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VZ and 506 Complaints
To me it's certainty. If I obtain a judgment early in the case, I can tell
the debtor all you have to do is make your payments for 3-5 years and you
will have avoided the junior mortgage. Not sure you can deliver that same
certainty by having to wait until mid case to file the AP.
_____
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The points regardingclosure and efficient are well taken and I'm notdisagreeing that our clients should be allowed to proceed with the AP at the
beginning of the case.However,and please correct me if I'm wrong,once
valuation is determined early in the case, there isn't much left to thethan proper service and entry of thejudgment. Whatis the debtor really losing
by waiting on the AP?
Peter M. Lively, JD, MBA
The Personal Financial Law Center* Culver City & Costa Mesa * 800-307-DEBT
________________________________
To: cdcbaa@yahoogroups.com
Sent: Mon, April 11, 2011 5:03:52 PM
Subject: RE: [cdcbaa] VZ and 506 Complaints
*The fact that many of these cases do not consummate is not relevant to client. My client and I file the case because we believe the case will
consummate. If we did not believe it would consummate, we would not be filing in
good faith.
*In addition, my client (usually) does not want to wait. action and peace of mind. When told that we can file a motion and an AP and the
cost involved, my client almost always chooses to file the AP. He/she want to
save themselves the money.
*As stated by others, I want to strike while the iron is hot. If we wait too
long the market may change. The mortgage company may claim that by not acting
timely I have denied them an opportunity to inspect the interior of the property
at the time the valuation was initially done and the debtor may have let the
house become rundown. Or the mortgage company may unfairly benefit from the
fact that the debtor has made improvements to the property since the date of
filing.
*If the market changes and there is equity in the property in four years (if the
case were to be dismissed), the creditor will now be motivated to file an answer
and draw out the process as long as possible in hopes that the debtor runs out
of money and gives up the fight. The court would be buried in statusconferences, discovery, pretrial motions and trials. That is not practical for
my client and it boarders on malpractice not to advise them to act quickly.
*Finally, this is my clients case not the Judges. How the client chooses to
prosecute the case is up to them as long as it is within the bounds of the law.
Thank you,
Nancy B. Clark
100 N. Barranca Ave, Suite 250
West Covina, CA 91791
Tele: (626) 332-8600
Fax: (626) 332-8644
The post was migrated from Yahoo.
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*The fact that many of these cases do not consummate is not relevant to
"my client." "My client" and I file the case because we believe the case
will consummate. If we did not believe it would consummate, we would not
be filing in good faith.
*In addition, "my client" (usually) does not want to wait. "My client"
wants action and peace of mind. When told that we can file a motion and
an AP and the cost involved, "my client" almost always chooses to file
the AP. He/she want to save themselves the money.
*As stated by others, I want to strike while the iron is hot. If we wait
too long the market may change. The mortgage company may claim that by
not acting timely I have denied them an opportunity to inspect the
interior of the property at the time the valuation was initially done
and the debtor may have let the house become "rundown." Or the mortgage
company may unfairly benefit from the fact that the debtor has made
improvements to the property since the date of filing.
*If the market changes and there is equity in the property in four years
(if the case were to be dismissed), the creditor will now be motivated
to file an answer and draw out the process as long as possible in hopes
that the debtor runs out of money and gives up the fight. The court
would be buried in status conferences, discovery, pretrial motions and
trials. That is not practical for my client and it boarders on
malpractice not to advise them to act quickly.
*Finally, this is "my clients" case not the Judges. How the client
chooses to prosecute the case is up to them as long as it is within the
bounds of the law.
Thank you,
Nancy B. Clark
100 N. Barranca Ave, Suite 250
West Covina, CA 91791
Tele: (626) 332-8600
Fax: (626) 332-8644
www.blclaw.com
________________________________
The post was migrated from Yahoo.
In reply to myself...
the creditorgets more on the front end prior to the eventual costs of the AP
and that fact aligns the creditor and the court regarding the court's
preferredprocedure forthepointat whichdebtor's counsel's fees are
mostappropriate. Nonetheless, where the work was performed and the fee
reasoanble, and there is a reasonable prospect that the case will fully
consummate, I believe that your fees should have been allowed without reduction
(Dennis madethis last point earlier).
