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Not All Expenses Of A Professional May Be Compensable By The Estate, Even In The Face Of A Clear Retainer Agreement And An Approved Employment Application!

Published on October 11, 2016 by

The facts of the situation are not in dispute. The Debtor in a Chapter 11 case needed to hire a forensic accountant. The Debtor applied for permission to hire the accountant under § 327(a) of the Bankruptcy Code. The employment application did not contain any special provisions but the engagement letter contained the following clause: […]

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Lawyers Cannot Be Held Liable For Malpractice If The Bad Advice They Give Leads To A Result That Was Not Foreseeable

Published on October 11, 2016 by

For those of you who do not like analysis: lawyers cannot be held liable for malpractice if the bad advice they give leads to a result that was not foreseeable. In the case summary below, the client was given bad advice which led to her being prosecuted for forgery. Under the particular facts of the […]

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Lawyers Are Not Allowed to Speak with Their Clients about the Client’s Intention to File a State Bar Complaint!

Published on October 11, 2016 by

Business and Professions Code § 6090.5 prohibits an attorney from seeking a client’s written or oral agreement not to file a State Bar complaint against that attorney. The reason for this is the discussion could produce an impermissible chilling effect on the client’s future filing of a State Bar complaint. Even worse, if you have […]

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Judge Bauer Reversed, Trustee Clawback Power Strengthened

Published on October 11, 2016 by

In this case, the sole shareholder, director and president of a company (all the same Individual) transferred about $8,000,000 into a secret bank account which he then used to pay personal debts. The question before the Court was whether the transfers to the bank account made the Individual, in his personal capacity, an initial transferee […]

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9th Circuit BAP Opinion Allows For Stripping Wholly Unsecured Junior Liens in a Chapter 20

Published on October 11, 2016 by

On June 9, 2015, the 9th Circuit Bankruptcy Appellate Panel held that a Debtor not eligible for a Chapter 13 discharge may strip off a wholly unsecured lien through a Chapter 13 Plan. You can find the case here. This is common practice in the Central District and I am happy the BAP went the […]

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Tactical Use of Bankruptcy when a Lis Pendens is Recorded

Published on October 11, 2016 by

On June 2, 2015, the California Court of Appeals issued a decision where it reversed the Superior Court’s decision to grant priority to a judgment lien recorded by a party after a lis pendens was recorded by a different party. While some nuances about the interaction of fraudulent transfer judgments and lis pendens were discussed, […]

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Does an annuity inherited by a spouse constitute “retirement funds” within the meaning of § 522(b)(3)(C)?

Published on October 11, 2016 by

For the purpose of this blog, I am going to assume that the annuity in question would be exempt had the decedent been alive. At first, I thought the answer was simple: Assuming the annuity was a retirement fund to begin with, the answer is yes, it continues to be a retirement fund because under […]

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California Supreme Court Overrules 50 Year Precedent Regarding Unambiguous Wills

Published on October 11, 2016 by

Irving Duke prepared a holographic will providing that, upon his death, his wife would inherit his estate and that if he and his wife died at the same time, specific charities would inherit his estate. This will is not ambiguous, there are two options here: Option 1, when Irving dies, his wife will inherit his […]

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CD Case Summary: Judge Maureen A. Tighe on Contempt for Violation of Discharge Injunction and Automatic Stay

Published on October 11, 2016 by

The creditor here had three excuses. First, they did not have actual notice of the bankruptcy (so there was no willful violation of the stay); second, that the statute of limitations for violating the automatic stay had run; and third, that it was the former attorney’s fault. A violation of the automatic stay is willful […]

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Despite Lis Pendens, Subsequent Purchaser with Notice Prevails!

Published on October 11, 2016 by

This is relevant to bankruptcy practitioners because before we can do anything, we need to know who owns what! Short version: In California, a notice of lis pendens gives constructive notice that an action has been filed affecting title or right to possession of the real property described in the notice. Any taker of a […]

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