All posts tagged bankruptcy

Protecting Tenants at Foreclosure Act – Tenants’ Rights: When to Hire a Lawyer

By | March 15, 2012 | Current Events, Legislation | No comments

Many issues tenants face are minor and can be easily resolved by common sense and checking reputable resources on landlord-tenant law, such as a local tenants’ rights group. The more you know the law and your legal rights, the better. The Tenant Rights section of the U.S. Department of Housing and Urban Development (HUD) website provides a wide variety of state and local resources, including links to fair housing groups, rent control boards, tenant unions, and legal aid organizations for each state; even if you don’t qualify for legal aid services, you will find useful information on tenant rights on many legal aid websites. The Nolo website includes many useful articles and books on tenant rights, from breaking a lease to mold in rentals, as well as small claims court (should your dispute involve a security deposit).
Some issues, however, are not easily resolved and can seriously threaten your enjoyment of your rental — or worse, your ability to stay in the rental at all. In these situations, getting a lawyer’s help may be the most effective, albeit costly, way to protect your rights.

Below is a guide to determining whether you need a tenant lawyer or not. If you find yourself in one of the following situations, consider hiring a lawyer.

Your Landlord is Evicting You
If your landlord serves you with a termination notice that you intend to fight, hiring a lawyer can increase your chance of success. Choose a lawyer that is knowledgeable about landlord-tenant law and has significant experience fighting evictions. Such a lawyer can come up with effective strategies or creative solutions that you might not be aware of — for example, the lawyer could argue that your landlord’s eviction was retaliatory (and therefore illegal) if the circumstances support such a defense. Get a free legal advice online

Your Landlord is Evicting You Without Proper Court Procedures
Landlords must follow eviction procedures set forth by state and local law. If your landlord tries to evict you by taking matters into his own hands — for example, by locking you out, canceling your utilities, or even removing your doors, windows, or possessions — consider hiring a lawyer. These types of “self-help” remedies are illegal. No matter how strong a landlord’s case may be for ending a tenancy, a landlord doesn’t have the right to take, or even threaten, any self-help actions against you.

Your Landlord Discriminates Against You
If you believe your landlord is discriminating against you, you may need a lawyer to stop the illegal actions and help you recover damages for any harm you suffered. One option is to hire a lawyer to sue the landlord in court.

Another option is to file a complaint with the Department of Housing and Urban Development (HUD), or a state or local agency in HUD’s Fair Housing Assistance Program (FHAP).

HUD and state and local agencies in FHAP receive over 10,000 discrimination complaints a year. If HUD investigates your complaint and determines there’s reasonable cause to believe your landlord has been discriminating, you’ll get the benefit of having a HUD lawyer representing you in front of an administrative law judge at no cost. The judge can award you compensation and attorneys’ fees, impose penalties against your landlord, and order other relief.

Your Landlord Won’t Make Necessary Repairs
If your landlord isn’t fulfilling important obligations under your lease and the law, it can lead to major problems. For example, think of the landlord who keeps putting off needed heating system repairs until winter is well under way, or the landlord who ignores a ground-floor tenant’s requests to replace a broken window until a burglary occurs.

In these cases, you may decide to implement one of your state’s tenant remedies on your own (such as rent withholding or “repair and deduct”), but you may need some coaching on how to do it right. Consulting a lawyer may be your best move. In addition, a lawyer can attempt to communicate with the landlord for you, explore the possibility of a quick settlement, and take the landlord to court, if needed.

Your Landlord Isn’t Fulfilling His Promises
Sometimes, landlords make promises to encourage hesitant applicants to rent from them. For example, if an applicant is concerned about the neighborhood crime rate, a landlord might promise to install a more effective intercom system or an electronic, gated parking lot. If the landlord later refuses to honor the promise, you may need to hire a lawyer to write a stern letter to your landlord, threatening a lawsuit unless the landlord follows through.

