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9th Cir BAP Rules on Ipso Facto Clauses
I have the case on my hard drive at home. I will forward it
tonight. It was on another list serve. The BAP said that FMC had
filed a POC which no one had objected to and therefore it had an
allowed claim. I forget the exact issue, but the BAP said all that
to show they did not need to deal with that particular issue in this
case at least.
wrote:
>
> From David Goodrich, formerly of Cooksey (who represents FMC) and
on that
> panel with me a few months back -
>
>
> The last time I spoke to the Debtor/Plaintiff's counsel, they told
me that
> the debtor intended to take this matter up with the BAP and then,
if
> necessary, the 9th Circuit. If she did not obtain a favorable
> judgment/decision, she then planned to move on to the Superior
Court. It
> looks like the battle is not quite over.
>
>
> _____
>
Behalf Of
> Patrick Green
> Sent: Friday, February 15, 2008 11:09 AM
> To: cdcbaa@yahoogroups.com
> Subject: RE: [cdcbaa] 9th Cir BAP Rules on Ipso Facto Clauses
>
>
>
> I did a Westlaw search and came up with no BAP or full circuit
cases.
>
> Once the case is published (Jon has some secret way of getting the
opinions
> before they even get onto the BAP website), it will be interesting
to see if
> it addresses the issue of the whether "the creditor ha[d] an
allowed claim"
> as a condition precedent to repossession.
>
>
>
> Patrick T. Green
The post was migrated from Yahoo.
I did a Westlaw search and came up with no BAP or full circuit cases.
Once the case is published (Jon has some secret way of getting the opinions
before they even get onto the BAP website), it will be interesting to see if
it addresses the issue of the whether "the creditor ha[d] an allowed claim"
as a condition precedent to repossession.
Patrick T. Green
1010 E. Union Street
Suite 206
Pasadena, CA 91106
Tel: 626-449-8433
Fax: 626-449-0565
pat@fitzgreenlaw.com
The post was migrated from Yahoo.
X-eGroups-Edited-By: easky1
How disappointing. Is anyone aware of contrary decisions in other circuits?
James R. Selth
Weintraub & Selth, APC
How disappointing. Is anyone aware of contrary decisions in other circuits?
James R. Selth
Weintraub & Selth, APC
12424 Wilshire Blvd., Suite 1120
Los Angeles, CA 90025
Telephone: (310) 207-1494
Facsimile: (310) 442-0660
E-Mail: jim@wsrlaw.net
NOTICE TO RECIPIENT: THIS E-MAIL IS MEANT FOR ONLY THE INTENDED RECIPIENT OF
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MESSAGE FROM YOUR SYSTEM. THANK YOU IN ADVANCE FOR YOUR COOPERATION.
--- Original Message---
To: cdcbaa@yahoogroups.com
Sent: 2/14/2008 8:24AM
Subject: [cdcbaa] 9th Cir BAP Rules on Ipso Facto Clauses
>> Dumont v. Ford Motor Credit (In re Dumont, --- B.R. --- (9th Cir.
>> BAP Jan, 2008)
>>
>> Issue: Can an purchase money secured creditor enforce an ipso facto
>> default clause post-bankruptcy when the debtor has not reaffirmed,
>> redeemed or surrendered the collateral?
>>
>> Holding: Yes.
>>
>> Judge James Meyers, San Diego
>> Baum, Montali, Dunn
>> Opinion by Redfield Baum, Arizona
>>
>> This post-BAPCPA chapter 7 debtor valued her car in her schedules at
>> $5,800. She owed FMC $8,300. In her Statement of Intention, she
>> checked the box, "Debtor will retain collateral and continue to make
>> monthly payments." FMC sent her a reaffirmation agreement which she
>> did not sign. After the bankruptcy case was closed, Ford repossessed
>> the car. The debtor was post-petition current. The debtor reopened
>> the case and asked for contempt which the bankruptcy court denied.
>> The debtor argued the debt is covered by Section 521(a)(2) and that
>> she performed her stated intention.
>>
>> The BAP affirmed. It said the "ride-through" provisions allowed by
>> In re Parker, 139 F.3d 668 (9th Cir. 1998) have been overruled by
>> BAPCPA. Parker held that the code only required the filing of the
>> form and doing one of the three choices on the form "if applicable,"
>> i.e., if the debtor chose one of the three options. That language is
>> still in the code but now there is Section 362(h) which gives Ford
>> relief if the debtor does not chose and perform one of the three
>> options i.e., surrender, reaffirm or redeem.
>>
>> The BAP said the debtor also did not comply with Section 521(a)(6)
>> (added by BAPCPA) which requires the debtor to "not retain
>> possession" of personal property secured by a purchase money lien
>> unless the debtor reaffirms or redeems. If he does not, the creditor
>> is given relief and permitted to take any act "permitted by
>> applicable nonbankruptcy law." The BAP said that new Section 521
>> (d) "allows ipso facto default clauses to be enforced."
>>
>>
>>
>>
The post was migrated from Yahoo.
How disappointing. Is anyone aware of contrary decisions in other circuits?
James R. Selth
Weintraub & Selth, APC
How disappointing. Is anyone aware of contrary decisions in other circuits?
