Congratulations to Nancy Clark and Renee Sawyer Blume for their great article on Judge Meredith Jury. It is in the current cdcbaa newsletter which you can access here.
All posts in Judges Corner
Judging Judges: The Three Fs – Firm, Fair and Friendly
I recently appeared in front of a judge whom I have known for 4-5 years but have never appeared in front of or otherwise been in his court. I got a chance to listen to him handle a bunch of matters before he got to mine. It was a good experience. My impression of his conduct on the bench was excellent.
I was thinking of what I am going to tell him the next time we speak and came up with Firm, Fair and Friendly.
The worst judges are those who are indecisive, who change their minds, treat everything like a settlement conference, who look for ways to avoid making a decision, let everyone talk on and on. This is often caused by being unprepared but just as often are just indecisive people. But in being firm, the judge must be fair. The parties have the right to be heard. Their issues, concerns and interpretation of the facts must be considered by the judge, meaning he must read what has been filed, and listen to what is being said. Finally and probably the least important is friendly. I’ll take the jerk if I get the other two but friendly helps.
Judge Judy to me is a disgrace. She makes the show about her, the court experience is about her. Look at me! Look at me! It is a disgrace that people watch that show and think that is how our system works.
Nice Tentative From Judge Scott Clarkson re Chapter 7 Trustee’s Commission
6:14-19644 Banning at 8th Street LLC Chapter 7
#19.00
Hrg. on Chapter 7 Trustees First Interim Fee Application filed 8/12/15 For The Period From July 29, 2014 To August 11, 201 for Todd A. Frealy, Trustee Chapter 7, Period: 7/29/2014 to 8/11/2015, Fees: $164,686.51
EH_____
Docket 235
Tentative for 9/2/2015:
The Chapter 7 Trustee has presented an interim fee application [Dk. 235] (“Interim Application”) to the Court, citing sections 326 and 330 of the Bankruptcy Court for support of his cause. Of course, the Trustee means section 331, which guides interim fee applications. This is anticipated to be a surplus estate. All creditor and administrative claims are anticipated to be paid in full. Equity will most likely be receiving a significant distribution. As described below, the Trustee is requesting an interim maximum commission in an amount of approximately $164,686.00 based on distributions already made. The carefully documented time and charge records of the Trustee indicate that his services to the estate as of this application can be calculated to be in the amount of approximately $75,000.00. Equity objects that the approximate $85,000.00 difference is a windfall that should not be permitted. The Chapter 7 Trustee has presented his reply. Read more…
Judge Zurzolo Recent Comments on Chapter 13 Procedures
This is an important note from Nancy Clark, President of the cdcbaa,
Dear Members:
At Judge Zurzolo’s last Chapter 13 Confirmation hearings, he asked me to pass along a message to the debtor bar regarding preparation for the confirmation hearings. He was disappointed by the fact that debtor attorneys had failed to timely prosecute their cases and were asking for continuances for simple things like providing tax returns to the trustee, providing documents in response to the trustee’s object, or for not filing mortgage declarations. He stated that if attorneys do not make the effort to prosecute chapter 13 cases in a timely manner he is ready to go to a same day 341(a) Meeting of Creditors Hearing and Confirmation Hearing as is done in Riverside which may result in more dismissals.
His next Chapter 13 Confirmation calendar is on September 28, 2015. This is a friendly reminder that if you need to file a Motion for Order Disallowing Claim you need 30 days notice. Therefore file it now. Also, if you need to amend the plan, you should do so soon as you need to have 28 days service if the amended plan contains any material changes. Make sure your client provides you the information needed to file the mortgage declaration. Remember, you no longer need to attach the copies of the payments and proof of mailing to the mortgage declaration. Now is a good time to review the trustee’s objection and make sure you have provided the documents requested and prepared your written response, if necessary.
All the Best,
Nancy B. Clark
Borowitz & Clark, LLP
Blistering Opinion from Local Judge re Chapter 11 Attorney’s Duties and Performance
I have taken out the names of the parties but this is a well known and well regarded bankruptcy boutique law firm. This is the Judge’s Tentative Ruling.
Tentative Ruling:
This is the first and final application for allowance of fees and costs of [the Firm], debtor’s former counsel. The application is opposed in part by the Chapter 11 trustee, and is opposed in whole by both the UST and the debtor.
