All posts in Courts

Judge Martin Barash new supplemental requirements for noticing motions before him.

By | July 30, 2020 | Courts, Judges Corner | No comments

In June, Judge Barash updated his posted “telephonic” procedures to include ZoomGov instructions and announced that he would be holding all hearings (unless otherwise ordered) using ZoomGov audio and video—at least through the end of the year.  His procedures are here (under “Telephonic Instructions”).

I am advised that he has decided to continue this policy for the foreseeable future.  In furtherance of that decision, he has established supplemental requirements for noticing motions that require a hearing before him.  Those procedures are here (under “Self Calendaring”).

These requirements are intended to ensure that parties get the maximum notice possible that a hearing will be held remotely and get the necessary information to connect to that hearing, either by computer, handheld device or telephone.

The following, which describes the new policy, has been added to Judge Barash’s publicly posted self-calendaring procedures.

Until further notice, due to the COVID-19 pandemic, all of Judge Barash’s hearings will be conducted remotely, using ZoomGov audio and video.  Accordingly, in addition to all other applicable noticing requirements, and pursuant to the authority granted under Fed. R. Bankr. P. 9007,  Judge Barash requires that a moving party or other party noticing a ZoomGov hearing before him (i) file and serve a completed Supplemental Notice of Hearing to Be Held Remotely Using ZoomGov Audio and Video (“Supplemental Notice”), at the same time the principal notice of such hearing is to be filed and served, or (ii) incorporate conforming language into such principal notice.  The form of Supplemental Notice approved by Judge Barash for a hearing in a bankruptcy case can be found here.  The form of the Supplemental Notice approved by Judge Barash for a hearing in an adversary proceeding can be found here.  The unique ZoomGov connection information for each day’s hearings before Judge Barash—which information is necessary to complete the Supplemental Notice–is posted on his public calendar, which can be located at: http://ecf-ciao.cacb.uscourts.gov/CiaoPosted/default.aspx

Nice post by evidence guru Wayne Silver on whether settlement discussions are really confidential

By | July 24, 2020 | Community, Courts | No comments

This is worth reading.  Gives you little shivers about the prospect of hearing your “confidential settlement discussions” being discussed with the judge.

How to pay the new District Court $25 fee

By | July 2, 2020 | Community, Court Clerk Information, Courts, Current Events | No comments

Email from Keith Higgenbotham

Dear Colleagues!

The District Court is currently finalizing its renewal application and plans to post it on its website with a link to a portal so that we can pay online using a credit card.  It plans to send out a Notice to its practitioners and to our Bankruptcy Court Clerk.  Once the Notice is received, our Clerk of the Court will send out its own Notice to all the bankruptcy CM/ECF users with a link to the District Court’s website and portal.  The District Court’s goal is to have the renewal application posted and the portal setup by the end of next week.

So some advice:

  1.   You do not need to send in a check to District Court with the hope that it will be applied correctly.

  2.  PLEASE do not send a check to the Bankruptcy Court since it has nothing to do with this fee.

cdcbaa member

Keith Higginbotham

Tentative from Judge Kaufman re exemption for Covid-19 stimulus checks

By | June 25, 2020 | Chapter 7, Judges Corner | No comments

June 25, 2020  2:00 PM
1:11-11603  Chapter 7
#3.00 Judgment Creditors Motion Assignment Order and Restraining Order

Docket 735
I. BACKGROUND
At the last hearing, the Court requested that Tammy Phillips and Tammy Phillips, a Prof. Law Corp. (“Creditors”), file a supplemental brief regarding whether Kevan Harry Gilman (“Debtor”) waived his right to claim an exemption in any “Covid-19 economic stimulus checks/payments from the federal government to Debtor,”including the stimulus check that Debtor may qualify for under the Coronavirus Aid, Relief, and Economic Security Act (the “Stimulus Check”) .

On May 28, 2020, Creditors filed a supplemental brief (the “Brief”) [doc. 746].  In the Brief, Creditors assert that Debtor waived his right to an exemption by failing to claim one within three days of the hearing on their motion pursuant to California Code of Civil Procedure (“CCP”) § 708.550.  Creditors also argue that Debtor has waived his right to claim an exemption in any future Covid-19 related federal stimulus payments.  Finally, if Debtor is provided with a Stimulus Check, Creditors expressed opposition to the Court’s proposed procedure for Creditors to receive the Stimulus Check. [FN1].  Debtor did not file a response to the Brief. Read more…

Watch out for Ford and reaff’s

By | June 11, 2020 | Chapter 13, Chapter 7, Reaffirmations | No comments

This is from our consumer bankruptcy listserve, bankruptcy attys only, names have been withheld to protect the innocent.

Question (from consumer bk atty):  I filed a Chapter 7 for client.  Ford sent their letter saying to sign a reaffirmation agreement or they will repo the car.  Has anyone had Ford actually repo cars with no reaffirmation agreement?

Answer No. 1:  Yes…especially if they’re represented by Cooksey Toolen in Costa Mesa.

