UWLA Newsletter

With a nice little bio of my friend and colleague David Chaney. You can access it here.

Are findings of fact and conclusions of law required? Answer, sort of.

Nice quote from a district court memorandum I am reading.

Appellant does argue that the Bankruptcy Court was required to render findings of fact and conclusions of
law as required by Federal Rule of Civil Procedure 52(a), citing Rediger Investment Corporation v. H
Granados Communications, Inc. (In re H Granados Communications, Inc.)
, 503 B.R. 726, 732 (B.A.P. 9th
Cir. 2013). But that authority itself demonstrates that “[w]here the bankruptcy court rules without
articulating its findings, . . . there is no reversible error where the record provides the reviewing court with
a full, complete, and clear view of the issues on appeal” and that a “[r]eview of the record suffices when it
contains clear references to the factual basis supporting the bankruptcy court’s ultimate conclusions.” Id. at
732-33. This is the case here. This Court has no difficulty in understanding why the Bankruptcy Court
ruled in the way it did. As such, any failure by the Bankruptcy Court to follow the dictates of Rule 52(a) is
not reversible error.

Good News – UWLA 2021 California Accredited Law School Annual Compliance Report

Email from Dean Jay Frykberg, Dean and Provost, University of West Los Angeles School of law

UWLA 2021 California Accredited Law school Annual Compliance Report

All,

I can report that UWLA has successfully submitted our 2021 annual CBE report. This report was dramatically different and much larger than any previous annual report due to changes from staff at the CBE (ie. student/faculty demographics, further disaggregated data based upon campus location and program, etc.) in fact this report was almost three times the size of previous annual reports and consisted of 33 files and 916 pages all of which was completed in only 23 days. This is also our first fully digital report that is accessible on UWLA’s share drive, that ensures that next year’s process will be even more efficient.

Thank you to each of you who contributed, especially to those that submitted print ready documents as requested, and an extra special and deeply appreciated thank you to Patty and Jesse both of whom were indispensable in the completion of this project. Not only did they complete their sections, but they also assisted in completing many more.

Jay

Response from President Robert Brown

Dean Frykberg, I would like to also extend my heartiest appreciation for the work completed by your team. I wish to note that your team submitted the report well  in advance of the requisite deadline. I also want to express my appreciation for the extraordinary efforts of Jesse Aldava and Patty White. Job well done.  Your contributions are recognized and appreciated. As you know this report is not only no small feat to prepare but it means everything in terms of our state bar accreditation and our relationship with the California Bar. Congrats!

I also want to salute Dean Frykberg for being named the Chair of the State Bar rules committee. What a fantastic and well-deserved honor. You mean that someone from UWLA is considered an “insider”? lol Thanks jay for your fabulous and ongoing leadership. You are an example for all of us to aspire to emulate. Will you please join me in saluting Jay and his team for their outstanding efforts and achievements?

Robert Brown

Short explanation of bankruptcy alternatives

This is an email I sent to a prospective client a few months ago.  A succinct explanation of bankruptcy alternatives.

Dear Joe,

Your choices for bankruptcy are chapter 7 and chapter 11.  Neither you nor any of the corps qualify for chapter 13.  

Chapter 7 is a liquidation.  A trustee is appointed.  He/she sells everything you own that has equity and is not exempt.  You have no choice in it.  The trustee owns everything you own instantaneously and sells it – if of course he can find a buyer.  If he can’t find a buyer or there is no equity or it is exempt, he will “abandon” it back to you.  

In a personal case, i.e., you as an individual, “everything you own” includes all community property.  The trustee will sell it irrespective of your wife’s interests.  The trustee cannot sell your wife’s separate property.  

