December 5, 2009
Circuit Court of Appeals Cases from Last Week
1st Circuit Court of Appeals, November 24, 2009
Boston & Maine Corp. v. Massachusetts Bay Transp. Auth., --- F.3d ---, 2009 WL ---------- (1st Cir. 2009)(cleanup claims barred by 1983)
2nd Circuit Court of Appeals, November 23, 2009
O'Rourke v. US, --- F.3d ---, 2009 WL ---------- (2nd Cir. 2009)(IRS claim allowed where 1) the bankruptcy court's finding that a notice of deficiency was mailed to debtors was not clearly erroneous; 2) debtors identified no affirmative misconduct on the part of the IRS warranting an estoppel; and 3) their argument that the certified mail log was inadmissible was waived)
Thanks to Findlaw.com
Back on the Job
Well, my son and I got back from Washington on Wednesday night. I had two hearings on Thursday which took the whole day and phone call after phone call on Friday. Today and tomorrow I can get some work done. I have 14 chapter 11s going on right now and will probably file another on Monday. They are virtually all individuals trying to save real property. About half are trying to save their homes, half have additional pieces of real property they purchased in the last few years when loans were easy to get. The properties are always underwater. The debtors have tried extensively to get a "loan mod" prior to coming to me. The retainers I get are usually small and the paperwork huge. My most common statement to my exasperated clients is "GM filed the same chapter 11 that you filed." It is my sense that the judges are getting a little exasperated also with the number of cases filed by people who simply cannot afford the property they have and will not accept that - they are hoping that a delay will somehow help. In the chapter 11 bankruptcy arena, I rarely see aggressive efforts by the banks - and I am no fan of banks. Most banks in chapter 11 wait a few to several months before taking action to get relief from stay and finish the foreclosure, even if they are not getting monthly payments. It may be because they are so busy, or the few firms that do the work in bulk are so busy, or because they too are hoping that a delay will somehow help to get the loan caught up or paid. The tragedy is that the chapter 13 limits are not increased. If the secured debt limit was increased to $2 million, my 14 cases would become two or three. I'll post the Circuit Court of Appeals Cases for the past two weeks today and tomorrow. Thanks for continue to follow my blog. JH
December 1, 2009
Oral Argument at the Supreme Court, Milavetz and Espinosa
This morning was oral argument on Milavetz and Espinosa. It sure is a fun experience. Without a doubt, the guy having the most fun up there is Breyer. He asked bunches of questions with a big smile on his face - proud of himself - and then he would visit with Sonia Sotomayor next to him and Clarence Thomas on the other side. John Roberts had a lot of questions and when he speaks, everyone listens. You can really see the deference the other judges give him. Stevens was pretty quiet; Thomas said not a word. Alito always seems annoyed.
On the merits of Milavetz, I was prepared to concede that attys (me) are debt relief agencies especially when the judges were grilling the atty arguing that the statute is unconstitutional. Breyer pointed out that the statute says anyone who is going to appear in court or anyone who undertakes legal representation of an assisted person is a debt relief agency. That makes it clear Congress intended to include attorneys. But when the government got up, Alito said "people don't want a debt relief agency to do their bankruptcy, they want a lawyer." Breyer said, "What if a big firm represents someone's brother-in-law in a chapter 7, is the big firm forever after a debt relief agency?" The answer was yes which is ridiculous. A few of them said that the speech issue was nothing - all it means is don't tell the client something bad. But Roberts pointed out - forcefully - that Congress is trying to accomplish something - keep people from ripping off credit card companies - by telling attorneys what not to tell their clients. No matter how attorneys answer some of the client's questions including not answering them, could be a signal to the client which could put the atty in jeopardy.
On Espinosa, it seems pretty clear they are going to affirm the Kozinski ruling. They kept saying the bankruptcy judge made a mistake but that doesn't make the judgment void. I felt bad for the lady arguing the side to reverse Kozinski. They were kind of mocking her. The debtor's counsel who spoke later wasn't much good either. He suggested that no matter what the plan said, if there was no objection, it could not be attacked later except through Rule 60(b).
November 29, 2009
30 Years, and by the way, We're Here
It was 30 years ago today (think the Beatles), November 29, 1979 - I was sworn into the California Bar. So tomorrow I start the next 30 years.
My son and I went to Ford's Theater today - it was closed to the masses because The Christmas Carol was playing live. So we walked to the Washington Memorial, then the Lincoln Monument. I got choked up reading Lincoln's second inaugural, carved into one wall. It's the shortest inaugural ever made. The speech is worth a read. God decided to get rid of slavery, he says, and made both sides pay and if it's not over, so be it - it will proceed (March 1865):
"Fondly do we hope--fervently do we pray--that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue, until all the wealth piled by the bond-man's two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash, shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said "the judgments of the Lord, are true and righteous altogether"
"With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation's wounds; to care for him who shall have borne the battle, and for his widow, and his orphan--to do all which may achieve and cherish a just and lasting peace, among ourselves, and with all nations."
My son and I then went out to the steps and someone was playing a tape of Martin Luther King's I Have Dream speech. We sat on the steps staring out on the reflecting pool listening to MLK.
"I say to you today, my friends, so even though we face the difficulties of today and tomorrow, I still have a dream. It is a dream deeply rooted in the American dream.
I have a dream that one day this nation will rise up and live out the true meaning of its creed: "We hold these truths to be self-evident: that all men are created equal."
I have a dream that one day on the red hills of Georgia the sons of former slaves and the sons of former slave owners will be able to sit down together at the table of brotherhood.
I have a dream that one day even the state of Mississippi, a state sweltering with the heat of injustice, sweltering with the heat of oppression, will be transformed into an oasis of freedom and justice.
I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.
I have a dream today.
I have a dream that one day, down in Alabama, with its vicious racists, with its governor having his lips dripping with the words of interposition and nullification; one day right there in Alabama, little black boys and black girls will be able to join hands with little white boys and white girls as sisters and brothers.
I have a dream today.
I have a dream that one day every valley shall be exalted, every hill and mountain shall be made low, the rough places will be made plain, and the crooked places will be made straight, and the glory of the Lord shall be revealed, and all flesh shall see it together.
This is our hope. This is the faith that I go back to the South with. With this faith we will be able to hew out of the mountain of despair a stone of hope. With this faith we will be able to transform the jangling discords of our nation into a beautiful symphony of brotherhood. With this faith we will be able to work together, to pray together, to struggle together, to go to jail together, to stand up for freedom together, knowing that we will be free one day.
And if America is to be a great nation this must become true. So let freedom ring from the prodigious hilltops of New Hampshire. Let freedom ring from the mighty mountains of New York. Let freedom ring from the heightening Alleghenies of Pennsylvania!
Let freedom ring from the snowcapped Rockies of Colorado!
Let freedom ring from the curvaceous slopes of California!
But not only that; let freedom ring from Stone Mountain of Georgia!
Let freedom ring from Lookout Mountain of Tennessee!
Let freedom ring from every hill and molehill of Mississippi. From every mountainside, let freedom ring.
And when this happens, when we allow freedom to ring, when we let it ring from every village and every hamlet, from every state and every city, we will be able to speed up that day when all of God's children, black men and white men, Jews and Gentiles, Protestants and Catholics, will be able to join hands and sing in the words of the old Negro spiritual, "Free at last! free at last! thank God Almighty, we are free at last!"
It was really a great day. JH