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Need help untangling
This question and this answer create a lot of problems.
1. Ch 13 debtor, W, does not have authority to give away an interest in the estate to H.
2. All property of the debtors becomes property of the first case filed, So husband's second case will have no property.
3. Since husband is not on title and not on loan, foreclosure from W may not even be an act to collect a debt from husband.
I would be reluctant to file this h case, and very reluctant to advise anyone in a bk to transfer property from the active bk estate.
dennis
________________________________
To: "cdcbaa@yahoogroups.com"
Sent: Wednesday, November 23, 2011 12:54 PM
Subject: Re: [cdcbaa] Need help untangling
Give interest in property to husband. Then all of husband's property is the husband's bankruptcy estate.
Sent from my iPhone
On Nov 23, 2011, at 11:20 AM, Jacob Chang wrote:
>Background:
>
>PC is a married couple. They bought the business and the land that it sits on with an SBA loan for which the bank holds a deed of trust. They bought it after marriage, and paid the deposit with community property. Both W and H work in the business, which is their sole source of income. BUT, only W is on title of the business/land and she is the only borrower on title, SBA loan, and deed of trust.
>
>Problem:
>
>After defaulting on the SBA loan, at the eve of foreclosure sale date, ONLY W filed Ch. 13. The case was dismissed. W again on her own filed another Ch. 13, but the 13 plan cannot be confirmed before the scheduled sale date coming up shortly. Negotiating with the bank is out of the question. H is now contemplating whether to file Ch. 13 bk, since he has not filed bk before, in order to seek bankruptcy protection from foreclosure sale, and to try one last time to get a plan confirmed.
>
>Bank is arguing that automatic stay does not apply to the Property,
because 1) only W is on title as "married person as her sole and
separate property," and 2) a plan cannot be confirmed because H is not
on the loan.
>
>Questions:
>
>Regarding the first point, it seems to me that automatic stay still applies. Notwithstanding how the title is legally held, property is still community property since it was acquired with community assets, and the loan was paid with earnings from labor of both H & W during their marriage. Correct?
>
>Regarding the second point, I don't know. Could a plan be confirmed with the above fact pattern (e.g., H seeks ch. 13 bk plan confirmation when he is not on title or loan)? And if it could, would it be possible to do a cramdown of the SBA loan to the value of the property?
>
>It's a lot to chew over, so I appreciate any response.
>
>Warm regards,
>
>Jacob D. Chang, Esq.
>
>Please kindly consider the environment before printing this e-mail.
>
>Note: This electronic mail is intended to be received and read only by certain individuals. It may contain information that is attorney-client privileged or protected from disclosure by law. If it has been misdirected, or if you suspect you have received this in error, please notify me by replying and then delete both the message and reply. Thank you.
>
>
The post was migrated from Yahoo.
Here's another issue. The automatic stay stops the sale date but on second filing only for 30 days unless motion to extend the stay is heard.
Law Office of Catherine Christiansen
________________________________
To: "cdcbaa@yahoogroups.com"
Sent: Wednesday, November 23, 2011 12:54 PM
Subject: Re: [cdcbaa] Need help untangling
Give interest in property to husband. Then all of husband's property is the husband's bankruptcy estate.
Sent from my iPhone
On Nov 23, 2011, at 11:20 AM, Jacob Chang wrote:
>Background:
>
>PC is a married couple. They bought the business and the land that it sits on with an SBA loan for which the bank holds a deed of trust. They bought it after marriage, and paid the deposit with community property. Both W and H work in the business, which is their sole source of income. BUT, only W is on title of the business/land and she is the only borrower on title, SBA loan, and deed of trust.
>
>Problem:
>
>After defaulting on the SBA loan, at the eve of foreclosure sale date, ONLY W filed Ch. 13. The case was dismissed. W again on her own filed another Ch. 13, but the 13 plan cannot be confirmed before the scheduled sale date coming up shortly. Negotiating with the bank is out of the question. H is now contemplating whether to file Ch. 13 bk, since he has not filed bk before, in order to seek bankruptcy protection from foreclosure sale, and to try one last time to get a plan confirmed.
>
>Bank is arguing that automatic stay does not apply to the Property,
because 1) only W is on title as "married person as her sole and
separate property," and 2) a plan cannot be confirmed because H is not
on the loan.