Peter M. Lively, JD, MBA
The Personal Financial Law Center* Culver City & Costa Mesa * 800-307-DEBT
________________________________
To: cdcbaa@yahoogroups.com
Sent: Mon, April 11, 2011 3:08:34 PM
Subject: Re: [cdcbaa] VZ and 506 Complaints
The argument isthat the 506(a) motion is a rather nominal and not avoidable (no
pun intended) cost in the ultimatle goal of 506(d) lien avoidance. The AP cost
and be postponed andthe burden on the court avoided entirely insome cases, for
a nominal additional costs of aseparate AP for the 506(d) leg. If the case
makes itpast the mid-point, then there is plenty of room for SFA and by then,
theremay be less burden on the court calendar.
Peter M. Lively, JD, MBA
The Personal Financial Law Center* Culver City & Costa Mesa * 800-307-DEBT
________________________________
To: cdcbaa@yahoogroups.com
Sent: Mon, April 11, 2011 2:54:07 PM
Subject: RE: [cdcbaa] VZ and 506 Complaints
Peter, I dont disagree with your assessment. However, utilizing that strategy,
the estate will now have to bear a Rule 3012 motion and an AP to strip.sure how that is more cost effective. I just bring this point up because I was
before the judge on an objection from the trustee that my fees were unreasonable
(due to filing an AP).
________________________________
The post was migrated from Yahoo.
All that is well taken, but if the economy bounces back and the property is
worth more down the line, isn't the bank more motivated to fight the APs?
At this point, I haven't gotten any resistance on valuation in Chapter 13
cases (even in a case in which the difference between the balance on the
first and the property value was only about $5,000 and balance of the
second was over $200,000), but if the banks start resisting and propounding
discovery, etc., like they are starting to do in some of my Chapter 11
cases, the adversary proceeding will get very expensive. I would rather get
the AP done asap even if they are twice as much work as a straight 506
motion.
On Mon, Apr 11, 2011 at 3:08 PM, P L wrote:
>
>
> The argument is that the 506(a) motion is a rather nominal and not
> avoidable (no pun intended) cost in the ultimatle goal of 506(d) lien
> avoidance. The AP cost and be postponed and the burden on the court avoided
> entirely in some cases, for a nominal additional costs of a separate AP for
> the 506(d) leg. If the case makes it past the mid-point, then there is
> plenty of room for SFA and by then, there may be less burden on the court
> calendar.
>
>
> Peter M. Lively, JD, MBA
>
> *The Personal Financial Law Center * *Culver City & Costa Mesa *
> 800-307-DEBT
>
>
Giovanni Orantes, Esq.
Orantes Law Firm, P.C.
3435 Wilshire Blvd. Suite 1980
Los Angeles, CA 90010
Tel: (213) 389-4362
Fax: (877) 789-5776
e-mail: go@gobklaw.com
website: www.gobklaw.com
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All that is well taken, but if the economy bounces back and the property is worth more down the line, isn't the bank more motivated to fight the APs? At this point, I haven't gotten any resistance on valuation in Chapter 13 cases (even in a case in which the difference between the balance on the first and the property value was only about $5,000 and balance of the second was over $200,000), but if the banks start resisting and propounding discovery, etc., like they are starting to do in some of my Chapter 11 cases, the adversary proceedingwill get very expensive. I would rather get the AP done asap even if they are twice as much work as a straight 506 motion.
On Mon, Apr 11, 2011 at 3:08 PM, P L
The post was migrated from Yahoo.
The argument isthat the 506(a) motion is a rather nominal and not avoidable (no
pun intended) cost in the ultimatle goal of 506(d) lien avoidance. The AP cost
and be postponed andthe burden on the court avoided entirely insome cases, for
a nominal additional costs of aseparate AP for the 506(d) leg. If the case
makes itpast the mid-point, then there is plenty of room for SFA and by then,
theremay be less burden on the court calendar.
Peter M. Lively, JD, MBA
The Personal Financial Law Center* Culver City & Costa Mesa * 800-307-DEBT
________________________________
To: cdcbaa@yahoogroups.com
Sent: Mon, April 11, 2011 2:54:07 PM
Subject: RE: [cdcbaa] VZ and 506 Complaints
Peter, I dont disagree with your assessment. However, utilizing that strategy,
the estate will now have to bear a Rule 3012 motion and an AP to strip.sure how that is more cost effective. I just bring this point up because I was
before the judge on an objection from the trustee that my fees were unreasonable
(due to filing an AP).
