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calculating 109(e) and liquidation values
charset="windows-1251"
Question 1
109(e) talks about excluding contingent and unliquidated, but NOT disputed
debts. A contingent obligation is one not yet due which will become due
upon the occurrence of a contingency, including the mere passage of time.
An unliquidated obligation is one not capable of being readily computed, not
one which can merely be computed through the usage of a mathematical
formula, i.e. a tort claim. Thus the first question really comes down to
whether you believe the obligation is "contingent" upon prevailing in the
underlying action to set aside the foreclosure. I don't see getting
sanctioned if you try it, and you are, after all, a zealous advocate on
behalf of your client.
Question 2
The plan may have to be modified if you are successful in recovering the
asset, or perhaps you can argue that the "value" of the existing legal claim
is what needs to be included in the liquidation analysis.
Question 3
Not technically, but I would sure insist upon it if I were that attorney.
What is the source of his fee since all disposable income is supposed to be
paid to creditors through the plan?
David A. Tilem
Certified Bankruptcy Specialist*
Law Offices of David A. Tilem (a debt relief agency)
206 N. Jackson Street, #201, Glendale, CA 91206
Tel: 818-507-6000 Fax: 818-507-6800
* Bankruptcy specialist cert. by State Bar of CA Bd of Legal
Specialization.
Mark J. Markus
Sent: Tuesday, April 05, 2011 10:18 AM
To: cdcbaa@yahoogroups.com
Subject: [cdcbaa] calculating 109(e) and liquidation values
I need our group's input on this:
Debtor had one of his properties foreclosed on prepetition. He has
filed suit to recover the property claiming the wrongful foreclosure
(he had reinstated the loan prior to foreclosure).
I'm trying to determine whether this debtor qualifies for Chapter 13
vs. Chapter 11 and also whether the equity in the foreclosed
property would be included in the liquidation analysis under either
chapter.
If we exclude that property from the mix, then he just barely
qualifies for Chapter 13 given the secured debts on his principal
residence. If we must use the secured debts that existed
pre-foreclosure, then he would not.
Also, if the equity in that property (or, more accurately the value
to the estate of the pending lawsuit) is factored in, he'd have to
do a 100% repayment plan whereas if not, it could be limited to a
lower amount.
So my questions are: 1. Does the secured debt from the prepetition
foreclosed property get included in the 109(e) calculations at all
(it was just one mortgage)?
2. Does the value of that
foreclosed property get factored in to the liquidation analysis?
3. Will the attorney working on
the litigation for recovering the foreclosed property need
bankruptcy court approval to get paid in a Chapter 13? (I know he'd
have to be employed and have fees approved in a Chapter 11 case)
Thanks,
*************************
Mark J. Markusaw 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.
Thanks. This raises another little issue:
In a Chapter 13 case, when is the "effective date of the plan"?
This is relevant because if he does prevail postpetition, but prior
to the effective date of the plan, then the asset value would get
factored into the liquidation analysis. I know the effective date
is specified in the Chapter 11 plans, but I never considered this in
a Chapter 13 context. If it the date the plan is confirmed?
*************************
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.
If you win, debtor may have more than he can exempt, which would affect liquidation but you can't put a dollar value on the litigation in light of the uncertainty at this point. So I would disclose as unknown.
You can find out the purchase price from the trustee's deed upon sale. As a side note, zillow.com actually reflects foreclosure prices quite quickly but I would confirm with the trustee's deed upon sale.
Sent from my iPad
On Apr 5, 2011, at 11:56 AM, "Mark J. Markus" wrote:
> I don't know what the purchase price was (and honestly not really sure how to find that out) The goal of the lawsuit is to recover title to the property, and if he does so, there's over $200,000 in equity. I don't understand how the value of the litigation, therefore, could be small or nil.
>
> *************************
> 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 4/5/2011 11:51 AM, Giovanni Orantes, Esq. wrote:
>>
>> What was the purchase price? If just a credit-bid, then the value of the litigation may be very small or nil if you lose. If not then ... Anyway, the value of the asset should be disclosed as unknown but I would exempt the entirety of it.
