Nice explanation of the difference between recoupment and set off from the 9th Circuit.

In re Gardens Regional Hospital and Medical Center, Inc.  975 F.3d 926 (9th Cir. September, 2020)

Historically, “[s]etoff allowed a reduction of [the] plaintiff’s claim by the amount of a liquidated claim of the plaintiff to the defendant; recoupment allowed a defendant to assert a claim arising out of the same transaction as the plaintiff’s claim.”  “The defining characteristic of setoff—as opposed to recoupment—is that, in a setoff, ‘the mutual debt and claim . . . are generally those arising from different transactions.’” [emphasis in original]   “[R]ecoupment is not the adjustment of separate mutual debts but the process of defining the amount owed under a single claim.”  “[R]ecoupment is in the nature of a right to reduce the amount of a claim, and does not involve establishing the existence of independent obligations.”  But “courts should apply the recoupment doctrine in bankruptcy cases only when ‘it would . . . be inequitable for the debtor to enjoy the benefits of that transaction without meeting its obligations.’”

Re-reading a local rule re chapter 11 fee apps

I’ve filed a million chapter 11 fee applications, well maybe not that many.  I re-read the local rules re fee apps a couple years ago when a judge told me I’m supposed to say in the application that I have read the rules and that this application follows those rules (he was right).

Well, I’m sitting on Zoom.gov last week, listening to a judge and an attorney discussing the attorney’s fee application – minding my own business.  The attorney acknowledges that he violated the local rule that says the declaration by the client agreeing to the fees requested must be filed as a separate pleading.  Huh?  So I look it up.  Local Rule 2016-1(a)(1)(J) says the fee app must include “A separately filed declaration from the client indicating that the client has reviewed the fee application and has no objection to it.”

Just my curiosity wondering how long that’s been there?  If anyone knows, please say so in the comments.

November filings in Central District drop 22% from last month and 35% from last year.

November filings dropped to 1,730 compared to 2,210 in October, or 22% fewer filings than last month.  The filings were lower than November a year ago by 35%.

2020 2019 2018 2017 2016 2015 2014
Jan 2,828 2,745 2,741 2,839 2,872 3,364 4,704
Feb 2,781 2,754 2,708 2,795 3,299 3,829 4,574
March 2,736 3,481 3,363 3,782 3,923 4,496 5,430
April 1,669 3,631 3,277 3,209 3,584 4,486 5,364
May 2,080 3,347 3,226 3,384 3,484 3,971 5,500
June 2,257 2,967 2,981 3,252 3,545 3,966 4,386
July 2,415 3,270 3,057 2,953 3,239 3,731 4,701
Aug 2,355 3,274 3,337 3,387 3,543 3,544 4,540
Sept 2,169 2,934 2,772 3,071 3,168 3,493 4,317
Oct 2,210 3,355 3,259 3,170 3,235 3,751 4,554
Nov 1,730 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 25,230 37,117 35,961 37,262 39,819 44,880 55,445

Filings by chapter for the 11 months this year.

Non-Comm’l Commercial Chapter 7 Chapter 13 Chapter 11
22,960 2,274 21,566 3,384 280
91% 9% 85% 13% 1%

 

An important comment on writing from Hon. Thomas Reavley, RIP.

Note today from Bryan Garner

Remembering Thomas M. Reavley.

On Tuesday, a legal giant died: Thomas M. Reavley of Houston, who was a Fifth Circuit judge for 41 years and a Texas Supreme Court justice for 7. You can read his obituaries [here] and [here].

Two years after I finished my clerkship with Judge Reavley, he wrote the foreword to my first book—which has been carried through to the third edition titled Garner’s Dictionary of Legal Usage (2011). Here’s part of what this quintessential judge wrote there:

“Excess language misdirects. Ambiguous language confuses. Errors in grammar, in diction, in spelling, as well as in fact or logic, distract and destroy confidence. No writer can afford to underestimate the importance of precise, well-placed words.”

