Business and Professions Code § 6090.5 prohibits an attorney from seeking a client’s written or oral agreement not to file a State Bar complaint against that attorney. The reason for this is the discussion could produce an impermissible chilling effect on the client’s future filing of a State Bar complaint.
Even worse, if you have already done this, you can’t take it back! Withdrawal of your request does not reverse the ethical violation.
My last program as programs chair for the Los Angeles County Bar Association — Bankruptcy Section is called the Third Annual Important Supreme Court Decision from Recent Terms with legal gurus Dean Erwin Chemerinsky and Ken Klee. I’m moving on to vice chair of the section — I am sure all the judges I have been hounding/begging to participate on panels for the last two years will be happy!
I cannot even explain how cool I felt to email with them both. Program info below.
This is relevant to bankruptcy practitioners because before we can do anything, we need to know who owns what!
Short version: In California, a notice of lis pendens gives constructive notice that an action has been filed affecting title or right to possession of the real property described in the notice. Any taker of a subsequently created interest in that property takes his interest subject to the outcome of that litigation.
In 1981, the Legislature amended section 409 so as to provide for the first time that the lis pendens must be [1] mailed to “to all known addresses of the adverse parties AND [2] to all owners of record as shown by the latest county assessment roll,”
In this case, the owner’s lawyer’s address was listed on the county assessor’s roll. When contacted, the lawyer said he would refuse the lis pendens and that he did not know where the owners resided. The Court held that despite the lawyer’s statement, the lis pendens should have been mailed to the lawyer because this is a strict requirement of section 409.
Another note from Aki:
Nancy Clark’s CDCBAA Chapter 13 “Meet the Staff Attorneys” seminar is this Saturday 7/18/15 at 11:00 a.m. The seminar will cover various chapter 13 topics and have a question/answer session as well. It will be attended by Beth Schneider from Rod Danielson’s Office, Masako Okuda from Nancy Curry’s Office, Jay Chien from Amrane Cohen’s Office and Angela Gill and me from Kathy Dockery’s Office. We will be handing out a Summary Sheet for all of the chapter 13 trustees’ current policies. See you there.
I will also make available a stipulation form that you can use for OUR OFFICE ONLY to get an order ASAP to approve your RARA fees before you convert a case from 13 to 7. Please make sure that your client has some change in circumstance that has caused the decision to convert to 7.
If you are planning to convert your client’s case to chapter 7 prior to the confirmation hearing, make sure you file a fee application and have the order entered before the notice of conversion is filed if you want to be paid post petition. If you don’t, the balance on hand the trustee is holding will probably be refunded in full to your client. This is caused by the SCOTUS ruling in Harris v. Viegelahn.
The dismissal scenario is covered by LBR 3015-1 (v)(7). So long as a RARA is filed prior to dismissal of the case, any post petition fees owed pursuant to the RARA will be paid to the attorney of record. The LBRs in this scenario would have the same force and effect as a general order. In essence, the order approving your fee pursuant to the RARA is effective as soon as you file the case should the case be dismissed. Therefore, the order would precede the dismissal of the case.
The section that governs where plan payments go after dismissal is governed by 1326(a)(2) – “A payment made under paragraph (1)(A) shall be retained by the trustee until confirmation or denial of confirmation. If a plan is confirmed, the trustee shall distribute any such payment in accordance with the plan as soon as is practicable. If a plan is not confirmed, the trustee shall return any such payments not previously paid and not yet due and owing to creditors pursuant to paragraph (3) to the debtor, after deducting any unpaid claim allowed under section 503 (b).”
You’ll notice that this subsection specifically authorizes payment of administrative expenses which also cover your post petition attorneys fees. That’s why the combination of your RARA which is your fee application and the LBR authorizing payment pursuant to the RARA if a case is dismissed works so well.
Tipping the Balance: Practical Tips for Managing High Level Practice and Family
The question persists: is it possible to combine a successful legal career and a fulfilling family life? Recent news articles, blogs and websites would suggest that you can’t have a successful legal career and kids. A panel of successful legal practitioners and parents will talk about their experiences and offer practical advice on how they juggle family and professional obligations.
Panelists:
Honorable Michelle Williams Court
Superior Court of Los Angeles
I have spoken with quite a few practitioners and surprisingly, all of them have said the same thing: an individual Debtor in Chapter 11 Bankruptcy can only receive a discharge once every 8 years.
Then a good friend of mine and told me about his magic bullet: he would vacate the prior discharge to make his clients eligible for the Chapter 11 discharge. It is quite brilliant actually but it turns out not to be necessary.
First, let’s discuss the code section which seems to have caused all the confusion:
On June 9, 2015, the 9th Circuit Bankruptcy Appellate Panel held that a Debtor not eligible for a Chapter 13 discharge may strip off a wholly unsecured lien through a Chapter 13 Plan. You can find the case here.
This is common practice in the Central District and I am happy the BAP went the right way. I was a little worried after reading their Wages where the Court held that the anti-modification provision under §1123(b)(5) applies to any loan secured only by real property that the debtor uses as a principal residence. When the law is ambiguous, why rule in favor of the bank! You can find that case here.
Questions the author has yet to consider:
So what happens in a Chapter 11? 1111(b)(1) says nonrecourse debts become recourse debts but it starts out with “A claim secured by a lien on property of the estate…”
The website SCOTUSBLOG has posted its Annual Supreme Court Stat Pack for the 2014 Term. You can access the whole thing here. 52 pages of stats!
Here are a few stats that jumped out at me.
There were 16 cases from the 9th Circuit – out of 74 total. The Supremes affirmed the 9th Circuit six times and reversed 10 times.
Nineteen cases out of 74 were decided 5-4. That’s 26% of the cases.
Total cases decided in 1990 was 150. Throughout the 2000s, the total has been right around 75.
http://www.theguardian.com/money/us-money-blog/2015/jul/05/student-debt-retirement-funds
The popular idea of what retirement involves, as long as you’re healthy enough to enjoy it, can sound a bit like an extended vacation: golfing, fishing, sitting around drinking iced tea while discussing the latest books with a group of like-minded friends, traveling to visit the grandchildren or places you’ve always yearned to see.
Nowhere in those scenarios is there any mention of writing a monthly check to pay off a student loan.
Here’s a reality check. Over the last 10 years, it is Americans over the age of 60 who have seen their student loan debt grow at the fastest rate of any demographic group, according to data from the Federal Reserve Bank of New York. By 2014 that sum had hit $58bn, up from a mere $6bn in 2004. The increase in borrowers over the age of 40 taking out new student loans was nearly twice the increase in borrowing by their younger counterparts over that period. That’s not great news, because Americans in their 40s, 50s and 60s have much less time to repay those loans and try to save for their other big financial goal – retirement. Senior citizens are ending up retiring while still owing substantial sums in federal student loans. And since those amounts cannot be discharged even in bankruptcy proceedings, the consequences are painful.
