All posts in Appeals

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

Consequences of leaving something out of the record on appeal

I have wondered what the consequences are of failing to include something in the record on appeal.  Here is a footnote from a recent BAP case.  I have read a lot of opinions and memorandums and have never seen this.  The BAP here just looked up what was missing and sort of snidely told the appellant that he’s lucky they are good guys.  I assume with the ease of looking things up these days, the result will likely be the same in future cases, meaning, no harm, no foul.

Zuckerman v. Crigler (In re Zuckerman), — B.R. —  (9th Cir. BAP  Mar, 2020)

Mr. Zuckerman omitted from his excerpts of the record the bankruptcy court’s prior ruling (“Ruling”) that included its reasoning for entering the Order on appeal and key evidentiary rulings.  As the omitted Ruling is a necessary portion of the record, we are entitled to presume that its contents are harmful to his position and to affirm or dismiss his appeal summarily.  See Rule 8018(b)(1); Cmty. Commerce Bank v. O’Brien (In re O’Brien), 312 F.3d 1135, 1137 (9th Cir. 2002); Gionis v. Wayne (In re Gionis), 170 B.R. 675, 680–81 (9th Cir. BAP 1994).  Nonetheless, we obtained a copy of the Ruling and will take judicial notice of it and other documents filed in the bankruptcy court’s dockets, as appropriate.  See Atwood v. Chase Manhattan Mortg. Co. (In re Atwood), 293 B.R. 227, 233 n.9 (9th Cir. BAP 2003).

Oral argument at 9th Circuit set in Taggart – June 16, 2020

The 9th Circuit is going to hear oral argument in the Taggart case on June 16, 2020 at 10:00am.  The hearing will be telephonic.  My post about what the dispute is exactly at this point is here.  The 9th Circuit is looking at the BAP’s ruling (again).  The BAP ruled for the creditor saying it did not violate the discharge injunction because it believed the injunction didn’t apply to it.  The 9th Circuit agreed saying – essentially – that it’s impossible to violate the discharge injunction.    The Supremes reversed thankfully saying there has to be a fair ground of doubt about whether the injunction applies.  We’ll see.

In re Brace to be argued at the California Supreme Court on May 5, 2020

An email from the California Supreme Court:

IN RE CLIFFORD ALLEN BRACE, JR.
Case: S252473, Supreme Court of California

Date (YYYY-MM-DD): 2020-04-15
Event Description: Case ordered on calendar

Notes: To be argued on Tuesday, May 5, 2020, at 1:30 pm, in San Francisco. Counsel to appear via video or teleconference per Administrative Orders 2020-03-13 (March 16, 2020) and 2020-03-27 (March 27, 2020).

For more information on this case, go to:
https://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0&doc_id=2269894&doc_no=S252473&request_token=OCIwLSEmXkw7WyBZSCItSENIUEA0UDxTJiI%2BVz1TTDtJCg%3D%3D

Standing to appeal?

Another case I want to remember.  Seems to come up all the time.

Palmdale Hills Prop., LLC v. Lehman Commer. Paper, Inc., 654 F.3d 868, 874 (9th Cir. 2011) (“those persons who are directly and adversely affected pecuniarily by an order of the bankruptcy court . . . have standing to appeal that order”).

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.

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).

 

Bankruptcy Appeals – BAP or District Court?

The Ninth Circuit 2018 Annual Report tells us that last year there were 277 appeals from bankruptcy courts in the Central District of California.  Total appeals in the 9th Cir were 623 so we are almost half.  Of the 277 in the Central District, 131 were to the BAP and 146 to the district courts.

Every appeals program I have been to since forever spends a healthy amount of time discussing which court is “better” for the appeal – the BAP or the district court.

