.jpg)
Lanning/Kagenveama
Thank you so much for posting this. We will definitely use it in our
brief.
Thank you,
Nancy B. Clark
100 N. Barranca Avenue, Suite 250
West Covina, CA 91791
Office: (626) 332-8600
Fax: (626) 332-8644
Privileged/Confidential Information may be contained in this message. If
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not intended or written to be used, and cannot be used, for the purpose
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________________________________
The post was migrated from Yahoo.
Judge Rimel in the Eastern District stated in dicta in a recent case that Kagenveama still controls ACP when there is negative DMI. The case is "In re LAURA MACIEL LEON and GUILLERMINA NAVARRO DE MACIEL", No. 09-16492-A-7 DC No. October 4, 2010 (not for publication). The court denied the debtor's request for modification of a confirmed 60 month plan on other grounds (debtor was seeking to reduce plan term to 51 months). Apologies if this has already been posted, but I don't recall seeing it.
The court stated:
"...In this case, however, the debtors had a negative monthly disposable income (See their Form B-22 at line 59). The Ninth Circuit stated in Kagenveama that the requirement of a five year "applicable commitment period is inapplicable to a plan submitted voluntarily by a debtor with no projected disposable income." In re Kagenveama, 541 F.3d 868, 875 (9th Cir. 2008). While Lanning disapproved Kagenveama's holding about how "projected disposable income" should be calculated, it did not disturb the Ninth Circuit's holding in Kagenveama that where there is no "projected disposable income, there is no applicable commitment period."
>
> For those who have been following this topic, we (NACBA) briefed the issue of ACP & Kagenveama and stare decisis for Judge Jury. Judge Jury ruled that although she was bound by stare decisis, she thought that the 9th Circuit did not get the issue of ACP right in Kagenveama and that she beleived the 1325(b)(1) should be read independently from 1325(b)(4). Nevertheless, she understood from her ruling that she could easily be reversed due to stare decisis but hoped that the 9th Circuit Court of Appeals would reconsider its prior decision in Kagenveama in light of Lanning and Tennyson.
>
> The court was not sure how to grant a final order w/out losing the issue for appeal and confirming the case. So, Judge Jury decided that she should confirm my case at 60 months instead of the proposed 36 months over the debtors' objection. She stated that by doing this, we could confirm the case and the creditors could be paid and we would preserve the issue for appeal. I had some concerns regarding this order because the debtors propose the plan and must be in agreement with the plan in order to confirm the plan. By agreeing to confirmation, it is my understanding that the debtors may have waive their right to object to confirmation. Judge Jury disagreed. She staed that as long as the confirmation order states that the case was confirmed over debtors objection that we can appeal and retain standing. Does anyone else believe this is an issue?
>
> Second question I have is that we want to appeal the matter to the district court instead of the BAP and instead of taking it directly to the 9th Circuit (Judge Jury said she would certify it for appeal to the 9th Circuit but we want to take our chances with the district court). I know we have to file the notice of appeal and a separate writing for election. Does anyone have any advice for me regarding the notice of appeal to insure that we are heard at the district court level instead of the BAP?
>
> Thanks,
> Nancy B. Clark
> Borowitz & Clark, LLP
> 100 N. Barranca Avenue, Suite 250
> West Covina, CA 91791
> Office: (626) 332-8600
> Fax: (626) 332-8644
>
The post was migrated from Yahoo.
charset="windows-1251"
I think there is a form, check rules in the 8000 series. If not, it's not
complicated. A simple statement - even included as part of the notice of
appeal, should suffice to get you "kicked over" to the USDC instead of BAP.
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.
nancybonaccorso
Sent: Friday, October 22, 2010 4:27 PM
To: cdcbaa@yahoogroups.com
Subject: [cdcbaa] Lanning/Kagenveama
For those who have been following this topic, we (NACBA) briefed the issue
of ACP & Kagenveama and stare decisis for Judge Jury. Judge Jury ruled that
although she was bound by stare decisis, she thought that the 9th Circuit
did not get the issue of ACP right in Kagenveama and that she beleived the
1325(b)(1) should be read independently from 1325(b)(4). Nevertheless, she
understood from her ruling that she could easily be reversed due to stare
decisis but hoped that the 9th Circuit Court of Appeals would reconsider its
prior decision in Kagenveama in light of Lanning and Tennyson.
