SEARCH & SEIZURE (cell phone & computer records)
SEARCH & SEIZURE (Warrant Procedure)
Robey v. Superior Court (2011 DJDAR 15551) Fed Ex package was going nowhere, and there was ample time to obtain a warrant. The opinion noted that in California Supreme Court case, People v. McKinnon (1972) 7 Cal.3d 899, the officer was allowed to seize the package as he did, but once he seized it, he was required to hold it unopened until he obtained a search warrant, unless there were exigent circumstances.
SEARCH & SEIZURE (Curtilage)
LAW ENFORCEMENT MISREPRESENTATION
SUMMONS & PRIVILEGE
In re GRAND JURY SUBPOENA FOR
ATTORNEY REPRESENTING CRIMINAL DEFENDANT Jose Evaristo
(5th Cir 1990) 913 F.2d 1118 59 USLW 2245, 31 Fed. R.
Evid. Serv. 1167, No. 89-6252. Southern District of Texas issued a
subpoena to Mike DeGeurin directing him to appear on September 29 and
produce records dealing with the fee arrangement he had made for
representing Reyes-Requena. DeGeurin filed a motion to quash, supported
by his affidavit. Amici curiae representing various organizations moved
to intervene and support DeGeurin. Neither DeGeurin nor the government
proffered evidence for in camera inspection. Position: prosecutor
now seeks to determine the amount of DeGeurin's fee and the identity of
the person who has agreed to pay it. It is De Geurin's opinion and
belief that for me to reveal the amount of the fees, how it was paid,
fee agreements and whether a third party was involved would violate my
client's Fifth and Sixth Amendment rights, would violate his due process
rights to a no-bill by the Grand Jury, could provide evidence against
client as an "affirmative link" to the contraband sufficient to assure
his indictment and conviction, could subject him to greater penalty
under the Federal Sentencing Guidelines and would be in violation of
Canon 4 of the Code of Professional responsibility. In addition,
responding to the complaint that DeGeurin's grand jury testimony would
force him to be a witness against his client and would provoke his
disqualification. Government stated that it would not "use"
"fee information" against Reyes-Requena before the grand jury or at his
trial. Judge Hittner's thoughtful opinion rejected the last two
grounds urged by DeGeurin, but it found the first three arguments
persuasive. Judge Hittner particularly relied upon his interpretation of
Jones as establishing an attorney-client privilege that shielded
DeGeurin from revealing fee information concerning Reyes-Requena,
including specifically whether a third party benefactor had paid
Reyes-Requena's fees. He found the timing of the issuance of the
subpoena, i.e., during the pendency of criminal proceedings against
Reyes-Requena, to be relevant. He found that the attorney-client
privilege was not being invoked as a shield for continuing illicit
JOSEPH W. SULLIVAN v. WILLIAM F. HARNISCH (Ct. Appeals N.Y. 5/8/2012) 19 N.Y.3d 259 (2012); 2012 NY Slip Op 3574 "central professional purpose" for associating with the employer was "the lawful and ethical practice of law" and thus the ethical limitation may be imposed upon the employer - employee relationship.
U.S. v. Richey (9th Cir. 2011) 09-35462 Conservation easement appraisal work file is NOT privileged.
Article 9's Bankrupt Proceeds Rule:
by G. Ray Warner. UCC definition changes
bankruptcy? "proceeds" under 1978 ucc 9 rules. 552(b)(1) exception added in
1994, pulled rents out of postpetition assets & added hotel use and occupancy
fees (enlarging post
petition property that may be subject to prepetition liens). A security interest may extends to property that constitutes proceeds of prepetition property. Proceeds = conversion and not generation or arisen. State NB rules limit the lien and BK rules cannot expand it, (NB filter).
In 2000, revised article 9 makes it easier to securitize a greater number of types of assets 9-102; "account"= right to monetary obligation. Old "general intangibles and instruments" are now "accounts." "Collateral transfer" or "true sale"
In re Laube 152 B.R. 260 (1993) Wisconsin Trucker's Sleeper Rig is a homestead
Volpicelli v. US (9th Cir. 2015) No. 12-150029 7426(a)(1) & 6532(c) 9month statute after levy. Held, 6532(c) is not jurisdictional and equitable tolling applies.
Rago Development 1031 Exchange Hearing Summary
REQUIRED RECORDS DOCTRINE - EXCEPTION TO 5TH AMENDMENT
Required Records Doctrine trumps 5th
M.H. v. U.S., (CA 9 8/18/2011) 108 AFTR 2d 2011-5880, http://www.ca9.uscourts.gov/datastore/opinions/2011/08/19/11-55712.pdf
TAX & ALTER - EGO
United States v. White Eagle (CA 9th Cir 2013; 11-30352) Ninth Circuit Strictly Construes 18 U.S.C. Section 1001 Criminal Liability For Material Omissions
Sekhar v. United States (2013) Is the effort to try and get your employer to recommend an investment the initiation of 'obtaining of property from another' under 18 U.S.C. s 1951(b)(2) -- the Hobbs Act? No.
USA V. UBALDO GONZALEZ-AGUILAR 12-50048 Los Angeles District Court Criminal 06/13/2013. Illegal recidivist and prosecution make deal; deal rejected by judge 57 instead of 46 months given.
People v. Sullivan , District: 2 DCA , Division: 8 , Case #: B237734; Opinion Date: 6/17/2013 , DAR #: 7799, Case Holding: Double jeopardy bars a retrial on a substantive offense when jurors reached a verdict on the substantive offense but deadlocked as to an enhancement.
Nardell U. CARTER v. Daniel McCARTHY (CA9th 1986) No. 85-6299. If the condition of parole is not made part of the plea bargain, the term agreed upon is the outer limit of the sentence. Held: court's failure to inform him of the mandatory parole term at the time of his plea violated his due process rights.
