.jpg)
Power of attorney over a property in chapter 11
charset="ISO-8859-1"
Pat, are you okay? I fear something terrible has happened to you while
writing this message, kind of like happened to Joseph of Arimathea in Monty
Python and the Holy Grail. http://www.youtube.com/watch?vGEcvSq4SDkc
John D. Faucher
Hurlbett & Faucher, LLP
On 1/29/12 7:19 PM, "pat@fitzgreenlaw.com" wrote:
>
>
>
>
>
> after thinking about it, it seems to me that the angel co
>
> Sent from my Verizon Wireless BlackBerry
>
> Sender: cdcbaa@yahoogroups.com
> Date: Sun, 29 Jan 2012 09:59:42 -0800
> To:
> ReplyTo: cdcbaa@yahoogroups.com
> Subject: Re: [cdcbaa] Power of attorney over a property in chapter 11
>
>
>
>
> Pat, the worry here is that a hovering vulture will get into a bidding war
> with the angel at the foreclosure sale.
>
> John D. Faucher
> Hurlbett & Faucher, LLP
>
>
> On 1/28/12 2:28 PM, "pat@fitzgreenlaw.com" wrote:
>
>>
>>
>>
>> Why not have the angel buy the 2nd and foreclose along with some kind of
>> agreement betw flake and angel?
>> Pat
>>
>> Sent from my Verizon Wireless BlackBerry
>>
>> Sender: cdcbaa@yahoogroups.com
>> Date: Sat, 28 Jan 2012 11:53:10 -0800
>> To:
>> ReplyTo: cdcbaa@yahoogroups.com
>> Cc: Ed Kerns
>> Subject: Re: [cdcbaa] Power of attorney over a property in chapter 11
>>
>>
>>
>>
>> Mark: here's what "total control" means -
>> Lender to obtain power of attorney acceptable to
>>
>> lender and subject to court approval to allow lender
>>
>> participant to act on behalf of borrower-owner to
>>
>> manage the renovation and deposition of the
>>
>> collateral including but not limited to the following: I.
>>
>> Sale 2. Rental 3. Deferred maintenance and repairs
>>
>> including staging 4. Access 5. Lender chooses real
>>
>> estate broker and any and all matters related to the
>>
>> repositioning and disposition of the property.
>>
>>
>> Peter: the judge granted relief from stay because the first trust deed is not
>> being held current, and the second squawked about its eroding position.
>> Never mind that it would take nine years of nonpayment on the first for the
>> equity cushion to erode so far that the second would have less than the 20
>> percent mandated by Mellor; the judge thought that mere nonpayment on the
>> first was enough to say that the second was not adequately protected. We
>> have filed a motion for reconsideration, and the judge has set that for
>> hearing.
>> We have the impression that the second is much more interested in foreclosing
>> on the property and taking advantage of all the windfall equity than it is in
>> seeing an orderly sale take place. Thus, a stipulation to sell is likely to
>> be unavailing.
>>
>>
>> John D. Faucher
>> Hurlbett & Faucher, LLP
>> 5743 Corsa Ave., Suite 208
>> Westlake Village, CA 91362
>> (818) 889-8080
>> Fax: (805) 367-4154
>> http://www.hurlbettfaucher.com/
>>
>> 3324 State Street, Suite O
>> Santa Barbara, CA 93105
>> (805) 963-9111
>>
>> This electronic m! ail messa! ge and any attached files are confidential,
>> contain information intended for the exclusive use of the individual or
>> entity to whom it is addressed, and may be legally privileged. If you are
>> not the intended recipient, please immediately reply to John Faucher (at
>> 818/889-8080 or john@hf-bklaw.com ) indicating
>> that you received this message and then delete the message without delay.
>> Thank you for your cooperation.
>>
>> Disclosure Under U.S. IRS Circular 230: The recipient may not use any tax
>> advice contained in this communication, including any attachments, for the
>> purpose of avoiding federal tax related penalties or promoting, marketing or
>> recommending to another party any particular transaction or matter.
>>
>> On 1/28/12 11:39 AM, "Mark J. Markus" wrote:
>>
>>>
>>>
>>>
>>> Not sure I understand what "total control" means. Collecting rents?
>>> Improving the property?
>>>
>>> The financing can be done on a superpriority basis if the requirements are
>>> met under 364c; perhaps that would satisfy her?
