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January 3, 2009

Circuit Court of Appeals Cases for Last Week

6th Circuit Court of Appeals, December 29, 2008
In re Sanders, --- F.3d ---, 2008 WL ------- (6th Cir. 2008)(Debtor who received a chapter 7 discharge less than four years ago is eligible for a chapter 13 discharge because his chapter 7 petition was filed more than four years ago)

7th Circuit Court of Appeals, December 30, 2008
Helms v. CPC Acquisition, Inc., --- F.3d ---, 2008 WL ------- (7th Cir. 2008)(Corporate-debtor's proceeds from lawsuit against its insurance broker for failure to obtain business-loss insurance are not considered "proceeds of collateral" under the UCC, and therefore the bank holding a security interest in debtor's damaged collateral was not entitled to proceeds from that lawsuit)

7th Circuit Court of Appeals, December 31, 2008
In re Belcher, --- F.3d ---, 2008 WL ------- (7th Cir. 2008)(husband not entitled homestead exemption in marital home because wife's name alone appeared on the title. Husband's potential equitable property interests in the home under divorce law, and his "possessory interest" in the family residence as spouse of the homeowner, were insufficient to permit him to claim the homestead exemption)

8th Circuit Court of Appeals, December 29, 2008
US v. Bauer, --- F.3d ---, 2008 WL ------- (8th Cir. 2008)(Convictions of debtors for bankruptcy fraud and money laundering affirmed - failure to disclose assets and cooperate with bankruptcy court orders)

9th Circuit Court of Appeals, December 31, 2008
In the Matter of Owens, --- F.3d ---, 2008 WL ------- (9th Cir. 2008)(dismissal of bad-faith Chapter 11 case rather than converting it to Chapter 7 affirmed - court must consider interests of all the creditors)

10th Circuit Court of Appeals, December 30, 2008
In re Marshall, --- F.3d ---, 2008 WL ------- (10th Cir. 2008)(Balance transfers from one credit card to another, made by debtors during the ninety-day period prior to the filing of their Chapter 7 petition, are preferential transfers under 11 U.S.C. section 547(b))

California Appellate Districts, December 30, 2008
Chinese Yellow Pages Co. v. Chinese Overseas Mktg. Svc. Corp., No. B197234  (postjudgment attorneys fees and costs incurred during a bankruptcy proceeding can be recovered in state court per CCP 685.040 as fees and costs incurred in postjudgment collection efforts)

January 3, 2009 in Other Circuit Briefs | Permalink | Comments (0) | TrackBack

January 2, 2009

Dreier First Day Transcript

This is pretty interesting.  The transcript of the hearing on the first day motions can be accessed here. 

January 2, 2009 in Current Affairs | Permalink | Comments (0) | TrackBack

New York Law Firm, Dreier, LLP, Files Chapter 11 After Name Partner is Arrested

Dreier, LLP, known locally as Dreier, Stein, Kahan, Browne, Woods, George, was taken over by a Receiver on December 10, 2008 after its founder, Marc Dreier, was arrested and charged with various securities violations.  The receiver filed chapter 11 on December 16, 2008 in New York and asked the bankruptcy court to appoint a chapter 11 trustee.  The First Day Declaration of the Receiver can be accessed hereThe Motion to Appoint the trustee is here.  The US Trustee has proposed Sheila M. Gowan as the trustee.  At the first day hearing, the receiver commented that "there are only 17 employees remaining at Dreier, two of whom, are employees," so it's a little difficult to determine who or what is included in the proceeding. 

U.S. Bankruptcy Court, Southern District of New York (Manhattan)
Bankruptcy Petition #: 08-15051-smb

Assigned to: Judge Stuart M. Bernstein
Chapter 11  Date Filed: 12/16/2008 

Dreier LLP
499 Park Avenue
New York, NY 10022
Tax id: 65-0672220

represented by  Stephen J. Shimshak
Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, NY 10019
(212) 373-3133
Email: sshimshak@paulweiss.com

January 2, 2009 in Current Affairs | Permalink | Comments (1) | TrackBack

January 1, 2009

Supreme Court Annual Report 2009

Chief Justice Roberts' annual report, filled with statistics, and an annual plea for better salaries for Federal Judges can be accessed here.  Roberts writes, "The Judiciary, including the Supreme Court, other federal courts, the Administrative Office of the United States Courts, and the Federal Judicial Center, received a total appropriation in fiscal year 2008 of $6.2 billion. That represents a mere two-tenths of 1% of the United States’ total $3 trillion budget. Two-tenths of 1%! That is all we ask for one of the three branches of government—the one charged “to guard the Constitution and the rights of individuals.” Alexander Hamilton, Federalist No. 78." 

