All posts in Appeals

En Banc Oral Argument set in Schwartz-Tallard

By | January 5, 2015 | Appeals, Cases | No comments
The oral argument before the en banc panel will be March 16, 2015 in San Francisco.  One of the attys has asked to have the argument moved since he will be out of town but I assume it will not be moved now that it is on the calendar.  Doesn’t say who the nine judges will be.
2015-03-16  9:00 am  Courtroom 1, 3rd Floor, San Francisco California – En Banc

Case No. Title Nature Origin Time / Side
12-55396
12-56117		 US ex rel. Steven Hartpence v. Kinetic Concepts, Inc. – Relators Steven Hartpence and Geraldine Goedcecke appeal the district court’s dismissal of their qui tam claims under the False Claims Act against Kinetic Concepts, Inc., and KCI-USA, Inc. [2:08-cv-01885-GHK-AGR] Civil C. CA 30 min
12-60052 America’s Servicing Co. v. Irene Schwartz-Tallard – America’s Servicing Co.appeals from the Bankruptcy Appellate Panel’s decision that a debtor was not precluded from recovering attorneys’ fees for defending against a creditor’s appeal of a finding that the creditor violated the automatic stay. [11-1429] Bankruptcy NV 30 min
10-99011
96-99025
96-99026		 Robert Smith v. Charles Ryan – Arizona state prisoner Robert Douglas Smith appeals the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his jury conviction and capital sentence for murder, kidnapping, and sexual assault. [4:87-cv-00234-JMR] DP HC AZ 30 min

Schwartz-Tallard to be Reviewed En Banc by 9th Circuit

By | December 19, 2014 | Appeals, Cases | No comments

The 9th Circuit has decided to review the Schwartz-Tallard case en banc.  The issue in Schwartz-Tallard is the right of a debtor to get attorneys fees for a contempt/violation of the automatic stay.  Sternberg v. Johnson says the right to attorney’s fees ends when the contempt ends.  After that the “American rule” applies, i.e., no attorneys fees.  Schwartz-Tallard said that the debtor can get attorneys fees defending an appeal of an Order for Contempt even though the contempt has ended.  The Order granting en banc vacates the 9th Circuit ruling.  I suspect the oral argument will be some time in March.

B.A.P. Holds Judge Does Not Have Authority To Prevent Debtor From Adding An Exemption to the Schedules (In re Gray et al., 9th Cir. B.A.P. 2014)

By | December 16, 2014 | Appeals, Cases, Chapter 13, Chapter 7, Uncategorized | No comments

The 9th Circuit B.A.P. recently held that a bankruptcy judge does not have the authority to prevent a debtor from adding an exemption to his or her court papers based solely on the judge’s finding they had acted in bad faith.  The Panel intricately cites U.S. Supreme Court’s decision in Law v. Siegel in reaching its conclusion.

Summary holding:  Bankruptcy courts have no discretion under federal law to deny debtors leave to amend their exemptions absent express statutory authority.  The panel reversed a ruling to disallow an amended exemption.   In re Gray et al.; Gray et al. v. Warfield, No. 13-1502, 2014 WL 6972522 (B.A.P. 9th Cir. Dec. 9, 2014).

When Appealing, First Seek a Stay (In re Mortgages)

By | November 19, 2014 | Appeals, Chapter 11, Chapter 13, Chapter 7 | No comments

When appealing an order, remember to put on your checklist to first seek a stay of the challenged order.  If not, the appellate court will regrettably inform you “there is nothing we can do for you now”.   That is what happened in In re Mortgages Ltd., — F.3d — (9th Cir. 2014).

In a recently published Ninth Circuit Opinion, the Court held that an appeal by a group of creditors was equitably moot because they never sought a stay of the order that they were appealing from.  The debtor had already acted, and other third parties would be unfairly harmed if the panel were to side with the creditor-appellants.  The Court said, “clawing back money from those investors who already paid their full allocation would be either impossible or inequitable.”

As such, the panel dismissed the appeal citing In re Thorpe, which held that appeals can be dismissed based on mootness when a “comprehensive change of circumstances” has occurred that makes it inequitable for a court to consider the appeal’s merits.  In re Thorpe Insulation Co., 677 F.3d 869 (9th Cir. 2012).

Full Opinion Here: http://cdn.ca9.uscourts.gov/datastore/opinions/2014/11/12/12-15234.pdf

Cert. Asks Supreme Court to Resolve Where Funds from Ch. 13 Should Go After Case Is Converted (Harris v. Vieglahn, No. 14-400)

By | November 8, 2014 | Appeals, Chapter 13, Chapter 7, Courts, Supreme Court | No comments

The appellant argues, “…of 320,000 Chapter 13 cases filed each year, 60,000 are later converted to Chapter 7″. But where should the funds held by the Chapter 13 Trustee go when Debtor converts the case: back to the debtor or to the creditors?  Harris v. Viegelahn, No. 14-400, petition for cert. filed (U.S. Oct. 6, 2014).

Because of a circuit split, the appellant has asked the Supreme Court to resolve this issue.  The appellant reminds us that our 9th Circuit B.A.P. requires the return post-Chapter 7, undistributed funds to the debtor.

