Great Judicial Profile of Judge Margaret Mann

I told Judge Mann in San Diego once that she always has a smile on her face.   One of my favorite people.  Now I find out she is catholic and from the south side of Chicago!  We are kindred obviously – although my family left Chicago when I was three.  Take a look at the Judicial Profile just published by the California Lawyers Association.   

Meet the BAP judges at The James T. King Southern California Bankruptcy Inn of Court – February 27, 2020

The James T. King Southern California Bankruptcy Inn of Court with our President Tamar Terzian invites you to join us on Thursday, February 27, 2020 at 6:00 p.m. for the reception and 6:30 p.m. dinner and presentation of

– Nomenclature Education:

Ex. Roll ups, Whole Premiums, DIP Financing and Who is in Control, Interest Pre vs. Post Petition

by pupillage team 3 Team Leaders Roksana Moradi-Brovia and Adojoa Anim-Appiah with special guests, the BAP Judges

Our program moderator for the meeting is the Honorable Judge Sheri Bluebond Read more…

Do you have to add three days to the notice period when serving by mail – or not?

I noticed the following tentative ruling continuing a motion for relief hearing recently:

The Motion [for relief] was . . . served on Debtor by mail, and set for hearing exactly 21 days later.   While LBR 9013-1(d)(2) specifies that notice must be filed and served not later than 21 days before the hearing date, FRBP 9006(f) requires that an additional 3 days be provided for motions served by mail.

I recalled several years ago being told by a judge that the three day rule doesn’t apply to MFR.  Yikes.  Have I been neglecting a defense since it seems to be more common these days that these motions are served on exactly 21 days notice?

No – FRBP 9006(f) applies only to certain motions.  FRBP 9006(f) states:

When there is a right or requirement to act or undertake some proceedings within a prescribed period after being served and that service is by mail . . . three days are added after the prescribed period would otherwise expire under Rule 9006(a).

Meaning?  When the motion tells the debtor he must do something within a certain am0unt of time after being served, he gets three more days if served by mail.  Most of our motions require a response within 14 days of the hearing, not within some amount of time after being served.  So the additional three days doesn’t apply to most motions.

On a side note:  a year or so ago I was served with a MFR on a very large piece of property, we thought worth $25 million.  The big-firm creditor lawyers gave us exactly 21 days notice – giving me 7 days to prepare the opposition.  When I complained (a little) to the judge at the hearing he scowled at me and I immediately dropped the comment.  The scowl told me – “why didn’t you file a motion for continuance?”  “You can’t just show up at the hearing and complain about the short time.”  I’m pretty sure he would have granted the request for a continuance.

San Fernando Valley Bar Assn 9th Circuit Review

Email from Steve Fox:

Dear All:

This is one of our perennial programs.  Usually a 9th circuit review program tries to run through 50 or 60 opinions in one hour’s time.  Our program is different.  We try to get through as many as 20 opinions in 75 minutes.  The difference allows our panelists, the Honorable Victoria Kaufman, Stella Havkin and Nancy Zamora, to take time to examine each case, to consider them a bit more slowly and to draw out their meanings.  I understand that a key rule in cigar smoking competition, yes there is such a thing (and a recent speaker for the section was recently in an international competition in cigar smoking contest) is to take your time.  We do the same with the Ninth Circuit review program.

This is a good program.  Good speakers.  Good location.  Good food.  Great price, far, far below that which the other bars charge and parking is validated.  You cannot spent a better lunchtime than with us on Friday.

Here are the details.

Location:             San Fernando Valley Bar Asso, 20750 Ventura Blvd #140, Woodland Hills, CA 91364

Date/Time:         Friday, February 21, 2020, lunch, 12 noon to 1:30 p.m. Read more…

Serving the Debtor with motions, even when Debtor is represented by counsel

About once a month I search for the local rule in the Central District of California that says movant has to serve the debtor personally with the motion, even if the debtor is represented by counsel.

LBR 9013-1(d) Time Limits for Service and Filing of Motions.
(1) Persons or Entities to be Served with the Notice and Motion. Except for a motion under LBRs 2014-1(b), 2016-1(a)(2), 3015-1(w) and (x), 7026-1(c), and 9075-1, and subject to LBR 2002-2(a) and FRBP 9034, a motion and notice thereof must be served upon the adverse party (by serving the adverse party’s attorney of record, if any; or if the adverse party is the debtor, by serving the debtor and the debtor’s attorney, if any; or the adverse party, if there is no attorney of record)

Attorney’s fee orders in bankruptcy are judgments

A thanks to Alan Wenokur in Seattle for this post on another list serve:

In In re Lawson, 156 B.R. 43 (9th Cir. BAP 1993), the BAP addressed a nearly identical fact pattern.  The debtor’s counsel, Mr. Tilem and Mr. Schwartz, withdrew from a bankruptcy case and then applied for compensation.  They were awarded final attorney’s fees. The bankruptcy case was then dismissed.  Former counsel petitioned the bankruptcy court to grant them formal judgments based on their fee awards. The bankruptcy court did so. The BAP, per Judge Volinn, affirmed. The court held that orders related to final fee awards are part of the bankruptcy court’s ancillary jurisdiction that is unaffected by the dismissal of the case:

Actions are said to be ancillary to the original suit when brought in aid of an execution or to effectuate a judgment entered in the prior suit. Jones v. Nat’l Bank of Commerce, 157 F.2d 214, 215 (8th Cir. 1946). Such an action is dependent upon a judgment or a decree in the original suit which is complete and determines the rights of the parties. Id. (citations omitted.) In the present case, the fee awards granted Tilem and Schwartz are final, and the present action therefore is ancillary in nature.  In re Lawson, supra, 156 B.R. at 46.

Critically, the BAP noted that final fee awards are judgments under the Bankruptcy Rules: “Both the Tilem and Schwartz fee awards are final judgments as defined in Bankruptcy Rules 9001(7) (‘Judgment’ means any appealable order) and 9002(5) (‘Judgment’ includes any order appealable to an appellate court).” Id.  See, also, In re Yermakov, 718 F.2d 1465, 1469 (9th Cir. 1983) (fee award under § 330 constitutes a final judgment, order or decree.) Read more…

Judge Alex Kozinski argues before the 9th Circuit

Zindel v. Fox SearchlightWatch oral argument here.  December 9, 2019.  No result as of Feb 7, 2020.

Bankruptcy filings up slightly in January 2020

Total bankruptcy filings in the Central District of California in January.

2020 2019 2018 2017 2016 2015 2014
Jan 2,828 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 2,828 37,117 35,961 37,262 39,819 44,880 55,445

Filings by chapter in January 2020.

Non-Comm’l Commercial Chapter 7 Chapter 13 Chapter 11
2,581 247 2,125 671 32
91% 9% 75% 24% 1%

Highest district in the country?  Northern District of Illinois, i.e., Chicago with 3,195 of which 1,259 were chapter 13s and 13 were chapter 11s.  Next after us is Northern District of Georgia with 2,568 – of that 1,316 were chapter 13s, twice as many as us.  Lowest filings in January?  Wyoming with 34 (total filings) and Alaska with 38.

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