2015 Bernard Witkin Lecture: A Conversation with Associate Justice of the California Supreme Court Leondra Kruger moderated by Presiding Justice Lee Edmon
11/12/2015
Presented by: Los Angeles County Bar Association Read more…
All posts in Cases
Slavery + Chapter 11
I loved reading this case. Felt like a Grimms’ fairy tale.
Picture this — you earn a paycheck, right? Now put yourself in a position that when you receive your paycheck, an invisible hand (no not Uncle Sam) comes and takes a big chunk of that paycheck to pay your creditors, and you cannot do anything about it! Kind of like an involuntary wage garnishment. This is what a bankruptcy court was faced with in a Chapter 11 case in New Jersey.
BAP Oral Argument Tomorrow at Roybal
The BAP Oral Argument is tomorrow at Roybal at 1 pm. (Not Friday).
This is from the BAP calendar.
OFFICE OF THE CLERK U. S. BANKRUPTCY APPELLATE PANEL OF THE NINTH CIRCUIT
REVISED CALENDAR FOR: Thursday, October 22, 2015 Read more…
Appealing to the BAP
I attended two mcle programs in the last week dealing with appeals to the BAP. The first was at the State Bar meeting in Anaheim last weekend and the second was Saturday with the cdcbaa. Judge Laura Taylor, Sarah Stevenson, Staff Attorney for the BAP, and Alan Vanderhoff were the featured speakers in Anaheim. Judge Barry Russell, Susan Spraul, BAP Clerk of the Court, and Kathleen McCarthy were the guests of honor at Southwestern School of Law yesterday.
Lots of good advice and things to think about. Last year there were 428 appeals to the BAP and 427 appeals to the District Court. Read more…
9th Circuit Panel Chosen for In re Zachary
The 9th Circuit has finally chosen the three justices who will hear In re Zachary. They are Richard Paez, Mary Murguia, and Andrew Hurwitz. Judge Paez wrote the Bellingham decision and I think is a friend of bankruptcy debtors. Mary Murguia was appointed by Obama in 2011. She is one of seven children of parents who emigrated from Mexico in 1950. Andrew Hurwitz is also an Obama appointee from 2011. He successfully represented several death row inmates before the Supreme Court in Ring v. Arizona getting a ruling that juries rather than judges make the factual determinations of whether there is aggravating circumstances to merit the death penalty.
I like this panel. I am rooting of course for affirmation of In re Friedman. Oral argument is 10/21 at Stanford.
Rule 9011 is Applied Much More Harshly to Bankruptcy Cases than its Rule 11 Counterpart!
At this month’s Southern California Bankruptcy Inn of Court meeting, now called the James T. King Inn of Court, we had a lively discussion regarding whether attorneys may engage in litigation for the purpose of harassing the other party.
The room was fairly evenly split with half saying absolutely not while the other half focused on whether the litigation was meritorious.
It turns out the issue is more complicated than that. In summary, if the litigation is engaged in and proceeds under Bankruptcy Law, then the litigation cannot proceed if brought for an improper purpose such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. Read more…
cdcbaa Program on Appeals
HOW TO BE APPEALING TO THE BANKRUPTCY APPELLATE PANEL
October 17, 2015
Speakers:
Judge Barry Russell, United States Bankruptcy Court
Susan Spraul, Clerk of the Ninth Circuit BAP
Kathleen McCarthy Read more…
CCP 1717 – Getting Attorneys Fees (In re Penrod, 9th Circuit)
There was a recent published Ninth Circuit opinion re: the hanging paragraph in 1325(a). In re Marlene A. Penrod, 13-16097, Ninth Circuit (2015)(Published).
However, to me, what was more interesting was the fight over whether the auto loan lender should pay debtor’s attorneys fees (about $250,000). Court said yes.
The contract between the debtor-borrower and the lender said ‘in the event of a default, the borrower (debtor) was to pay the lender to collect what it was owed plus attorneys fees.”
Ninth Circuit: Ch. 20’s Keep Stripping (In re Blendheim)
Ninth Circuit cleared it up: In a “Chapter 20,” ineligibility for a discharge in a subsequent Ch. 13 does not preclude a debtor from permanently voiding a lien. In short, strip away.
Debtors got Ch. 7 discharged, and next day filed Ch. 13. Debtors home was encumbered by 2 liens. The first lienholder, a Bank, filed a claim and it is their lien that is at issue on this appeal.
Debtors objected to the Bank’s POC arguing that it failed to attach the promissory note as required by FRBP 3001 (Bank only attached the deed of trust). The Bank simply ignored the objection. Court entered a default order disallowing their claim. Next, Debtors filed an adversary to void Bank’s first lien since their claim was no longer an allowed secured claim. Court agreed and said the lien would be void upon completion of their chapter 13 bankruptcy.
Debtor’s reached plan confirmation, and the Bank woke up…..
Trust Beneficiary Has Limited Standing To Object in Chapter 11 says Ninth Circuit (IN THE MATTER OF: TOWER PARK PROPERTIES, LLC)
This Opinion interested me because a few weeks earlier I read about this infamous Beverly Hills property battle in the Hollywood Reporter.
For those interested in the juicy Hollywood fight about the property mentioned in this Opinion, see here: http://www.hollywoodreporter.com/features/beverly-hills-1-billion-vineyard-819299
For those interested in the Ninth Circuit Opinion, please see my brief below.
In re: Tower Park Properties LLC, Ninth Circuit.
To have standing in federal court – you must satisfy three requirements: (1) statutory standing (i.e. one afforded under the Bankruptcy Code), (2) constitutional standing under Article III, and (3) prudential standing. In re Thorpe Insulation Co., 677 F.3d 869, 883–84 (9th Cir. 2012).
In this case, a Trust Beneficiary was objecting to the settlement agreement between the debtor, the Trust (as a creditor) and former trustees. The Ninth Circuit held that the Trust Beneficiary did not have statutory standing under §1109(b), and as such, the Court did not even consider the two other standing requirements.
As a rule, to have standing to be heard in Chapter 11 proceedings, you must be a “party in interest,” which includes, but not exclusive of, the debtor, trustee, creditors (or committee), equity security holder (or its committee), indenture trustee. Section 1109(b). The word “party in interest” is not defined.
Ninth Circuit has said that a “party in interest” is one who has a “legally protected interest that could be affected by a bankruptcy proceeding.” In re Thorpe. But, an entity “that may suffer collateral damage” but does not have a legally protected interest does not have standing under § 1109(b). Id.
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