>>>
>>>
>>>
>>> *************************
>>> 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/
>>> This Firm is a Qualified Federal Debt Relief Agency (see what this means at
>>> http://bklaw.com/bankruptcy-blog/2008/0 ... 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 1/28/2012 11:12 AM, John D. Faucher wrote:
>>>>
>>>>
>>>>
>>>> Chapter 11 client has a beachfront house worth anywhere from $4 million to
>>>> $10 million. Second lienholder has relief from stay, and we
>>>> obviously want to save the house.
>>>>
>>>> Enter our white-knight financier. He offers to buy out the second
>>>> lienholder and see the property through to a genuine sale over the course
>>>> of the next 12 months, but because the client is a flake, he wants to have
>>>> total control over the property. He is asking for her to grant him a
>>>> general power of attorney over the property. Effectively, he wants to
>>>> become the trustee for this property only (there are others in the case).
>>>>
>>>> I see problems with this: the debtor-in-possession is a fiduciary to the
>>>> creditors, the white-financier is not. She is under court supervision, he
>>>> is not.
>>>>
>>>> Surely this has come up in someone's chapter 11 case: the debtor is so
>>>> untrustworthy that a lender is willing to give financing only if he can
>>>> control the property too. Here, we think we'd like to give him that
>>>> control. By what mechanism can this be done?
>>>>
>>>>
>>>>
>>>>
>>>>
>>>>
>>>>
>>>>
>>>>
>>>>
>>>> John D. Faucher
>>>>
>>>> Hurlbett & Faucher, LLP
>>>>
>>>>
>>>>
>>>> 5743 Corsa Ave., Suite 208
>>>>
>>>> Westlake Village, CA 91362
>>>>
>>>> (818) 889-8080
>>>>
>>>> Fax: (805) 367-4154
>>>>
>>>> http://www.hurlbettfaucher.com/
>>>>
>>>>
>>>>
>>>>
>>>> 3324 State Street, Suite O
>>>>
>>>> Santa Barbara, CA 93105
>>>>
>>>> (805) 963-9111
>>>>
>>>>
>>>>
>>>> This electronic mail message and any attached files are confidential,
>>>> contain information intended for the exclusive use of the individual or
>>>> entity to whom it is addressed, and may be legally privileged. If you are
>>>> not the intended recipient, please immediately reply to John Faucher (at
>>>> 818/889-8080 or john@hf-bklaw.com )
>>>> indicating that you received this message and then delete the message
>>>> without delay. Thank you for your cooperation.
>>>>
>>>> Disclosure Under U.S. IRS Circular 230: The recipient may not use any tax
>>>> advice contained in this communication, including any attachments, for the
>>>> purpose of avoiding federal tax related penalties or promoting, marketing
>>>> or recommending to another party any particular transaction or matter.
>>>>
>>>>
>>>>
>>>>
>>>>
>>>>
>>>>
>>>>
>>>
>>>
>>>
>>>
>>
>>
>>
>>
>>
>
>
>
>
>
>
>
charset="ISO-8859-1"
Pat, are you okay? I fear something terrible has happened to you while writing this message, kind of like happened to Joseph of Arimathea in Monty Python and the Holy Grail. http://www.youtube.com/watch?vGEcvSq4SDkcJohn D. FaucherHurlbett & Faucher, LLPOn 1/29/12 7:19 PM, "pat@fitzgreenlaw.com" <pat@fitzgreenlaw.com> wrote:
after thinking about it, it seems to me that the angel coSent fromr" <j.d.faucher@sbcglobal.net>
Sender: cdcbaa@yahoogroups.com
Date: Sun, 29 Jan 2012 09:59:42 -0800To: <cdcbaa@yahoogroups.com>ReplyTo: cdcbaa@yahoogroups.com
Subject: Re: [cdcbaa] Power of attorney over a property in chapter 11
Pat, the worry here is that a hovering vulture will get into a bidding war with the angel at the foreclosure sale.
The post was migrated from Yahoo.
charset="ISO-8859-1"
Pat, the worry here is that a hovering vulture will get into a bidding war
with the angel at the foreclosure sale.
John D. Faucher
Hurlbett & Faucher, LLP
On 1/28/12 2:28 PM, "pat@fitzgreenlaw.com" wrote:
>
>
>
>
>
> Why not have the angel buy the 2nd and foreclose along with some kind of
> agreement betw flake and angel?
> Pat
>
> Sent from my Verizon Wireless BlackBerry
>
> Sender: cdcbaa@yahoogroups.com
> Date: Sat, 28 Jan 2012 11:53:10 -0800
> To:
> ReplyTo: cdcbaa@yahoogroups.com
> Cc: Ed Kerns
> Subject: Re: [cdcbaa] Power of attorney over a property in chapter 11
>
>
>
>
> Mark: here's what "total control" means -
> Lender to obtain power of attorney acceptable to
>
> lender and subject to court approval to allow lender
>
> participant to act on behalf of borrower-owner to
>
> manage the renovation and deposition of the
>
> collateral including but not limited to the following: I.
