.jpg)
Mortgage deficiencies in Ch. 13
Good question, sort of what I was alluding to but you put it better. I suppose it might depend on whether and how aggressively a creditor fights you on it! (It also wouldn't help you if you already had an appraisal pre-petition, scheduled a higher value to avoid ineligibility on the face of the schedules, then used that appraisal at confirmation/valuation hearing to show a lower value that increases unsecured debt beyond the limit).
Joseph E. Caceres, Esq.
Caceres & Shamash, LLP
8383 Wilshire Blvd., Suite 1010
Beverly Hills, CA 90211-2409
Tel: (323) 852-1600, x102
Fax: (323) 852-9009
E-mail: jec@locs.com
----- Original Message -----
To: cdcbaa@yahoogroups.com
Sent: Wednesday, April 09, 2008 8:07 PM
Subject: [cdcbaa] Re: Mortgage deficiencies in Ch. 13
Citing and following In re Scovis is the In re Guastella case, not a
lien avoidance case, but a case discussing good faith Chapter 13
eligibility in light of a tentative decision holding the debtor liable
for a state court judgment. Most software automatically allocates the
secured and unsecured portion of the claim based upon the scheduled
value for the real property. And, so taking the guess work out of
ascertaining eligibility. Is it bad faith to schedule a value for the
real property (qualifying the amount pending further court order),
even though that value may tip the scale toward eligibility, and yet,
post petition, at confirmation (In re Lam), the valuation results in a
higher amount for unsecured claims, such as to exceed eligibility?
--- In cdcbaa@yahoogroups.com, "Joseph E. Caceres" wrote:
>
> That's the million dollar question. In the Scovis case, the Ninth
Circuit used sort of a "readily ascertainable" standard. It held that
where a lien was avoided post-petition, the resulting unsecured debt
was to be considered in the eligibility analysis, as the result was
readily ascertainable (stating that ". . . a claim secured only by a
lien which is avoidable by a declared exemption is unsecured for
109(e) eligibility purposes"). But I suppose in that case the
conclusion was more easily reached just by looking at the schedules
than in the situation you describe, given the type of lien there vs. a
full-fledged valuation battle where no one can know the proper
conclusion ahead of time. So I think your approach is a good one,
certainly good faith scheduling even if pushing the envelope.
However, I've seen cases where the debt is listed as partially secured
and partially unsecured right off the bat, but that risks showing
ineligibility on the face of the schedules if the total unsecured debt
is high enough.
>
> Joseph E. Caceres, Esq.
> Caceres & Shamash, LLP
> 8383 Wilshire Blvd., Suite 1010
> Beverly Hills, CA 90211-2409
> Tel: (323) 852-1600, x102
> Fax: (323) 852-9009
> E-mail: jec@...
>
> ----- Original Message -----
> To: cdcbaa@yahoogroups.com
> Sent: Tuesday, April 08, 2008 9:08 PM
> Subject: [cdcbaa] Re: Mortgage deficiencies in Ch. 13
>
>
> But, Joe, when is that determination made? By the debtor before the
> filing? By the court after the filing? We take the position that
> until we get an order determining the value of the real property that
> the debt is technically scheduled in Schedule D and counted as secured
> for purposes of Chapter 13 jurisdictional issues. Maybe it is pushing
> the envelope, but unless there is an objection to jurisdiction, might
> as well!!
>
> Best regards. Lou Esbin
>
> --- In cdcbaa@yahoogroups.com, "Joseph E. Caceres" wrote:
> >
> > Following cases might be helpful start: In re Scovis, 249 F.3d 975,
> 983-84 (9th Cir. 2001)("Through the inclusion of a 506(a) analysis
> to define 'secured' and 'unsecured' in the 109(e) context, a vast
> majority of courts, and all circuit courts that have considered this
> issue, have held that the unsecured portion of undersecured debt is
> counted as unsecured for 109(e) eligibility purposes . . . [t]here
> is no question that this undersecured debt is to be counted as
> unsecured for eligibility purposes"); In re Ho, 274 B.R. 867, 871 (9th
> Cir. 2002)(". . . the unsecured portion of undersecured debt is
> counted as unsecured for 109(e) eligibility purposes . . ..").
> >
> >
> > Joseph E. Caceres, Esq.