You’ve Been Injured or Made Ill
Accidents can happen, even at a well-run rental property. However, if an accident is the result of the landlord’s carelessness, you may have a legal case against your landlord. For example, you might break your leg after slipping on an icy patch on the front steps of your building. (Perhaps the landlord should have arranged for regular de-icing, which would have removed the danger.) Or, you may discover an outbreak of mold in your rental — only after it has made you and your family very ill.

In this case you’ll want a personal injury lawyer with experience in premises liability.

Even if your landlord didn’t personally or intentionally create the problem, there are many legal theories available to convince a court or insurance adjustor that the landlord should be held responsible. Lawyers are skilled at identifying which theories may apply and crafting arguments using them.

Your Property Has Been Damaged
Sometimes, a landlord’s failure to maintain the rental property causes damage to your personal property. For example, a landlord’s faulty wiring repair job could spark an electrical fire in your living room, damaging your furniture and other belongings.

If you have renter’s insurance, your insurance company will cover the loss and its lawyers will then seek reimbursement from your landlord. If you don’t have insurance or have inadequate coverage and the damage to your property is substantial, consider hiring a lawyer to help you obtain reimbursement from your landlord. In the alternative, you could consult with a lawyer for an hour or two to get advice on how to proceed and what arguments to make to get reimbursed.

How to Get a Lawyer’s Help
If you are in need of a lawyer, choose one with expertise in landlord-tenant matters. For help in getting a lawyer, read the article “How to Find an Excellent Lawyer” or go straight to Nolo’s Lawyer Directory.

Hiring a lawyer as “coach.” Hiring a lawyer doesn’t have to break the bank. Depending on your needs, your budget, and your confidence in your ability to handle a matter on your own, you might find a lawyer who will agree to meet with you for an hour here and there as a coach. Even limited legal help can make the difference and prove to be all you need to steer your way toward a favorable outcome.

Check for an attorney’s fees clause in your rental agreement. Many landlords include an “attorney’s fees” clause in their lease or rental agreement to prevent frivolous lawsuits. If your lease or rental agreement includes this clause, you may be entitled to get reimbursed for your reasonable attorney’s fees and court costs if you win a lawsuit against your landlord. (Even if your clause appears to provide recovery only to a victorious landlord, courts in many states will rule the clause works both ways.)

As a practical matter, if you have an attorney’s fees clause in your lease or rental agreement, you will have an easier time finding a lawyer to represent you. Since the landlord pays the lawyer’s bill if you win, a lawyer needn’t worry as much about getting paid by you. Be aware that the clause applies only to disputes arising out of the lease or rental agreement (such as evictions, rents, and security deposit issues) — not to disputes involving personal injury, discrimination, or other such matters.

Judge Ted Albert Tentative on Abuse, 707(b) Motions

By | March 14, 2012 | Chapter 7, Judges Corner | No comments

The Central District Insider thanks Christina Wilton for this tentative ruling and hopes she lets us know what happened.  (I think Judge Albert got it right by the way.  There has to be something more than the UST thinks the house payment is too high).

Tentative Ruling

This is the motion of creditor for dismissal under 11 U.S.C. §707(b)(3)(A) or (B). This requires the court to evaluate alternatively whether the filing of this bankruptcy was in good faith, or if in the totality of the circumstances abuse is demonstrated. The standard is not as the debtor has argued. Just because under the “means test” a presumption of abuse does not arise, the converse is not necessarily true, i.e. a case where the presumption is not triggered may still be determined under all of the circumstances to have been in bad faith or an abuse. Otherwise subsection (b)(3) would be superfluous. See e.g. In re Reed, 422 B.R. 214, 215, 230 (Dist. C.D. Cal. 2009). The real question is whether under these circumstances the various expenses claimed by the debtor make this case abusive. There are several expenses which have provoked comment. For example, the debtor pays for both his home mortgage and for an RV for another $2,745 per Read more…

Lew Landau Joins Dykema

By | March 14, 2012 | Firm Announcements | No comments

Lew Landau, newly annointed as a California Bankruptcy Specialist, has joined the Dykema firm in its downtown office.  Congratualtions Lew.