>>
>> Sent from my iPad
>>
>> On Apr 5, 2011, at 10:55 AM, "Mark J. Markus" wrote:
>>
>>>
>>> Yes, there's a lot of equity in the foreclosed property. Sorry I left out that info.
>>>
>>> *************************
>>> 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 4/5/2011 10:33 AM, Giovanni Orantes, Esq. wrote:
>>>>
>>>> Since foreclosure happened pre petition, isn't debt on the foreclosed property disputed, contingent and unliquidated? As such, it wouldn't be counted toward 109(e) limits - but be sure you override your software on this.
>>>>
>>>> Does the foreclosed property have equity? If not, I dont see how it would be factored into liquidation analysis but if reinstatement payment was made, the litigation may have value which you'd need to exempt.
>>>>
>>>> Attorney has to be employed and compensated like in Ch. 11 though the fee apps and emp apps tend to be very brief.
>>>>
>>>> Sent from my iPad
>>>>
>>>> On Apr 5, 2011, at 10:18 AM, "Mark J. Markus" wrote:
>>>>
>>>>>
>>>>>
>>>>> I need our group's input on this:
>>>>>
>>>>> Debtor had one of his properties foreclosed on prepetition. He has
>>>>> filed suit to recover the property claiming the wrongful foreclosure>>>>> (he had reinstated the loan prior to foreclosure).
>>>>>
>>>>> I'm trying to determine whether this debtor qualifies for Chapter 13>>>>> vs. Chapter 11 and also whether the equity in the foreclosed
>>>>> property would be included in the liquidation analysis under either
>>>>> chapter.
>>>>>
>>>>> If we exclude that property from the mix, then he just barely t
>>>>> qualifies for Chapter 13 given the secured debts on his principal
>>>>> residence. If we must use the secured debts that existed
>>>>> pre-foreclosure, then he would not.
>>>>>
>>>>> Also, if the equity in that property (or, more accurately the value
>>>>> to the estate of the pending lawsuit) is factored in, he'd have to
>>>>> do a 100% repayment plan whereas if not, it could be limited to a
>>>>> lower amount.
>>>>>
>>>>> So my questions are: 1. Does the secured debt from the prepetition
>>>>> foreclosed property get included in the 109(e) calculations at all
>>>>> (it was just one mortgage)?
>>>>> 2. Does the value of that
>>>>> foreclosed property get factored in to the liquidation analysis?
>>>>> 3. Will the attorney working on
>>>>> the litigation for recovering the foreclosed property need
>>>>> bankruptcy court approval to get paid in a Chapter 13? (I know he'd
>>>>> have to be employed and have fees approved in a Chapter 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/
>>>>> 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.
>>>>>
>>>>
>>>
>>
>
>
If you win, debtor may have more than he can exempt, which would affect liquidation but you can't put a dollar value on the litigation in light of the uncertainty at this point. So I would disclose as unknown. You can find out the purchase price from the trustee's deed upon sale. As a side note, zillow.com actually reflects foreclosure prices quite quickly but I would confirm with the trustee's deed upon sale.Sent from my iPadOn Apr 5, 2011, at 11:56 AM, "Mark J. Markus" <bklawr@yahoo.com> wrote:
I don't know what the purchase price was (and honestly not
really sure how to find that out) The goal of the lawsuit is to
recover title to the property, and if he does so, there's over
$200,000 in equity. I don't understand how the value of the
litigation, therefore, could be small or nil.
*************************
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.
I don't know what the purchase price was (and honestly not really
sure how to find that out) The goal of the lawsuit is to recover
title to the property, and if he does so, there's over $200,000 in
equity. I don't understand how the value of the litigation,
therefore, could be small or nil.
*************************
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.
What was the purchase price? If just a credit-bid, then the value of the litigation may be very small or nil if you lose. If not then ... Anyway, the value of the asset should be disclosed as unknown but I would exempt the entirety of it.
