More on Sundquist: Are Fees Based on Contingency Fee Agreement here Reasonable?

By | December 9, 2017 | Chapter 7, Judges Corner | No comments

No according to Judge Klein (in 40 pages).

Sundquist v. Bank of America (In re Sundquist) — B.R. — (Bkrtcy, E. D. Cal. Nov, 2017) Klein, J.

Issue:   Is it appropriate to “expunge” an attorney’s lien on the facts here?

Holding:   Yes.  The court here “canceled” the fee agreement between counsel and the debtor on the basis, in part, that fees exceeding $70,000 here were unreasonable.

Judge Christopher Klein

This is a 40 page diatribe excoriating the efforts of debtor’s counsel on behalf of the debtor.  It lays out very nicely however the rules of determining what fees are “reasonable” and how that determination intersects with state law.    Read more…

Hon. Harry Pregerson 1923 – 2017 RIP

By | December 8, 2017 | Judges Corner | No comments

Judge Harry Pregerson

I interviewed Judge Harry Pregerson about ten years ago in his chambers in Woodland Hills.  I was writing a short profile of him for the San Fernando Valley Bar Journal.  To say he regaled me over four hours with stories is to put it very mildly.  He was seriously wounded in the Pacific at the Battle of Okinawa when he was 22 years old.  He spent a few months I believe recovering on the island of Tinian.  He loved talking about the time he presided over the Oakland Raiders v. NFL trial, especially how smart the lawyers were and a few little tricks that they played trying to get an advantage with the jury.  In the bankruptcy arena, Judge Pregerson was on the panel in the Kagenveama case and later on the en banc panel in Flores where he dissented.

The article I finally wrote is below the jump.  The LA Times article on his death is here.

Judge Harry Pregerson
“Senior Judge on the Ninth Circuit Court of Appeals” Read more…

Can a Corporation file Chapter 7 Without Approval of the Shareholders?

By | November 25, 2017 | Chapter 7 | No comments

The genesis of this is a post on the cdcbaa list serve.  The answer? – No.

I’m interested in this issue because it will make a great final exam for my Biz Org class next year.  My students can recite in their sleep, “the board of directors makes all consequential decision,” and, the shareholders do little except appoint the board and vote on other “fundamental changes to the corporate structure.”  Liquidating all of the assets of the corp seems to me to be a “fundamental change in the corporate structure.”

Cal Corps Code section 1001 says:

(a) A corporation may sell, lease, convey, exchange, transfer, or otherwise dispose of all or substantially all of its assets when the principal terms are approved by the board, and, unless the transaction is in the usual and regular course of its business, approved by the outstanding shares ( Section 152 ), either before or after approval by the board and before or after the transaction.

The chapter 7 is certainly an “otherwise dispose of” the assets of the corp outside of the ordinary course of business.

The Chapter 13 Rights and Responsibilities Agreement (RARA) Form Allows For What?!

By | November 17, 2017 | Chapter 11, Chapter 13 | No comments

When the Law Offices of M. Jonathan Hayes merged with Simon & Resnik in 2012 (has it really been 5 years!?) I began to work exclusively on petitions filed under my beloved chapter of the Bankruptcy Code, 11.  I recently began to again work on Chp. 13 cases, albeit on a fairly limited basis, and I am continually amazed at the differences between these two most popular reorganizing chapters of the code.

Take a look at the “no-look” fee form we use here in the Central District, the Rights and Responsibilities Agreement between Chapter 13 Debtors and their Attorneys (“RARA”) [court form F3015-1.7.RARA], specifically pages 5-6 (I have added emphasis):

The guidelines in this district for payment of costs incurred in performing the services described in bold face type in this agreement (“Included Costs”) and attorneys’ fees in chapter 13 cases without a detailed fee application provide for the following maximum Included Costs and fees for the services described in this agreement in bold face type (that is, the services described on pages 3 through 5 of this agreement)…

Other than the initial retainer, the attorney may not receive fees directly from the Debtor prior to confirmation. All other fees due through confirmation shall be paid through the plan unless otherwise ordered by the court. Read more…

Nice Profile of Judge Laura Taylor, Chief Bankruptcy Judge in San Diego

By | November 16, 2017 | Judges Corner | No comments

This is a nice profile of Chief Judge Laura Taylor, written by Gary Rudolph for the state bar Business Law Section, Insolvency Law Committee eBulletin:

November 14, 2017  
Dear constituency list members of the Insolvency Law Committee, the following is a judicial profile of the Hon. Laura S. Taylor, Chief Bankruptcy Judge of the United States Bankruptcy Court, Southern District of California.  Gary Rudolph, a member of the Insolvency Law Committee, met with Judge Taylor to discuss her personal and professional background and her experience so far as a member of the bankruptcy bench.