>
>Questions:
>
>Regarding the first point, it seems to me that automatic stay still applies. Notwithstanding how the title is legally held, property is still community property since it was acquired with community assets, and the loan was paid with earnings from labor of both H & W during their marriage. Correct?
>
>Regarding the second point, I don't know. Could a plan be confirmed with the above fact pattern (e.g., H seeks ch. 13 bk plan confirmation when he is not on title or loan)? And if it could, would it be possible to do a cramdown of the SBA loan to the value of the property?
>
>It's a lot to chew over, so I appreciate any response.
>
>Warm regards,
>
>Jacob D. Chang, Esq.
>
>Please kindly consider the environment before printing this e-mail.
>
>Note: This electronic mail is intended to be received and read only by certain individuals. It may contain information that is attorney-client privileged or protected from disclosure by law. If it has been misdirected, or if you suspect you have received this in error, please notify me by replying and then delete both the message and reply. Thank you.
>
>
The post was migrated from Yahoo.
@Jeannette, the attorney for W has tried that and the court denied the
motion to extend stay. This is in Eastern District.
Warm regards,
Jacob D. Chang, Esq.
Please kindly consider the environment before printing this e-mail.
Note: This electronic mail is intended to be received and read only by
certain individuals. It may contain information that is attorney-client
privileged or protected from disclosure by law. If it has been misdirected,
or if you suspect you have received this in error, please notify me by
replying and then delete both the message and reply. Thank you.
On Wed, Nov 23, 2011 at 2:42 PM, Jeannette Marsala wrote:
> **
>
>
> Why not extend the stay in W's case?
>
> Jeannette R. Marsala | Attorney
> PROBER & RAPHAEL, ALC
> 20750 Ventura Blvd., Suite 100 | Woodland Hills, CA 91364
> Tel: (818) 227-0100, ext. 287 | Fax: (818) 227-0637
> jmarsala@pralc.com | www.pralc.com
>
> CONFIDENTIALITY NOTE
> The information contained in this email message is or may be attorney
> privileged and confidential information intended only for the use of the
> individual or entity named above. If the reader of this message is not the
> intended recipient, or the employee or agent responsible for delivering it
> to the intended recipient, you are hereby notified that any dissemination,
> distribution or copying of this communication is strictly prohibited. If
> you have received this communication in error, please immediately notify us
> by return email.
>
> >>> jacobchang.esq@gmail.com 11/23/2011 11:20 AM >>>
>
> Background:
>
> PC is a married couple. They bought the business and the land that it sits
> on with an SBA loan for which the bank holds a deed of trust. They bought
> it after marriage, and paid the deposit with community property. Both W
> and H work in the business, which is their sole source of income. BUT,
> only W is on title of the business/land and she is the only borrower on
> title, SBA loan, and deed of trust.
>
> Problem:
>
> After defaulting on the SBA loan, at the eve of foreclosure sale date, ONLY
> W filed Ch. 13. The case was dismissed. W again on her own filed another
> Ch. 13, but the 13 plan cannot be confirmed before the scheduled sale date
> coming up shortly. Negotiating with the bank is out of the question. H is
> now contemplating whether to file Ch. 13 bk, since he has not filed bk
> before, in order to seek bankruptcy protection from foreclosure sale, and
> to try one last time to get a plan confirmed.
>
> Bank is arguing that automatic stay does not apply to the Property, because
> 1) only W is on title as "married person as her sole and separate
> property," and 2) a plan cannot be confirmed because H is not on the loan.
>
> Questions:
>
> Regarding the first point, it seems to me that automatic stay still
> applies. Notwithstanding how the title is legally held, property is still
> community property since it was acquired with community assets, and the
> loan was paid with earnings from labor of both H & W during their
> marriage. Correct?
>
> Regarding the second point, I don't know. Could a plan be confirmed with
> the above fact pattern (e.g., H seeks ch. 13 bk plan confirmation when he
> is not on title or loan)? And if it could, would it be possible to do a
> cramdown of the SBA loan to the value of the property?
>
> It's a lot to chew over, so I appreciate any response.
>
> Warm regards,
>
> Jacob D. Chang, Esq.
>
> Please kindly consider the environment before printing this e-mail.
>
> Note: This electronic mail is intended to be received and read only by
> certain individuals. It may contain information that is attorney-client
> privileged or protected from disclosure by law. If it has been misdirected,
> or if you suspect you have received this in error, please notify me by
> replying and then delete both the message and reply. Thank you.
