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Ch, 13 109(e) eligibility question
Yes,since chapters 1, 3 and 5 apply in all cases, the debtor would, on a strict reading of the code be ineligible. That should not get in the way of your duty to be a zealous advocate, however, as long as there is a case on the books inopposite.
Eric's comment is a good bootstrap, but keep in mind there has been an 1111(b) election in the code since 1978, and that has never affected the secured status of the claim, it has only affected how the code says the claim has to be paid. How the claim has to be paid is separate from secured status. Congress can mess with either side of the equation.
dennis
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In a message dated 5/22/2009 11:26:54 AM Pacific Daylight Time,
easky1@yahoo.com writes:
Mark:
506(a) says a claim is an allowed secured claim to the value of the
collateral
506(b) says oversecured claims keep their contract rights to attys fees,
late charges, etc (this is why we need the addendum)
506(d) says to the extent the secured claim is not allowed, the claim is
void.
so, undersecured portion is unsecured. It does not take a moton to have
506 apply, chapters 1, 3 & 5 apply automatically.
dennis
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Mark:
506(a) says a claim is an allowed secured claim to the value of the collateral
506(b) says oversecured claims keep their contract rights to attys fees, late charges, etc (this is why we need the addendum)
506(d) says to the extent the secured claim is not allowed, the claim is void.
so, undersecured portion is unsecured. It does not take a moton to have 506 apply, chapters 1, 3 & 5 apply automatically.
dennis
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I don't think anyone knows for sure, but I agree with Jim.
David A. Tilem
Certified Bankruptcy Specialist*
Law Offices of David A. Tilem (a debt relief agency)
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Specialization.
James T. King
Sent: Friday, May 22, 2009 6:46 AM
To: cdcbaa@yahoogroups.com
Subject: RE: [cdcbaa] Ch, 13 109(e) eligibility question
I think the answer is yes and yes. But, you need to make it clear in the
schedules and plan.
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That's what I thought, although I find it strange from an academic
standpoint. The debt is either unsecured on the date of filing, or it's
not. Post petition motions and such shouldn't affect the 109e analysis, but
I'm not going to complain.
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I believe the majority view amongst our judges is that in Chapter 13 the
unsecured portion of any real estate mortgages must be included as unsecured
debt on the date of filing in determining 109(e) figures.
Is this true only if the debtor is attempting to value the claim and lien
strip, or in all cases regardless?
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Law Office of Mark J. Markus
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