Alleyne v. US June 17, 2013. Petitioner Alleyne was charged, as relevant here, with using or carrying a firearm in relation to a crime of violence, 18 U. S. C. §924(c)(1)(A), which carries a 5-year mandatory minimum sentence, §924(c)(1)(A)(i), that increases to a 7-year minimum “if the firearm is brandished,” §924(c)(1)(A)(ii), and to a 10-year minimum “if the fire - arm is discharged,” §924(c)(1)(A)(iii). In convicting Alleyne, the jury form indicated that he had “[u]sed or carried a firearm during and in relation to a crime of violence ,” but not that the firearm was “[b]randished.” When the presentence report recommended a 7-year sentence on the §924(c) count, Alleyne objected, arguing that the ver - dict form clearly indicated that th e jury did not find brandishing be - yond a reasonable doubt and that raising his mandatory minimum sentence based on a sentencing ju dge’s finding of brandishing would violate his Sixth Amendment right to a jury trial. The District Court overruled his objection, relyin g on this Court’s holding in Harris v. United States , 536 U. S. 545, that judicial factfinding that increases the mandatory minimum sentence for a crime is permissible under the Sixth Amendment. The Fourth Circuit affirmed, agreeing that Alleyne’s objection was foreclosed by Harris . Held : The judgment is vacated, and the case is remanded.
Taylor v. United States, 495 US 575 (1990) "Burglary" as defined in § 924(e) has no "single accepted meaning" in federal law and this lack of uniformity disrupts the relevance of defendant's prior conviction. Held, this determination of whether a prior burglary conviction counts under the Aremed Career Criminal Act must be analyzed by each state's definition, and rules and must employ a formal categorical approach, looking only to the fact of the prior conviction and the statutory definition of the predicate offense and also, in a narrow class of cases, the charging documents and jury instructions, to insure that any sentencing enhancement based upon a prior conviction squarely fits the parameters under which the enhancement may be found.
US v. ROBERT CEPHAS BROWN, JR., (9th Cir 2014) No. 12-10227 (US v. DUANE
ALLEN EDDINGS), Beware of ancillary charges, where no damages charged
(sentencing --- but does it also go to dropping or negating the charge?)
Here the remand was to "find out how much?"
SHEPARD V. UNITED STATES (03-9168) 544 U.S. 13 (2005) 348 F.3d 308. Government sought to increase his sentence from a 37-month maximum to the 15-year minimum that §924(e), popularly known as the Armed Career Criminal Act (ACCA), mandates for such felons who have three prior convictions for violent felonies or drug offenses. Shepard’s predicate felonies were Massachusetts burglary convictions entered upon GUILTY PLEAS. Reference was made to Taylor v. United States, 495 U.S. 575, Refusing to consider the 15-year minimum, the District Court found that a Taylor investigation did not show that Shepard had three generic burglary convictions and rejected the Government’s argument that the court should examine "police reports" and "complaint applications" in determining whether Shepard’s guilty pleas admitted and supported generic burglary convictions. The First Circuit vacated, ruling that such reports and applications should be considered. On remand, the District Court again declined to impose the enhanced sentence. The U.S. Supreme Court Held: The First Circuit is vacated, reversed and remanded.
Descamps v. U.S. No. 11–9540. Argued January 7, 2013—Decided June 20, 2013 Armed Career Criminal Act prior burglary conviction inapplicable where state statute covered a broader range of conduct than "common law"/"generic" burglary which takes it out of the ability for use under ACCA.
U.S. v. Briant LAURIENTI (9th Cir. 2013) We have consistently held that “[ t] here is no general right to an evidentiary hearing at sentencing .” United States v . Real-Hernandez , 90 F .3d 3 56, 362 (9th Cir. 1996). When a defendant disputes a fact relevant to sentencing , the district court need only provide the parties a “‘reasonable opportunity ’ to present information to the court.” Id . (quoting F ed. R. Crim. P. 32(c)(3)(A)).
U.S. v. Edgar J. Steele (CA 9th Cir 2013) Handyman-Pipe-Bomb maker hired for attempts on employer's wife and mother in law. After first failed attempt, the bomber cooperates with the FBI. Hearing can be denied where the motion is un-developed.
U.S. v. Sandra Nickerson (CA 9th 2013) No. 12-10534 Federal Speedy Trial Act does not apply to misdemeanors.
U.S. v. Cameron Reed (CA 9th. Cir 2013) No. 12-10420 .The panel affirmed a conviction by conditional guilty plea to violating Nev. Rev. Stat. § 484C.110(3) ( g ), which prohibits driving with over 2 ng /ml of marijuana in the blood, assimilated into federal law under the Assimilative Crimes Act, 18 U.S.C. § 13, in a case in which the defendant was arrested after driving erratically on a federal road in the Lake Mead National Recreation Area. Complete discussion of the act.
U.S. v. Valenzuela-Arisqueda (CA 9th Cir. 2013) 11-10596 : Plea Jeopardy: Ok to reject the plea, but must not vacate the plea, after acceptance. Defendant had options of Trial, plead, or new agreement.
U.S. v. Hares Ahmadzai: (CA 9th Cir. 2013) 11-10451: Periods of
(state) incarceration toll periods of supervised release
United States v. (Joan & Brenda) Wilbur , 674 F.3d 1160, 1179 (9th Cir. 2012), No withdrawas of guilty plea if remanded for re-sentencing.
PAROLE & PROBATION
Northern District Research Binder (PDF)(WPD) (Thank you Judge Novack)
In re Renee Michelle Schwalb
(DC NV 2006) BK-S-05-17766-LBR Judge Markell pens a fascinating history of
pawnbroking and the requirement that under Nevada law, holding an unrecorded
title is not effective under UCC-9.
LeMai and Pace filed a malpractice action
against their former lawyers in Alaska state court in October of 1987 Pace
did not amend his bankruptcy schedules of assets and liabilities to include
the law suit. In May of 1988, LeMai filed her own Chapter 7 petition in
bankruptcy in California, where she had moved following her divorce. LeMai
failed to include her Alaska state claim for legal malpractice as an asset
on her schedule of assets and liabilities.3
Believing LeMai's estate to be devoid of assets, the trustee allowed an
order of discharge to be entered in September of that year. Five months
later, the California bankruptcy court closed LeMai's case. When the
defendant attorneys in the state court action (“the Defendants”) learned of
LeMai and Pace's nondisclosures, they urged the Appellants to inform the
trustees in the two closed bankruptcies that the malpractice action
constituted an asset of their respective bankruptcy estates. The U.S.
