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Stripping lien in Ch. 13/eligibility
Agree with Lou, can have a zero-percent plan but don't think you can have a zero-payment plan. Here's a pertinent excerpt out of a brief I drafted a while back:
11 U.S.C. 109(e) provides, in pertinent part, that "[o]nly an individual with regular income . . . may be a debtor under chapter 13 of this title." "Individual with regular income" is defined in 11 U.S.C. 101(30) to be an ". . . individual whose income is sufficiently stable and regular to enable such individual to make payments under a plan under chapter 13 of the title . . .."
The issue here, therefore, is whether a debtor whose income is insufficient to make plan payments meets the statutory definitions of eligibility. The cases that are on point conclude that the statutory language requires the ability to make payments. A leading case on the question is In re Terry, 630 F.2d 634 (8th Cir. 1980). In Terry, the court concluded that 11 U.S.C. 101(30) "contemplates that a debtor make payments, . . .." Noting that the "key statutory language is 'make payments,'" the court held that debtors who have "no excess income out of which to 'make payments,'" are not eligible for Chapter 13 relief. Id. at 635.
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, May 31, 2008 11:55 PM
Subject: [cdcbaa] Re: Stripping lien in Ch. 13/eligibility
I do not think that you can, in good faith, do a Chapter 13. The case
law has not changed, but do some scanning of more recent case law to
determine any different. Lou Esbin
--- In cdcbaa@yahoogroups.com, "Mark JM" wrote:
>
> Just assume no disposable income and no arrears.
>
>
>
> ----- Original Message -----
> To:
> Sent: Saturday, May 31, 2008 6:21 AM
> Subject: [cdcbaa] Re: Stripping lien in Ch. 13/eligibility
>
>
> > Mark,
> >
> > There needs to be more facts than what you gave, and usually the
> > debtor is in arrears to the first, so that there is disposable income
> > adequate to cure the first, only, making a zero percent plan to the
> > unsecured creditors, including the wholly undersecured second. A zero
> > percent plan may fly in the Valley, but it is my understanding that
> > among the LA and Riverside judges, such a plan may not be confirmable.
> > Not sure what the Santa Ana judges will do. Maybe some else can
> > weigh in on those divisions.
> >
> > Lou Esbin
> >
> > --- In cdcbaa@yahoogroups.com, "Mark JM" wrote:
> >>
> >> Can a Chapter 13 be filed by a debtor who does NOT show any
> > disposable income (i.e. he DOES qualify for a Chapter 7) but wants to
> > do a LAM/Lien Strip of the 2nd mortgage on his property?
> >>
> >> In other words, this would be a zero percent plan with no monthly
> > payments. Is that possible?
> >>
> >> As a 2nd fact scenario: Same as above, but debtor has $40,000 cash
> > in a bank account (but still has no disposable income). Change
anything?
> >>
> >> ______________________
> >> 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)
> >> Toll Free: 1-866-576-6275
> >> 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 communicat
> >>
> >
> >
> >
> > ------------------------------------
> >
> > Yahoo! Groups Links
> >
> >
> >
> >
>
The post was migrated from Yahoo.
I do not think that you can, in good faith, do a Chapter 13. The case
law has not changed, but do some scanning of more recent case law to
determine any different. Lou Esbin
>
> Just assume no disposable income and no arrears.
>
>
>
> ----- Original Message -----
> To:
> Sent: Saturday, May 31, 2008 6:21 AM
> Subject: [cdcbaa] Re: Stripping lien in Ch. 13/eligibility
>
>
> > Mark,
> >
> > There needs to be more facts than what you gave, and usually the
> > debtor is in arrears to the first, so that there is disposable income
> > adequate to cure the first, only, making a zero percent plan to the
> > unsecured creditors, including the wholly undersecured second. A zero
> > percent plan may fly in the Valley, but it is my understanding that
> > among the LA and Riverside judges, such a plan may not be confirmable.
> > Not sure what the Santa Ana judges will do. Maybe some else can
> > weigh in on those divisions.
> >
> > Lou Esbin
> >
> > --- In cdcbaa@yahoogroups.com, "Mark JM" wrote:
> >>
> >> Can a Chapter 13 be filed by a debtor who does NOT show any
> > disposable income (i.e. he DOES qualify for a Chapter 7) but wants to
> > do a LAM/Lien Strip of the 2nd mortgage on his property?