> > Caceres & Shamash, LLP
> > 8383 Wilshire Blvd., Suite 1010
> > Beverly Hills, CA 90211-2409
> > Tel: (323) 852-1600, x102
> > Fax: (323) 852-9009
> > E-mail: jec@
> > ----- Original Message -----
> > To: cdcbaa@yahoogroups.com
> > Sent: Saturday, April 05, 2008 4:52 PM
> > Subject: Re: [cdcbaa] Mortgage deficiencies in Ch. 13
> >
> >
> >
> > Anybody want to jump in on this one? I have the same question. Ch
> 13 client now wants to surrender real estate. Lender already filed
> claims based on arrears at time of filing and debtor's original intent
> to keep the house. We are amending plan to indicate debtor's intent to
> surrender. Is there any magic language to include? Such as "surrender
> in full satisfaction of claim"? Would that work? Any suggestions would
> be appreciated.
> >
> > Thanks.
> >
> > Susana B. Tolchard
> > Mark JM wrote:
> > I know this is probably a stupid question, but seems like Ch. 13
> has so many odd kinks in it, that I just want to be sure.
> >
> > If a debtor files a Chapter 13 case and he has real property
> being foreclosed on, and that he intends to surrender, but is
> proceeding with the Ch. 13 for other reasons, does any deficiency
> after the foreclosure get added in to the unsecured debt pool? How
> does this affect the plan percentage, etc? How do you all take this
> into consideration at the beginning of the case?
> >
> > As a related question, can this affect the 109(e) debt
> limitation determination prior to filing if the property is completely
> underwater as to the junior liens? (been a while since I've
> researched that issue).
> >
> > Thanks...
> >
> > ______________________
> > 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
> > ___________
> > NOTICE: This Electronic Message contains information from the
> law office of Mark J. Markus that may be privileged. The information
> is intended for the use of the addressee only. If you are not the
> addressee, note that any disclosure, copy, distribution or use of the
> contents of this message is prohibited.
> > 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 (or in any attachment).
> >
> >
> >
> >
> >
> ----------------------------------------------------------
> > You rock. That's why Blockbuster's offering you one month of
> Blockbuster Total Access, No Cost.
> >
>
The post was migrated from Yahoo.
Citing and following In re Scovis is the In re Guastella case, not a
lien avoidance case, but a case discussing good faith Chapter 13
eligibility in light of a tentative decision holding the debtor liable
for a state court judgment. Most software automatically allocates the
secured and unsecured portion of the claim based upon the scheduled
value for the real property. And, so taking the guess work out of
ascertaining eligibility. Is it bad faith to schedule a value for the
real property (qualifying the amount pending further court order),
even though that value may tip the scale toward eligibility, and yet,
post petition, at confirmation (In re Lam), the valuation results in a
higher amount for unsecured claims, such as to exceed eligibility?
>
> That's the million dollar question. In the Scovis case, the Ninth
Circuit used sort of a "readily ascertainable" standard. It held that
where a lien was avoided post-petition, the resulting unsecured debt
was to be considered in the eligibility analysis, as the result was
readily ascertainable (stating that ". . . a claim secured only by a
lien which is avoidable by a declared exemption is unsecured for
109(e) eligibility purposes"). But I suppose in that case the
conclusion was more easily reached just by looking at the schedules
than in the situation you describe, given the type of lien there vs. a
full-fledged valuation battle where no one can know the proper
conclusion ahead of time. So I think your approach is a good one,
certainly good faith scheduling even if pushing the envelope.
However, I've seen cases where the debt is listed as partially secured
and partially unsecured right off the bat, but that risks showing
ineligibility on the face of the schedules if the total unsecured debt
is high enough.
>
> Joseph E. Caceres, Esq.
> Caceres & Shamash, LLP
> 8383 Wilshire Blvd., Suite 1010
> Beverly Hills, CA 90211-2409
> Tel: (323) 852-1600, x102
> Fax: (323) 852-9009
> E-mail: jec@...
>
> ----- Original Message -----
> To: cdcbaa@yahoogroups.com
> Sent: Tuesday, April 08, 2008 9:08 PM
> Subject: [cdcbaa] Re: Mortgage deficiencies in Ch. 13
>
>
> But, Joe, when is that determination made? By the debtor before the
> filing? By the court after the filing? We take the position that
> until we get an order determining the value of the real property that
> the debt is technically scheduled in Schedule D and counted as secured
> for purposes of Chapter 13 jurisdictional issues. Maybe it is pushing
> the envelope, but unless there is an objection to jurisdiction, might
> as well!!