This is a disturbing case on several levels. First, the case under the DIP was a disaster. A trustee was ultimately appointed for several reasons but most prominently, the MORS were incorrect and seriously misleading, and not only slightly but by a factor of hundreds of thousands. This led to a grave concern whether anything the DIP said or reported could be relied upon. Further, the case appeared to languish for an extended period without tangible progress being made toward reorganization. A disclosure statement was finally provisionally approved, but never amounted to anything because no exhibits were filed as required and ultimately the estate under the trustee’s direction abandoned the entire approach described in the plan. It also developed after the fact that some basic rules were either misunderstood or ignored, including that substantial amounts of cash collateral were spent without consent or authority in violation of §363(c). Cash collateral may have been used in substantial part to pay [the Firm] $57,010 toward its interim fees under a Knudsen order. The lame excuse is offered that counsel thought Bank of America was adequately protected by equity cushion in any event, so apparently decided not to bother with this most basic of Chapter 11 requirements. In addition, apparently substantial amounts of estate property were deposited in Mrs. [debtor’s] account and expended without disclosure at all or any authority under §363. Again, such behavior casts the DIP in the most unfavorable light and makes a consensual plan unlikely.
Nice Bio of Judge Neil Bason from the State Bar Insolvency Committee
A special thanks to Corey Weber at Ezra Brutzkus Gubner for this.
July 28, 2015
Dear constituency list members of the Insolvency Law Committee:
The following is the first in a new series of profiles of 9th Circuit bankruptcy judges. Judge Neil W. Bason and members of the Insolvency Law Committee met in his chambers and discussed his personal and professional background, transition to the bench and other issues of interest.
Judge Bason was appointed to the bench in the Central District of California, Los Angeles Division, in October 2011. Prior to his appointment, he was special counsel at Duane Morris LLP and at Howard Rice Nemerovski Canady Falk & Rabkin, P.C., and served as law clerk to the Honorable Dennis Montali, United States Bankruptcy Judge in the Northern District of California and Chief Judge of the Bankruptcy Appellate Panel of the Ninth Circuit.
Are Voluntary Retirement Contributions Deductible When Computing Net Disposable Income in Chapter 13?
Well that’s a good question. But according to Peter Lively, the deductions are allowable in Judge Zuzolo’s courtroom from now on. Below is the email I received today from Peter.
Judge Zurzolo announced at the confirmation hearing this morning regarding one of my clients that he will now allow voluntary retirement contributions for his cases. He is no longer following the BAP’s In re Parks opinion. In all fairness to Nancy Curry, she withdrew her objection prior to the ruling and the case was confirmed, but Judge Zurzolo recalled the case and said he has spent a lot of time reading the brief and considering the issue and wanted to announce his decision.
Wise Words by the Honorable Sheri Bluebond, Chief Judge!
My good friend Paul McCullum was sworn in today by none other than the Chief Judge of the Central District Bankruptcy Courts, the Honorable Sheri Bluebond. His family flew over from Indiana to watch him take the oath. It was a tremendous occasion and I was honored to be invited. The best part was Judge Bluebond’s moving pre-Oath “advice to new lawyers” which contains sage advice for practitioners of all seasons. With her permission, I am happy to share: Read more…
Nice Tentative From Judge Albert re Trustee’s Sale of Avoidance Actions
United States Bankruptcy Court, Central District of California
Judge Theodor Albert, Presiding
Tuesday, June 02, 2015 Hearing Room 5B
11:00 AM
8:14-12049 Ergocraft, Inc. Chapter 7
#16.00 Motion for Order: (1) Approving Asset Purchase Agreement and Authorizing the Sale of the Estate’s Interest in Avoidance Actions Pursuant to 11 U.S.C. Section 363(b); and (2) Approving Overbid Procedures
The Chapter 7 trustee moves for an order approving the asset purchase he has negotiated with Jiangsu World Plant Protecting Machinery Co., Ltd. (“Jiangsu”). Jiangsu previously obtained a judgment against the debtor in the amount of $1,821,983.28. This claim is designated Claim No. 1 on the claims register (“Jiangsu Claim”). Trustee has negotiated with Jiangsu for the purchase of estate’s interest in avoidance actions which are reportedly the only realizable assets of the estate. Jiangsu will pay $52,500, release the Trustee and the estate from all claims, and subordinate the Jiangsu Claim to the payment of all other allowed claims. In addition, the Trustee seeks approval of overbid procedures, whereby qualified bidders may bid on the same assets at an auction to be held during the hearing for the motion. Bidders must bid a minimum of $67,500 (an initial overbid of $15,000), and each subsequent increase must be by an increment of $1,000.
cdcbaa Newsletter – Nice Article on Judge Catherine Bauer
The latest cdcbaa Newsletter is out. You can access it here. There is a great article on Judge Catherine Bauer and some nice tributes to Jim King.
M. Jonathan Hayes Books
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