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Robles Decision on 707(b)(3)
Thanks, everyone.
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Mark J. Markus
Law Office of Mark J. Markus
11684 Ventura Blvd. PMB #403
Studio City, CA 91604-2652
(818)509-1173 (818)509-1460 (fax)
Toll Free: 1-866-576-6275
web: http://www.bklaw.com/
This Firm is a Qualified Federal Debt Relief Agency (see what this means at
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Congratulations on a fabulous result, I was very skeptical at the outset and I'mnow pleasantly surprised at the endresult.Itd debts in the Means Test.
I hope this same resulteventually comes out of the9th Circuit and becomesbinding onother bankruptcy judges.
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Great job, Mark. Judge Robles ruled against me and the outstanding Jeffrey
Shinbrot in an early post-BAPCPA 707 case, so this more recent one is
something we can use to distinguish from Sylvia Mitchell, if the OUST pulls
that lovely chestnut out. Of course, the facts in my case did show more bad
faith than in yours, on the part of the unemployed debtor, who hid/lied to
me about the $3000/month income she received from "volunteer" work she was
doing, etc.
All in all, well done!
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Great work Mark. You should make sure this gets on the NACBA listserv .
M. Erik Clark
Borowitz, Lozano & Clark, LLP
100 N. Barranca Avenue, Suite 250
West Covina, CA 91791
www.BLClaw.com
Office: (626) 332-8600
Fax: (626) 332-8644
Board Certified in Consumer Bankruptcy
American Board of Certification
________________________________
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It's not often I get to post a significant victory on here, and I wanted to
wait until this was "final" before doing so, but I am now proud to say I was
victorious on behalf of the debtors in the Jensen case.
A copy of Judge Robles' opinion on the initial Motion to Dismiss is
attached. (There was a subsequent, equally involved, Motion for
Reconsideration filed by the OUST, which denied a couple of weeks ago, and
the time for appeal has passed without anything being filed.).
In a nutshell, this was a case where my clients, debtors Kirk and Linda
Jensen, were above-median debtors who owned a house, as well as a boat and
motorhome, and other vehicles. They passed the means test (i.e.
presumption did not arise), but it was due in part to the secured debt
deductions they were taking for their boat and motorhome). The OUST filed
a Motion to Dismiss under 707(b)(3) arguing that the totality of the
circumstances, and specifically the fact that the debtors were using
non-essential, luxury item expenses to "pass" the means test, justified
dismissal of the case for abuse.
There were numerous briefs filed, including a surreply to a reply (yes, the
Judge allowed it).
At the hearing on the initial motion to dismiss, the Judge had no tentative
ruling, and spent the first few minutes addressing Alvin Mar and myself,
explaining why he was going to rule in favor of the OUST. I then argued
him out of his position (which doesn't happen all that frequently) by either
rigorous statutory analysis, policy arguments, and sleight of hand (more
the last one I think). He took the matter under submission, and then issued
the attached opinion (from which the OUST filed a lengthy motion for
reconsideration).
I recommend reading the opinion for its analysis, as well as the holding.
It should be noted that subsequent to this decision (which was NOT published
to my knowledge) there were two California trial court decisions published
on this precise issue (i.e. whether secured debt expenses allowed in the
means test must be allowed in a determination of a debtor's ability to pay
under 707(b)(3)) . One, In re Johnson, from San Diego, held squarely on all
points with Judge Robles. The other, I believe In re Wells (from Fresno-no
jokes please), held the exact opposite, so this is still very much
unsettled. I'm not sure why the OUST didn't appeal, except that perhaps
they simply didn't want an adverse appellate ruling.
I would again like to thank Jonathan Hayes for his input and support
throughout the nearly 9 months of briefing on this case, as well as my
parents and members of the Academy.
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Mark J. Markus
Law Office of Mark J. Markus
11684 Ventura Blvd. PMB #403
Studio City, CA 91604-2652
(818)509-1173 (818)509-1460 (fax)
Toll Free: 1-866-576-6275
web: http://www.bklaw.com/
This Firm is a Qualified Federal Debt Relief Agency (see what this means at
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