I read with interest Publisher Bob Mosier's article in the
Receivership News (Summer 2016, Issue 58) discussing the Final Account
and Report ("FAR") procedure, in particular focusing on service
requirements. I believe that the article correctly recites the rules and
rationale for expansive notice of the FAR proceeding – what Bob calls the
case universe of potential claimants.
The requirement in California Rule of Court 3.1184(c) that
notice of the FAR Motion or Stipulation must be provided to all persons
known to have a ".substantial, unsatisfied claim." arises from
considerations of due process, as explained in Vitug v. Griffin 214
Cal. App. 3d 488 (1989) and other California cases. In the Vitug case, a
receiver with actual notice of a claim failed to notify the claimant of
the upcoming FAR, despite the Receiver's indisputable knowledge of the
claim (the Receiver was actually litigating a lawsuit filed by the
claimant against the Receiver). After the disbursement of all assets and
exoneration of the bond following the FAR, the Court held that since the
claimant had not received notice of the FAR and therefore didn't receive
due process, the lawsuit filed against the Receiver could continue
unabated. This holding evolved into the CRC requirement that any
claimant known to have a substantial unsatisfied claim must receive notice
of the FAR proceeding.
Bob Mosier's article then raises some creative hypotheticals
about the potential effects of an Order limiting notice. While such an
Order seems unlikely if the Receiver points out to the Court that there
are potential claimants, such as taxing authorities, who should get
notice, and that the Receiver's practice is to give such notice, we have
all learned to expect the unexpected in litigation and in our society at
large. Typically, the Judge will support the Receiver's request to give
full notice and avoid potential liability. Any Judge who limits notice in
the face of opposition thereto by the Receiver, supported by an
explanation as to the basis of the Receiver's concern, would be a Judge
shockingly hostile to the Receiver's judgment and regular practices. Given
the upcoming FAR proceeding at which time that Judge is to determine and
approve the compensation of the Receiver and his/her professionals, I
strongly doubt that the Receiver would choose to offend the Judge by
mounting a challenge on appeal. Further, since the concept of "known
claimants" underlies the Vitug rationale and the applicable CRC quoted
above, the Receiver might be short on authority to maintain that a wider
service net to "potential but unknown" claimants is justified. It may be
that in this rarest of situations (which I have never seen or heard of in
40 years of practice), the Receiver may want to volunteer to provide
notice but provide a concomitant discount on fees to assuage the Judge.
Other than the relatively minimal additional expense of
expanding the service list, there is really no downside to expansive
service to include all potential claimants. That expense can be
minimized by use of a short-form Notice, the practice followed by my firm
in cases in which the list of potential creditors is large. Rather than
serving all potential creditors with the full motion, which may be large
and expensive to mail, we mail out a two page Notice, with proof of
service listing the addressees. This Notice alerts all recipients to
the date, time and location of the hearing, the deadline for filing
opposition, and the relief sought, including discharge of the receiver and
exoneration of the bond. The Notice informs them that they can obtain a
full copy of the FAR motion by contacting my office or the Receiver's
office. If available, the Notice also provides a link to the Receiver's
website, where the recipients can access a copy of the motion. That way,
only the parties (and perhaps the known claimants) are served with the
full FAR Motion, using a separate proof of service, of course.
Another solution that addresses Mr. Mosier's perhaps late
night, potentially tequila-induced ruminations, is to get approval for a
Claims Procedure which should precede the FAR. If there are a large number
of claimants and potential priority battles, a Claims Procedure is far
better suited than a FAR for resolution of those disputes, for a number of
reasons. First, there can be no logical argument by a party (or the
Court) that potential claimants shouldn't receive notice of a Claims
Procedure. Second, the very fact that the Claims Procedure precedes the
FAR process gives time for the Court to adjudicate the various claims and
priorities among approved claimants. Third, assuming that some claimants
make claims that are denied, then it goes without saying that those
claimants have had their day in Court and do not have a claim for which
the receivership estate is responsible. As for the approved claimants, the
Court can adjudicate the priorities, such as between tax claims, statutory
lien claims, and security interests in assets. This can be a complicated
process, and the FAR is not a good setting for resolving all such claims,
as well as getting approval of the Final Account.
One final comment: although the CRC provides for FAR
via Stipulation, in my view a Motion is still necessary, so that the
notice discussed above can be given to claimants, and an Order can be
issued in open court after a hearing. While I do like the parties to
stipulate to approval of the FAR, the stipulation is not a substitute for
a noticed Motion.
Thank you Bob for raising issues of interest. Any readers who
have input on these points are invited to email me, for inclusion of your
comments in the Heard in the Halls column in the next issue of this
publication.
Sincerely,
Alan M. Mirman
*Alan M. Mirman is a partner in the
Woodland Hills law firm of Mirman, Bubman & Nahmias, LLP, and specializes
in creditor’s rights. His practice includes provisional remedies,
representation of receivers, litigation, loan and lease documentation, and
the like.