Trustee in turn notified Harold S. Taxel (“Taxel”), former trustee in the
LeMai bankruptcy. Taxel successfully petitioned the California bankruptcy
court to reopen LeMai's case, and on February 7, 1991, the bankruptcy court
reappointed Taxel as trustee. Taxel immediately informed the Appellants
that LeMai's bankruptcy estate had been reopened, explained that her
interest in the legal malpractice action constituted property of the
bankruptcy estate, and warned that any further prosecution of the Alaska law
suit would constitute a violation of the Bankruptcy Code's automatic stay
provision. The Appellants ignored the warning and continued to prosecute
the Alaska case. Held: The BAP's conclusion that Taxel may recover his
costs and attorney's fees as damages under 11 U.S.C. § 105(a) is AFFIRMED
using the Pace precedent.
Drummond v. Welsh (In re Welsh), 465 B.R. 843 (B.A.P. 9th
Cir. 2012) Big Ticket is the Ticket for Chapter 13.
re KVN Corporation, Inc., (9th Cir BAP. 7/11/2014), Carveouts
“BAP” reversed denial of motion for approval of a stipulation between
trustee and secured creditor to liquidate fully encumbered property in
exchange for a carve out from the lien proceeds paid to the bankruptcy
estate. Held: carve-outs presumed improper, but the bad presumption
can be rebutted: (1) the trustee is performing basic duties; (2) benefit to
the estate due to distribution; (3) carve-out terms fully disclosed.
FDIC v. Siegel (In re Indymac Bancorp, Inc.), No. 12-56218 (9th Cir.
Apr. 21, 2014) $55 million tax refund paid to a bank holding company
on account of losses suffered by a defunct subsidiary IS a 11 U.S.C. §
541(a) asset of the holding company’s bankruptcy estate.
Controlled group upflow of tax attributes only allowed outside of
bankruptcy. Tax Sharing Agreement (“TSA”) created debtor
relationship. Argument: (1) federal common law establishes a
presumption that a parent company receiving a tax refund attributable to
the business operations of a subsidiary holds the refund in an implied
or constructive trust for the benefit of the subsidiary; (2) Trustee
presumptively rejected the TSA and thus the TSA is void ab initio. (3)
TSA violated federal banking law by retaining the Refund & created a de
facto loan by the Bank to an affiliated entity without collateral or the
payment of market interest—a violation of 12 U.S.C. § 371c.
Counter Argument: In response, (1) TSA altered the rights in any
tax refund, (2) no significant federal concerns or conflicts with state
common law—two necessary prerequisites to the application of any federal
common law principal, (3) it was error to assume that Bank was the true
and rightful owner of the Refund, & (4) rejection of the TSA was
immaterial as the rejection of the TSA merely constituted a breach
potentially entitling the FDIC to damages for breach of contract.
Holding: Focus was on Bob Richards-- & whether the TSA created a
debtor-creditor relationship (the Trustee’s position) or whether Bob
Richards created a presumptive agency relationship between Bancorp and
the Bank (the FDIC’s position). Held: the TSA created a debtor-creditor
relationship between Bancorp and the Bank. District Court affirmed.
Donna Marie WALLS,, Plaintiff-Appellant, v. WELLS
FARGO BANK, N.A., Defendant-Appellee.
(9th Cir. 2002) No. 00-17036.
Barry Hammond v. Adam Ross Paul Inc.
(N.D. TX 6-18-2014) collectively, 143 phone calls were placed to Plaintiff’s
phone number (972) 285-6920, from the Defendant’s phone numbers (877)
838-5002, (877)838-5005, and (877) 838-5008, after Debtor received his discharge.
Defendants used an automatic telephone dialing system and a prerecorded
voice to deliver a message when contacting Plaintiff. Further:
Defendant Adam Ross Paul is a successor-in-interest to Defendant Anderson
Randolf Price LLC, and carries on the exact same business, collecting on
accounts that Anderson Randolf Price LLC previously collected on, with the
same individual principals, and the same phone numbers. The court finds that
there was no legitimate business purpose for creation of the new entity.
Accordingly, this court holds that Defendants Adam Ross Paul, Inc. and
Anderson Randolf Price, LLC are to be treated as one and the same for legal
purposes, under either alter-ego principles, corporate sham principles, or
other, similar veil-piercing principles. Held: Anderson Randolf Price
L.L.C., should pay Plaintiff $200.00 for each of 140 telephone calls,
totaling $28,000.00, to compensate Plaintiff for Defendants’ actions and
omissions in an attempt to collect a debt in willful violation of the
Litton Loan Servicing v. Robert Blendheim
(9th Cir 2014) No. 13-35354.Ocwen
Loan Servicing LLC appeals the district court's affirmance of the bankruptcy
court's orders regarding avoidance avoidance of a lien in a chapter 13 case.
[2:11-cv-02004-MJP] Q: Stripping of the
lien from the debtors property is only contingent upon successful completion
of the debtor’s chapter 13 plan, rather than upon discharge?
Crawford vs. LVNV Funding, LLC, 2014 Westlaw 3361226 (11th Cir.)
Just as LVNV would have violated the FDCPA by filing a lawsuit on stale
claims in state court, LVNV violated the FDCPA by filing a stale claim in
re Darrel V. SHANK, (Darrel V. SHANK, Plaintiff-Appellee, v. WASHINGTON
STATE DEPARTMENT OF REVENUE, EXCISE TAX DIVISION,
No. 85-4042. 792 F.2d 829 (9th Cir 1986) Background on Washington's sales
tax law, and in which it was held to be a trust fund.
Wu v. Markosian (In re Markosian) – 9th Cir. BAP (3/12/14). The
United States Bankruptcy Appellate Panel of the Ninth Circuit (the “BAP”)
has affirmed a bankruptcy court’s ruling that individual debtor’s
chapter 11 post-petition earnings which are property of the estate under § 1115 revert to him or her upon a subsequent conversion to chapter 7.