Here is my take on how to decide which court to appeal in:

  • If the issue is truly a commercial bankruptcy issue, it is rarely better to appeal to the district court.  Plans and confirmation, the automatic stay and preferences befuddle most district court judges and their clerks.  One district court judge told me that he is mystified that anyone would want him to resolve a bankruptcy issue.
  • If there is BAP precedence against you, the BAP is bound by its prior rulings so you might as well go to the district court which is not bound by BAP rulings in other cases.
  • If you suspect that the matter is going to go  to the 9th Circuit irrespective of the result at the first level of appeal, go to the BAP.  It will recognize the issue and explain it to the 9th Circuit for you.
  • The BAP is ruling pretty quickly these days.  You can expect a resolution within 3-4-5 months.  The district court in my experience takes a lot longer.
  • The BAP will almost always allow oral argument.  The district court rarely does (in my experience).
  • If the matter is really heavy duty state court -non-bankruptcy court – litigation, the district court might be better.  For example, claims objections based on state law.  The district court is likely more familiar and comfortable with non-bankruptcy litigation issues.

The idea that one court or the other will “rubber stamp” the bankruptcy court is ridiculous and insulting to the judges.

9th Circuit en banc statistics

The 9th Circuit Annual Report for 2018 has some pretty interesting statistics.  One is that there were 955 petitions for rehearing en banc last year.  Of those, 17 were “called” for a vote.  Of those, 8 petitions were granted and 9 denied.  So 8 out of 955.

The way it works is that the petition for rehearing en banc is sent to all 27 “regular” or “active” 9th Circuit judges.  The “senior” status judges do not get to vote.  Any one of the 27 regular status judges can call for a vote.  If none makes the call, the petition is denied.  Once a judge makes the call, the 27 vote for rehearing and it takes a majority to grant the petition.  I’m not sure of the timing, i.e., how long it is before the petition is denied because there was no call.

The en banc panel is 11 judges consisting of the Chief Judge and 10 other judges chosen at random.  It hears oral argument and rules.  It affirms or reverses the three judge panel that it is reviewing.  A nice summary of the rules is here. 

Why en banc?  I think sometimes there is a sense that the three judge panel got it wrong.  But more often and usually, the three judge panel was bound by a prior 9th Circuit ruling that was wrong or needed to be better explained or modified.

Paying the mortgage in advance as prepetition exemption planning

I have asked bankruptcy attorneys many times over the years whether they think that it is okay to use non-exempt cash in the bank to prepay the mortgage before filing a petition.  It would only work of course if the mortgage payment created equity that was then exempt.  Every attorney I have ever asked has said something like, “Of course it’s okay.”  Some have looked at me strangely like “Why are you asking when the answer is obvious?” If you need to pay for debts quickly here you can learn What is a life settlement and how to work around it.

I don’t see it as obvious.  It is a transfer to delay, hinder or defraud creditors.  “But it is exchanging non-exempt assets for exempt assets which is okay,” is the usual response.  The answer to that is “sort of.”

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The BAP has recently affirmed Judge Robert Kwan in an unpublished opinion, In re Ellison, who denied this guy’s discharge based on a bunch of prepetition transfers, (“But it’s allowed exemption planning says the debtor’s atty.”)  The debtor paid six months worth of his first and second mortgages and he will be looking for more details about debt consolidation to decrease his total debt.  Why you ask?  The debtor’s words, “to assure that my wife and my daughter and myself had a home to live in through the end of the year . . . I did prepay [the mortgage in the past] but not to that degree, not six months, or four months, five months, whatever it was in advance, normally.”  According to Judge Kwan, “This out of the ordinary course transaction and Defendant’s admissions are additional evidence of his intent to hinder or delay his creditors by putting these funds out of their reach for his personal benefit.”   See In re Ellison, 2:15-ap-01001-RK.  Docket No. 30.

There were other transfers to be sure which had the effect of protecting about $250,000 of equity in the debtor’s home (after the homestead exemption).  Judge Kwan concluded that the debtor “crossed over the line’ of what is permissible behavior.  See In re Beverly, 374 B.R. at 244-246 (discussing the difficulty in drawing the line between legitimate bankruptcy planning and intent to hinder, delay or defraud creditors).”