From: Victoria, Texas

NACBA’s May Member of the Month, Linda Hamm, is a well-known contributor to NACBA’s listserv. A sole practitioner with a practice located in Victoria, Texas, Linda’s firm handles cases in all counties in the Victoria Division of the Southern District of Texas, which has approximately 200,000 residents.

Linda has the great distinction of having argued – and won – an appeal in the 9th Circuit BAP. At issue in the case, In re Toplitzky, 227 B.R. 300 (1998 9th Cir. BAP), was 11 USC 522(f) judgment lien avoidance where the creditor offered to buy the debtor’s equity. The BAP court rejected the idea that creditor could create zero equity by paying the debtor, and thus stop lien avoidance.

Most recently, Linda has gained recognition for her successes in a case against Barrett Burke, one of the nation’s biggest firms representing the largest mortgage servicers. The case, In re: James Patrick Allen, is pending in the U.S. Bankruptcy Court for the Southern District of Texas, Victoria Division before the Honorable Wesley W. Steen, who also is the Immediate Past President of the ABI. In this case, Barrett Burke filed an objection to confirmation on the grounds that Section 1322 would not allow cramdown of a rental property. The debtor’s petition and schedules had made clear that the property was a rental. Barrett Burke sent an appearance attorney to the hearing on the Objection to Confirmation, and then asked for a continuance in order to get an appraisal. But they had never objected to the valuation and the POC that had been filed confirmed the debtor’s valuation. At this hearing, Judge Steen advised the Barrett Burke appearance attorney that he should advise Countrywide to withdraw its objection. Linda then forwarded to Barrett Burke a Rule 9011 action that she would file were the Objection not withdrawn. The objection was finally withdrawn 17 days after the hearing, but Barrett Burke then filed another objection, just five days before the reset confirmation hearing.

At the November 14, 2006, hearing, Barrett Burke sent an appearance attorney again, at which point the Judge issued an order to show cause why the firm should not be sanctioned for noncompliance with a court’s instructions.

Three Barrett Burke attorneys attended the subsequent hearing, including the filer of the second Objection to Confirmation, who told the judge that he hadn’t meant to “offend” the judge by filing the Objection. The Judge clarified in open court that this had nothing to do with whether he was offended; it was about the integrity of the process and respect for the court.

In December 2006, Judge Steen issued a Memorandum Opinion Regarding Sanction of Creditor’s Attorneys, Hamm-Memorandum_Opinion_re_Sanctions_v_Barrett_Burke.pdf in which he stated that Barrett Burke had committed sanctionable acts.

In March 2007, Judge Steen ordered the managing partner of Barrett Burke to come to a hearing to show how the firm’s pattern and practice regarding the filing of unsubstantiated claims and subsequent motions for a continuance at the hearing in order to gather additional evidence, had been changed.

Since this case has been pending, Linda’s relationship with other mortgage servicers has changed for the better – she says that they now provide pay histories when requested and are otherwise significantly more responsive than they had been previously. And other attorneys have remarked to Linda that they have experienced similar changes.

The Judged closed discovery on May 11th and Linda expects that an opinion will be issued shortly, in which Barrett Burke will be hit with landmark sanctions.

This has been a long-drawn out battle; Linda put 31 hours into the case. The good news is that the Judge advised Barrett Burke that it needed to settle with Linda on the issue of fees.

Linda learned early on in her practice about professional ethics. Her first job out of law school was for a personal injury attorney who was disciplined by the bar once prior to her joining his practice, and then again shortly after she left. His second disciplinary matter became a published opinion because of his failure to recognize that his fraud on the client was wrong. This experience proved a teaching moment for Linda: “Fortunately, he helped me to realize that there really are attorneys who lie, cheat, and steal, but they are in the minority.”

Linda has been a member of NACBA since 2004. “Joining NACBA is the best thing I have done for my career. Joining NACBA has made the transition from practicing under the old bankruptcy laws to practicing under BAPCPA possible.”

In 2005, she joined the NACBA listserv. “I joined the listserv in order to glean information from other attorneys about their interpretation of the new law. NACBA – especially the listserv – have given me the confidence so that if I come upon a case with an unfamiliar issue, I have a team of lawyer colleagues who may have experience with it. This has helped me to grow tremendously as a lawyer.”

Linda graduated in 1990 with honors from California State University – Fresno with a degree in Psychology. In 1992, she graduated from California Western School of Law. Linda is a member of the Bankruptcy Law Network (internet community), which is a network of consumer bankruptcy attorneys who write weekly blogs regarding various aspects of bankruptcy law in order to educate the public about bankruptcy issues.