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Zurzolo & Lien Strip Question
Attached is a recentfavorable decision(allowing strip-off offrom primary residence in no-discharge 13)in Fair from the district court,
which reversed the bankruptcy court.
Tara Twomeyat NACBA advised methat there are also very recent favorable
bankruptcy court decisions from Maryland (case name Davis) and Colorado (byjudge Brown). There is an unfavorable opinion in Lindskog which is being
appealed. Further, cases allowing lien strip do it under 1322(b)(2) and 506(a).
apter 13.
Peter M. Lively, JD, MBA
The Personal Financial Law Center* Culver City & Costa Mesa * 800-307-DEBT
________________________________
To: cdcbaa@yahoogroups.com
Sent: Wed, April 20, 2011 4:11:05 PM
Subject: [cdcbaa] Re: Zurzolo & Lien Strip Question
Ithink Dennis McGoldrick's analysis is correct. There is conflicting case law,
none high level courts. But check out In reGerardin, 2011 WL 672050 (Bk SD FL
2011) written by 3 bky judges in that district, that can't lien strip in 13 if
can't get a discharge in that 13. KPMarch
Kathleen P. March, Esq.
The Bankruptcy Law Firm, PC
10524 W. Pico Blvd, Suite212
Los Angeles, CA 90064
Phone: 310-559-9224
Fax: 310-559-9133
E-mail:kmarch@BKYLAWFIRM.com
Website:www.BKYLAWFIRM.com
"Have a former bankruptcy judge for your personal bankruptcy attorney"
NOTE: This e-mail may contain privileged and confidential information and is
intended only for the use of the specific individual(s) to which it is
addressed. If you are not an intended recipient of this email, you are hereby
notified that any unauthorizeduse, dissemination or copying of this e-mail or
the information contained in it or attached to it is strictly prohibited. If you
have received this email in error, please delete it and immediately notify the
person named above by reply email. Thank you.
Attached is a recent favorable decision (allowing strip-off of unsecured lien from primary residence in no-discharge 13) in Fair from the district court, which reversed the bankruptcy court.
Tara Twomey at NACBA advised me that there are also very recent favorable bankruptcy court decisions from Maryland (case name Davis) and Colorado (by judge Brown). There is an unfavorable opinion in Lindskog which is being appealed. Further, cases allowing lien strip do it under 1322(b)(2) and 506(a). Finally, courts have routinely rejected the use of 506(d), even in chapter 13.
Peter M. Lively, JD, MBA
The Personal Financial Law Center * Culver City & Costa Mesa * 800-307-DEBT
From: K. P. March <kmarch@BKYLAWFIRM.com>To: cdcbaa@yahoogroups.comSent: Wed, April 20, 2011 4:11:05 PMSubject: [cdcbaa] Re: Zurzolo & Lien Strip Question
I think Dennis McGoldrick's analysis is correct. There is conflicting case law, none high level courts. But check out In re Gerardin, 2011 WL 672050 (Bk SD FL 2011) written by 3 bky judges in that district, that can't lien strip in 13 if can't get a discharge in that 13. KPMarch
The post was migrated from Yahoo.
This conflict is obviously ripe for a higher court opinion.
It would be helpful if you could articulate a bit on what part ofDennis'
analysisyou believe is correct.
Thanks,
Peter
Peter M. Lively, JD, MBA
The Personal Financial Law Center* Culver City & Costa Mesa * 800-307-DEBT
________________________________
To: cdcbaa@yahoogroups.com
Sent: Wed, April 20, 2011 4:11:05 PM
Subject: [cdcbaa] Re: Zurzolo & Lien Strip Question
Ithink Dennis McGoldrick's analysis is correct. There is conflicting case law,
none high level courts. But check out In reGerardin, 2011 WL 672050 (Bk SD FL
2011) written by 3 bky judges in that district, that can't lien strip in 13 if
can't get a discharge in that 13. KPMarch
Kathleen P. March, Esq.