________________________________
The post was migrated from Yahoo.
Peter, I don't disagree with your assessment. However, utilizing that
strategy, the estate will now have to bear a Rule 3012 motion and an AP to
strip. Not sure how that is more cost effective. I just bring this point
up because I was before the judge on an objection from the trustee that my
fees were unreasonable (due to filing an AP).
_____
The post was migrated from Yahoo.
My guess is thatVZ would not frownupon a mid-planAP where debtor has
substantiall consumated and prospects are good to fully consummate. Keep in
mind the calendar is crowded right now and overwhelmed judges welcome kicking
ceratin nonessential items down the road a bit.
Peter M. Lively, JD, MBA
The Personal Financial Law Center* Culver City & Costa Mesa * 800-307-DEBT
________________________________
To: cdcbaa@yahoogroups.com
Sent: Mon, April 11, 2011 2:04:33 PM
Subject: RE: [cdcbaa] VZ and 506 Complaints
Is it possible the plan could be written to reserve fees for the AP at the end
of the case? If so, it will be as if it were a flat fee and wefree to some extent, especially if contested.
From:cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com] On Behalf Of Dennis
McGoldrick
Sent: Monday, April 11, 2011 1:54 PM
To: cdcbaa@yahoogroups.com
Subject: Re: [cdcbaa] VZ and 506 Complaints
All:
What Larry left out is that the decision was disappointing to everyone in the
courtroom. The judge decided that he wanted to encourage everyone to use his
menthod and shaved $500 from Larry's fee request.
This is not the law. If we have to file two actions, we will charge more. If
we have to file two actions, and wait for the end of the case to file the second
action, there will no longer be any plan to pay us.
Also, who knows who/what will own the loan after 5 years. We will have to fight
to find out.
my 2 cents
d
>Subject: [cdcbaa] VZ and 506 Complaints
>To: cdcbaa@yahoogroups.com
>Date: Monday, April 11, 2011, 1:40 PM
>
>All,
>
>I had the chapter 13 trustee object to my request for supplemental fees in a
>case before VZ. The fees related to the filing and prosecution of a lien strip
>AP. At the hearing on my application, the judge stated that he believed we>should be filing simple motions under Rule 3012 and then filing the APs at the
>end of the case right before consummation, given the percentage of cases that
>make it that far. He stated that the filing of the AP at the beginning of the
>case was not the preferred course of action.
>
>He also stated that the motions brought under 3012 do not need the same evidence
>as to value and outstanding lien balances.
>
>Food for thought...........
>
>Larry Simons
My guess is that VZ would not frown upon a mid-plan AP where debtor has substantiall consumated and prospects are good to fully consummate. Keep in mind the calendar is crowded right now and overwhelmed judges welcome kicking ceratin nonessential items down the road a bit.
Peter M. Lively, JD, MBA
The Personal Financial Law Center * Culver City & Costa Mesa * 800-307-DEBT
From: Steven B. Lever <sblever@leverlaw.com>To: cdcbaa@yahoogroups.comSent: Mon, April 11, 2011 2:04:33 PMSubject: RE: [cdcbaa] VZ and 506 Complaints
Is it possible the plan could be written to reserve fees for the AP at the end of the case? If so, it will be as if it were a flat fee and wed be working for free to some extent, especially if contested.
From: cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com] On Behalf Of Dennis McGoldrickSent: Monday, April 11, 2011 1:54 PMTo: cdcbaa@yahoogroups.comSubject: Re: [cdcbaa] VZ and 506 Complaints
All:
What Larry left out is that the decision was disappointing to everyone in the courtroom. The judge decided that he wanted to encourage everyone to use his menthod and shaved $500 from Larry's fee request.
This is not the law. If we have to file two actions, we will charge more. If we have to file two actions, and wait for the end of the case to file the second action, there will no longer be any plan to pay us.
Also, who knows who/what will own the loan after 5 years. We will have to fight to find out.
my 2 cents
d
--- On Mon, 4/11/11, lsimons_esq <
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