>
>
>
@Jeannette, the attorney for W has tried that and the court denied the motion to extend stay. This is in Eastern District.Warm regards,Jacob D. Chang, Esq.Please kindly consider the environment before printing this e-mail.
by certain individuals. It may contain information that is attorney-client privileged or protected from disclosure by law. If it has been misdirected, or if you suspect you have received this in error, please notify me by replying and then delete both the message and reply. Thank you.
On Wed, Nov 23, 2011 at 2:42 PM, Jeannette Marsala <jmarsala@pprlaw.net> wrote:
Why not extend the stay in W's case?
Jeannette R. Marsala | Attorney
PROBER & RAPHAEL, ALC
20750 Ventura Blvd., Suite 100 | Woodland Hills, CA 91364
Tel: (818) 227-0100, ext. 287 | Fax: (818) 227-0637
jmarsala@pralc.com | www.pralc.com
CONFIDENTIALITY NOTE
The information contained in this email message is or may be attorney privileged and confidential information intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, or the employee or agent responsible for delivering it to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please immediately notify us by return email.
>>> jacobchang.esq@gmail.com 11/23/2011 11:20 AM >>>
Background:
PC is a married couple. They bought the business and the land that it sits
on with an SBA loan for which the bank holds a deed of trust. They bought
it after marriage, and paid the deposit with community property. Both W
and H work in the business, which is their sole source of income. BUT,
only W is on title of the business/land and she is the only borrower on
title, SBA loan, and deed of trust.
Problem:
After defaulting on the SBA loan, at the eve of foreclosure sale date, ONLY
W filed Ch. 13. The case was dismissed. W again on her own filed another
Ch. 13, but the 13 plan cannot be confirmed before the scheduled sale date
coming up shortly. Negotiating with the bank is out of the question. H is
now contemplating whether to file Ch. 13 bk, since he has not filed bk
before, in order to seek bankruptcy protection from foreclosure sale, and
to try one last time to get a plan confirmed.
Bank is arguing that automatic stay does not apply to the Property, because
1) only W is on title as "married person as her sole and separate
property," and 2) a plan cannot be confirmed because H is not on the loan.
Questions:
Regarding the first point, it seems to me that automatic stay still
applies. Notwithstanding how the title is legally held, property is still
community property since it was acquired with community assets, and the
loan was paid with earnings from labor of both H & W during their
marriage. Correct?
Regarding the second point, I don't know. Could a plan be confirmed with
the above fact pattern (e.g., H seeks ch. 13 bk plan confirmation when he
is not on title or loan)? And if it could, would it be possible to do a
cramdown of the SBA loan to the value of the property?
It's a lot to chew over, so I appreciate any response.
Warm regards,
Jacob D. Chang, Esq.
Please kindly consider the environment before printing this e-mail.
Note: This electronic mail is intended to be received and read only by
certain individuals. It may contain information that is attorney-client
privileged or protected from disclosure by law. If it has been misdirected,
or if you suspect you have received this in error, please notify me by
replying and then delete both the message and reply. Thank you.
The post was migrated from Yahoo.
Why not extend the stay in W's case?
Jeannette R. Marsala | Attorney
PROBER & RAPHAEL, ALC
20750 Ventura Blvd., Suite 100 | Woodland Hills, CA 91364
Tel: (818) 227-0100, ext. 287 | Fax: (818) 227-0637
jmarsala@pralc.com | www.pralc.com
CONFIDENTIALITY NOTE
The information contained in this email message is or may be attorney privileged and confidential information intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, or the employee or agent responsible for delivering it to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please immediately notify us by return email.
>>> jacobchang.esq@gmail.com 11/23/2011 11:20 AM >>>
Background:
PC is a married couple. They bought the business and the land that it sits
on with an SBA loan for which the bank holds a deed of trust. They bought
it after marriage, and paid the deposit with community property. Both W
and H work in the business, which is their sole source of income. BUT,
only W is on title of the business/land and she is the only borrower on
title, SBA loan, and deed of trust.
Problem:
After defaulting on the SBA loan, at the eve of foreclosure sale date, ONLY
W filed Ch. 13. The case was dismissed. W again on her own filed another
Ch. 13, but the 13 plan cannot be confirmed before the scheduled sale date
coming up shortly. Negotiating with the bank is out of the question. H is
now contemplating whether to file Ch. 13 bk, since he has not filed bk
before, in order to seek bankruptcy protection from foreclosure sale, and
to try one last time to get a plan confirmed.
