All posts in Supreme Court

Following up on Taggart

In Taggart, you may recall, the 9th Circuit said that a good faith belief that the discharge injunction doesn’t apply preempts contempt even when the “good faith belief” is “unreasonable.”  Huh?  One of the more surprising aspects of the proceeding at the Supreme Court was that both sides agreed – before oral argument – that the 9th Circuit got it wrong.  Well, thankfully the Supreme Court agreed and reversed saying that contempt is appropriate unless there is “a fair ground of doubt,” as to whether the discharge applies to the creditor or not.   The 9th Circuit test of “good faith works even if it’s not good faith,” was pitched out.  The Supremes sent it back to the 9th Circuit for further review.

Where does it stand now?

A brief history is necessary.  The creditor sought attorneys fees in state court based on post-discharge litigation involving a prepetition debt.  The creditor told the state court postpetition that the debtor was an “indispensable party” and that it needed a particular order against the debtor but otherwise was not trying to collect the debt as it knew the debt had been discharged.  This is not terribly unusual.  When the creditor later “won” and got the state court order it requested, it then asked for attorneys fees against the debtor for the postpetition litigation using the contract (which was discharged).  This is also not terribly unusual.  The creditor argues that the debtor “returned to the fray,” that is, participated in the postpetition litigation and therefore should be liable for the fees under the contract for the postpetition litigation. Read more…

Supreme Court Stat Pack available at Scotusblog

If you are a numbers nerd, be prepared to blow an hour just scrolling through the 46 pages of numbers.  You can get the final package for the last term here.

One statistic I found intriguing is the makeup of the 5-4 decisions.  Last term 20 cases were decided 5-4.  That is out of 66 cases in total – so 28% of the total.  You would think that the 5-4 decisions were all the five “conservatives” v. the four “liberals.”  But that was the lineup on only seven of the 20.  Justice Gorsuch voted with the four liberals in four cases to make the 5-4 majority.  Justice Roberts voted with the four liberals in two cases.  Justice Thomas and Justice Ginsburg were on the same side in three of the 5-4 cases!  Thomas and Sotomayor were on the same side in two of the 5-4 cases.

Another stat that jumps out at me is that Justice Kavenaugh voted with the majority 89% of the time.   He and Roberts voted together 92% of the time.

I better get to work.  Have fun.

Update on In re Brace – pending at the California Supreme Court

This is the case where the California Supremes will decide whether property held by husband and wife as joint tenants is owned 50-50 by each or is owned as community property.   California law presumes both.  The BAP agreed with Judge Scott Yun and ruled that the ”record title presumption of Cal. Evid. Code § 662″ does not trump “the community property presumption of Cal. Fam. Code § 760″ citing Valli v. Valli (In re Marriage of Valli), 58 Cal. 4th 1396 (2014).

The 9th Circuit punted the issue over to the California Supreme Court.  They are still doing briefing so we are probably a ways from a result.  The Supremes must rule within 90 days after oral argument but there is no deadline re when oral argument must be set.

 IN RE CLIFFORD ALLEN BRACE, JR. 
Case Number S252473 (See docket below) Read more…

Ransom – My ABA summary of the Supreme Court case

I forgot about this summary I wrote for the ABA on the Ransom case at the Supreme Court.  http://sblog.s3.amazonaws.com/wp-content/uploads/2010/10/ABA-Preview.Ransom.pdf

 

Nice quote on Chief Justice John Marshall

I finally finished reading Miracle at Philadelphia by Catherine Drinker Bowen.  It’s a great book that really puts into perspective how we wound up with our constitution.  And how close it came to never happening, and then to not being ratified.   It’s pretty amazing that neither John Adams nor Thomas Jefferson were there.  Both were in Europe that summer.  George Washington and Benjamin Franklin “laid their shoulders to the great points, knowing that the little ones would follow of themselves.”

Anyway, there is a great comment on John Marshall that I want to remember.  The scene is the convention in Virginia brought afterwards to consider adopting the new constitution.

John Marshall, now in his thirty-third year, was a great strength to the Constitutionalists.  Ruddy and handsome, with wild black hair, a piercing dark eye, as a concession to the occasion he had draped his tall frame in a new coat which however had cost but a pound and looked it.  The assembly knew Marshall, respected him for his soldierly record in the Revolution and loved him for his sociability – which says Grisby primly, at times verged on excess.

John Marshall was with Washington at Valley Forge.

I want to add a quote from a poem at the end of Ms. Bowen’s Preface to the book:

If all the tales are told, retell them, Brother,
If few attend, let those who listen feel.

cdcbaa 6th Annual JIm King Program – September 7, 2019

Saturday, September 7, 2019

Southwestern Law School, 3050 Wilshire Boulevard, Los Angeles, CA 90010

11:00 a.m. to 1:00 p.m.

Sixth Annual James T. King Bankruptcy Symposium

Supreme Court: In re Taggart, Discharge Violations

SPEAKERS:

Daniel L. Geyser, Dallas, Texas
Prof. Dan Bussel, University of California, Los Angeles, School of Law
M. Jonathan Hayes, Resnik Hayes Moradi, LLP

Dan Geyser argued the Taggart case before the Supreme Court in April, 2019 and of course obtained a badly needed reversal of the Ninth Circuit opinion. In fact, Dan argued four cases this year in front of the Supreme Court! He is a graduate of Harvard Law School and a very entertaining speaker.

