, radio, heater and a/c but no bathroom or kitchen.   Read more…

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…

Raise Fraud in State Court Or Else “Waived” Later for 523?

Are you barred from re-litigating fraud in bk court just because you did not do so in your state court matter even though the facts were there and you could have done so?  In Brown v. Felsen, 442 U.S. 127 (1979), the plaintiff sued defendant for breach of contract in state court (which was based on fraud).  Plaintiff obtained a quick default judgment but did not seek a finding of fraud even though he could have “easily” done so based on the facts and time permitted.  Defendant filed bankruptcy and when plaintiff filed his 523 complaint the debtor screamed “motion to dismiss for res judicata — you should have done that in state court!”  Will the court grant the motion to dismiss?  No.

Res judicata holds that a party is barred from re-litigating grounds for a cause of action that was available to that party in a prior lawsuit.  The motion will be denied because in Brown the Supreme Court said that it would be wrong to force plaintiffs to litigate all of the issues that might later bear on nondischargeability in the future just in case defendant files bankruptcy.  See 422 U.S. 138 (1969).

But does collateral estoppel apply?  Yes, see Grogan v. Garner.

Ben Reznik to be Honored by Jewish World Watch

Ben and I worked together a long time ago, very early in my career.  I’m happy to pass on the information on the program.

From the flyer,

Ben Reznik, with his wife, Janice Kamenir-Reznik, was a critical moving force in helping to establish Jewish World Watch nearly 15 years ago in response to the Darfuri genocide. He has been a leader for decades in the Los Angeles business and real estate communities as well as in the Jewish community.  Read more…

Judge Mark Wallace Dismisses Adversaries Based on Unclean Hands, Great Opinion

Law students love unclean hands.  The guy they like is the good guy which obviously gives the other guy unclean hands.  The same with unjust enrichment.  Judge Wallace explains very nicely In re John Olaf Halvorson that unclean hands can be a bar to the access to courts, at least when the court is sitting as a court of equity.  He quotes the Supreme Court in Keystone Driller Co v. General Excavator Co., 290 U.S. 240, 244-45, 54 S. Ct. 146, 78 L.Ed. 293 (1933):

“It is one of the fundamental principles upon which equity jurisprudence is founded, that before a complainant can have a standing in court he must first show not only that he has a good and meritorious cause of action, but he must come into court with clean hands . . . The governing principle is ‘that Read more…