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“For bankruptcy professionals who . . . aspire to excellence”- Morgan King, Esq. |
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THE KING BANKRUPTCY LETTER NEWS & UPDATES THE BANKRUPTCY LETTER ARCHIVES CLICK ON
LETTER # BELOW FOR FULL TEXT HEADLINES FOR # 201
Dec. 28 2011 ACADEMY APPROVED FOR 14.5 MCLE HRS The State Bar of California has accredited the King Bankruptcy Academy 2 1/2-day course on Discharging Taxes in Bankruptcy for 14.25 MCLE hours, applicable for the course presented at any time during the period Nov. 14 2011 through Nov. 16 2012. The 2011 course was recently concluded in San Francisco, Nov. 14-16, at Fisherman's Wharf. Thirty-five enrollees and instructors participated. In addition to Morgan King, instructors included attorneys David Greenberg (San Diego, CA), Max Cline and Melanie Tavare (Oakland, CA), Mac MacPherson (Phoenix, AZ), Reba Wingfield (Little Rock, AR), and Larry Heinkel (Florida). TOPICS COVERED: Discharging federal and state income taxes, interest and penalties in consumer bankruptcy cases. • Personal income taxes • Chapter 7 and 13 cases • Tolling events • Using Tax Transcripts • Kinds of transcripts • How to get them • The IRS Priority Hotline • Transaction codes, etc. • Freedom of Information Act • Penalties • Interest • Sales taxes • Payroll trust fund taxes • Handling tax liens • Handling a tax discharge case • Using checklists • Other forms • Getting help (enrolled agents etc.) • Dealing with clients • Dealing with the IRS Non-Bankruptcy Remedies For Delinquent Taxes • Offer-in-Compromise • Collection Due Process • Transmutation agreements • Litigation of tax issues NEXT COURSE EVENT The course will be presented in 2012 in Las Vegas, NV and once on the east coast. For information visit DischargeTaxes.com. CLICK HERE FOR MORE INFORMATION ABOUT KING'S DISCHARGING TAXES RESOURCES HOTWIRE # 65 DEC. 28 2011 In re Veal (9th Cir. BAP 2011) CLICK HERE FOR TEXT OF VEAL OPINION FAILURE TO PROPERLY DOCUMENT TRANSFER OF INTEREST IN NOTE OR OTHER FORMALITIES RESULTS IN LACK OF STANDING TO FORECLOSE: MOTION FOR RELIEF FROM STAY DENIED In this Chapter 13 case the ostensible agent for Wells Fargo Bank could not establish that Wells Fargo had possession of the note or had other right to payment. This lengthy opinion is a thorough stand-alone discourse on the key elements required for standing to foreclose (and hence assert a claim in bankruptcy), and draws an important distinction between assignment of the mortgage and assignment of the note. Wrote the court: "We hold that a party has standing to seek relief from the automatic stay if it has a property interest in, or is entitled to enforce or pursue remedies related to, the secured obligation that forms the basis of its motion. "Thus, unlike the assignment from GSF to Option One, the purported assignment from Option One to Wells Fargo does not contain language effecting an assignment of the Note. While the Note is referred to, that reference serves only to identify the Mortgage. Moreover, unlike the first assignment, the record is devoid of any indorsement of the Note from Option One to Wells Fargo. As a consequence, even had the second assignment been considered as evidence, it would not have provided any proof of the transfer of the Note to Wells Fargo. At most, it would have been proof that only the Mortgage, and all associated rights arising from it, had been assigned. "Here, the Veals allege that neither Wells Fargo nor AHMSI have shown they have any interest in the Note or any right to be paid by the Veals. They seek to invoke prudential standing principles which generally provide that a party without the legal right, under applicable substantive law, to enforce an obligation or seek a remedy with respect to it is not a real party in interest. " .. while the failure to obtain the indorsement of the payee or other holder does not prevent a person in possession of the note from being the "person entitled to enforce" the note, it does raise the stakes. Without holder status and the attendant presumption of a right to enforce, the possessor of the note must demonstrate both the fact of the delivery and the purpose of the delivery of the note to the transferee in order to qualify as the "person entitled to enforce." "As to Wells Fargo, it had to show it had a colorable claim to receive payment pursuant to the Note, which it could accomplish either by showing it was a "person entitled to enforce" the Note under Article 3, or by showing that it had some ownership or other property interest in the Note. "In