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Motion to approve a lease
Sorry to bother you, but not sure who to contact about not being able to post questions on the listserv..though I am a paid member?
Thanks,
Stephen Stern, Esq.
(805) 543-LAWS
On Thursday, November 21, 2013 7:24 AM, cdcbaa wrote:
Mike,
I agree that section 364 is not included in the trustee's powers in a 13 (unless it is a business case and 1304 applies) but Judges have a lot of power under section 105. Here the facts state that the wife, over whom the court has no jurisdiction, signed a lease, not the debtor. This is a postpetition community debt, to which the trustee is now objecting. a contract signed by a debtor is contingent, until approved by the court.
In this circumstance, the court might well use 105 to solve the problem.
As a result, 105 may be the answer, not 363 or 364.
d
Dennis McGoldrick, 350 S. Crenshaw Bl., #A207B, Torrance, Ca 90503 310-328-1001-voice
On Nov 14, 2013, at 12:20 AM, Michael Avanesian wrote:
>I didn't reply because I'm new but I personally don't think a chapter 13 debtor can use section 364 -- ever!1303 is limited to a few 363 motions.
>
>
>Speaking of which, even if the debtor could,I don't consider entering into a lease something one does under 364. I would personally file the motion under 363 and rule 6004.
>
>
>Just my opinion.
>
>
>-Michael Avanesian
>
>On Wednesday, November 13, 2013, cdcbaa wrote:
>
>
>>
>>Bert:
>>
>>
>>Please don't think that if you don't get an immediate answer, that the group is not taking your question well. You asked a question that requires anyone who answers to get out a rule book, read rule 4001c, and then reply.
>>
>>
>>I didn't have a rule book handy when I first saw your question and 4001 is a pain in the arse. Take a look at 4001(d), you are supposed to file a motion and notice all creditors, WHENEVER you are going to pay adequate protection to a creditor. Think about it, how many times have you seen that motion, and if we all followed that rule all of the time, that is all you would see.
>>
>>
>>4001(c) isn't much different, but you are correct, you have to follow 4001(c).
>>
>>
>>The motion that you have to file is a nunc pro tunc motion (now for then). You name the motion something like this:
>>
>>
>>Motion to approve the lease of a vehicle Nunc Pro Tunc. Your judge will know the phrase.
>>
>>
>>Now for then motions are a little more difficult, as you have to explain to the court why you didn't file the motion prospectively (i.e. before the lease was signed.)
>>
>>
>>Ok so the parts of a motion are: (and you can make up your own motion)
>>
>>
>>1-notice
>>2-motion
>>3-declaration
>>4-points and authorities
>>
>>
>>There is a form for notice.
>>The motion has to follow the standard form:
>>1 jurisdiction,
>>2 request for an order, with sufficient facts to get a yes vote from the judge, don't forget a prayer :Wherefore the debtor prays the court approve the lease of the vehicle nunc pro tunc.
>>
>>
>>3 declaration - here in the nunc pro tunc request you will have to say the wife was under the impression that she was not bk, didn't know her income was property of the estate, or some such facts (make sure you are factual, cannot make up facts...) then go through 364 and why the lease should be approved.
>>
>>
>>4 Points and authorities,
>>
>>
>>Court can enter an order approving the lease "now for then"
>>
>>
>>I suggest you do some research on the phrase nunc pro tunc, so you can find all of the criteria for an order approving something that has already happened.
>>
>>
>>good luck
>>
>>
>>d
>>
>>Dennis McGoldrick, 350 S. Crenshaw Bl., #A207B, Torrance, Ca 90503 310-328-1001-voice
>>
>>On Nov 13, 2013, at 4:05 PM, wrote:
>>
>>
>>
>>>Has anyone done a similar motion? If you think this is not worthy ofthe group listserve (have to wonder when I get no replys ??) please replyoffline to bertbrio@gmail.com THANKS!
>>>
>>>
>>>---In cdcbaa@yahoogroups.com, wrote:
>>>
>>>
>>>I have a Chapter 13 case where the Debtor husband is filing
as an individual (wife not filing). He was married only a few months
before filing. Shortly after filing his wife went a leased a new car. He
did not sign on the lease. Trustee Curry is now objecting to the new debt
incurred. The form motion for authority to incur new debt does not seem
to apply. The Judge is Zurzolo. It seems that Rule 4001 (c)
e
best to use? Any ideas would be appreciated!
>>>
>>>
>
>--
>
>
>Sincerely,
>Michael Avanesian
>Law Offices of David A. Tilem
>www.tilemlaw.com
>818-507-6000
>
The post was migrated from Yahoo.