Sent from my iPad
On Apr 5, 2011, at 10:55 AM, "Mark J. Markus" wrote:
> Yes, there's a lot of equity in the foreclosed property. Sorry I left out that info.
>
> *************************
> 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 4/5/2011 10:33 AM, Giovanni Orantes, Esq. wrote:
>>
>> Since foreclosure happened pre petition, isn't debt on the foreclosed property disputed, contingent and unliquidated? As such, it wouldn't be counted toward 109(e) limits - but be sure you override your software on this.
>>
>> Does the foreclosed property have equity? If not, I dont see how it would be factored into liquidation analysis but if reinstatement payment was made, the litigation may have value which you'd need to exempt.
>>
>> Attorney has to be employed and compensated like in Ch. 11 though the fee apps and emp apps tend to be very brief.
>>
>> Sent from my iPad
>>
>> On Apr 5, 2011, at 10:18 AM, "Mark J. Markus" wrote:
>>
>>>
>>>
>>> I need our group's input on this:
>>>
>>> Debtor had one of his properties foreclosed on prepetition. He has
>>> filed suit to recover the property claiming the wrongful foreclosure
>>> (he had reinstated the loan prior to foreclosure).
>>>
>>> I'm trying to determine whether this debtor qualifies for Chapter 13
>>> vs. Chapter 11 and also whether the equity in the foreclosed
>>> property would be included in the liquidation analysis under either
>>> chapter.
>>>
>>> If we exclude that property from the mix, then he just barely t
>>> qualifies for Chapter 13 given the secured debts on his principal
>>> residence. If we must use the secured debts that existed
>>> pre-foreclosure, then he would not.
>>>
>>> Also, if the equity in that property (or, more accurately the value
>>> to the estate of the pending lawsuit) is factored in, he'd have to
>>> do a 100% repayment plan whereas if not, it could be limited to a
>>> lower amount.
>>>
>>> So my questions are: 1. Does the secured debt from the prepetition
>>> foreclosed property get included in the 109(e) calculations at all
>>> (it was just one mortgage)?
>>> 2. Does the value of that
>>> foreclosed property get factored in to the liquidation analysis?
>>> 3. Will the attorney working on
>>> the litigation for recovering the foreclosed property need
>>> bankruptcy court approval to get paid in a Chapter 13? (I know he'd
>>> have to be employed and have fees approved in a Chapter 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/
>>> 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.
>>>
>>
>
>
What was the purchase price? If just a credit-bid, then the value of the litigation may be very small or nil if you lose. If not then ... Anyway, the value of the asset should be disclosed as unknown but I would exempt the entirety of it.Sent from my iPadOn Apr 5, 2011, at 10:55 AM, "Mark J. Markus" <bklawr@yahoo.com> wrote:
Yes, there's a lot of equity in the foreclosed property. Sorry
I left out that info.
*************************
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.
Yes, there's a lot of equity in the foreclosed property. Sorry I
left out that info.
*************************
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.
Since foreclosure happened pre petition, isn't debt on the foreclosed property disputed, contingent and unliquidated? As such, it wouldn't be counted toward 109(e) limits - but be sure you override your software on this.
Does the foreclosed property have equity? If not, I dont see how it would be factored into liquidation analysis but if reinstatement payment was made, the litigation may have value which you'd need to exempt.
Attorney has to be employed and compensated like in Ch. 11 though the fee apps and emp apps tend to be very brief.
Sent from my iPad
On Apr 5, 2011, at 10:18 AM, "Mark J. Markus" wrote:
>
> I need our group's input on this:
>
> Debtor had one of his properties foreclosed on prepetition. He has
> filed suit to recover the property claiming the wrongful foreclosure
> (he had reinstated the loan prior to foreclosure).
>
> I'm trying to determine whether this debtor qualifies for Chapter 13
> vs. Chapter 11 and also whether the equity in the foreclosed
> property would be included in the liquidation analysis under either
> chapter.