> >>
> >> In other words, this would be a zero percent plan with no monthly
> > payments. Is that possible?
> >>
> >> As a 2nd fact scenario: Same as above, but debtor has $40,000 cash
> > in a bank account (but still has no disposable income). Change
anything?
> >>
> >> ______________________
> >> 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)
> >> Toll Free: 1-866-576-6275
> >> 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 communicat
> >>
> >
> >
> >
> > ------------------------------------
> >
> > Yahoo! Groups Links
> >
> >
> >
> >
>
The post was migrated from Yahoo.
Just assume no disposable income and no arrears.
To:
Sent: Saturday, May 31, 2008 6:21 AM
Subject: [cdcbaa] Re: Stripping lien in Ch. 13/eligibility
> Mark,
>
> There needs to be more facts than what you gave, and usually the
> debtor is in arrears to the first, so that there is disposable income
> adequate to cure the first, only, making a zero percent plan to the
> unsecured creditors, including the wholly undersecured second. A zero
> percent plan may fly in the Valley, but it is my understanding that
> among the LA and Riverside judges, such a plan may not be confirmable.
> Not sure what the Santa Ana judges will do. Maybe some else can
> weigh in on those divisions.
>
> Lou Esbin
>
> --- In cdcbaa@yahoogroups.com, "Mark JM" wrote:
>>
>> Can a Chapter 13 be filed by a debtor who does NOT show any
> disposable income (i.e. he DOES qualify for a Chapter 7) but wants to
> do a LAM/Lien Strip of the 2nd mortgage on his property?
>>
>> In other words, this would be a zero percent plan with no monthly
> payments. Is that possible?
>>
>> As a 2nd fact scenario: Same as above, but debtor has $40,000 cash
> in a bank account (but still has no disposable income). Change anything?
>>
>> ______________________
>> 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)
>> Toll Free: 1-866-576-6275
>> 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 communicat
>>
>
>
>
> ------------------------------------
>
> Yahoo! Groups Links
>
>
>
>
The post was migrated from Yahoo.
Mark,
There needs to be more facts than what you gave, and usually the
debtor is in arrears to the first, so that there is disposable income
adequate to cure the first, only, making a zero percent plan to the
unsecured creditors, including the wholly undersecured second. A zero
percent plan may fly in the Valley, but it is my understanding that
among the LA and Riverside judges, such a plan may not be confirmable.
Not sure what the Santa Ana judges will do. Maybe some else can
weigh in on those divisions.
Lou Esbin
>
> Can a Chapter 13 be filed by a debtor who does NOT show any
disposable income (i.e. he DOES qualify for a Chapter 7) but wants to
do a LAM/Lien Strip of the 2nd mortgage on his property?
>
> In other words, this would be a zero percent plan with no monthly
payments. Is that possible?
>
> As a 2nd fact scenario: Same as above, but debtor has $40,000 cash
in a bank account (but still has no disposable income). Change anything?
>
> ______________________
> 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)
> Toll Free: 1-866-576-6275
> 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 communicat
>
The post was migrated from Yahoo.
Can a Chapter 13 be filed by a debtor who does NOT show any disposable income (i.e. he DOES qualify for a Chapter 7) but wants to do a LAM/Lien Strip of the 2nd mortgage on his property?
In other words, this would be a zero percent plan with no monthly payments. Is that possible?
As a 2nd fact scenario: Same as above, but debtor has $40,000 cash in a bank account (but still has no disposable income). Change anything?
______________________
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)
Toll Free: 1-866-576-6275
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 communicat
Can a Chapter 13 be filed by a debtor who does NOT
show any disposable income (i.e. he DOES qualify for a Chapter 7) but wants to
do a LAM/Lien Strip of the 2nd mortgage on his property?
In other words, this would be a zero percent plan
with no monthly payments. Is that possible?
As a 2nd fact scenario: Same as above, but
debtor has $40,000 cash in a bank account (but still has no disposable
income). Change anything?
______________________Mark J. MarkusLaw
Office of Mark J. Markus11684 Ventura Blvd. PMB #403Studio City, CA91604-2652(818)509-1173 (818)509-1460 (fax)Toll Free:
1-866-576-6275web: 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 communicat
The post was migrated from Yahoo.