Mike,
I agree that section 364 is not included in the trustee's powers in a 13 (unless it is a business case and 1304 applies) but Judges have a lot of power under section 105. Here the facts state that the wife, over whom the court has no jurisdiction, signed a lease, not the debtor. This is a postpetition community debt, to which the trustee is now objecting. The problem is a jurisdictional question. In the ordinary course, a contract signed by a debtor is contingent, until approved by the court. Here the debtor did not sign, so the wife may well be liable anyway.
In this circumstance, the court might well use 105 to solve the problem.
As a result, 105 may be the answer, not 363 or 364.
d
Dennis McGoldrick, 350 S. Crenshaw Bl., #A207B, Torrance, Ca 90503 310-328-1001-voice
> On Nov 14, 2013, at 12:20 AM, Michael Avanesian wrote:
>
> I didn't reply because I'm new but I personally don't think a chapter 13 debtor can use section 364 -- ever! 1303 is limited to a few 363 motions.
>
>
> Speaking of which, even if the debtor could, I don't consider entering into a lease something one does under 364. I would personally file the motion under 363 and rule 6004.
>
> Just my opinion.
>
> -Michael Avanesian
>
>> On Wednesday, November 13, 2013, cdcbaa wrote:
>>
>> Bert:
>>
>> Please don't think that if you don't get an immediate answer, that the group is not taking your question well. You asked a question that requires anyone who answers to get out a rule book, read rule 4001c, and then reply.
>>
>> I didn't have a rule book handy when I first saw your question and 4001 is a pain in the arse. Take a look at 4001(d), you are supposed to file a motion and notice all creditors, WHENEVER you are going to pay adequate protection to a creditor. Think about it, how many times have you seen that motion, and if we all followed that rule all of the time, that is all you would see.
>>
>> 4001(c) isn't much different, but you are correct, you have to follow 4001(c).
>>
>> The motion that you have to file is a nunc pro tunc motion (now for then). You name the motion something like this:
>>
>> Motion to approve the lease of a vehicle Nunc Pro Tunc. Your judge will know the phrase.
>>
>> Now for then motions are a little more difficult, as you have to explain to the court why you didn't file the motion prospectively (i.e. before the lease was signed.)
>>
>> Ok so the parts of a motion are: (and you can make up your own motion)
>>
>> 1-notice
>> 2-motion
>> 3-declaration
>> 4-points and authorities
>>
>> There is a form for notice.
>> The motion has to follow the standard form:
>> 1 jurisdiction,
>> 2 request for an order, with sufficient facts to get a yes vote from the judge, don't forget a prayer :Wherefore the debtor prays the court approve the lease of the vehicle nunc pro tunc.
>>
>> 3 declaration - here in the nunc pro tunc request you will have to say the wife was under the impression that she was not bk, didn't know her income was property of the estate, or some such facts (make sure you are factual, cannot make up facts...) then go through 364 and why the lease should be approved.
>>
>> 4 Points and authorities,
>>
>> Court can enter an order approving the lease "now for then"
>>
>> I suggest you do some research on the phrase nunc pro tunc, so you can find all of the criteria for an order approving something that has already happened.
>>
>> good luck
>>
>> d
>>
>> Dennis McGoldrick, 350 S. Crenshaw Bl., #A207B, Torrance, Ca 90503 310-328-1001-voice
>>
>>
>>> On Nov 13, 2013, at 4:05 PM, wrote:
>>>
>>>
>>> Has anyone done a similar motion? If you think this is not worthy of the group listserve (have to wonder when I get no replys ??) please reply offline to bertbrio@gmail.com THANKS!
>>>
>>>
>>>
>>> ---In cdcbaa@yahoogroups.com, wrote:
>>>
>>> I have a Chapter 13 case where the Debtor husband is filing as an individual (wife not filing). He was married only a few months before filing. Shortly after filing his wife went a leased a new car. He did not sign on the lease. Trustee Curry is now objecting to the new debt incurred. The form motion for authority to incur new debt does not seem to apply. The Judge is Zurzolo. It seems that Rule 4001 (c) applies. However, I am not sure if Code section 364 would be the best to use? Any ideas would be appreciated!
>
>
> --
>
> Sincerely,
> Michael Avanesian
> Law Offices of David A. Tilem
> www.tilemlaw.com
> 818-507-6000
>
>
The post was migrated from Yahoo.
I didn't reply because I'm new but I personally don't think a chapter 13
debtor can use section 364 -- ever! 1303 is limited to a few 363 motions.
Speaking of which, even if the debtor could, I don't consider entering into
a lease something one does under 364. I would personally file the motion
under 363 and rule 6004.
Just my opinion.
-Michael Avanesian
On Wednesday, November 13, 2013, cdcbaa wrote:
>
>
> Bert:
>
> Please don't think that if you don't get an immediate answer, that the
> group is not taking your question well. You asked a question that requires
> anyone who answers to get out a rule book, read rule 4001c, and then reply.