>
> Sale 2. Rental 3. Deferred maintenance and repairs
>
> including staging 4. Access 5. Lender chooses real
>
> estate broker and any and all matters related to the
>
> repositioning and disposition of the property.
>
>
> Peter: the judge granted relief from stay because the first trust deed is not
> being held current, and the second squawked about its eroding position. Never
> mind that it would take nine years of nonpayment on the first for the equity
> cushion to erode so far that the second would have less than the 20 percent
> mandated by Mellor; the judge thought that mere nonpayment on the first was
> enough to say that the second was not adequately protected. We have filed a
> motion for reconsideration, and the judge has set that for hearing.
> We have the impression that the second is much more interested in foreclosing
> on the property and taking advantage of all the windfall equity than it is in
> seeing an orderly sale take place. Thus, a stipulation to sell is likely to be
> unavailing.
>
>
> John D. Faucher
> Hurlbett & Faucher, LLP
> 5743 Corsa Ave., Suite 208
> Westlake Village, CA 91362
> (818) 889-8080
> Fax: (805) 367-4154
> http://www.hurlbettfaucher.com/
>
> 3324 State Street, Suite O
> Santa Barbara, CA 93105
> (805) 963-9111
>
> This electronic mail messa! ge and any attached files are confidential,
> contain information intended for the exclusive use of the individual or entity
> to whom it is addressed, and may be legally privileged. If you are not the
> intended recipient, please immediately reply to John Faucher (at 818/889-8080
> or john@hf-bklaw.com ) indicating that you
> received this message and then delete the message without delay. Thank you
> for your cooperation.
>
> Disclosure Under U.S. IRS Circular 230: The recipient may not use any tax
> advice contained in this communication, including any attachments, for the
> purpose of avoiding federal tax related penalties or promoting, marketing or
> recommending to another party any particular transaction or matter.
>
> On 1/28/12 11:39 AM, "Mark J. Markus" wrote:
>
>>
>>
>>
>> Not sure I understand what "total control" means. Collecting rents?
>> Improving the property?
>>
>> The financing can be done on a superpriority basis if the requirements are
>> met under 364c; perhaps that would satisfy her?
>>
>>
>>
>> *************************
>> 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/
>> This Firm is a Qualified Federal Debt Relief Agency (see what this means at
>> http://bklaw.com/bankruptcy-blog/2008/0 ... 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 1/28/2012 11:12 AM, John D. Faucher wrote:
>>>
>>>
>>>
>>> Chapter 11 client has a beachfront house worth anywhere from $4 million to
>>> $10 million. Second lienholder has relief from stay, and we
>>> obviously want to save the house.
>>>
>>> Enter our white-knight financier. He offers to buy out the second
>>> lienholder and see the property through to a genuine sale over the course of
>>> the next 12 months, but because the client is a flake, he wants to have
>>> total control over the property. He is asking for her to grant him a
>>> general power of attorney over the property. Effectively, he wants to
>>> become the trustee for this property only (there are others in the case).
>>>
>>> I see problems with this: the debtor-in-possession is a fiduciary to the
>>> creditors, the white-financier is not. She is under court supervision, he
>>> is not.
>>>
>>> Surely this has come up in someone's chapter 11 case: the debtor is so
>>> untrustworthy that a lender is willing to give financing only if he can
>>> control the property too. Here, we think we'd like to give him that
>>> control. By what mechanism can this be done?
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>> John D. Faucher
>>>
>>> Hurlbett & Faucher, LLP
>>>
>>>
>>>
>>> 5743 Corsa Ave., Suite 208
>>>
>>> Westlake Village, CA 91362
>>>
>>> (818) 889-8080
>>>
>>> Fax: (805) 367-4154
>>>
>>> http://www.hurlbettfaucher.com/
>>>
>>>
>>>
>>>
>>> 3324 State Street, Suite O
>>>
>>> Santa Barbara, CA 93105
>>>
>>> (805) 963-9111
>>>
>>>
>>>
>>> This electronic mail message and any attached files are confidential,
>>> contain information intended for the exclusive use of the individual or
>>> entity to whom it is addressed, and may be legally privileged. If you are
>>> not the intended recipient, please immediately reply to John Faucher (at
>>> 818/889-8080 or john@hf-bklaw.com )
>>> indicating that you received this message and then delete the message
>>> without delay. Thank you for your cooperation.
