The Bankruptcy Law Firm, Prof. Corp.
Daniel Bock Jr. v Pressler & Pressler
Daniel Bock Jr. v Pressler & Pressler, Civ. No. 11-7593 (KM)(MCA), 2014 WL 2937929, (D.N.J. June 30, 2014), in which a US District Court held that a Law Firm violated the federal Fair Debt Collection Practices Act (“FDCPA”) when a lawyer of that Law Firm signed the Complaint, which Law Firm then filed in Court, to commence a lawsuit against the consumer who owed the debt to plaintiff company, seeking to collect the debt from consumer, only spent a few seconds reviewing and signing the Complaint, before that Complaint was filed in Court. Four second review did not comply with…
Crawford vs. LVNV Funding, LLC
Crawford vs. LVNV Funding, LLC, ___F.3d___, 2014 Westlaw 3361226 (11th Cir. 2014): held that a bulk debt buyer violated the federal Fair Debt Collection Practices Act (“FDCPA”) by filing a proof of claim in a consumer bankruptcy, based on a time-barred debt. There is a multi-Circuit split on this issue. Crawford is directly contra to a Second Circuit Court of Appeals decision Simmons v. Roundup Funding, LLC, 622 F.3d 93 (2nd Cir. 2010) in which the Second Circuit held that filing a proof of claim (on an unenforceable debt) is not a violation of FDCPA, that FDCPA does not apply…
Hoskins v. Citigroup
HOSKINS V. CITIGROUP (IN RE VIOLA; 9TH CIR., July 16, 2014) case 12-60032, not for publication The Ninth Circuit Court of Appeals ruled that a “transferee”, as that term is used in Bankruptcy Code section 11 U.S.C. § 550(a)(1), is one who has legal title to the funds and the ability to use them as the recipient sees fit. This is the “dominion test.” The Ninth Circuit ruled that allegations of open and exclusive control through fraudulent misappropriation of funds is insufficient to satisfy the dominion test. The case is “not for publication”. But still sheds light on Ninth Circuit’s…
Robinson v. American Home Mortgage Servicing, Inc. (In re Mortgage Electronic Registration Systems, Inc.)., __F/3d__, 2014 WL 2611314 (9th Cir. 6/12/14)
On June 12, 2014, the 9th Circuit Court of Appeals issued its decision in). This decision is the result of multi-district litigation related to the operation of the MERS System and, with one exception, found in favor of the lenders on state law claims, such as, wrongful foreclosure, predatory lending, etc. The decision provides a good summary of the operation of the MERS System and prior case law on the topic. In this case, the 9th Circuit court of appeals held that: the District Court did not improperly convert a motion to dismiss for failure to state a claim into…
IN ASARCO CASE, SUPREME COURT WILL DECIDE WHETHER FEES AND COSTS INCURRED DEFENDING FEE APPLICATIONS ARE COMPENSABLE US
IN ASARCO CASE, SUPREME COURT WILL DECIDE WHETHER FEES AND COSTS INCURRED DEFENDING FEE APPLICATIONS ARE COMPENSABLE US Supreme Court has granted certiorari, to review the 5th Circuit Court of Appeals decision in Baker Botts L.L.P., et al. v. Asarco, LLC. The US Supreme Court will review and decide whether the 5th Circuit Court of Appeals was correct, or in error, in ruling that 11 USC §330(a) of the Bankruptcy Code does not authorize compensation for the fees and costs that counsel incur while defending their fee applications in bankruptcy court. The Supreme Court’s decision should provide much-needed guidance on…
US Supreme Court has Granted Certiorari, regarding Wellness Int’l Network, Limited v. Sharif, 727 F.3d 751 (7th Cir. 2013), cert. granted, 134 S.Ct. 2901 (2014)
US Supreme Court has Granted Certiorari, regarding Wellness Int’l Network, Limited v. Sharif, 727 F.3d 751 (7th Cir. 2013), cert. granted, 134 S.Ct. 2901 (2014), meaning that US Supreme Court, in its fall 2014 term, will hear and decide the issue raised by the 7th Circuit Court of Appeals decision, which is: Whether the presence of a subsidiary state property law issue in a 11 U.S.C. § 541 action brought against a debtor to determine whether property in the debtor’s possession is property of the bankruptcy estate means that such action does not "stem[] from the bankruptcy itself" and therefore,…
Rivera v. Orange County Probation Dep’t (In re Rivera), Case No. CC-13-1476-PaKiLa, ___BR___ (9th Cir. BAP June 4, 2014)
Rivera v. Orange County Probation Dep’t (In re Rivera), Case No. CC-13-1476-PaKiLa, ___BR___ (9th Cir. BAP June 4, 2014): Ninth Circuit Bankruptcy Appellate Panel held that amounts due to a county for food, clothing, and medical care for an incarcerated minor are nondischargeable "domestic support obligations" of the parents pursuant to 11 U.S.C. § 523(a)(5). Facts and Procedural History: The debtor’s minor son was incarcerated in Orange County from 2008 through 2010, for a total of 593 days. California law requires parents of an incarcerated minor to pay "costs of support" of the minor, which are limited to food, food…
Anil Sachan v. Benjamin Moonkang Huh (In re Benjamin Moonkang Huh)
Anil Sachan v. Benjamin Moonkang Huh (In re Benjamin Moonkang Huh), 506 B.R. 257 (9th Cir. BAP March 11, 2014)–published en banc Oionion of the United States Bankruptcy Appellate Panel of the Ninth Circuit ("BAP"–held that imputing fraud to a debtor for purposes of exception to discharge under 11 U.S.C. § 523(a)(2), where the evidence does not show that the debtor knew or had reason to know of the agent’s fraud, "…is not consistent with the provisions or objectives of the Bankruptcy Code." Facts: Pre-petition, the debtor was a licensed real estate broker in California. While initially operating a sole…
Frates v. Wells Fargo Bank, N.A. (In re Frates)
Frates v. Wells Fargo Bank, N.A. (In re Frates), 507 B.R. 298, 2014 WL 982851 (9th Cir. BAP March 13, 2014)–The United States Bankruptcy Appellate Panel for the Ninth Circuit (the "BAP") ruled in a published decision that service under Federal Rule of Bankruptcy Procedure ("FRBP") 7004(h) governs service on an insured depository institution of a motion to avoid a judgment lien against the debtors’ real property under Bankruptcy Code section 522(f) ("Code section 522(f)") rather than the service provisions of California Code of Civil Procedure ("CCP") section 684.010, which applies to proceedings affecting judgment. It also ruled that including…
FDIC v. Siegel (In re Indymac Bancorp, Inc.), ___F.3d___ (9th Cir. 4/21/14)
FDIC v. Siegel (In re Indymac Bancorp, Inc.), ___F.3d___ (9th Cir. 4/21/14): The U.S. Court of Appeals for the Ninth Circuit ("Ninth Circuit") recently affirmed the decision of a district court finding that a $55 million tax refund paid to a bank holding company on account of losses suffered by a defunct subsidiary constituted an asset of the holding company’s bankruptcy estate. Though this decision gives some insight into the Ninth Circuit’s thinking on this issue, the decision is NOT binding authority, because it is an “unpublished” decision. Unpublished decisions can be cited in briefs, but must be identified as…