Bank is arguing that automatic stay does not apply to the Property, because
1) only W is on title as "married person as her sole and separate
property," and 2) a plan cannot be confirmed because H is not on the loan.
Questions:
Regarding the first point, it seems to me that automatic stay still
applies. Notwithstanding how the title is legally held, property is still
community property since it was acquired with community assets, and the
loan was paid with earnings from labor of both H & W during their
marriage. Correct?
Regarding the second point, I don't know. Could a plan be confirmed with
the above fact pattern (e.g., H seeks ch. 13 bk plan confirmation when he
is not on title or loan)? And if it could, would it be possible to do a
cramdown of the SBA loan to the value of the property?
It's a lot to chew over, so I appreciate any response.
Warm regards,
Jacob D. Chang, Esq.
Please kindly consider the environment before printing this e-mail.
Note: This electronic mail is intended to be received and read only by
certain individuals. It may contain information that is attorney-client
privileged or protected from disclosure by law. If it has been misdirected,
or if you suspect you have received this in error, please notify me by
replying and then delete both the message and reply. Thank you.
The post was migrated from Yahoo.
Give interest in property to husband. Then all of husband's property is the husband's bankruptcy estate.
Sent from my iPhone
On Nov 23, 2011, at 11:20 AM, Jacob Chang wrote:
> Background:
>
> PC is a married couple. They bought the business and the land that it sits on with an SBA loan for which the bank holds a deed of trust. They bought it after marriage, and paid the deposit with community property. Both W and H work in the business, which is their sole source of income. BUT, only W is on title of the business/land and she is the only borrower on title, SBA loan, and deed of trust.
>
> Problem:
>
> After defaulting on the SBA loan, at the eve of foreclosure sale date, ONLY W filed Ch. 13. The case was dismissed. W again on her own filed another Ch. 13, but the 13 plan cannot be confirmed before the scheduled sale date coming up shortly. Negotiating with the bank is out of the question. H is now contemplating whether to file Ch. 13 bk, since he has not filed bk before, in order to seek bankruptcy protection from foreclosure sale, and to try one last time to get a plan confirmed.
>
> Bank is arguing that automatic stay does not apply to the Property, because 1) only W is on title as "married person as her sole and separate property," and 2) a plan cannot be confirmed because H is not on the loan.
>
> Questions:
>
> Regarding the first point, it seems to me that automatic stay still applies. Notwithstanding how the title is legally held, property is still community property since it was acquired with community assets, and the loan was paid with earnings from labor of both H & W during their marriage. Correct?
>
> Regarding the second point, I don't know. Could a plan be confirmed with the above fact pattern (e.g., H seeks ch. 13 bk plan confirmation when he is not on title or loan)? And if it could, would it be possible to do a cramdown of the SBA loan to the value of the property?
>
> It's a lot to chew over, so I appreciate any response.
>
> Warm regards,
>
> Jacob D. Chang, Esq.
>
> Please kindly consider the environment before printing this e-mail.
>
> Note: This electronic mail is intended to be received and read only by certain individuals. It may contain information that is attorney-client privileged or protected from disclosure by law. If it has been misdirected, or if you suspect you have received this in error, please notify me by replying and then delete both the message and reply. Thank you.
>
>
Give interest in property to husband. Then all of husband's property is the husband's bankruptcy estate. Sent from my iPhoneOn Nov 23, 2011, at 11:20 AM, Jacob Chang <jacobchang.esq@gmail.com> wrote:
Background:PC is a married couple. They bought the business and the land that it sits on with an SBA loan for which the bank holds a deed of trust. They bought it after marriage, and paid the deposit with community property. Both W and H work in the business, which is their sole source of income. BUT, only W is on title of the business/land and she is the only borrower on title, SBA loan, and deed of trust.
Problem:After defaulting on the SBA loan, at the eve of foreclosure sale date, ONLY W filed Ch. 13. The case was dismissed. W again on her own filed another Ch. 13, but the 13 plan cannot be confirmed before the scheduled sale date coming up shortly. Negotiating with the bank is out of the question. H is now contemplating whether to file Ch. 13 bk, since he has not filed bk before, in order to seek bankruptcy protection from foreclosure sale, and to try one last time to get a plan confirmed.
