Update from The State Bar Business Law Section's INSOLVENCY LAW CO=

Yahoo Bot · Wed Nov 05, 2014 11:23 am

FYI
Law Office of Eric Alan Mitnick
21515 Hawthorne Boulevard, Ste. 1080
Torrance, California 90503
(310) 792-5864; 792-5866 (fax)
MitnickLaw@aol.com
Although this email and any attachments are believed to be free of any virus or other defect that might affect any computer system into which it is received and opened, it is the responsibility of the recipient to ensure that it is virus free and no responsibility is accepted by the sender for any loss or damage arising in any way from its use.
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To: Bus. Law Insolvency Constituency List
Sent: Wed, Nov 5, 2014 9:11 am
Subject: Update From The State Bar Business Law Section's Insolvency Law Committee - William M. Hawkins, KKK v The Franchise Tax Boad of CA, USA, IRS
November 5, 2014
Insolvency Law Committee
Insolvency Law e-Bulletin
BUSINESS LAW SECTION
STATE BAR OF CALIFORNIA
Insolvency Law Committee
Co-Chair
Uzzi Raanan
Danning Gill Diamond & Kollitz LLP
Co-Chair
Diana Herman
McKenna Long & Aldridge LLP
Co-Vice Chair
Monique Jewett-Brewster
Bryan Cave LLP
Co-Vice Chair
Van Durrer
Skadden, Arps, Slate, Meagher & Flom LLP
Business Law Section Coordinator
John Buelter
415-538-2341
Dear constituency list members of the Insolvency Law Committee, the following is a case update analyzing a recent case of interest:
Summary:
On September 15, 2014, the United States Court of Appeals for the Ninth Circuit (the Ninth Circuit) issued its decision inWilliam M. Hawkins, III, aka Trip Hawkins, Appellant, v. The Franchise Tax Board Of California; United States Of America, Internal Revenue Service, Appellees, BKCase No. 11-16276, D.C. No. 3:10-cv-02026-JSW. In a well-reasoned published opinion, the Ninth Circuit reversed the lower court ruling denying the discharge of taxes under Bankruptcy Code Section 523(a)(1)(C) because there was no finding that the taxpayer had acted with the specific intent to nkruptcy court and the District Court that affirmed, the Ninth Circuit held that proof that a taxpayer spent more than his income but did not pay known taxes was not sufficient to prove the requisite intent to except the tax from discharge. The Ninth Circuits opinion can be read by clicking HERE:[http://cdn.ca9.uscourts.gov/datastore/o ... -16276.pdf].
Facts:
The debtor in this case, William H. Hawkins (better known as Tripof the Silicon Valleys most successful computer-games companies. In the mid 90s, Hawkins began to sell off his EA stock to fund a second company, 3DO. Around that time, Hawkinss tax advisors at KPMG advised him to invest in two complex off-shore investments designed to create large losses to offset capital gains. 3DO was not a success and ultimately filed bankruptcy. In 2001, the IRS began investigating the KPMG transactions and started an audit of Hawkins taxes. In 2005, the IRS and the Franchise Tax Board, together, assessed $36 million in taxes, penalties and interest. The Hawkinses were unable to pay the tax debt.Mr. and Mrs. Hawkins filed bankruptcy under Chapter 11 in 2006, and negotiated a plan of reorganization with the IRS and the FTB that was confirmed without objection. Including a distribution of $3.4 million through the plan, the taxing authorities together received over $19 million. The Hawkinses received a discharge through the plan under Bankruptcy Code section 1141(d), but the taxing authorities did not waive their right to assert that the remaining taxes (which had continued to increase with interest) were excepted from discharge.
After confirmation, the Hawkinses therefore sued the IRS and FTB to determine the dischargeability of the remaining taxes. The bankruptcy court discounted or entirely rejected all of the taxing authorities claims other than that Hawkinses had continued to live in a luxuriousadditional taxes. The bankruptcy court held that paying expenses in excess of income while not paying known taxes amounted to a willful attempt to evade or defeat the tax under Bankruptcy Code Section 523(a)(1)(C) and, thus, that the remaining unpaid taxes had not been discharged. The District Court affirmed, holding expressly that specific intent to evade or defeat the tax was not needed for this section to apply.
The Ninth Circuits Analysis:
The Ninth Circuit rejected the standard stated in the bankruptcy court opinion that was reiterated in the District Courts affirming opinion, as well as the cases from other circuits on which they relied. These cases generally state that taxes can be excepted from discharge under Section 523(a)(1)(C) even where no particular action is taken with the intent to evade or defeat the tax. The Ninth Circuit found that the analysis of the section turns on the meaning of willful, and whether it means simply a willful act (choosing not to pay a tax), or whether it requires some showing of deception or dishonesty.
Acknowledging that the word willful can have different meanings depending on the context, the Ninth Circuit first looked to the structure of the statute and the policies of the Bankruptcy Court as a whole. The Ninth Circuit noted that within Section 523(a) there are three sections describing taxes to be excepted from discharge: Section 523(a)(1)(A) for taxes incurred within particular time periods, Section 523(a)(1)(B) for taxes for which no return was filed, and Section 523(a)(1)(C) for taxes ttempted in any manner to evade or defeat such tax. The Ninth Circuit found that, while the first two categories impose liability where intent is not considered, the last section does not. Rather, it found that, because the statute groups willfully . . . evade or defeat such taxe filing of a fraudulent return clearly requires showing specific intent, proving a debtor willfully attempted to evade a tax must also require showing such intent. The Ninth Circuit also considered the identical language in Section 7201 of the Internal Revenue Code, which describes felonious action and clearly requires specific intent, as well as considering the general policy in bankruptcy law of reading exceptions to discharge narrowly.
Having established that in order to except taxes under this section a court must find that the debtor took action with the specific intent to evade or defeat the taxes, the Ninth Circuit determined that the lower court had not made such a finding in the Hawkins case. The Ninth Circuit reversed and remanded to the District Court for further determination and application of the proper standard applicable to actions to deny discharge under Bankruptcy Code section 523(a)(1)(C).
Authors Commentary:
The Ninth Circuit has put a halt, at least in this circuit, to decisions suggesting that taxes can be excepted from discharge solely on finding that taxpayers have spent more than they earned. The Ninth Circuit correctly observed that with such a rule, there would be few personal bankruptcies in which taxes would be dischargeable. The Ninth Circuit noted that, although statements in cases from other Circuit Courts had suggested that no intent to evade or defeat a tax need be shown under this section, none of the cases actually denied a tax discharge without such a finding, as had the opinions of the courts below.