He adds, "I suspect many are tired of hearing it, and I know I am tired of saying it, but I must make this plea again—Congress must provide judicial compensation that keeps pace with inflation. Judges knew what the pay was when they answered the call of public service. But they did not know that Congress would steadily erode that pay in real terms by repeatedly failing over the years to provide even cost-of-living increases. Last year, Congress fell just short of enacting legislation, reported out of both House and Senate Committees on the Judiciary, that would have restored cost-of-living salary adjustments that judges have been denied in past years. One year later, Congress has still failed to complete action on that crucial remedial legislation, despite strong bipartisan support and an aggregate cost that is miniscule in relation to the national budget and the importance of the Judiciary’s role. To make a bad situation worse, Congress failed, once again, to provide federal judges an annual cost-of-living increase this year, even though it provided one to every other federal employee, including every Member of Congress. Congress’s inaction this year vividly illustrates why judges’ salaries have declined in real terms over the past twenty years."

January 1, 2009 in Supreme Court | Permalink | Comments (0) | TrackBack

December 31, 2008

Happy New Year

I want to wish my readers a happy and prosperous new year and thank everyone for the comments, both on the blog and on the street, in the yard, in court.  Three of my kids graduated from college this year - don't ask me how that happened - they are each about a year apart from the other.  But I'm ready to become a couch potato and spend my time writing, especially on the Supreme Court and Bankruptcy.  I suspect I'm going to have to put that off for a while however since I expect Congress to pass a law early in 2009 which will allow homeowners to write down their mortgages and pay the new loan balance over 30-40 years at a reasonable interest rate.  When that happens, there is going to be a staggering number of new chapter 13 filings.  I would bet it will be double last year.  Persons who never would have considered bankruptcy will file as the benefit will be so huge.  That's what I do for a living when I'm not in the classroom.  That's how I make my own house payment.  I have hired a couple of law clerks to make sure I am ready.  I think its a completely appropriate response to the problems today.  Lenders will not get more than the value of the home anyway when they foreclose and will not get more than current interest rates when they re-lend the money from the foreclosure sale.  So why not let the homeowner do that and keep their home?  I digress - again - Happy New Year.

Jon Hayes 

December 31, 2008 in Current Affairs | Permalink | Comments (0) | TrackBack

December 30, 2008

Circuit Court of Appeals Cases from Last Week

9th Circuit Court of Appeals, December 24, 2008
McGuire v. US, --- F.3d ---, 2008 WL ---- (9th Cir. 2008)(district court lacked jurisdiction to entertain a bankruptcy debtor's Tucker Act claims because of soverign immunity)

December 30, 2008 in Current Affairs | Permalink | Comments (0) | TrackBack

Heller Ehrman First Day Declaration

The First Day Declaration of Peter Benvenutti can be accessed here.  The 118 year old "firm" is in dissolution and seems to have far more accounts receivable and other assets than debts but the Bank of America got cold feet and grabbed the $5 million in the bank and a landlord got a writ of attachment for another $5 million so the chapter 11 is off and running.  The declaration explains that the bank's lien may not have been properly perfected and is therefore a preference since it tried to fix the mistake within the preference period.  There are also issues with "retention bonuses," and the like. 

December 30, 2008 in Current Affairs | Permalink | Comments (0) | TrackBack

December 29, 2008

Heller Ehrman Files Chapter 11 in San Francisco

U.S. Bankruptcy Court
Northern District of California (San Francisco)
Bankruptcy Petition #: 08-32514

Assigned to: Judge Dennis Montali   Chapter 11
Date Filed: 12/28/2008 

Heller Ehrman LLP, Debtor
333 Bush Street
San Francisco, CA 94104
Tax id: 94-1217308
Heller, Ehrman, White & McAuliffe, LLP

represented by  John D. Fiero
Pachulski, Stang, Ziehl, Young and Jones
150 California St. 15th Fl.
San Francisco, CA 94111-4500
(415) 263-7000
Email: jfiero@pszyjw.com

Responsible Ind
Peter J. Benvenutti
Heller Ehrman White and McAuliffe
333 Bush St.
San Francisco, CA 94104-2878
(415) 772-6000

U.S. Trustee
235 Pine St
Suite 700
San Francisco, CA 94104
(415) 705-3333 

December 29, 2008 in Current Affairs | Permalink | Comments (1) | TrackBack