The court was not sure how to grant a final order w/out losing the issue for
appeal and confirming the case. So, Judge Jury decided that she should
confirm my case at 60 months instead of the proposed 36 months over the
debtors' objection. She stated that by doing this, we could confirm the case
and the creditors could be paid and we would preserve the issue for appeal.
I had some concerns regarding this order because the debtors propose the
plan and must be in agreement with the plan in order to confirm the plan. By
agreeing to confirmation, it is my understanding that the debtors may have
waive their right to object to confirmation. Judge Jury disagreed. She staed
that as long as the confirmation order states that the case was confirmed
over debtors objection that we can appeal and retain standing. Does anyone
else believe this is an issue?
Second question I have is that we want to appeal the matter to the district
court instead of the BAP and instead of taking it directly to the 9th
Circuit (Judge Jury said she would certify it for appeal to the 9th Circuit
but we want to take our chances with the district court). I know we have to
file the notice of appeal and a separate writing for election. Does anyone
have any advice for me regarding the notice of appeal to insure that we are
heard at the district court level instead of the BAP?
Thanks,
Nancy B. Clark
Borowitz & Clark, LLP
100 N. Barranca Avenue, Suite 250
West Covina, CA 91791
Office: (626) 332-8600
Fax: (626) 332-8644
charset="windows-1251"
Message
I think there is a form,
check rules in the 8000 series. If not, it's not complicated. Asimple statement - even included as part of the notice of appeal, should suffice
to get you "kicked over" to the USDC instead of BAP.
David A.
Tilem
Certified Bankruptcy
Specialist*
The post was migrated from Yahoo.
Zahn v. Fink (In re Zahn), 526 F. 3d 1140 (8th Cir., May, 2008)
Issue: May the chapter 13 debtor appeal confirmation of her own chapter 13 plan? May a debtor appeal a refusal to confirm a chapter 13 plan?
Holding: Yes, when she has been forced by the court to file a plan to which she objects. No, denial of confirmation is not a final order.
The election to the district court must be filed in a separate pleading at the same time as the Notice of Appeal.
>
> There is a casewithin the past couple years where the debtor appealed aplan
> confirmeddespite debtor's objection and it was not a problem procedurally, but
> I don't recall the case name.
> Peter M. Lively, JD/MBA
> Law Office of Peter M. Lively * Personal Financial Law Center I
> 11268 Washington Blvd, Suite 203, Culver City, CA 90230-4647
> Telephone: (310)391-2400 * (800)307-3328 * Fax: (310)391-2462
> A-Bankruptcy-Attorney.com
> Personal Financial Law Center II - Costa Mesa, CA
>
>
> THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH
> IT IS ADDRESSED, AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL
> AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. IF THE READER OF THIS MESSAGE
> IS NOT THE INTENDED RECIPIENT, OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR
> DELIVERING THE MESSAGE 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 NOTIFY US
> IMMEDIATELY BY E-MAIL OR BY TELEPHONE. THANK YOU.
>
>
>
>
>
> ________________________________
> To: cdcbaa@yahoogroups.com
> Sent: Fri, October 22, 2010 5:01:22 PM
> Subject: RE: [cdcbaa] Lanning/Kagenveama
>
>
> Peter:
>
> Do you see anything wrong with the way the court ordered the case confirmed?
>
> Thank you,
> Nancy B. Clark
> 100 N. Barranca Avenue, Suite 250
> West Covina, CA 91791
> Office: (626) 332-8600
> Fax: (626) 332-8644
>
> Privileged/Confidential Information may be contained in this message. If you are
> not the addressee indicated in this message (or responsible for delivery of the
> message to such person), you may not copy or deliver this message to anyone. In
> such case, you should destroy this message and kindly notify the sender by reply
> email. Please advise immediately if you or your employer does not consent to
> Internet email for messages of this kind. Opinions, conclusions and other
> information in this message that do not relate to the official business of my
> firm shall be understood as neither given nor endorsed by it.
>
> IRS Circular 230 Disclosure: To ensure compliance with Treasury Department
> Regulations, we advise you that, unless otherwise expressly indicated, any
> federal tax advice contained in this communication was
> not intended or written to be used, and cannot be used, for the purpose of (i)
> avoiding tax-related penalties under the Internal Revenue Code or applicable
> state or local tax law provisions or (ii) promoting, marketing or recommending
> to another party any tax-related matter addressed herein.