There is an argument that maintaining spending at levels consistent with prior lifestyle may now be defensible in the Ninth Circuit, particularly when a substantial effort is made to pay the taxes owed. However, a debtorayers and the practitioners who counsel them are well advised to tread carefully as the law in this area continues to develop.
Procedural Update:
On October 29, 2014, the United States filed a Petition for RehearingEn Banc.
This e-Bulletin was written by Corey Weber of Ezra Brutzkus Gubner LLP, Co-Vice Chair of the Insolvency Law Committee.
Thank you for your continued support of the Committee.
Best regards,
Insolvency Law Committee
Connect With Us
For information about the Business Law Standing Committees, seeBusiness Law Section Home Page and thestanding committees web page.
You are receiving these periodic emails because you expressed interest in receiving updates from the Insolvency Law Committee of the State Bar of California's Business Law Section ("BLS"). As a BLS member, you can sign up to receive e-bulletins from other standing committees by simply clickingHERE to update your e-bulletin subscriptions in My State Bar Profile. If you need assistance, please contact Elyse Jones. For up-to-date news, case and legislative updates, and information about events from the BLS and otherSections of the State Bar of California, as well as from theCalifornia Young Lawyers Association (CYLA), follow us onFacebook, LinkedIn or Twitter.
If you are not a member of the BLS, or know of colleagues who wish to join the Section to receive e-bulletins such as this, please clickHERE.
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Yahoo Bot · Fri Mar 14, 2014 11:01 am

". . . wants to me a judge . . ." - Is this a Freudian slip?

________________________________
To: cdcbaa@yahoogroups.com
Sent: Wednesday, March 12, 2014 3:46 PM
Subject: [cdcbaa] Woodland Hils BK Judge opening.
Who among us wants to me a judge? See below.
Desiree
From:Choy, Jennifer [mailto:Jennifer.Choy@calbar.ca.gov]
Sent: Wednesday, March 12, 2014 3:41 PM
To: Bus. Law Insolvency Constituency List
Subject: Update from The State Bar Business Law Section's INSOLVENCY LAW COMMITTEE
Insolvency Lawe-Bulletin
BUSINESS LAW SECTION STATE BAR OF CALIFORNIA
Insolvency Law Committee
Co-Chair
Uzzi Raanan
Danning Gill Diamond & Kollitz LLP
Co-Chair
Diana Herman
McKenna Long & Aldridge LLP
Co-Vice Chair
Monique Jewett-Brewster
Bryan Cave LLP
Co-Vice Chair
Van Durrer
Skadden, Arps, Slate, Meagher & Flom LLP
Business Law Section Coordinator
John Buelter
415-538-2341
following is an update on a recent bankruptcy judgeship opening:
The Court of Appeals for the Ninth Circuit has announced that there is an opening for bankruptcy judge in the Central District of California, Woodland Hills Division. The position is available starting on January 2, 2015.
The deadline for receipt of applications is Thursday, May 22, 2014 at 5:00 p.m. The announcement and application materials are available by clicking here: http://www.cacb.uscourts.gov/news/bankr ... california.
Thank you for your continued support of the Committee.
Best regards,
Insolvency Law Committee
Connect With Us
For information about the Business Law Standing Committees, seeBusiness Law Section Home Pageand thestanding committees web page.
You are receiving these periodic emails because you expressed interest in receiving updates from the Insolvency Law Committee of the State Bar of California's Business Law Section ("BLS"). As a BLS member, you can sign up to receive e-bulletins from other standing committees by simply clickingHEREto update your e-bulletin subscriptions inMy State Bar Profile. If you need assistance, please contactJennifer Choy. For up-to-date news, case and legislative updates, and information about events from the BLS and otherSections of the State Bar of California, as well as from the California Young Lawyers Association (CYLA), follow us onIf you are not a member of the BLS, or know of colleagues who wish to join the Section to receive e-bulletins such as this, please clickHERE. You are currently subscribed to sec-bus-insolvency2 as: causeylaw@gmail.com.
To unsubscribe click here: http://membermail.calbar.org/libtml/FCK ... nsub%25%25
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Yahoo Bot · Wed Dec 18, 2013 4:18 pm

FYI ...
Law Office of Eric Alan Mitnick
21515 Hawthorne Boulevard, Ste. 1080
Torrance, California 90503
(310) 792-5864; 792-5866 (fax)
MitnickLaw@aol.com
Although this email and any attachments are believed to be free of any virus or other defect that might affect any computer system into which it is received and opened, it is the responsibility of the recipient to ensure that it is virus free and no responsibility is accepted by the sender for any loss or damage arising in any way from its use.
The information contained in this email message and any attached files may be privileged, confidential and protected from disclosure. If you are not the intended recipient, any dissemination, distribution or copying is strictly prohibited. If you think that you have received this email message in error, please notify the sender by reply email, and delete the email message you received and all of the attached files.
To: Bus. Law Insolvency Constituency List
Sent: Wed, Dec 18, 2013 3:47 pm
Subject: Update from The State Bar Business Law Section's INSOLVENCY LAW COMMITTEE - Amendments to the Federal Rules of Bankruptcy Procedure and Civil Procedure (including many new Official Forms)
December 18, 2013
Insolvency Law Committee
Insolvency Law e-Bulletin
BUSINESS LAW SECTION
STATE BAR OF CALIFORNIA
Insolvency Law Committee
Co-Chair
Uzzi Raanan
Danning Gill Diamond & Kollitz LLP
Co-Chair
Diana Herman
McKenna Long & Aldridge LLP
Co-Vice Chair
Monique Jewett-Brewster
Bryan Cave LLP
Co-Vice Chair
Van Durrer
Skadden, Arps, Slate, Meagher & Flom LLP
Business Law Section Coordinator
John Buelter
415-538-2341
December 18, 2013
Dear constituency list members of the Insolvency Law Committee, the following is an update on a topic of interest:
Amendments to the Federal Rules of Bankruptcy Procedure and Civil Procedure (including many new Official Forms)
Proposed August 2013;
written comments due by February 15, 2014
The federal Judicial Conference Advisory Committee on Bankruptcy and Civil Rules is circulating for comment major new rules and bankruptcy forms. These are found at www.uscourts.gov/rulesandpolicies/rules.aspx/. The deadline for submitting comments to the proposed rules and forms is February 15, 2014.
