Central District Consumer Bankruptcy Attorney's Association

Hi Nick,
I am aware the RARA allows us to charge our client. I just feel its inequitable for our client to get billed when the lender caused the attorney's fees to be incurred. I am trying to make sure this doesn't become an additional claim in my case, as she is almost due for her Chapter 13 discharge. My argument was that the lender should be responsible for the bill that she incurred. I this makes it more clear what I was trying to accomplish.
Donna
Donna R. Dishbak, Esq.
Simon & Resnik, LLP
15233 Ventura Blvd., Suite 300
Sherman Oaks, CA 91403
Telephone: 818-783-6251
Fax: 818-783-6253
donna@simonresniklaw.com
THIS TRANSMISSION IS INTENDED ONLY FOR THE USE OF THE ADDRESSEE AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. IF YOU ARE NOT THE INTENDED RECIPIENT, OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERING THE MESSAGE TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US BY TELEPHONE, AND RETURN THE ORIGINAL MESSAGE TO US AT THE ABOVE E-MAIL ADDRESS.

The post was migrated from Yahoo.

Dear Colleagues,
I had a case today before Judge Ahart. Lender filed a proof of claim for arrears. Then a loan mod was finalized curing those arrears. I contacted the law office that filed the proof of claim asking them to amend and provided them with finalized loan modification agreement executed by the debtor. For over 1 year, we get the run around and promises to amend that never come to fruition. We get bounced around between different law firms and finally file an objection to claim. Before the hearing, claim finally gets amended.
In my motion I set forth the basis for attorney's fees citing to Travelers case, and Cal Civ Code 1717(a) (the CA code which makes attorney's fees clauses necessarily reciprocal). I also cited to the Deed of Trust attorney's clause provision, which was the same basis the creditor used for charging my client attorney's fees for filing the proof of claim.
It appears judge Ahart did not feel that I proved that the proof of claim objection was "an action against the contract" according to 1717(a). My position was that collecting a wrongful amount in the proof of claim, including receiving funds from the Chapter 13 trustee which had to later be refunded, was certainly an action against the contract and so was our objection thereto. But, Ahart disagreed. (FYI, 506(b) was not discussed here)
Any thoughts? Is this worth appealing? I'm looking at the big picture here. It seems unfair that banks can charge everything to the note, but debtors seem to have no recourse to be compensated for attorney's fees when they must bring a matter into court to correct wrongful accounting.
Thanks for your thoughts, opinions and legal references in advance.
Donna
Donna R. Dishbak, Esq.
Simon & Resnik, LLP
15233 Ventura Blvd., Suite 300
Sherman Oaks, CA 91403
Telephone: 818-783-6251
Fax: 818-783-6253
donna@simonresniklaw.com
THIS TRANSMISSION IS INTENDED ONLY FOR THE USE OF THE ADDRESSEE AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. IF YOU ARE NOT THE INTENDED RECIPIENT, OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERING THE MESSAGE TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US BY TELEPHONE, AND RETURN THE ORIGINAL MESSAGE TO US AT THE ABOVE E-MAIL ADDRESS.

The post was migrated from Yahoo.