Notes from Aki Koyama
NACBA Roundtable in RIVERSIDE on Friday 3/30/2012 – Meet Tara Twomey
NACBA/NCBRC Roundtable
Join NACBA’s Field Coordinator, Zach Manifold, and NCBRC’s Project Director, Tara Twomey, for a roundtable discussion focused on recent legislative efforts and appellate work in the Central District of California (and the Riverside Division, in particular).
March 30, 2012 at 1:00pm — Mission Inn, 3649 Mission Inn Avenue, Riverside, CA
No More Absolute Priority Rule in Individual Chapter 11s Says Split BAP
The Friedman Opinion regarding whether or not the absolute priority rule still applies in individual chapter 11 cases was published today. You can access it here – Friedman decision. I’ll have more comments in a little while. I sure think they got this one right. Judge Scott Clarkson wrote the majority opinion, Judge Meredith Jury dissented.
LABF Program April 16, 2012
Los Angeles Bankruptcy Forum April 16, 2012
Our Favorite Bizarre Bankruptcy Cases of 2011
From time to time you read an opinion that makes you scratch your head and say “Huh!?!?” The year 2011 saw more than its share of such cases. The Panel members will review their favorite bizarre bankruptcy cases of 2011 (and perhaps from other years) and discuss what made them say “Huh!?!?”
Moderator: Cynthia M. Cohen, Paul Hastings
Panelists: Hon. Robin L. Riblet U. S. Bankruptcy Court
William N. Lobel The Lobel Firm
Richard L. Wynne Jones Day
$80.00 Members Doors Open 6:00 Omni Hotel 251 South Olive St Los Angeles, CA 90067
Details on the Settlement with “Major Banks”
There is a great website at www.nationalmortgagesettlement.com where you can find the original complaint filed by the feds and most of the states against a bunch of large banks and servicing companies. The website also has an executive summary of the settlements and copies of the actual settlement agreements. The complaint sure pulls no punches accusing banks of doing all sorts of fraudulent things and accusing them of doing these things on purpose. I hope there is not a whole new round of people who stop paying their mortgages so they can qualify for these new programs.
Protecting Tenants at Foreclosure Act – Tenants’ Rights: When to Hire a Lawyer
Many issues tenants face are minor and can be easily resolved by common sense and checking reputable resources on landlord-tenant law, such as a local tenants’ rights group. The more you know the law and your legal rights, the better. The Tenant Rights section of the U.S. Department of Housing and Urban Development (HUD) website provides a wide variety of state and local resources, including links to fair housing groups, rent control boards, tenant unions, and legal aid organizations for each state; even if you don’t qualify for legal aid services, you will find useful information on tenant rights on many legal aid websites. The Nolo website includes many useful articles and books on tenant rights, from breaking a lease to mold in rentals, as well as small claims court (should your dispute involve a security deposit).
Some issues, however, are not easily resolved and can seriously threaten your enjoyment of your rental — or worse, your ability to stay in the rental at all. In these situations, getting a lawyer’s help may be the most effective, albeit costly, way to protect your rights.
Below is a guide to determining whether you need a tenant lawyer or not. If you find yourself in one of the following situations, consider hiring a lawyer.
Your Landlord is Evicting You
If your landlord serves you with a termination notice that you intend to fight, hiring a lawyer can increase your chance of success. Choose a lawyer that is knowledgeable about landlord-tenant law and has significant experience fighting evictions. Such a lawyer can come up with effective strategies or creative solutions that you might not be aware of — for example, the lawyer could argue that your landlord’s eviction was retaliatory (and therefore illegal) if the circumstances support such a defense. Get a free legal advice online
Your Landlord is Evicting You Without Proper Court Procedures
Landlords must follow eviction procedures set forth by state and local law. If your landlord tries to evict you by taking matters into his own hands — for example, by locking you out, canceling your utilities, or even removing your doors, windows, or possessions — consider hiring a lawyer. These types of “self-help” remedies are illegal. No matter how strong a landlord’s case may be for ending a tenancy, a landlord doesn’t have the right to take, or even threaten, any self-help actions against you.
Your Landlord Discriminates Against You
If you believe your landlord is discriminating against you, you may need a lawyer to stop the illegal actions and help you recover damages for any harm you suffered. One option is to hire a lawyer to sue the landlord in court.
Another option is to file a complaint with the Department of Housing and Urban Development (HUD), or a state or local agency in HUD’s Fair Housing Assistance Program (FHAP).
HUD and state and local agencies in FHAP receive over 10,000 discrimination complaints a year. If HUD investigates your complaint and determines there’s reasonable cause to believe your landlord has been discriminating, you’ll get the benefit of having a HUD lawyer representing you in front of an administrative law judge at no cost. The judge can award you compensation and attorneys’ fees, impose penalties against your landlord, and order other relief.