Judge Reavley, RIP.

Bryan A. Garner

SFVBA Program Friday December 4, 2020 – “Late-Filed Returns and How To Discharge Them”

Email from Steve Fix:

Dear All:

Sorry for the late notice.  Bankruptcy Judge Robert Kwan (who worked at the Justice Department representing the IRS prior to taking the bench), John Tedford IV (at Danning Gill and who wrote a fascinating article on this issue for the ABI) and John Faucher (who spent a decade at the Justice Department on tax matters) have put together a good program.  It is called “Late-Filed Returns and How To Discharge Them”  The program looks at the problem – Section 523(a) – what constitutes a return, how BAPCAP has complicated the analysis, the IRS’ position on late filed returns, how to figure out if your client has the problem and what to do about it.  Of course the panel will also look at how the Franchise Tax Board and its position can complicate the analysis.

Why attend this program?  Easy.  The intersection of bankruptcy and tax is complicated.  This is probably the area of the highest legal malpractice for bankruptcy attorneys.  We have to know the subject well enough to at least know the issues, the questions, and hopefully a lot more.  For those of you who think the subject is dry, first, it is not but second, the program is only hour long.

I hope you can join us.  Here are the particulars: Read more…

Chapter 11 filings in the Central District of California – October 2020

There were 17 chapter 11s filed in the cacb in October 2020.  Of those, 9 elected to be treated as a Sub V small business case.  By division, SFV 4; LA 6; Riverside 4; Santa Ana 3, SB 0.

My old blog: BankruptcyProf

I discovered that the Library of Congress has archived my old blog BankruptcyProf.  It’s kind of fun looking at these posts again.  And motivates me to pay more attention here.  You can access the old blogs here. 

9th Circuit Annual Report

These are pretty fun to browse through.  The 2019 9th Circuit Annual Report is here.  Just came out.  Lots of facts, statistics and pictures.

ILC Webinar Program on the discharge injunction, Tuesday afternoon, 11/17/2020

Discharge Injunction Violations: In re Marino Says Fine Print Doesn’t Save the Creditor

November 17, 2020, 12 noon – 1 p.m.

Special low price- $15! 1 Hour MCLE; 1 Legal Specialization in Bankruptcy Law

Speakers: Christopher Burke, Leonard Gumport, M. Jonathan Hayes.

Marino deals with letters from creditors to a debtor that said, in the fine print, that the debtor should ignore the letter if the debtor had received a discharge. The bankruptcy court awarded $119,000 in damages to the debtor but ruled that it had no power to award punitive damages. The BAP affirmed but sent it back to the bankruptcy court saying that it could award punitive damages for violation of the discharge injunction.

Register Here

October 2020 filings flat again

We had 41 more petitions filed in October than in September and more than 1,100 or  34% fewer than October a year ago.  If we figure 2,500 filings each in November and December, we are looking at a total of 28,500 for 2020 or 22% fewer than last year.

2020 2019 2018 2017 2016 2015 2014
Jan 2,828 2,745 2,741 2,839 2,872 3,364 4,704
Feb 2,781 2,754 2,708 2,795 3,299 3,829 4,574
March 2,736 3,481 3,363 3,782 3,923 4,496 5,430
April 1,669 3,631 3,277 3,209 3,584 4,486 5,364
May 2,080 3,347 3,226 3,384 3,484 3,971 5,500
June 2,257 2,967 2,981 3,252 3,545 3,966 4,386
July 2,415 3,270 3,057 2,953 3,239 3,731 4,701
Aug 2,355 3,274 3,337 3,387 3,543 3,544 4,540
Sept 2,169 2,934 2,772 3,071 3,168 3,493 4,317
Oct 2,210 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 23,500 37,117 35,961 37,262 39,819 44,880 55,445

Filings by chapter year to date:

Non-Comm’l Commercial Chapter 7 Chapter 13 Chapter 11
21,390 2,114 20,012 3,225 263
91% 9% 85% 14% 1%