Dan has argued the following cases before the Supreme Court:

  • Taggart v. Lorenzen (creditor’s “good faith” does not preclude liability for discharge violations – reversing the Ninth Circuit).
  • Obduskey v. McCarthy & Holthus LLP (non-judicial foreclosures not covered by the Fair Debt Collection Practices Act).
  • U.S. Bank Nat’l Ass’n v. The Village at Lakeridge, LLC, (appellate standard of review in the “non-statutory insider” context).

His major cases at the circuit court of appeals level:

  • Garfield v. Ocwen Loan Servicing, LLC (Bankruptcy Code does not broadly repeal the Fair Debt Collection Practices Act in the discharge context). 811 F.3d 86 (2d Cir. 2016).
  • America’s Servicing Co. v. Schwartz-Tallard (In re Schwartz-Tallard) (attorney’s fees proper for prosecuting violations of the automatic stay – convincing the en banc court to overturn past circuit authority).

Prof. Dan Bussell teaches Bankruptcy and Contracts among other subjects at UCLA Law School. He is also a partner at Klee, Tuchin, Bogdanof & Stern LLP. Prof. Bussel received his law degree from Stanford Law School and clerked for Justice Sandra Day O’Connor after that. Published opinions in which Prof. Bussel served as appellate counsel include Stern v. Marshall (US Supreme Court); In re Penrod (US Supreme Court (on cert.) and 9th Cir.); Continental Insurance Co. v. Thorpe Insulation Co. (9th Cir. and US Supreme Court (on cert.)); and Motor Vehicle Insurance Co. v. Thorpe Insulation Co. (9th Cir.).

This will be an very entertaining discussion about the Supreme Court, the Ninth Circuit Court of Appeals, and Taggart, the discharge injunction, violations of the automatic stay and perhaps some predictions about where the court and the law is going.

 

Justice Elena Kagan comments at the 9th Circuit Judicial Conf

Elana KagenI had such a great time again at the 9th Circuit Judicial Conference last week in Spokane.  Plus I got to wander around my old alma mater Gonzaga University.

Justice Kagan attended the final get-together of the conference on the grounds of Gonzaga Law School.  I got to take the picture and shake her hand!  She is such a regular person with endless patience meeting and having her picture taken with everyone.  The last program of the conference the next day was an interview with her.  She made three particular comments that I thought were pretty interesting:

1.  During the almost two years when there were only eight of them, they really worked harder on the 4-4 votes.  They really didn’t want to rule 4-4.  I think most of us know that.  But she said that    typically with nine justices, they vote at the conference and at the end of the vote, someone wins.  The natural tendency is to move on.  But when the vote was 4-4, they would continue talking about it, sometimes for a long time, what can we do, how can we find a way to rule rather than just say we’re stuck?  She chuckled and said often the way out was to limit the scope of the ruling which may have been to a point that the ruling wasn’t terribly useful but at least it was a ruling.

2.  Justice Kagan was a law clerk for Justice Thurgood Marshall.  She loves the man.  He told the clerks countless stories.  She said she thinks he is the greatest litigator of the 20th century.  He argued probably 15 times before the Supreme Court.  But she added that there were times when he would argue before the Supremes and two days later do a trial in Mississippi.  He had a lot of experience in every venue and love to tell about it.

3.  Justice Kagan was asked whether she agreed with the perception that there is a growing “supreme court bar,” i.e., a fairly small group of lawyers focusing on the Supreme Court.  If so, is that good?  She said that the concept is generally right and that it is good for the court.  That is because those lawyers know what to expect, what the court wants, how to talk to the court, get intimidated a little less, and the court therefore trusts them a little more going into oral argument.  She commented that sometimes there are attorneys arguing before them that they wish had gone to one of the specialists.

Supreme Court Grants Cert in Taggart!

Last Friday, the Supreme Court granted cert in the Taggart case.  That is the discharge violation case that says

“the creditor’s good faith belief that the discharge injunction does not apply to the creditor’s claim precludes a finding of contempt, even if the creditor’s belief is unreasonable.” [emphasis added] 888 F.3d at 444

Lorenzen v. Taggart (In re Taggart), 888 F.3d 438, (9th Cir. April, 2018)

SFVBA Program This Friday – Supreme Court Opinions – Ahart and Hayes

Email from Steve Fox (obviously not written by me)

Dear All:

Friday’s bankruptcy program is the annual program on Supreme Court opinions.  What none of you get to enjoy (but I do) is the spirited back and forth discussion and argument which the two panelists, Judge Ahart and Jon Hayes, have had by email arguing about cases, what they mean and whether they have importance to bankruptcy practitioners. Read more…

Will the Retirement of Anthony Kennedy Change the Makeup of the Court?

I could sit for hours and listen to Prof.  Erwin Chemerinski talk about anything.  He did his Review of the Supreme Court last week for the 9th Circuit Judicial Conf.  Before he spoke, Judge Jay Bybee put a whole bunch of statistics about the last Supreme Court term on the screen.  One statistic that kind of jumped out is that on every 5-4 vote last term, Kennedy voted with the “conservatives.”  That suggests that replacing Kennedy with a “conservative” judge will not change, significantly for sure, the judicial makeup of the court.

When Chemerinski spoke then he commented on that fact and said that Kennedy typically joined the “liberals” of the court in five specific areas and in those areas, the new makeup will be significant.  The five areas are:

  • Abortion
  • Affirmative Axtion
  • Gay rights
  • Exclusionary rule
  • Limits on the death penalty