A second recent opinion reinforces the fundamental rule that an inter-vivos revocable trust is not an entity separate from the trustee. In Presta v. Tepper, 2009 DJDAR 16603 (Nov. 27, 2009), the court provided the following analysis: “Two men enter into a real estate investment partnership, each acting in his capacity of trustee of a …
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A pair of decisions from last month reinforce the fundamental rule that an inter-vivos revocable trust is not an entity separate from the trustee. The first opinion, 1680 Property Trust v. Newman Trust, 2009 DJDAR 16161 (Nov. 17, 2009) states the rule with elegant simplicity, to wit: “Unlike a corporation, a trust is not a …
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I have been approached by numerous potential clients asking if I can help with the restructuring of their mortgages. The short answer is that I can provide no assurance regarding a refinancing. The rules are murky, and the literature indicates that lenders are not providing meaningful reductions. A recent article by Prof. Brent White from …
Continue reading “Underwater and Not Walking Away – or, Why Don’t Lenders Refinance?”
A decision handed down this month involved an all-too-common situation. In King v. Johnson, 2009 DJDAR 15871 (Nov. 9, 2009), the husband provided for a testamentary trust. After the husband’s death in 1991, his widow became the trustee. The widow later suffered from declining health. One of the daughters was apparently close to her mother. …
A growing body of case law during the past 20 years has addressed the issue of whether and when corporate directors owe fiduciary duties to creditors. A California appellate court has finally weighed in on this issue, and provided clear guidance on the question. (We can only hope that the California Supreme Court will not …
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The diverse use of trusts is represented in a recent case from the federal Fifth Circuit Court of Appeals. In Gale v. Carnrite, 559 F.3d 359 (5th Cir. 2009), the dispute involved tax liabilities arising from the sale of membership interests in a Nevada limited liability company. The underlying facts were as follows: In 1999, …
A recent federal case started off with an intriguing headnote – “Lawyer does not breach of fiduciary duty or contracts by advising termination of co-counsel where advice was privileged and protected by agreements.” From the Ninth Circuit Court of Appeals, no less. In the end, the court tackled the issues on narrow grounds, giving rise …
Trial Skills: What to Say and How to Say It is a new book written by Los Angeles County Superior Court Judge Robert J. Perry. The book is 175 pages long, broken down into 28 easily-digested chapters. Explained Judge Perry, “this book is short; because most trial lawyers are too busy to read a lengthy …
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A fiduciary’s liabilities can sometimes arise in unexpected contexts. A recent decision involving an estate tax liability held that a fiduciary was personally liable for unpaid estate taxes. In Carroll v. United States, 2009-2 USTC ¶ 60,577 (N.D. Ala. 2009), the taxpayer was denied a bankruptcy discharge for unpaid estate taxes arising from the estate …
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Some commentators view fiduciary duties through a contractual framework. Judge Frank Easterbrook and Professor Fischel state, “The fiduciary principle is fundamentally a standard term in the contract. Fiduciary duties are not special duties; they have no moral footing; they are the same sort of obligations, derived and enforced in the same way, as other contractual …