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How to make sure I tee this up for appeal
I have a second bite at this apple. The hearing was continued for
supplemental briefing on the issue of whether I can alter the priority of
payments of admin claims in a chapter 13 plan such that I (debtor's
counsel) and all special counsel of debtor get paid prior to any other
admin claims, such as prior chapter 7 Trustee and his counsel.
My plan says that I get paid first (including all my supplemental fee apps
- which means that if former CH 7 Tee/counsel are in the middle of being
paid and I file a supp fee app, payments to them stop so I can get paid
first), special counsel second, other admins (Ch 7 Tee/Counsel) after. For
2 years, Ch 13 Tee has paid pursuant to this plan term by paying me in full
on my first fee app (over 2 years) before paying other admins. Now, with my
second fee app, Tee says no way. Ch 7 Tee/Counsel were served with the
Plan, and did not object. Plan confirmed. *Espinosa* says plan terms
control. Ch 7 Tee/Counsel were served with my recent motion to compel CH 13
Tee to comply with plan terms re priority of payment. Ch 7 Tee/Counsel did
not file any response to my motion or appear at any of the hearings (2). I
see a case of *waiver and estoppel *with both the CH 13 Tee's
actions/failure to act until now, and the CH 7Tee/Counsel's failure to
object to the Plan or my motion, in addition to *Espinoza*.
I am really puzzled as to why the CH 13 Tee is fighting so hard to pay
people who aren't even fighting for themselves.
Moreover, equitably, the funds on hand that can pay me and my special
counsel in full were generated from a malpractice case I filed. Ch 7
Tee/Counsel abandoned that cause of action in the chapter 7! (To clarify,
these are not our contingency atty fees for that state law case - those
have been paid already. These are fees for work I did in the BK
(supplemental), and for work this counsel did in a probate matter.) Ch 7
Tee/Counsel provided no benefit to the estate, but racked up $40K in fees
harassing my 70-year old debtor for a year and trying to keep the case from
converting. Why should they get to receive a lump sum payment right now,
and from THOSE funds they had nothing to do with generating?
PLEASE FEEL FREE TO SEND ME ALL YOUR COMMENTS, LAW, ARGUMENT, ETC. My
supplemental brief is due on 10/14. I have already made all the above
arguments, but Dan Press pointed out that 1322(a)(2) just says priority
creditors just have to be paid in full - it doesn't dictate the priority in
a Chapter 13, which suggests I can alter the priority.
Holly Roark
Certified Bankruptcy Specialist*
*and Sports Lawyer*
holly@roarklawoffices.com **primary email address**
www.roarklawoffices.com
*Central District of California & District of Idaho* - Consumer Bankruptcy
Attorney
1875 Century Park East, Suite 600 Los Angeles, CA 90067
T (310) 553-2600; F (310) 553-2601
*By State Bar of California Board of Legal Specialization
On Mon, Oct 3, 2016 at 6:49 PM, Holly Roark wrote:
> On 10/5/16 Santa Ana judge to decide if my chapter 13 plan means what it
> says and whether we care about Espinoza.
>
> My plan says my atty fees are paid before all other admins in the case,
> including all of my supplemental fee apps to be paid before all other
> admins. Santa Ana Tee has paid on my fees ONLY for 2 years (from fee app no
> 1), despite there being admin fees for former ch 7 Tee and counsel. (In
> other words, he has complied with the plan terms.) Now, 2 years later, when
> I put in fee app no. 2, Tee says I have to be paid pro rata with other
> admins in the case.
>
> Other admins were noticed with the plan over 2 years ago and did not
> object. Admins were served with my motion to compel the trustee to comply
> with the terms of the plan. Admins did not object.
>
> Judge's tentative is that he "considers the matter resolved" unless a
> party wants to appear and argue. (?????)
>
> My legal arguments are set forth well in the brief, I believe. Is there
> anything additional I need to make sure to say on the record so my appeal
> is clean? Based on past rulings on another portion of this motion (ruled on
> 2 months ago), I have little confidence in prevailing at the hearing.