The proposed rule amendments address a variety of subjects, including:
- There are changes to standardize the process for determining the amount of secured claims. This will be permitted by motion or as part of a Chapter 12 or 13 plan.
- For the first time, an Official Form of Chapter 13 plan is being proposed that all debtors nationwide would be required to use. The proposed Chapter 13 Plan provides for the determination of the amount secured claims and the avoidance of judicial liens without any other action in an attempt to streamline the confirmation of Chapter 13 cases.
- There are rules addressing the manner in which signatures on electronically filed documents are verified and the role of the filing attorney in the verification.
- The satisfaction of a lien provided for in a Chapter 13 plan is addressed.
- The Official Forms will now be mandatory. The existing flexibility to modify the Official Forms is being eliminated except in limited ways. The proposed amendments to the individual bankruptcy forms and instructions are extensive. One goal of the revisions is to make the forms easier to use for unrepresented individuals. The proposed forms are accompanied by detailed, step by step instructions, and contain many new instructions on the forms. There are 41 pages of instructions. Among other proposed changes:
- There is a proposed involuntary petition.
- Schedule A asks for more information about real estate, including type of property and existence of co-owners.
- Schedule B adds information, including mileage of cars, types of electronic gear owned, specific hobby and sports gear, naming golf clubs and skis.
- There is a new very detailed listing of all financial accounts and assets, with name of institution required as well as value. Season tickets must be identified.
- Schedules D, E, and F include separate sections for others to be notified (such as collection agencies) for debts listed.
The proposed statement of financial affairs has new questions. It asks about payments made that benefitted an insider, as well as payments to an insider. Payments for debt workout services are identified. The new forms will be much lengthier and will take longer to fill in. There are many changes. Although these are forms for use in individual cases, presumably the Rules Committee will retain many of the changes when it promulgates forms for non-individual cases. If true, this means that all professionals have a reason to review the current forms and comment, as the proposed changes may foreshadow changes in the business entity forms that will follow.
These materials were written by Michael OHalloran (MTO@debtsd.com) of the Law Office of Michael OHalloran in San Diego, California. Mr. OHalloran is a member of the Insolvency Law Committee. Editorial contributions were provided by Insolvency Law Committee member David Duperrault (Dvd@svlg.com) of Silicon Valley Law Group, in San Jose, California.
Thank you for your continued support of the Committee.
Best regards,
Insolvency Law Committee
Connect With Us
For information about the Business Law Standing Committees, see Business Law Section Home Page and the standing committees web page.
You are receiving these periodic emails because you expressed interest in receiving updates from the Insolvency Law Committee of the State Bar of California's Business Law Section ("BLS"). As a BLS member, you can sign up to receive e-bulletins from other standing committees by simply clicking HERE to update your e-bulletin subscriptions in My State Bar Profile. If you need assistance, please contact Jennifer Choy. For up-to-date news, case and legislative updates, and information about events from the BLS and other Sections of the State Bar of California, as well as from the California Young Lawyers Association (CYLA), follow us on Facebook, LinkedIn or Twitter.
If you are not a member of the BLS, or know of colleagues who wish to join the Section to receive e-bulletins such as this, please click HERE.
You are currently subscribed to sec-bus-insolvency2 as: MitnickLaw@aol.com.
o unsubscribe click here: http://membermail.calbar.org/u?id10490570.c8c8
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Yahoo Bot · Tue Jun 25, 2013 11:21 am

FYI
Law Office of Eric Alan Mitnick
21515 Hawthorne Boulevard, Ste. 1080
Torrance, California 90503
(310) 792-5864; 792-5866 (fax)
MitnickLaw@aol.com
Although this email and any attachments are believed to be free of any virus or other defect that might affect any computer system into which it is received and opened, it is the responsibility of the recipient to ensure that it is virus free and no responsibility is accepted by the sender for any loss or damage arising in any way from its use.
The information contained in this email message and any attached files may be privileged, confidential and protected from disclosure. If you are not the intended recipient, any dissemination, distribution or copying is strictly prohibited. If you think that you have received this email message in error, please notify the sender by reply email, and delete the email message you received and all of the attached files.
To: Bus. Law Insolvency Constituency List
Cc: 'Rob Harris' ; 'Jewett-BrewsterM@bryancave.com' ; 'Uzzi O. Raanan' ; 'tom@parkinsonphinney.com' ; Buelter, John
Sent: Tue, Jun 25, 2013 11:18 am
Subject: Update from the State Bar Business Law Section's INSOLVENCY LAW COMMITTEE
Insolvency Law Committee - Business Law Section of the State Bar of California
Bankruptcy e-Bulletin
Co-Chair
James P. Hill
Co-Chair
Thomas R. Phinney
Co-Vice Chair
Diana D. Herman
Co-Vice Chair
Uzzi O. Raanan
John Buelter
Business Law Section
Section Coordinator
State Bar of California
180 Howard St.
San Francisco, CA 94105
415-538-2341
FAX 415-538-2368
john.buelter@calbar.ca.gov
June 25, 2013
Dear constituency list members of the Insolvency Law Committee:
The following is a case update analyzing two recent decisions of interest and has been prepared by Professor Dan Schechter, Loyola Law School, Los Angeles:
SUMMARIES:
A district court in Louisiana has held that because a mortgage lender systematically violated the automatic stay in numerous bankruptcy cases, the bankruptcy court correctly awarded the debtor more than $3 million in punitive damages. [Jones vs. Wells Fargo Home Mortgage, Inc., 2013 Westlaw 1155248 (E.D. La.).] See immediately below.
A district court in North Carolina has held that an asset purchasern was a standard business practice implicitly authorized by the asset purchase agreement. [Triad Packaging, Inc., vs. SupplyOne, Inc., 2013 Westlaw 603194 (W.D.N.C.).] See second case report.
Jones vs. Wells Fargo Home Mortgage, Inc., 2013 Westlaw 1155248 (E.D. La.):
Facts: After a homeowner filed a chapter 13 petition, his mortgage lender apparently assessed unauthorized postpetition charges and then concealed that fact from the debtor and his trustee. When challenged, the lender refused to explain its calculations. Eventually, the debtor and the trustee established that the lenders behavior was wrongful and intentional and that the lender had adopted this same strategy in many other pending bankruptcy cases. After a long procedural history, the bankruptcy court eventually assessed over $300,000 in actual damages and imposed punitive damages exceeding $3 million, 10 times the actual damages.