Orange County Bar Assn Meeting

By | March 13, 2012 | Programs | No comments

Commercial Law and Bankruptcy Section Meeting

March 22, 2012

Topic:
A Discussion of Overlap Issues Between Assignments for the Benefit of Creditors, Receiverships, and Bankruptcy
  • What is an ABC? How is an ABC similar and different than bankruptcy?
  • Under what circumstances should a debtor consider an ABC rather than bankruptcy?
  • Tips and strategies for representing secured and unsecured creditors in ABCs
  • Impact of threatened or actual bankruptcy on pending receiverships
  • Using bankruptcy to terminate receiverships
  • Receiver’s and secured creditor’s obligations in bankruptcy
  • The pros and cons of receiverships vs. bankruptcies

Speakers:

Michael B. Reynolds
Attorney at Law, Partner
Snell & Wilmer
Joel B. Weinberg
Attorney at Law, Principal
Insolvency Services Group

Advance Registration Ends and Standard Registration Begins on: March 20, 2012

Location: Tustin Banquet Center 721 W. First St. Tustin, CA

Time: 12:00 PM – 1:30 PM

Bank of America will Reduce Principal to 200,000 Underwater Homeowners

By | March 11, 2012 | Current Events | No comments

Bank of America said on Friday, March 9, 2012, that it would reduce by about $100,000 the amount owed by as many as 200,000 underwater homeowners as part of the recently announced government foreclosure settlement with top mortgage servicers.  The details are set forth in the LA Times article here.

Bankruptcy Filings in the Central District Exceed all of Texas AND all of New York in February, 2012

By | March 11, 2012 | Bankruptcy Data | No comments

Total bankruptcy filings in February in the Central District of California was 9,307, up 1% from January but 12% lower than the previous February.  To put the total into context, the TOTAL filings in February, 2012 for all four districts in Texas AND all four districts in New York was 7,830.  Of the total here, 2,256 were chapter 13s or about 24% of the total.  This means each trustee received about 450 new cases in February.

Central   District of California
2008 2009 2010 % 2011 2012
Jan 3,694 6,004 9,013 50% 10,868 21% 8,835 -19%
Feb 3,787 6,971 9,659 39% 10,631 10% 9,307 -12%
March 4,381 8,529 12,840 51% 13,543 5%
April 5,023 8,512 12,114 42% 12,087 0%
May 5,177 8,967 11,906 33% 11,669 -2%
June 5,351 9,595 12,190 27% 11,718 -4%
July 5,983 9,894 12,737 29% 10,418 -18%
Aug 6,195 9,748 12,720 30% 11,496 -10%
Sept 6,290 9,214 12,412 35% 10,006 -19%
Oct 6,364 10,322 11,753 14% 9,887 -16%
Nov 6,029 9,462 10,900 15% 9,099 -17%
Dec 6,615 9,864 10,925 11% 9,089 -17%
64,889 107,082 139,169 30% 130,511 -6%
% of total 0.059 0.075 0.089 0.095

 

Prof. Katie Porter’s Analysis of the Financial Management Program

By | March 8, 2012 | Chapter 7 | No comments

I have been as big a critic as anyone about the silliness of the pre and postpetition counseling requirements.    The prepetition counseling is completed 99% of the time after the decision to file bankruptcy has been made and is usually done immediately prior to the actual filing.  A study by Prof. Katie Porter however has turned my eye a little about the postpetition financial management course.  You can find her analysis on the blog Credit Slips.  Here is a portion of the post.