>>>
>>> Disclosure Under U.S. IRS Circular 230: The recipient may not use any tax
>>> advice contained in this communication, including any attachments, for the
>>> purpose of avoiding federal tax related penalties or promoting, marketing or
>>> recommending to another party any particular transaction or matter.
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>
>>
>>
>>
>
>
>
>
>
>
>
charset="ISO-8859-1"
Pat, the worry here is that a hovering vulture will get into a bidding war with the angel at the foreclosure sale. John D. Faucher
The post was migrated from Yahoo.
John. Santa Barbara?
Sent from my iPhone
On Jan 28, 2012, at 4:43 PM, P L wrote:
> I understand from Jon Hayes that the BAP rules pretty quickly on motions for stay, so I don't see the harm in noticing the appeal and tossing up a motion for stay. This is a pretty hot issue given all the pending Bevery Hills and Malibu real estate based Chapter 11s that are sitting around waiting for rich cash buyers to dust of their wallets.
>
> Peter M. Lively, JD, MBA
> The Personal Financial Law Center
> A-Bankruptcy-Attorney.com
> Culver City (310) 391-2400
>
> To: cdcbaa@yahoogroups.com
> Sent: Saturday, January 28, 2012 12:32 PM
> Subject: RE: [cdcbaa] Power of attorney over a property in chapter 11
>
>
> Thats a good idea, Peter, if the BAP or District Court will issue a stay pending appeal, but what are the chances of that? Or do you think it doesnt matter because the foreclosure trustee will rescind the Trustees Deed of Trust if Johns client ultimately prevails?
>
P L
> Sent: Saturday, January 28, 2012 11:56 AM
> To: cdcbaa@yahoogroups.com
> Subject: Re: [cdcbaa] Power of attorney over a property in chapter 11
>
>
> Appeal the relief from stay order
>
> Peter M. Lively, JD, MBA
> The Personal Financial Law Center
> A-Bankruptcy-Attorney.com
> Culver City (310) 391-2400
>
> To: cdcbaa@yahoogroups.com
> Cc: Ed Kerns
> Sent: Saturday, January 28, 2012 11:53 AM
> Subject: Re: [cdcbaa] Power of attorney over a property in chapter 11
>
>
> Mark: here's what "total control" means -
> Lender to obtain power of attorney acceptable to
> lender and subject to court approval to allow lender
> participant to act on behalf of borrower-owner to
> manage the renovation and deposition of the
> collateral including but not limited to the following: I.
> Sale 2. Rental 3. Deferred maintenance and repairs
> including staging 4. Access 5. Lender chooses real
> estate broker and any and all matters related to the
> repositioning and disposition of the property.
>
> Peter: the judge granted relief from stay because the first trust deed is not being held current, and the second squawked about its eroding position. Never mind that it would take nine years of nonpayment on the first for the equity cushion to erode so far that the second would have less than the 20 percent mandated by Mellor; the judge thought that mere nonpayment on the first was enough to say that the second was not adequately protected. We have filed a motion for reconsideration, and the judge has set that for hearing.
> We have the impression that the second is much more interested in foreclosing on the property and taking advantage of all the windfall equity than it is in seeing an orderly sale take place. Thus, a stipulation to sell is likely to be unavailing.
>
>
> John D. Faucher
> Hurlbett & Faucher, LLP
> 5743 Corsa Ave., Suite 208
> Westlake Village, CA 91362
> (818) 889-8080
> Fax: (805) 367-4154
> http://www.hurlbettfaucher.com/
>
> 3324 State Street, Suite O
> Santa Barbara, CA 93105
> (805) 963-9111
>
> This electronic mail message and any attached files are confidential, contain information intended for the exclusive use of the individual or entity to whom it is addressed, and may be legally privileged. If you are not the intended recipient, please immediately reply to John Faucher (at 818/889-8080 or john@hf-bklaw.com) indicating that you received this message and then delete the message without delay. Thank you for your cooperation.
>
> Disclosure Under U.S. IRS Circular 230: The recipient may not use any tax advice contained in this communication, including any attachments, for the purpose of avoiding federal tax related penalties or promoting, marketing or recommending to another party any particular transaction or matter.
>
> On 1/28/12 11:39 AM, "Mark J. Markus" wrote:
>
>
> Not sure I understand what "total control" means. Collecting rents? Improving the property?
>
> The financing can be done on a superpriority basis if the requirements are met under 364c; perhaps that would satisfy her?