The Bankruptcy Law Firm, PC
10524 W. Pico Blvd, Suite212
Los Angeles, CA 90064
Phone: 310-559-9224
Fax: 310-559-9133
E-mail:kmarch@BKYLAWFIRM.com
Website:www.BKYLAWFIRM.com
"Have a former bankruptcy judge for your personal bankruptcy attorney"
NOTE: This e-mail may contain privileged and confidential information and is
intended only for the use of the specific individual(s) to which it is
addressed. If you are not an intended recipient of this email, you are hereby
notified that any unauthorizeduse, dissemination or copying of this e-mail or
the information contained in it or attached to it is strictly prohibited. If you
have received this email in error, please delete it and immediately notify the
person named above by reply email. Thank you.
This conflict is obviously ripe for a higher court opinion.
It would be helpful if you could articulate a bit on what part of Dennis' analysis you believe is correct.
Thanks,Peter
Peter M. Lively, JD, MBA
The Personal Financial Law Center * Culver City & Costa Mesa * 800-307-DEBT
From: K. P. March <kmarch@BKYLAWFIRM.com>To: cdcbaa@yahoogroups.comSent: Wed, April 20, 2011 4:11:05 PMSubject: [cdcbaa] Re: Zurzolo & Lien Strip Question
I think Dennis McGoldrick's analysis is correct. There is conflicting case law, none high level courts. But check out In re Gerardin, 2011 WL 672050 (Bk SD FL 2011) written by 3 bky judges in that district, that can't lien strip in 13 if can't get a discharge in that 13. KPMarch
The post was migrated from Yahoo.
This conflict is obviously ripe for a higher court opinion.
It would be helpful if you could articulate a bit on what part ofDennis'
analysisyou believe is correct.
Thanks,
Peter
Peter M. Lively, JD, MBA
The Personal Financial Law Center* Culver City & Costa Mesa * 800-307-DEBT
________________________________
To: cdcbaa@yahoogroups.com
Sent: Wed, April 20, 2011 4:11:05 PM
Subject: [cdcbaa] Re: Zurzolo & Lien Strip Question
Ithink Dennis McGoldrick's analysis is correct. There is conflicting case law,
none high level courts. But check out In reGerardin, 2011 WL 672050 (Bk SD FL
2011) written by 3 bky judges in that district, that can't lien strip in 13 if
can't get a discharge in that 13. KPMarch
Kathleen P. March, Esq.
The Bankruptcy Law Firm, PC
10524 W. Pico Blvd, Suite212
Los Angeles, CA 90064
Phone: 310-559-9224
Fax: 310-559-9133
E-mail:kmarch@BKYLAWFIRM.com
Website:www.BKYLAWFIRM.com
"Have a former bankruptcy judge for your personal bankruptcy attorney"
NOTE: This e-mail may contain privileged and confidential information and is
intended only for the use of the specific individual(s) to which it is
addressed. If you are not an intended recipient of this email, you are hereby
notified that any unauthorizeduse, dissemination or copying of this e-mail or
the information contained in it or attached to it is strictly prohibited. If you
have received this email in error, please delete it and immediately notify the
person named above by reply email. Thank you.
This conflict is obviously ripe for a higher court opinion.
It would be helpful if you could articulate a bit on what part of Dennis' analysis you believe is correct.
Thanks,Peter
Peter M. Lively, JD, MBA
The Personal Financial Law Center * Culver City & Costa Mesa * 800-307-DEBT
From: K. P. March <kmarch@BKYLAWFIRM.com>To: cdcbaa@yahoogroups.comSent: Wed, April 20, 2011 4:11:05 PMSubject: [cdcbaa] Re: Zurzolo & Lien Strip Question
I think Dennis McGoldrick's analysis is correct. There is conflicting case law, none high level courts. But check out In re Gerardin, 2011 WL 672050 (Bk SD FL 2011) written by 3 bky judges in that district, that can't lien strip in 13 if can't get a discharge in that 13. KPMarch
The post was migrated from Yahoo.