Clark v. Rameker 6/12/14 (2014) Inherited IRA is not exempt, &
not “retirement funds” per 11 U.S.C. §522(b)(3)(C).
Spokane Law Enforcement Federal Credit Union v. Barker (In re Barker),
(9th Cir. BAP March 28, 2014) disgruntled employee” failed to timely
file the credit union’s proofs of claim. Excusable neglect
standard not applied under Bankruptcy Rule 9006(b)(1) as to proofs of
claim in chapter 13 cases.
Mingueta, 338 B.R. 833 (Bankr. C.D. Cal. 2006) Budget and Credit
Counseling prior to filing was not done. Having neither obtained
credit counseling nor established grounds for a temporary or permanent
waiver of § 109(h)(1)'s credit counseling requirement, Mingueta was
ineligible to be a debtor when his chapter 13 petition was filed on
January 4, 2006. Accordingly, Mingueta's request for an exemption from §
109(h)(1)'s credit counseling requirement is denied and the case will be
dismissed without prejudice.
Boyle Avenue Properties v. New Meatco Provisions, LLC (In
Re New Meatco Provisions, LLC), (9th Cir BAP. 5/30/14)rejection of a
commercial lease retroactive to the date of the filing despite subtenant
of the debtor still in possession of the premises due to quick action,
no delay and expedited hearing request.
RONALD A. NEFF, v. DOUGLAS J. DENOCE, (In
re: RONALD A. NEFF) (9th Cir BAP 2/1/2014) Nos. CC-12-1664-KiTaD,
CC-13-1017-KiTaD, (cross appeals), Bk. No. 11-22424-VK. The key to
disability is inability to perform useful gainful work at the time of
filing of the current bankruptcy case. The homestead exemption can only
be denied by a bankruptcy judge. Sloppy records submission can
harm a case. Once Debtor produces and begins to carry the burden,
the creditor should clearly produce sufficient evidence to rebut,
and this was not done. CCP § 704.730(a)(3)(B) homestead exemption was
improperly denied. Transactions that were reversed without the
direct action of the trustee are not subject to § 522(g) limits of the
ability of a debtor to claim an exemption where the trustee has
recovered property for the benefit of the estate. Under § 522(g)(1), a
debtor may claim an exemption where the trustee has recovered property
under §§ 510(c)(2), 542, 543, 550, 551 or 553 only if (1) the property
was involuntarily transferred, and (2) the debtor did not conceal the
transfer or an interest in the property.
Richardson v. Melcher (In
re Melcher) (9th Cir. BAP April 11, 2014). Near-Vexatious
litigant that drained the estate to control Stonewall property that
should have normally went to trustee sale. Because Vexatious
Litigant status was not confirmed, the court ruled that a ban on the
debtor's filing pleadings could not be imposed. Held: Bankruptcy court
abused its discretion in not allowing the "Lack of Standing Motion"
because it failed to avail itself of 28 U.S.C. §1651(a), aka the “All
Writs Act,” which enabled bankruptcy courts, to issue all writs
necessary or appropriate in aid of their respective jurisdictions”.
The court cited DeLong v. Hennessey, 912 F.2d 1144, 1146 (9th Cir.
1990). The court cited factors from Safir v. U.S. Lines, Inc., 792
F.2d 19 (2nd Cir. 1986), that should have been considered.
Schwartz-Tallard v. America’s Servicing Company (In
re Schwartz-Tallard), 751 F.3rd 966 (9th Cir. April 16, 2014)
Distinguishes rule of Sternberg v Johnston, 595 F.3d 937 (9th Cir.
2010), cert. denied 131 S. Ct. 102 (2010), and holds that fees
incurred in defending ASC’s appeal of the order enforcing the stay were
“actual damages” under Section 362(k)(1). Under Sternberg,
attorneys’ fees incurred in prosecuting a damages action will not serve:
(1) debtor breathing spell; and (2) to protect non violating creditors
from each other. Defending an appeal of stay violation order was
more like a shield.
Viet Vu, VIET VU and Mai Vu Debtor Appellants v. John T. Kendall,
Chapter 7 Trustee, Appellee. 245 B.R. 644 (February 8, 2000); BAP No.
NC-99-1523-RyMeR. Bankruptcy No. 92-50827-JRG-7. Pursuant to § 541 and
Ninth Circuit precedent, the Property became property of the estate as
of the Filing Date and any postpetition appreciation inured to the
benefit of the estate. Further, the assertion that there was "no
equity available to the estate once their postpetition mortgage payments
and improvements to the Property were reimbursed as an administrative
expense claim" was rejected. "[B]ecause Debtors had not yet sought
approval of their administrative expense claim, any amount that they
claimed was merely speculative. Further, Debtors provided no evidence
that the source of their payments was their postpetition income."
Gebhart, 621 F. 3d 1206 - Court of Appeals, 9th Circuit 2010
debtors filed for Chapter 7 bankruptcy at a time when the value of the equity in their homes was less than the amount they were eligible to claim under the state or federal homestead exemption. Discharge on December 12, 2003. However, the bankruptcy case was not closed, and on November 10, 2006, the Trustee asked the bankruptcy court to approve the appointment of a real estate broker to sell the home for the benefit of the estate. Held: (1) case was left open and trustee can act even much later, (2) no abuse or estoppel for acts of the trustee, and (3) post filing appreciation, even if much later inures to the estate.
v. Siegel, Chapter 7 Trustee, __ U.S. __, 134 S.Ct. 1188, 2014 WL
813702 (March 4, 2014). Trustee who prevailed in a nondischargeability
action may not surcharge a debtor's exemptions making those funds
available to defray attorney’s fees incurred by Siegel in overcoming
Law’s fraudulent misrepresentations.
Benefits Ins. Agency v. Arkison
__ U.S. __, (June 12, 2014) Stern claims create statutory “gap,” but
which may be closed by severability feature with the balance of claims
not affected. (Appeal of the 9th Circuit Bellingham decision)
Brosio v. Deutsche Bank Nat’l Trust Co. (In re Brosio), BAP No.
NC-13-1119-KiDJu (9th Cir. BAP Mar. 7, 2014). Prevailing party
requires a Judge's finding. Changing your proof of claim is akin
to a dismissal.
