The U.S. Court of Appeals for the 6th Circuit in a 2-1 has reversed district court rulings in DeBoer v. Snyder that had struck down gay marriage bans in Michigan, Ohio, Kentucky and Tennessee. You can access a USA Today article with a nice summary of the issues here. You can access the opinions here. It looks like this may get to the Supreme Court since there is now a huge split among the circuits.
All posts in Cases
Does the Debtor Deduct Hypothetical Costs of Sale When Computing 522(f) – No, says Judge Ted Albert in a Tentative Ruling
United States Bankruptcy Court
Central District of California
Judge Theodor Albert, Presiding
Courtroom 5B Calendar
Santa Ana
Thursday, November 06, 2014 Hearing Room 5B
11:00 AM
8:14-13351 Donald R. Dahlgren Chapter 7
#18.00 Motion for Reconsideration of Debtors’ Motion to Avoid Lien Under 11 U.S.C. §
522(f) (Real Property)
Docket 48
This is the debtor’s motion for reconsideration of the court’s order entered Sept. 11, 2014 denying debtor’s §522(f) motion to avoid a judgment lien in favor of Newport Capital Recovery Group in the original amount of $30,085 as impairing his homestead. In the order denying the motion, the court indicated by its arithmetic there existed value of $31,192.97 above the sum of all senior liens and homestead of $175,000. In consequence, there was equity to which the senior lien could attach in full, and after deduction of the senior judgment lien, the most junior lien had a value of the remaining $1107 as well, and was likewise not avoidable for that amount. There may be interest issues as well that by now eclipse the junior lien, but the court is given no means to calculate these. In this motion debtor complains that actual costs of sale are now a known quantity, $68,339.93, and this amount of sale costs should have been recognized as ahead of the liens, leaving both judgment liens effectively unsecured. The court notes that debtor in his original motion in page 3 of Mr. Dahlgren’s declaration asked for deduction of sale costs, but the court implicitly did not grant this when calculating the result and denying the original motion.
Debtors + Class Action: Stir Carefully
You remember the class action quartet, right? Numerosity, Commonality, Typicality, and Adequacy of Representation.
The Supreme Court in Wal-Mart Stores, Inc. v. Dukes (2011) took issue with plaintiff’s lack of commonality with other members’ claims.
But much recently, the Hon. James Otero of our local U.S. District Court of the Central District, took issue with the last requirement – adequacy of representation. In Alakozai v. Chase Investment Services Corp. (Oct. 2014), the court denied certification of the class on the following grounds: (a) plaintiffs’ claims were not “typical” of other members, and (b) the plaintiffs could not “adequately represent” the class.
Sitting at the edge of your seat, you ask — why!? Simple, the plaintiffs failed to disclose their personal bankruptcy filings, and failed to mention their class action claim in their bankruptcy schedules. Tsk-Tsk-Tsk.
To summarize, the court found that plaintiffs who had a personal bankruptcy pending would have other priorities that would obscure their full attention to the class action case, and that the plaintiff’s right to sue in the class action belonged to the trustee not the debtor (since the Ninth Circuit has said in Cloud v. Northrop Grumman, all causes of action that accrued before the filing were property of the estate). As such, argued the U.S. District Court, it was not the plaintiff’s claim to begin with – rather the Trustee’s. So you can’t “adequately represent” the class, if you are not the representative at all.
The case stands for the proposition that a District Court, at least in Judge Otero’s courtroom, will deny certification if the named plaintiff(s) do not disclose their bankruptcy filings or fail to list the class action in their schedules.
Rule of thumb: fully vet your plaintiff’s in the class action, and disclose if plaintiff’s have filed bankruptcy. Failure of which is, in legal parlance, a “big no-no”.
Full opinion at http://www.employmentclassactionreport.com/wp-content/uploads/sites/232/2014/10/Alakozai.pdf
SFVBA October 16 Noontime Program on 9th Cir. Bankruptcy Opinions with counsel and Judge Ahart
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.
Bellingham-Stern Issues Continue at the Supreme Court
The Supreme Court yesterday issued cert in a 7th Circuit case called Wellness International Network v. Sharif. It looks like a much more direct attack on the powers of bankruptcy courts than Bellingham.
