It is Amazing What Lengths People Will Go To In Order to Avoid Payment of a Bona Fide Debt.
 Within the past year we have seen more attempts to hide assets than ever before. We have filed more Sister State Judgments where debtors have moved assets from other states to California and more Fraudulent Conveyance Actions where property has been transferred to third persons. We have fought several Motions to Vacate Entry of Judgments based upon made up grounds. In the months to come, we will explore the reasons.
On an unrelated topic, but of interest, last week, in a decision expected to affect college and high-school parties, the California Supreme Court ruled that an underage host collecting an entry fee for a party with alcohol is akin to a nightclub, making the host liable if an intoxicated under-21 guest kills or injures another person.
If you have missed any of our earlier Newsletters, you can find them on the left side of the Home Page of our Blog Site located at www.glassgoldbergblog.com.
Warmest regards
Marshall Goldberg,
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Carefully Deciding Who to Place on the Witness Stand
One of the most important maxims law students or young litigators are taught to follow is "Never ask a question you do not already know the answer to." This oft-repeated advice warns attorneys to beware of a situation in which a witness answering questions may offer evidence that undermines your own case if you are not careful. It is for this reason that good attorneys painstakingly prepare their questions to avoid eliciting any bombshells which could erupt if they fail to confine their inquiries about which they are certain. Read More
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Taking Two Bites at the Same Apple Barred by Res Judicata Doctrine
The law in California, as in other states, gives a losing party in a lawsuit the chance to appeal the loss to a higher appellate court for review. It does not allow a defeated party to refile a new suit against some or all of the same parties based on the same facts, claims or set of occurrences. Such a losing party cannot merely refile with new related claims and name a few new similarly-situated defendants - the parties being sued - to get around this doctrine known as the principle of res judicata. (The rough Latin translation of the legal term, res judicata, is "the matter having been already litigated".) Read More
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A new federal rule recently went into effect which allows prospective home buyers to demand information from lenders or the appraisers who place a value on the real estate they seek to purchase. Part of the Equal Credit Opportunity Act, included in the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, ("the New Rule") allows people seeking a first mortgage to buy a home, to see the appraisal soon after its issuance as well as the underlying data which the appraiser relies on in making the report. Read More
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Court of Appeals Limits Damage Claims in Fraudulent Transfer Cases
If a plaintiff wins a monetary judgment against a defendant who subsequently turns around and conveys some of his or her assets to a third party so the plaintiff - now a judgment creditor - will not be able to reach the defendant's (or judgment debtor's) assets, the judgment creditor faces a difficult obstacle: how to collect the funds due under the judgment. The Uniform Fraudulent Transfer Act ("UFTA") provides judgment creditors with the recourse to seek any compensation from those parties to whom assets were transferred or who benefited from such transfers. There remained ambiguity as to whether the UFTA would permit a judgment creditor to seek compensation strictly from transferees Read More
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Many high school or college students recall the anger and apprehension they felt if a teacher returned an assignment to them with the instructions to redo it or take another stab at it. Sometimes the justices who sit on the United States Supreme Court may have reason to feel like one of those students. It is not infrequent that a matter the Court ruled on at an earlier time makes its way back to the Court for a second go round. A case originating out of Alabama, but having national consequences, may now become one of those "reassignments" if you will. Read More
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"Loser Pays" Law Limited by Public Interest Exception
In 1992 the California Legislature passed the anti-SLAPP statute to give protection to people or companies from lawsuits which are devoid of any merit. Shortly thereafter, it became clear to many members of the General Assembly that the law was being abused. There was concern that individuals or groups seeking to bring cases to advance a matter of public interest may be discouraged from doing so for fear of having to pay the attorney's fees to the prevailing party. So in 2003 the Legislature enacted Section 425.17 of the California Code of Civil Procedure to amend the law by listing exemptions from the anti-SLAPP law. Read More
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Another ERISA Case May Reach Supreme Court Due to Conflict among Circuits
Last month we featured on this blog an article previewing a case concerning the fiduciary obligations of administrators of ESOPs (Employee Stock Option Plans) which the United States Supreme Court agreed to consider. This case involving interpretation of ERISA (the Employee Retirement Income Securities Act) caught the Court's attention because a conflict arose among various federal appellate circuits as to whether plaintiffs suing pension administrators must plead that the administrator acted unreasonably in order to establish a prima facie case that the administrator breached a fiduciary obligation to the beneficiaries of the pension plan or acted with misfeasance. Read More
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The activist manager, William A. Ackman, of Pershing Square Capital Management believes that the company, Herbalife, operates, at least in some part, as a pyramid scheme. This permits some of its sales staff and officers to generate large commissions for themselves at the expense of the company's interest. Read More
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High Speed Rail Paused but not Stopped
A Court of Appeals decision to review a lower court's order finding that the bond issue for a high-speed rail line from San Francisco to Los Angeles violated state law revives the hope that the project has a chance to move forward. Sacramento Superior Court judge Michael Kenny had ruled that the state bond issuance breached safeguards established in a 2008 bond act and did not have the right to issue any more bonds. Judge Kenny also found that the state failed to follow proper procedures in issuing the bonds. Read More
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Aggressiveness of Financial Bureau May Undermine its Own Mission
After a slow start for a few years because Republicans in the Senate blocked confirmation of its director, the Consumer Financial Protection Bureau (CFPB) has in the last several months vigorously pursued its mandate to protect individuals from predatory lending and banking practices. Its enforcement actions resulted in big settlements for consumers from credit card companies and refinancing firms engaging in deceitful marketing practices. The Bureau has pursued credit ratings agencies to ensure false credit information is corrected in a timely fashion. Read More
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March 2014
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