Vacating or preserving stale judgments bearing inherent defects: setting aside the final judgment

By David J. Cook

The Free Press – Volume 10, Summer 2011

Published by the Commercial Law League of America

The crucible of every judgment is enforcement, compelling the judgment debtor to involuntarily compensate the plaintiff. Absent insurance or a solvent defendant, judgments do not reach a flash point until the debtor sells valuable property encumbered by a judgment lien, or confronted by aggressive and successful campaign of civil enforcement.

View the complete article here…

Post judgment subpoena power: Creditors need not fly blind into the quagmire of enforcement.

This ruling demonstrates that a judgment creditor is generally entitled to use the power of a subpoena to marshal financial records at a debtors exam. This is important in enabling the judgment creditor to meaningfully examine the judgment debtor with bank statements, and financial statements at hand.

Read the full opinion here.

Arbitration: An iron clad, albeit not infallible form of dispute resolution.

Arbitration benefits litigants by offering finality. As the California Court of Appeal held in Sappal v. Business Investment Management,  absent the most extreme ruling, an arbitrators decision is not subject to judicial review.

Why is this important? Winners like arbitration as they offer finality, assuming they got what they wanted. Losers abhor arbitration, as they offer finality, assuming that they are disappointed with the result.

Read the full opinion here.

 

Fraudulent Conduct and Jurisdiction

In Kraus-Anderson Capital v. Alamo Medical Supply & Equipment, Inc. the California Court of Appeal (2nd Dist.) upheld a trial court’s finding that the Minnesota Courts had the jurisdiction to enforce a promisory note executed in California.

The facts here are typical of many finance transactions. An out of state financier lends money to a customer of expensive, specialized equipment. The customer executes a promisory note and security agreement. The vendor executes a remarketing agrement obligating the vendor to recover the collateral and provide for remarketing, a common mechanism facilitating the sale of specialized equipment.

The customer in this case defaulted, and the financier sought to recover its collateral and call upon the vendor to re-market the equipment. The financier then discovered that the equipment was misrepresented and that the vendor defaulted on the remarketing agreement. The financier obtained a judgment in its home state (Minn.) against the vendor for the fraudulent equipment and the breach of the remarketing agreement. The financier then sought to domesticate the sister-state judgment in California, prompting the vendor to challenge the judgment on jurisdictional grounds. The California trial court denied the motion and the Court of Appeal affirmed.

In a scholarly analysis the appellate court found that the sister-state court properly had jurisdiction over the vendor.

The message from this case is that a financier is entitled to seek relief in its home court given a breach of a remarketing agreement by an out of state vendor.

Read the full opinion here.

The Chapter 11 Reset: Can Plans Die of Old Age?

Originally published in Commercial Law World, July/August 2011, Volume 28 | Issue 3

By David J. Cook

Chapter 11 confirmed plans are born, live and die of old age. This article explains how Chapter 11 plans, like any other federal judgment, can expire.

Read the complete article here.

The Discretionary Stay Against Enforcement of a Judgment

Los Angeles Lawyer – April 2011

By David J. Cook

THE RACE TO ENFORCEMENT begins as soon as a judgment creditor wins a lawsuit. While typically the plaintiff, a judgment creditor can also be the defendant in an anti-SLAPP suit. In either situation, the judgment creditor can begin enforcement procedures immediately upon entry of judgment and can go so far as to direct the sheriff to appear at the defendant’s front door, break it down, and seize the contents from ?oor to ceiling, including the family dog. Only settlement, posting of an expensive appeal bond, or entry of a discretionary stay of enforcement by the trial court can prevent enforcement…

Continue reading the full article here.

The Digital Sherpa Lifts The Veil of Asset Protection

Debt3 May/June 2011

By David J. Cook

How can the internet identify the liable party, describe its status and offer up new remedies? You are a self-selecting audience. What does this mean to you?

Read the full article here.