Judicial notice of declarations – by the debtor at least

A footnote in some case I was reading.

2 The Court takes judicial notice of its files and records under Rule 201 of the Federal Rules of Evidence. See In re Clark, 525 B.R. 442, 449 (Bankr. D. Idaho 2015), aff’d, 2016 WL 1377807 (B.A.P. 9th Cir. March 29, 2016) (taking judicial notice of papers filed on its docket and noting, “Papers filed in a bankruptcy case by a debtor under penalty of perjury also have evidentiary significance under Fed. R. Evid. 801(d)”).

In re Brace – finally some action (a little) at the California Supreme Court

On the Supreme Court (Cal) docket.  Apparently there might be oral argument “within the next few months.”  The Supreme Court is required to rule within 90 days of oral argument but there is no rule about when oral argument must take place.
12/31/2019 Oral argument letter sent Dear counsel: Please be advised that the court could set this case for argument within the next few months. Schedules showing the court’s oral argument dates and locations for the next twelve months can be found at http://www.courts.ca.gov/supremecourt.htm by clicking on “calendars, ” and then accessing the “Oral Argument Calendar Dates” documents. Any counsel who believes good cause exists to avoid scheduling oral argument for a particular date (including counsel who, before receiving this letter, have previously asked to avoid certain dates) should inform the court within 7 calendar days from the date of this letter with a detailed explanation for such cause. Thereafter, counsel must immediately update the court on an ongoing basis as additional conflicts constituting good cause may arise. Examples of conflicts previously found to constitute good cause to avoid scheduling argument on any particular date include significant health-related issues; prepaid and nonrefundable travel arrangements booked in advance of the court’s notification regarding oral argument; and significant family events such as weddings. Examples of conflicts previously found not to constitute good cause include scheduled trial and hearing dates in lower courts; conflicting professional seminars, meetings, or conventions; and planned significant family events that do not conflict with the actual dates on which argument might be held. Once the court files an order setting this case for oral argument, that date will not be changed absent exceptional cause, such as a medical emergency. Immediately upon filing of the calendar setting this case for argument, the court will send counsel an email communication with (1) a copy of that document; (2) an appearance sheet, upon which counsel must provide the names of the attorney or attorneys who will present argument, along with further instructions governing any request to divide argument time; and (3) a general notice regarding appearance for oral argument before the court. If a party wishes to bring to the court’s attention new authorities, new legislation, or other matters that were not available in time to be included in the party’s brief on the merits, the party must comply with California Rules of Court, rules 8.630(d) and 8.520(d). Sincerely, JORGE E. NAVARRETE Clerk and Executive Officer of the Supreme Court

Are BAP rulings binding on bankruptcy judges?

Another thing I want to remember.  Where does it say that BAP cases aren’t binding on bankruptcy judges?  This is footnote in the new BAP case of Leavitt v. Black  (In re Black), — B.R. —  (9th Cir. BAP  Dec, 2019).

Mr. Black argues that Burgie is binding on all bankruptcy courts in the circuit and that the bankruptcy court erred by failing to follow it.  The Ninth Circuit has never held that our decisions are binding (under stare decisis principles) on any court. See, e.g., Bank of Maui v. Estate Analysis, Inc., 904 F.2d 470, 472 (9th Cir. 1990).  We view ourselves as bound by our prior published decisions. Salomon N. Am. v. Knupfer (In re Wind N’ Wave), 328 B.R. 176, 181 (9th Cir. BAP 2005) (“[W]e regard ourselves as bound by our prior decisions, and ‘will not overrule our prior rulings unless a Ninth Circuit Court of Appeals decision, Supreme Court decision or subsequent legislation has undermined those rulings.’” (citations omitted)); 9th Cir. BAP R. 8024-1(c)(1) (also acknowledging ability of Panel to modify or reverse itself sitting en banc). We will follow Burgie, and we need not decide whether stare decisis also obliged the bankruptcy court to do so.

Judge Richie Neiter, RIP

News from Judge Sheri Bluebond today,

Retired bankruptcy judge Richard Neiter passed away yesterday.  The funeral will be Monday, January 13, at 2 PM at Hillside Memorial Park

I appeared in front of him many times.  He was a gentleman and a scholar.

Message from Kailey Wright:

It is with sorrow that we announce the loss of one of the pillars of our bankruptcy community, Hon. Richard M. Neiter (1937-2020).  Richard Neiter served as a United States Bankruptcy Judge for the Central District of California for ten (10) years until his retirement from the bench in 2016.  His chambers was in Los Angeles.  He began his distinguished legal career in 1963 as a member of the prestigious firm of Stutman Treister & Glatt, PC, a Los Angeles based law firm with a national practice specializing in bankruptcy reorganization and creditor rights where he stayed until he became a judge in 2006.  While at Stutman, he worked on many significant reorganization cases and frequently mediated cases in Delaware and in California.  A graduate of USC Law Center, he served as a board member of its Law Review and also served as a member of the Board of Trustees of its Alumni Association in 1986.

Judge Neiter was active in numerous bar associations and community organizations such as the LA County Bar Association Commercial Law and Bankruptcy Section, the ABA, ABI, and served as a Chairman of the Debtor, Creditor and Bankruptcy Committee for the State Bar.  He was a former President of Temple Judea and Chair of the San Fernando Valley Community Relations Committee of the Jewish Federation Counsel of Los Angeles.  He was the recipient of numerous awards and commendations throughout his career.

