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Fwd: Non-recourse second mortgage & 506(a)
Sure, ask Kathy Dockery's office. That was theirwining argument on my debtors Santos' appeal to 9th Circuit Court of Appeals on the 506 & 109 debt limits issue.
At oral argument, Iadvocated for the position thatundersecured creditorskeep certainlien rightsthrough the end of plan paymentsbecause the property of the estate doesn't vest in the debtors until that point (Central Districtof CAform plan),therefore the undersecured debt is contingent as to its unsecured status during the plan and shouldn't be counted as noncontingent unsecured debt in 109(g).
The 3 judge panel focused on the fact that the majorityof the county.Kathy Dockery's office argued that Santos could have simply amended their form plan to provide for vesting at confirmation.
There are provision in our local rules for changing mandatory court forms. See 3015(b)(4) and 9000-1(b).
Ihave changed the vestingprovisions once before VZ, in a Chapter 20 with stipulation for lien avoidance with thesecond note/lien holder.
Law Office of Peter M. Lively * Personal Financial Law Center I
11268 Washington Boulevard, Suite 203, Culver City, California 90230-4647
Telephone: (310) 391-2400* Toll Free: (800) 307-3328 * Fax: (310) 391-2462
On Friday, July 25, 2014 5:48 PM, "Clifford Bordeaux cliff@bordeauxlaw.com [cdcbaa]" wrote:
"Perhaps you could modify the form plan to provide for vesting of property of the estatein the debtor, free and clear of liens,at confirmation rather than at thecompletion of plan payments."
Can you do that? If so, shouldn't we all be doing this on every case? Is anyone doing this currently?
Seems like revesting on confirmation would also fix the Wolf v. Jacobson problem and the post-180 day inheritance problem.
On Fri, Jul 25, 2014 at 5:36 PM, 'Peter M. Lively' petermlively2000@yahoo.com [cdcbaa] wrote:
>
>Venable barred the money judgment under CCP 580(b) on the note because the lender didn't go to the security first and the land was still held by the debtor.
>
>
>Brown barred the deficiency action under 580(b) by the junior trust deed alreadyforeclosed, sothe real property was exhausted.
>
>
>While the property value is being determined in Chapter 13 under 506(a) for plan purposes the lien isn't avoided under 506(d), in the form Chapter 13 plan, until afterthe completion of all plan payments. This leaves the creditor with some lien rights and arguably the right to participate in the estate because the subject property hasn't truly been exhausted as to the lien rights yet.
>
>
>Perhaps you could modify the form plan to provide for vesting of property of the estatein the debtor, free and clear of liens,at confirmation rather than at thecompletion of plan payments. This is what I understand happens in form Chapter 13 plans in most of thecountry. Then, the debtor can argue thatthefacts areanalogous tothose in Brown; property is gone for good.
>
>
>
>Peter M. Lively, J.D., M.B.A.
>Law Office of Peter M. Lively * Personal Financial Law Center I
>11268 Washington Boulevard, Suite 203, Culver City, California 90230-4647
>Telephone: (310) 391-2400* Toll Free: (800) 307-3328 * Fax: (310) 391-2462
>
>
>
>On Friday, July 25, 2014 4:02 PM, "Nancy Clark nbc@blclaw.com [cdcbaa]" wrote:
>
>
>
>
>Ineed help with an argument before Judge Houlein Riverside. I have argued that a purchase money security second may not only be avoided but need not be paid as an unsecured creditor based on CA Code of Civil Procedure 580(b). I have cited to Tidewater Finance Co v. Kenney, 531 F.3d 312, Butner v. US, 440 US 48, and more specifically Venable v. Harmon, 233 Cal.App.2d 297 (citing to Brown v. Jensen, 41 v. Cal.2d 193, Hecks v. Sapp, 229 Cal.App. 549). Venable states:
>"Thus, when the vendor under a security-type contract for sale of land receives a personal money judgment against a vendee for breach of this contract without first going against the security, he is, in effect, receiving a deficiency judgment. Since only the land can be called upon to satisfy the debt, under Brown, the fact there has been no prior sale is of no moment. It should be noted that allowing the vendor to recover this judgment places him in a better position than under the trust deed or mortgage. It would allow him to recover a personal judgment and retain title to the land. This would accomplish the exact result which Heckes states the statute was designed to prevent."