>
> Best regards. Lou Esbin
>
> --- In cdcbaa@yahoogroups.com, "Joseph E. Caceres" wrote:
> >
> > Following cases might be helpful start: In re Scovis, 249 F.3d 975,
> 983-84 (9th Cir. 2001)("Through the inclusion of a 506(a) analysis
> to define 'secured' and 'unsecured' in the 109(e) context, a vast
> majority of courts, and all circuit courts that have considered this
> issue, have held that the unsecured portion of undersecured debt is
> counted as unsecured for 109(e) eligibility purposes . . . [t]here
> is no question that this undersecured debt is to be counted as
> unsecured for eligibility purposes"); In re Ho, 274 B.R. 867, 871 (9th
> Cir. 2002)(". . . the unsecured portion of undersecured debt is
> counted as unsecured for 109(e) eligibility purposes . . ..").
> >
> >
> > Joseph E. Caceres, Esq.
> > Caceres & Shamash, LLP
> > 8383 Wilshire Blvd., Suite 1010
> > Beverly Hills, CA 90211-2409
> > Tel: (323) 852-1600, x102
> > Fax: (323) 852-9009
> > E-mail: jec@
> > ----- Original Message -----
> > To: cdcbaa@yahoogroups.com
> > Sent: Saturday, April 05, 2008 4:52 PM
> > Subject: Re: [cdcbaa] Mortgage deficiencies in Ch. 13
> >
> >
> >
> > Anybody want to jump in on this one? I have the same question. Ch
> 13 client now wants to surrender real estate. Lender already filed
> claims based on arrears at time of filing and debtor's original intent
> to keep the house. We are amending plan to indicate debtor's intent to
> surrender. Is there any magic language to include? Such as "surrender
> in full satisfaction of claim"? Would that work? Any suggestions would
> be appreciated.
> >
> > Thanks.
> >
> > Susana B. Tolchard
> > Mark JM wrote:
> > I know this is probably a stupid question, but seems like Ch. 13
> has so many odd kinks in it, that I just want to be sure.
> >
> > If a debtor files a Chapter 13 case and he has real property
> being foreclosed on, and that he intends to surrender, but is
> proceeding with the Ch. 13 for other reasons, does any deficiency
> after the foreclosure get added in to the unsecured debt pool? How
> does this affect the plan percentage, etc? How do you all take this
> into consideration at the beginning of the case?
> >
> > As a related question, can this affect the 109(e) debt
> limitation determination prior to filing if the property is completely
> underwater as to the junior liens? (been a while since I've
> researched that issue).
> >
> > Thanks...
> >
> > ______________________
> > 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
> > ___________
> > NOTICE: This Electronic Message contains information from the
> law office of Mark J. Markus that may be privileged. The information
> is intended for the use of the addressee only. If you are not the
> addressee, note that any disclosure, copy, distribution or use of the
> contents of this message is prohibited.
> > 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 (or in any attachment).
> >
> >
> >
> >
> >
> ----------------------------------------------------------
> > You rock. That's why Blockbuster's offering you one month of
> Blockbuster Total Access, No Cost.
> >
>
The post was migrated from Yahoo.
I think it would increase the general unsecured pool if (1) they truly have a deficiency claim under state law, which I assume is your scenario as you refer to the "recourse" portion of the loans; and (2) they filed a proof of claim before the bar date that they can then amend to show the deficiency at the later date following foreclosure. Not sure what would happen if they never filed a secured claim in the first place, and then filed a "late" deficiency claim. I suppose secured creditor could argue that the (deficiency) claim did not arise until after the bar date, but I'd say that their total claim was known at the beginning such that they could not file a late claim and assert the deficiency.
Joseph E. Caceres, Esq.
Caceres & Shamash, LLP
8383 Wilshire Blvd., Suite 1010
Beverly Hills, CA 90211-2409
Tel: (323) 852-1600, x102
Fax: (323) 852-9009
E-mail: jec@locs.com
----- Original Message -----
To: cdcbaa@yahoogroups.com
Sent: Tuesday, April 08, 2008 11:35 PM
Subject: Re: [cdcbaa] Re: Mortgage deficiencies in Ch. 13
And, getting back to my original question, what happens when a
property is foreclosed on during a Ch. 13 case? What happens to the
recourse portions of the loans? Does it suddenly increase the general
unsecureds necessitating a modification of the plan percentage?
______________________
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
___________
NOTICE: This Electronic Message contains information from the law office of
Mark J. Markus that may be privileged. The information is intended for the
use of the addressee only. If you are not the addressee, note that any
disclosure, copy, distribution or use of the contents of this message is
prohibited.
