Happy Anniversary to Resnik Hayes Moradi, LLP

Resnik Hayes Moradi LLP just passed its second anniversary in existence, July 1, 2020.  We are hanging in there with the current heath issues in our country.  Most of our attorneys and staff are working from home but we have not missed a beat on the quality services we strive to provide to our clients.  Here’s to your good health and Happy 4th of July.  Our firm resume is here. 

Judgment creditor request for attorney’s fee for bankruptcy court efforts.

I found this in a tentative by the very thoughtful Judge Ernest Robles.  Can judgment creditors get attorneys fees for their efforts in bankruptcy court?  Yes, but they have to do it right.

In re Harris, 2:20-12839

B. The Attorneys’ Fees Motion is Denied

The Attorneys’ Fees Motion is denied without prejudice because the Court lacks jurisdiction to award attorneys’ fees under 42 U.S.C. § 1988 on account of the Judgment.

The Bankruptcy Court has jurisdiction over “all cases under title 11.” 28 U.S.C. § 1334(a). “Generally, in the bankruptcy context, the word ‘case’ is a term of art which refers to ‘that which is commenced by the filing of a petition; it is the “whole ball of wax,” the chapter 7, 9, 11, 12 or 13 case.’” Blevins Elec., Inc. v. First Am. Nat’l Bank (In re Blevins Elec., Inc.), 185 B.R. 250, 253 (Bankr. E.D. Tenn. 1995). Read more…

How to pay the new District Court $25 fee

Email from Keith Higgenbotham

Dear Colleagues!

The District Court is currently finalizing its renewal application and plans to post it on its website with a link to a portal so that we can pay online using a credit card.  It plans to send out a Notice to its practitioners and to our Bankruptcy Court Clerk.  Once the Notice is received, our Clerk of the Court will send out its own Notice to all the bankruptcy CM/ECF users with a link to the District Court’s website and portal.  The District Court’s goal is to have the renewal application posted and the portal setup by the end of next week.

So some advice:

  1.   You do not need to send in a check to District Court with the hope that it will be applied correctly.

  2.  PLEASE do not send a check to the Bankruptcy Court since it has nothing to do with this fee.

cdcbaa member

Keith Higginbotham

Recovering attorney’s fees in bankruptcy – great program

This program looks great!

Insolvency Law Committee
Zoom Webinar: Recovering Attorney’s Fees in Bankruptcy Court Litigation
Friday, July 10, 2020, 11 am – 12:15 p.m.

This webinar is co-hosted by the Insolvency Law Committee of the Business Law Section of the California Lawyers Association and Remedies Section of the Los Angeles County Bar Association

Register Here

Our Speakers: Honorable Victoria S. Kaufman, United States Bankruptcy Court, Central District of California; Daniel J. Bussel, Professor, UCLA School of Law and Partner, KTBS Law LLP; Gregory M. Salvato, Partner, Salvato Law Offices. Moderator: Joseph Boufadel, Salvato Law Offices. Read more…

Tentative from Judge Kaufman re exemption for Covid-19 stimulus checks

June 25, 2020  2:00 PM
1:11-11603  Chapter 7
#3.00 Judgment Creditors Motion Assignment Order and Restraining Order

Docket 735
I. BACKGROUND
At the last hearing, the Court requested that Tammy Phillips and Tammy Phillips, a Prof. Law Corp. (“Creditors”), file a supplemental brief regarding whether Kevan Harry Gilman (“Debtor”) waived his right to claim an exemption in any “Covid-19 economic stimulus checks/payments from the federal government to Debtor,”including the stimulus check that Debtor may qualify for under the Coronavirus Aid, Relief, and Economic Security Act (the “Stimulus Check”) .

On May 28, 2020, Creditors filed a supplemental brief (the “Brief”) [doc. 746].  In the Brief, Creditors assert that Debtor waived his right to an exemption by failing to claim one within three days of the hearing on their motion pursuant to California Code of Civil Procedure (“CCP”) § 708.550.  Creditors also argue that Debtor has waived his right to claim an exemption in any future Covid-19 related federal stimulus payments.  Finally, if Debtor is provided with a Stimulus Check, Creditors expressed opposition to the Court’s proposed procedure for Creditors to receive the Stimulus Check. [FN1].  Debtor did not file a response to the Brief. Read more…

Watch 9th Circuit oral argument in the Taggart case

You might have thought Taggart was resolved by the Supreme Court, eh?  No “it goes on Judah,” from my favorite movie Ben Hur.