>
>
> ________________________________
>
> From:cdcbaa@yahoogroups.com [mailto: cdcbaa@yahoogroups.com ] On Behalf Of P L
> Sent: Friday, October 22, 2010 4:51 PM
> To: cdcbaa@yahoogroups.com
> Subject: Re: [cdcbaa] Lanning/Kagenveama
>
>
> Why not appeal directly to 9th Circuit Court ofAppeals and bypass the
> BAP/District Court level? Sounds likeJudge Jury willcertify the appeal for
> this purpose.
>
> Peter M. Lively, JD/MBA
> Law Office of Peter M. Lively * Personal Financial Law Center I
> 11268 Washington Blvd, Suite 203 , Culver City , CA 90230-4647
> Telephone: (310)391-2400 * (800)307-3328 * Fax: (310)391-2462
> A-Bankruptcy-Attorney.com
> Personal Financial Law Center II - Costa Mesa , CA
>
> THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH
> IT IS ADDRESSED, AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL
> AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. IF THE READER OF THIS MESSAGE
> IS NOT THE INTENDED RECIPIENT, OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR
> DELIVERING THE MESSAGE 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 NOTIFY US
> IMMEDIATELY BY E-MAIL OR BY TELEPHONE. THANK YOU.
>
>
>
>
> ________________________________
>
> From:nancybonaccorso
> To: cdcbaa@yahoogroups.com
> Sent: Fri, October 22, 2010 4:27:11 PM
> Subject: [cdcbaa] Lanning/Kagenveama
>
>
> For those who have been following this topic, we (NACBA) briefed the issue of
> ACP & Kagenveama and stare decisis for Judge Jury. Judge Jury ruled that> although she was bound by stare decisis, she thought that the 9th Circuit did
> not get the issue of ACP right in Kagenveama and that she beleived the
> 1325(b)(1) should be read independently from 1325(b)(4). Nevertheless, she
> understood from her ruling that she could easily be reversed due to stare> decisis but hoped that the 9th Circuit Court of Appeals would reconsider its
> prior decision in Kagenveama in light of Lanning and Tennyson.
>
> The court was not sure how to grant a final order w/out losing the issue for
> appeal and confirming the case. So, Judge Jury decided that she should confirm
> my case at 60 months instead of the proposed 36 months over the debtors'> objection. She stated that by doing this, we could confirm the case and the
> creditors could be paid and we would preserve the issue for appeal. I had some
> concerns regarding this order because the debtors propose the plan and must be
> in agreement with the plan in order to confirm the plan. By agreeing to
> confirmation, it is my understanding that the debtors may have waive their right
> to object to confirmation. Judge Jury disagreed. She staed that as long as the
> confirmation order states that the case was confirmed over debtors objection
> that we can appeal and retain standing. Does anyone else believe this is an
> issue?
>
>
> Second question I have is that we want to appeal the matter to the district
> court instead of the BAP and instead of taking it directly to the 9th Circuit
> (Judge Jury said she would certify it for appeal to the 9th Circuit but we want
> to take our chances with the district court). I know we have to file the notice
> of appeal and a separate writing for election. Does anyone have any advice for
> me regarding the notice of appeal to insure that we are heard at the district
> court level instead of the BAP?
>
> Thanks,
> Nancy B. Clark
> Borowitz & Clark, LLP
> 100 N. Barranca Avenue, Suite 250
> West Covina , CA 91791
> Office: (626) 332-8600
> Fax: (626) 332-8644
>
>
The post was migrated from Yahoo.
There is a casewithin the past couple years where the debtor appealed aplan
confirmeddespite debtor's objection and it was not a problem procedurally, but
I don't recall the case name.
Law Office of Peter M. Lively * Personal Financial Law Center I
11268 Washington Blvd, Suite 203, Culver City, CA 90230-4647
Telephone: (310)391-2400 * (800)307-3328 * Fax: (310)391-2462
A-Bankruptcy-Attorney.com
Personal Financial Law Center II - Costa Mesa, CA
THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH
IT IS ADDRESSED, AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL
AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. IF THE READER OF THIS MESSAGE
IS NOT THE INTENDED RECIPIENT, OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR
DELIVERING THE MESSAGE 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 NOTIFY US
IMMEDIATELY BY E-MAIL OR BY TELEPHONE. THANK YOU.
________________________________
To: cdcbaa@yahoogroups.com
Sent: Fri, October 22, 2010 5:01:22 PM
Subject: RE: [cdcbaa] Lanning/Kagenveama
Peter:
Do you see anything wrong with the way the court ordered the case confirmed?