In re Melbourne John CIOTTA, Jr., Linda Lee Ciotta, dba H & M Coatings,
(IN RE CIOTTA) 222 B.R. 626 (CD CA Bankr. 1998) No. LA 98-17122-ER
United States Bankruptcy Court, C.D. California, Los Angeles Division.
July 15, 1998. Debtors claim a $28,000 exemption for a prepetition
sexual harassment lawsuit, but shows no evidence of actual damages.
Bankruptcy judge very kindly allows debtor extra time to bring such
proof, even though it appears to have a de minimis probability.
Dale v. Maney (In re Dale), 505 B.R. 8 (B.A.P. 9th Cir. 2014)
excluding the husband’s inheritance proceeds from the chapter 13 estate
pursuant to 18 U.S.C. § 541(a)(5)(A) and 18 U.S.C. § 1306(a)(1) is
denied. Chapter 13 specific language trumps 541(a)(5)(A)’s 180-day
limit and is property of the estate.
In re Dennis J. Cook (9th Cir Bap 2008) Later inheritance from trust
is not part of the bankruptcy estate
In re Rader, 488 B.R. 406 (9th Cir. BAP 2013) Deficiency claim is
not properly disallowable simply because of failure to file suit. (1)
MRS should state that the relief from stay include the deficiency
judgement suit, (2) Judge can clarify whether Judge would prefer to have
deficiency tried as a state court action or adversary proceeding.
In re Fitness Holdings International, Inc. 714 F.3d 1141 (9th Cir
2013) Intercorporate loans can be recharacterized as equity investments in the
context of a fraudulent transfer action. Here, a corporation
"repaid" money to a sole shareholder for a purported loan.
In re Pavelich, 229 BR 777. BAP 9th Cir. 1999 violation of the
discharge injunction voids a postdischarge judgment
Blade Energy PTY LTD.; Claire Energy PTY
LTD.; Derek M. Willshee; James R. Zadko v. Jacqueline Rodriguez (In
re Jacqueline Rodriguez) (9th Cir. BAP December 19, 2013) BAP No.
CC-13-1256-DKiTa. Dismissal of plaintiff creditors' opposition to
discharge adversary proceeding with prejudice as a sanction for their
failure, through counsel, to comply with initial discovery rules and the
bankruptcy court’s local procedural rules is affirmed. “Early
Meeting of Counsel and Status Conference Instructions” (“Rule 26
Instructions” to meet at least 21 days before the status conference date
“Initial Status Conference” & comply with LBR 7026-1 was required.
Anil Sachan v. Benjamin Moonkang Huh (In re Benjamin Moonkang Huh),
506 B.R. 257 (9th Cir. BAP March 11, 2014) vicarious liability for fraud
in a discharge & Ninth Circuit BAP Rule 8012-2(a), (c) & (d)
In re Vassau, 499 B.R. 864 (Bankr. S.D. Cal. 2013) Preference to
oversecured senior creditor which can place junior undersecured
creditor in a better position IS a voidable transfer. Put another way,
but for the Transfers, Junior Lienholder would have a secured claim of X
and an unsecured claim ofY. Due to the Transfers, Junior Lienholder has
a secured claim of X plus $41,716.45 and an unsecured claim of Y minus
$41,716.45. (In theory, but for the existence of the junior
undersecured creditor, money paid to the senior oversecured creditor
would free up further property equity for availability to the
Defoor v. Rafel Law Group PLLC (In
re Defoor) (BAP 9th CIR 2014) discharge denied (727 (a)(5)) where
debtor did not account generally for the loss of pre-bankruptcy assets.
Debtor must respond to a level of comfort of the bankruptcy court. Cited
Retz v. Samson (In re Retz), 606 F.3d
1189, 1205 (9th Cir 2010), creditor has the initial burden of
showing that (1) owned assets near petition date, then (2) not owned at
petition date & (3) documents don't explain the loss. Vague answers
don't cut it. Bell v. Stuerke (In re Stuerke), 61 B.R. 623, 626 (9th
Cir. BAP 1986) (citing In re Chalik, 748 F.2d 616, 619 (11th Cir.
No double-dipping for damage awards where it was attempted to
obtain a fraudulent transfer judgement AND a judgement damage award for
thwarting collection cannot add on further damages. In Renda vs.
Nevarez, 223 Cal.App.4th 1231, 167 Cal.Rptr.3d 874 (2014).] See
immediately below. An $800,judgement prevented a further judgement
for damages to be added on.
Shapiro v. Henson (9th Cir. January 9, 2014), Ninth Circuit
held that the trustee’s turnover power is NOT restricted to recovery of
property from entities having only current possession. Debtor here
had a checking account with $6,955.19 and several outstanding checks
on the date of filing. The outstanding checks were voidable, the
estate was entitled to the full $6,955.19 amount at filing (minus any
exemptions) and any checks not cleared on filing day were avoided.
This case provides ANOTHER excellent motivation (and indeed,
justification) for debtors to clean out their bank accounts BEFORE
filing so that they can control and have certain knowledge of their cash
on hand at the day of filing. If it was bad practice to leave an
account in place on the day of bankruptccy petition filing, Shapiro v.
Henson makes it a TERRIBLE practice. Closing out bank
accounts just before petition filing clears a number of potential
Bendetti v. Gunness (In re Gunness)(9th Cir. BAP January 16, 2014),
imonies owed directly to ex-spouse's attorney is dischargeable pursuant
to 11 U.S.C. § 523(a)(5) and (15) because the debt did not relate to a
debt owed to a spouse, former spouse or child “of the debtor.”