Evaluating Mandatory Financial Education in Bankruptcy

posted by Katie Porter
Dr. Deborah Thorne and I have a new study that looks at how debtors themselves feel about the mandatory financial education course. It is a chapter in this book, Consumer Knowledge and Financial Decisions (ed. Douglas Lamdin, Springer, 2012) and available to read here. In the 2007 Consumer Bankruptcy Project, we asked debtors whether they believed that the information from the financial education class 1)would what they learned in the financial education class have helped them avoid bankruptcy originally, and 2) would help them avoid financial trouble in the future. While only 33% thought a financial instruction course similar to the one required of bankruptcy debtors could have helped them avoid filing, 72% thought it would help them avoid future financial trouble.  As we report in detail in the chapter, some demographic groups were much more positive about the value of financial education than others.
About half (48.7%) of minority persons who filed bankruptcy, for example, thought the course would have helped them avoid bankruptcy; for whites, the response was 27.6%, a little more than half.  Similarly, there significant differences in the perceived value of financial education–both to have helped prevent their bankruptcy and to help them keep out of future financial trouble.  Those without a college degree, those aged under 25 years or 65 years or over, and those who less familiar with their household finances believed the course had more value.  Note that the point is not that the course actually would have or will help debtors; the measure here is debtor’s perception of value, which I think is well worth evaluating in a system that is designed to rehabilitate debtors.

Shinbrot’s Five Rules of Litigation

By | March 8, 2012 | Programs, Specialist Information | No comments

We had a great cdcbaa meeting on Saturday.  Jeff Shinbrot and Judge Mitchell Goldberg (Ret.) discussed dischargeability litigation.  Jeff regaled us with his five rules of litigation.

  1. Keep your judge happy.  File your motions timely, show up to hearings on time, solve your discovery disputes without court intervention, be professional, open minded.  Judge Goldberg commented that a better way of saying rule 1 is “Keep your judge neutral.”
  2. Develop a good story.  Trials, he said, are about telling a story.  Make sure you have your story straight, and present it at trial.  Judge Goldberg commented that it would be nice if the lawyers understand the rules of evidence and use the rules to tell the story.
  3. Know the local rules and the local, local rules.  Look up your judge’s page on the bankruptcy court website.  Ask around about the judges preferences.  Follow the local rules specifically made for trials, like lodging depo transcripts, timely pre-trial orders, the judge’s trial rules.
  4. Learn and follow FRCP 26.  This is huge.  Rule 26 requires disclosure throughout the process without a request by the other side.  It requires continuing disclosure and will result in striking your evidence if you have not followed rule 26.
  5. Have a good trial notebook.  Your trial notebook will include the entire trial.  It will remind you of what you need to do.  All the witnesses, all the exhibits, checklists, legal briefs, opening and closing statements.  In a trial, he said, you are caught up in the moment, you are focusing on the witness in front of you and the judges comments at the time.  A trial notebook will help you remember to ask the court to “admit” the exhibits for example.

San Fernando Valley Bar Program – March 22, 2012

By | March 5, 2012 | Chapter 11, Programs | No comments

Jon,

On Thursday, March 22nd, from 12 noon until 1:15 p.m., the San Fernando Valley Bar Association will be putting on what I believe is a highly needed program, especially for bankruptcy attorneys new to chapter 11 practice or who are considering trying their hands at chapter 11.

As attorneys, we learn the law and how to apply it.  Chapter 11 is foremost not the practice of law; it is the practice of understanding.  Understanding people, e.g., the client or the client’s principal, understanding why they have failed and what we can do to help create success out of failure, understanding the creditors and seeing what we can do to bring them on board for the reorganization, and giving understanding the bankruptcy judge who will have reason to support the debtor too.

The attorney needs to set the rhythms of a case but the rhythms do not come from the law.  The things we learn in law school really do not help us in chapter 11.  What we learn in other areas of bankruptcy practice do not help us much in chapter 11 either.  We set the rhythms, we make a difference and we help our clients succeed by understanding business, understanding people and, of course, understanding the law.

Read more…

Update Chapter 20 Lam Motions

By | February 2, 2012 | Appeals, Cases, Chapter 13, Judges Corner | No comments

Judge Catherine Bauer ruled today that a discharge is required for a successful Lam Motion.     

NACBA filed an amicus brief on this issue for an appeal in the 7th Circuit District Court.  See attached.

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