We have been discussing the usefulness of evidentiary objections in our office. Judge Donovan commented at a cdcbaa meeting once that if there are no evidentiary objections, the evidence, almost whatever it is, is “in,” especially hearsay. We should not depend on the judge to unilaterally ignore evidence that is not properly before the court. Even though the evidence is read and understood either way, the judge will have to overrule the objection or rule on something that is not properly supported. Although we don’t do evidentiary objections as often as we should, I think they are important. Read more…
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Can Private Employers Discriminate Against Debtors? Ninth Circuit: Yep.
Mr. Jones, a former debtor, applies and is accepted to work at a private company. Before his first day, Mr. Jones informs his employer that he needs to file chapter 7 to get rid of some pesky creditors and to make the phone calls stop. The employer immediately says “sorry, you are no longer hired because our company policy does not allow for employees who have filed bankruptcy.” Mr. Jones is mad and screams “Discrimination! You can’t do that!” Can a private employer do that?
Ninth Circuit – yep. The Code doesn’t preclude such discrimination. In re Majewski, 310 F.3d 653 (9th Cir.2002).
Trustee Sues USC For Fraudulent Transfer On Behalf of Debtors (Parents) Who Paid $180k For Kids Education
These Trojans have more to ‘fight on.”
This adversary fascinated me. Mom and Dad paid $180,000 for their two kids to go to USC. They graduated. Two years later, Mom and Dad filed for Chapter 7 bankruptcy. Trustee Geoffrey Richards was appointed.
Trustee sued USC demanding the school return the $180,000 the parents (debtors) paid to USC as a fraudulent transfer under §548 arguing the parents got no value from the school. Wow! (as a UCLA alum, I giggle). Read more…
Sometimes the State Court Gets it Right!
Instead of delving into the actual facts of In re Marriage of Walker, I will use similar facts as they will be easier to understand. You can find the actual case here.
House is worth $350,000 with a $150,000 1st priority lien. In a divorce proceeding,
a
judge will order the sale of the property with proceeds split evenly. Assuming no cost of sale, taxes, etc., this would mean husband is paid $100,000 and wife is paid $100,000. In divorce cases it is done with an specialist as it has many important things, not only property but if there is a child or more on the table, so if you’re thinking about getting a divorce, you should contact an attorney right away
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Charging Extra Fees to Credit Card Users in California Soon to Be Legal
I wrote a three part article here which explained California law as it applied to a retailer’s ability to surcharge for the use of credit cards. The second part discussed the loopholes embedded into the law and discussed why the law is actually bad for consumers and retailers alike. In the final part, I discussed the importance for consumers to always make sure a cash register with scanner is being used everytime they pay. Read more…
Request for Admissions Are a Powerful Tool Which Should Not Be Taken Lightly
I found the following case very interesting because based on my limited experience, litigators tend to take a deny everything and admit nothing approach. But as the litigators here found out, this can be a dangerous game.
This is a quick summary based on the California Court of Appeals decision in TIMOTHY GRACE et al. vs. LEVIK MANSOURIAN et al. which was published on September 15, 2015. You can find the case here.
Defendants were served with requests for admissions seeking admissions on negligence, causation, and damages. Plaintiffs asked defendants to admit defendant failed to stop at the red light and that the failure was negligent, the actual and legal cause of the accident, etc. Read more…
Credit Card Companies Beware, California Appellate Court Finds That Their Evidence of Debt May Not Be Admissible
This is a summary of Sierra Managed Asset Plan, LLC, vs. Hale which was published by the California Court of Appeals on August 20, 2015. You can find the case here.
Consumer opened a credit card account with Citibank, N.A. He accumulated an unpaid balance of $10,138.41. Through a series of assignments, Sierra acquired Citibank’s rights as creditor. Sierra sought to enforce those rights through a lawsuit. Consumer did not deny the account, but he testified that he did not recall any of the details of the purchases on or the accrued balance of the account.
To prove that the defendant owed the money, Sierra had its agent testify and attach exhibits which substantiated the assignments leading to Sierra’s acquisition of rights as creditor on the account in question, the account agreement, and the account statements reflecting all of the charges culminating in the unpaid balance due. The account statements reflect purchases by a “David C. Hale,” with a listed address the same as that acknowledged by appellant at trial.
Consumer objected to receipt of the credit account exhibits attached to Sierra’s agent’s declaration on a variety of grounds, including hearsay and the lack of any foundation which would support their admission under the business records exception. (Evid. Code, § 1271.)
The Appellate Court agreed with Consumer, finding that the testimony did not provide substantial evidence of the foundation necessary for admission of the records pursuant to the business records exception to the hearsay rule.
Fair Use is a Defense to DMCA Takedown Notices and Could Subject Copyright Holders to Attorney Fees
The Digital Millennium Copyright Act provides a potent mechanism for copyright owners to demand that certain copyrighted materials be taken off of websites. This is because online services providers are given immunity from liability as long as they “expeditiously” remove content after receiving notification from a copyright holder that the content is infringing.
The idea behind giving service providers immunity is rooted in the idea that if all the service provider is dong is allowing people to post content, then the content poster, and not the provider, should be liable for the copyright violation. That makes sense. Service providers like YouTube would go out of business if they were held liable for all the copyrighted videos posted on there.
And the Central District Gets a Big Case – Freedom Communications
Central District of California (Santa Ana)
Bankruptcy Petition #: 8:15-bk-15311-MW
| Assigned to: Mark S Wallace Chapter 11 |
|
| Debtor Freedom Communications, Inc., a Delaware Corporation 625 N Grand Ave Santa Ana, CA 92701 ORANGE-CA Tax ID / EIN: 95-1140750 aka The Orange County Register fka Freedom Newspapers, Inc. |
What’s the Difference Between a Motion to Dismiss – FRCP 12(b) – and a Motion for Judgment on the Pleadings – FRCP 12(c)?
Trolling Judge Albert’s tentatives brings a treasure trove of good stuff. On his calendar October 29, 2015.
“This is the defendants’ motion for judgment on the pleadings under FRCP 12 (c). It however reads far more like a Rule 12(b) motion to dismiss for failure to state a claim. Defendants point out the higher Rule 9 standards and cite to Twombly and Iqbal regarding the facial plausibility requirement. There is the further complication in that the Plaintiffs claim never to have seen the answer filed August 26, 2015. There was an extended hiatus by stipulation and order so as to allow other matters to be determined in the interim. Coming immediately on the heels of an answer, therefore, this entire motion reads far more like a Rule 12(b) motion. Moreover, the Plaintiffs ask for leave to amend to cure the alleged pleading deficiencies. Read more…
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