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 (or
in any attachment).
----- Original Message -----
To:
Sent: Tuesday, April 08, 2008 9:08 PM
Subject: [cdcbaa] Re: Mortgage deficiencies in Ch. 13
But, Joe, when is that determination made? By the debtor before the
filing? By the court after the filing? We take the position that
until we get an order determining the value of the real property that
the debt is technically scheduled in Schedule D and counted as secured
for purposes of Chapter 13 jurisdictional issues. Maybe it is pushing
the envelope, but unless there is an objection to jurisdiction, might
as well!!
Best regards. Lou Esbin
--- In cdcbaa@yahoogroups.com, "Joseph E. Caceres" wrote:
>
> Following cases might be helpful start: In re Scovis, 249 F.3d 975,
983-84 (9th Cir. 2001)("Through the inclusion of a 506(a) analysis
to define 'secured' and 'unsecured' in the 109(e) context, a vast
majority of courts, and all circuit courts that have considered this
issue, have held that the unsecured portion of undersecured debt is
counted as unsecured for 109(e) eligibility purposes . . . [t]here
is no question that this undersecured debt is to be counted as
unsecured for eligibility purposes"); In re Ho, 274 B.R. 867, 871 (9th
Cir. 2002)(". . . the unsecured portion of undersecured debt is
counted as unsecured for 109(e) eligibility purposes . . ..").
>
>
> Joseph E. Caceres, Esq.
> Caceres & Shamash, LLP
> 8383 Wilshire Blvd., Suite 1010
> Beverly Hills, CA 90211-2409
> Tel: (323) 852-1600, x102
> Fax: (323) 852-9009
> E-mail: jec@...
> ----- Original Message -----
> To: cdcbaa@yahoogroups.com
> Sent: Saturday, April 05, 2008 4:52 PM
> Subject: Re: [cdcbaa] Mortgage deficiencies in Ch. 13
>
>
>
> Anybody want to jump in on this one? I have the same question. Ch
13 client now wants to surrender real estate. Lender already filed
claims based on arrears at time of filing and debtor's original intent
to keep the house. We are amending plan to indicate debtor's intent to
surrender. Is there any magic language to include? Such as "surrender
in full satisfaction of claim"? Would that work? Any suggestions would
be appreciated.
>
> Thanks.
>
> Susana B. Tolchard
> Mark JM wrote:
> I know this is probably a stupid question, but seems like Ch. 13
has so many odd kinks in it, that I just want to be sure.
>
> If a debtor files a Chapter 13 case and he has real property
being foreclosed on, and that he intends to surrender, but is
proceeding with the Ch. 13 for other reasons, does any deficiency
after the foreclosure get added in to the unsecured debt pool? How
does this affect the plan percentage, etc? How do you all take this
into consideration at the beginning of the case?
>
> As a related question, can this affect the 109(e) debt
limitation determination prior to filing if the property is completely
underwater as to the junior liens? (been a while since I've
researched that issue).
>
> Thanks...
>
> ______________________
> 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
> ___________
> NOTICE: This Electronic Message contains information from the
law office of Mark J. Markus that may be privileged. The information
is intended for the use of the addressee only. If you are not the
addressee, note that any disclosure, copy, distribution or use of the
contents of this message is prohibited.
> 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 (or in any attachment).
>
>
>
>
>
The post was migrated from Yahoo.
That's the million dollar question. In the Scovis case, the Ninth Circuit used sort of a "readily ascertainable" standard. It held that where a lien was avoided post-petition, the resulting unsecured debt was to be considered in the eligibility analysis, as the result was readily ascertainable (stating that ". . . a claim secured only by a lien which is avoidable by a declared exemption is unsecured for 109(e) eligibility purposes"). But I suppose in that case the conclusion was more easily reached just by looking at the schedules than in the situation you describe, given the type of lien there vs. a full-fledged valuation battle where no one can know the proper conclusion ahead of time. So I think your approach is a good one, certainly good faith scheduling even if pushing the envelope. However, I've seen cases where the debt is listed as partially secured and partially unsecured right off the bat, but that risks showing ineligibility on the face of the schedules if the total unsecured debt is high enough.
Joseph E. Caceres, Esq.