>
> *************************
> 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/
> This Firm is a Qualified Federal Debt Relief Agency (see what this means at http://bklaw.com/bankruptcy-blog/2008/0 ... 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 1/28/2012 11:12 AM, John D. Faucher wrote:
John. Santa Barbara?Sent from my iPhoneOn Jan 28, 2012, at 4:43 PM, P L <petermlively2000@yahoo.com> wrote:
The post was migrated from Yahoo.
I understand from Jon Hayes that theBAP rules pretty quickly on motions for stay, so I don't see the harm in noticing the appeal and tossing up a motion for stay. This is a pretty hot issue givenall the pending Bevery Hills andMalibu real estate based Chapter 11s that are sitting aroundwaiting forrich cashbuyers to dust of their
Peter M. Lively, JD, MBA
The Personal Financial Law Center
A-Bankruptcy-Attorney.com
Culver City (310) 391-2400
________________________________
To: cdcbaa@yahoogroups.com
Sent: Saturday, January 28, 2012 12:32 PM
Subject: RE: [cdcbaa] Power of attorney over a property in chapter 11
Thats a good idea, Peter, if the BAP or District Court will issue a stay pending appeal, but what are the chances of that? Or do you think it doesnt matter because the foreclosure trustee will rescind the Trustees Deed of Trust if Johns client ultimately prevails?
From:cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com] On Behalf Of P L
Sent: Saturday, January 28, 2012 11:56 AM
To: cdcbaa@yahoogroups.com
Subject: Re: [cdcbaa] Power of attorney over a property in chapter 11
Appeal the relief from stay order
Peter M. Lively, JD, MBA
The Personal Financial Law Center
A-Bankruptcy-Attorney.com
Culver City (310) 391-2400
From:John D. Faucher
To: cdcbaa@yahoogroups.com
Cc: Ed Kerns
Sent: Saturday, January 28, 2012 11:53 AM
Subject: Re: [cdcbaa] Power of attorney over a property in chapter 11
Mark: here's what "total control" means -
Lender to obtain power of attorney acceptable to
lender and subject to court approval to allow lender
participant to act on behalf of borrower-owner to
manage the renovation and deposition of the
collateral including but not limited to the following: I.
Sale 2. Rental3.Deferred maintenance and repairs
including staging 4. Access 5. Lender chooses real
estate broker and any and all matters related to the
repositioning and disposition of the property.
Peter: the judge granted relief from stay because the first trust deed is not being held current, and the second squawked about its eroding position. or the equity cushion to erode so far that the second would have less than the 20 percent mandated by Mellor; the judge thought that mere nonpayment on the first was enough to say that the second was not adequately protected. We have filed a motion for reconsideration, and the judge has set that for hearing.
We have the impression that the second is much more interested in foreclosing on the property and taking advantage of all the windfall equity than it is in seeing an orderly sale take place. Thus, a stipulation to sell is likely to be unavailing.
John D. Faucher
Hurlbett & Faucher, LLP
5743 Corsa Ave., Suite 208
Westlake Village, CA 91362
(818) 889-8080
Fax: (805) 367-4154
http://www.hurlbettfaucher.com/
3324 State Street, Suite O
Santa Barbara, CA 93105
(805) 963-9111
This electronic mail message and any attached files are confidential, contain information intended for the exclusive use of the individual or entity to whom it is addressed, and may be legally privileged. If you are not the intended recipient, please immediately reply to John Faucher (at 818/889-8080orjohn@hf-bklaw.com) indicating that you received this message and then delete the message without delay. Thank you for your cooperation.
Disclosure Under U.S. IRS Circular 230: The recipient may not use any tax advice contained in this communication, including any attachments, for the purpose of avoiding federal tax related penalties or promoting, marketing or recommending to another party any particular transaction or matter.
On 1/28/12 11:39 AM, "Mark J. Markus" wrote:
>Not sure I understand what "total control" means. Collecting rents?>
>The financing can be done on a superpriority basis if the requirements are met under 364c; perhaps that would satisfy her?
>
>*************************
>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/
>This Firm is a Qualified Federal Debt Relief Agency (see what this means at http://bklaw.com/bankruptcy-blog/2008/0 ... 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 1/28/2012 11:12 AM, John D. Faucher wrote:
>Chapter 11 client has a beachfront house worth anywhere from $4 million to $10 million. Second lienholder has relief from stay, and we obviously want to save the house.
>Enter our white-knight financier. He offers to buy out the second lienholder and see the property through to a genuine sale over the course of the next 12 months, but because the client is a flake, he wants to have total control over the property. He is asking for her to grant him a general power of attorney over the property. Effectively, he wants to become the trustee for this property only (there are others in the case).
>I see problems with this: the debtor-in-possession is a fiduciary to the creditors, the white-financier is not. She is under court supervision, he is not.