Reasoning: The District Court affirmed, holding that the bankruptcy court[The lender] knew of Debtors pending bankruptcy and [the lender] is a sophisticated lender with thousands of claims in bankruptcy cases pending throughout the country. It is familiar with the provisions of the Bankruptcy Code, particularly those regarding [the] automatic stay . . . . [The lender] assessed postpetition charges on this loan while in bankruptcy. Despite assessing postpetition charges, [the lender] withheld this fact from its borrower and diverted payments made by the trustee and Debtor to satisfy claims not authorized by the plan or [the] court. [The lender] admitted that these actions were part of its normal course of conduct, practiced in perhaps thousands of cases.
The court went on to hold that the tenfold ratio for the punitive damage award was not unconstitutional because the lender knew that its actions were wrong and a high award was necessary to deter its reprehensible conduct.
Authors Comment: I dont think that this tenfold award will stand up on appeal; my guess is that it will be reduced to about three times the total award, on constitutional grounds. But a $1 million award will still sting. Worse yet, other courts faced with comparable fact patterns involving the same lender will now feel empowered to impose their own punitive awards, multiplying the impact of this decision.
I must say that I am really surprised by the factual findings in this case, and I was skeptical when I read this opinion. Based on what I know about commercial finance, I find it hard to believe that a large institution would systematically flout the plain language of the Bankruptcy Code and then admit that this is corporate policy. Most of the time, borrowers lurid claims of corporate wrongdoing can be explained by garden-variety corporate incompetence; for example, the people in charge of loan administration are not the same people as those in charge of dealing with consumer bankruptcies, and the two groups simply fail to communicate. Here, though, there was apparently evidence that this large lender knew exactly what it was doing and was aware that its conduct was wrongful.
Triad Packaging, Inc., vs. SupplyOne, Inc., 2013 Westlaw 603194 (W.D.N.C.):
Facts: The owner of a packaging business entered into a letter of intent with a competitor, under which the competitor would buy the assets of the business. Under the terms of the letter of intent, the prospective purchaser was to conduct its due diligence for several weeks, after which the transaction would be consummated. Due to a variety of circumstances, both parties extended the due diligence phase for several more weeks.
The buyers investigation of the sellers assets, including its accounts receivable and inventory, revealed various problems and shortfalls. At the conclusion of the due diligence phase, the buyer demanded a lower purchase price to reflect the shortfalls. The seller reluctantly agreed to the lower price.
Even after the deal was consummated, further disagreements arose. Eventually, the seller brought suit against the buyer, claiming (among other things) that the buyer had committed fraud by failing to disclose its concerns about the acquisition in the time period between the execution of the letter of intent and the actual closing of the asset purchase agreement. The buyer moved for summary judgment, and the court held that the fraud claim was fatally defective.
Reasoning: The court held that the whole purpose of the due diligence phase was to enable the buyer to examine the assets and to renegotiate the terms if necessary:
[The seller claimed that the buyer] operated in bad faith by extracting a lower purchase price . . . at the conclusion of due diligence. The record reveals that [the buyer], alert to the economic climate (including the loss of accounts by [the seller], prudently sought renegotiations at the close of due diligence . . . . [An earlier case] described a partys exercise of discretion related to due diligence as clearly standard practice for a business purchase transaction of this kind . . . .
The court went on to hold that the tenfold ratio for the punitive damage award was not unconstitutional because the lender knew that its actions were wrong and a high award was necessary to deter its reprehensible conduct.
Authors Comment: In hindsight, it may have been better if the letter of intent had specifically mentioned the possibility that the buyer might have to demand price concessions, if the due diligence were to show that the sellers assets were worth less than the parties originally thought. Nevertheless, the buyer prevailed on summary judgment (instead of having to go to trial), in large part because it carefully documented its due diligence procedures. It is not uncommon that the quality of due diligence becomes an issue in subsequent litigation; for example, in fraudulent transfer claims asserted in bankruptcy cases, certain transferees of disputed assets may sometimes prevail under a good faithe on due diligence in consummating the deal.
These materials were written by Professor Dan Schechter of Loyola Law School, Los Angeles, for his Commercial Finance Newsletter, published weekly on Westlaw. Westlaw holds the copyright on these materials and has permitted the Insolvency Law Committee to reprint them.
Thank you for your continued support of the Committee.
Best regards,
Insolvency Law Committee
The Insolvency Law Committee of the Business Law Section of the California State Bar provides a forum for interested bankruptcy practitioners to act for the benefit of all lawyers in the areas of legislation, education and promoting efficiency of practice. For more information about the Business Law Standing Committees, please see the standing committees web page.
These periodic e-mails are being sent to you because you expressed interest in receiving updates from the Insolvency Law Committee of the State Bar of California's Business Law Section. As a Section member, if you would also like to sign up to receive e-bulletins from other standing committees, simply click HERE and follow the instructions for updating your e-bulletin subscriptions in My State Bar Profile. If you have any difficulty or need assistance, please feel free to contact John Buelter. If you are not a member, or know of friends or colleagues who might wish to join the Section to receive e-bulletins such as this, please click HERE to join online.
To keep up-to-date on the latest news, case and legislative updates, as well as events from the Business Law Section and other Sections of the State Bar of California as well as the California Young Lawyers Association (CYLA), you can follow them on Facebook or add their Twitter feed.
You are currently subscribed to sec-bus-insolvency2 as: MitnickLaw@aol.com.To unsubscribe click here: http://membermail.calbar.org/u?id10490570.c8c
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Yahoo Bot · Mon Jun 03, 2013 10:15 am

FYI.
Law Office of Eric Alan Mitnick
21515 Hawthorne Boulevard, Ste. 1080
Torrance, California 90503
(310) 792-5864; 792-5866 (fax)
MitnickLaw@aol.com
Although this email and any attachments are believed to be free of any virus or other defect that might affect any computer system into which it is received and opened, it is the responsibility of the recipient to ensure that it is virus free and no responsibility is accepted by the sender for any loss or damage arising in any way from its use.
The information contained in this email message and any attached files may be privileged, confidential and protected from disclosure. If you are not the intended recipient, any dissemination, distribution or copying is strictly prohibited. If you think that you have received this email message in error, please notify the sender by reply email, and delete the email message you received and all of the attached files.