>
>Judge Houle insists that there must be a foreclosure despite my citation to Venable. Judge Zurzolo granted my motion. What am I missing?
>
>Thank you,
>Nancy
>
>Nancy B. Clark
>Attorney at Law
>Borowitz & Clark, LLP
>Sent from my iPhone
>
>Thank you,
>Nancy
>
>Nancy B. Clark
>Attorney at Law
>Sent from my iPhone
>
>
>--
>Nancy B. Clark
>Borowitz & Clark, LLP
>100 N. Barranca Street, Suite 250
>West Covina, CA 91791
>Tel: (626) 332-8600
>Fax: (626) 332-8644
>Sent from Gmail Mobile
>
>
>
>
The post was migrated from Yahoo.
*"Perhaps you could modify the form plan to provide for vesting of property
of the estate in the debtor, free and clear of liens, at confirmation
rather than at the completion of plan payments."*
Can you do that? If so, shouldn't we all be doing this on every case? Is
anyone doing this currently?
Seems like revesting on confirmation would also fix the *Wolf v. Jacobson*
problem and the post-180 day inheritance problem.
On Fri, Jul 25, 2014 at 5:36 PM, 'Peter M. Lively'
petermlively2000@yahoo.com [cdcbaa] wrote:
>
>
> Venable barred the money judgment under CCP 580(b) on the note because the
> lender didn't go to the security first and the land was still held by the
> debtor.
>
> Brown barred the deficiency action under 580(b) by the junior trust deed &
> note holder where the senior trust deed & note holder had
> already foreclosed, so the real property was exhausted.
>
> While the property value is being determined in Chapter 13 under 506(a)
> for plan purposes the lien isn't avoided under 506(d), in the form Chapter
> 13 plan, until after the completion of all plan payments. This leaves the
> creditor with some lien rights and arguably the right to participate in the
> estate because the subject property hasn't truly been exhausted as to the
> lien rights yet.
>
> Perhaps you could modify the form plan to provide for vesting of property
> of the estate in the debtor, free and clear of liens, at confirmation
> rather than at the completion of plan payments. This is what I understand
> happens in form Chapter 13 plans in most of the country. Then, the debtor
> can argue that the facts are analogous to those in Brown; property is gone
> for good.
>
>
> Peter M. Lively, J.D., M.B.A.
> Law Office of Peter M. Lively * Personal Financial Law Center I
> 11268 Washington Boulevard, Suite 203, Culver City, California 90230-4647
> Telephone: (310) 391-2400 * Toll Free: (800) 307-3328 * Fax: (310)
> 391-2462
>
>
> On Friday, July 25, 2014 4:02 PM, "Nancy Clark nbc@blclaw.com [cdcbaa]"
> wrote:
>
>
>
> I need help with an argument before Judge Houle in Riverside. I have
> argued that a purchase money security second may not only be avoided but
> need not be paid as an unsecured creditor based on CA Code of Civil
> Procedure 580(b). I have cited to Tidewater Finance Co v. Kenney, 531 F.3d
> 312, Butner v. US, 440 US 48, and more specifically Venable v. Harmon, 233
> Cal.App.2d 297 (citing to Brown v. Jensen, 41 v. Cal.2d 193, Hecks v. Sapp,
> 229 Cal.App. 549). Venable states:
> "Thus, when the vendor under a security-type contract for sale of land
> receives a personal money judgment against a vendee for breach of this
> contract without first going against the security, he is, in effect,
> receiving a deficiency judgment. Since only the land can be called upon to
> satisfy the debt, under Brown, the fact there has been no prior sale is of
> no moment. It should be noted that allowing the vendor to recover this
> judgment places him in a better position than under the trust deed or
> mortgage. It would allow him to recover a personal judgment and retain
> title to the land. This would accomplish the exact result which Heckes
> states the statute was designed to prevent."