In chapter 7, all your debts are discharged – wiped out – with a few exceptions like child and spousal support, most taxes, fraud.  Your wife’s debts will not be wiped out in your bankruptcy but that does not mean she is liable for your debts.  She is only liable for debts she promised the creditor she would pay.  For example, I saw that she signed for some the [bank debt].  Her obligation to pay that would not go away in your bankruptcy (unless you stay married and then it sort of goes away).  Likewise any deal you make with your wife in family court to pay the debts she owes is not binding on the creditor.  

So in chapter 7, the trustee would sell your home – and give you the $600,000 exemption.  He would sell your interest in [your corp].     

corporate chapter 7 works the same way with one big exception – the corporation/LLC does not get a discharge.  When the case is over, the corp still owes whatever it owed when the case started.  Corps don’t file chapter 7 very often.  There may be other reasons to file – other than getting a discharge. 

If [your corp] files chapter 7, the trustee would control the litigation against [the bank].  The trustee might actually litigate it, i.e., hire a lawyer on a contingency – even your lawyer if he will do it on a contingency.  It is more likely though that the trustee will try to settle it with [the bank].  The trustee might think it’s too much hassle and just close the chapter 7 case which would mean it is your asset again to proceed with.  That would only happen if [the bank] refused to pay even $10-15-20,000 to settle.   

Chapter 11 is a reorganization.  There is no trustee.  You personally function as the trustee.  You keep all of your property, you continue to operate your business with bankruptcy court oversight.  

You file a plan of reorganization.  The creditors get to vote on the plan, i.e., accept or reject it.  The court can approve the plan, even if almost everyone rejects it.  That is called the cram down powers of the court.  

The most fundamental part of the plan is that you have to pay your creditors at least as much as they would get in a liquidation.  So you would have to value [your corp] at some amount, and the litigation against [xyz] and the equity in your home after the homestead exemption, and then pay that amount to your creditors over five years – up to 100% of the total debts.    

A corporate chapter 11 works basically the same way.  You propose a plan to pay creditors what they would get in a liquidation.  If [your corp] files chapter 11, you would remain in control of the litigation with [the bank] but the plan would probably say you will pay the proceeds of the litigation to [your corp’s] creditors, up to payment of all creditors in full.  

Let me know what you think.  Jon   

18th Annual Bankruptcy Ethics Symposium – Friday, November 19, 2021 (3.5 hours ethics)

The Federal Bar Association (LA Chapter) is hosting its 18th Annual Bankruptcy Ethics Symposium on Friday, November 19, 2021.  The format this year is online/webinar only.

Click here to register online (November 19, 2021)

Click here for the event flyer (pdf).

Federal Bar Association-Los Angeles Chapter’s 18th Annual Bankruptcy Ethics Symposium

Friday, November 19, 2021

Time: 9:00 a.m. to 12:30 p.m.

Online / Webinar

3.5 hours of ethics CLE

SPEAKERS:

  • Honorable Sandra R. Klein, U.S. Bankruptcy Court, Central District of California
  • Honorable Barry Russell, U.S. Bankruptcy Court, Central District of California
  • Honorable Martin R. Barash, U.S. Bankruptcy Court, Central District of California
  • John Hermann, Chief Deputy of Administration
  • Ron Maroko, Office of the United States Trustee
  • Misty Perry Isaacson, Pagter and Perry Isaacson, APLC
  • J. Scott Bovitz, Bovitz & Spitzer
  • John N. Tedford, IV, Danning, Gill, Israel & Krasnoff, LLP

Program Chair: Joseph Boufadel, Salvato Boufadel LLP

PROGRAMS:

  1. Leaving Your Attorney Legacy:  Ethical Consideration in Mentoring and Succession Planning  
  2. Technical Competency and Ethical Pratfalls: “I am Not a Cat” and Much More
  3. Brave New World: Ethical and Practical Considerations in Conducting Remote Hearings and Trials

MCLE: 3.5 Hours Legal Ethics. This activity has been approved for Minimum Continuing Legal Education Credit by the State Bar of California. The FBA certifies that this activity conforms to the standards of approved education activities prescribed by the rules and regulations of the State Bar of California governing minimum continuing legal education.