Caceres & Shamash, LLP
8383 Wilshire Blvd., Suite 1010
Beverly Hills, CA 90211-2409
Tel: (323) 852-1600, x102
Fax: (323) 852-9009
E-mail: jec@locs.com
----- Original Message -----
To: cdcbaa@yahoogroups.com
Sent: Tuesday, April 08, 2008 9:08 PM
Subject: [cdcbaa] Re: Mortgage deficiencies in Ch. 13
But, Joe, when is that determination made? By the debtor before the
filing? By the court after the filing? We take the position that
until we get an order determining the value of the real property that
the debt is technically scheduled in Schedule D and counted as secured
for purposes of Chapter 13 jurisdictional issues. Maybe it is pushing
the envelope, but unless there is an objection to jurisdiction, might
as well!!
Best regards. Lou Esbin
--- In cdcbaa@yahoogroups.com, "Joseph E. Caceres" wrote:
>
> Following cases might be helpful start: In re Scovis, 249 F.3d 975,
983-84 (9th Cir. 2001)("Through the inclusion of a 506(a) analysis
to define 'secured' and 'unsecured' in the 109(e) context, a vast
majority of courts, and all circuit courts that have considered this
issue, have held that the unsecured portion of undersecured debt is
counted as unsecured for 109(e) eligibility purposes . . . [t]here
is no question that this undersecured debt is to be counted as
unsecured for eligibility purposes"); In re Ho, 274 B.R. 867, 871 (9th
Cir. 2002)(". . . the unsecured portion of undersecured debt is
counted as unsecured for 109(e) eligibility purposes . . ..").
>
>
> Joseph E. Caceres, Esq.
> Caceres & Shamash, LLP
> 8383 Wilshire Blvd., Suite 1010
> Beverly Hills, CA 90211-2409
> Tel: (323) 852-1600, x102
> Fax: (323) 852-9009
> E-mail: jec@...
> ----- Original Message -----
> To: cdcbaa@yahoogroups.com
> Sent: Saturday, April 05, 2008 4:52 PM
> Subject: Re: [cdcbaa] Mortgage deficiencies in Ch. 13
>
>
>
> Anybody want to jump in on this one? I have the same question. Ch
13 client now wants to surrender real estate. Lender already filed
claims based on arrears at time of filing and debtor's original intent
to keep the house. We are amending plan to indicate debtor's intent to
surrender. Is there any magic language to include? Such as "surrender
in full satisfaction of claim"? Would that work? Any suggestions would
be appreciated.
>
> Thanks.
>
> Susana B. Tolchard
> Mark JM wrote:
> I know this is probably a stupid question, but seems like Ch. 13
has so many odd kinks in it, that I just want to be sure.
>
> If a debtor files a Chapter 13 case and he has real property
being foreclosed on, and that he intends to surrender, but is
proceeding with the Ch. 13 for other reasons, does any deficiency
after the foreclosure get added in to the unsecured debt pool? How
does this affect the plan percentage, etc? How do you all take this
into consideration at the beginning of the case?
>
> As a related question, can this affect the 109(e) debt
limitation determination prior to filing if the property is completely
underwater as to the junior liens? (been a while since I've
researched that issue).
>
> Thanks...
>
> ______________________
> 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
> ___________
> NOTICE: This Electronic Message contains information from the
law office of Mark J. Markus that may be privileged. The information
is intended for the use of the addressee only. If you are not the
addressee, note that any disclosure, copy, distribution or use of the
contents of this message is prohibited.
> 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 (or in any attachment).
>
>
>
>
>
The post was migrated from Yahoo.
And, getting back to my original question, what happens when a
property is foreclosed on during a Ch. 13 case? What happens to the
recourse portions of the loans? Does it suddenly increase the general
unsecureds necessitating a modification of the plan percentage?
______________________
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
___________
NOTICE: This Electronic Message contains information from the law office of
Mark J. Markus that may be privileged. The information is intended for the
use of the addressee only. If you are not the addressee, note that any
disclosure, copy, distribution or use of the contents of this message is
prohibited.
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 (or
in any attachment).
To:
Sent: Tuesday, April 08, 2008 9:08 PM
Subject: [cdcbaa] Re: Mortgage deficiencies in Ch. 13
But, Joe, when is that determination made? By the debtor before the
filing? By the court after the filing? We take the position that
until we get an order determining the value of the real property that
the debt is technically scheduled in Schedule D and counted as secured
for purposes of Chapter 13 jurisdictional issues. Maybe it is pushing
the envelope, but unless there is an objection to jurisdiction, might
as well!!
