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More on Reaffirmation Agreements

By | August 1, 2012 | Courts, Reaffirmations | No comments

I had a short very enlightening conversation on reaffirmation agreements with a bankruptcy judge at the 9th Circuit Judicial Conf last week.  The conversation started with my comment at the program I was doing that I don’t sign – ever – the attorney declaration in 524(c)(3).  The conversation was about the consequences of not signing it.  I now have a new way of looking at the whole process thanks of the help of a law firm in Kendall County, In http://ksshlaw.com/ you can find the specialist attorneys they work with to know much further about the bankruptcy judicial management and to understand why and how is this reaffirmation agreement has been useful and will be.

Section 524(c) states that a reaffirmation agreement is not enforceable unless:

(3) such agreement has been filed with the court and, if applicable, accompanied by a declaration or an affidavit of the attorney that represented the debtor during the course of negotiating an agreement under this subsection, which states that—
(A) such agreement represents a fully informed and voluntary agreement by the debtor;
(B) such agreement does not impose an undue hardship on the debtor or a dependent of the debtor; and
(C) the attorney fully advised the debtor of the legal effect and consequences of—
(i) an agreement of the kind specified in this subsection; and
(ii) any default under such an agreement;

(5) the provisions of subsection (d) of this section have been complied with; and
(6) (A) in a case concerning an individual who was not represented by an attorney during the course of negotiating an agreement under this subsection, the court approves such agreement as—

(i) not imposing an undue hardship on the debtor or a dependent of the debtor; and
(ii) in the best interest of the debtor.

So far so good.  If I sign the declaration, the agreement is enforceable.  If I don’t, it’s unenforceable.  Can’t the court approve it anyway?  That is certainly what I and I’m sure 99% of consumer bankruptcy lawyers think.  But the debtor is still “represented by an attorney” – me – so (c)(6) doesn’t seem to apply. But it happen in many different law cases, for example in injury cases sometimes there are laws that don’t seem to apply, so the use of Injury lawyers las vegas is the best option to see all the rightful laws are applied to you.

Read more…

How Does Non-Recourse Debt Fit Into Chapter 13 Eligibility?

By | July 21, 2012 | Chapter 13, Judges Corner | No comments

Another great thought from Arne Wuhrman: where the second that is being stripped because it is entirely unsecured, the debt should not be treated as unsecured if it is a non-recourse loan.  There is no Section 1111(b) in chapter 13 providing that non-recourse debt is treated as recourse for purposes of a plan.  Section 102(2) defines claim to include a claim against property of the debtor but if the debt is treated as unsecured for eligibility purposes, 102(2) should not apply and then there is no “right to payment” and therefore no claim.  Attached is a tentative ruling from Judge Erithe Smith that lays out the argument pretty well.  Smith Tentative.  Remember though, a secured loan is only purchase money if it was incurred to buy the property or is a seller-financed debt and a refi of either makes the new debt recourse.  CCP 580(b).

Chapter 11 Filing Fees Going Up Again

By | July 17, 2012 | Chapter 11, Court Clerk Information | 11 Comments

From the Wall Street Journal Bankruptcy Beat

Chapter 11 is getting more expensive, but top-dollar attorney fees aren’t the reason…this time.

Starting Nov. 1, it will cost a company $1,213 to file a Chapter 11 petition, or nearly $200 more than the current filing fees.  The extra cash will cover the cost of legislation to extend temporary judgeships at bankruptcy courts across the nation in order to avoid a judge shortage.

The $1,213 price tag includes the current $46 administrative fee but increases the case-filing fee to $1,167 from $1,000. Attorneys, take note: failure to pay these fees could result in the bankruptcy case being thrown out.

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CM/ECF Dictionary Updates Effective July 16, 2012

By | July 13, 2012 | Court Clerk Information | No comments

ATTENTION ALL CM/ECF USERS

Filing Agent

Registered Attorneys, Trustees and US Trustees (this feature is not available to users registered as Limited Filers)will have the ability to create a CM/ECF filing login and password for their employees (paralegal or assistant) to file documents on their behalf. When a Filing Agent files on behalf of the attorney, only the attorney’s name displays on the docket. In addition the Attorneys, Trustees and US Trustees can run the transaction logs to identify the filings done by the Filing Agent.

ECF Account User Maintenance

With the deployment of the Filing Agent feature, Attorneys, Trustees and US Trustees will be able to update the following information on their CM/ECF Profiles via the Maintain : Phone and Fax numbers, primary and secondary email addresses. In addition, they will be able to make specific selections on how they would like to receive the Notice of Electronic Filing (NEF).

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Reminder re: Implementation of CM/ECF Filing Agent on July 16, 2012

By | July 13, 2012 | Court Clerk Information | No comments

From the ECF Help Desk:

ATTENTION ATTORNEYS, TRUSTEES AND U.S. TRUSTEE

This is a reminder that on July 16, 2012, the Court will implement CM/ECF Filing Agent. Filing Agent is an optional feature that enables registered CM/ECF users to assign unique logins and passwords to support staff filing electronic documents on their behalf.

