September 25, 2009
Thank You for Two Years
Today marks the second anniversary of this blog. I'm pretty proud of the blog and really appreciate the views and comments I receive from colleagues. I've tried to maintain the mandate from Prof. Paul Caron:
What Law Professor Blogs Are
The permanent resources & links and daily news & information are designed to collect in one place materials helpful to law professors in their scholarship and teaching:
So the blog has received 77,000 hits in two years; 21,000 the first year (2,600 total the first five months). Thanks for reading. Let me know what you think.
Judge Keith Lundin New Book on Chapter 13 Due out Shortly
I plugged Judge Keith Lundin's Chapter 13 book in the introduction to my book, A Summary of Bankruptcy Law. A fellow consumer bankruptcy attorney asked me how to get the book so I went to the source myself. I'm happy to help Judge Lundin get the word out. His treatise has a staggering amount of information on chapter 13 and cites to every case ever I think. Here is the email I sent to Judge Lundin and his response.
I plugged your chapter 13 book in my book, A Summary of
Bankruptcy Law. How do people go about buying the book? I attached the
pdf of my book. The plug is in the introduction. I have met you a few
times at the Norton Institutes in Las Vegas, an exceptionally enjoyable
“The Rutter Group book on Bankruptcy by Judges Alan Ahart and Leslie Tchaikovsky, and retired Judge Kathleen March is a great reference and resource. It is also geared to the world of California bankruptcy. In the chapter 13 arena, Judge Keith Lundin‟s book, Chapter 13, 3rd.Ed, is a must for your bookshelf. And by the way, if you ever get a chance to listen to Judge Lundin, don’t miss the opportunity. He is an engaging and funny populist who has sat on the bankruptcy court in Nashville, Tennessee for many years. Every bankruptcy attorney in the Ninth Circuit should have a copy of Judge Randall Newsome‟s Research Notebook – print it out and keep it by your desk. You can get it online by doing a google search.”
Judge Lundin's response:
Jon -- thanks so much for the nice plug and for asking. The place to go
for now is <bankruptcypress.com>. In the next month or so the 4th Edition
will be uploaded to <ch13online.com> and on-line subscriptions with lots of
other stuff will be available there. Hope to see you at a seminar soon.
take care. kml
September 23, 2009
State Median Family Income Revisions Due Next Week
From Dennis McGoldrick:
The updated Census Bureau State Median Family Income figures are scheduled to be posted to the U.S. Trustee Program website the week of September 28, 2009. The DOJ will apply the new figures to petitions filed on or after October 12, 2009.
Ten Companies Veering Towards BankruptcyPretty interesting article on Yahoo predicting that Hertz, Goodyear, CBS, Macys, Sprint are all traveling down that chapter 11 highway. "Its not the end of the world, but you can see it from here." Some unknown athlete. The article is here.
Solicitor General Amicus Brief in Exemption Case - Schwab v. ReillyThe Solicitor General supports the trustee. Its brief can be accessed here.
September 21, 2009
Calvin Ashland Awards Dinner - November 4, 2009
THE CENTRAL DISTRICT CONSUMER BANKRUPTCY ATTORNEYS ASSOCIATION
2009 CALVIN ASHLAND AWARDS DINNER
PLEASE JOIN US FOR A NIGHT OF CELEBRATION TO POSTHUMOUSLY HONOR
THIS YEAR'S CALVIN ASHLAND ATTORNEY OF THE YEAR
(Presented by cdcbaa President James T. King)
November 4, 2009
Marriott Hotel Grand Ballroom
333 South Figueroa Street
Los Angeles, CA 90071
Special presentation by Southern California Bankruptcy Inn of Court
Reception and no-host bar at 6:00 p.m. followed by dinner, Bankruptcy Inn of Court skit, and awards presentation at 7:00 p.m.
$95 CDCBAA Member/guests who RSVP & pay before 10/15/09; $115 Non-member/guests and Member/guests who RSVP & pay after 10/15/09; $75.00 Government Employees
Please RSVP by October 28, 2009
For seating availability, please email PeterMLively@aol.com or call (310) 899-0630
9th Circuit Rules that Section 506(b) Preempts State Law on Attorneys Fees
Countrywide Home Loans v. Hoopai (In re Hoopai), ---- F. 3d ----, 2009 WL ------------- (9th Cir. Sept. 2009)
Issue: Is an oversecured creditor’s right to fees under Section 506(b) limited by state law? Does an oversecured creditor have the right to fees under 506(b) incurred after a chapter 13 plan is confirmed?
Holding: No on either. 506(b) pre-empts state law but the right under 506(b) ends on confirmation.
Appeal from the BAP
Judge Richard Paez
Prior to filing her chapter 13, the debtor sold her home for $300,000 but did not complete the sale. Also prior to the filing, Countrywide conducted a foreclosure action selling the same home to a third party for $159,000. “However, Countrywide did not record the affidavit of sale as required by Hawaii Revised Statutes section 667-5 to conclude the sale.” The debtor filed chapter 13 three days after the foreclosure but before the affidavit of sale was recorded. The debtor moved to complete her sale, and Countrywide moved for relief. The bankruptcy court denied the MFR, granted the debtor’s motion and confirmed the plan. Both sides appealed and the district court affirmed both decisions. The debtor’s sale was ultimately completed but Countrywide wanted $85,000 in attorneys fees as an oversecured creditor under 506(b). The debtor filed a declaratory relief action re the fees and requested fees herself under Hawaiian law as the prevailing party. The bankruptcy judge ruled that Countrywide was the prevailing party and that the requested fees were reasonable.
The BAP reversed saying that Countrywide was not the prevailing party and remanded to reconsider the rulings on that basis. Countrywide appealed saying that even if it was not the prevailing party as required to get fees under Hawaiian law, it was entitled to the fees under 506(b) since 506(b) preempts state law.
The Court of Appeals reversed both and remanded. It said that both the court and the BAP incorrectly assumed that there was no right to fees unless Hawaiian law permitted the fees. “[O]ur case law has firmly established that § 506(b) entitles oversecured creditors to enforce contractual attorneys’ fees provisions and preempts state law on attorneys’ fees.” “Countrywide’s entitlement to attorneys’ fees under § 506(b) is not limited by state law.”
The Court of Appeals then looked at the “temporal scope” of the fees. The issue was whether Countrywide has a right to fees for its efforts after confirmation of the plan. Countrywide argued that it had the right to fees at least until the plan’s “effective date,” that is, when the sale was completed a year later. The 9th Circuit ruled that the right to fees under 506(b) ends when the plan is confirmed “because a confirmed plan establishes the scope of all claims against the debtor.” “[A] contrary result would be inconsistent with the purpose of section 506(b), which allows oversecured creditors to include post-petition interest and certain fees as part of the secured claim they will receive upon confirmation of the plan.” Also, “because § 1325(a) provides secured creditors with a different right to interest from the ‘effective date of the plan’ through payment, §506(b) would seem to conflict with § 1325(a) if both were to apply during the same time period.” It ruled that here the confirmation date and the effective date were the same (as would be the case almost always it comments). Therefore, to receive post-confirmation fees, Countrywide must proceed under state law. The Court of Appeals ruled that the debtor was the prevailing party and that Countrywide therefore did not have the right to post-confirmation fees. Because the debtor was the prevailing party, she may have the right to her fees and remanded the whole thing back to the bankruptcy court.