Best regards. Lou Esbin
>
> Following cases might be helpful start: In re Scovis, 249 F.3d 975,
983-84 (9th Cir. 2001)("Through the inclusion of a 506(a) analysis
to define 'secured' and 'unsecured' in the 109(e) context, a vast
majority of courts, and all circuit courts that have considered this
issue, have held that the unsecured portion of undersecured debt is
counted as unsecured for 109(e) eligibility purposes . . . [t]here
is no question that this undersecured debt is to be counted as
unsecured for eligibility purposes"); In re Ho, 274 B.R. 867, 871 (9th
Cir. 2002)(". . . the unsecured portion of undersecured debt is
counted as unsecured for 109(e) eligibility purposes . . ..").
>
>
> Joseph E. Caceres, Esq.
> Caceres & Shamash, LLP
> 8383 Wilshire Blvd., Suite 1010
> Beverly Hills, CA 90211-2409
> Tel: (323) 852-1600, x102
> Fax: (323) 852-9009
> E-mail: jec@...
> ----- Original Message -----
> To: cdcbaa@yahoogroups.com
> Sent: Saturday, April 05, 2008 4:52 PM
> Subject: Re: [cdcbaa] Mortgage deficiencies in Ch. 13
>
>
>
> Anybody want to jump in on this one? I have the same question. Ch
13 client now wants to surrender real estate. Lender already filed
claims based on arrears at time of filing and debtor's original intent
to keep the house. We are amending plan to indicate debtor's intent to
surrender. Is there any magic language to include? Such as "surrender
in full satisfaction of claim"? Would that work? Any suggestions would
be appreciated.
>
> Thanks.
>
> Susana B. Tolchard
> Mark JM wrote:
> I know this is probably a stupid question, but seems like Ch. 13
has so many odd kinks in it, that I just want to be sure.
>
> If a debtor files a Chapter 13 case and he has real property
being foreclosed on, and that he intends to surrender, but is
proceeding with the Ch. 13 for other reasons, does any deficiency
after the foreclosure get added in to the unsecured debt pool? How
does this affect the plan percentage, etc? How do you all take this
into consideration at the beginning of the case?
>
> As a related question, can this affect the 109(e) debt
limitation determination prior to filing if the property is completely
underwater as to the junior liens? (been a while since I've
researched that issue).
>
> Thanks...
>
> ______________________
> 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
> ___________
> NOTICE: This Electronic Message contains information from the
law office of Mark J. Markus that may be privileged. The information
is intended for the use of the addressee only. If you are not the
addressee, note that any disclosure, copy, distribution or use of the
contents of this message is prohibited.
> 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 (or in any attachment).
>
>
>
>
>
> You rock. That's why Blockbuster's offering you one month of
Blockbuster Total Access, No Cost.
>
Yahoo! Groups Links
The post was migrated from Yahoo.
But, Joe, when is that determination made? By the debtor before the
filing? By the court after the filing? We take the position that
until we get an order determining the value of the real property that
the debt is technically scheduled in Schedule D and counted as secured
for purposes of Chapter 13 jurisdictional issues. Maybe it is pushing
the envelope, but unless there is an objection to jurisdiction, might
as well!!
Best regards. Lou Esbin
>
> Following cases might be helpful start: In re Scovis, 249 F.3d 975,
983-84 (9th Cir. 2001)("Through the inclusion of a 506(a) analysis
to define 'secured' and 'unsecured' in the 109(e) context, a vast
majority of courts, and all circuit courts that have considered this
issue, have held that the unsecured portion of undersecured debt is
counted as unsecured for 109(e) eligibility purposes . . . [t]here
is no question that this undersecured debt is to be counted as
unsecured for eligibility purposes"); In re Ho, 274 B.R. 867, 871 (9th
Cir. 2002)(". . . the unsecured portion of undersecured debt is
counted as unsecured for 109(e) eligibility purposes . . ..").
>
>
> Joseph E. Caceres, Esq.
> Caceres & Shamash, LLP
> 8383 Wilshire Blvd., Suite 1010
> Beverly Hills, CA 90211-2409
> Tel: (323) 852-1600, x102
> Fax: (323) 852-9009
> E-mail: jec@...
> ----- Original Message -----
> To: cdcbaa@yahoogroups.com
> Sent: Saturday, April 05, 2008 4:52 PM
> Subject: Re: [cdcbaa] Mortgage deficiencies in Ch. 13
>
>
>
> Anybody want to jump in on this one? I have the same question. Ch
13 client now wants to surrender real estate. Lender already filed
claims based on arrears at time of filing and debtor's original intent
to keep the house. We are amending plan to indicate debtor's intent to
surrender. Is there any magic language to include? Such as "surrender
in full satisfaction of claim"? Would that work? Any suggestions would
be appreciated.