>
> In addition to the plan terms, the 2 years of compliance by the trustee,
> and the failure to object by the other admins, from an equitable
> standpoint, the other admins should not be paid pro rata with me. The funds
> now on hand with the trustee were brought into the estate by ME and
> co-counsel on a professional malpractice case that the former CH 7 Tee
> abandoned. All he did was rape that chapter 7 to the extent that the judge
> cut his counsel's fees from $50k to $32k. $32k to counsel and $5k to ch 7
> Tee for adding no benefit to the estate and now the Ch 13 Tee wants to hand
> over money to them that I brought in.
>
> By the way, the UST in this case punted and isn't taking any action
> against the Tee and his counsel for nefarious behavior since the Ch 13
> Tee's behavior "is for the judge to decide". Oh okay. I'm ashamed to say
> that at 47 I'm just finding out that this is how things work. Well,
> PollyAnna no more. I get it now.
>
>
> --
> Holly Roark
> Certified Bankruptcy Specialist*
> *and Sports Lawyer*
> holly@roarklawoffices.com **primary email address**
> www.roarklawoffices.com
> *Central District of California & District of Idaho* - Consumer
> Bankruptcy Attorney
> 1875 Century Park East, Suite 600 Los Angeles, CA 90067
> T (310) 553-2600; F (310) 553-2601
>
> *By State Bar of California Board of Legal Specialization
>
>
>
>
I have a second bite at this apple. The hearing was continued for supplemental briefing on the issue of whether I can alter the priority of payments of admin claims in a chapter 13 plan such that I (debtor's counsel) and all special counsel of debtor get paid prior to any other admin claims, such as prior chapter 7 Trustee and his counsel. My plan says that I get paid first (including all my supplemental fee apps - which means that if former CH 7 Tee/counsel are in the middle of being paid and I file a supp fee app, payments to them stop so I can get paid first), special counsel second, other admins (Ch 7 Tee/Counsel) after. For 2 years, Ch 13 Tee has paid pursuant to this plan term by paying me in full on my first fee app (over 2 years) before paying other admins. Now, with my second fee app, Tee says no way.Ch 7 Tee/Counselwere served with the Plan, and did not object. Plan confirmed. Espinosa says plan terms control.Ch 7 Tee/Counselwere served with my recent motion to compel CH 13 Tee to comply with plan terms re priority of payment.Ch 7 Tee/Counseldid not file any response to my motion or appear at any of the hearings (2). I see a case of waiver and estoppel with both the CH 13 Tee's actions/failure to act until now, and the CH 7Tee/Counsel's failure to object to the Plan or my motion, in addition to Espinoza.I am really puzzled as to why the CH 13 Tee is fighting so hard to pay people who aren't even fighting for themselves.Moreover, equitably, the funds on hand that can pay me and my special counsel in full were generated from a malpractice case I filed.Ch 7 Tee/Counsel abandoned that cause of action in the chapter 7! (To clarify, these are not our contingency atty fees for that state law case - those have been paid already. These are fees for work I did in the BK (supplemental), and for work this counsel did in a probate matter.) Ch 7 Tee/Counselprovided no benefit to the estate, but racked up $40K in fees harassing my 70-year old debtor for a year and trying to keep the case from converting. Why should they get to receive a lump sum payment right now, and from THOSE funds they had nothing to do with generating?PLEASE FEEL FREE TO SEND ME ALL YOUR COMMENTS, LAW, ARGUMENT, ETC. My supplemental brief is due on 10/14. I have already made all the above arguments, but Dan Press pointed out that 1322(a)(2) just says priority creditors just have to be paid in full - it doesn't dictate the priority in a Chapter 13, which suggests I can alter the priority.Holly RoarkCertified Bankruptcy Specialist*and Sports Lawyer
holly@roarklawoffices.com**primary email address**
www.roarklawoffices.com
Central District of California & District of Idaho - Consumer Bankruptcy Attorney
1875 Century Park East, Suite 600 Los Angeles, CA 90067T (310) 553-2600; F (310) 553-2601
The post was migrated from Yahoo.
On 10/5/16 Santa Ana judge to decide if my chapter 13 plan means what it
says and whether we care about Espinoza.