In Wellness, the creditor sued the chapter 7 debtor to deny the discharge and also for declaratory relief asking the bankruptcy court to find that a certain trust was the alter ego of the debtor and therefore the assets were property of the estate. The creditor won. The debtor appealed for the first time saying that the bankruptcy court could not enter final judgment because this was a Stern-type claim. The district court said, too late buddy, you waived the argument i.e. you consented to the bankruptcy court. The 7th Circuit reversed saying that the bankruptcy court could not enter final judgment on the alter ego issue and that that could not be waived.
I am sure we will discuss this at the July 19 cdcbaa with Prof. Pottow and Judges Paez and Jury.
We have about 50 rsvps for the July 19 program. I am going to send out the flyer today or tomorrow and expect many more sign ups. We can only allow 130 persons to attend so please rsvp if you are coming. Remember, telling me you’re coming does not do you any good. You have to rsvp.
July 19, 2014 – CDCBAA – In re Bellingham
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.
Foreclosed Homeowner Goes to Jail for Stripping Home on Way Out the Door
Thanks to Mike Avanesian for this:
People v. Acosta
California Court of Appeal, Fourth District, Division 3 (Ikola, J.)
May 12, 2014
2014 WL 1878105
Penal Code section 502.5 defines larceny to include a defaulted or foreclosed borrower’s stripping a house of its fixtures or destroying them with intent to harm the lender or buyer at the foreclosure sale. Though the statute was enacted 91 years ago, this is the first decision interpreting it. The borrowers were real estate brokers and they thoroughly trashed a very high-end house, carting away kitchen appliances, destroying the pool, stripping rock facing off the house, and more. They were convicted and sentenced to 5 years probation including 270 days of actual imprisonment. The decision upholds the constitutionality of the statute as well as the conviction and most of the conditions of probation.
July 19, 2014 – First Annual James T. King Bankruptcy Symposium – In re Bellingham: From the Insiders
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
No Deficiency after Short Sale per CCP 21580e
A recent ruling from Judge Geraldine Mund.
United States Bankruptcy Court
Central District of California
Judge Geraldine Mund, Presiding
Courtroom 303 Calendar
San Fernando Valley
Tuesday, June 03, 2014 Hearing Room 303 10:00 AM
1:10-16066 Patrick F Kilbane Chapter 7
#5.00 Objection to Claim #1 Claimant PNC Bank
Docket 44
The PNC claim arose out of a second trust deed on the Debtor’s home. The
Trustee has abandoned the home back to the Debtor and in February 2013
the Debtor sold the house to a third party for $715,000, which was a short
sale. The holder of the first lien accepted $647,016.89 and PNC agree to
accept $21,000, which was paid to it. This constituted a reconveyance of the
PNC trust deed.
After the sale closed, PNC amended its claim from $203,876.02 secured to
$182,876.02 unsecured.
Effective 7/11, Cal. Code Civ Pro 21580e was amended to eliminate a real
estate seller’s personal liability for a short sale deficiency as long as certain
conditions are satisfied. These require a dwelling of no more than four units,
that the title was voluntarily transferred to a buyer by a recorded grant deed or
other document of conveyance, and that the proceeds of the sale were
tendered to the secured creditor. All of these conditions have been satisfied.
No opposition received as of 5/29. Grant
Register NOW! Laying Down The Law: The Bankruptcy Court’s Equitable Powers And Strategic Considerations After Law V. Siegel
LOS ANGELES COUNTY BAR ASSOCIATION
Commercial Law and Bankruptcy Section
Presents
Laying Down The Law: The Bankruptcy Court’s Equitable Powers And Strategic Considerations After Law V. Siegel
Judge Ahart and a panel of expert lawyers analyze the Supreme Court’s 2014 bankruptcy decision in Law v. Siegel; section 105(a) and the court’s non-statutory powers; and strategic considerations for lawyers.
Panelists:
Hon. Alan M. Ahart, US Bankruptcy Court
John N. Tedford IV, Danning, Gill Diamond & Kollitz, LLP
Jason Wallach, Gladstone Michel Weisberg Willner & Sloane ALC
David R. Weinstein, Weinstein Law Firm, a Professional Corporation
LABF members can attend at the LACBA member price
M. Jonathan Hayes Books
Publisher
Senior Contributor
Contributors