To: Bus. Law Insolvency Constituency List
Cc: 'Rob Harris' ; 'Jewett-BrewsterM@bryancave.com' ; 'Uzzi O. Raanan' ; 'tom@parkinsonphinney.com' ; Buelter, John
Sent: Mon, Jun 3, 2013 10:04 am
Subject: Update from the State Bar Business Law Section's INSOLVENCY LAW COMMITTEE
Insolvency Law Committee - Business Law Section of the State Bar of California
Bankruptcy e-Bulletin
Co-Chair
James P. Hill
Co-Chair
Thomas R. Phinney
Co-Vice Chair
Diana D. Herman
Co-Vice Chair
Uzzi O. Raanan
John Buelter
Business Law Section
Section Coordinator
State Bar of California
180 Howard St.
San Francisco, CA 94102
415-538-2341
FAX 415-538-2368
john.buelter@calbar.ca.gov
June 3, 2013
Dear constituency list members of the Insolvency Law Committee, the following is an update that may be of interest:
SUMMARY
The U.S. Bankruptcy Court for the Southern District of California has defined the minimum set of services debtors counsel must provide in a chapter 7 case. This rule became effective April 1, 2013.
DETAIL
After public comment and amendment to the initial proposal, the court has mandated a set of services to be provided by chapter 7 counsel. This is contained in the courts General Order 180-A and new Rights and Responsibilities form. These can be found at http://www.casb.uscourts.gov/pdf/GO_180A.pdf. This court has had a similar rule for chapter 13 debtor representation and now has addressed chapter 7 practice in these materials.
The Rights and Responsibilities Agreement (RARA) defines what legal services must be bundled together by a chapter 7 attorney and prevents the exclusion of certain services from the minimum that must be offered at the initial fee. Lawyers are no longer allowed to contract in an unrestricted fashion; a minimum set of services is now defined and required. The RARA must be signed by counsel and client and must be filed in the case.
In Part I, the RARA requires that counsel provide the following services for the initial fee charged for representation:
dget.
tcy filing under chapter 7 or chapter 13.
chapters.
eting and provide the date and time of it.
urance on leased or financed vehicles.
ement of Financial Affairs and any amendment to Schedule C.
trustee.
taken.
he clients questions.
attorney errors.
In Part II, the RARA identifies services to be rendered subject to an additional fee, including amendments to schedules, opposing stay relief motions, working on reaffirmation agreements or redemption motions, negotiations with the chapter 7 trustee as to nonexempt assets and other matters.
In Part III, the RARA identifies services that do not have to be part of the flat fee agreement. A new fee agreement for these services is contemplated. They include nondischargeability or objection to discharge litigation, defending exemptions, levy releases, lien avoidance motions and most litigation matters.
Finally, in Part IV of the RARA, the debtors duties are spelled out. Seventeen duties are listed, including listing all assets and liabilities, communicating with counsel, appearing at the 341 meeting, bringing identification to the 341 meeting and the like. The one onerous duty for some challenged debtors may be timely fling all required tax returns.
The RARA contemplates that a fee agreement will be executed by attorney and client; the RARA does not replace this.
AUTHORS COMMENTS
1. It is unclear if the Part II services can be refused if an additional fee is demanded but not paid.
2. The list of debtor duties in Part IV is thorough and may a boon to debtors counsel, for the execution of the form will prevent the debtor claiming ignorance of the fundamental duties of a chapter 7 debtor.3. The form appears to ban the practice of advising a debtor to file a chapter 7 petition without the intention of appearing at the 341 meeting, so that the case will be dismissed.
These materials were prepared by Michael T. OHalloran (mto@debtsd.com) of the Law Office of Michael T. O'Halloran, in San Diego California, with editorial contributions from ILC member Monique Jewett-Brewster of Bryan Cave LLP, in San Francisco, California. Mr. O'Halloran is a member of the Insolvency Law Committee.
Thank you for your continued support of the Committee.
Best regards,
Insolvency Law Committee
The Insolvency Law Committee of the Business Law Section of the California State Bar provides a forum for interested bankruptcy practitioners to act for the benefit of all lawyers in the areas of legislation, education and promoting efficiency of practice. For more information about the Business Law Standing Committees, please see the standing committees web page.
These periodic e-mails are being sent to you because you expressed interest in receiving updates from the Insolvency Law Committee of the State Bar of California's Business Law Section. As a Section member, if you would also like to sign up to receive e-bulletins from other standing committees, simply click HERE and follow the instructions for updating your e-bulletin subscriptions in My State Bar Profile. If you have any difficulty or need assistance, please feel free to contact John Buelter. If you are not a member, or know of friends or colleagues who might wish to join the Section to receive e-bulletins such as this, please click HERE to join online.
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Yahoo Bot · Wed Oct 17, 2012 5:29 pm

In reading the synopsis, I don't see where this case would provide grounds for objections to debtors paying 401K contributions or loans in a Chapter 13, that said, if the Debtor's had converted to 13 they would have paid the priority tax debt (without penalty and interest accruing) over a 5 year period of time. I don't understand why they didn't convert to 13, there must be other factors that are not mentioned.
Law Office of Catherine Christiansen
________________________________
To: cdcbaa@yahoogroups.com
Sent: Wednesday, October 17, 2012 4:58 PM
Subject: Re: [cdcbaa] Fwd: Update from the State Bar Business Law Section's INSOLVENCY LAW COMMITTEE
"Particularly, the UST contended that, without the Debtors voluntary deductions for retirement plan contributions and repayment of pension loans, the Debtors had the financial ability to repay their creditors without hardship." Aren't these expenses allowed in a chapter 13 though?have been allowed to stay in a chapter 7? Does this decision mean that we are going to get more challenges to proposed chapter 13 plan payments if the debtor hasto repay aretirement loan or has voluntary contributions to a 401K?
Holly Roark
holly@roarklawoffices.com
www.roarklawoffices.com
Central District of California
Consumer Bankruptcy Attorney
1875 Century Park East, Suite 600
Los Angeles, CA 90067
T (310) 553-2600
F (310) 553-2601
On Wed, Oct 17, 2012 at 3:27 PM, wrote:
>
>
>Law Office of Eric Alan Mitnick
>21515 Hawthorne Boulevard, Ste. 1080
>Torrance, California 90503
>(310) 792-5864; 792-5866 (fax)
>MitnickLaw@aol.com
>
>Although this email and any attachments are believed to be free of any virus or other defect that might affect any computer system into which it is received and opened, it is the responsibility of the recipient to ensure that it is virus free and no responsibility is accepted by the sender for any loss or damage arising in any way from its use.