>Surely this has come up in someone's chapter 11 case: the debtor is so untrustworthy that a lender is willing to give financing only if he can control the property too. Here, we think we'd like to give him that control. By what mechanism can this be done?
>
>John D. Faucher
>Hurlbett & Faucher, LLP
>5743 Corsa Ave., Suite 208
>Westlake Village, CA 91362
>(818) 889-8080
>Fax: (805) 367-4154
>http://www.hurlbettfaucher.com/
>
>3324 State Street, Suite O
>Santa Barbara, CA 93105
>(805) 963-9111
>
>This electronic mail message and any attached files are confidential, contain information intended for the exclusive use of the individual or entity to whom it is addressed, and may be legally privileged. If you are not the intended recipient, please immediately reply to John Faucher (at 818/889-8080orjohn@hf-bklaw.com) indicating that you received this message and then delete the message without delay. Thank you for your cooperation.
>
>Disclosure Under U.S. IRS Circular 230: The recipient may not use any tax advice contained in this communication, including any attachments, for the purpose of avoiding federal tax related penalties or promoting, marketing or recommending to another party any particular transaction or matter.
________________________________
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The post was migrated from Yahoo.
Appeal the relief from stay order
Peter M. Lively, JD, MBA
The Personal Financial Law Center
A-Bankruptcy-Attorney.com
Culver City (310) 391-2400
________________________________
To: cdcbaa@yahoogroups.com
Cc: Ed Kerns
Sent: Saturday, January 28, 2012 11:53 AM
Subject: Re: [cdcbaa] Power of attorney over a property in chapter 11
Mark: here's what "total control" means -
Lender to obtain power of attorney acceptable to
lender and subject to court approval to allow lender
participant to act on behalf of borrower-owner to
manage the renovation and deposition of the
collateral including but not limited to the following: I.
Sale 2. Rental3.Deferred maintenance and repairs
including staging 4. Access 5. Lender chooses real
estate broker and any and all matters related to the
repositioning and disposition of the property.
Peter: the judge granted relief from stay because the first trust deed is not being held current, and the second squawked about its eroding position. or the equity cushion to erode so far that the second would have less than the 20 percent mandated by Mellor; the judge thought that mere nonpayment on the first was enough to say that the second was not adequately protected. We have filed a motion for reconsideration, and the judge has set that for hearing.
We have the impression that the second is much more interested in foreclosing on the property and taking advantage of all the windfall equity than it is in seeing an orderly sale take place. Thus, a stipulation to sell is likely to be unavailing.
John D. FaucherHurlbett & Faucher, LLP
5743 Corsa Ave., Suite 208Westlake Village, CA 91362(818) 889-8080Fax: (805) 367-4154
http://www.hurlbettfaucher.com/
3324 State Street, Suite O
Santa Barbara, CA 93105
(805) 963-9111
This electronic mail message and any attached files are confidential, contain information intended for the exclusive use of the individual or entity to whom it is addressed, and may be legally privileged. If you are not the intended recipient, please immediately reply to John Faucher (at 818/889-8080orjohn@hf-bklaw.com) indicating that you received this message and then delete the message without delay. Thank you for your cooperation.
Disclosure Under U.S. IRS Circular 230: The recipient may not use any tax advice contained in this communication, including any attachments, for the purpose of avoiding federal tax related penalties or promoting, marketing or recommending to another party any particular transaction or matter.
On 1/28/12 11:39 AM, "Mark J. Markus" wrote:
>Not sure I understand what "total control" means. Collecting rents?>
>The financing can be done on a superpriority basis if the
requirements are met under 364c; perhaps that would satisfy her?
>
>
>*************************
>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/
>This Firm is a Qualified Federal Debt Relief Agency (see what
this means at
The post was migrated from Yahoo.
charset="ISO-8859-1"
Mark: here's what "total control" means -
Lender to obtain power of attorney acceptable to
lender and subject to court approval to allow lender
participant to act on behalf of borrower-owner to
manage the renovation and deposition of the
collateral including but not limited to the following: I.
Sale 2. Rental 3. Deferred maintenance and repairs
including staging 4. Access 5. Lender chooses real
estate broker and any and all matters related to the
repositioning and disposition of the property.
Peter: the judge granted relief from stay because the first trust deed is
not being held current, and the second squawked about its eroding position.
Never mind that it would take nine years of nonpayment on the first for the
equity cushion to erode so far that the second would have less than the 20
percent mandated by Mellor; the judge thought that mere nonpayment on the
first was enough to say that the second was not adequately protected. We
have filed a motion for reconsideration, and the judge has set that for
hearing.