Debtor was drawn into a dispute between debtor's husband's ex-spouse
based upon fraudulent transfer using California Rule of Court
5.158(b).which permits the joinder of a party holding an interest in
property alleged to be community property. Then, debtor filed for
bankruptcy relief, and brought an adversary proceeding for declaratory
relief that the judgment was not subject to either Sections 523(a)(5)
(support awards) or 523(a)(15) (non -support domestic relations
awards). For debts under 23(a)(5) or (a)(15) to apply, a familial
relationship must bethe debt must be for the benefit of a spouse, former
spouse or child of the debtor ; and in this case, the relationship
between the debtor and the debtor's husband's ex-wife was not such a
Rivera v. Orange County Probation Dep’t (In re Rivera),
Case No. CC-13-1476-PaKiLa (9th Cir. BAP June 4, 2014), county bill for
food, clothing, & medical care for incarcerated minor are
nondischargeable “domestic support obligations” of the parents per 11
U.S.C. § 523(a)(5).
v. Starkus (In Re Chionis), BAP No. CC-12-1501-KuBaPa, slip op.,
2013 WL 6840485 (9th Cir. BAP Dec. 27, 2013). discharge injunction under
11 U.S.C. § 524(a)(2). Creditor cites “no discharge” provisions
contained in the guaranty and proceeds, after discharge, to file small
claims court actions.
The bankruptcy court, based on a diverticulated "technical" (delusional?) subjective belief, inferred that creditor did not actually know that the discharge injunction applied to the debt. Bankruptcy court cited Ninth Circuit Court of Appeals decision in ZiLOG, Inc. v. Corning (In re ZiLOG, Inc.), 450 F.3d 996, 1007 (9th Cir. 2006), which required debtors to prove by clear and convincing evidence that the alleged contemnor KNEW and INTENDED the action. ZiLOG was distinguished as a technical "notices" case in which the debtor muddied the water by sending confusing notices to employees about their bankruptcy rights. Held, the debtor clearly showed the appropriately clear and convincing evidence.
Janura et. al. v. Saridakis (In
re Saridakis), BAP Nos. 13-1028 and
13-1029-(consolidated), slip op., 2013 Bankr. LEXIS 5194 (9th Cir. BAP Dec.
10, 2013) discovery of a default judgment after BK trial won't
displace the BK courts special finding on dischargeability.
SALAHELDIN ABDELGADIR and AFAF WAHBI In re Abdelgadir (455 BR 896 – Bankr.
Appellate Panel, 9th Circuit, 2011) Published Opinion NV-11-1021-HJoJu
08/16/2011. When is "primarily a residence" triggered, AND what if the
residence is also a business?
Hughes v. Fukishima (In
re Raj Kamal Corporation), 11-36184, EC-12-1648-KiPaJu (BAP 9th Cir.
Dec. 17, 2013) attorney-client privilege, which is tenuous to non-existent
in bankruptcy cases anyway (as well as other privacy laws) fall to the
obligation under Rule 2014 of the Federal Rules of Bankruptcy Procedure to
disclose all connections with regard to any professionals performing work
with respect to any bankruptcy case
In re Brown,
2013 WL 6571675 (9th Cir. BAP Dec. 13,
2013) (unpublished). Debtor & Trustee, brought an action for wrongful
foreclosure under federal Consumer Protection Act & Fair Debt
Collection Practices Act (the "FDCPA"). But here, bank maintained
custody and control of the endorsed-in-blank note from loan origination.
Judgement for bank.
Conway v. Nat’l
Collegiate Trust (In re Conway), B.A.P. 8th Cir., No. 13-6016, 8/21/13).
Loan-by-Loan analysis of STUDENT LOANS is required. Really more of a partial discharge exception argument when loans are NOT consolidated.
Carpenters Pension Trust Fund for Northern California v. Michael Gordon Moxley
Nol 11-16133 (Aug 20, 2013)
Core v. noncore, The district court also rejected the Fund’s contention that Moxley had waived his right to discharge the debt in bankruptcy by failing to contest the debt in arbitration.
Wolf v. Jacobson
(In re Myrna Jacobson) (9th Cir. 2012) This devistating
opinion is a warning for every chapter 7 bankruptcy relief seeker that any
property that is sold, especially in bankruptcy, must have the homestead
proceeds reinvested within 6 months or the homestead
protection in the homestead proceeds will be lost.
Bank of America v. LSSR , LLC (In re LSSR, LLC)
(BAP 9th Cir 2013) The manner of service in both designation and identity
entities served. "20 largest creditors. See Rules 4001(a)(1) and 9014(b). Rule 7004(b)(3) requires service on a
domestic corporation or a partnership to be made by mailing a copy of the
motion for relief from stay “to the attention of an officer, a managing or
generalagent, or to any other agent authorized by appointment or by law to
receive service of process . . . .” LBR 9013-3(c) moreover requires that the
proof of service “explicitly indicate how each person who is listed on the
proof of service is related to the case . . . .”
In re Feiler
218 F.3d 948 (9th Cir. 2000) Tax-Bankruptcy case
Int’l Tobacco Partners v. U.S. Dep’t of Agric. (In re Int’l Tobacco Partners),
(Bankr ED NY 2012) Detailed treatment on Identity and Functions of an Excise
United States v. Condel, Inc. (In re Condel, Inc.), 91 B.R. 79, 82 (9th Cir.
In re Stanmock, Inc. , 103 B.R. 228 (9th Cir. 1989)
In re Raiman, 172 B.R. 933 (9th Cir. B.A.P. 1994)
In re Bracey ,
77 F.3d 294 (9th Cir. 1996)
In re Leal 366 B.R. 77 (9th Cir. BAP 2007)
Fretz (IN RE: W. DAVID FRETZ) U.S. v. W. DAVID FRETZ (11th Cir. 2001) No.
D.C. Docket No. 99-01447-CV-J-NE March 23, 2001. Tax evasion findings will not necessarily carry the day in Bankruptcy Court. However, nonpayment of taxes, with disregard can support a finding of nondischargeability. Haas, 48 F.3d at 1158 ("[A] debtor's failure to pay his taxes, alone, does not fall within the scope of section 523(a)(1)(C)'s exception to discharge in bankruptcy."
WILLIAM M. HAWKINS , III , AKA Trip Hawkins, v .
