All posts in Judges Corner

Judge Kwan cites Jeff Hagen’s cdcbaa Newsletter Article

By | November 4, 2012 | Chapter 7, Judges Corner | 1 Comment

Congrats to Jeff Hagen.  In the published opinion of In re Dorsey, — B.R. —, 2:12-bk-18895-RK (Bkrtcy, C. D. Ca. July, 2012  Kwan.J.), Judge Kwan, discussing property dumping and whether its “bad faith” and “part of a scheme” when the debtor is oblivious to it, cites Jeff’s article in the cdcbaa newsletter as follows:

“Jeffrey J. Hagen, Property Dumping, Central District of California Bankruptcy Attorneys’ Association Newsletter, Vol. 4, Issue 8, September 2011, at 9, available at http://www.bklawyers.org/files/cdcbaa_Newsletter_V4_I8.pdf.”

Stella Havkin is taking over the editorship reins of the newsletter for this coming year.

San Diego Judge Laura Taylor Appointed to BAP

By | October 17, 2012 | Judges Corner | 1 Comment

Judge Laura Taylor in San Diego has been appointed to the 9th Circuit Bankruptcy Appelate Panel (“BAP”) to succeed Judge Eileen Hollowell.  The BAP judges term is seven years.  The announcement is here.  There are only six judges on the BAP so it is quite an honor and quite a big job.

New Bankruptcy Judge Position Open in Las Vegas

By | October 8, 2012 | Current Events, Judges Corner | 1 Comment

The announcement is here. 

Sham Affidavit Rule

By | September 11, 2012 | Appeals, Judges Corner | No comments

The Sham Affidavit – Lessons in Patience

For years while in private practice I was fascinated with witnesses at depositions who claimed, question after question, that they just “couldn’t recall.”  Lawyers present at those deposition grew frustrated at either the witness for such recalcitrance, or else at me for continuing to ask dozens of straight-forward questions while never seeming to obtain “results.”  But, au contraire, Pierre.  I learned about the Sham Affidavit Doctrine early in my career.  That’s when a defensive affidavit (or declaration) is presented in opposition to a Motion for Summary Judgment that suddenly has all of the “disputed facts” miraculously appear by the earlier forgetful deponent.   That declaration is destined to be struck by the Court.

Yesterday, we were reminded of this Rule.  In the Ninth Circuit’s Yeager v. Bowlin (yes, the Speed of Sound General Chuck Yeager) (9th Cir. Sept. 10, 2012), a three-judge panel on Monday ruled an affidavit General Yeager filed with the district court was a ‘sham’ because it included extensive details he claimed not to recall during a deposition three months earlier….”  Sham Affidavit Rule.   Just like taking the 5th in civil matters, “I don’t recall” has significant consequences as well.  This is a case that should be reviewed by all litigators, and passed along to their clients.

Hon. Scott C. Clarkson
United States Bankruptcy Judge

9th Circuit Judicial Conference

By | August 13, 2012 | Courts, Judges Corner, Programs | 1 Comment

Does your calendar seem a little light this week, appearance-wise anyway?  This week is the 9th Circuit Judicial Conference in Maui.  The calendar for the conference is here.  Virtually all of the bankruptcy judges are there.  I hope they come back happy and rested.

Judge Meredith Jury, Judge in San Bernardino Chapter 9 Case

By | August 4, 2012 | Chapter 9, Judges Corner | 1 Comment

Some info on Judge Meredith Jury (btw, I think she is a great judge and a great judge for this case).

Appointment(s):  Appointed 11/24/97 by the United States Court of Appeals for the Ninth Circuit.
Reappointed 11/24/11 by the United States Court of Appeals for the Ninth Circuit. (Current term expires 11/23/25.)

Education:
University of Colorado, Boulder, 1969, B.A. (cum laude) in English, Phi Beta Kappa;
University of Wisconsin, Madison, 1971, M.A. in economics, 1972, M.S. in English education;
University of California Law School, Los Angeles, 1976, J.D.

Career Record:  1976-97, Associate-Partner, Best Best and Krieger, LLP, Riverside, California.

Admitted to the California State Bar and U. S. District Court for the Central District of California, 1976; U. S. Court of Appeals for the Ninth Circuit, 1980.