>
> Thanks.
>
> Susana B. Tolchard
> Mark JM wrote:
> I know this is probably a stupid question, but seems like Ch. 13
has so many odd kinks in it, that I just want to be sure.
>
> If a debtor files a Chapter 13 case and he has real property
being foreclosed on, and that he intends to surrender, but is
proceeding with the Ch. 13 for other reasons, does any deficiency
after the foreclosure get added in to the unsecured debt pool? How
does this affect the plan percentage, etc? How do you all take this
into consideration at the beginning of the case?
>
> As a related question, can this affect the 109(e) debt
limitation determination prior to filing if the property is completely
underwater as to the junior liens? (been a while since I've
researched that issue).
>
> Thanks...
>
> ______________________
> 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
> ___________
> NOTICE: This Electronic Message contains information from the
law office of Mark J. Markus that may be privileged. The information
is intended for the use of the addressee only. If you are not the
addressee, note that any disclosure, copy, distribution or use of the
contents of this message is prohibited.
> 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 (or in any attachment).
>
>
>
>
>
> You rock. That's why Blockbuster's offering you one month of
Blockbuster Total Access, No Cost.
>
The post was migrated from Yahoo.
Following cases might be helpful start: In re Scovis, 249 F.3d 975, 983-84 (9th Cir. 2001)("Through the inclusion of a 506(a) analysis to define 'secured' and 'unsecured' in the 109(e) context, a vast majority of courts, and all circuit courts that have considered this issue, have held that the unsecured portion of undersecured debt is counted as unsecured for 109(e) eligibility purposes . . . [t]here is no question that this undersecured debt is to be counted as unsecured for eligibility purposes"); In re Ho, 274 B.R. 867, 871 (9th Cir. 2002)(". . . the unsecured portion of undersecured debt is counted as unsecured for 109(e) eligibility purposes . . ..").
Joseph E. Caceres, Esq.
Caceres & Shamash, LLP
8383 Wilshire Blvd., Suite 1010
Beverly Hills, CA 90211-2409
Tel: (323) 852-1600, x102
Fax: (323) 852-9009
E-mail: jec@locs.com
----- Original Message -----
To: cdcbaa@yahoogroups.com
Sent: Saturday, April 05, 2008 4:52 PM
Subject: Re: [cdcbaa] Mortgage deficiencies in Ch. 13
Anybody want to jump in on this one? I have the same question. Ch 13 client now wants to surrender real estate. Lender already filed claims based on arrears at time of filing and debtor's original intent to keep the house. We are amending plan to indicate debtor's intent to surrender. Is there any magic language to include? Such as "surrender in full satisfaction of claim"? Would that work? Any suggestions would be appreciated.
Thanks.
Susana B. Tolchard
Mark JM wrote:
I know this is probably a stupid question, but seems like Ch. 13 has so many odd kinks in it, that I just want to be sure.
If a debtor files a Chapter 13 case and he has real property being foreclosed on, and that he intends to surrender, but is proceeding with the Ch. 13 for other reasons, does any deficiency after the foreclosure get added in to the unsecured debt pool? How does this affect the plan percentage, etc? How do you all take this into consideration at the beginning of the case?
As a related question, can this affect the 109(e) debt limitation determination prior to filing if the property is completely underwater as to the junior liens? (been a while since I've researched that issue).
Thanks...
______________________
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
___________
NOTICE: This Electronic Message contains information from the law office of Mark J. Markus that may be privileged. The information is intended for the use of the addressee only. If you are not the addressee, note that any disclosure, copy, distribution or use of the contents of this message is prohibited.
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 (or in any attachment).
You rock. That's why Blockbuster's offering you one month of Blockbuster Total Access, No Cost.
The post was migrated from Yahoo.
Anybody want to jump in on this one? I have the same question. Ch 13 client now wants to surrender real estate. Lender already filed claims based on arrears at time of filing and debtor's original intent to keep the house. We are amending plan to indicate debtor's intent to surrender. Is there any magic language to include? Such as "surrender in full satisfaction of claim"? Would that work? Any suggestions would be appreciated.
Thanks.
Susana B. Tolchard
Mark JM wrote:
I know this is probably a stupid question, but seems like Ch. 13 has so many odd kinks in it, that I just want to be sure.