THE FRANCHISE TAX BOARD OF CALIFORNIA
(9th Cir. 2014) No. 11-16276 D.C. No. 3:10-cv-02026 Filed September 15,
2014) Kathryn Keneally , Assistant Attorney General a "suggestive tax
evasion" presence into this bankruptcy case. Other cases have held that the
11 U.S.C. §523(a)(1)(C) cannot operate with an intent to discharge taxes
alone. Compare this case with
In re Fretz
in this cases page, citing
In re Haas, (llth Cir. 1995) 48 F.3d
1153, at 1158 ("[A] debtor's failure to pay his taxes, alone, does not fall
within the scope of section 523(a)(1)(C)'s exception to discharge in
bankruptcy.") In Haas, the sole question at issue in this case is whether a
debtor's failure to pay his taxes, without more, constitutes a "willful
attempt in any manner to evade or defeat such tax" under section
523(a)(1)(C). The court in Haas reasoned "The difficulty with the
government's "plain meaning" interpretation of section 523(a)(1)(C) is that
it effectively would make all tax debts nondischargeable. If every knowing
failure to pay taxes constituted an evasion of taxes under section
523(a)(1)(C), then discharge of tax liability would be available only to
those very few debtors who discovered their debts to the IRS in the course
of their bankruptcy proceedings." In Hawkins, I note the request for
29 petition of the government for a rehearing en banc
re: James Charles Vaughn v. U.S. (10th Cir 2014) No. 13-1189 (D.C. No.
1:12-CV-00060-MSK) An important case since it may become a companion to
Hawkins v. FTB on its way to the Supreme Court. The question is whether,
without a finding of specific intent, can be denied discharge under §
523(a)(1)(C). Bankruptcy court found that Taxpayer had both filed a
fraudulent tax return and willfully evaded his taxes. District court
declined to address the question of whether Appellant filed a fraudulent tax
return. Vaughn argued to the 10th Circuit that bankruptcy court’s finding
that Appellant willfully attempted to evade his tax obligations was
erroneously based on negligent, rather than willful, conduct. Vaughn argued
against Dalton v. IRS , 77 F.3d 1297 (10th Cir. 1996) to allow a “holistic”
review of the evidence before the bankruptcy court. (1) First, Appellant
argues that a finding of “willful evasion requires knowledge that a tax is
owed—not just knowledge of a possibility that the IRS might assess tax
liability sometime in the future.” (2) Second, Appellant argues his
“reliance on the advice of KPMG, his longtime tax advisor, that the BLIPS
transaction was an aggressive but ultimately legitimate tax position might
have been at worst unreasonable under the circumstances, making [Appellant]
negligent,” but not willful. (3) Third, Appellant suggests the recent 10th
Cir. opinion in Blum v. Commissioner , 737 F.3d 1303 (10th Cir. 2013), must
control our review of this case, that a decision to rely on KPMG’tax advice
is not blameless, but . . . does not rise to the level of intentional or
knowing conduct either.” (4) Finally, Appellant argues the bankruptcy
court’s order “couched all of its criticism of [Appellant’s] conduct with
terms generally used to describe negligent conduct.”
MATTER OF GUY E.
McGAUGHEY 24 F.3d 904 (7th Cir. 1994) (Nos. 93-2058, 93-2084. Tax Evader
/ Bankruptcy Fraudster that hides assets. An appeal from the district
court's order partially lifting an automatic bankruptcy stay will not be
affected by a finding of hiding assets which should otherwise operate under
§727(a)(2) with an adversary proceeding. The statement that "the court held
that probable cause existed to believe that Debtor's tax debt was non-dischargeable because of willful evasion" should not have been stated or relied upon. Therefore, giving due deference to the district court's findings regarding Debtor's behavior, we must conclude that notwithstanding any superfluous discussion of non-dischargeability, the court did not abuse its discretion. The decision of the court to partially lift the automatic stay is affirmed.
In re Monument Auto Detail, Inc. (226 BR 219, 33 Bankr. 419 – Bankr. Appellate Panel 9th Circuit, 1998) Most classic calamity case of the 90's.
Dye v. Brown (In re AFI Holding, Inc.), 530 F.3d 832 (9th Cir. 2008)
Underlying opinion 355 B.R. 139 (B.A.P. 9th Cir. 2006) held that (1) “cause” may
include a lack of disinterestedness; (2) the catch-all provision of 11 U.S.C.
§101(14)(E) defining a “disinterested person” is “broad enough to include a
trustee with some interest or relationship that ‘would even faintly color the
independence and impartial attitude required by the Code,’ BAP held that "We
hold that the bankruptcy court properly applied a totality-of-circumstances test
in making its determination that the trustee’s prior connections with insiders
negatively impacted the administration of the estate.
Focus Media, Inc. v. NBC (In re Focus Media, Inc. ) 378 F.3d 916 (9th Cir.
2004)We agree. The record does not depict a company with a few unpaid bills.
Instead, it depicts a company that had substantial amounts of unpaid bills and
no plans or ability to pay them. Finally, Focus does not contend that the
bankruptcy court's discovery sanction ruling prevented it from demonstrating
that it was paying off its debts.11 We therefore conclude that Focus failed to
create a triable issue of fact regarding whether it was generally paying its
debts as they became due.
Commodity Futures Trading Comm'n v. Weintraub, 471 U.S. 343 (1985) The
trustee of a corporation in bankruptcy has the power to waive the corporation's
attorney-client privilege with respect to prebankruptcy communications. (only)
The Code gives the trustee wide-ranging management authority over the debtor,
whereas the powers of the debtor's directors are severely limited. Thus the
trustee plays the role most closely analogous to that of a solvent corporation's
management, and the directors should not exercise the traditional management
function of controlling the corporation's privilege unless a contrary
arrangement would be inconsistent with policies of the bankruptcy laws.
Gilliam v. Speier (In re KRSM Props.) 318 B.R. 712 (B.A.P. 9th Cir. 2004)
Kim Allan SHARP,
Debtor, Plaintiff/Appellant, v. Fred J. DERY, Chapter 7 Trustee,
United States District Court, E.D. Michigan, Southern Division. September 26, 2000.
Hedlund Roth v.
Educ. Credit Management Corp., No. 11-1233 (B.A.P. 9th Cir. Apr. 16, 2013),
overruled by Hedlund v. Education Resources
Institute, Inc., No. 12-35258 (9th Cir. May 22, 2013).
