News

Case Summaries

Bankruptcy Law

[03/08] Milavetz, Gallop & Milavetz, P.A. v. US
In an action by a law firm seeking declaratory relief, arguing that plaintiff was not bound by the Bankruptcy Abuse Prevention and Consumer Protection Act's (BAPCPA) debt relief agency provisions and therefore could freely advise clients to incur additional debt and need not make the requisite disclosures in its advertisements, the Eighth Circuit's order rejecting the district court's conclusion that attorneys are not "debt relief agencies" under BAPCPA, upholding application of BAPCPA's disclosure requirements to attorneys, and finding BAPCPA section 526(a)(4) unconstitutional, is affirmed in part where: 1) attorneys who provided bankruptcy assistance to assisted persons were debt relief agencies under the BAPCPA; and 2) BAPCPA section 528's requirements were reasonably related to the government's interest in preventing consumer deception. However, the court of appeals' order is reversed in part where BAPCPA section 526(a)(4) prohibited a debt relief agency only from advising a debtor to incur more debt because the debtor was filing for bankruptcy, rather than for a valid purpose.

[03/08] In Re: Ray
District court's judgment affirming the bankruptcy court's dismissal of two Chapter 11 proceedings was correct, but the decision is vacated, as the law firm lacked standing where there is no evidence that one of the law firm's former attorneys ever informed the bankruptcy court that it was appearing on behalf of the firm and the record is devoid of any mention of the firm by the attorney or any other party.

[02/15] In re: Barner
In debtor's appeal from the bankruptcy court's ruling finding that an automatic stay did not apply to a foreclosure sale of her home, the order is affirmed where: 1) 11 U.S.C. sections 362(d)(4) and (b)(20) did not prohibit enforcement of a 2004 order lifting the automatic stay as to debtor's residence; and 2) the Bankruptcy Abuse Prevention and Consumer Protection Act did not modify or affect orders issued in cases filed before its effective date.

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Family Law

[03/05] People v. Warwick
Conviction of defendant of child abuse and neglect and jury's true finding on the enhancement that she personally inflicted great bodily injury on her child is affirmed as, when she gave birth to her son in her bedroom and concealed the birth causing severe injuries, defendant inflicted great bodily injury on her child.

[03/05] Doe v. S. Carolina Dep't of Soc. Servs.
In a 42 U.S.C. section 1983 action brought by a minor child and her adoptive parents against defendant, an Adoption Specialist with the South Carolina Department of Social Services (SCDSS), alleging violations of their substantive due process rights under the Fourteenth Amendment and state law claims against SCDSS under the South Carolina Tort Claims Act (SCTCA), judgment is affirmed in part, vacated in part, and remanded where: 1) when a state involuntarily removes a child from her home, thereby taking the child into its custody and care, the state has taken an affirmative act to restrain the child's liberty, triggering the protections of the Due Process Clause and imposing "some responsibility for the child's safety and general well being"; 2) because it would not have been apparent to a reasonable social worker in defendant's position that her actions violated the Fourteenth Amendment, she is entitled to qualified immunity; 3) prospective adoptive parents have no substantive due process right to the disclosure of a child's history of sexual abuse; and 4) district court's grant of defendants' motion for summary judgment on the state law claims for gross negligence against SCDSS is vacated and remanded for consideration of the applicability of section 15-78-60(25).

[03/04] In re E.O.
Juvenile court's denial of a father's request for presumed father status is affirmed as the only provision of Family Code section 7611 that might possibly apply is subdivision (d) which states that a man is a presumed father if he "receives the child into his home and openly holds out the child as his natural child," and here, the father did not establish that he came within this or any of the categories set forth in Family Code section 7611.

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Probate Trusts

[02/25] Conservatorship of John L.
In a petition to establish a conservatorship of a person pursuant to the Lanterman-Petris-Short Act, the judgment of the court of appeal is affirmed where: 1) the superior court did not violate the LPS Act when it excused the individual's production and proceeded without him in attendance at a hearing to establish a conservatorship of his person; and 2) the superior court did not violate his due process rights.

[02/25] Donahue v. Donahue
Trial court's order, charging a trust with some $5 million in past and ongoing attorney fees incurred on behalf of a former trustee in defending against the beneficiary's allegations of self-dealing and conflict of interest is reversed as it cannot be determined from the trial court's order whether the fee awards are consistent with applicable legal principles. Long-established principles of trust law impose a double-barreled reasonableness requirement where: 1) the fee award must be reasonable in amount and reasonably necessary to the conduct of litigation; and 2) it also must be reasonable and appropriate for the benefit of the trust.

[02/11] Estate of Tolman
Denial of a granddaughter's petition to determine persons entitled to distribution from her grandmother's estate is affirmed as the exclusion of unmentioned heirs or relatives from the will's dispositions, or an intent to disinherit those who contest those dispositions, does not sufficiently express or manifest an intent to arrest the operation of the anti-lapse law following a legatee's death.

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