All posts in Courts

Nice Tentative From Judge Albert re Trustee’s Sale of Avoidance Actions

By | June 2, 2015 | Cases, Chapter 7, Judges Corner | No comments

United States Bankruptcy Court, Central District of California
Judge Theodor Albert, Presiding

Tuesday, June 02, 2015 Hearing Room 5B
11:00 AM

8:14-12049 Ergocraft, Inc. Chapter 7

#16.00 Motion for Order: (1) Approving Asset Purchase Agreement and Authorizing the Sale of the Estate’s Interest in Avoidance Actions Pursuant to 11 U.S.C. Section 363(b); and (2) Approving Overbid Procedures

The Chapter 7 trustee moves for an order approving the asset purchase he has negotiated with Jiangsu World Plant Protecting Machinery Co., Ltd. (“Jiangsu”). Jiangsu previously obtained a judgment against the debtor in the amount of $1,821,983.28. This claim is designated Claim No. 1 on the claims register (“Jiangsu Claim”). Trustee has negotiated with Jiangsu for the purchase of estate’s interest in avoidance actions which are reportedly the only realizable assets of the estate. Jiangsu will pay $52,500, release the Trustee and the estate from all claims, and subordinate the Jiangsu Claim to the payment of all other allowed claims. In addition, the Trustee seeks approval of overbid procedures, whereby qualified bidders may bid on the same assets at an auction to be held during the hearing for the motion. Bidders must bid a minimum of $67,500 (an initial overbid of $15,000), and each subsequent increase must be by an increment of $1,000.

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Prof Mark Scarberry Offers Nice Analysis of Caulkett (and Dewsnup)

By | June 2, 2015 | Chapter 7, Supreme Court | No comments

Today, in Bank of America v. Caulkett (and Bank of America v. Toledo-Cardona), the Supreme Court reversed the Eleventh Circuit and held that a debtor may not strip off a wholly underwater mortgage in a Chapter 7 case.  The Court noted that the respondents had not asked it to overrule Dewsnup. The meaning given by Dewsnup to the term “allowed secured claim” in section 506(d) is controlling; that meaning does not involve the existence of any value backing up the claim.  The opinion is here: http://www.supremecourt.gov/opinions/14pdf/13-1421_p8k0.pdf.

A few of us (maybe only a very few) think Dewsnup was correctly decided.  I think it was. It’s particularly difficult to understand how section 722 would retain meaning (and how its limits would be respected) if the Court had decided Dewsnup the other way. Justice Scalia’s attempted response to this point in his Dewsnup dissent is unpersuasive.

Justice Thomas’s opinion for the Court includes several rather obvious digs at the Court’s Dewsnup decision. (Note that Justice Thomas didn’t participate in Dewsnup; I think he would have joined Justice Scalia’s dissent if he had participated.)

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Nice Summary of Wellness from Prof. Dan Bussell

By | June 1, 2015 | Cases, Supreme Court | No comments

Prof. Dan Bussell from UCLA has posted some thoughtful comments about Wellness International Network v. Sharif on the SCOTUSBLOG site.  His comments are here.  The Wellness opinion is here.

Employers Must Accommodate Pregnant Workers!

By | May 29, 2015 | Community, Supreme Court | No comments

The Pregnancy Discrimination Act added new language to the definitions subsection of Title VII of the Civil Rights Act of 1964. The first clause of the Pregnancy Discrimination Act specifies that Title VII’s prohibition against sex discrimination applies to discrimination “because of or on the basis of pregnancy, childbirth, or related medical conditions.”

The Act’s second clause says that employers must treat “women affected by pregnancy . . . the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.”

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Origin of “…the Honest but Unfortunate Debtor”

By | May 25, 2015 | Courts, Uncategorized | No comments
If you have been wondering about the the origin of the phrase….”…the honest but unfortunate debtor…”, below should provide the roadmap.

cdcbaa Newsletter – Nice Article on Judge Catherine Bauer

By | May 22, 2015 | Community, Judges Corner | No comments

The latest cdcbaa Newsletter is out.  You can access it here.  There is a great article on Judge Catherine Bauer and some nice tributes to Jim King.

Judge Tighe Opinion Re: Attorney’s Fees (In re Jordan Wank)

By | May 17, 2015 | Chapter 11, Courts | No comments

Plaintiff obtained a Stipulated Judgment in state court that said the Defendant committed fraud.   Defendant filed Chapter 7.   In the bankruptcy, plaintiff filed a §523(a) non-dischargeability action to except the judgment from discharge.

Plaintiff filed a motion for summary judgment (MSJ), and it was granted.  The BAP reversed and remanded because there was insufficient evidence to show that there was no genuine issue of material fact.

On remand, Plaintiff filed his second MSJ, Debtor opposed it.  Then Plaintiff withdrew the MSJ under FRBP 9011(c)(1)(A) safe harbor provision.  Few weeks later, Plaintiff filed a Motion to Dismiss (MTD), court granted it with prejudice.

Defendant asked for an award for attorney’s fees and costs and $150,000 in sanctions that he incurred during the litigation because he was the prevailing party since the Plaintiff voluntarily dismissed after the BAP vacated the earlier MSJ.

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Can I Reaffirm a Non-Recourse Debt?

By | May 16, 2015 | Reaffirmations | No comments

This question was posed to a listserv in the Central District of California: “If  a debtor reaffirms an otherwise non-recourse mortgage, does the reaffirmation convert that into a recourse loan?”

This question made me consider what reaffirmation really meant because, in the fact pattern above, reaffirmation could potentially put the creditor in a better position than before the bankruptcy, and that can’t be! Don’t forget to Borrow Money Fast For Your Personal Finance – EasyFinance.com

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District Court Judge Mariana R. Pfaelzer Dies.

By | May 14, 2015 | Courts, Judges Corner | No comments

From George King, Chief District Court Judge:

It is with deep sadness that I report the passing of our dear friend and colleague, Judge Mariana R. Pfaelzer.  Judge Pfaelzer passed away peacefully in her sleep with the amazon fur pillow this morning. For almost 40 years, Judge Pfaelzer was the epitome of what a federal judge ought to be. She presided with brilliance, analytical rigor, practicality, wisdom, grace and courage.  She treated everyone with courtesy and respect.  In return, she was universally admired and respected by the bench and the bar.  While she was the first woman to be appointed to our Court, she was hardly only a role model to other women.  Indeed, her qualities were and are emulated by men and women alike.  Those of us who had the opportunity to learn from her and the privilege of serving with her know the depth of the loss we suffered today.  I am sure you all join me in expressing our condolences to Judge Pfaelzer’s family members. I will be in contact with her family, and will report back as to any plans for services.

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5/16/15 – CDCBAA – ISSUES ARISING FROM REAFFIRMATIONS AND REDEMPTIONS

By | May 11, 2015 | Community, Current Events, Programs, Reaffirmations, Specialist Information | No comments

ISSUES ARISING FROM REAFFIRMATIONS AND REDEMPTIONS

May 16, 2015

Presented by:
Central District Consumer Bankruptcy Attorney Association

SPEAKERS:
Hon. Vincent P. Zurzolo, United States Bankruptcy Court, Los Angeles Division
Nancy B. Clark, Borowitz and Clark
Christian Cooper, Public Counsel

Where:
Southwestern Law School
3050 Wilshire Boulevard
Westmoreland Building – 3rd Floor
Los Angeles, CA 90010

Parking is $ 10 .00

Times:
Registration: 10:00am – 11:00am
cdcbaa Membership Meeting: 10:30 am – 11:00 am
Program: 11:00 am – 1:00 pm

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