Answer No. 2:   Definitely. Watch out for Ford!

Comment from Hale Antico, President of our group:

I think the conventional wisdom is only Ford/Cooksey will go after a failure to reaffirm, but it’s still best practice to reaffirm, coupled with the next sentence. If the court disapproves it, we’re back to pre-BAPCPA ride-through. I know of no example of a repo after a court disapproval where debtor remained current.

Credit Unions won a reaff carve-out at 524(m)(2).

In re Brace oral argument – watch it here

By | May 20, 2020 | Cases, Chapter 7, Supreme Court | No comments

The you tube oral argument at the California Supreme Court was released today.  The link posted by the Supreme Court is here.  

A YouTube video of Ed Hays arguing for the bankruptcy trustee is here.  

Judge’s tentative awards $60,000 in attys fees for failure to admit requested admissions

By | May 18, 2020 | Cases, Judges Corner | No comments

A tentative today from Judge Saltzman:

The Plaintiffs demonstrate how the Debtor fails to admit several requests for admission that were later proved to be true. Most of the requests that the Debtor failed to admit were not objectionable, the requested admissions were material, the Debtor had no reasonable ground to believe that he might prevail on the fact of the admission, and there is no other good reason for the Debtor to have failed to admit. See Fed. R. Civ. P. 37(c)(2).

The Debtor makes no attempt to challenge any law or authorities for why the Plaintiffs are entitled to attorney’s fees. The Debtor argues that he should have prevailed on the motion for summary judgment. The Debtor tries to make technical arguments, twisting the meaning of “personal knowledge” to something utterly absurd. The Debtor’s attempts to justify his frivolous denials and objections to requests for admission are all unpersuasive, and none of those arguments explain why the Plaintiffs are not entitled to attorney’s fees for the continued litigation regarding their anti-SLAPP judgment. Read more…

In re Brace – California Supreme Court hears oral argument about what constitutes community property

By | May 8, 2020 | Chapter 7, Supreme Court | No comments

My previous post on In re Brace is here.

The trustee was represented by Ed Hays, Marshack Hays LLP.  This is his post on social media.

Today, I was fortunate to be able to appear (virtually) and present oral arguments in a case before the California Supreme Court.  It was a very cool experience.  It took me 28 years to get a case before the high court and then Covid-19 kept me from appearing in person.  Hopefully, it won’t take as long to get another chance where I can appear in person.

What was the case about? Read more…

In re Brace to be argued at the California Supreme Court on May 5, 2020

By | April 15, 2020 | Appeals, Cases, Supreme Court | No comments

An email from the California Supreme Court:

IN RE CLIFFORD ALLEN BRACE, JR.
Case: S252473, Supreme Court of California

Date (YYYY-MM-DD): 2020-04-15
Event Description: Case ordered on calendar

Notes: To be argued on Tuesday, May 5, 2020, at 1:30 pm, in San Francisco. Counsel to appear via video or teleconference per Administrative Orders 2020-03-13 (March 16, 2020) and 2020-03-27 (March 27, 2020).

For more information on this case, go to:
https://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0&doc_id=2269894&doc_no=S252473&request_token=OCIwLSEmXkw7WyBZSCItSENIUEA0UDxTJiI%2BVz1TTDtJCg%3D%3D

Do you have to add three days to the notice period when serving by mail – or not?

By | February 20, 2020 | Cases, Courts | 1 Comment

I noticed the following tentative ruling continuing a motion for relief hearing recently:

The Motion [for relief] was . . . served on Debtor by mail, and set for hearing exactly 21 days later.   While LBR 9013-1(d)(2) specifies that notice must be filed and served not later than 21 days before the hearing date, FRBP 9006(f) requires that an additional 3 days be provided for motions served by mail.

I recalled several years ago being told by a judge that the three day rule doesn’t apply to MFR.  Yikes.  Have I been neglecting a defense since it seems to be more common these days that these motions are served on exactly 21 days notice?

No – FRBP 9006(f) applies only to certain motions.  FRBP 9006(f) states:

When there is a right or requirement to act or undertake some proceedings within a prescribed period after being served and that service is by mail . . . three days are added after the prescribed period would otherwise expire under Rule 9006(a).

Meaning?  When the motion tells the debtor he must do something within a certain am0unt of time after being served, he gets three more days if served by mail.  Most of our motions require a response within 14 days of the hearing, not within some amount of time after being served.  So the additional three days doesn’t apply to most motions.

On a side note:  a year or so ago I was served with a MFR on a very large piece of property, we thought worth $25 million.  The big-firm creditor lawyers gave us exactly 21 days notice – giving me 7 days to prepare the opposition.  When I complained (a little) to the judge at the hearing he scowled at me and I immediately dropped the comment.  The scowl told me – “why didn’t you file a motion for continuance?”  “You can’t just show up at the hearing and complain about the short time.”  I’m pretty sure he would have granted the request for a continuance.

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