My plan says my atty fees are paid before all other admins in the case,
including all of my supplemental fee apps to be paid before all other
admins. Santa Ana Tee has paid on my fees ONLY for 2 years (from fee app no
1), despite there being admin fees for former ch 7 Tee and counsel. (In
other words, he has complied with the plan terms.) Now, 2 years later, when
I put in fee app no. 2, Tee says I have to be paid pro rata with other
admins in the case.
Other admins were noticed with the plan over 2 years ago and did not
object. Admins were served with my motion to compel the trustee to comply
with the terms of the plan. Admins did not object.
Judge's tentative is that he "considers the matter resolved" unless a party
wants to appear and argue. (?????)
My legal arguments are set forth well in the brief, I believe. Is there
anything additional I need to make sure to say on the record so my appeal
is clean? Based on past rulings on another portion of this motion (ruled on
2 months ago), I have little confidence in prevailing at the hearing.
In addition to the plan terms, the 2 years of compliance by the trustee,
and the failure to object by the other admins, from an equitable
standpoint, the other admins should not be paid pro rata with me. The funds
now on hand with the trustee were brought into the estate by ME and
co-counsel on a professional malpractice case that the former CH 7 Tee
abandoned. All he did was rape that chapter 7 to the extent that the judge
cut his counsel's fees from $50k to $32k. $32k to counsel and $5k to ch 7
Tee for adding no benefit to the estate and now the Ch 13 Tee wants to hand
over money to them that I brought in.
By the way, the UST in this case punted and isn't taking any action against
the Tee and his counsel for nefarious behavior since the Ch 13 Tee's
behavior "is for the judge to decide". Oh okay. I'm ashamed to say that at
47 I'm just finding out that this is how things work. Well, PollyAnna no
more. I get it now.
Holly Roark
Certified Bankruptcy Specialist*
*and Sports Lawyer*
holly@roarklawoffices.com **primary email address**
www.roarklawoffices.com
*Central District of California & District of Idaho* - Consumer Bankruptcy
Attorney
1875 Century Park East, Suite 600 Los Angeles, CA 90067
T (310) 553-2600; F (310) 553-2601
*By State Bar of California Board of Legal Specialization
On 10/5/16Santa Ana judge to decide if my chapter 13 plan means what it says and whether we care about Espinoza.My plan says my atty fees are paid before all other admins in the case, including all of my supplemental fee apps to be paid before all other admins. Santa Ana Tee has paid onmy fees ONLYfor 2 years (from fee app no 1), despite there being admin fees for former ch 7 Tee and counsel. (In other words, he has complied with the plan terms.)Now, 2 years later, when I put in fee app no. 2, Tee says I have to be paid pro rata with other admins in the case.Other admins were noticed with the plan over 2 years ago and did not object. Admins were served with my motion to compel the trustee to comply with the terms of the plan. Admins did not object.Judge's tentative is that he "considers the matter resolved" unless a party wants to appear and argue. (?????)My legalarguments are set forth wellin the brief, I believe. Is there anything additional on past rulings on another portion of this motion (ruled on 2 months ago), I have little confidence in prevailing at the hearing.In addition to the plan terms, the 2 years of compliance by the trustee, and the failure to object by the other admins, from an equitable standpoint, the other admins should not be paid pro rata with me. The funds now on hand with the trustee were brought into the estate by ME and co-counsel on a professional malpractice case that the formerCH 7 Tee abandoned. All he did was rape that chapter 7 to the extent that the judge cut his counsel's fees from $50k to $32k. $32k to counsel and $5k to ch 7 Tee for adding no benefit to the estate and now the Ch 13 Tee wants to hand over money to them thatI brought in.By the way, the UST in this case punted and isn't taking any action against the Tee and his counsel for nefarious behaviorsince the Ch 13 Tee's behavior "is for the judge to decide". Oh okay. I'm ashamed to say that at 47 I'm just finding out that this is how things work. Well, PollyAnna no more. I get it now.-- Holly RoarkCertified Bankruptcy Specialist*and Sports Lawyer
holly@roarklawoffices.com**primary email address**
www.roarklawoffices.com
Central District of California & District of Idaho - Consumer Bankruptcy Attorney
1875 Century Park East, Suite 600 Los Angeles, CA 90067T (310) 553-2600; F (310) 553-2601
The post was migrated from Yahoo.