Thank you,
Nancy B. Clark
100 N. Barranca Avenue, Suite 250
West Covina, CA 91791
Office: (626) 332-8600
Fax: (626) 332-8644
Privileged/Confidential Information may be contained in this message. If you are
not the addressee indicated in this message (or responsible for delivery of the
message to such person), you may not copy or deliver this message to anyone. In
such case, you should destroy this message and kindly notify the sender by reply
email. Please advise immediately if you or your employer does not consent to
Internet email for messages of this kind. Opinions, conclusions and other
information in this message that do not relate to the official business of my
firm shall be understood as neither given nor endorsed by it.
IRS Circular 230 Disclosure: To ensure compliance with Treasury DepartmentRegulations, we advise you that, unless otherwise expressly indicated, anyfederal tax advice contained in this communication was
not intended or written to be used, and cannot be used, for the purpose of (i)
avoiding tax-related penalties under the Internal Revenue Code or applicable
state or local tax law provisions or (ii) promoting, marketing or recommending
to another party any tax-related matter addressed herein.
________________________________
The post was migrated from Yahoo.
OK, sounds like a reasonable strategy, but it will take a lot longer and noguaranteeit is better torisk theDistrict Court not getting it.
Law Office of Peter M. Lively * Personal Financial Law Center I
11268 Washington Blvd, Suite 203, Culver City, CA 90230-4647
Telephone: (310)391-2400 * (800)307-3328 * Fax: (310)391-2462
A-Bankruptcy-Attorney.com
Personal Financial Law Center II - Costa Mesa, CA
THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH
IT IS ADDRESSED, AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL
AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. IF THE READER OF THIS MESSAGE
IS NOT THE INTENDED RECIPIENT, OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR
DELIVERING THE MESSAGE 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 NOTIFY US
IMMEDIATELY BY E-MAIL OR BY TELEPHONE. THANK YOU.
________________________________
To: cdcbaa@yahoogroups.com
Sent: Fri, October 22, 2010 4:56:17 PM
Subject: RE: [cdcbaa] Lanning/Kagenveama
We believe the district court would reverse the Judge due to her clear statement
that she should follow Kagenveama because Lanning did not discuss ACP. We
believe the trustee would then appeal to the 9th Circuit. We think it would be
advantageous to go up to the 9th with a decision on our side on what we believe
to be the main issue stare decisis as opposed to a review of Kagenveama. We
realize that this tactic may not work but after careful consideration, we think
this is the best way to present the case to the 9th.
Thank you,
Nancy B. Clark
100 N. Barranca Avenue, Suite 250
West Covina, CA 91791
Office: (626) 332-8600
Fax: (626) 332-8644
Privileged/Confidential Information may be contained in this message. If you are
not the addressee indicated in this message (or responsible for delivery of the
message to such person), you may not copy or deliver this message to anyone. In
such case, you should destroy this message and kindly notify the sender by reply
email. Please advise immediately if you or your employer does not consent to
Internet email for messages of this kind. Opinions, conclusions and other
information in this message that do not relate to the official business of my
firm shall be understood as neither given nor endorsed by it.
IRS Circular 230 Disclosure: To ensure compliance with Treasury DepartmentRegulations, we advise you that, unless otherwise expressly indicated, anyfederal tax advice contained in this communication was
not intended or written to be used, and cannot be used, for the purpose of (i)
avoiding tax-related penalties under the Internal Revenue Code or applicable
state or local tax law provisions or (ii) promoting, marketing or recommending
to another party any tax-related matter addressed herein.
________________________________
The post was migrated from Yahoo.
Peter:
Do you see anything wrong with the way the court ordered the case
confirmed?
Thank you,
Nancy B. Clark
100 N. Barranca Avenue, Suite 250
West Covina, CA 91791
Office: (626) 332-8600
Fax: (626) 332-8644
Privileged/Confidential Information may be contained in this message. If
you are not the addressee indicated in this message (or responsible for
delivery of the message to such person), you may not copy or deliver
this message to anyone. In such case, you should destroy this message
and kindly notify the sender by reply email. Please advise immediately
if you or your employer does not consent to Internet email for messages
of this kind. Opinions, conclusions and other information in this
message that do not relate to the official business of my firm shall be
understood as neither given nor endorsed by it.
IRS Circular 230 Disclosure: To ensure compliance with Treasury
Department Regulations, we advise you that, unless otherwise expressly
indicated, any federal tax advice contained in this communication was
not intended or written to be used, and cannot be used, for the purpose
of (i) avoiding tax-related penalties under the Internal Revenue Code or
applicable state or local tax law provisions or (ii) promoting,
marketing or recommending to another party any tax-related matter
addressed herein.