In the Beginning

Judge Taylor has known since high school that she wanted to be a lawyer because it blended her interest in law and the political process.  After engaging in private practice, including taking time away from a successful bankruptcy and finance practice with a large law firm to represent  disadvantaged families on a pro bono basis through a non-profit program she helped to found, she set a new challenge for herself that would best use her talents and interests–namely, to become a judge.  Judge Taylor had two respected judges as mentors and role models to follow on this path to the bench–most immediately, her husband, the Hon. Timothy B. Taylor, Judge of the Superior Court for the State of California, and the Hon. Irma E. Gonzalez, United States District Judge (Ret.), who was Judge Taylor’s neighbor and whose daughter babysat Judge Taylor’s oldest son. Read more…

UWLA will host the 2018 Roger J. Traynor California Appellate Moot Court Competition

By | November 15, 2017 | Community, Current Events, Programs | No comments

Dear Faculty, Students, and Alums,

The University of West Los Angeles School of Law is pleased to announce it will host the 2018 Roger J. Traynor California Appellate Moot Court Competition on April 14-15, 2018 at the LAX campus of the law school.

Moot court is an extracurricular activity at most established law schools in which law students, competing as teams, take part in simulated appellate court proceedings.  Students draft written briefs and present oral argument to a panel of judges in a format that follows rules and procedures that apply to actual appellate litigation. Read more…

Welcoming David Goodrich to the State Bar Bankruptcy Specialist Commission

By | November 13, 2017 | Specialist Information | No comments

I’m at the state bar in San Francisco grading the essay questions from the Bankruptcy Specialists exam given a couple of weeks ago.  This is the first meeting attended by our newest commissioner, David Goodrich.   The commissioners are, besides myself (in my last year), Stella Havkin, Alan Vanderhof, Jim Selth, Cathy Moran, Dave Eldan, Phil Gillete, and Dave Goodrich.

October Filing Data – Central District

By | November 8, 2017 | Bankruptcy Data | No comments

Up 100 petitions over September.

2017 2016 2015 2014
Jan 2,839 2,872 3,364 4,704
Feb 2,795 3,299 3,829 4,574
March 3,782 3,923 4,496 5,430
April 3,209 3,584 4,486 5,364
May 3,384 3,484 3,971 5,500
June 3,252 3,545 3,966 4,386
July 2,953 3,239 3,731 4,701
Aug 3,387 3,543 3,544 4,540
Sept 3,071 3,168 3,493 4,317
Oct 3,170 3,235 3,751 4,554
Nov
Dec
Total 31,842 33,892 38,631 48,070
YTD OCT
Chap 7 23,542 2,402
Chap 13 7,990 749
Chap 11 311 24
Other 4 0
31,847 3,175

Ten Tips from Judge Neil Bason on Rule Changes Effective December 1, 2017

By | November 7, 2017 | Community, Current Events | No comments

In the Court News for November and December Judge Neil Bason has an excellent article pointing out some of the bigger changes in the new rules that we all need to be aware of.

The tips are:

1. Signatures – Get Original “Wet Ink” Signatures, File a Scanned PDF Copy, and Keep Them In Your Files
2. Proofs Of Claim – File Them Early And Often
3. Objections to Claims – Serve Them Correctly
4. Chapter 13 – § 341(a) Meetings and Confirmation Hearings
5. Chapter 13 – New Plan – Only For Cases Filed 12/1/17 or Later
6. Chapter 13 – New Plan – Up-Front Disclosures re: Liens (and Other Nonstandard Provisions)
7. Chapter 13 – New Plan – Secured and Priority Claims (Classes 1-4)
8. Chapter 13 – New Plan – “Pot,” “Percent,” and “Residual” Plans, and Possibly More Than
9. Chapter 13 – New Plan – Surrendered Collateral (Class 6) and Executory Contracts/Unexpired Leases
10. Valuing collateral and/or avoiding liens (§§ 506, 522(f))

Is Continuance of Hearing on MSJ a Violation of the Automatic Stay?

By | November 4, 2017 | Chapter 11, Chapter 13, Chapter 7 | No comments

From the California Bankruptcy Specialists listserve:

Question:  Is it a violation to continue a hearing on a motion for summary judgment if a notice of stay is given to the Court before the hearing on the motion for summary judgment?

Answer from Wayne Silver, Santa Clara:

Eskanos & Adler, P.C. v. Leetien, 309 F.3d 1210 (9th Cir. 2002)
Under § 362(a), the prohibition against continuation of judicial actions requires that the action be automatically dismissed or stayed, and not merely that it not be pursued.
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