Thank you.

Joseph Boufadel

Salvato Boufadel LLP

San Fernando Valley Bar Association – Bk Program on Sub-Chapter V – One Year In – a National Perspective 6/25/2021 at 12 noon

Email from Steve Fox,

Dear All:

We have a unique and really good program for you on June 25th at lunchtime.  We have bankruptcy attorneys from Oregon, Utah, Tennessee, Maryland and New York along with Bankruptcy Judge Paul Bonapfel from the N.D. Georgia to speak on SCV cases one year in.  Judge Bonapfel is the author of the definitive materials on SCV cases and we hope to have his latest update for the 6/25 program for all attendees.  We also have Roksana Moradi of Encino fame on the panel too.  The panelists all have been handling SCV cases.  Judge Bonapfel will discuss a couple of issues of importance in SCV cases. Then each panelist will discuss one or two of their own SCV cases, what happened, interesting twists in their cases, each will briefly discuss an SCV topic and then also provide comments about SCV cases from judges and law clerks in their jurisdictions.  Our goal is to give all of you a unique and national view of SCV cases.

The value of this program is really high.  I encourage you to sign up early before we run out of room in the Zoom space.  If you are a member of the judiciary or with the U.S. Trustee, and would like to attend please contact Linda Temkin at the email address above. Read more…

Congratulations to Everett Green

I learned today that Everett Green will be the new Chair of the Business Law Section of the California Lawyers Association.   Congratulations Everett.

Remember, landlords are sacred cows in bankruptcy.

My most recent article published by the Los Angeles Daily Journal, Remember, landlords are sacred cows in bankruptcy, came out on May 20, 2021.  You can access the article here.  Landlords DJ 5-20-21.   Let me know what you think.

Message from University of West Los Angeles School of Law (UWLA) President Robert Brown (total good news).

Dear UWLA executive management team, faculty and staff. While it is fresh in my mind, I want to circle back and commend our entire institutional team on the recent great achievements. After tremendous efforts and team work by  all, we have achieved amazing institutional victories and goals. I want to ask everyone to reflect on what we recently achieved and then re-direct your energies and efforts to the formidable challenges facing us this year.

  1. In February of this year, we hosted a WASC accreditation visit and were extremely successful in evidencing to the team, why we deserve to be re-accredited. Just as a reminder, this visit occurred because we received our initial accreditation two years ago, and WASC requires a backup visit within two years of the initial accreditation. Yes, it has been two years already since we received initial accreditation! Our entire team from the board of managers to our faculty and every staff person contributed to the successful re-accreditation visit. Dean Frykberg and Dean Brown, led our tremendous faculty and  staff in preparing an accreditation self-study that had over 7,000 pages of evidence. Our accreditation report from the visiting team had a number of outstanding commendations and in particular cited our faculty, Deans and the Board of managers and our CFO. We will attend the WASC conference in June to meet with the full WASC committee and we expect to receive full renewal of accreditation  based upon the WASC team report and their overall recommendation.  Great job team! Thanks Faculty and staff. Read more…

Eavesdropping under California law – Penal code 632

I have always wondered where it says you cannot record a telephone conversation.  It’s California Penal Code section 632(a), called eavesdropping.

CHAPTER 1.5. Invasion of Privacy [630 – 638.55]

632.
(a) A person who, intentionally and without the consent of all parties to a confidential communication, uses an electronic amplifying or recording device to eavesdrop upon or record the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500) per violation, or imprisonment in a county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment. . . . .

What is all of that in English?

1.  The conversation must be “confidential” meaning at least one of the parties “desires it to be confined to the parties thereto,” Penal Code section 632(c) which specifically carves out conversations in a public gathering.

2.  The recording of the conversation must be without the consent of all parties to the conversation.  I wonder if the statement you hear while waiting on the phone that “this conversation may be recorded” constitutes consent by all parties.  It must be since it happens so often.