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I need a chapter 13 mentor
This is a commercial lease - a restaurant. No UD trial yet. I have told many people over the years that the lease died when the 3 days ran and bk won't bring it back but state law allows relief from forefiture, typically I think on cure in full - right now. I am hoping to avoid going back to state court where the client will lose. I don't think they can cure even over 60 months but the MFR has already been filed so I'm grasping at straws. Its a VK case.
>
> I am a newbie myself, but I had this issue recently so I will chime in. >
> For starters, since it does not appear that a judgment for possession has been in this case, the automatic stay exception in 362(b)(22) should not apply. So probably the worst case scenario is a landlord motion for relief.
>
> In the residential context, a lot of debtors are on month to month rental agreements (either because this was the original agreement, or because original lease has expired). So assuming the lease may not really benefit the client that much. So I would start by evaluating whether or not debtor has a long term below-market lease locked in, which is worth assuming (unlikely to be the case in this market, it seems to me).
>
> In my case, Debtor was 2 months behind on a month-to-month rental agreement, 3 day notice had passed and a UD had been filed, but there was not yet an order for possession. So the automatic stay exception in Section 362(b)(22) did not apply. Since client was month to month, I explained that yes, if LL wants to, they can file a motion for relief from the automatic stay and proceed with the UD. But my plan calls for payment in full of rent arrearages "promptly," so I don't see why the landlord would do such a thing. If landlord proceeds with the UD, he will have a general unsecured claim in client's Chapter 13 case, and will not get paid the back rent. If landlord does not object to the plan, he will get the back rent and the current rent. I don't see why landlord would want to file a motion for relief to proceed with the UD if debtor stays current on future rent and plan payments. Especially in this rental market. Moreover, landlord can always file a POC if they want to collect on their attorneys' fees and costs for filing the UD.
>
>
> --- In cdcbaa@yahoogroups.com, "David A. Tilem" wrote:
> >
> > Jon:
> >
> > 365 provides very precise time parameters: "promptly", hence it us up to
> > each individual judge.
> >
> >
> > 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.
> > Business bankruptcy specialist cert. by Amer. Bd. of Certification
> >
> >
> > -----Original Message-----
Of
> > jonhayes6666
> > Sent: Thursday, February 11, 2010 6:56 PM
> > To: cdcbaa@yahoogroups.com
> > Subject: [cdcbaa] I need a chapter 13 mentor
> >
> >
> >
> >
> > Can a chapter 13 debtor cure a real property lease over 60 months (or x
> > months) in the chapter 13 plan? The 3 day notice ran a long time ago. The
> > debtor wants to stay but cannot cure all at once. I know its an executory
> > contract that must be assumed and therefore must be cured. But can cure be
> > over 60 months or do I have to go to state court and ask for relief from
> > forfeiture? Do I have to do that stuff in 362(l) or can I do it in the plan?
> > Jon
> >
>
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I am a newbie myself, but I had this issue recently so I will chime in.
For starters, since it does not appear that a judgment for possession has been in this case, the automatic stay exception in 362(b)(22) should not apply. So probably the worst case scenario is a landlord motion for relief.
In the residential context, a lot of debtors are on month to month rental agreements (either because this was the original agreement, or because original lease has expired). So assuming the lease may not really benefit the client that much. So I would start by evaluating whether or not debtor has a long term below-market lease locked in, which is worth assuming (unlikely to be the case in this market, it seems to me).
In my case, Debtor was 2 months behind on a month-to-month rental agreement, 3 day notice had passed and a UD had been filed, but there was not yet an order for possession. So the automatic stay exception in Section 362(b)(22) did not apply. Since client was month to month, I explained that yes, if LL wants to, they can file a motion for relief from the automatic stay and proceed with the UD. But my plan calls for payment in full of rent arrearages "promptly," so I don't see why the landlord would do such a thing. If landlord proceeds with the UD, he will have a general unsecured claim in client's Chapter 13 case, and will not get paid the back rent. If landlord does not object to the plan, he will get the back rent and the current rent. I don't see why landlord would want to file a motion for relief to proceed with the UD if debtor stays current on future rent and plan payments. Especially in this rental market. Moreover, landlord can always file a POC if they want to collect on their attorneys' fees and costs for filing the UD.
>
> Jon:
>
> 365 provides very precise time parameters: "promptly", hence it us up to
> each individual judge.
>
>
> 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.
