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Judge Ted Albert Tentative on Abuse, 707(b) Motions

By | March 14, 2012 | Chapter 7, Judges Corner | No comments

The Central District Insider thanks Christina Wilton for this tentative ruling and hopes she lets us know what happened.  (I think Judge Albert got it right by the way.  There has to be something more than the UST thinks the house payment is too high).

Tentative Ruling

This is the motion of creditor for dismissal under 11 U.S.C. §707(b)(3)(A) or (B). This requires the court to evaluate alternatively whether the filing of this bankruptcy was in good faith, or if in the totality of the circumstances abuse is demonstrated. The standard is not as the debtor has argued. Just because under the “means test” a presumption of abuse does not arise, the converse is not necessarily true, i.e. a case where the presumption is not triggered may still be determined under all of the circumstances to have been in bad faith or an abuse. Otherwise subsection (b)(3) would be superfluous. See e.g. In re Reed, 422 B.R. 214, 215, 230 (Dist. C.D. Cal. 2009). The real question is whether under these circumstances the various expenses claimed by the debtor make this case abusive. There are several expenses which have provoked comment. For example, the debtor pays for both his home mortgage and for an RV for another $2,745 per Read more…

PUBLIC NOTICE RE: CHIEF JUDGE PETER H. CARROLL

By | March 14, 2012 | Courts, Judges Corner | No comments

Effective April 2, 2012, Chief Judge Peter H. Carroll will move from courtroom 1539/chambers 1534 on the fifteenth floor, to courtroom 1468/chambers 1460 on the fourteenth floor of the Roybal Building & Courthouse at the Los Angeles Division. Telephone numbers in Chief Judge Peter H. Carroll’s chambers have not changed.

Effective April 2, 2012, all matters which have been scheduled or noticed for hearing in courtroom 1539 will be heard in courtroom 1468.

Also effective April 2, 2012, judge’s copies for Judge Peter H. Carroll must be delivered to the bin outside of his new chambers 1460. 

All hearing notices for matters to be heard on or after April 2, 2012, must contain the new courtroom location.

Judge Sheri Bluebond Being Inducted into the American College of Bankruptcy

By | February 14, 2012 | Community, Judges Corner | No comments

This is a really significant honor.  The American College of Bankruptcy is an honorary association which admits 20-30 people each year from across the country.  Judge Bluebond will be inducted as part of Class 23 at the annual meeting in Washington DC on March 16-17, 2012.   The flyer is here.  Congratulations Judge Bluebond.

Inland Empire Bankruptcy Forum – Evening with the Judges

By | February 6, 2012 | Judges Corner, Programs | No comments

IEBF Presents:  An Evening With Our Judges  Tuesday, February 7, 2012

The Honorable Meredith A. Jury – U.S. Bankruptcy Judge
The Honorable Catherine E. Bauer – U.S. Bankruptcy Judge
The Honorable Deborah J. Saltzman – U.S. Bankruptcy Judge
The Honorable Scott C. Clarkson – U.S. Bankruptcy Judge
The Honorable Mark S. Wallace – U.S. Bankruptcy Judge
The Honorable Wayne Johnson – U.S. Bankruptcy Judge
Mark D. Houle, Esq.**

**The U.S. Court of Appeals for the Ninth Circuit has appointed Mr. Houle as U.S. Bankruptcy Judge for the Riverside Division.

Attendees are encouraged to submit questions for discussion by e-mail to Todd Frealy at taf@lnbyb.com. Questions are requested no later than January 28, 2012.

When:  Tuesday, February 7, 2012  No-Host Cocktails 6 p.m.  Dinner 6:30 p.m.  Program 7 p.m.

Where:  Mission Inn  3649 Mission Inn Avenue, Riverside

Read more…

Notes on Moving Judges

By | February 4, 2012 | Judges Corner | No comments

Judge Kwan will be moving into courtroom 1675 in Los Angeles.   Judge Peter Carroll is moving into courtroom 1468 in March or April.  Judge Mark Houle will be taking courtroom 303 in Riverside.  Judge Catherine Bauer will move into courtroom 5D in Santa Ana.