In re Susan M. Krieger Krieger v. Educ. Credit Mgmt. Corp., No. 12-3592 (7th Cir. Apr. 10, 2013)
v. Wallace (In re Cass), BAP No.
CC-12-1513-KiPaTa (9th Cir. BAP, Apr. 11, 2013)(unpublished). Recorded abstract
of judgment attached to the proceeds from the sale of a debtor’s residence even
though the abstract was recorded after the debtor’s fraudulent transfer of her
interest in the residence to her daughter.
In re Idalia Roxanna Castillo (CD BC 2013) 2:12-bk-15913 Therefore, the a mount of Deutsche’s 1111(b)(2) secured claim should include post -petition attorneys’ fees, but not post - petition interest. Attorneys' fees were allowed on an UNDERSECURED creditor's fees where they made an 1111(b) election
In Re Griffin (BAP 9th Cir. 2013) 12-60046 Copy of a copy + declaration is good enough to enable a motion for relief from stay.
U.S. v. Energy Resources 495 U.S. 545 (1990)
BEACHPORT ENTERTAINMENT Debtor, v HOWARD M. EHRENBERG, Chapter 7, Trustee, (.In re Beachport Entertainment) (9th Cir. BAP 2005) Dismissal for lack of papers and bk rules is unfair where (1) no opportunity to contest the severity, (2) BAP was familiar with issues pertaining to the case and did not appear hampered by two missing papers.
In the Matter of Marshall (9th Cir. 2013) No.09-55573
In re Arnold (Case No. 2:12-bk-15623-RK) Judge Kwan opinion on the Absolute Priority Rule
Dill Oil Company, LLC v. Arvin E. Stephens (In re Stephens), 704 F.3d 1279 (10th Cir., Jan. 15, 2013). 10th circuit weighs in on the absolute priority rule.
SCHWAB V. CIR . No. 11-71957 (9th Cir. 2013) Whole life policies had surrender charges for surrendering the policy prior to a contractually specified date. Upon surrender, the net cash value was below zero. Held, income is realized upon surrender and surrender penalties are only PART of the finding of value. Tax Court No.10525-07
In re Khan, 11-57609-BB, CC-13-1297-DPaTa (BAP 9th
Cir. Dec. 17, 2013). Filing Pro Se, messing it up, and then asking for
it to be EXPUNGED!!! Ms. Tasheena Khan (“Debtor”) filed a
pro-se chapter 7 case in LA but without the required credit
counseling certificate. After hearing on why it should not be closed,
the court closed the case. Debtor filed a pleading in which she
urged the bankruptcy court to expunge her bankruptcy filing so that it
would no longer appear on her credit reports. Debtor appealed the
Expungement Order to the BAP. Held: No basis for expunging
Held: No basis for expunging the case.
In re Irene Michelle Schwartz-Tallard (9th Cir. March 14, 2014) No. 12-60052 Debtor is not precluded from recovering attorney's fees as damages for defending against creditor's appeal of a finding that the Automatic Stay had been violated
Time Between Filings
Service & Notice
Criminal Fines Discharge
Bankruptcy Fees (Attorney)
Improper Taking Control of Bankrupt
Choice of Law
Bankruptcy Fraud Related
Student Loan Cases
SCOPE OF PRACTICE
In re: WAYNE A. SEARE and MARINETTE TEDOCO,
(ANTHONY J. DeLUCA v. WAYNE A. SEARE) (9th Cir. BAP) Bk. No.
2:12-bk-12173-MKN BAP No. NV-13-1196-KiTaJu. Embellishment in harrassment
suit, dismissed with fraud judgement against Sere. Later Sere visits a
volume bankruptcy office and declares bankruptcy hoping to discharge the
fraud judgement. Fraud Judgement order was only cursorily reviewed.Judge
Jury's concurring opinion sets the threshold for practice standards and
unbundling. Sets an outline for a CDCA Chapter 7 RARA should there ever be
In re Slabbinck (ED MI Sou.Div 2012) Excellent Unbundling and Prepetition/PostPetition Feek Agreement Discussion. Is the potential for a similar divide between pre and post petition activities in the Central District of California the driving force for the drafting, and imposition of the Chapter 7 RARA?
BANKRUPTCY 5TH AMENDMENT & PRIVILEGE
EDWARD PERUTA V. COUNTY OF SAN DIEGO (9th Cir. 2014) No 10-56971 San Diego District Court. Local Long Beach Firm prevails in one of the biggest cases ever on right to carry.
GUNN ET AL. v. MINTON (Feb 20, 2013) Supreme Court. GUNN's Brief - Patent Invalidity due to on-sale bar. Experimental use defense was not raised and was "deemed waived" by the trial court. State court malpractice suit results, and inventor's attorney urges that claims of infringement would have failed even if the experimental use would have been timely raised. Inventor appeals to Texas Court of Appeals based upon the fact that jurisdiction should have been exclusively within federal court. The Texas Court of Appeals rejected Minton’s argument, proceeded to the merits, and determined that Minton had failed to establish experimental use. The Texas Supreme Court reversed, concluding that the case properly belonged in federal court because the success of Minton’s malpractice claim relied upon a question of federal patent law. Supreme Court of the United States held that Section §1338(a) does not deprive the state courts of subject matter jurisdiction as to malpractice claims.
Fee Shifting Cases:
Petrella v. Metro-Goldwyn-Mayer,
Docket No. Op. Below (Petrella v. Metro-Goldwyn-Mayer)10-55934 (9th Cir 2012)) Holding: In a case by the owner of a screenplay alleging copyright infringement, the doctrine of laches cannot be invoked as a bar to the pursuit of a claim for damages brought within the three-year window
established by Section 507(b) of the Copyright Act. However, in extraordinary circumstances, laches may, at the very outset of the litigation, curtail the relief equitably awarded. Judgment: (9th Circuit)Reversed and remanded, 6-3, in an opinion by Justice Ginsburg on May 19, 2014. Justice Breyer filed a dissenting opinion, in which Chief Justice Roberts and Justice Kennedy joined.
Metrish v. Lancaster (No. 12-547), No habeas relief where Michigan
Court of Appeals reasonably applied federal law in rejecting ae
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