Recommended reading for the past few days

March 9th, 2010
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Twitter Updates for 2010-03-09

March 9th, 2010
  • I've only been here for a few weeks, and my blood already thinned out. I'm freezing. It's 60 degrees. #

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Early reactions to Milavetz around the blogosphere

March 9th, 2010

I took a peek around the internet to see what bloggers were saying about today’s Supreme Court decision in Milavetz, Gallop, & Milavetz, P.A. v. United States, no. 08-1119.

Bob Lawless at the popular Credit Slips blog seems satisfied that the decision came out the way he expected, and chastised early reports for their inaccuracies. By contrast, M. Jonathon Hayes at the BankruptcyProf Blog was “shocked” given his read of the oral argument.

On the other hand, Scott Riddle at the Georgia Bankruptcy Blog was surprised that lawyers could be called anything but debt relief agencies under BAPCPA. Stephen Sather, an Austin bankruptcy, lawyer yawned along with Riddle on the designation, but made the point that BAPCPA survived its first constitutional salvo.

Steve Jakubowski at Bankruptcy Litigation Blog took the opportunity to remind us that today would have been Holmes’ 169th birthday. While Washington State bankruptcy lawyer Jay Jump lamented the decision as a lose-lose proposition for lawyers and their clients alike and rings the free speech warning siren in the process (maybe rightly) at the National Bankruptcy Forum.

As for the McLeod Law Offices, they are probably too busy to read the opinion, at least until the weekend. After all, if you haven’t heard, bankruptcy firms debt relief agencies are a little busy these days–just a little.

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Fearsome footnote two

March 8th, 2010

I was reading Ninth Circuit BAP case Dunn v. Chase Home Finance, LLC (In re Dunn), no. 09-1176 (9th Cir. B.A.P. Feb. 4, 2010) when I came across footnote two.  It says:

Dunn has provided us with little in the way of excerpts of record to work with.  For instance, she did not provide us with copies of her bankruptcy schedules and statements, nor do we have the transcripes . . . nonetheless [we] have independently reviewed [the electronic docket] . . . we have done our best to reconstruct what what transpired . . . [the appellant] bears the consequences of failing to meet [her] burden.

I’m pretty sure it was an oversight on the lawyer’s part, and I’m pretty sure the omissions alone would not prejudice the case too much, but this is the stuff that makes a geeky law student’s mouse finger twitch.

There are so many little twists and turns in procedure, so many chances to make a mistake.   I hope I never get my own footnote two from a panel of appellate judges. Or any judge.  Or equity partner, senior partner, junior partner, senior associate, associate, paralegal, or even copier repair guy.  I hate making mistakes.

Somewhat interestingly (again, to a geeky law student), the Bankruptcy Appellate Panel Judges, Markell, Montali, and Pappas, cited to Ehrenberg v. Cal. State Fullerton (In re Beachport Enter.), 396 F.3d 1083 (9th Cir. 2005) for the seeming proposition that they could reconstruct the transcripts.  I wonder what that case says…

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Having a Milavetz for lunch

March 8th, 2010

I’m skimming one of the long-awaited Supreme Court bankruptcy cases, Milavetz, Gallop, & Milavetz, P.A. v. United States, no. 08-1119, a Justice Soyomayor opinion, for lunch at a Starbucks at Park Central Mall in Phoenix.

By now, far more intelligent pundits than I have surely commented on it. Hopeful they are not confused by one of it’s most important holdings like I am.

In ruling that BAPCPA prohibitions do not violate free speech, the Court argued that section 526(a) “prohibits a debt relief agency only from advising an assisted person to incur more debt when the impelling reason for the advice is the anticipation of bankruptcy.”

I’m still confused because I was hoping it would more clearly address the situation where a client says, “I’m thinking about filing for bankruptcy, should I pay my Visa bill considering they will charge a late fee and increased interest rates?”

Doesn’t that incur more debt?

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Twitter Updates for 2010-03-07

March 7th, 2010
  • I am intensely jealous of Nick Spitzer #

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Thinking about adequate protection

March 6th, 2010

One of the most important things a bankruptcy court offers is the so-called automatic stay.  One of my bankruptcy professors called it the most powerful tool any lawyer has in any field of law.

It stops almost everything, stops it immediately.  That collection company has to stop garnishing your wages. The county judge has to stop that lawsuit. The foreclosure sale on your house stops.  Visa cannot so much as dial the phone to call you.  Yet, if you owe a bank (or other creditor) for a payment on a car or house, the bank is likely going to be able to convince the bankruptcy court to lift the stay if they can convince the judge that they are not “adequately protected.”  Why?

At first, I thought “adequate protection” was Congress’s way of trying to throw creditors a bone.  That is, Congress gave a bankruptcy filers a lot of power, but Congress also wanted a way to protect a secured creditor’s collateral.

But when I looked at the legislative commentary, Congress didn’t mention that particular concern in 1978. Instead, it seems like Congress was more concerned about Fifth Amendment Takings issues.

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Recommended reading for the past few days

March 5th, 2010
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Recommended reading for the past few days

March 3rd, 2010
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How ironic

March 3rd, 2010

I am working as a law clerk until April for a creditors’ rights firm learning about foreclosures and creditors’ law in bankruptcy in a big building in downtown Phoenix.  And tonight, I just saw this article:

A lender is seeking to foreclose on the Viad Corporate Center, a high-rise office tower on Central Avenue in Phoenix, the latest example of the region’s commercial real-estate woes. Bank of America has asked a Maricopa County Superior Court judge to appoint a receiver for the signature tower at 1850 N. Central Ave. The lender said the building’s owner has not kept current since December on a $65 million loan.

Here’s the full article.

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