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>The information contained in this email message and any attached files may be privileged, confidential and protected from disclosure. If you are not the intended recipient, any dissemination, distribution or copying is strictly prohibited. If you think that you have received this email message in error, please notify the sender by reply email, and delete the email message you received and all of the attached files.
>
>
>-----Original Message-----
>To: Bus. Law Insolvency Constituency List
>Sent: Wed, Oct 17, 2012 2:32 pm
>Subject: Update from the State Bar Business Law Section's INSOLVENCY LAW COMMITTEE
>
>
>
> Insolvency Law Committee - Business Law Section of the State Bar of California
>Bankruptcy e-Bulletin
>Co-Chair
>Thomas R. Phinney
>
>Co-Chair
>James P. Hill
>
>Co-Vice Chair
>Uzzi O. Raanan
>
>Co-Vice Chair
>Diana D. Herman
>
>Travis Gall
>Business Law Section
>Administrative Assistant
>State Bar of California
>180 Howard St.
>San Francisco, CA 94102
>415-538-2570
>FAX 415-538-2368
>travis.gall@calbar.ca.gov October 17, 2012
>
>Dear constituency list members of the Insolvency Law Committee, the following is a recent case update:
>
>SUMMARY

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Yahoo Bot · Wed Oct 17, 2012 3:27 pm

Law Office of Eric Alan Mitnick
21515 Hawthorne Boulevard, Ste. 1080
Torrance, California 90503
(310) 792-5864; 792-5866 (fax)
MitnickLaw@aol.com
Although this email and any attachments are believed to be free of any virus or other defect that might affect any computer system into which it is received and opened, it is the responsibility of the recipient to ensure that it is virus free and no responsibility is accepted by the sender for any loss or damage arising in any way from its use.
The information contained in this email message and any attached files may be privileged, confidential and protected from disclosure. If you are not the intended recipient, any dissemination, distribution or copying is strictly prohibited. If you think that you have received this email message in error, please notify the sender by reply email, and delete the email message you received and all of the attached files.
To: Bus. Law Insolvency Constituency List
Sent: Wed, Oct 17, 2012 2:32 pm
Subject: Update from the State Bar Business Law Section's INSOLVENCY LAW COMMITTEE
Insolvency Law Committee - Business Law Section of the State Bar of California
Bankruptcy e-Bulletin
Co-Chair
Thomas R. Phinney
Co-Chair
James P. Hill
Co-Vice Chair
Uzzi O. Raanan
Co-Vice Chair
Diana D. Herman
Travis Gall
Business Law Section
Administrative Assistant
State Bar of California
180 Howard St.
San Francisco, CA 94102
415-538-2570
FAX 415-538-2368
travis.gall@calbar.ca.gov
October 17, 2012
Dear constituency list members of the Insolvency Law Committee, the following is a recent case update:
SUMMARY
The U.S. Bankruptcy Appellate Panel of the Ninth Circuit (BAPer 7 case under Bankruptcy Code Section 707(b)(3)(B), which section permits the court to dismiss a bankruptcy case for abuse based upon a totality of the circumstances relating to a debtors financial situation. Specifically, the BAP found that the bankruptcy court did not abuse its discretion in finding that the Debtors had the financial ability to repay their creditors after: (i) disallowing the Debtors voluntary retirement plan contributions and pension loan repayments as an adjustment to their income, and (ii) taking into account post-petition increases in the Debtors income. In re Ng, BAP No. 11-1702 PaJuH (9th Cir. B.A.P. September 7, 2012). To read the entire decision, click In re Ng.
Factual Background and Procedural History
On June 30, 2010, Debtors Christopher and Sheila Ng filed their joint voluntary petition for relief under chapter 7 of the Bankruptcy Code. Per their original Schedule I, Mr. Ng was employed as an electronic technician as of the petition date, and received $7,439.47 in monthly salary; he also was eligible for overtime compensation. Mr. Ng received an additional $1,439.88 per month from his military pension, and Mrs. Ng was not employed. From his monthly salary, Mr. Ng made voluntary contributions of $520.74 to an employer 401(k) plan, and $343.42 to repay a pension loan.
The Debtors listed $38,261.00 in unsecured debt on their original Schedule F, which debt included three student loans and three credit card accounts. The Debtors also disclosed a pre-petition priority federal tax claim of $10,213.11 on their Schedule E. According to the Debtors original Schedule J, their monthly expenses totaled $5,225.00, including a $300.00 monthly payment on a pre-petition income tax liability.
The bankruptcy court found that the Debtors primary purpose for filing for bankruptcy relief was to surrender their former residence and discharge the underwater mortgage debt secured by the property.
The United States Trustee (the UST) filed a motion to dismiss the Debtors bankruptcy case under, inter alia, Section 707(b)(3)(B) of the Code, alleging that granting relief to the Debtors would constitute an abuse of chapter 7s provisions based on the totality of the circumstances. Particularly, the UST contended that, without the Debtors voluntary deductions for retirement plan contributions and repayment of pension loans, the Debtors had the financial ability to repay their creditors without hardship. The UST also argued that the pre-petition tax debt should be paid through a chapter 13 plan. The Debtors opposed the USTs motion, asserting that all of their challenged expenses were appropriate. The Debtors also disagreed with the USTs calculations of their income and expenses.
After conducting an initial hearing on the dismissal motion, the bankruptcy court ordered a further hearing to allow the parties to submit additional evidence and information on whether the bankruptcy filing amounted to abuse under the totality of the circumstances. Ultimately, upon a consideration of post-petition changes in the Debtors income and expenses, including an increase in the Debtors income and additional loan obligations owed to Mr. Ngs pension for repayment of funds borrowed to fund certain moving expenses, the bankruptcy court determined that the bankruptcy filing constituted an abuse under the totality of the circumstances, and dismissed the case accordingly. The Debtors timely appealed.