Judge Ted Albert Tentative Clarifies (Somewhat) Issues on Modification of Loan on Residence

By | February 3, 2012 | Cases, Judges Corner | No comments

8:11-20215  [debtor]     Chapter  11

#10.00 Motion to Value Property of the Estate Pursuant to 11 U.S.C.  Section 506(a)

Tentative Ruling:
The motion is for valuation of collateral known as 2xxx Santa Ana Ave., Costa Mesa (“property”) under §506, but the real question presented here is whether a Chapter 11 Plan can treat the junior trust deed claim of Citibank as only partially secured since the debtor contends there is only $287,000 in value to support two trust deeds of $202,410 and $510, 968.  If the bifurcation can be done then the junior secured claim is only around $85,000.  The impediment, if any, would be §1123(b)(5) which forbids modification of claims “secured only by a security interest in real property that is the debtor’s principal residence.”  The property is apparently a duplex. While there is case law on both sides of the issue, and no definitive 9th Circuit authority, the majority of authority as represented by cases like the 3d Circuit in In re Scarborough, 461 F. 3d 406, 414 (3d Cir. 2006), suggest that since technically the lien is secured by something other than the residence (i.e. an adjoining income property) and therefore is not secured only by the residence, the statute does not apply. See also In re Boardman, 2011 WL 478987 (Bankr. N.D. Cal.).
Grant

Matthew E. Faler
17330 Brookhurst St., Ste 240
Fountain Valley, CA 92708

Judge Wallace and Failure to Comply with Section 109(h) [credit counseling]

By | February 3, 2012 | Court Clerk Information, Courts, Judges Corner | No comments

FYI, I learned from the deputy court clerk responsible for dismissals for Judge Mark Wallace that he instructs the court clerk’s office not to automatically dismiss any of his cases for debtors failing to comply with §109(h)’s terms, even if more than 45 days pass from the petition filing date. On the other hand Judge Wallace will allow the clerk’s office to dismiss if a debtor fails to file an executed form B22A more than 45 days pass from the petition filing date.

Mark Jessee

Judge Catherine Bauer Chapter 13 Cases

By | February 2, 2012 | Chapter 13, Judges Corner | No comments

Judge Catherine Bauer advised counsel today that all of her chapter 13 cases are being transfered to new Judge Mark Houle.

Update Chapter 20 Lam Motions

By | February 2, 2012 | Appeals, Cases, Chapter 13, Judges Corner | No comments

Judge Catherine Bauer ruled today that a discharge is required for a successful Lam Motion.     

NACBA filed an amicus brief on this issue for an appeal in the 7th Circuit District Court.  See attached.

Appeal of Section 522(f) Issue Pending Before the 9th Circuit

By | February 1, 2012 | Appeals, Judges Corner | No comments

From attorney Anerio V. Altman:

I have an appeal before the 9th Circuit court of Appeals with OCCU in regards to:
1.  Can a Debtor utilize the Wildcard Exemption for the purpose of avoiding a non-possessory non-purchase money security interest in collateral they claim as a tool of the trade under 11 U.S.C. 522(f)?; and
2.  Can a Debtor utilize 11 U.S.C. 522(f) for the purpose of avoiding a Non-PMSI lien in a vehicle they claim as a tool of the trade?

Debtor in this case is a realtor who claims that her vehicle is a tool of the trade.  The vehicle is worth less than $6000 by all accounts.  Debtor filed her own motion pro se, OCCU responded and we filed a chunky reply. 

Judge Albert said you can’t do it.  The District court said that we could.  And now we’re before the ninth.

The case is IN RE:  ANGIE GARCIA.  9th Appellate case number 11-56076 or District Court 10-00985. 
We don’t have a hearing date yet but all papers have been filed. 

Anerio V. Altman, Esq. #228445
Lake Forest Bankruptcy

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