>
> If we exclude that property from the mix, then he just barely t
> qualifies for Chapter 13 given the secured debts on his principal
> residence. If we must use the secured debts that existed
> pre-foreclosure, then he would not.
>
> Also, if the equity in that property (or, more accurately the value
> to the estate of the pending lawsuit) is factored in, he'd have to
> do a 100% repayment plan whereas if not, it could be limited to a
> lower amount.
>
> So my questions are: 1. Does the secured debt from the prepetition
> foreclosed property get included in the 109(e) calculations at all
> (it was just one mortgage)?
> 2. Does the value of that
> foreclosed property get factored in to the liquidation analysis?
> 3. Will the attorney working on
> the litigation for recovering the foreclosed property need
> bankruptcy court approval to get paid in a Chapter 13? (I know he'd
> have to be employed and have fees approved in a Chapter 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/
> 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.
>
>
Since foreclosure happened pre petition, isn't debt on the foreclosed property disputed, contingent and unliquidated? As such, it wouldn't be counted toward 109(e) limits - but be sure you override your software on this.Does the foreclosed property have equity? If not, I dont see how it would be factored into liquidation analysis but if reinstatement payment was made, the litigation may have value which you'd need to exempt.Attorney has to be employed and compensated like in Ch. 11 though the fee apps and emp apps tend to be very brief.Sent from my iPadOn Apr 5, 2011, at 10:18 AM, "Mark J. Markus" <bklawr@yahoo.com> wrote:
I need our group's input on this:
Debtor had one of his properties foreclosed on prepetition. He has
filed suit to recover the property claiming the wrongful foreclosure
(he had reinstated the loan prior to foreclosure).
I'm trying to determine whether this debtor qualifies for Chapter 13
vs. Chapter 11 and also whether the equity in the foreclosed
property would be included in the liquidation analysis under either
chapter.
If we exclude that property from the mix, then he just barely t
qualifies for Chapter 13 given the secured debts on his principal
residence. If we must use the secured debts that existed
pre-foreclosure, then he would not.
Also, if the equity in that property (or, more accurately the value
to the estate of the pending lawsuit) is factored in, he'd have to
do a 100% repayment plan whereas if not, it could be limited to a
lower amount.
So my questions are: 1. Does the secured debt from the prepetition
foreclosed property get included in the 109(e) calculations at all
(it was just one mortgage)?
2. Does the value of that
foreclosed property get factored in to the liquidation analysis?
3. Will the attorney working on
the litigation for recovering the foreclosed property need
bankruptcy court approval to get paid in a Chapter 13? (I know he'd
have to be employed and have fees approved in a Chapter 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/
This Firm is a Qualified Federal Debt Relief Agency (see what this
means at
The post was migrated from Yahoo.
charsetndows-1252
My two cents only:
1. Assuming that Debtor is not currently on title of the foreclosed property; and that he currently has antideficiency protection via the non-judicial foreclosure sale, then there is no debt, secured or otherwise, to include in the Sec. 109 calculation now.
2. I suspect you have to discount the value of the equity/value to the estate of the claim (that's all it is, a claim) to account both for litigation uncertainty and attorneys fees. Maybe that makes it small enough to either exempt or cover with monthly payments; but what happens to feasibility if you win?
3. I don't know about the "employment" question, but if I were the attorney pursuing the lawsuit, I would certainly want it, because of the conversion possibilities.
Jason Wallach
On Apr 5, 2011, at 10:18 AM, Mark J. Markus wrote:
>
> I need our group's input on this:
>
> Debtor had one of his properties foreclosed on prepetition. He has
> filed suit to recover the property claiming the wrongful foreclosure
> (he had reinstated the loan prior to foreclosure).
>
> I'm trying to determine whether this debtor qualifies for Chapter 13
> vs. Chapter 11 and also whether the equity in the foreclosed
> property would be included in the liquidation analysis under either
> chapter.
>
> If we exclude that property from the mix, then he just barely
> qualifies for Chapter 13 given the secured debts on his principal
> residence. If we must use the secured debts that existed
> pre-foreclosure, then he would not.