The BAPs Ruling and Reasoning
Affirming the bankruptcy courts decision in its entirety, the BAP first observed that a bankruptcy courts decision to dismiss a case under Section 707(b)(3)(B) is reviewed for an abuse of that courts discretion, citing Price v. U.S. Tr. (In re Price), 353 F.3d 1135, 1138 (9th Cir. 2004). Identifying the non-exclusive list of factors set forth in Price for considering abuse under the totality of the circumstances, the BAP further noted that the U.S. Court of Appeals for the Ninth Circuit has held that the primary factor in such a determination is the debtors ability to pay their debts as determined by the ability to fund a chapter 13 plan. The BAP also explained that, in evaluating the totality of the circumstances, the bankruptcy court should review the debtors actual income and expenses and may take into account both current and foreseeable changes in their economic circumstances.
As applied to the Debtors in this case, the BAP found that the bankruptcy court did not abuse its discretion in disallowing the Debtors voluntary retirement plan contributions and their pension loan repayments as adjustments to the income available to repay their creditors. The BAP found that the bankruptcy courts consideration of Mr. Ngs age (forty-three), his future earning opportunities (at least twenty years), and his military pension all supported the bankruptcy courts determination that the Debtors could set aside funds reasonably necessarys through a chapter 13 plan with a term of three to five years. With regard to the pension loan repayments, the BAP found that the bankruptcy court did not abuse its discretion in determining that the Debtors should not be allowed to essentially repay a loan to themselves in preference to other creditors.
The BAP further found that the bankruptcy court did not abuse its discretion in determining that the Debtors financial condition had improved following the filing of the petition due to increases in the Debtorseight of authority as represented by the U.S. Court of Appeals for the Fifth Circuits decision in U.S. Tr. v. Cortez (In re Cortez), 457 F.3d 448, 455-56 (5th Cir. 2006) in upholding the consideration of the Debtorse bankruptcy courts calculation that the Debtors had $3,155.17 in monthly net income available for payment to unsecured creditors based on their adjusted income and removal of the expenditures for the retirement plan contributions and pension loan repayments, the BAP ruled that the bankruptcy court had not abused its discretion in finding that the Debtors had the ability to repay their debts without hardship.
Authors Commentary
Overall, the Ng opinion provides a useful guide for identifying the factors that the court should consider in evaluating a motion to dismiss a chapter 7 case for abuse under the totality of the circumstances. The Ng opinion also can be viewed as a reminder that a debtor may not qualify for a chapter 7 discharge where the debtor has the ability to repay his or her debts taking into consideration all of the debtors circumstances, including deferral of payments to or for the benefit of the debtor, or improvements in the debtors economic condition before the discharge is granted.
These materials were prepared by Jason E. Rios (jrios@ffwplaw.com) of Felderstein Fitzgerald Willoughby & Pascuzzi LLP of Sacramento, California, with editorial contributions from ILC member Monique Jewett-Brewster, in Alameda, California. Mr. Rios is a member of the ILC.
Thank you for your continued support of the Committee.
Best regards,
Insolvency Law Committee
The Insolvency Law Committee of the Business Law Section of the California State Bar provides a forum for interested bankruptcy practitioners to act for the benefit of all lawyers in the areas of legislation, education and promoting efficiency of practice. For more information about the Business Law Standing Committees, please see the standing committees web page.
These periodic e-mails are being sent to you because you expressed interest in receiving updates from the Insolvency Law Committee of the State Bar of California's Business Law Section. As a Section member, if you would also like to sign up to receive e-bulletins from other standing committees, simply click HERE and follow the instructions for updating your e-bulletin subscriptions in My State Bar Profile. If you have any difficulty or need assistance, please feel free to contact Travis Gall. If you are not a member, or know of friends or colleagues who might wish to join the Section to receive e-bulletins such as this, please click HERE to join online.
To keep up-to-date on the latest news, case and legislative updates, as well as events from the Business Law Section and other Sections of the State Bar of California as well as the California Young Lawyers Association (CYLA), you can follow them on Facebook or add their Twitter feed.
You are currently subscribed to sec-bus-insolvency2 as: MitnickLaw@aol.com.To unsubscribe click here: http://membermail.calbar.org/u?id10490570.c8c
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Yahoo Bot · Mon Oct 01, 2012 9:37 am

Law Office of Eric Alan Mitnick
21515 Hawthorne Boulevard, Ste. 1080
Torrance, California 90503
(310) 792-5864; 792-5866 (fax)
MitnickLaw@aol.com
Although this email and any attachments are believed to be free of any virus or other defect that might affect any computer system into which it is received and opened, it is the responsibility of the recipient to ensure that it is virus free and no responsibility is accepted by the sender for any loss or damage arising in any way from its use.
The information contained in this email message and any attached files may be privileged, confidential and protected from disclosure. If you are not the intended recipient, any dissemination, distribution or copying is strictly prohibited. If you think that you have received this email message in error, please notify the sender by reply email, and delete the email message you received and all of the attached files.
To: Bus. Law Insolvency Constituency List
Sent: Mon, Oct 1, 2012 9:34 am
Subject: Update from the State Bar Business Law Section's INSOLVENCY LAW COMMITTEE
Insolvency Law Committee - Business Law Section of the State Bar of California
Bankruptcy e-Bulletin
Robert G. Harris
Co-Chair
Binder & Malter LLP
2775 Park Avenue
Santa Clara, CA 95050
408-295-1700
rob@bindermalter.com
Elissa D. Miller
Co-Chair
Sulmeyer Kupetz
333 S. Hope Street, 35th Fl.
Los Angeles, CA 90071
213-626-2311
emiller@sulmeyerlaw.com
Thomas R. Phinney
Co-Vice Chair
Parkinson Phinney
400 Capitol Mall, Suite 2560
Sacramento, CA 95814
916-449-1444
tom@parkinsonphinney.com
James P. Hill
Co-Vice Chair
Sullivan Hill Lewin Rez & Engel
550 West C Street, 15th Floor
San Diego, CA 92101
619-233-4100
hill@sullivanhill.com
Travis Gall
Business Law Section
Administrative Assistant
State Bar of California
180 Howard St.
San Francisco, CA 94102
415-538-2570
FAX 415-538-2368
travis.gall@calbar.ca.gov
October 1, 2012
Dear constituency list members of the Insolvency Law Committee, the following is a recent case update:
SUMMARY:
Applying the long-standing Brunner test for dischargeability of student loan debt under 11 U.S.C. 523(a)(8), the United States Bankruptcy Appellate Panel of the Ninth Circuit (BAP) has affirmed a bankruptcy courts partial discharge of a chapter 7 debtor's student loan debt, where that debtor recently had undergone treatment for pancreatic cancer. Educ. Credit Mgmt. Corp. v. Jorgensen (In re Jorgensen), B.R. , 2012 WL 3963339 (B.A.P. 9th Cir. Sept. 11, 2012). To read this decision in full, click: Jorgensen.