________________________________
The post was migrated from Yahoo.
We believe the district court would reverse the Judge due to her clear
statement that she should follow Kagenveama because Lanning did not
discuss ACP. We believe the trustee would then appeal to the 9th
Circuit. We think it would be advantageous to go up to the 9th with a
decision on our side on what we believe to be the main issue "stare
decisis" as opposed to a review of Kagenveama. We realize that this
tactic may not work but after careful consideration, we think this is
the best way to present the case to the 9th.
Thank you,
Nancy B. Clark
100 N. Barranca Avenue, Suite 250
West Covina, CA 91791
Office: (626) 332-8600
Fax: (626) 332-8644
Privileged/Confidential Information may be contained in this message. If
you are not the addressee indicated in this message (or responsible for
delivery of the message to such person), you may not copy or deliver
this message to anyone. In such case, you should destroy this message
and kindly notify the sender by reply email. Please advise immediately
if you or your employer does not consent to Internet email for messages
of this kind. Opinions, conclusions and other information in this
message that do not relate to the official business of my firm shall be
understood as neither given nor endorsed by it.
IRS Circular 230 Disclosure: To ensure compliance with Treasury
Department Regulations, we advise you that, unless otherwise expressly
indicated, any federal tax advice contained in this communication was
not intended or written to be used, and cannot be used, for the purpose
of (i) avoiding tax-related penalties under the Internal Revenue Code or
applicable state or local tax law provisions or (ii) promoting,
marketing or recommending to another party any tax-related matter
addressed herein.
________________________________
The post was migrated from Yahoo.
Why not appeal directly to 9th Circuit Court ofAppeals and bypass
theBAP/District Court level? Sounds likeJudge Jury willfor this purpose.
Law Office of Peter M. Lively * Personal Financial Law Center I
11268 Washington Blvd, Suite 203, Culver City, CA 90230-4647
Telephone: (310)391-2400 * (800)307-3328 * Fax: (310)391-2462
A-Bankruptcy-Attorney.com
Personal Financial Law Center II - Costa Mesa, CA
THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH
IT IS ADDRESSED, AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL
AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. IF THE READER OF THIS MESSAGE
IS NOT THE INTENDED RECIPIENT, OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR
DELIVERING THE MESSAGE 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 NOTIFY US
IMMEDIATELY BY E-MAIL OR BY TELEPHONE. THANK YOU.
________________________________
To: cdcbaa@yahoogroups.com
Sent: Fri, October 22, 2010 4:27:11 PM
Subject: [cdcbaa] Lanning/Kagenveama
For those who have been following this topic, we (NACBA) briefed the issue of
ACP & Kagenveama and stare decisis for Judge Jury. Judge Jury ruled that
although she was bound by stare decisis, she thought that the 9th Circuit did
not get the issue of ACP right in Kagenveama and that she beleived the
1325(b)(1) should be read independently from 1325(b)(4). Nevertheless, sheunderstood from her ruling that she could easily be reversed due to stare
decisis but hoped that the 9th Circuit Court of Appeals would reconsider its
prior decision in Kagenveama in light of Lanning and Tennyson.
The court was not sure how to grant a final order w/out losing the issue for
appeal and confirming the case. So, Judge Jury decided that she should confirm
my case at 60 months instead of the proposed 36 months over the debtors'
objection. She stated that by doing this, we could confirm the case and thecreditors could be paid and we would preserve the issue for appeal. I had some
concerns regarding this order because the debtors propose the plan and must be
in agreement with the plan in order to confirm the plan. By agreeing to
confirmation, it is my understanding that the debtors may have waive their right
to object to confirmation. Judge Jury disagreed. She staed that as long as the
confirmation order states that the case was confirmed over debtors objection
that we can appeal and retain standing. Does anyone else believe this is anissue?
Second question I have is that we want to appeal the matter to the districtcourt instead of the BAP and instead of taking it directly to the 9th Circuit
(Judge Jury said she would certify it for appeal to the 9th Circuit but we want
to take our chances with the district court). I know we have to file the notice
of appeal and a separate writing for election. Does anyone have any advice for
me regarding the notice of appeal to insure that we are heard at the district
court level instead of the BAP?