Judge Neiter taught by example and made a positive impact on every person whose life he has touched.  His genuine interest in the well-being and opinion of others has made him a great mentor, friend, and counselor to so many individuals.  He is an exemplar of how to be an exceptional advocate and a consummate gentleman.  He was of the old guard who always exercised civility and commanded respect in his courtroom.  A lover of contemporary art, he enjoyed exposing others to its dynamic concepts and subjects that advocate cultural diversity and breaking from tradition.

He leaves behind his wife, Lois, children, Mark and Deborah, their spouses, and his five grandsons.  He will be sorely missed and remembered fondly.

Funeral services will be held on January 13, 2020 at 2:00 p.m. at Hillside Memorial Park in Culver City.  Information regarding donations to nonprofit organizations, in lieu of flowers, will follow.  Sympathy cards may be sent c/o Lovee Sarenas, Lewis Brisbois Bisgaard & Smith LLP, 633 West 5th Street, Suite 4000, Los Angeles, CA 90071 which will be collected and delivered to Judge Neiter’s family.


Kailey Wright

LABF President 2019-2020

New Chapter 13 Plan Payment rules – Kathy Dockery

Email from Aki Koyama:


Starting with the February 7, 2020 341(a) Calendar, the Trustee will require all plan payments to be posted prior to the date of the 341(a) or the debtor must present evidence of the plan payment and mailing of the plan payment.  If the payment is made electronically, the debtor must present evidence that the plan payment is being processed.  Scheduling a payment for the day of the 341(a) or after the 341(a) is not sufficient.

Thank you.

14th Annual Review of 9th Circuit Decisions Saturday January 18, 2020, Southwestern Law School

14th Annual Review of 9th Circuit Decisions on Bankruptcy in 2019

January 18, 2020
Presented by:
Central District Consumer Bankruptcy Attorney Association

Hon. Christopher Klein
Bankruptcy Judge, Eastern District of California

Hon. Julia Brand
Bankruptcy Judge, Central District of California, Los Angeles Division, and member of 9th Circuit Bankruptcy Appellate Panel

M. Jonathan Hayes
Resnik Hayes Moradi LLP

Southwestern Law School Read more…

Bankruptcy filings up for the year 2019 Central District of California (a little)

Total filings in December were slightly higher than the previous two years.  Total filings for 2019 were up about 3% over 2018 and virtually the same as 2017.

2019 2018 2017 2016 2015 2014
Jan 2,745 2,741 2,839 2,872 3,364 4,704
Feb 2,754 2,708 2,795 3,299 3,829 4,574
March 3,481 3,363 3,782 3,923 4,496 5,430
April 3,631 3,277 3,209 3,584 4,486 5,364
May 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 37,117 35,961 37,262 39,819 44,880 55,445

Filings by chapter for 2019:

Non-Comm’l Commercial Chapter 7 Chapter 13 Chapter 11
33,880 3,053 28,880 7,690 362
91% 8% 78% 21% 1%

Filings by chapter for 2018:

Non-Comm’l Commercial Chapter 7 Chapter 13 Chapter 11
33,003 2,967 27,608 7,947 412
89% 8% 74% 21% 1%


Appeal divests the trial court of jurisdiction – mostly anyway

This blog is a great way to save stuff I might need at a later time.  I knew that an appeal divests the trial court of most jurisdiction but was not sure where it says that.  I happened to run into the law in a Judge Kaufman tentative I was reading today.

“The filing of a notice of appeal is an event of jurisdictional significance—it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.” Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982). “The timely filing  of a notice of appeal to either a district court or bankruptcy appellate panel will typically divest a bankruptcy court of jurisdiction ‘over those aspects of the case involved in the appeal.’” In re Sherman, 491 F.3d 948, 967 (9th Cir. 2007) (quoting In re Padilla, 222 F.3d 1184, 1190 (9th Cir. 2000)). “The bankruptcy court retains jurisdiction over all other matters that it must undertake ‘to implement or enforce the judgment or order,’ although it ‘may not alter or expand upon the judgment.’” Id. (quoting Padilla, 222 F.3d at 1190).


Can the chapter 13 debtor modify their home loan? Sometimes says the 4th Circuit.

Thanks to Aki Koyama for steering us to this case.


Hurlburt v. Black (In re Hurlburt), — F. 3d —, 2019 WL —– (4th Cir. May 2019)

Issue:   May the chapter 13 debtors modify the mortgage on their home, i.e., strip it down, when the mortgage was due in full before the petition date?

Holding:   Yes under section 1322(c)(2).

The debtors’ chapter 13 plan proposed to bifurcate the mortgage on their home into a secured claim of $40,000 and an unsecured claim of $131,000.  The plan proposed to pay the secured portion in full during the Plan (I assume) and the unsecured portion zero percent, click here now to learn more about this kind of loans.  The debtor argued that they could modify the lien because the loan was due in full when the case was filed.  Section 1322(c)(2) says:

Notwithstanding subsection (b)(2)  . . . in a case in which the last payment on the original payment schedule for a claim secured only by a security interest in real property that is the debtor’s principal residence is due before the date on which the final payment under the plan is due, the plan may provide for the payment of the claim as modified pursuant to section 1325(a)(5) of this title. Read more…

Thinking out loud about the new Small Business Chapter 11

Attached is a copy of my Daily Journal article entitled Thinking out loud about the new Small Business Chapter 11 published on November 27, 2019.  I’m happy to get your comments.

Daily Journal Article