San Fernando Valley Bar Association – Bankruptcy Section and Business Section Joint Program on Landlord Tenant Lease Issues in the Age of Covid 19

Email from Steve Fox

Dear All:

We have a very timely program for all of you.  Attorney David Campbell Smith will be speaking about various lease issues including evictions in the Age of Covid.  For bankruptcy attorneys this problem will be hitting us over and over in bankruptcy cases where tenants file bankruptcy cases to try to save their leases or to stave off eviction.  Under California law, what arguments will be more effective?  Mr. Smith’s presentation will be a nuts and bolts look at the terrain.  The presentation is timely because now businesses are starting to reopen, landlords are getting their legs under them and the fireworks are about to begin.  The program is free to members. Read more…

Bankruptcy filings down again in May 2020 – Central District of California

Another huge drop in the number of filings in May compared to a year ago.  The filings were down 38% compared to last May although about 24% higher than April.  The drop from a year ago for May is less than the 54% drop from April to year ago April.

2020 2019 2018 2017 2016 2015 2014
Jan 2,828 2,745 2,741 2,839 2,872 3,364 4,704
Feb 2,781 2,754 2,708 2,795 3,299 3,829 4,574
March 2,736 3,481 3,363 3,782 3,923 4,496 5,430
April 1,669 3,631 3,277 3,209 3,584 4,486 5,364
May 2,080 3,347 3,226 3,384 3,484 3,971 5,500
June 2,967 2,981 3,252 3,545 3,966 4,386
July 3,270 3,057 2,953 3,239 3,731 4,701
Aug 3,274 3,337 3,387 3,543 3,544 4,540
Sept 2,934 2,772 3,071 3,168 3,493 4,317
Oct 3,355 3,259 3,170 3,235 3,751 4,554
Nov 2,636 2,821 3,004 3,025 3,531 3,642
Dec 2,723 2,419 2,416 2,902 2,718 3,733
Total 12,094 37,117 35,961 37,262 39,819 44,880 55,445

The total filings by category for this year is:

Non-Comm’l Commercial Chapter 7 Chapter 13 Chapter 11
11,026 1,071 9,894 2,077 124
91% 9% 82% 17% 1%

 

There is a difference between dischargeable taxes and priority taxes

We bankruptcy attorneys focus strongly on whether taxes are dischargeable: if you file a case too early, the debtor may go through bankruptcy and still owe taxes on the other end of the process. It’s usually a pretty easy malpractice case if an attorney misses this.

There are three mathematical tests for dischargeability of income tax: the tax return must have been due at least three years prior to the bankruptcy petition, the tax return must have been actually filed at least two years prior to the bankruptcy petition, and the tax must have been assessed at least 240 days prior to the bankruptcy petition. In addition, the tax assessment can’t be for a fraudulent tax return, and the debtor can’t have tried to evade the payment of the tax. Read more…

Consequences of leaving something out of the record on appeal

I have wondered what the consequences are of failing to include something in the record on appeal.  Here is a footnote from a recent BAP case.  I have read a lot of opinions and memorandums and have never seen this.  The BAP here just looked up what was missing and sort of snidely told the appellant that he’s lucky they are good guys.  I assume with the ease of looking things up these days, the result will likely be the same in future cases, meaning, no harm, no foul.

Zuckerman v. Crigler (In re Zuckerman), — B.R. —  (9th Cir. BAP  Mar, 2020)

Mr. Zuckerman omitted from his excerpts of the record the bankruptcy court’s prior ruling (“Ruling”) that included its reasoning for entering the Order on appeal and key evidentiary rulings.  As the omitted Ruling is a necessary portion of the record, we are entitled to presume that its contents are harmful to his position and to affirm or dismiss his appeal summarily.  See Rule 8018(b)(1); Cmty. Commerce Bank v. O’Brien (In re O’Brien), 312 F.3d 1135, 1137 (9th Cir. 2002); Gionis v. Wayne (In re Gionis), 170 B.R. 675, 680–81 (9th Cir. BAP 1994).  Nonetheless, we obtained a copy of the Ruling and will take judicial notice of it and other documents filed in the bankruptcy court’s dockets, as appropriate.  See Atwood v. Chase Manhattan Mortg. Co. (In re Atwood), 293 B.R. 227, 233 n.9 (9th Cir. BAP 2003).

My Los Angeles Daily Journal article on the means test

My article, Congress, it’s time to get rid of that stupid means test, was published in the Los Angeles Daily Journal on April 30, 2020.  Let me know what you think.  You can access it here.

What is a “contingent” debt for chapter 13 eligibility purposes

I love this definition from a recent BAP case, Fountain v. Deutsche Bank National Trust Company (In re Fountain), — B.R. —  (9th Cir. BAP  Mar, 2020)

A debt is contingent when “the debtor will be called upon to pay [it] only upon the occurrence or happening of an extrinsic event which will trigger the liability of the debtor to the alleged creditor.” Fostvedt v. Dow (In re Fostvedt), 823 F.2d 305, 306 (9th Cir. 1987). If “all events giving rise to liability occurred prior to the filing of the bankruptcy petition,” the claim is not contingent. In re Nicholes, 184 B.R. at 88. A dispute over liability for a claim does not make the debt contingent. Id. at 89 (citing In re Dill, 30 B.R. 546, 549 (9th Cir. BAP 1983))

In my world, this comes up most often when an individual has guaranteed his business loans, i.e., corporate debts.  Is his personal obligation to the bank contingent?  Of course says I.  And the above quote supports that position.  The individual is called on to pay the debt only when the corporate entity has failed to pay it.  But in fairness, you have to read the words of the “guaranty.”  In commercial corporate guarantees, the ones I have read at least, the individual typically waives any rights he may have to require that the bank go after the corp first.  The guaranty is likely to say that the bank can ignore the actual borrower entirely and go after the individual if that’s what it chooses to do.   That may not be a contingent debt.

Memorial Day – thanks to my brother Bill.

My little brother Bill.  Echo platoon, Seal Team One.  Bill is on the right sitting on the wall.  Thanks for your service Bill.  He is retired now on full disability.

Catt Mutler's photo.

cdcbaa Program Saturday May 30, 2020

To Help Mitigate the Spread of COVID-19, this CLE Program will ONLY be available as a WEBINAR via Zoom

Please join us on May 30, 2020 as the cdcbaa presents:

“CARES Act – Adjusting to the New Landscape and Understanding the Impact on Small Business Subchapter 5”

Aki Koyama, Esq. – Staff Attorney to Chapter 13 Trustee Kathy Dockery
Nancy Clark, Esq.
Nicholas Gebelt, Esq.
Jon Hayes, Esq.

In re Brace oral argument – watch it here

The you tube oral argument at the California Supreme Court was released today.  The link posted by the Supreme Court is here.  

A YouTube video of Ed Hays arguing for the bankruptcy trustee is here.  

Summary of Chapter 13

This is a short and concise summary of chapter 13 in the Central District of California.  It is supported with code sections and case cites.  For a free pdf copy, click here – Summary of CH 13 final   A paperback version can be purchased on Amazon here.  I am always looking for comments.  Feel free to tell me what you think.