> Business bankruptcy specialist cert. by Amer. Bd. of Certification
>
>
> -----Original Message-----
> jonhayes6666
> Sent: Thursday, February 11, 2010 6:56 PM
> To: cdcbaa@yahoogroups.com
> Subject: [cdcbaa] I need a chapter 13 mentor
>
>
>
>
> Can a chapter 13 debtor cure a real property lease over 60 months (or x
> months) in the chapter 13 plan? The 3 day notice ran a long time ago. The
> debtor wants to stay but cannot cure all at once. I know its an executory
> contract that must be assumed and therefore must be cured. But can cure be
> over 60 months or do I have to go to state court and ask for relief from
> forfeiture? Do I have to do that stuff in 362(l) or can I do it in the plan?
> Jon
>
The post was migrated from Yahoo.
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Again, it depends on the judge and the specific situation. VZ set the
matter for trial - 6 months down the road, to ascertain the amount needed to
cure.
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.
James T. King
Sent: Thursday, February 11, 2010 9:08 PM
To: cdcbaa@yahoogroups.com
Subject: RE: [cdcbaa] I need a chapter 13 mentor
In the 3 day notice was there an election of forfeiture of the lease? If so
then the only way to assume is to be relieved under state law from the
forfeiture which, if I remember, is to propose a full cure of arrears with
the granting of the relief from the forfeiture. So, no. You cannot cure
over 60 months. More like one.
The post was migrated from Yahoo.
charset="windows-1251"
VZ has granted relief from forfeiture in one of my cases - a business lease
after the UD judgment before lockout.
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: Thursday, February 11, 2010 7:04 PM
To: cdcbaa@yahoogroups.com
Subject: Re: [cdcbaa] I need a chapter 13 mentor
This is only a partial answer, but at least in the court of the
Honorable Vincent Zurzolo, I believe his position would be that under
California law the lease was terminated after the 3 day notice passed,
and there is, therefore, nothing to assume or cure in the Ch. 13.
Debtor would need to enter into a new lease.
Of course, as Dennis Miller used to say, I could be wrong.
*************************
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.
The post was migrated from Yahoo.
charset="windows-1251"
Jon:
365 provides very precise time parameters: "promptly", hence it us up to
each individual judge.
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.
jonhayes6666
Sent: Thursday, February 11, 2010 6:56 PM
To: cdcbaa@yahoogroups.com
Subject: [cdcbaa] I need a chapter 13 mentor
Can a chapter 13 debtor cure a real property lease over 60 months (or x
months) in the chapter 13 plan? The 3 day notice ran a long time ago. The
debtor wants to stay but cannot cure all at once. I know its an executory
contract that must be assumed and therefore must be cured. But can cure be
over 60 months or do I have to go to state court and ask for relief from
forfeiture? Do I have to do that stuff in 362(l) or can I do it in the plan?
Jon
charset="windows-1251"
Message
Jon:
365 provides veryprecise time parameters: "promptly", hence it us up to each individualjudge.
David A.
Tilem
Certified Bankruptcy
Specialist*
The post was migrated from Yahoo.
Must cure in a reasonable time, can't pull cite out of rear, but that is the rule,
Dennis McGoldrick
350 S. Crenshaw Bl., #A207B
Torrance, CA 90503
On Feb 11, 2010, at 6:55 PM, "jonhayes6666" wrote:
Can a chapter 13 debtor cure a real property lease over 60 months (or x months) in the chapter 13 plan? The 3 day notice ran a long time ago. The debtor wants to stay but cannot cure all at once. I know its an executory contract that must be assumed and therefore must be cured. But can cure be over 60 months or do I have to go to state court and ask for relief from forfeiture? Do I have to do that stuff in 362(l) or can I do it in the plan? Jon
Must cure in a reasonable time, can't pull cite out of rear, but that is the rule,Dennis McGoldrick350 S. Crenshaw Bl., #A207BTorrance, CA 90503On Feb 11, 2010, at 6:55 PM, "jonhayes6666" <Jhayes@polarisnet.net> wrote:
Can a chapter 13 debtor cure a real property lease over 60 months (or x months) in the chapter 13 plan? The 3 day notice ran a long time ago. The debtor wants to stay but cannot cure all at once. I know its an executory contract that must be assumed and therefore must be cured. But can cure be over 60 months or do I have to go to state court and ask for relief from forfeiture? Do I have to do that stuff in 362(l) or can I do it in the plan? Jon
The post was migrated from Yahoo.
Jim is correct. CCP 1179 reliefagainst forfeiture of lease (hardship based) is onlyavailbleon condition of full payment of rent due.