>
> Judge Houle insists that there must be a foreclosure despite my citation
> to Venable. Judge Zurzolo granted my motion. What am I missing?
>
> Thank you,
> Nancy
>
> Nancy B. Clark
> Attorney at Law
> Borowitz & Clark, LLP
> Sent from my iPhone
>
> Thank you,
> Nancy
>
> Nancy B. Clark
> Attorney at Law
> Sent from my iPhone
>
>
> --
> Nancy B. Clark
> Borowitz & Clark, LLP
> 100 N. Barranca Street, Suite 250
> West Covina, CA 91791
> Tel: (626) 332-8600
> Fax: (626) 332-8644
> Sent from Gmail Mobile
>
>
>
>
>
The post was migrated from Yahoo.
Venable barred the money judgment under CCP 580(b) on the note because the lender didn't go to the security first and the land was still held by the debtor.
Brown barred the deficiency action under 580(b) by the junior trust deedreadyforeclosed, sothe real property was exhausted.
While the property value is being determined in Chapter 13 under 506(a) for plan purposes the lien isn't avoided under 506(d), in the form Chapter 13 plan, until afterthe completion of all plan payments. This leaves the creditor with some lien rights and arguably the right to participate in the estate because the subject property hasn't truly been exhausted as to the lien rights yet.
Perhaps you could modify the form plan to provide for vesting of property of the estatein the debtor, free and clear of liens,at confirmation rather than at thecompletion of plan payments. This is what I understand happens in form Chapter 13 plans in most of thecountry.us tothose in Brown; property is gone for good.
Law Office of Peter M. Lively * Personal Financial Law Center I
11268 Washington Boulevard, Suite 203, Culver City, California 90230-4647
Telephone: (310) 391-2400* Toll Free: (800) 307-3328 * Fax: (310) 391-2462
On Friday, July 25, 2014 4:02 PM, "Nancy Clark nbc@blclaw.com [cdcbaa]" wrote:
Ineed help with an argument before Judge Houlein Riverside. I have argued that a purchase money security second may not only be avoided but need not be paid as an unsecured creditor based on CA Code of Civil Procedure 580(b). I have cited to Tidewater Finance Co v. Kenney, 531 F.3d 312, Butner v. US, 440 US 48, and more specifically Venable v. Harmon, 233 Cal.App.2d 297 (citing to Brown v. Jensen, 41 v. Cal.2d 193, Hecks v. Sapp, 229 Cal.App. 549). Venable states:
"Thus, when the vendor under a security-type contract for sale of land receives a personal money judgment against a vendee for breach of this contract without first going against the security, he is, in effect, receiving a deficiency judgment. Since only the land can be called upon to satisfy the debt, under Brown, the fact there has been no prior sale is of no moment. It should be noted that allowing the vendor to recover this judgment places him in a better position than under the trust deed or mortgage. It would allow him to recover a personal judgment and retain title to the land. This would accomplish the exact result which Heckes states the statute was designed to prevent."
Judge Houle insists that there must be a foreclosure despite my citation to Venable. Judge Zurzolo granted my motion. What am I missing?
Thank you,
Nancy
Nancy B. Clark
Attorney at Law
Borowitz & Clark, LLP
Sent from my iPhone
Thank you,
Nancy
Nancy B. Clark
Attorney at Law
Sent from my iPhone
Nancy B. Clark
Borowitz & Clark, LLP
100 N. Barranca Street, Suite 250
West Covina, CA 91791
Tel: (626) 332-8600
Fax: (626) 332-8644
Sent from Gmail Mobile
The post was migrated from Yahoo.