Thursday, September 24, 2015 – OCBA – Exemptions Case Law and Statutory Update

By | September 15, 2015 | Appeals, Bankruptcy Data, Case Briefs, Cases, Chapter 11, Chapter 13, Chapter 7, Community, Current Events, Programs, Specialist Information | No comments

ORANGE COUNTY BAR ASSOCIATION
COMMERCIAL LAW & BANKRUPTCY SECTION

September Meeting

Exemptions Case Law and Statutory Update
 Learn about 2014-2015 developments regarding exemptions including recent case law imposing the burden of proof on the Debtor and allowed surcharges after Law v. Siegel;
 Discover best practices for maximizing exemptions without risking denial of discharge; and
 The panelists will also discuss proposed Senate Bill 308 increasing the homestead exemption to $300,000 across the board and eliminating the requirement to reinvest exemption proceeds.

D. Edward Hays, Esq., Partner, Marshack Hays LLP
Jeffrey I. Golden, Esq., Partner, Lobel Weiland Golden Friedman LLP Read more…

Most Commercial Speech is Not Activity Protected by California’s Anti-SLAPP Statute.

By | September 7, 2015 | Appeals, Cases, Uncategorized | No comments

On August 20, 2015, the Los Angeles Division District Court was presented with the issue of whether false advertising on the internet was subject to anti-SLAPP protection. The case is In L.A. Taxi Cooperative, Inc. v. The Independent Taxi Owners Association of Los Angeles and a copy can be found here.

Apparently rival cab companies are purchasing pay per click advertisements on leading search engines which purport to be the rival company but really redirect customers to their own websites and numbers. An example is:

Kia Tehrany, director of operations for Yellow Cab, stated that he conducted a search using the terms “‘Yellow Cab Los Angeles.’” The results included the following:

Yellow Cab Los Angeles – Call 800-521-8294 or Book Online!
www.lataxi.com
Our Cabs get you there Fast & Safe.

Tehrany stated that neither the listed telephone number nor the website was owned or controlled by Yellow Cab. Instead, the website contained information related solely to taxi services provided by ITOA.

Read more…

Pop Quiz! How Long After Entry Of Order Confirming A Plan Can The Order Be Revoked? Hint: It’s Not What You Thought!

By | September 6, 2015 | Appeals, Case Briefs, Uncategorized | No comments

If an order confirming a Plan of Reorganization is procured by fraud, how many days from entry of order does one have to ask the court to revoke the order?

The answer depends on which chapter of the Bankruptcy Code we’re talking about! In a Chapter 12 or Chapter 13 case, one would have up to the 180th day after the date the order was entered to seek revocation of the discharge. In a Chapter 11 case, one would have up to the 179th day after the date the order was entered to seek revocation. That is a pretty tough lesson to learn the hard way.

Read more…

Sometimes Complete Disclosure, Disinterestedness and an Approved Employment Application are Not Good Enough!

By | September 3, 2015 | Case Briefs, Cases | No comments

On August 24, 2015, Judge Lee, a Bankruptcy Judge in the Eastern District of California, disqualified the Estate’s general bankruptcy counsel even though counsel was properly employed under § 327(a). The Court found that counsel was a disinterested person within the meaning of the code and did not hold or represent an interest adverse to the estate. This is a wild (but proper) result because under California law, a client’s waiver or consent can cure these types of deficiencies and under Bankruptcy law, those defects cannot be cured!

So how is it that under Bankruptcy law, counsel was properly employed but had to be disqualified under California law?

Read more…

A Surprising Twist on the Parol Evidence Rule!

By | September 3, 2015 | Uncategorized | No comments

The following is borrowed from Judge Carroll’s recent August 27, 2015 unpublished opinion on a claims objection which can be found here.

In law school, we learned that if a written instrument is valid, complete and unambiguous, extrinsic evidence is not admissible to vary, add to, or contradict the terms of the instrument. This is called the parol evidence rule. The exception to this rule is if there is an allegation of fraud, accident or mistake.

Read more…

Serving Pleadings on the United States Trustee

By | September 2, 2015 | U.S. Trustee | No comments

I was reminded yesterday that Local Bankruptcy Rule 2002-2(a)(3)(A) requires that any document exceeding 50 pages must be served non-electronically on the UST.   I was “reminded” of course by the UST.   The local rules can be accessed here.

Tenants Beware: Stipulation to Judgment May Be Treated as Res Judicata

By | September 2, 2015 | Appeals, Cases | No comments

This blog is a quick review of Needelman v. DeWolf Realty Company which was entered on July 21, 2015.

The tenant entered into a stipulated judgment that specifically provided that Tenant waived “any claims he may have, which [the lessors] assert do not exist, to bring an attempted wrongful eviction against [the lessors] or any action in any way arising out of or concerned with his tenancy…” and stated that Tenant “agrees that any of his personal property remaining in the unit after he vacates or is evicted therefrom shall be considered abandoned property, and [the lessors] shall be entitled to dispose of it without any notice to Tenant or his attorney.”

Read more…

9th Circuit Applies California Law to Contract Where Parties Agreed to Apply Georgian Law

By | September 1, 2015 | Appeals, Case Briefs, Cases | No comments

The basic facts of the case are an individual entered into an agreement with a bank located in Georgia to borrow money to purchase her home. It is not clear whether the individual even signed the contract or where the contract was signed but it ends up not mattering because the bank sued in California District Court under diversity jurisdiction. Note: in California, if a contract contains an attorney fees clause provision, both sides of the dispute get to use it. That’s not the law in Georgia. The Bank wanted to be able to enforce its attorney fee clause against litigants but to not allow other litigants to use that clause against the bank!

California law was applied to this contract in two instances.

Read more…

Last Day for Early Bird Sign Up for Bankruptcy Specialist Exam

By | September 1, 2015 | Specialist Information | No comments

Today is the deadline for early bird pricing to register for the Legal Specialist Examination, so if you have friends who are interested in taking the examination, this would be a good time to forward this reminder to them.

Legal Specialist Examination Early Bird Registration Rates through September 1: Attorneys who have been practicing in a specialty since January 2014 or longer can register to take the legal specialist examination on October 27, 2015.  Registration is open until October 1, 2015, but early bird prices are in effect until September 1, 2015.  NEW this year, many private providers are offering preparation classes for the examination.  Learn more at www.californiaspecialist.org, a State Bar website.  Certified specialties are available in the following areas of law: Admiralty, Appellate, Bankruptcy, Criminal, Estate Planning, Family, Franchise, Immigration, Legal Malpractice,Taxation and Workers’ Compensation.

Read about how legal specialization offers unique perks, from the perspective of current certified specialist Michael Berg.

For additional questions, interested applicants should e-mail legalspec@calbar.ca.gov or call (415)538-2120.

Sincerely,

The Department of Legal Specialization

Awndrea Lee | Administrative Assistant II
Office of Admissions, Department of Legal Specialization
The State Bar of California | 180 Howard St., San Francisco, CA 94105
415.538.2377 | Fax: 415.538.2180 | Awndrea.Lee@calbar.ca.gov

Interesting Article About Justice Thomas from the Volokh Conspiracy

By | August 31, 2015 | Supreme Court | No comments

I recently read a fairly snide article suggesting that Justice Thomas simply regurgitates the parties’ briefs when he writes opinions.  This is a great explanation from the Volokh Conspiracy about “the real story.”

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