We have the impression that the second is much more interested in
foreclosing on the property and taking advantage of all the windfall equity
than it is in seeing an orderly sale take place. Thus, a stipulation to sell
is likely to be unavailing.
John D. Faucher
Hurlbett & Faucher, LLP
5743 Corsa Ave., Suite 208
Westlake Village, CA 91362
(818) 889-8080
Fax: (805) 367-4154
http://www.hurlbettfaucher.com/
3324 State Street, Suite O
Santa Barbara, CA 93105
(805) 963-9111
This electronic mail message and any attached files are confidential,
contain information intended for the exclusive use of the individual or
entity to whom it is addressed, and may be legally privileged. If you are
not the intended recipient, please immediately reply to John Faucher (at
818/889-8080 or john@hf-bklaw.com )
indicating that you received this message and then delete the message
without delay. Thank you for your cooperation.
Disclosure Under U.S. IRS Circular 230: The recipient may not use any tax
advice contained in this communication, including any attachments, for the
purpose of avoiding federal tax related penalties or promoting, marketing or
recommending to another party any particular transaction or matter.
On 1/28/12 11:39 AM, "Mark J. Markus" wrote:
>
>
>
>
>
> Not sure I understand what "total control" means. Collecting rents?
> Improving the property?
>
> The financing can be done on a superpriority basis if the requirements are
> met under 364c; perhaps that would satisfy her?
>
>
>
> *************************
> 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/
> This Firm is a Qualified Federal Debt Relief Agency (see what this means at
> http://bklaw.com/bankruptcy-blog/2008/0 ... 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 1/28/2012 11:12 AM, John D. Faucher wrote:
>>
>>
>>
>> Chapter 11 client has a beachfront house worth anywhere from $4 million to
>> $10 million. Second lienholder has relief from stay, and we obviously want
>> to save the house.
>>
>> Enter our white-knight financier. He offers to buy out the second
>> lienholder and see the property through to a genuine sale over the course of
>> the next 12 months, but because the client is a flake, he wants to have total
>> control over the property. He is asking for her to grant him a general power
>> of attorney over the property. Effectively, he wants to become the trustee
>> for this property only (there are others in the case).
>>
>> I see problems with this: the debtor-in-possession is a fiduciary to the
>> creditors, the white-financier is not. She is under court supervision, he is
>> not.
>>
>> Surely this has come up in someone's chapter 11 case: the debtor is so
>> untrustworthy that a lender is willing to give financing only if he can
>> control the property too. Here, we think we'd like to give him that control.
>> By what mechanism can this be done?
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>> John D. Faucher
>>
>> Hurlbett & Faucher, LLP
>>
>>
>>
>> 5743 Corsa Ave., Suite 208
>>
>> Westlake Village, CA 91362
>>
>> (818) 889-8080
>>
>> Fax: (805) 367-4154
>>
>> http://www.hurlbettfaucher.com/
>>
>>
>>
>>
>> 3324 State Street, Suite O
>>
>> Santa Barbara, CA 93105
>>
>> (805) 963-9111
>>
>>
>>
>> This electronic mail message and any attached files are confidential,
>> contain information intended for the exclusive use of the individual or
>> entity to whom it is addressed, and may be legally privileged. If you are
>> not the intended recipient, please immediately reply to John Faucher (at
>> 818/889-8080 or john@hf-bklaw.com ) indicating
>> that you received this message and then delete the message without delay.
>> Thank you for your cooperation.
>>
>> Disclosure Under U.S. IRS Circular 230: The recipient may not use any tax
>> advice contained in this communication, including any attachments, for the
>> purpose of avoiding federal tax related penalties or promoting, marketing or
>> recommending to another party any particular transaction or matter.
>>
>>
>>
>>
>>
>>
>>
>>
>
>
>
>
>
>
charset="ISO-8859-1"
Mark: here's what "total control" means -lender and subject to court approval to allow lenderparticipant to act on behalf of borrower-owner tomanage the renovation and deposition of thecollateral including but not limited to the following: I.
The post was migrated from Yahoo.
How did the second lienholder get relief from stay if there is so much equity? Sounds like you may need a 60b motion and then consider a stipulation for marketing/sale of the property.
Peter M. Lively, JD, MBA
The Personal Financial Law Center
A-Bankruptcy-Attorney.com
Culver City (310) 391-2400
________________________________
To: "cdcbaa@yahoogroups.com"
Cc: Ed Kerns
Sent: Saturday, January 28, 2012 11:12 AM
Subject: [cdcbaa] Power of attorney over a property in chapter 11
Chapter 11 client has a beachfront house worth anywhere from $4 million to $10 million. Second lienholder has relief from stay, and we obviously want to save the house.
