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Discharge of Secured? Debt
I keep the Beezley cite in my Outlook Contacts under Beezley so I
always have the cite handy.
>
> --- "Louis J. Esbin"
> wrote:
>
> >
>
> I have a photocopy of Beezley on my desk in the rack
> with the mail. Everytime I have a problem like this I
> just send a demand, as Louis suggests, and a copy of
> my photocopy of Beezley. Works like a charm.
>
> dennis
>
>
>
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> I keep photocopies of Beezley on me at all times. BUT I have a Beezley client who defended a state small claims court case in Temecula and the first judge WOULD NOT CONSIDER even reading beezley and gave the discharged plaintiff a judgment. Debtor is appealing it, but if the second judge ignores Beezley, I think he has to reopen his BK case to sue for violating the discharge injunction. True?
> Date: 2004/08/06 Fri PM 04:26:25 EDT
> To: cdcbaa@yahoogroups.com
> Subject: Re: [cdcbaa] Re: Discharge of Secured? Debt
>
>
> --- "Louis J. Esbin"
> wrote:
>
> >
>
> I have a photocopy of Beezley on my desk in the rack
> with the mail. Everytime I have a problem like this I
> just send a demand, as Louis suggests, and a copy of
> my photocopy of Beezley. Works like a charm.
>
> dennis
>
>
>
> __________________________________
> Do you Yahoo!?
> Y! Messenger - Communicate in real time. Download now.
> http://messenger.yahoo.com
>
>
>
>
> Yahoo! Groups Links
>
>
>
>
>
>
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wrote:
>
I have a photocopy of Beezley on my desk in the rack
with the mail. Everytime I have a problem like this I
just send a demand, as Louis suggests, and a copy of
my photocopy of Beezley. Works like a charm.
dennis
__________________________________
Do you Yahoo!?
Y! Messenger - Communicate in real time. Download now.
http://messenger.yahoo.com
The post was migrated from Yahoo.
A lien follows the property against which it is secured, while the
debt is discharged as to the person. If the debt was not reaffirmed
as required with either a court order or signature of the attorney,
the debt, as to the person, is discharged. The only remedy the
secured creditor has is against its collateral. See,IN RE BEEZLEY,
994 F.2d 1433 (9th Cir. 1993), for a fuller understanding of the
effect of the discharge on debt that is not scheduled, and when a
case can be reopened. A debt that is not scheduled, and is
dischargeable, is discharged. Send the judgment creditor a letter
citing Beezley and demanding that the judgment be vacated, and case
dismissed and all derogatory comments removed. Failure to do so may
leave you a remedy both in bankruptcy court and state court, as state
court has concurrent jurisdiction.
Just an aside, look out for the out of state lenders who send out
reaffirmation agreements for notes secured by deeds of trust.
California, unlike most other states, is an anti-deficiency state,
which means, if the debtor is unable to satisfy the obligation, the
lender can only look to the real property as security for payment;
however, if a first forecloses a second, and there is no bankruptcy,
the second can enforce the note. Therefore, in a bankruptcy case, do
not reaffirm a note secured by real property.
Best regards. Lou Esbin
> I had a client of mine come in with the following issue. Client
was
> issued a jmt against them in January 2004. Case was filed in
> December 2002. The situation is that the jmt arose from a claim
that
> was listed in schedule "d" as fully secured in client's ch. 7 bk
> which was discharged June 10, 2002. Statement of intention noted
> that Debtor intended to reaffirm the debt, but it was never
> reaffirmed. The debt itself should've been listed a lease and not
a
> secured debt.
>
> 1. Since debt was not reaffirmed, is the debt discharged (assuming
> collateral is returned)?
>
> 2. Should debtor reopen ch 7 to obtain discharge?
>
> Any advice would be apreciated.
>
>
> Moses
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I had a client of mine come in with the following issue. Client was
issued a jmt against them in January 2004. Case was filed in
December 2002. The situation is that the jmt arose from a claim that
was listed in schedule "d" as fully secured in client's ch. 7 bk
which was discharged June 10, 2002. Statement of intention noted
that Debtor intended to reaffirm the debt, but it was never
reaffirmed. The debt itself should've been listed a lease and not a
secured debt.
1. Since debt was not reaffirmed, is the debt discharged (assuming
collateral is returned)?
2. Should debtor reopen ch 7 to obtain discharge?
Any advice would be apreciated.
Moses
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