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Amicus Brief on 2 Impt. Issues in 9th Cir.
I suggest you contact Tara at NACBA - see if they would weigh in on the issue.
Erik Clark
Borowitz, Lozano & Clark, LLP
100 N. Barranca Avenue, Suite 250
West Covina, CA 91791
Office: (626) 332-8600
Fax: (626) 332-8644
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First please review case number 06-12592 In re Eebjerg in the Central
District of California. All of our briefs from the underlying motion are available
there. Now the issues and facts:
Facts:
Debtor took out a 401K loan two years prior to filing bk. Payment on loan
was 700 a month. At the time of filing he had 17 months to go on repayment.
UST in Santa Barbara wanted him to convert to a 13 and make minimal payments
for 17 months and then apply the 700 to the unsecureds. We would not agree
and the UST moved to dismiss.
Judge Mund granted the motion. We won on one issue and lost on the other.
Win: Judge Mund ruled 401K loans are secured debts following the Thompson
opinion.
Loss: Debtor to make minimal payments for 17 months and then fund ch 13.
Failure to do so is an abuse
We asked that the second issue be certified directly to the Ninth Circuit so
we could bypass the District Court and BAP. She agreed and so certified it.
The UST objected at each level but last week the Ninth Circuit accepted the
appeal. Since we appealed the second issue the UST will be entitled to raise
the first issue.
You can review our motion, oppositions and the court's ruling on line. If
anyone is interested in filing an amicus brief please let us know. I am not
concerned about handling the appeal itself as our office has participated in
over 1100 appeals throughout the country since 1981. However, I feel an amicus
would give us more power since the UST in Washington will be responding to the
appeal.
Michael R. Totaro J.D., L.LM.
Totaro & Shanahan
P.O. Box 789
Pacific Palisades, CA 90272
310 573 0276 (v) 310 712 6317 (f)
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