If a debtor files a Chapter 13 case and he has real property being foreclosed on, and that he intends to surrender, but is proceeding with the Ch. 13 for other reasons, does any deficiency after the foreclosure get added in to the unsecured debt pool? How does this affect the plan percentage, etc? How do you all take this into consideration at the beginning of the case?
As a related question, can this affect the 109(e) debt limitation determination prior to filing if the property is completely underwater as to the junior liens? (been a while since I've researched that issue).
Thanks...
______________________
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
___________
NOTICE: This Electronic Message contains information from the law office of Mark J. Markus that may be privileged. The information is intended for the use of the addressee only. If you are not the addressee, note that any disclosure, copy, distribution or use of the contents of this message is prohibited.
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 (or in any attachment).
You rock. That's why Blockbuster's offering you one month of Blockbuster Total Access, No Cost.
Anybody want to jump in on this one? I have the same question. Ch 13 client now wants to surrender real estate. Lender already filed claims based on arrears at time of filing and debtor's original intent to keep the house. We are amending plan to indicate debtor's intent to surrender. Is there any magic language to include? Such as "surrender in full satisfaction of claim"? Would that work? Any suggestions would be appreciated. Thanks. Susana B. TolchardMark JM <bklawr@yahoo.com> wrote: I know this is probably a stupid question, but seems like Ch. 13 has so many odd kinks in it, that I just want to be sure. If a debtor files a Chapter 13 case and he has real property being foreclosed on, and that he intends to surrender, but is proceeding with the Ch. 13 for other reasons, does any deficiency after the foreclosure get added in to the unsecured debt pool? How does this affect the plan percentage, etc? How do you all take this into consideration at the beginning of the case? As a related question, can this affect the 109(e) debt limitation determination prior to filing if the property is completely underwater as to the junior liens? (been a while since I've researched that issue).
Thanks... ______________________Mark J. MarkusLaw Office of Mark J. Markus11684 Ventura Blvd. PMB #403Studio 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___________NOTICE: This Electronic Message contains information from the law office of Mark J. Markus that may be privileged. The information is intended for the use of the addressee only. If you are not the addressee, note that any disclosure, copy, distribution or use of the contents of this message is prohibited.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 (or in any attachment).
You rock. That's why Blockbuster's offering you one month of Blockbuster Total Access, No Cost.
The post was migrated from Yahoo.
I know this is probably a stupid question, but seems like Ch. 13 has so many odd kinks in it, that I just want to be sure.
If a debtor files a Chapter 13 case and he has real property being foreclosed on, and that he intends to surrender, but is proceeding with the Ch. 13 for other reasons, does any deficiency after the foreclosure get added in to the unsecured debt pool? How does this affect the plan percentage, etc? How do you all take this into consideration at the beginning of the case?
As a related question, can this affect the 109(e) debt limitation determination prior to filing if the property is completely underwater as to the junior liens? (been a while since I've researched that issue).
Thanks...
______________________
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
___________
NOTICE: This Electronic Message contains information from the law office of Mark J. Markus that may be privileged. The information is intended for the use of the addressee only. If you are not the addressee, note that any disclosure, copy, distribution or use of the contents of this message is prohibited.
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 (or in any attachment).
I know this is probably a stupid question, but
seems like Ch. 13 has so many odd kinks in it, that I just want to be
sure.
If a debtor files a Chapter 13 case and he has real
property being foreclosed on, and that he intends to surrender, but is
proceeding with the Ch. 13 for other reasons, does any deficiency after theforeclosure get added in to the unsecured debt pool? How does this
affect the plan percentage, etc? How do you all take this intoconsideration at the beginning of the case?
As a related question, can this affect the 109(e)
debt limitation determination prior to filing if the property is completelyunderwater as to the junior liens? (been a while since I've researched
that issue).
Thanks...
______________________Mark J. MarkusLaw
Office of Mark J. Markus11684 Ventura Blvd. PMB #403Studio City, CA91604-2652(818)509-1173 (818)509-1460 (fax)web: http://www.bklaw.com/This Firm is aQualified Federal Debt Relief Agency___________NOTICE: This Electronic
Message contains information from the law office of Mark J. Markus that may be
privileged. The information is intended for the use of the addresseeonly. If you are not the addressee, note that any disclosure, copy,
distribution or use of the contents of this message is prohibited.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 (or in any
attachment).
The post was migrated from Yahoo.