Fair Use is a Defense to DMCA Takedown Notices and Could Subject Copyright Holders to Attorney Fees

By | November 15, 2015 | Appeals, Case Briefs | No comments

The Digital Millennium Copyright Act provides a potent mechanism for copyright owners to demand that certain copyrighted materials be taken off of websites. This is because online services providers are given immunity from liability as long as they “expeditiously” remove content after receiving notification from a copyright holder that the content is infringing.

The idea behind giving service providers immunity is rooted in the idea that if all the service provider is dong is allowing people to post content, then the content poster, and not the provider, should be liable for the copyright violation. That makes sense. Service providers like YouTube would go out of business if they were held liable for all the copyrighted videos posted on there.

Read more…

CM/ECF Signatures

By | November 13, 2015 | Court Clerk Information | No comments

I have been questioned about an /s/ signature we uploaded recently.  It made me pull out the Court Manual and remind myself of the actual requirements for using an /s/ signature.  After 8-9 readings of the same few lines, I think I’ve got it down.

  1. If the signature is of the actual registered user, i.e., the attorney, i.e., me, the hard copy still must be signed and the original signature maintained for five years after the closing of the case.  The /s/ signature may be uploaded by itself.
  2. If the signature is of the debtor, the hard copy must be signed and an ecf Declaration must be signed by the debtor and the registered user.  The /s/ signature can be uploaded with the ecf Declaration.  The original signature must retained for 5 years.
  3. If the signature is someone other than the debtor, but is a client of the registered user, follow number 2 above.  Remember, if you represent a corp, the owner is not the client.  If you represent a bank, the person signing the pleading is not the client.
  4. If the signature is not the debtor and not your client, you cannot use the /s/ signature.  You must upload the actual signature, which they love to call the holographic signature.  Another example of this would be a person in your firm who is not the registered user.  You must upload the holographic signature except when it is a signature of the proof of service.  See next number.
  5. If the signature is an employee of the firm or the registered user, you can upload the /s/ signature on the proof of service – only.

RDM’s Roundup

By | November 13, 2015 | Community | No comments

The first thing I do when I wake up is read my ECF digest email to see what was filed in our cases during the previous twenty-four hours. This is both good and bad. If nothing ugly was filed, I jump out of bed. If an opposition or motion for relief was filed, I take my time. There is nothing more frustrating than receiving an opposition to a motion I have slaved over which either completely misstates the relief I am seeking (Hello, senior lienholder! I know it is debtor’s principal residence – I am obviously filing the valuation motion to ultimately deal with a fully unsecured junior lien in the plan!), or calls my client a scum bag (filing bankruptcy to stop a foreclosure sale is not, by itself, bad faith!).

It is easy to get insulted by oppositions – sometimes it feels personal – like the statements made are directed at moi, not my client. I often find that if I read an opposition, then let it sit for a day or two, then read it again that the words I initially understood to mean “go jump off a cliff” now read more along the lines of “bungee jump off a cliff.” However, this is not always true – most of us know attorneys who file scathing pleadings but are super easy to deal with in person. That stuff confuses me – reminds me of internet trolls. It is easy to be a jerk behind the computer screen but much harder to be that direct and insulting in person.

On another note, please take notice that Chapter 7 Trustee John Menchaca has announced that if you are not in the examination room at roll call your case will be continued. Lateness is not excused.

I always explain to clients that the Bankruptcy Schedules and Statements are meant to paint a complete picture of their current and past financial history. To that end, I am pretty excited about the new national forms. It will take some adjusting to an eight page petition, Schedules A and B being combined, etc., but the new forms are just so much more helpful – disclose, disclose, disclose!

-rdm

2015 REVISED Official Bankruptcy Forms Effective AND MANDATORY December 1, 2015

By | November 13, 2015 | Courts | No comments

ATTENTION ECF USERS:

As previously announced, most Official Bankruptcy Forms are scheduled to be replaced with substantially revised, reformatted and renumbered versions. The new forms become effective and mandatory on December 1, 2015.

The Court has posted a web page, www.cacb.uscourts.gov/form-changes-2015, to provide the following information about the new Official Forms:

– Video overview of the new official forms titled, 2015 Revised National Bankruptcy Forms: An Overview Of Changes Effective 12/1/2015;
– Bankruptcy Forms Numbering Conversion Chart;
– Redline revisions to Court Manual Section 2 concerning new case commencement filing requirements;
– Updated Petition Packages;
– Instructions for Bankruptcy Forms for Individuals, and Non-Individuals;
– Link to the U.S. Courts website for access to additional information about the new forms, including Committee Notes

The Court will offer the same video overview mentioned above on November 24, 2015, at the Los Angeles Division. Representatives from the Clerk’s Office will be present to answer any questions you may have.  If you plan to attend, RSVP to ECF_Support@cacb.uscourts.gov with the number of attendees in your party. You will receive a confirmation email with the time and room number where the overview will take place.

ECF Help Desk
ECF_Support@cacb.uscourts.gov

Duty of Loyalty Nicely Explained

By | November 10, 2015 | Uncategorized | No comments

Reading an unpublished BAP opinion, the panel reminds me not only of my duty of loyalty, but that this duty continues even after I am done representing my client because an attorney may not do anything which will injuriously affect a former client.   Oasis W. Realty, LLC v. Goldman, 51 Cal. 4th 811, 821 (2011).

