Shulman Hodges & Bastian LLP

June 2017 Archives

Arbitrators' Authority Extends Post-Award for § 998 Claims

In Heimlich v. Shivji, 2017 Cal. App. LEXIS 499 (May 31, 2017), Plaintiff (Attorney) sued Defendant (Client) in the trial court for unpaid invoices despite a retainer agreement providing for arbitration. After answering, Client made a § 998 offer to Attorney for $30,001 and later demanded arbitration. The trial court ordered the matter to arbitration which ultimately resulted in zero recovery for either side. Six days after the arbitration award, Client requested that the arbitrator award costs pursuant to § 998. The arbitrator refused on the grounds that he no longer had jurisdiction to take further action on the matter post-award. Client then asked the trial court to confirm the arbitration award and to award costs pursuant to § 998. The court confirmed the arbitration award but denied Client's demand for costs under § 998 as untimely. Client appealed.

Revocation of Bankruptcy Discharge Statute of Limitations Is Not Jurisdictional

In Weil v. Elliott, decided June 14, 2017, the Ninth Circuit Court of Appeals decided the statute of limitations for the filing of an action to revoke a debtor's discharge is not jurisdictional and can be waived if not timely raised as an affirmative defense.

Cap on Landlord's Claim Applies Only to Damages and Fees Resulting From Termination of Lease

In In re Kupfer, No. 14-16697, the Ninth Circuit Court of Appeals, in an opinion published on December 29, 2016, has determined that the cap on the amount of damages a landlord can claim under Bankruptcy Code Section 502(b)(6) applies only to damages directly related to the termination of the lease and not to collateral claims. In particular, fees related to litigating a landlord's claim for future rent were capped because such fees would not have been incurred absent termination of the lease. But fees related to litigating claims for past rent and for litigating a debtor's claims for breach of lease were not capped because such fees would have been incurred regardless of a termination of the lease.

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