I think Dennis McGoldrick's analysis is correct. There is conflicting case
law, none high level courts. But check out In re Gerardin, 2011 WL 672050
(Bk SD FL 2011) written by 3 bky judges in that district, that can't lien
strip in 13 if can't get a discharge in that 13. KPMarch
Kathleen P. March, Esq.
The Bankruptcy Law Firm, PC
10524 W. Pico Blvd, Suite 212
Los Angeles, CA 90064
Phone: 310-559-9224
Fax: 310-559-9133
E-mail: kmarch@BKYLAWFIRM.com
Website: www.BKYLAWFIRM.com
"Have a former bankruptcy judge for your personal bankruptcy attorney"
NOTE: This e-mail may contain privileged and confidential information and is
intended only for the use of the specific individual(s) to which it is
addressed. If you are not an intended recipient of this email, you are
hereby notified that any unauthorized use, dissemination or copying of this
e-mail or the information contained in it or attached to it is strictly
prohibited. If you have received this email in error, please delete it and
immediately notify the person named above by reply email. Thank you.
Re: Zurzolo & Lien Strip Question
I think Dennis McGoldrick's analysis is correct. There is conflicting case law, none high level courts. But check out In re Gerardin, 2011 WL 672050 (Bk SD FL 2011) written by 3 bky judges in that district, that can't lien strip in 13 if can't get a discharge in that 13. KPMarch
Kathleen P. March, Esq.
The post was migrated from Yahoo.
On Tue, Apr 19, 2011 at 11:07 AM, P L wrote:
>
>
> See 10-23404 re change to form Ch13 plan required for this approach. If
> you client is willing to accept the risk that a stipulation may not be
> reached with the undersecured residential note holder and the judge may
> (or may not) find 1327(c) is controlling.
>
> Note that 1325(a)(5)(B)(i) is ONLY applicable with respect to an allowed
> SECURED claim. Where your debtor moved under 506(a) and the court determine
> value such that the second note is unsecured, there is NO dischare
> requirement under 1325(a)(5)(B)(i)(bb).
>
>
> Peter M. Lively, JD, MBA
>
> *The Personal Financial Law Center * *Culver City & Costa Mesa *
> 800-307-DEBT
>
> THANK YOU PETER!!!! Perfect! I will give a written disclosure to the
client and let thems ee what they want to do.
Renay
On Tue, Apr 19, 2011 at 11:07 AM, P L <petermlively2000@yahoo.com> wrote:
See 10-23404re change to form Ch13 plan required for this approach.t be reached with theundersecuredresidential note holder and the judge may (ormay not) find 1327(c) is controlling.
Note that 1325(a)(5)(B)(i) is ONLY applicablewith respect to an allowed SECURED claim.Where yourdebtor moved under 506(a) and the court determine value such that the second noteis unsecured, there isNO dischare requirement under 1325(a)(5)(B)(i)(bb).
Peter M. Lively, JD, MBA
The Personal Financial Law Center* Culver City & Costa Mesa * 800-307-DEBTTHANK YOU PETER!!!! Perfect! I will give a written disclosure to the client and let thems ee what they want to do.
Renay
The post was migrated from Yahoo.
See 10-23404re change to form Ch13 plan required for this approach.client is willing to accept the risk that a stipulationmay not be reached with
theundersecuredresidential note holder and the judge may (or1327(c) is controlling.
Note that 1325(a)(5)(B)(i) is ONLY applicablewith respect to an allowed SECURED
claim.Where yourdebtor moved under 506(a) and the court determine value such
that the second noteis unsecured, there isNO dischare requirement under
1325(a)(5)(B)(i)(bb).
