Law Officess of Adam Austin

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Phone: 214-340-4884

Legal News


Real Estate

[05/24] Court: Families cannot sue over loan discount fee
[05/23] American Community Development Group Updates Quarterly Financials
[05/23] GT Canada Medical Properties REIT announces monthly distribution


Case Summaries

Bankruptcy Law

[05/29] RadLAX Gateway Hotel, LLC v. Amalgamated Bank
In Chapter 11 bankruptcy proceedings, a creditor bank's objection to the debtor's cramdown plan is sustained, where the proposed sale of the bank's collateral free and clear of the bank’s lien would not comply with 11 USC section 1129(b)(2)(A) because it would not permit the bank to credit-bid at the sale.

[05/18] Wright v. Owens Corning
In a suit for damages related to defects in roofing shingles manufactured by a defendant who had filed for Chapter 11 bankruptcy, summary judgment to the defendant is reversed, where: 1) the district court correctly determined that the plaintiffs held "claims" under the Bankruptcy Code, based on JELD-WEN, Inc. v. Van Brunt (In re Grossman’s Inc.), 607 F.3d 114 (3d Cir. 2010); but 2) it should not have held that those claims were discharged, because at the time of the confirmation date, Avellino v. M. Frenville Co. (In re M. Frenville Co.), 744 F.2d 332 (3d Cir. 1984), controlled the status of their "claims," so the notice given did not afford the plaintiffs due process.

[05/14] Hall v. US
In Chapter 12 bankruptcy proceedings in which the debtors proposed treating a capital gains tax on the postpetition sale of their farm as an unsecured claim to be paid to the extent funds were available, with the unpaid balance being discharged, the objection of the IRS is sustained, as the federal income tax liability resulting from the sale was not "incurred by the estate" under section 503(b) of the Bankruptcy Code, and thus was neither collectible nor dischargeable in the Chapter 12 plan.

[05/14] In re Heritage Highgate, Inc.
In a residential home builder's Chapter 11 proceedings, the Bankruptcy Court's determination that the secured claims of a group of secondary creditors should be valued at zero is affirmed, where: 1) in proceedings to value secured claims under section 506(a) of the Bankruptcy Code, a burden-shifting analysis is appropriate; 2) the Bankruptcy Court properly concluded that the fair market value of the debtor's project as of the plan confirmation date controlled whether the creditors' claims were secured; 3) denying the creditors future lot sale proceeds that exceed the project's judicially determined value as of confirmation did not constitute a form of impermissible lien stripping; and 4) the Bankruptcy Court did not clearly err in determining the value of the collateral securing the secured debt.


Consumer Protection


Debt Collection

[06/08] Riggs v. Prober & Raphael, a Law Corporation
In an action against a debt-collection law firm, alleging defendant's debt collection letter did not comply with the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. section 1692 et seq., or its state equivalent, the Rosenthal Fair Debt Collection Practices Act, Cal. Civ. Code section 1788 et seq., namely by impermissibly requiring her to dispute her debt in writing and, as a result, misrepresenting her rights to dispute her debt, the District Court's grant of summary judgment to defendant is affirmed where a validation notice violates section1692g(a)(3) of the FDCPA only where it expressly requires a consumer to dispute her debt in writing, as opposed to implicitly requiring written disputes.

[03/08] Lorenzo Cruz v. International Collection Corp.
In a suit alleging violation of the Fair Debt Collection Practices Act (FDCPA): 1) the district court's grant of summary judgment against a collection agency is affirmed, where it sent letters to the plaintiff representing it was entitled to collect interest and fees when governing Nevada law did not permit it to collect interest and fees; 2) the district court's grant of summary judgment against the agency's sole owner, officer, and director is affirmed, where he qualified as a debt collector under the FDCPA and signed one of the false letters; and 3) the defendants' appeal with respect to three postjudgment orders is dismissed for lack of a timely notice of appeal.

[01/18] Mims v. Arrow Financial Services, LLC
In a damages action brought in federal district court, alleging that the respondent, seeking to collect a debt, violated the Telephone Consumer Protection Act of 1991 (TCPA) by repeatedly using an automatic telephone dialing system or prerecorded or artificial voice to call the plaintiff’s cellular phone without his consent, the dismissal of the complaint for want of subject-matter jurisdiction is reversed, as the claim arose under federal law, and the TCPA's permissive grant of jurisdiction to state courts does not deprive the US district courts of federal-question jurisdiction under 28 USC section 1331.

[09/27] L.K. v. Golightly
In an appeal from a judgment of the trial court dismissing plaintiff's tort action arising out of a dispute over child support arrears, judgment is affirmed where the exclusive remedy available for review of a decision by the director of Child Support Services Department under Family Code section 17803 is a Code of Civil Procedure section 1094.5 petition for writ review.


False Advertising

[05/17] Pom Wonderful LLC v. The Coca-Cola Co.
In a suit by a juice maker alleging Lanham Act violations and asserting state-law unfair competition and false advertising claims, the district court's grant of partial summary judgment to the defendant is: 1) affirmed insofar as the district court held that the federal Food, Drug, and Cosmetic Act and its regulations barred pursuit of both the name and labeling aspects of the plaintiff's Lanham Act claim; and 2) vacated as to the plaintiff's state-law claims, where the district court erred in ruling that the plaintiff did not have statutory standing.

[05/16] In re Schering Plough Corp.
In consolidated putative class actions brought by third-party payors of drugs prescribed for off-label purposes and by individual patients against a drug company that conducted alleged illegal and false sales and marketing campaigns, the district court's dismissal of both actions for lack of standing is affirmed, where: 1) the third-party payor plaintiff did not establish that its alleged injury was fairly traceable to the defendant's alleged wrongful conduct; and 2) the individual plaintiff failed to adequately allege causation.

[05/14] People v. E*Poly Star, Inc.
In a suit brought by several district attorneys' offices alleging that the defendant violated California's false advertising law and the unfair competition law (UCL) by making false and misleading statements regarding the dimensions, quantity and thickness of its plastic bags and toilet paper when it sold those products to governmental entities, the trial court's dismissal on statute of limitations grounds is reversed, where the district attorneys limited their lawsuit to unlawful acts that fell within the four-year period for bringing UCL claims specified in Business and Professions Code section 17208 and that, for purposes of the request for injunctive relief, were likely to recur in the future.

[03/27] Koch v. Acker, Merrall & Condit Co.
By memorandum, a judgment of the Supreme Court and an order of the Appellate Division brought up for review are reversed, and the defendant's motion to dismiss the plaintiff's General Business Law sections 349 and 350 causes of action denied, where: 1) the plaintiff sufficiently pleaded such causes of action; 2) the disclaimers set forth in the defendant's catalogs did not bar the plaintiff's claims for deceptive trade practices, as they did not establish a defense as a matter of law; and 3) to the extent that the Appellate Division order imposed a reliance requirement on General Business Law sections 349 and 350 claims, it was error.


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