The Court has posted an Electronic Learning Module (ELM), containing the necessary steps to associate a Filing Agent to a registered CM/ECF user.

We encourage all registered CM/ECF users who are interested in using Filing Agent to review the ELM and become familiar with the process.

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Public Notice re Santa Ana Case Assignment to Judge Clarkson

By | July 12, 2012 | Chapter 13, Chapter 7, Court Clerk Information, Judges Corner | 4 Comments

Public Notice 12-001 attached.

Judge Scott C. Clarkson recently began receiving a portion of the new chapter 7 and chapter 11 bankruptcy cases filed at the Santa Ana Division. Judge Clarkson will also continue to receive new cases filed at the Riverside Division.

Hearings: To schedule matters on Judge Clarkson’s Santa Ana Division calendar, please refer to Judge Clarkson’s self-calendaring instructions on the Court’s website at www.cacb.uscourts.gov, or call 714-338-5378.

Unless otherwise directed by the Court, parties appearing before Judge Clarkson for Santa Ana Division cases assigned to him are to appear at the Santa Ana Division, Courtroom 5C. Hearings for Judge Clarkson’s Santa Ana Division cases should be noticed for his Santa Ana Division Courtroom at 411 West Fourth Street, Courtroom 5C, Santa Ana, CA 92701.

Filing Papers/Judge’s Copies: Papers filed on Santa Ana Division cases assigned to Judge Clarkson must be filed either electronically or, for those not registered to use CM/ECF, at the Intake Section of the Santa Ana Division. Judge’s copies of these documents must be mailed to 411 West Fourth Street, Suite 5113, Santa Ana, CA 92701, or placed in the judge’s copy bin for Judge Clarkson outside of Suite 5113.

For procedures and information regarding Santa Ana Division cases assigned to Judge Clarkson, please consult the Court’s website www.cacb.uscourts.gov under Information > Judges’ Procedures/Information.

KATHLEEN J. CAMPBELL
CLERK OF COURT

Chapter 13 Plan Addendum Appears to be Moot According to the Court?

By | July 9, 2012 | Chapter 13, Court Clerk Information, Judges Corner | 1 Comment

Good morning,

Consumer Bankruptcy attorney’s are well aware of the Addendum, the local form attached to the Chapter 13 Plan. And as we all know, there have been several years of litigation regarding the form, much of it spearheaded and defended by the law firm of Borowitz and Clark.

Well please see below from the Court’s Web Page. The use of the Addendum now appears to be moot according to the Court.

F 3015-1.1.ADDENDUM
Superseded by new national Proof of Claim forms B10A, B10S, and B10S2 — see Proof of Claim Forms on website

Addendum to Chapter 13 Plan Concerning Debtors Who are Repaying Debt Secured by a Mortgage on Real Property or a Lien on Personal Property the Debtor Occupies as the Debtor’s Principal Residence (Optional)

David Brian Lally, Esq.
Law Office of David B. Lally

FYI, that is exactly what Judge Kaufman told me in court a couple of weeks ago. Although, she added that Debtors can still use the Real Property Addendum if they wish. Our office will definitely continue to attach it to all Chp. 13 Plans for Debtors who own real property. 

-RDM

Central District Needs Mediators

By | July 6, 2012 | Mediation | 1 Comment

I recently received a letter from Judge Barry Russell, as did everyone else on the mediation panel I assume, asking for help in increasing the Central District Mediation Panel.  They had a high of 252 mediators but are down now to 173.    For attorneys reviewing this post, I highly recommend joining the panel.  You have to have practiced for 5 years I believe and complete a 30 hour training program at Pepperdine but I found the program very beneficial to my practice.  Once you are on the panel, I believe you commit to do one no-charge, half-day mediation per quarter.  If you are interested in joining the panel check out the information on the bankruptcy court website under mediation.     

New Opinion by Judge Neil Bason on In Rem Relief

By | July 6, 2012 | Chapter 7, Judges Corner | 1 Comment

From the findings of fact:

“Based on the foregoing, this case is consistent with the pattern in so-called “hijacked” or “dumping” cases — i.e., cases in which a transferor of property, acting without the debtor’s participation or acquiescence, seeks to implicate the automatic stay for the transferor’s own benefit by purporting to transfer property into a random bankruptcy estate, or by back-dating or falsifying a grant deed to make it appear that such a transfer has occurred.”

The holding:

“Based on the foregoing facts, although it is not appropriate to find that Debtor participated in the scheme, it is appropriate to grant relief of the type set forth in 11 U.S.C. §362(d)(4) (“in rem” relief), …”

As they say, read the whole thing.

Hale Antico

You can access the opinion here.

Supreme Court Stat Pack

By | July 2, 2012 | Bankruptcy Data, Supreme Court | 1 Comment

Here are fascinating facts about the Supreme Court this last term.    Here is a five-page summary.   Both of these can be found on the Scotusblog.

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