James R. Selth
Weintraub & Selth, APC
12424 Wilshire Blvd., Suite 1120
Los Angeles, CA 90025
Telephone: (310) 207-1494
Facsimile: (310) 442-0660
E-Mail: jim@wsrlaw.net
NOTICE TO RECIPIENT: THIS E-MAIL IS MEANT FOR ONLY THE INTENDED RECIPIENT OF
THE TRANSMISSION, AND THIS COMMUNICATION IS INTENDED TO BE PRIVILEGED BY
LAW. IF YOU RECEIVED THIS E-MAIL IN ERROR, ANY REVIEW, USE, DISSEMINATION,
DISTRIBUTION, OR COPYING OF THIS E-MAIL IS STRICTLY PROHIBITED. PLEASE NOTIFY
US IMMEDIATELY OF THE ERROR BY RETURN E-MAIL AND PLEASE DELETE THIS
MESSAGE FROM YOUR SYSTEM. THANK YOU IN ADVANCE FOR YOUR COOPERATION.
--- Original Message---
To: cdcbaa@yahoogroups.com
Sent: 2/14/2008 8:24AM
Subject: [cdcbaa] 9th Cir BAP Rules on Ipso Facto Clauses
>> Dumont v. Ford Motor Credit (In re Dumont, --- B.R. --- (9th Cir.
>> BAP Jan, 2008)
>>
>> Issue: Can an purchase money secured creditor enforce an ipso facto
>> default clause post-bankruptcy when the debtor has not reaffirmed,
>> redeemed or surrendered the collateral?
>>
>> Holding: Yes.
>>
>> Judge James Meyers, San Diego
>> Baum, Montali, Dunn
>> Opinion by Redfield Baum, Arizona
>>
>> This post-BAPCPA chapter 7 debtor valued her car in her schedules at
>> $5,800. She owed FMC $8,300. In her Statement of Intention, she
>> checked the box, "Debtor will retain collateral and continue to make
>> monthly payments." FMC sent her a reaffirmation agreement which she
>> did not sign. After the bankruptcy case was closed, Ford repossessed
>> the car. The debtor was post-petition current. The debtor reopened
>> the case and asked for contempt which the bankruptcy court denied.
>> The debtor argued the debt is covered by Section 521(a)(2) and that
>> she performed her stated intention.
>>
>> The BAP affirmed. It said the "ride-through" provisions allowed by
>> In re Parker, 139 F.3d 668 (9th Cir. 1998) have been overruled by
>> BAPCPA. Parker held that the code only required the filing of the
>> form and doing one of the three choices on the form "if applicable,"
>> i.e., if the debtor chose one of the three options. That language is
>> still in the code but now there is Section 362(h) which gives Ford
>> relief if the debtor does not chose and perform one of the three
>> options i.e., surrender, reaffirm or redeem.
>>
>> The BAP said the debtor also did not comply with Section 521(a)(6)
>> (added by BAPCPA) which requires the debtor to "not retain
>> possession" of personal property secured by a purchase money lien
>> unless the debtor reaffirms or redeems. If he does not, the creditor
>> is given relief and permitted to take any act "permitted by
>> applicable nonbankruptcy law." The BAP said that new Section 521
>> (d) "allows ipso facto default clauses to be enforced."
>>
>>
>>
>>
The post was migrated from Yahoo.
Dumont v. Ford Motor Credit (In re Dumont, --- B.R. --- (9th Cir.
BAP Jan, 2008)
Issue: Can an purchase money secured creditor enforce an ipso facto
default clause post-bankruptcy when the debtor has not reaffirmed,
redeemed or surrendered the collateral?
Holding: Yes.
Judge James Meyers, San Diego
Baum, Montali, Dunn
Opinion by Redfield Baum, Arizona
This post-BAPCPA chapter 7 debtor valued her car in her schedules at
$5,800. She owed FMC $8,300. In her Statement of Intention, she
checked the box, "Debtor will retain collateral and continue to make
monthly payments." FMC sent her a reaffirmation agreement which she
did not sign. After the bankruptcy case was closed, Ford repossessed
the car. The debtor was post-petition current. The debtor reopened
the case and asked for contempt which the bankruptcy court denied.
The debtor argued the debt is covered by Section 521(a)(2) and that
she performed her stated intention.
The BAP affirmed. It said the "ride-through" provisions allowed by
In re Parker, 139 F.3d 668 (9th Cir. 1998) have been overruled by
BAPCPA. Parker held that the code only required the filing of the
form and doing one of the three choices on the form "if applicable,"
i.e., if the debtor chose one of the three options. That language is
still in the code but now there is Section 362(h) which gives Ford
relief if the debtor does not chose and perform one of the three
options i.e., surrender, reaffirm or redeem.
The BAP said the debtor also did not comply with Section 521(a)(6)
(added by BAPCPA) which requires the debtor to "not retain
possession" of personal property secured by a purchase money lien
unless the debtor reaffirms or redeems. If he does not, the creditor
is given relief and permitted to take any act "permitted by
applicable nonbankruptcy law." The BAP said that new Section 521
(d) "allows ipso facto default clauses to be enforced."
The post was migrated from Yahoo.