Bank is arguing that automatic stay does not apply to the Property,
because 1) only W is on title as "married person as her sole and
separate property," and 2) a plan cannot be confirmed because H is not
on the loan.Questions:Regarding the first point, it seems to me that automatic stay still applies. Notwithstanding how the title is legally held, property is still community property since it was acquired with community assets, and the loan was paid with earnings from labor of both H & W during their marriage. Correct?
Regarding the second point, I don't know. Could a plan be confirmed with the above fact pattern (e.g., H seeks ch. 13 bk plan confirmation when he is not on title or loan)? And if it could, would it be possible to do a cramdown of the SBA loan to the value of the property?
It's a lot to chew over, so I appreciate any response.Warm regards,Jacob D. Chang, Esq.Please kindly consider the environment before printing this e-mail. Note: This electronic mail is intended to be received and read only by certain individuals. It may contain information that is attorney-client privileged or protected from disclosure by law. If it has been misdirected, or if you suspect you have received this in error, please notify me by replying and then delete both the message and reply. Thank you.
The post was migrated from Yahoo.
Background:
PC is a married couple. They bought the business and the land that it sits
on with an SBA loan for which the bank holds a deed of trust. They bought
it after marriage, and paid the deposit with community property. Both W
and H work in the business, which is their sole source of income. BUT,
only W is on title of the business/land and she is the only borrower on
title, SBA loan, and deed of trust.
Problem:
After defaulting on the SBA loan, at the eve of foreclosure sale date, ONLY
W filed Ch. 13. The case was dismissed. W again on her own filed another
Ch. 13, but the 13 plan cannot be confirmed before the scheduled sale date
coming up shortly. Negotiating with the bank is out of the question. H is
now contemplating whether to file Ch. 13 bk, since he has not filed bk
before, in order to seek bankruptcy protection from foreclosure sale, and
to try one last time to get a plan confirmed.
Bank is arguing that automatic stay does not apply to the Property, because
1) only W is on title as "married person as her sole and separate
property," and 2) a plan cannot be confirmed because H is not on the loan.
Questions:
Regarding the first point, it seems to me that automatic stay still
applies. Notwithstanding how the title is legally held, property is still
community property since it was acquired with community assets, and the
loan was paid with earnings from labor of both H & W during their
marriage. Correct?
Regarding the second point, I don't know. Could a plan be confirmed with
the above fact pattern (e.g., H seeks ch. 13 bk plan confirmation when he
is not on title or loan)? And if it could, would it be possible to do a
cramdown of the SBA loan to the value of the property?
It's a lot to chew over, so I appreciate any response.
Warm regards,
Jacob D. Chang, Esq.
Please kindly consider the environment before printing this e-mail.
Note: This electronic mail is intended to be received and read only by
certain individuals. It may contain information that is attorney-client
privileged or protected from disclosure by law. If it has been misdirected,
or if you suspect you have received this in error, please notify me by
replying and then delete both the message and reply. Thank you.
Background:PC is a married couple. They bought the business and the land that it sits on with an SBA loan for which the bank holds a deed of trust. They bought it after marriage, and paid the deposit with community property. Both W and H work in the business, which is their sole source of income. BUT, only W is on title of the business/land and she is the only borrower on title, SBA loan, and deed of trust.
Problem:After defaulting on the SBA loan, at the eve of foreclosure sale date, ONLY W filed Ch. 13. The case was dismissed. W again on her own filed another Ch. 13, but the 13 plan cannot be confirmed before the scheduled sale date coming up shortly. Negotiating with the bank is out of the question. H is now contemplating whether to file Ch. 13 bk, since he has not filed bk before, in order to seek bankruptcy protection from foreclosure sale, and to try one last time to get a plan confirmed.
Bank is arguing that automatic stay does not apply to the Property,
because 1) only W is on title as "married person as her sole and
separate property," and 2) a plan cannot be confirmed because H is noton the loan.Questions:Regarding the first point, it seems to me that automatic stay still applies. Notwithstanding how the title is legally held, property is still community property since it was acquired with community assets, and the loan was paid with earnings from labor of both H & W during their marriage. Correct?
Regarding the second point, I don't know. Could a plan be confirmed with the above fact pattern (e.g., H seeks ch. 13 bk plan confirmation when he is not on title or loan)? And if it could, would it be possible to do a cramdown of the SBA loan to the value of the property?
It's a lot to chew over, so I appreciate any response.
The post was migrated from Yahoo.