The best part was reading California Supreme Court’s recitation of the duty of loyalty over 80 years ago:

One of the principal obligations which binds an attorney is that of fidelity, the maintaining inviolate the confidence reposed in him by those who employ him, and at every peril to himself to preserve the secrets of his client.   This obligation is a very high and stringent one.   It is also an attorney’s duty to protect his client in every possible way, and it is a violation of that duty to assume a position adverse or antagonistic to his client without the latter’s free and intelligent consent given after full knowledge of all the facts and circumstances.   By virtue of this rule an attorney is precluded from assuming any relation which would prevent him from devoting his entire energies to his client’s interests.   Nor does it matter that the intention and motives of the attorney are honest.   The rule is designed not alone to prevent the dishonest practitioner from fraudulent conduct, but as well to preclude the honest practitioner from putting himself in a position where he may be required to choose between conflicting duties, or be led to attempt to reconcile conflicting interests, rather than to enforce to their full extent the rights of the interest which he should alone represent.

Anderson v. Eaton, 211 Cal. 113, 116 (1930).

Limit on Chapter 13 Trustee’s Fees

By | November 9, 2015 | Chapter 13 | No comments

An attorney on the CDCBAA forums asked the following question, I was asked to post my answer for all to see:

Question.
The CD chapter 13 plan estimates Chapter 13 Trustee’s Fee at 11% “unless advised otherwise.” However, Section 326(b) appears to limit the chapter 13 trustee’s fee to no greater than 5% of all payment under the plan. I’ve always figured the 11% was just to keep the bases covered with a built in cushion. Read more…

Random Thoughts for the Week

By | November 9, 2015 | Chapter 11, Community | 1 Comment

My partner Matt Resnik is meeting with a possible new client.  He was doing a loan mod with another atty who told him to file a pro per chapter 7 case to stop the foreclosure sale set for the next day.  When he did, Wells Fargo Bank immediately froze the $50,000 in this debtor’s bank account.  Presumably it has already been sent to the trustee.

I was just looking at a Judge Vicki Kaufman tentative ruling on a 12(b)(6) motion.  Plaintiff is saying – in the complaint – “my state court judgment is enough to show 523(a)(4) and (a)(6).”  Reminds me of a comment Judge Jury made to me at a mediation a week or two ago.  She said, “Good luck using the state court judgment or even findings to establish (a)(4) or (6).”  Judge Kaufman said the same.  Plead the express trust and the  “culpable state of mind requirement.”  As to (a)(6), plead  “that the debtor had a subjective motive to inflict the injury or that the debtor believed that injury was substantially certain to occur as a result of his conduct.” Read more…

RDM’s Roundup

By | November 6, 2015 | Current Events | No comments

I am starting a weekly blog post with interesting tidbits from around the Central District.  Hayes suggested that I call it “Notes and Comments.”  I like alliteration so I came up with “RDM’s Reflections, Recommendations, Reports (Rumors…)” — but that is probably over-the-top (which I am usually not opposed to!).  I think “RDM’s Roundup” works for now, but I am open to comments.

1) I enter into a least one stipulation per week, for various things like hearing continuances, Chapter 11 plan treatment agreements, etc.  I am surprised at how often opposing counsel shoots me an email stating “the stip looks fine, use my electronic signature.”  Huh?!  How can anyone, and especially the Court staff, be certain that the non-filing party really entered into the agreement?  The clerk will always reject an order on a stipulation that does not include the “wet” signature of the non-filing party.

2) Judge Klein has changed the hearing time for her Chapter 13 calendar on Thursday, December 3rd.  Instead of 10:00 and 11:00 a.m., all matters will be heard at 2:00 p.m. Read more…

December 3, 2015 – 2015 William J. Lasarow Awards Reception

By | November 5, 2015 | Community, Current Events, Programs | No comments

Public Counsel’s Debtor Assistance Project Invites you to the

2015 WILLIAM J. LASAROW AWARDS RECEPTION

Read more…

November 17, 2015 – Examining the Dischargeability of Student Loan Debt in Bankruptcy Proceedings

By | November 5, 2015 | Bankruptcy Data, Programs, Specialist Information | No comments

Complimentary CLE-Accredited Webinar

Student loan debt is estimated to be more than $1 trillion nationwide, greater than all credit card debt of all Americans combined. Unlike credit card debt, student loan debt cannot be discharged in a bankruptcy without a showing of undue hardship. Prior to 1977, student loans could be discharged in the same way as credit card debt; however, concerns and fears over students abusing the bankruptcy system prompted Congress to add 11 U.S.C. Section 523(a)(8). Steven Werth, Associate with SulmeyerKupetz, Magdalena Bordeaux, Supervising Attorney of Public Counsel’s Debtor Assistance Project, will address:

The historical background of Section 523(a)(8) and how that statute has changed over the decades.

How courts now apply the test of undue hardship.
The differences among the circuits as to how undue hardship is determined, and potential arguments that can be made for interpreting undue hardship differently.

Date:
Tuesday
November 17, 2015

Time:
11:00 a.m. PT

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