particular, because it did not show that it or its agent had actual possession of the Note, Wells Fargo could not establish that it was a holder of the Note, or a "person entitled to enforce" the Note. "In addition, even if admissible, the final purported assignment of the Mortgage was insufficient under Article 9 to support a conclusion that Wells Fargo holds any interest, ownership or otherwise, in the Note. Put another way, without any evidence tending to show it was a "person entitled to enforce" the Note, or that it has an interest in the Note, Wells Fargo has shown no right to enforce the Mortgage securing the Note. Without these rights, Wells Fargo cannot make the threshold showing of a colorable claim to the Property that would give it prudential standing to seek stay relief or to qualify as a real party in interest. "In the context of a claim objection, both the injury-in-fact requirement of constitutional standing and the real party in interest requirement of prudential standing hinge on who holds the right to payment under the Note and hence the right to enforce the Note. "With respect to Wells Fargo's request for relief from the automatic stay, we hold that a party has standing to seek relief from the automatic stay if it has a property interest in, or is entitled to enforce or pursue remedies related to, the secured obligation that forms the basis of its motion. " ... the purported assignment from Option One to Wells Fargo does not contain language effecting an assignment of the Note. While the Note is referred to, that reference serves only to identify the Mortgage. Moreover, unlike the first assignment, the record is devoid of any indorsement of the Note from Option One to Wells Fargo. "As a consequence, even had the second assignment been considered as evidence, it would not have provided any proof of the transfer of the Note to Wells Fargo. At most, it would have been proof that only the Mortgage, and all associated rights arising from it, had been assigned. |
PRODUCTS & IMPORTANT LINKS & SERVICES   OUTSOURCING SERVICES 
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GETTING AROUND THIS WEB SITE HOW DO I . . . ? FIND OUT WHAT KING BANKRUPTCY PRACTICE IS ALL ABOUT? Find the ABOUT button at the top of this page, and click on it. FIND THE VARIOUS PROGRAMS SPONSORED BY THIS SITE? The colored columns appearing above contain the 4 main programs of King Bankruptcy Practice. Each column contains links to the various features of each program. Another way to get around is to go to the top of this page and find the navigation buttons for "Bookstore" (BankruptcyBooks.com), "Academy" (BankruptcyAcademy.com), "E-LETTERS" (The Bankruptcy Letter), and "LLM PROGRAM" (the academic program leading to a masters degree in bankruptcy law). There is also a drop-down menu at the top, center of this page entitled KING BANKRUPTCY PRACTICE DIRECTORY. This directory includes the main pages, plus a number of additional pages and links that you may find useful. BUY BOOKS IN THE KING BANKRUPTCY PRACTICE SERIES? 1. Go to BankruptcyBooks.com. In the center column find and click on the logo for King Bankruptcy Practice Series. BUY UPDATES TO THE BOOKS? 1. Go to BankruptcyBooks.com 2. In the middle column, click on "King Bankruptcy Practice Series" 3. At King Bankruptcy Practice Series click on the UPDATES button near the top of the page. 4. At the Updates scroll down and find updated books, and also update supplements. 5. Complete your order GET MONTHLY UPDATES? 1. To get more frequent updates, join The Bankruptcy Academy. As a member, you get The Academy Letter which has a New Case Hotsheet and Book Updates several times a month. The "dues" are $10.95/mo. JOIN THE BANKRUPTCY ACADEMY? 1. Go to BankruptcyAcademy.org 2. See the "CLICK HERE" link just under the page title BankruptcyAcademy.org. 3. Fill in the form and submit. You can make a choice of monthly or annually. SIGN UP FOR AN ACADEMY COURSE? 1. Go to BankruptcyAcademy.com. 2. Click on the COURSES button in upper left corner. 3. Select a course and enroll online with a credit card. GET ACADEMY CERTIFICATION? 1. Go to BankruptcyAcademy.com. 2. Click on the CERTIFICATION button in upper right corner. 3. Read about certification. |
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THE KING BANKRUPTCY PRACTICE CLINIC Have a problem with some aspect of consumer bankruptcy law, procedure, or practice? Let our Bankruptcy Academy members have a try at it. Pose your question or issue here (below) and if we can come up with something helpful we'll post it here. |
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