Case Updates

The U.S. Court of Appeals for the Ninth Circuit held that a trustee’s lien avoidance power extends to unperfected proceeds of consigned goods. In re Pettit Oil Co., 917 F.3d 1130 (9th Cir. 2019). Read more

Addressing a possible conflict between state and federal precedents, the Bankruptcy Appellate Panel for the Ninth Circuit, in Highland Greens Homeowners Ass’n v. de Guillen (In re de Guillen), 604 B.R. 826 (9th Cir. BAP 2019), held that assessment liens of a homeowners association (“HOA”) are secured claims in bankruptcy only to the extent of the amount stated in the recorded lien. HOA liens are not continuing liens unless the CC&Rs so provide. Read more

hillips v. Gilman (In re Gilman), 603 B.R. 437 (9th Cir. BAP 2019), the U.S. Bankruptcy Appellate Panel of the Ninth Circuit ruled that following a bankruptcy filing, 11 U.S.C. § 108(c)(2) does not toll the two-year period for requesting postpetition, post-judgment fees and costs under California Code of Civil Procedure § 685.080. Read more

In United States Dep’t of Agriculture v. Hopper (In re Colusa Reg’l Med. Ctr.), 604 B.R. 839 (9th Cir. BAP 2019), the U.S. Bankruptcy Appellate Panel of the Ninth Circuit vacated a bankruptcy court's order surcharging a secured creditor for a substantial portion of the attorneys’ fees, and the entire statutory fee, of a chapter 7 trustee. The basis for the decision was that the bankruptcy court failed to correctly apply either the objective test for surcharge adopted by the Ninth Circuit (that the funds were expended directly, specifically and primarily for the benefit of the secured creditor) or the subjective test for surcharge (that the secured creditor consented to the expenditure). Read more

In In re Rosenberg (Rosenberg v. N.Y. State Higher Education Services Corp., et al.), No. 18-09023, 2020 WL 130302, 2020 Bankr. LEXIS 73 (Bankr. S.D.N.Y., Jan. 7, 2020), Chief Judge Cecelia Morris of the United States Bankruptcy Court, Southern District of New York, in a decision to be published, granted Kevin Rosenberg’s summary judgment motion, finding that his student loan obligations were dischargeable pursuant to 11 U.S.C. § 523(a)(8). A Notice of Appeal and Memorandum For Leave to Appeal Interlocutory Order seeking District Court review were filed in the bankruptcy case on January 17, 2020. The bankruptcy court entered the Order Granting Leave to Appeal on January 17, 2020. Read more

Monty A. McIntyre, Esq. is the publisher of California Case Summaries™. Monty hasbeen a California civil trial lawyer since 1980, a member of ABOTA since 1995, and currently works as a full-time mediator, arbitrator and referee with ADR Services, Inc. (ADR) in ADR’s offices in San Diego, Irvine, and Los Angeles. Read more

In Glasser v. Hilton Grand Vacations Company, LLC., No. 18-1449 (2020), the Eleventh Circuit ruled that the TCPA’s definition of an auto-dialer requires random or sequential number generation. This decision aligns with the Third Circuit and certain district courts that are split with the Ninth. In Marks v. Crunch San Diego, LLC, 904 F.3d 1041 (2018), the Ninth Circuit broadly construed the definition to include equipment that dials automatically from a stored list. Glasser adopts a significantly narrower definition. Read more

On January 23, 2020, the California Court of Appeal, First Appellate District, in the case of Jensen v. iShares Trust, 2020 Cal. App. LEXIS 61, affirmed a lower court ruling that individual investors who purchased shares in exchange-traded funds (“ETFs”) through the secondary market and then incurred losses lacked standing to pursue their claims for violations of various provisions of the federal Securities Act of 1933 (the “Securities Act”) against the issuer and associated entities principally because the investors purchased… Read more

Covington v. Great Basin Unified Air Pollution Control Dist. (2019) _ Cal.App.5th _ , 2019 WL 7169140: In a California Environmental Quality Act (CEQA) challenge to the approval of a geothermal power plant to be located on federal land in Mono County, the Court of Appeal ruled that the Great Basin Unified Air Pollution Control District (District) was the proper lead agency to undertake preparation of an environmental impact report, and the permit limiting the daily Reactive Organic Gas (ROG) emissions was sufficient evidence of the amount of the emissions. Read more

On January 21, 2020, the California Court of Appeal, Second Appellate District, in the case of Techno Lite, Inc. v. EMCOD, LLC, 2020 Cal. App. LEXIS 41, in the portion of the decision certified for publication, upheld the trial court and rejected the defendants’ contention that they could not be liable for fraud because their false promise not to compete against their employer while employed was void because the noncompete agreement violated section 16600 of the California Business and Professions Code prohibiting restraints of trade. Read more