Peter M. Lively, JD, MBA
The Personal Financial Law Center* Culver City & Costa Mesa * 800-307-DEBT
________________________________
To: cdcbaa@yahoogroups.com
Sent: Tue, April 19, 2011 10:25:19 AM
Subject: [cdcbaa] Zurzolo & Lien Strip Question
Dear Members:
I know Zurzolo needs an Adversary. But because Debtor has a prior discharge in
Chapter 7 last year, he doesn't qualify for another discharge. Someone mislead
him into believing that if he filed a seven and got rid of credit card debt that
he would get loan modification. Well loan mod didn't happen and he STILL has a
2nd mortgage to deal with. So the idea is to file chapter 13, pay 100$ of post
discharge debt through plan plus arrears on mortgage. Since he already has a
discharge of the debt in 7, now that he is in 13, can the lien strip on theadversary be subject to discharge ONLY (which is what the valley judges except
Kaufman require) or will Judge Zurzolo allow strip of lien subject to completion
of plan? Thanks for suggestions.
R. Grace Rodriguez, Esq.
See 10-23404 re change to form Ch13 plan required for this approach. If you client is willing to accept the risk that a stipulation may not be reached with the undersecured residential note holder and the judge may (or may not) find 1327(c) is controlling.
Note that 1325(a)(5)(B)(i) is ONLY applicable with respect to an allowed SECURED claim. Where your debtor moved under 506(a) and the court determine value such that the second note is unsecured, there is NO dischare requirement under 1325(a)(5)(B)(i)(bb).
Peter M. Lively, JD, MBA
The Personal Financial Law Center * Culver City & Costa Mesa * 800-307-DEBT
From: R Grace Rodriguez <rgracelaw@gmail.com>To: cdcbaa@yahoogroups.comSent: Tue, April 19, 2011 10:25:19 AMSubject: [cdcbaa] Zurzolo & Lien Strip Question
Dear Members:I know Zurzolo needs an Adversary. But because Debtor has a prior discharge in Chapter 7 last year, he doesn't qualify for another discharge. Someone mislead him into believing that if he filed a seven and got rid of credit card debt that he would get loan modification. Well loan mod didn't happen and he STILL has a 2nd mortgage to deal with. So the idea is to file chapter 13, pay 100$ of post discharge debt through plan plus arrears on mortgage. Since he already has a discharge of the debt in 7, now that he is in 13, can the lien strip on the adversary be subject to discharge ONLY (which is what the valley judges except Kaufman require) or will Judge Zurzolo allow strip of lien subject to completion of plan? Thanks for suggestions.-- R. Grace Rodriguez, Esq.
The post was migrated from Yahoo.
Dear Members:
I know Zurzolo needs an Adversary. But because Debtor has a prior discharge
in Chapter 7 last year, he doesn't qualify for another discharge. Someone
mislead him into believing that if he filed a seven and got rid of credit
card debt that he would get loan modification. Well loan mod didn't happen
and he STILL has a 2nd mortgage to deal with. So the idea is to file
chapter 13, pay 100$ of post discharge debt through plan plus arrears on
mortgage. Since he already has a discharge of the debt in 7, now that he is
in 13, can the lien strip on the adversary be subject to discharge ONLY
(which is what the valley judges except Kaufman require) or will Judge
Zurzolo allow strip of lien subject to completion of plan? Thanks for
suggestions.
R. Grace Rodriguez, Esq.
Dear Members:I know Zurzolo needs an Adversary. But because Debtor has a prior discharge in Chapter 7 last year, he doesn't qualify for another discharge. Someone mislead him into believing that if he filed a seven and got rid of credit card debt that he would get loan modification. Well loan mod didn't happen and he STILL has a 2nd mortgage to deal with. So the idea is to file chapter 13, pay 100$ of post discharge debt through plan plus arrears on mortgage. Since he already has a discharge of the debt in 7, now that he is in 13, can the lien strip on the adversary be subject to discharge ONLY (which is what the valley judges except Kaufman require) or will Judge Zurzolo allow strip of lien subject to completion of plan? Thanks for suggestions.
-- R. Grace Rodriguez, Esq.
The post was migrated from Yahoo.