Enter our white-knight financier. He offers to buy out the second lienholder and see the property through to a genuine sale over the course of the next 12 months, but because the client is a flake, he wants to have total control over the property. He is asking for her to grant him a general power of attorney over the property. Effectively, he wants to become the trustee for this property only (there are others in the case).
I see problems with this: the debtor-in-possession is a fiduciary to the creditors, the white-financier is not. She is under court supervision, he is not.
Surely this has come up in someone's chapter 11 case: the debtor is so untrustworthy that a lender is willing to give financing only if he can control the property too. Here, we think we'd like to give him that control. By what mechanism can this be done?
John D. FaucherHurlbett & Faucher, LLP
5743 Corsa Ave., Suite 208Westlake Village, CA 91362(818) 889-8080Fax: (805) 367-4154
http://www.hurlbettfaucher.com/
3324 State Street, Suite O
Santa Barbara, CA 93105
(805) 963-9111
This electronic mail message and any attached files are confidential, contain information intended for the exclusive use of the individual or entity to whom it is addressed, and may be legally privileged. If you are not the intended recipient, please immediately reply to John Faucher (at 818/889-8080orjohn@hf-bklaw.com) indicating that you received this message and then delete the message without delay. Thank you for your cooperation.
Disclosure Under U.S. IRS Circular 230: The recipient may not use any tax advice contained in this communication, including any attachments, for the purpose of avoiding federal tax related penalties or promoting, marketing or recommending to another party any particular transaction or matter.
The post was migrated from Yahoo.
Not sure I understand what "total control" means. Collecting
rents? Improving the property?
The financing can be done on a superpriority basis if the
requirements are met under 364c; perhaps that would satisfy her?
*************************
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/
This Firm is a Qualified Federal Debt Relief Agency (see what this
means at
The post was migrated from Yahoo.
charset="US-ASCII"
Chapter 11 client has a beachfront house worth anywhere from $4 million to
$10 million. Second lienholder has relief from stay, and we obviously want
to save the house.
Enter our white-knight financier. He offers to buy out the second
lienholder and see the property through to a genuine sale over the course of
the next 12 months, but because the client is a flake, he wants to have
total control over the property. He is asking for her to grant him a
general power of attorney over the property. Effectively, he wants to
become the trustee for this property only (there are others in the case).
I see problems with this: the debtor-in-possession is a fiduciary to the
creditors, the white-financier is not. She is under court supervision, he
is not.
Surely this has come up in someone's chapter 11 case: the debtor is so
untrustworthy that a lender is willing to give financing only if he can
control the property too. Here, we think we'd like to give him that
control. By what mechanism can this be done?
John D. Faucher
Hurlbett & Faucher, LLP
5743 Corsa Ave., Suite 208
Westlake Village, CA 91362
(818) 889-8080
Fax: (805) 367-4154
http://www.hurlbettfaucher.com/
3324 State Street, Suite O
Santa Barbara, CA 93105
(805) 963-9111
This electronic mail message and any attached files are confidential,
contain information intended for the exclusive use of the individual or
entity to whom it is addressed, and may be legally privileged. If you are
not the intended recipient, please immediately reply to John Faucher (at
818/889-8080 or john@hf-bklaw.com )
indicating that you received this message and then delete the message
without delay. Thank you for your cooperation.
Disclosure Under U.S. IRS Circular 230: The recipient may not use any tax
advice contained in this communication, including any attachments, for the
purpose of avoiding federal tax related penalties or promoting, marketing or
recommending to another party any particular transaction or matter.
charset="US-ASCII"
Chapter 11 client has a beachfront house worth anywhere from $4 million to $10 million. Second lienholder has relief from stay, and we obviously want to save the house. Enter our white-knight financier. He offers to buy out the second lienholder and see the property through to a genuine sale over the course of the next 12 months, but because the client is a flake, he wants to have total control over the property. He is asking for her to grant him a general power of attorney over the property. Effectively, he wants to become the trustee for this property only (there are others in the case). I see problems with this: the debtor-in-possession is a fiduciary to the creditors, the white-financier is not. She is under court supervision, he is not. Surely this has come up in someone's chapter 11 case: the debtor is so untrustworthy that a lender is willing to give financing only if he can control the property too. Here, we think we'd like to give him that control. By what mechanism can this be done? John D. FaucherHurlbett & Faucher, LLP5743 Corsa Ave., Suite 208
The post was migrated from Yahoo.