The Supreme Court reversed the prior ruling of the 9th Circuit in Taggart and sent it back to the 9th Circuit.  The 9th Circuit required new briefs, basically starting the appeal over.  They are back to reviewing the ruling by the BAP that the creditor here did not violate the discharge injunction when it asked for postpetition attorneys fees in state court litigation that had begun prepetition.  The BAP had ruled that the creditor had a reasonable belief that he was not violating the discharge injunction.  The 9th Circuit had affirmed saying it’s purely subjective, even if the subjective belief is unreasonable.  The Supreme Court reversed saying it is not purely subjective – the test is whether there is a fair ground of doubt.

Dan Geyser argues for the debtor.  You may recall he came to Los Angeles from his home in Texas last summer to do a program with Prof Dan Bussell and me for the Central District Consumer Bankruptcy Attorney’s Assn (cdcbaa).   He had just finished arguing four cases that term at the Supreme Court.  You can watch the oral argument here.  https://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000017600

Watch out for Ford and reaff’s

This is from our consumer bankruptcy listserve, bankruptcy attys only, names have been withheld to protect the innocent.

Question (from consumer bk atty):  I filed a Chapter 7 for client.  Ford sent their letter saying to sign a reaffirmation agreement or they will repo the car.  Has anyone had Ford actually repo cars with no reaffirmation agreement?

Answer No. 1:  Yes…especially if they’re represented by Cooksey Toolen in Costa Mesa.

Answer No. 2:   Definitely. Watch out for Ford!

Comment from Hale Antico, President of our group:

I think the conventional wisdom is only Ford/Cooksey will go after a failure to reaffirm, but it’s still best practice to reaffirm, coupled with the next sentence. If the court disapproves it, we’re back to pre-BAPCPA ride-through. I know of no example of a repo after a court disapproval where debtor remained current.

Credit Unions won a reaff carve-out at 524(m)(2).

Cathy Moran Oral History (and Happy Birthday Cathy)

It will always be one of the highlights of my business life that when I asked Cathy Moran if she would let me do her oral history, she said yes.  We met for two hours, two days in a row, at her office near San Jose, discussing her life and of course her views of the bankruptcy world and consumer bankruptcy practices.  She has a lot to say and every consumer bankruptcy attorney should listen to her.  We talked about her early days growing up on a farm in central California, helping her farm animal veterinarian father in his business, even helping him with surgeries here and there.  She went to Stanford undergrad and later Hastings Law school.  But it’s her comments on the practice of bankruptcy, 40 years worth, especially chapter 13, that people should listen to.  The audio of the oral history can be accessed here from the website of the Biddle Law Library of the University of Pennsylvania Law School.  Scroll down to find hers.  Listen to it on one of your walks.  The Biddle Law Library has had it transcribed but has not uploaded that yet.   Let me know what you think.

Her blogs, if you haven’t checked them out, are here and here.

By the way, Happy Birthday Cathy.  Keep yourself well.

San Fernando Valley Bar Association – Bankruptcy Section and Business Section Joint Program on Landlord Tenant Lease Issues in the Age of Covid 19

Email from Steve Fox

Dear All:

We have a very timely program for all of you.  Attorney David Campbell Smith will be speaking about various lease issues including evictions in the Age of Covid.  For bankruptcy attorneys this problem will be hitting us over and over in bankruptcy cases where tenants file bankruptcy cases to try to save their leases or to stave off eviction.  Under California law, what arguments will be more effective?  Mr. Smith’s presentation will be a nuts and bolts look at the terrain.  The presentation is timely because now businesses are starting to reopen, landlords are getting their legs under them and the fireworks are about to begin.  The program is free to members. Read more…

Bankruptcy filings down again in May 2020 – Central District of California

Another huge drop in the number of filings in May compared to a year ago.  The filings were down 38% compared to last May although about 24% higher than April.  The drop from a year ago for May is less than the 54% drop from April to year ago April.

2020 2019 2018 2017 2016 2015 2014
Jan 2,828 2,745 2,741 2,839 2,872 3,364 4,704
Feb 2,781 2,754 2,708 2,795 3,299 3,829 4,574
March 2,736 3,481 3,363 3,782 3,923 4,496 5,430
April 1,669 3,631 3,277 3,209 3,584 4,486 5,364
May 2,080 3,347 3,226 3,384 3,484 3,971 5,500
June 2,967 2,981 3,252 3,545 3,966 4,386
July 3,270 3,057 2,953 3,239 3,731 4,701
Aug 3,274 3,337 3,387 3,543 3,544 4,540
Sept 2,934 2,772 3,071 3,168 3,493 4,317
Oct 3,355 3,259 3,170 3,235 3,751 4,554
Nov 2,636 2,821 3,004 3,025 3,531 3,642
Dec 2,723 2,419 2,416 2,902 2,718 3,733
Total 12,094 37,117 35,961 37,262 39,819 44,880 55,445

The total filings by category for this year is:

Non-Comm’l Commercial Chapter 7 Chapter 13 Chapter 11
11,026 1,071 9,894 2,077 124
91% 9% 82% 17% 1%