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Great result.Congratulations
A summary of the issues presented in this case would makea nice articleforcdcbaa's next newsletter.Peter M. Lively, J.D., M.B.A.
Law Office of Peter M. Lively * Personal Financial Law Center I
11268 Washington Boulevard, Suite 203, Culver City, California 90230-4647
Telephone: (310) 391-2400* Toll Free: (800) 307-3328 * Fax: (310) 391-2462
On Thursday, November 10, 2016 8:17 PM, "Holly Roark hollyroark22@gmail.com [cdcbaa]" wrote:
FYI - Trustee decided not to appeal after all.
Holly RoarkCertified Bankruptcy Specialist*
and Sports Lawyer
holly@roarklawoffices.com**primary email address**www.roarklawoffices.comCentral District of California & District of Idaho - Consumer Bankruptcy Attorney1875 Century Park East, Suite 600 Los Angeles, CA 90067T (310) 553-2600; F (310) 553-2601*By State Bar of California Board of LegalSpecialization
On Wed, Nov 2, 2016 at 6:28 PM, Holly Roark wrote:
Attached is thetentative ruling (which was adopted by the Court today) ordering the Chapter 13 Trustee to comply with the terms of the Debtor's confirmed Chapter 13 Plan which states in asterisked language that Debtor's counsel's admin fees (including those pursuant to supplemental fee applications) and fees of Debtor's special counsel are paid prior to other admins in the case. Trustee made oralmotion to stay pending appeal. Court required Trustee to post a bond equal tomy fees and special counsels' fees in the sum of approx. $40K by 11//9/16 or nostay. Where do the bond funds come from? Trustee's pocket?This is beyond allreason and is outright vindictive. I am attaching here the supplemental briefsfiled in this case (not all the other pleadings) because they are more easily digested for the narrow issuesat hand. They make reference to sections of other briefs filed that set forth inmore detail the relevant law. Basically, the Trustee is arguing that Debtorcannot alter priority of payment within an administrative class even withconspicuouslanguage in the plan (that no one objected to 2 years ago and where the Trusteehas been COMPLYING WITH SAID TERMS under that asterisked-and-different-font- language for almost 2 years.) Even the court found the Trustee's argumentto elevate form over substance. as to the alteration of language ona mandatory form as to THIS case and under the specific facts of this case.Nevertheless, that was not enough for the Trustee. The Trustee fears thateveryone will start burying language in the Plan that the Trustee won't see. Asthe Court pointed out, the additional language in this plan wasconspicuous.Well, folks, tell me, do you think we will get a good appellate ruling out of this? I mean, thelanguage was conspicuous and complied with the local rules for adding languageto a mandatory form; the affected parties never objected; the Trustee has beencomplying with the language for almost 2 years.I understand there iscontrolling case law that says I can't get fees for fighting for my fees, butwhat about if I am actually fighting to compel the trustee to comply with the confirmed plan, (or, also fighting for the fees of the special counsel of theDebtor?) We are not fighting about my RIGHT to be paid; the fee orders were granted already. We are fighting about my asterisked terms in the Plan which say that I and all of Debtor's special counsel get paid before other admin claimants.
Note: this motion was originally styled as a motion for contempt against the Trustee back in June of this year (2016) for failing and refusing to comply with the terms of the Plan. The contempt was denied without prejudice on procedural grounds but the Court stated that I would have a high hurdle to show the Trustee is acting in bad faith and that he assumes the Trustee is acting in good faith in every case. I wonder if he would agree now? Today he said the Trustee seems to be "picking and choosing" added plan language that he likes and doesn't like. (After all, I had to "add" language to the Plan for the step up payments since the form doesn't have room).
(As to special counsel's fees: we hired special counsel in this Chapter 13 to represent the debtor in 2 probateactions, which he did. He's now just waiting to get paid per the Plan. All the briefs Ifiled reference both my fees and his. He has not made any appearance on the matters, but he would.)If the trustee does post the bond by11/9/16, and files his appeal, can I get fees for fighting this appeal, atleast in part?
Interested to hear all your thoughts on this matter.
and Sports Lawyer
holly@roarklawoffices.com** primary email address**www.roarklawoffices.comCentral District of California & District of Idaho - Consumer Bankruptcy Attorney1875 Century Park East, Suite 600 Los Angeles, CA 90067T (310) 553-2600; F (310) 553-2601*By State Bar of California Board of LegalSpecialization
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