She wrote on opinion for the 9th Circuit BAP in 2009 about the requirements of filing a Chapter 9.  You can access that case here.

 

Real Property Reaffirmations — no way!

By | August 1, 2012 | Judges Corner | No comments

I was waiting for my matter to be called in Judge Neiter’s courtroom (fee app was approved as requested!) and I heard him say that he will never approve a real property reaffirmation, and he doesn’t think any of his colleauges will either.

-RDM

How Does Non-Recourse Debt Fit Into Chapter 13 Eligibility?

By | July 21, 2012 | Chapter 13, Judges Corner | No comments

Another great thought from Arne Wuhrman: where the second that is being stripped because it is entirely unsecured, the debt should not be treated as unsecured if it is a non-recourse loan.  There is no Section 1111(b) in chapter 13 providing that non-recourse debt is treated as recourse for purposes of a plan.  Section 102(2) defines claim to include a claim against property of the debtor but if the debt is treated as unsecured for eligibility purposes, 102(2) should not apply and then there is no “right to payment” and therefore no claim.  Attached is a tentative ruling from Judge Erithe Smith that lays out the argument pretty well.  Smith Tentative.  Remember though, a secured loan is only purchase money if it was incurred to buy the property or is a seller-financed debt and a refi of either makes the new debt recourse.  CCP 580(b).

Public Notice re Santa Ana Case Assignment to Judge Clarkson

By | July 12, 2012 | Chapter 13, Chapter 7, Court Clerk Information, Judges Corner | 4 Comments

Public Notice 12-001 attached.

Judge Scott C. Clarkson recently began receiving a portion of the new chapter 7 and chapter 11 bankruptcy cases filed at the Santa Ana Division. Judge Clarkson will also continue to receive new cases filed at the Riverside Division.

Hearings: To schedule matters on Judge Clarkson’s Santa Ana Division calendar, please refer to Judge Clarkson’s self-calendaring instructions on the Court’s website at www.cacb.uscourts.gov, or call 714-338-5378.

Unless otherwise directed by the Court, parties appearing before Judge Clarkson for Santa Ana Division cases assigned to him are to appear at the Santa Ana Division, Courtroom 5C. Hearings for Judge Clarkson’s Santa Ana Division cases should be noticed for his Santa Ana Division Courtroom at 411 West Fourth Street, Courtroom 5C, Santa Ana, CA 92701.

Filing Papers/Judge’s Copies: Papers filed on Santa Ana Division cases assigned to Judge Clarkson must be filed either electronically or, for those not registered to use CM/ECF, at the Intake Section of the Santa Ana Division. Judge’s copies of these documents must be mailed to 411 West Fourth Street, Suite 5113, Santa Ana, CA 92701, or placed in the judge’s copy bin for Judge Clarkson outside of Suite 5113.

For procedures and information regarding Santa Ana Division cases assigned to Judge Clarkson, please consult the Court’s website www.cacb.uscourts.gov under Information > Judges’ Procedures/Information.

KATHLEEN J. CAMPBELL
CLERK OF COURT

Chapter 13 Plan Addendum Appears to be Moot According to the Court?

By | July 9, 2012 | Chapter 13, Court Clerk Information, Judges Corner | 1 Comment

Good morning,

Consumer Bankruptcy attorney’s are well aware of the Addendum, the local form attached to the Chapter 13 Plan. And as we all know, there have been several years of litigation regarding the form, much of it spearheaded and defended by the law firm of Borowitz and Clark.

Well please see below from the Court’s Web Page. The use of the Addendum now appears to be moot according to the Court.

F 3015-1.1.ADDENDUM
Superseded by new national Proof of Claim forms B10A, B10S, and B10S2 — see Proof of Claim Forms on website

Addendum to Chapter 13 Plan Concerning Debtors Who are Repaying Debt Secured by a Mortgage on Real Property or a Lien on Personal Property the Debtor Occupies as the Debtor’s Principal Residence (Optional)

David Brian Lally, Esq.
Law Office of David B. Lally

FYI, that is exactly what Judge Kaufman told me in court a couple of weeks ago. Although, she added that Debtors can still use the Real Property Addendum if they wish. Our office will definitely continue to attach it to all Chp. 13 Plans for Debtors who own real property. 

-RDM

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