Please find the full article below from Westlaw Journal Bankruptcy at Debtor Wants Supreme Court to Resolve Where Post-Petition Funds Go After Conversion, 11 Westlaw Journal Bankruptcy 2 (2014).

Read more…

SFVBA October 16 Noontime Program on 9th Cir. Bankruptcy Opinions with counsel and Judge Ahart

By | October 10, 2014 | Appeals, Bankruptcy Data, Case Briefs, Cases, Community, Current Events, Programs, Specialist Information | No comments

SFVBA October 16 Noontime Program on 9th Cir. Bankruptcy Opinions with counsel and Judge Ahart

On Thursday, October 16, 2014, starting at 12 noon sharp, the Bankruptcy Section of the San Fernando Valley Bar Association will present a program on 9th Circuit bankruptcy opinions from the past year. The panelists are Judge Ahart, Ray Aver and Gregory Salvato.

The program is important because none of us can keep up with the opinions issued by the 9th Circuit. Many important opinions will be covered by the panelists. The program materials are substantial. As always, the panelists will take questions and comments during the program.

The program charge (which includes the program, the materials and lunch) is inexpensive:

Member $30.00

Non-Members $40.00

Member at Door $40.00

Non-Member at Door $50.00

Government rate – contact me. It’s real cheap.

Read more…

July 19, 2014 – CDCBAA – In re Bellingham

By | June 24, 2014 | Appeals, Bankruptcy Data, Case Briefs, Cases, Chapter 11, Community, Courts, Current Events, Programs, Specialist Information, Supreme Court | No comments

On July 19 the Central District Consumer Bankruptcy Attys (cdcbaa) will hold our First Annual James T. King Bankruptcy Symposium. The topic is In re Bellingham, the new Supreme Court case dealing with core/non-core distinctions and the power of Congress to give power to non-Article III Judges (as you all know).

The panel will be Judge Richard Paez who wrote the opinion for the 9th Circuit Court of Appeals that was appealed to the Supreme Court; Prof. John Pottow from the University of Michigan School of Law who argued the case successfully for the appellees at the Supreme Court. He is really a fun guy to listen to. And Judge Meredith Jury who sits on the BAP and follows these issues carefully. I will be the moderator and try to stay out of their way.

Besides Bellingham, there will be some discussion generally about appeals process. This is really an exceptional panel!

The program will be at Southwestern Law School on July 19 from 11am to 1pm and will be free to members of cdcbaa as always. We will permit non-members to attend for $95. We will invite the local judges as well.

ONE PROBLEM. The room holds only 130 persons and the law school is adamant that we not permit more than that many to attend.

So we are going to require RSVPs. There is a button on the cdcbaa website for the program to RSVP – www.bklawyers.org. We will cut it off when it gets to 130 persons. So please go to the website and RSVP if you want to attend. You can pay the $95 fee on that website as well. We will allow persons who have not been members of the cdcbaa for the past 3 years to join for the rest of the year 2014 now at the reduced price of $175.00 which includes the Ashland Dinner, this program and the two remaining programs for the year.

Our administrator is Linda Righi at cdcbaa@aol.com.

July 19, 2014 – First Annual James T. King Bankruptcy Symposium – In re Bellingham: From the Insiders

By | June 9, 2014 | Appeals, Bankruptcy Data, Case Briefs, Cases, Community, Courts, Current Events, Specialist Information, Supreme Court | No comments
July 19, 2014
First Annual James T. King Bankruptcy Symposium 

In re Bellingham:  From the Insiders
Judge Richard Paez
9th Circuit Court of Appeals
(Wrote the 9th Circuit Opinion appealed to the Supreme Court)
Judge Meredith Jury
Bankruptcy Court – Riverside Division
Prof. John Pottow, University of Michigan
(Argued for the Appellees at the Supreme Court)
Moderated by M. Jonathan Hayes
Where:
Southwestern Law School
3050 Wilshire Boulevard
Westmoreland Building – 3rd Floor
Los Angeles, CA 90010  

July 19, 2014 – In re Bellingham: From the Insiders

By | May 5, 2014 | Appeals, Bankruptcy Data, Case Briefs, Cases, Community, Current Events, Supreme Court | No comments

Cdcbaa Program July 19, 2014

First Annual James T. King Bankruptcy Symposium

In re Bellingham: From the Insiders

Judge Richard Paez
9th Circuit Court of Appeals
(Wrote the 9th Circuit Opinion appealed to the Supreme Court)

Judge Meredith Jury
Bankruptcy Court – Riverside Division

Prof. John Pottow, University of Michigan
(Argued for the Appellees at the Supreme Court)

Moderated by M. Jonathan Hayes

9th Circuit Appellate Practice Guide

By | April 25, 2014 | Appeals, Courts | No comments

This is really nice!  Written by the 9th Circuit to help people get through the appellate system.  You can access the guide here.  Print it out.  Save it on your desktop.

By the way, the BAP has a nice guide also called the Litigant’s Manual.  You can access that here.

M. Jonathan Hayes*
Simon Resnik Hayes LLP
jhayes@srhlawfirm.com
15233 Ventura Blvd., Suite 250
Sherman Oaks, CA 91403
(818) 783-6251
(818) 783-6253 fax

*Certified Bankruptcy Specialist, California Bar Association, Board of Legal Specialization
www.srhlawfirm.com
www.centraldistrictinsider.com

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