Thanks,
Nancy B. Clark
Borowitz & Clark, LLP
100 N. Barranca Avenue, Suite 250
West Covina, CA 91791
Office: (626) 332-8600
Fax: (626) 332-8644
Why not appeal directly to 9th Circuit Court of Appeals and bypass the BAP/District Court level? Sounds like Judge Jury will certify the appeal for this purpose. Peter M. Lively, JD/MBALaw Office of Peter M. Lively * Personal Financial Law Center I11268 Washington Blvd, Suite 203, Culver City, CA 90230-4647Telephone: (310)391-2400 * (800)307-3328 * Fax: (310)391-2462 A-Bankruptcy-Attorney.comPersonal Financial Law Center II - Costa Mesa, CA
THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH IT IS ADDRESSED, AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT, OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERING THE MESSAGE 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 NOTIFY US IMMEDIATELY BY E-MAIL OR BY TELEPHONE. THANK YOU.
From: nancybonaccorso <nclark@blclaw.com>To: cdcbaa@yahoogroups.comSent: Fri, October 22, 2010 4:27:11 PMSubject: [cdcbaa] Lanning/Kagenveama
For those who have been following this topic, we (NACBA) briefed the issue of ACP & Kagenveama and stare decisis for Judge Jury. Judge Jury ruled that although she was bound by stare decisis, she thought that the 9th Circuit did not get the issue of ACP right in Kagenveama and that she beleived the 1325(b)(1) should be read independently from 1325(b)(4). Nevertheless, she understood from her ruling that she could easily be reversed due to stare decisis but hoped that the 9th Circuit Court of Appeals would reconsider its prior decision in Kagenveama in light of Lanning and Tennyson.The court was not sure how to grant a final order w/out losing the issue for appeal and confirming the case. So, Judge Jury decided that she should confirm my case at 60 months instead of the proposed 36 months over the debtors' objection. She stated that by doing this, we could confirm the case and the creditors could be paid and we would preserve the issue for
appeal. I had some concerns regarding this order because the debtors propose the plan and must be in agreement with the plan in order to confirm the plan. By agreeing to confirmation, it is my understanding that the debtors may have waive their right to object to confirmation. Judge Jury disagreed. She staed that as long as the confirmation order states that the case was confirmed over debtors objection that we can appeal and retain standing. Does anyone else believe this is an issue? Second question I have is that we want to appeal the matter to the district court instead of the BAP and instead of taking it directly to the 9th Circuit (Judge Jury said she would certify it for appeal to the 9th Circuit but we want to take our chances with the district court). I know we have to file the notice of appeal and a separate writing for election. Does anyone have any advice for me regarding the notice of appeal to insure that we are heard at the
district court level instead of the BAP?Thanks,Nancy B. ClarkBorowitz & Clark, LLP100 N. Barranca Avenue, Suite 250West Covina, CA 91791Office: (626) 332-8600Fax: (626) 332-8644
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For those who have been following this topic, we (NACBA) briefed the issue of ACP & Kagenveama and stare decisis for Judge Jury. Judge Jury ruled that although she was bound by stare decisis, she thought that the 9th Circuit did not get the issue of ACP right in Kagenveama and that she beleived the 1325(b)(1) should be read independently from 1325(b)(4). Nevertheless, she understood from her ruling that she could easily be reversed due to stare decisis but hoped that the 9th Circuit Court of Appeals would reconsider its prior decision in Kagenveama in light of Lanning and Tennyson.
The court was not sure how to grant a final order w/out losing the issue for appeal and confirming the case. So, Judge Jury decided that she should confirm my case at 60 months instead of the proposed 36 months over the debtors' objection. She stated that by doing this, we could confirm the case and the creditors could be paid and we would preserve the issue for appeal. I had some concerns regarding this order because the debtors propose the plan and must be in agreement with the plan in order to confirm the plan. By agreeing to confirmation, it is my understanding that the debtors may have waive their right to object to confirmation. Judge Jury disagreed. She staed that as long as the confirmation order states that the case was confirmed over debtors objection that we can appeal and retain standing. Does anyone else believe this is an issue?
Second question I have is that we want to appeal the matter to the district court instead of the BAP and instead of taking it directly to the 9th Circuit (Judge Jury said she would certify it for appeal to the 9th Circuit but we want to take our chances with the district court). I know we have to file the notice of appeal and a separate writing for election. Does anyone have any advice for me regarding the notice of appeal to insure that we are heard at the district court level instead of the BAP?
Thanks,
Nancy B. Clark
Borowitz & Clark, LLP
100 N. Barranca Avenue, Suite 250
West Covina, CA 91791
Office: (626) 332-8600
Fax: (626) 332-8644
The post was migrated from Yahoo.