Law Office of Peter M. Lively * Personal Financial Law Center I
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Telephone: (310)391-2400 * (800)307-3328 * Fax: (310)391-2462
A-Bankruptcy-Attorney.com
Personal Financial Law Center II
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Telephone: (949)650-3328
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: Thu, February 11, 2010 9:07:44 PM
Subject: RE: [cdcbaa] I need a chapter 13 mentor
In the 3 day notice was there an election of forfeiture of the lease? If so then the only way to assume is to be relieved under state law from the forfeiture which, if I remember, is to propose a full cure of arrears with the granting of the relief from the forfeiture. So, no. You cannot cure over 60 months. More like one.
From:cdcbaa@yahoogroups. com [mailto:cdcbaa@ yahoogroups. com] On Behalf Of jonhayes6666
Sent: Thursday, February 11, 2010 6:56 PM
To: cdcbaa@yahoogroups. com
Subject: [cdcbaa] I need a chapter 13 mentor
Can a chapter 13 debtor cure a real property lease over 60 months (or x months) in the chapter 13 plan? The 3 day notice ran a long time ago. The debtor wants to stay but cannot cure all at once. I know its an executory contract that must be assumed and therefore must be cured. But can cure be over 60 months or do I have to go to state court and ask for relief from forfeiture? Do I have to do that stuff in 362(l) or can I do it in the plan? Jon
Jim is correct. CCP 1179 relief against forfeiture of lease (hardship based) is only availble on condition of full payment of rent due. 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.com
Personal Financial Law Center II1706-B Newport Boulevard, Costa Mesa, CA 92627-3073Telephone: (949)650-3328
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: James T. King <king@kingobk.com>To: cdcbaa@yahoogroups.comSent: Thu, February 11, 2010 9:07:44 PMSubject: RE: [cdcbaa] I need a chapter 13 mentor
In the 3 day notice was there an election of forfeiture of the lease? If so then the only way to assume is to be relieved under state law from the forfeiture which, if I remember, is to propose a full cure of arrears with the granting of the relief from the forfeiture. So, no. You cannot cure over 60 months. More like one.
From: cdcbaa@yahoogroups. com [mailto:cdcbaa@ yahoogroups. com] On Behalf Of jonhayes6666Sent: Thursday, February 11, 2010 6:56 PMTo: cdcbaa@yahoogroups. comSubject: [cdcbaa] I need a chapter 13 mentor
Can a chapter 13 debtor cure a real property lease over 60 months (or x months) in the chapter 13 plan? The 3 day notice ran a long time ago. The debtor wants to stay but cannot cure all at once. I know its an executory contract that must be assumed and therefore must be cured. But can cure be over 60 months or do I have to go to state court and ask for relief from forfeiture? Do I have to do that stuff in 362(l) or can I do it in the plan? Jon
The post was migrated from Yahoo.
You are right. 9thcir Whiting Pools.
Dennis McGoldrick
350 S. Crenshaw Bl., #A207B
Torrance, CA 90503
On Feb 11, 2010, at 7:03 PM, "Mark J. Markus" wrote:
This is only a partial answer, but at least in the court of the
Honorable Vincent Zurzolo, I believe his position would be that under
California law the lease was terminated after the 3 day notice passed,
and there is, therefore, nothing to assume or cure in the Ch. 13.
Debtor would need to enter into a new lease.
Of course, as Dennis Miller used to say, I could be wrong.
*************************
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.
In the 3 day notice was there an election of forfeiture of the lease?
If so then the only way to assume is to be relieved under state law from
the forfeiture which, if I remember, is to propose a full cure of
arrears with the granting of the relief from the forfeiture. So, no.
You cannot cure over 60 months. More like one.
The post was migrated from Yahoo.
This is only a partial answer, but at least in the court of the
Honorable Vincent Zurzolo, I believe his position would be that under
California law the lease was terminated after the 3 day notice passed,
and there is, therefore, nothing to assume or cure in the Ch. 13.
Debtor would need to enter into a new lease.
Of course, as Dennis Miller used to say, I could be wrong.
*************************
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/)
________________________________________________
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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 2/11/2010 6:55 PM, jonhayes6666 wrote:
> Can a chapter 13 debtor cure a real property lease over 60 months (or x months) in the chapter 13 plan? The 3 day notice ran a long time ago. The debtor wants to stay but cannot cure all at once. I know its an executory contract that must be assumed and therefore must be cured. But can cure be over 60 months or do I have to go to state court and ask for relief from forfeiture? Do I have to do that stuff in 362(l) or can I do it in the plan? Jon
>
>
>
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