Your Landlord Won’t Make Necessary Repairs
If your landlord isn’t fulfilling important obligations under your lease and the law, it can lead to major problems. For example, think of the landlord who keeps putting off needed heating system repairs until winter is well under way, or the landlord who ignores a ground-floor tenant’s requests to replace a broken window until a burglary occurs.
In these cases, you may decide to implement one of your state’s tenant remedies on your own (such as rent withholding or “repair and deduct”), but you may need some coaching on how to do it right. Consulting a lawyer may be your best move. In addition, a lawyer can attempt to communicate with the landlord for you, explore the possibility of a quick settlement, and take the landlord to court, if needed.
Your Landlord Isn’t Fulfilling His Promises
Sometimes, landlords make promises to encourage hesitant applicants to rent from them. For example, if an applicant is concerned about the neighborhood crime rate, a landlord might promise to install a more effective intercom system or an electronic, gated parking lot. If the landlord later refuses to honor the promise, you may need to hire a lawyer to write a stern letter to your landlord, threatening a lawsuit unless the landlord follows through.
You’ve Been Injured or Made Ill
Accidents can happen, even at a well-run rental property. However, if an accident is the result of the landlord’s carelessness, you may have a legal case against your landlord. For example, you might break your leg after slipping on an icy patch on the front steps of your building. (Perhaps the landlord should have arranged for regular de-icing, which would have removed the danger.) Or, you may discover an outbreak of mold in your rental — only after it has made you and your family very ill.
In this case you’ll want a personal injury lawyer with experience in premises liability.
Even if your landlord didn’t personally or intentionally create the problem, there are many legal theories available to convince a court or insurance adjustor that the landlord should be held responsible. Lawyers are skilled at identifying which theories may apply and crafting arguments using them.
Your Property Has Been Damaged
Sometimes, a landlord’s failure to maintain the rental property causes damage to your personal property. For example, a landlord’s faulty wiring repair job could spark an electrical fire in your living room, damaging your furniture and other belongings.
If you have renter’s insurance, your insurance company will cover the loss and its lawyers will then seek reimbursement from your landlord. If you don’t have insurance or have inadequate coverage and the damage to your property is substantial, consider hiring a lawyer to help you obtain reimbursement from your landlord. In the alternative, you could consult with a lawyer for an hour or two to get advice on how to proceed and what arguments to make to get reimbursed.
How to Get a Lawyer’s Help
If you are in need of a lawyer, choose one with expertise in landlord-tenant matters. For help in getting a lawyer, read the article “How to Find an Excellent Lawyer” or go straight to Nolo’s Lawyer Directory.
Hiring a lawyer as “coach.” Hiring a lawyer doesn’t have to break the bank. Depending on your needs, your budget, and your confidence in your ability to handle a matter on your own, you might find a lawyer who will agree to meet with you for an hour here and there as a coach. Even limited legal help can make the difference and prove to be all you need to steer your way toward a favorable outcome.
Check for an attorney’s fees clause in your rental agreement. Many landlords include an “attorney’s fees” clause in their lease or rental agreement to prevent frivolous lawsuits. If your lease or rental agreement includes this clause, you may be entitled to get reimbursed for your reasonable attorney’s fees and court costs if you win a lawsuit against your landlord. (Even if your clause appears to provide recovery only to a victorious landlord, courts in many states will rule the clause works both ways.)
As a practical matter, if you have an attorney’s fees clause in your lease or rental agreement, you will have an easier time finding a lawyer to represent you. Since the landlord pays the lawyer’s bill if you win, a lawyer needn’t worry as much about getting paid by you. Be aware that the clause applies only to disputes arising out of the lease or rental agreement (such as evictions, rents, and security deposit issues) — not to disputes involving personal injury, discrimination, or other such matters.
Judge Ted Albert Tentative on Abuse, 707(b) Motions
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…
Lew Landau Joins Dykema
Lew Landau, newly annointed as a California Bankruptcy Specialist, has joined the Dykema firm in its downtown office. Congratualtions Lew.
Changing Password Information on Third Party Software
ATTENTION ALL CM/ECF USERS RE: Changing Password Information on Third Party Software
For attorneys who use Third Party Software, i.e, Best Case, etc., it is imperative that if you are changing your password in CM/ECF, you also update any password requirements in your software. Doing so will prevent you from being locked out of CM/ECF for unsuccessful login attempts.
Best regards,
ECF Help Desk
213) 894-2365
PUBLIC NOTICE RE: CHIEF JUDGE PETER H. CARROLL
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.