.jpg)
new value and APR in Chapter 11
You're thinking on the right track. It's unsettled in case law, and
there was a footnote in the recent Friedman (I think it was
Friedman) decision that alludes to the possibility of using exempt
funds (such as a retirement account or even wildcard exempted cash)
as new value. The question then becomes, as always, how much is
sufficient?
*************************
Mark J. Markus
Law Office of Mark J. Markus
11684 Ventura Blvd. PMB #403
Studio City, CA 91604-2652
(818)509-1173 (818)509-1460 (fax)
web: http://www.bklaw.com/
Certified Bankruptcy Law Specialist--The State Bar of California
Board of Legal Specialization
This Firm is a Qualified Federal Debt Relief Agency (see what this
means at
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Hello,
I have some follow up questions that I am currently researching but figured
since the topic came up it couldn't hurt to ask.
1. How does an individual provide new value? I was thinking it has to be
a contingent gift to the estate. I.e. 3rd party declaration that they will
gift x to the estate on the condition that the plan is confirmed.
2. In an individual chapter 11, how does an investor provide new value
without obtaining a proportional share of the individuals estate?
3. Those that believe APR applies to individuals also believe that the
individuals' wages are not part of the estate correct? If so, can this
income be new value even though it's not all available on the effective
date?
Sincerely,
Michael Avanesian Esq.
michael@avanesianlaw.com
818-817-1725
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Thanks.
*************************
Mark J. Markus
Law Office of Mark J. Markus
11684 Ventura Blvd. PMB #403
Studio City, CA 91604-2652
(818)509-1173 (818)509-1460 (fax)
web: http://www.bklaw.com/
Certified Bankruptcy Law Specialist--The State Bar of California
Board of Legal Specialization
This Firm is a Qualified Federal Debt Relief Agency (see what this
means at
The post was migrated from Yahoo.
Hi Mark:
Judge Wallace is requiring an alternative be written in the disclosure statement in case he decides the APR applies in an individual Ch 11. I attended a CEB in the OC and the 'new value' can be from a relative or even an attempt to obtain new value by advertising for someone to come in and give new value. I am still on the uphill climb of the learning curve on this issue but thought I would share what I learned.
Catherine.
Law Office of Catherine Christiansen
________________________________
To: cdcbaa@yahoogroups.com
Sent: Wednesday, July 25, 2012 3:53 PM
Subject: Re: [cdcbaa] new value and APR in Chapter 11
The Judge is Brand, but I want to be clear that my question isn't whether the APR applies in individual 11s, but whether there is a new value exception that can be used if the debtors (or, in this case, we're hoping a friendly "investor") can provide "new value" (whatever that means) in the event the judge rules that the APR DOES apply.
*************************
Mark J. Markus
Law Office of Mark J. Markus
11684 Ventura Blvd. PMB #403
Studio City, CA 91604-2652
(818)509-1173 (818)509-1460 (fax)
web: http://www.bklaw.com/
Certified Bankruptcy Law Specialist--The State Bar of
California Board of Legal Specialization
This Firm is a Qualified Federal Debt Relief Agency (see what
this means at
The post was migrated from Yahoo.
Dennis and Jeff are right but watch out for the Supremes who say there must be an auction.
Bank of America National Trust and Savings v. 203 North LaSalle Street Partnership, 526 U.S. 434 (1999)
Issue: Does a chapter 11 plan which allows existing partners the exclusive right to purchase the ownership interest in the debtor violate the absolute priority rule?
Holding: Yes, because the right to purchase was not offered to others to insure it was sold for the highest possible amount.
>
> In that case, I agree with Captain McGoldrick: In re Bonner Mall Partnership, 2 F.3d 899 (9th Cir. 1993), if APR applies, then new value exception should apply too, the issue becomes what means new value.
>
Dennis McGoldrick
> Sent: Wednesday, July 25, 2012 4:04 PM
> To: cdcbaa@yahoogroups.com
> Subject: Re: [cdcbaa] new value and APR in Chapter 11
>
> new value exception is alive and well.
>
> d
> ________________________________
> To: cdcbaa@yahoogroups.com
> Sent: Wednesday, July 25, 2012 3:53 PM
> Subject: Re: [cdcbaa] new value and APR in Chapter 11
>
> The Judge is Brand, but I want to be clear that my question isn't whether the APR applies in individual 11s, but whether there is a new value exception that can be used if the debtors (or, in this case, we're hoping a friendly "investor") can provide "new value" (whatever that means) in the event the judge rules that the APR DOES apply.
>
> *************************
> Mark J. Markus
> Law Office of Mark J. Markus
> 11684 Ventura Blvd. PMB #403
> Studio City, CA 91604-2652
> (818)509-1173 (818)509-1460 (fax)
> web: http://www.bklaw.com/
> Certified Bankruptcy Law Specialist--The State Bar of California Board of Legal Specialization
> [cid:image001.gif@...]
