Case Updates

Summary: A bankruptcy court in New York has held that a liquidated damages clause based on "stipulated loss value" contained in an equipment lease was void because the lessee's liability was not connected to any losses caused by the lessee's default; further, the clause could not be enforced against a guarantor, even though the guarantee contained broad waivers. [In re Republic Airways Holdings, Inc., 2019 Westlaw 630336 (Bankr. S.D.N.Y.).] Read more

Summary: The California Supreme Court has held that when a creditor proffers a declaration in lieu of live testimony in a limited civil case, the affiant must be available for service of process within 150 miles of the place of trial, under some circumstances. [Meza v. Portfolio Recovery Associates, LLC, 2019 Westlaw 641517 (Cal.).] Read more

Summary: In In re QDOS, Inc., 591 B.R. 843 (Bankr. C.D. Cal. 2018), the bankruptcy court interpreted the meaning of the phrase “subject of a bona fide dispute as to liability or amount” in 11 U.S.C. § 303(b)(1). A dispute as to liability, the court held, means a “dispute over the entirety of the claim,” whereas a dispute as to amount means “a dispute only over a portion of the claim.” A legitimate dispute as to either liability or any portion of the amount of a claim is sufficient to disqualify a claim holder from qualifying as a petitioning creditor in an involuntary case. Read more

Summary: In Bank of New York Mellon v. Lane (In re Lane), 589 B.R. 399 (9th Cir. BAP 2018), the U.S. Bankruptcy Appellate Panel of the Ninth Circuit (the "BAP") held that disallowance of a claim for lack of standing by the claimant did not also void the underlying lien under 11 U.S.C. section 506(d) because no argument had been made by the debtor that the lien or underlying obligation was substantively invalid. Read more

In Ryan v Real of the Pacific, (2019) 32 Cal.App.5th 637, 244 Cal.Rptr.3d 129, filed on February 26 of this year, the California Court of Appeal for the Fourth Appellate District held that expert witness testimony is not required in order to establish a claim that a broker breached its duty to its client, the seller, by not disclosing to the seller a known material fact affecting the value of the property. Read more

By Douglas Borchert Douglas Borchert This new currently unpublished case addresses a subject that the author of this note discussed in the Claims Awareness Hot Sheet of the California Land Title Association in Volume 26, Number 2 of February 2016 in an Article entitled “Title Insurance and the Concept of Marketable or Merchantable Title.” http://www.hhlawgroup.com/_content/PDF/2016_January.pdf.In that article I noted that confusion arises because the term marketable has a completely different meaning in the title insurance context than it does it… Read more

Taniguchi v. Restoration Homes (2019)_ Cal.App.5th _ , 2019 WL 1923068: The Court of Appeal reversed the trial court's order granting defendant's motion for summary judgment in an action alleging defendant violated Civil Code section 2924c. The Court of Appeal ruled that, to cure a default and reinstate the loan under section 2924c, the borrowers need not pay the amount of an earlier default on the original loan (which had been deferred under a loan modification to the end of the loan term). They are only required to pay the missed modified monthly payments that caused a default on the modified loan. (C.A. 1st, April 30, 2019.) Read more

By Barry Lesch The First District Court of Appeal gave employers and carriers an unexpected Christmas present a few days early with its published opinion in City of Petaluma v. WCAB (Lindh), No. A153811, which issued on December 10, 2018.  The case reinforces and reinvigorates the notion that legally valid apportionment can come from underlying pathology or an asymptomatic pre-existing condition or disease. Though SB 899 was supposed to create a sea change in how the compensation system worked for… Read more

Trial court did not err in denying defendant's motion to suppress drug evidence where a dog sniff that occurred while an officer was writing a citation did not unconstitutionally prolong defendant's detention for a traffic stop. A police officer with a narcotics-certified dog stopped Vera because his car windows were illegally tinted. Because the officer could not see into Vera's car, he ordered Vera out of the car. Read more

Summary: The Second Circuit has held that the FTC was empowered to force a corporate officer to disgorge $11 million, his companies' gross revenue, as a result of the corporations' fraudulent debt collection practices. [Federal Trade Commission vs. Moses, 2019 Westlaw 166011 (2nd Cir.).] Read more