The Bankruptcy Law Firm, Prof. Corp.
Phillips v. Gilman (In re Gilman), ___F.3d___ (9th Cir. April 13, 2018), case 16-55436
Order granting or Denying a Homestead Exemption Remains a Final Order in the Ninth Circuit. US Supreme Court case Bullard v. Blue Hills Bank, 135 S. Ct. 1686, 191 L. Ed. 2d 621, 83 U.S.L.W. 4288 (2015) did not undermine the automatic appealability of orders granting or denying homestead exemptions. Is an order granting or denying a homestead exemption a final, appealable order? The Ninth Circuit concluded that Bullard did not undermine the circuit’s existing precedent and ruled that an order upholding a homestead exemption is appealable automatically. In Bullard, the Supreme Court held that an order denying confirmation of…
In re Cresta Technology Corp. ___BR___, (B.A.P. 9th Cir. April 6, 2018), BAP case number 17-1186
9th circuit BAP rules that a post-petition transfer occurs when an ordinary check is honored, not when it is delivered, in light of US Supreme Court case Barnhill An unauthorized post-petition transfer occurs when an ordinary check is honored by the bank, not when the check is delivered, the Ninth Circuit Bankruptcy Appellate Panel said in the course of overruling its own precedent in view of later Supreme Court authority. In Barnhill v. Johnson, 503 U.S. 393 (1992), the Supreme Court ruled that the date of honor of an ordinary check is the date of transfer with regard to preferences…
In re Bianchi, ___BR___ (Bankr. D. Id. March 20, 2018, case #12-221)
Bankruptcy Judge Papas, D. Idaho rules: ‘Snarky’ or Factually Incorrect Emails Are Not Grounds for Rule 9011 Sanctions Neither oral statements nor emails are sanctionable under Rule 9011, Judge Pappas says. “Snarky and unprofessional” emails written by a debtor’s counsel to a chapter 13 trustee are not grounds for sanctions under Rule 9011 because they were not contained in pleadings presented to the court, according to Bankruptcy Judge Jim D. Pappas of Boise, Idaho. The March 20 opinion by Judge Pappas is a story about a lawyer behaving badly. Although the facts suggest that the debtor’s lawyer was acting unprofessionally,…
Arellano vs. Clark County Collection Service, LLC, ___F3d___, 2017 Westlaw 5505117 (9th Cir.2017)
The Ninth Circuit has held that a debt collector cannot effectively destroy a consumer’s FDCPA claim by acquiring it at an execution sale following a default judgment, because the FDCPA impliedly preempts that strategy. A collection agency obtained a default judgment in state court against a consumer for roughly $800. She filed a separate suit in federal court against the collection agency, claiming that its practices had violated the Fair Debt Collection Practices Act (“FDCPA”). The collection agency then requested the state court to issue a writ of execution against the consumer in the hope of executing on her FDCPA…
Split Among Us Circuit Courts Involving Licensees of a Trademarks
Split among US Circuit Courts of 4th, 7th, 1st Circuit, and maybe 3rd Circuit, as to whether or not the licensee of a trademark has a right to keep using the trademark, when the licensor of the trademark files bankruptcy, and rejects the trademark license contract, pursuant to 11 USC 365. Compare: Lubrizol Enterprises, Inc. v. Richmond Metal Finishers, Inc., 756 F2d 1043 (4th Cir. 1985) (debtor’s rejection of trademark licenses stops non-debtor licensee from continuing to use trademark); In re Sunbeam Products, Inv. v. Chicago American Manufacturing, LLC, 686 F.3d 372 (7th Cir. 2012) (rejection does NOT stop trademark…
U.S. Bank NA v. The Village at Lakeridge LLC, 15-1509 (US Supreme court, decided March 5, 2018)
U.S. Bank NA v. The Village at Lakeridge LLC, 15-1509 (US Supreme court, decided March 5, 2018)-bankruptcy decision, held that insider status was reviewed for clear error on appeal, because mainly a factual issue. Rather than clarifying standard of review on appeal, this US Supreme Court decision muddies the water regarding standard of review when a fact/law mixed question is reviewed on appeal. Because usually, fact/law mixed questions are reviewed de novo. But here there was a fact law mixed question reviewed for clear error, which is the standard of review for fact decisions below, NOT the standard of review…
Heller Ehrman LLP v. Davis Wright Tremaine LLP (California Supreme Court, decision issued 3/5/18)___Cal.4th___ ; case S236208
California Supreme Court Kills the Jewel Doctrine on a Certified Question the so called “JewelDoctrine” has now been formally rejected in New York and California. Washington, D.C. is next. The handwriting was on the wall, but now it’s official in California, and probably everywhere else: Profits earned on unfinished hourly business after a law firm dissolves are not property of the “old” firm and can be retained by the new firm that completes the work. This question got answered in the Heller Ehrman bankruptcy case. Answering a certified question from the Ninth Circuit, the California Supreme Court held on March…
In re Gibson, ___BR___12-81186 (Bankr. C.D. Ill. March 5, 2018)
A developing issue, in Chapter 13 cases with confirmed Chapter 13 plan, is whether or not the Chapter 13 debtor is still eligible to receive a Chapter 13 discharge, despite the fact that the Chapter 13 debtor fails to make payments direct to creditor(s) (usually secured creditors) that are required to be made, direct to the creditor(s) by the Confirmed plan. Courts are Split on whether or not a Debtor should be denied a Chapter 13 discharge, where the debtor fails to make direct payments to creditors that the confirmed Chapter 13 plan requires the debtor to make. In In…
In re McGinness, ___BR___ (Bankruptcy Court ED Tenn 3/2/18), case 17-14746
Yet another decision in the many court decisions that show there is still no still No Uniform Test for when a debtor can Bifurcate debtor’s secured vehicle loan into secured and unsecured pieces, in Chapter 13, versus having to Pay the Total Amount owed as Secured, in debtor’s Chapter 13 plan, even where the fair market value of the vehicle is far less than the total amount owed: Courts are groping to define ‘personal use’ (versus non personal use) because Congress didn’t define that term in the Bankruptcy Code. One of these days, the courts will develop a uniform, coherent…
Merit Mgmt. Group, LP v. FTI Consulting, Inc., ___ U.S. ___, ___ S. Ct. ___
Merit Mgmt. Group, LP v. FTI Consulting, Inc., ___ U.S. ___, ___ S. Ct. ___, 2018 WL 1054879 (No. 16-784 February 27, 2018), the United States Supreme Court held in an unanimous opinion that the safe harbor provision of Bankruptcy Code (the “Code”) section 546(e) does not prohibit the avoidance of a transfer which passes through one or more financial institutions (acting merely as “conduits”) prior to being received by the intended recipient (where the transfer is made “through” a financial institution rather than “to” a financial institution).