> This Firm is a Qualified Federal Debt Relief Agency (see what this means at http://www.bklaw.com/bankruptcy-blog/20 ... efinition/)
> ________________________________________________
> NOTICE: This Electronic Message contains information from the law office of Mark J. Markus that may be privileged. The information is intended for the use of the addressee only. If you are not the addressee, note that any disclosure, copy, distribution or use of the contents of this message is prohibited.
> IRS CIRCULAR 230 NOTICE: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication (or in any attachment) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed in this communication.
> On 7/25/2012 3:23 PM, Jeffrey S. Shinbrot wrote:
> Mark, this is the subject of much debate at the moment (in individual cases, no debate in businesses cases that the fixed principall chapter 11s; 9th Cir BAP said no, but judge Kwan in a recent decision just refused to follow the BAP and said yes.>
> Who is the judge?
>
>
> Jeff Shinbrot
> [cid:image002.jpg@...]
>
a@yahoogroups.com] On Behalf Of Mark J. Markus
> Sent: Wednesday, July 25, 2012 3:13 PM
> To: cdcbaa@yahoogroups.com
> Subject: [cdcbaa] new value and APR in Chapter 11
>
> Sorry, I don't have time to fully research this at the moment, and I'm asking for a colleague:
>
> Is there still a "new value" exception to the absolute priority rule in Ch. 11 cases? I recall reading articles that said it's pretty much dead. Trying to anticipate a potential adverse ruling from a judge in an individual 11 case.
>
> Thanks,
> --
>
> ******************************************
> Mark J. Markus
> Law Office of Mark J. Markus
> 11684 Ventura Blvd. PMB #403
> Studio City, CA 91604-2652
> (818)509-1173 (818)509-1460 (fax)
> web: http://www.bklaw.com/
> Certified Bankruptcy Law Specialist- The State Bar of California Board of Legal Specialization
> [cid:image001.gif@...]
> This Firm is a Qualified Federal Debt Relief Agency (see what this means at http://www.bklaw.com/bankruptcy-blog/20 ... efinition/)
> ________________________________________________
> NOTICE: This Electronic Message contains information from the law office of Mark J. Markus that may be privileged. The information is intended for the use of the addressee only. If you are not the addressee, note that any disclosure, copy, distribution or use of the contents of this message is prohibited.
> IRS CIRCULAR 230 NOTICE: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication (or in any attachment) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed in this communication.
>
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new value exception is alive and well.
d
________________________________
To: cdcbaa@yahoogroups.com
Sent: Wednesday, July 25, 2012 3:53 PM
Subject: Re: [cdcbaa] new value and APR in Chapter 11
The Judge is Brand, but I want to be clear that my question isn't whether the APR applies in individual 11s, but whether there is a new value exception that can be used if the debtors (or, in this case, we're hoping a friendly "investor") can provide "new value" (whatever that means) in the event the judge rules that the APR DOES apply.
*************************
Mark J. Markus
Law Office of Mark J. Markus
11684 Ventura Blvd. PMB #403
Studio City, CA 91604-2652
(818)509-1173 (818)509-1460 (fax)
web: http://www.bklaw.com/
Certified Bankruptcy Law Specialist--The State Bar of
California Board of Legal Specialization
This Firm is a Qualified Federal Debt Relief Agency (see what
this means at
The post was migrated from Yahoo.
The Judge is Brand, but I want to be clear that my question isn't
whether the APR applies in individual 11s, but whether there is a
new value exception that can be used if the debtors (or, in this
case, we're hoping a friendly "investor") can provide "new value"
(whatever that means) in the event the judge rules that the APR DOES
apply.
*************************
Mark J. Markus
Law Office of Mark J. Markus
11684 Ventura Blvd. PMB #403
Studio City, CA 91604-2652
(818)509-1173 (818)509-1460 (fax)
web: http://www.bklaw.com/
Certified Bankruptcy Law Specialist--The State Bar of California
Board of Legal Specialization
This Firm is a Qualified Federal Debt Relief Agency (see what this
means at
The post was migrated from Yahoo.
type="multipart/alternative"
Mark, this is the subject of much debate at the moment (in individual cases, no debate in businesses cases that the "fixed principal" of the APR applies). 4th Circuit just said yes it applies in individual chapter 11s; 9th Cir BAP said "no," but judge Kwan in a recent decision just refused to follow the BAP and said "yes."
Who is the judge?
Jeff Shinbrot
[cid:image001.jpg@01CD6A78.9CE733F0]
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Sorry, I don't have time to fully research this at the moment, and
I'm asking for a colleague:
Is there still a "new value" exception to the absolute priority rule
in Ch. 11 cases? I recall reading articles that said it's pretty
much dead. Trying to anticipate a potential adverse ruling from a
judge in an individual 11 case.
Thanks,
******************************************
Mark J. Markus
Law Office of Mark J. Markus
11684 Ventura Blvd. PMB #403
Studio City, CA 91604-2652
(818)509-1173 (818)509-1460 (fax)
web: http://www.bklaw.com/
Certified Bankruptcy Law Specialist- The State Bar of California
Board of Legal Specialization
This Firm is a Qualified Federal Debt Relief Agency (see what this
means at
The post was migrated from Yahoo.