By: Julia M. Wei, Esq. Generally, a prevailing party (the winner) will not recover attorneys’s fees and costs unless authorized by statute or by contract. In the bankruptcy context of non-dischargeability actions, the Supreme Court case of Cohen v. de la Cruz addresses the issue of attorney’s fees. In summary, the test under Cohen is [...]
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by Julia M. Wei, Esq. As judgment creditors know, it is one thing to obtain a judgment, but the hard work begins to collect and enforce on that judgment after. In California, one of the more challenging methods of collection allowed by the California Code of Civil Procedure “Enforcement of Judgment Law” (affectionately referred to [...]
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On Nov. 23, 2010, the 9th Circuit Court of Appeals found that bankruptcy debtor’s two “trusts” were invalid and that the Chapter 7 Trustee who sued for fraudulent transfer could recover on those theories of fraudulent transfer and alter ego. (In re Schwarzkopf). Debtor thought he was clever and set up two irrevocable trusts in [...]
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I have always thought it was unfair to consumers that banks would appear to work with the servicer and the borrower to accept forbearance payments or loan modification paperwork, yet another department from the same bank would tell the servicer or trustee to continue with the foreclosure process. The larger the institution, the more rampant [...]
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The Fair Debt Collection Practices Act (15 U.S.C. Section 1692(g)(a)(3) and (4)) has two different notice issues in it. Section 1692(g)(a)(3) requires a creditor to give notice to the debtor of their right to dispute the debt–however that section does NOT require that the debtor to put the dispute in writing! The next section, 1692(g)(a)(4) [...]
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Recently a family law attorney in Southern California wrote to me to ask if child support judgment holders needed to also record a special request for notice (Civil Code Section 2924) after I wrote about the recent case of BANC OF AMERICA LEASING & CAPITAL, LLC, v. 3 ARCH TRUSTEE SERVICES, INC., [ (2009) 180 Cal. App. 4th 1090].The answer is [...]
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In the recent case of Tarlesson v. Broadway Foreclosure Investments, LLC (May 17, 2010), the California Court of Appeal upheld a debtor's homestead exemption despite the fact that she had deeded away the property at one point because it was deeded back to her. It appears that the creditor attempted to have a judicial foreclosure [...]
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S. Family writes: "Do you know how we can get a judgment lien against a property when our judgment is in the name of the individual but the property is in the name of the individual's revocable trust?" Dear S. Family – If you already have a judgment, you should absolutely record an abstract [...]
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When a judgment creditor has gone all the way to verdict, has obtained the Judgment, the first thing the Judgment creditor does is record an Abstract of Judgment in the counties where the creditor thinks or knows that the debtor owns real estate. For example if the judgment creditor is the prevailing party in a [...]
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Judgment enforcement is a tricky thing. It's even harder when there are multiple creditors going after the same pot of money. In the case of Full Throttle Films, Inc. v. National Mobile Television, creditor Full Throttle tried to collect ~$400k. They filed suit against National Mobile and applied for for a writ of attachment–a pre-judgment [...]
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