>
> Also, if the equity in that property (or, more accurately the value
> to the estate of the pending lawsuit) is factored in, he'd have to
> do a 100% repayment plan whereas if not, it could be limited to a
> lower amount.
>
> So my questions are: 1. Does the secured debt from the prepetition
> foreclosed property get included in the 109(e) calculations at all
> (it was just one mortgage)?
> 2. Does the value of that
> foreclosed property get factored in to the liquidation analysis?
> 3. Will the attorney working on
> the litigation for recovering the foreclosed property need
> bankruptcy court approval to get paid in a Chapter 13? (I know he'd
> have to be employed and have fees approved in a Chapter 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/
> 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.
>
>
charsetndows-1252
My two cents only:1. Assuming that Debtor is not currently on title of the foreclosed property; and that he currently has antideficiency protection via the non-judicial foreclosure sale, then there is no debt, secured or otherwise, to include in the Sec. 109 calculation now.2. I suspect you have to discount the value of the equity/value to the estate of the claim (that's all it is, a claim) to account both for litigation uncertainty and attorneys fees. Maybe that makes it small enough to either exempt or cover with monthly payments; but what happens to feasibility if you win?3. I don't know about the "employment" question, but if I were the attorney pursuing the lawsuit, I would certainly want it, because of the conversion possibilities.Jason WallachOn Apr 5, 2011, at 10:18 AM, Mark J. Markus wrote:
I need our group's input on this:
Debtor had one of his properties foreclosed on prepetition. He has
filed suit to recover the property claiming the wrongful foreclosure
(he had reinstated the loan prior to foreclosure).
I'm trying to determine whether this debtor qualifies for Chapter 13
vs. Chapter 11 and also whether the equity in the foreclosed
property would be included in the liquidation analysis under either
chapter.
If we exclude that property from the mix, then he just barely
qualifies for Chapter 13 given the secured debts on his principal
residence. If we must use the secured debts that existed
pre-foreclosure, then he would not.
Also, if the equity in that property (or, more accurately the value
to the estate of the pending lawsuit) is factored in, he'd have to
do a 100% repayment plan whereas if not, it could be limited to a
lower amount.
So my questions are: 1. Does the secured debt from the prepetition
foreclosed property get included in the 109(e) calculations at all
(it was just one mortgage)?
2. Does the value of that
foreclosed property get factored in to the liquidation analysis?
3. Will the attorney working on
the litigation for recovering the foreclosed property need
bankruptcy court approval to get paid in a Chapter 13? (I know he'd
have to be employed and have fees approved in a Chapter 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/
This Firm is a Qualified Federal Debt Relief Agency (see what this
means at
The post was migrated from Yahoo.
I need our group's input on this:
Debtor had one of his properties foreclosed on prepetition. He has
filed suit to recover the property claiming the wrongful foreclosure
(he had reinstated the loan prior to foreclosure).
I'm trying to determine whether this debtor qualifies for Chapter 13
vs. Chapter 11 and also whether the equity in the foreclosed
property would be included in the liquidation analysis under either
chapter.
If we exclude that property from the mix, then he just barely
qualifies for Chapter 13 given the secured debts on his principal
residence. If we must use the secured debts that existed
pre-foreclosure, then he would not.
Also, if the equity in that property (or, more accurately the value
to the estate of the pending lawsuit) is factored in, he'd have to
do a 100% repayment plan whereas if not, it could be limited to a
lower amount.
So my questions are: 1. Does the secured debt from the prepetition
foreclosed property get included in the 109(e) calculations at all
(it was just one mortgage)?
2. Does the value of that
foreclosed property get factored in to the liquidation analysis?
3. Will the attorney working on
the litigation for recovering the foreclosed property need
bankruptcy court approval to get paid in a Chapter 13? (I know he'd
have to be employed and have fees approved in a Chapter 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/
This Firm is a Qualified Federal Debt Relief Agency (see what this
means at
The post was migrated from Yahoo.