Facts:
Chapter 7 debtor Stacy Marie Jorgensen sought to discharge her student loan debt of about $36,000, owed to Educational Credit Management Corporation (e Bankruptcy Code. Notably, the debtor consistently had made payments to ECMC until she was diagnosed with pancreatic cancer. Although the debtorting an additional four cycles of chemotherapy, the debtor was left with several ailments which affected her ability to work as a full-time professor, including anemia, high blood pressure, and a pancreatic enzyme insufficiency. ECMC opposed discharge, arguing that the debtors budget contained extravagant expenditures, such as a new car, new clothes, high food spending, and travel.
The bankruptcy court discharged the majority of the debtors student loans, holding that she had met all of the requirements of undue hardship under Brunner v. N.Y. State Higher Educ. Servs. Corp. (In re Brunner), 46 B.R. 752 (Bankr. S.D.N.Y. 1985), affd, 831 F.2d 395 (2d Cir. 1987), adopted by the Court of Appeals for the Ninth Circuit in United Student Aid Funds, Inc. v. Pena (In re Pena), 155 F.3d 1108, 1111-12 (9th Cir. 1998). ECMC appealed, and the BAP affirmed.
Reasoning:
In Brunner, the court established a three-part test to determine if the debtor's repayment of his student loans would impose an undue hardship. Under that test, the debtor must prove:
1) she cannot maintain, based on current income and expenses, a minimal standard of living for herself and her dependents if required to repay the loans;
2) additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period; and
3) the debtor has made good faith efforts to repay the loans.
Pena, 155 F.3d. at 1111-12 (quoting Brunner, 46 B.R. at 753).
The BAP held that the bankruptcy court did not clearly err in determining that the debtor satisfied the first prong of the Brunner test. Even though the debtor no longer had cancer, the BAP agreed that the debtor could not maintain a minimal standard of living if she were required to repay the loans in full.
Further, the BAP held that additional circumstances indicate that the debtors inability to repay her student loans was likely to persist throughout the repayment period. The BAP reasoned that, even though the debtor's doctors had declared her cancer-free after multiple rounds of chemotherapy, the debtors various ailments would continue to impose a significant obstacle to her financial recovery. Accordingly, the BAP held that the bankruptcy courts determination that the debtor satisfied the second prong of the Brunner test was not clearly erroneous.
Finally, the BAP held that, given the totality of the circumstances, the bankruptcy court did not commit reversible error in determining that the debtor made good faith efforts to repay the loans. The record supported the bankruptcy courts findings that: (i) the debtor was optimally employed, (ii) the debtor consistently had made loan payments before seeking her discharge, and (iii) the debtor also had negotiated a repayment plan in good faith. Although the debtor made unwise and imprudent decisions with respect to certain prepetition expenditures, such actions did not arise to a lack of good faith.
Importantly, the BAP also upheld the bankruptcy courts refusal to discharge about $8,000 of the debtors student loan debt to the extent it viewed such expenditures as unnecessary to maintain a minimal standard of living.
Authors Comment:
As students continue to graduate from college and graduate school with ever-increasing student loan debt and lackluster job prospects, the issue of the nondischargeability of student loans has taken center stage. The authors know of at least one petition for certiorari that was filed with the Supreme Court on this issue. Traversa v. Educ. Credit Mgmt. Corp., No. 11-1359 (U.S. 2011). See Supreme Court Asked to Review Brunners Second Prong, Bankr. Ct. Decisions (West) Aug. 10, 2012, at 6-9. Additionally, there are splits among the circuits on how to interpret certain aspects of the Brunner test that may result in inconsistent decisions regarding student loan discharges. Compare Rifino v. United States (In re Rifino), 245 F.3d 1083, 1088 (9th Cir. 2001)(In defining undue hardship, courts require more than temporary financial adversity, but typically stop short of utter hopelessness.), with In re Roberson, 999 F.2d 1132, 1136 (7th Cir. 1993) (the dischargeability of student loans should be based upon the certainty of hopelessness, not simply a present inability to fulfill financial commitment). In fact, one court has recently noted that undue hardship under Section 523(a)(8) no longer means what it meant when the Brunner court analyzed the words 25 years ago. Bene v. Educ. Credit Mgmt. Corp. (In re Bene), 474 B.R. 56, 59 (Bankr. W.D.N.Y. 2012). Whether or not the U.S. Supreme Court chooses to address these issues, it is certain that courts will continue to struggle with this section of the Code in the future.
These materials were prepared by Zev Shechtman (zshechtman@dgdk.com) and Kevin D. Meek (kmeek@dgdk.com), of Danning, Gill, Diamond & Kollitz, LLP, in Los Angeles, California, with editorial contributions from ILC member Monique Jewett-Brewster, of Alameda, California.
Thank you for your continued support of the Committee.
Best regards,
Insolvency Law Committee
The Insolvency Law Committee of the Business Law Section of the California State Bar provides a forum for interested bankruptcy practitioners to act for the benefit of all lawyers in the areas of legislation, education and promoting efficiency of practice. For more information about the Business Law Standing Committees, please see the standing committees web page.
These periodic e-mails are being sent to you because you expressed interest in receiving updates from the Insolvency Law Committee of the State Bar of California's Business Law Section. As a Section member, if you would also like to sign up to receive e-bulletins from other standing committees, simply click HERE and follow the instructions for updating your e-bulletin subscriptions in My State Bar Profile. If you have any difficulty or need assistance, please feel free to contact Travis Gall. If you are not a member, or know of friends or colleagues who might wish to join the Section to receive e-bulletins such as this, please click HERE to join online.
To keep up-to-date on the latest news, case and legislative updates, as well as events from the Business Law Section and other Sections of the State Bar of California as well as the California Young Lawyers Association (CYLA), you can follow them on Facebook or add their Twitter feed.
You are currently subscribed to sec-bus-insolvency2 as: MitnickLaw@aol.com.To unsubscribe click here: http://membermail.calbar.org/u?id10490570.c8c
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