From: Phoenix, Arizona

Our August 2008 Member of the Month, Andrew Nemeth (no relation to last month’s Richard Nemeth!), has been an attorney at Phillips & Associates, a consumer law firm in Phoenix, AZ, for almost eight years.  Phillips & Associates handles consumer bankruptcy matters, criminal matters, and personal injury matters.  There are 37 attorneys at the firm, including six bankruptcy attorneys. Andrew is currently the only attorney at the firm handling Chapter 13 bankruptcy cases (he handles Chapter 13 bankruptcy cases exclusively, only consulting on Chapter 7 cases.) In just the first seven months of 2008, Phillips & Associates filed a total of 1,107 consumer bankruptcy cases, 114 of which were Chapter 13 cases.  They consider themselves to be a conscientious high volume firm! “I am proud to say that I have been told by various Chapter 7 and 13 Trustee’s offices (including the Trustees themselves, as well as their staff attorneys and analysts), and by the United States Trustee’s office, that the work that we produce for our clients is very well respected!”, says Andrew.

NACBA members are familiar with Andrew’s recent victory in the Kagenveama case.  (In re Kagenveama, 527 F.3d 990 (9th Cir. 2008))  Kagenveama is only the second appeal that Andrew had worked on in his career, and the only appeal that has gone to a Circuit Court.  Kagenveama is a BAPCPA case that sets forth, at least in the Ninth Circuit, in an above median case, that projected disposable income is the product of disposable income as defined by 11 U.S.C. § 1325(b)(2) multiplied by the applicable commitment period, and further that in a case where the debtor’s disposable income is $0.00 or negative, that the applicable commitment period does not apply.

Andrew has since heard many comments regarding the decision, that it is a product of the Ninth Circuit and its liberal leaning.  Andrew notes, however, that the case was heard by a panel that included Judges Harry Pregerson (appointed by Jimmy Carter) and Carlos Bea (appointed by George W. Bush) of the Ninth Circuit, and Judge Eugene Siler, Jr. (appointed by George HW Bush and sitting by designation from the Sixth Circuit), and that Judge Siler authored the opinion!  In other words, “the opinion was anything but a liberal reading of the Bankruptcy Code; it was a straightforward reading of the Bankruptcy Code.”

Andrew worked closely with NACBA’s amicus team on this case: “I sincerely acknowledge the assistance of NACBA, and especially Tara Twomey, for help on this case!  And, lest we forget, Kagenveama was heard at the same time that Dockery was heard.  (Garcia vs. Dockery, Appellate No. 07-55078).  Dockery was a case out of the Central District of California that was extremely similar to Kagenveama, and the oral argument of NACBA member Peter Lively immediately after the Kagenveama argument, certainly acted as a one two punch.  My personal thanks go out to Peter who helped make Kagenveama happen!”

Andrew has also litigated In re Chamberlain, 369 B.R. 519 (Bkrtcy. D. Ariz. 2007), which that held a debtor with a free and clear automobile was entitled to the ownership expense on the means test.  Unfortunately, the Ninth Circuit BAP later came out with In re Ransom, 330 B.R. 799 (B.A.P. 9th Cir. 2007), holding that the debtor was not entitled to the ownership expense on the means test for a vehicle owned free and clear.  After reading the Kimbro case (In re Kimbro, ___ B.R. ___, 2008 WL 2369141 (6th Cir.BAP (Tenn)), however, he is again taking the ownership expense and will (anticipating that he will lose on the issue) appeal to the U.S. District Court.

Andrew is a graduate of Louisiana Tech University (Ruston, La.), where he received a B.S. in accounting.  “Being the product of the New York City suburbs, moving to small town North Louisiana was quite the culture shock!  It was also a great education and experience.” After receiving his undergraduate degree, he moved to Detroit, MI, and started working for Electronic Data Systems (EDS) in a systems engineer program, where he helped design and operate a computer workstation network/connectivity testing facility while with EDS.  He worked for EDS in and around the Detroit, MI area and in the Santa Barbara, CA area.

Andrew left “the real world” for law school in 1989 and attended California Western School of Law (San Diego, CA).  While in law school, he did an internship with Judge Louise Adler of the Bankruptcy Court for the Southern District of California, and worked as in intern and later a clerk for Debtor/Creditor firms in San Diego, CA.

“I always thought that after law school I would work as a creditor’s attorney.  After my best laid plans didn’t work out, I have become a strong advocate for consumer debtors and I take great pride in being a thorn in the side of creditors whenever possible – and warranted. Back when “no-doc” claims litigation was first starting, I have fond memories of wiping out in excess of $35,000 of no-doc claims in at least two separate cases prior to the Ninth Circuit BAP decisions in In re Campbell, 336 B.R. 430 (9th Cir. BAP 2005), and In re Heath, 331 B.R. 424 (9th Cir. BAP 2005).  I also remember one of my Chapter 13 Trustee’s attorneys telling me that I, as well as certain other NACBA attorneys, were topics of conversation at the NACTT convention that year.”

Andrew has been a NACBA member since 2003.  He is a self-described active “lurker” and occasional participant on the NACBA listserv.  He has attended many of NACBA’s conventions, including what he considers to be one of the most important CLEs he has attended, the Fighting Back seminar in Orlando, FL (September 2005).

Andrew is also active in a monthly consumer bankruptcy attorney luncheon of local bankruptcy attorneys in the Phoenix, AZ area.  Many of the participants in this luncheon are NACBA members, and they share war stories and “pearls of wisdom” gained in the trenches with one another.

Andrew and his wife Bari, who just celebrated their 18th wedding anniversary, have two children, Elysha age 12 and Ross age 5.  Elysha has brought our family into the musical theatre world. (Bari has always been a big Broadway fan.)  Elysha has participated in over 25 community theatre shows, two professional theatre productions, and an opera.  Most recently, Ross has finally taken his place on stage, too, in addition to taking Karate lessons.  Bari works in the background at one of our local community theatres managing promotions and charitable performances for both children’s and adult performances, and I help out as a glorified “worker” at the theatre doing whatever is asked of me.

Andrew’s advice to NACBA members: “If you are not on the NACBA listserve, you should be!  You will learn more from the listserv than from any other source.”