In re Ng may be accessed here. The Debtor’s income increased after he filed. The BAP says that the bankruptcy court may condsider that as part of the totality of the circumstances when deciding whether to dismiss a chapter 7 under section 707(b)(3). By the way, the lower court also ruled that a debtor may deduct mortgage payments on the means test, even if he intends to surrender or abandon the home. Since that ruling was irrelevant, the BAP did not discuss it.
Arbitration Clause Found Unconscionable by California Court of Appeals (Love it!)
From the LA County Bar Assn Ebriefs
-Civil Procedure-
Arbitration clause in used car purchase agreement was procedurally unconscionable where, according to purchaser’s unrefuted declaration, the dealer did not give purchaser the opportunity to negotiate or call his attention to the clause, which appeared on the back side of a preprinted page contract and was nowhere near the signatures. Clause was substantively unconscionable where its provisions–allowing either side to appeal an award exceeding $100,000, or any award of equitable relief; requiring party appealing an award to advance all costs of appeal proceeding; and barring arbitration in event dealer resorted to repossession or other self-help remedies–unilaterally and oppressively favored dealer. Trial court did not abuse its discretion in ruling that unconscionable provisions so permeated agreement that severance should be denied.
Goodridge v. KDF Automotive Group, Inc. – filed August 24, 2012, publication ordered September 13, 2012, Fourth District, Div. One
Cite as D060269
Full text http://www.metnews.com/sos.cgi?0912//D060269
Bet Tzedek Debtors’ Rights Clinic — Sept. 27
Attached is the flyer for our next Debtors’ Rights Clinic (9/27/12). The clinic is free and open to all Los Angeles County residents who are low income. Because we have limited space, we are giving initial priority to callers who are disabled or who are at least 55 years old.
Thank you,
Jose “Joey” Alarcon
Attorney at Law
Bet Tzedek Read more…
Pay.gov v5.2 deployment: September 15, 2012, 6:00 PM to 12:00 Midnight Eastern Time
ATTENTION ECF USERS:
Pay.gov will be deploying v5.2 on Saturday, September 15, 2012 between 6:00 PM and 12:00 Midnight Eastern Time. There will be interruptions of service that may prevent you from paying filing fees during this period. If you do experience interruptions, please log back in later to pay for your filing fees.
Best regards,
ECF Help Desk
(213) 894-2365
Public Notice PN 12-014 Proposed Revisions to Local Bankruptcy Rules
ATTENTION:
A new Public Notice PN 12-014 re Proposed Revisions to Local Bankruptcy Rules has been posted. Please click this link and view the Public Notice for additional information: Go.usa.gov/rwsw
Regards,
ECF Help Desk
(213) 894-2365
Los Angeles Bankruptcy Forum — “Six First Day Motions in Sixty Minutes”
Los Angeles Bankruptcy Forum — “Six First Day Motions in Sixty Minutes”
The program will discuss various First Day Motions including Cash Collateral, Utilities, Critical Vendors, Insider Compensation, Employee Issues and Existing Cash Management Systems
October 15, 2012
Networking starts at 6:00 p.m.
Dinner served at 6:45 p.m.
Program starts at 7:30 p.m.
The LA Hotel (formerly Los Angeles Marriott)
333 South Figueroa Street, Los Angeles Read more…
Digital Domain Chapter 11 Filing — Guess Tupac won’t be “performing” at Coachella next year…
I was so fascinated when I watched the video of Tupac Shakur performing at Coachella this year — and now, less than a year after going public, Digital Domain Media Group Inc., the digital production company founded by director James Cameron has filed for Chapter 11 bankruptcy protection in Delaware.
Digital Domain is best known for its work on the movie “Titanic” and has produced visual effects for more than 90 movies. In April at Coachella, its Tupac Shakur hologram amazed thousands of people when “it” (Tupac!) took the stage and appeared to perform alongside Snoop Dogg.
One of the biggest shareholders in the company is former Miami Dolphins quarterback Dan Marino, who is listed in bankruptcy filings as owning 1.6 million shares.
As of the petition date, the company had total assets of about $205 million and total liabilities of about $214 million.
12-12568-BLS Digital Domain Media Group, Inc.
Case type: bk Chapter: 11 Asset: Yes Vol: v Judge: Brendan Linehan Shannon
Date filed: 09/11/2012 Date of last filing: 09/12/2012
Consumer Bankruptcy Fee Study
If you like numbers and charts and percentages, you will love this 176 page article, The Consumer Bankruptcy Fee Study: Final Report, by Prof. Lois Lopica. The abstract says in part:
The Consumer Fee Study’s primary objective is to identify and monetize these costs of bankruptcy access through the analysis of quantitative and qualitative data gathered from court dockets and from professionals working within the bankruptcy system. We began the quantitative section with the hypothesis that following BAPCPA’s enactment, the cost of accessing the consumer bankruptcy system increased. We set out to determine the degree of increased costs, as well as to identify the specific policies and practices affecting these costs. Additionally, we endeavored to evaluate, with specificity, how diverse local procedures and guidelines impact the system’s processes and outcomes. Our focus throughout the Study was on the consumer bankruptcy system and its principal stakeholders. Until now, empirical study of BAPCPA’s impact has focused primarily on the system’s demand side, gathering and analyzing financial and sociological data with respect to debtor households. The effect of BAPCPA on debtors, however, cannot be fully assessed without an examination of the architecture that surrounds a consumer’s decision to file, coupled with an account of the complexity of factors that inform and influence the consumer’s experience in the bankruptcy system. This Study addresses issues related to the institutional framework of consumer bankruptcy by not only measuring and monetizing the cost of access, but by also examining the incentives and constraints imposed by the system. Read more…
Program on Chapter 11s at UWLA Law School
Dear Jon:
I will be one of two panelists speaking on September 21, 2012, from 10:00 a.m. to 12:00 noon at the University of West Los Angeles (Chatsworth campus) on chapter 11 issues which are vital, especially to newer practitioners, but which are rarely discussed. The topics to be discussed include the following:
• How does the bankruptcy attorney determine if a debtor can solve its problems and reorganize?
• How does the bankruptcy attorney determine if a company’s principals and leaders can take the company through reorganization? Chapter 11 cases are difficult for leaders who have a lot to learn and much to unlearn.
• Do the company’s leaders suffer from common failures of leadership, e.g., entitlement, abdication or other infirmities?
• How does the bankruptcy attorney help the debtor reorganize before, during and after the chapter 11 reorganization?
• In a chapter 11 reorganization, which financial numbers and reports matter? Too often, the bankruptcy attorney lacks a good understanding of the company’s financial numbers when deciding if the business can reorganize.
• Why does this chapter 11 case matter? In too many chapter 11 cases, the attorney does not educate the bankruptcy judge why this case matters. Without educating the judge, the likelihood of a successful reorganization decreases. What does the bankruptcy attorney need to learn about the debtor in order to make this case matter to the bankruptcy judge?
• We will review basic concepts and examine first day pleadings. Read more…
Sham Affidavit Rule
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
M. Jonathan Hayes Books
Publisher
Senior Contributor
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