>
> I didn't have a rule book handy when I first saw your question and 4001 is
> a pain in the arse. Take a look at 4001(d), you are supposed to file a
> motion and notice all creditors, WHENEVER you are going to pay adequate
> protection to a creditor. Think about it, how many times have you seen
> that motion, and if we all followed that rule all of the time, that is all
> you would see.
>
> 4001(c) isn't much different, but you are correct, you have to follow
> 4001(c).
>
> The motion that you have to file is a nunc pro tunc motion (now for then).
> You name the motion something like this:
>
> Motion to approve the lease of a vehicle Nunc Pro Tunc. Your judge will
> know the phrase.
>
> Now for then motions are a little more difficult, as you have to explain
> to the court why you didn't file the motion prospectively (i.e. before the
> lease was signed.)
>
> Ok so the parts of a motion are: (and you can make up your own motion)
>
> 1-notice
> 2-motion
> 3-declaration
> 4-points and authorities
>
> There is a form for notice.
> The motion has to follow the standard form:
> 1 jurisdiction,
> 2 request for an order, with sufficient facts to get a yes vote from the
> judge, don't forget a prayer :Wherefore the debtor prays the court approve
> the lease of the vehicle nunc pro tunc.
>
> 3 declaration - here in the nunc pro tunc request you will have to say the
> wife was under the impression that she was not bk, didn't know her income
> was property of the estate, or some such facts (make sure you are factual,
> cannot make up facts...) then go through 364 and why the lease should be
> approved.
>
> 4 Points and authorities,
>
> Court can enter an order approving the lease "now for then"
>
> I suggest you do some research on the phrase nunc pro tunc, so you can
> find all of the criteria for an order approving something that has already
> happened.
>
> good luck
>
> d
>
> Dennis McGoldrick, 350 S. Crenshaw Bl., #A207B, Torrance, Ca 90503
> 310-328-1001-voice
> [image: cid:part1.03050307.05030101@bklaw.com]
>
> On Nov 13, 2013, at 4:05 PM, > wrote:
>
>
>
> Has anyone done a similar motion? If you think this is not worthy of the
> group listserve (have to wonder when I get no replys ??) please
> reply offline to bertbrio@gmail.com 'bertbrio@gmail.com');> THANKS!
>
>
> ---In cdcbaa@yahoogroups.com 'cdcbaa@yahoogroups.com');>, wrote:
>
> I have a Chapter 13 case where the Debtor husband is filing as an
> individual (wife not filing). He was married only a few months before
> filing. Shortly after filing his wife went a leased a new car. He did not
> sign on the lease. Trustee Curry is now objecting to the new debt
> incurred. The form motion for authority to incur new debt does not seem to
> apply. The Judge is Zurzolo. It seems that Rule 4001 (c) applies.
> However, I am not sure if Code section 364 would be the best to use? Any
> ideas would be appreciated!
>
>
>
Sincerely,
Michael Avanesian
Law Offices of David A. Tilem
www.tilemlaw.com
818-507-6000
The post was migrated from Yahoo.
Bert:
Please don't think that if you don't get an immediate answer, that the group is not taking your question well. You asked a question that requires anyone who answers to get out a rule book, read rule 4001c, and then reply.
I didn't have a rule book handy when I first saw your question and 4001 is a pain in the arse. Take a look at 4001(d), you are supposed to file a motion and notice all creditors, WHENEVER you are going to pay adequate protection to a creditor. Think about it, how many times have you seen that motion, and if we all followed that rule all of the time, that is all you would see.
4001(c) isn't much different, but you are correct, you have to follow 4001(c).
The motion that you have to file is a nunc pro tunc motion (now for then). You name the motion something like this:
Motion to approve the lease of a vehicle Nunc Pro Tunc. Your judge will know the phrase.
Now for then motions are a little more difficult, as you have to explain to the court why you didn't file the motion prospectively (i.e. before the lease was signed.)
Ok so the parts of a motion are: (and you can make up your own motion)
1-notice
2-motion
3-declaration
4-points and authorities
There is a form for notice.
The motion has to follow the standard form:
1 jurisdiction,
2 request for an order, with sufficient facts to get a yes vote from the judge, don't forget a prayer :Wherefore the debtor prays the court approve the lease of the vehicle nunc pro tunc.
3 declaration - here in the nunc pro tunc request you will have to say the wife was under the impression that she was not bk, didn't know her income was property of the estate, or some such facts (make sure you are factual, cannot make up facts...) then go through 364 and why the lease should be approved.
4 Points and authorities,
Court can enter an order approving the lease "now for then"
I suggest you do some research on the phrase nunc pro tunc, so you can find all of the criteria for an order approving something that has already happened.
good luck
d
Dennis McGoldrick, 350 S. Crenshaw Bl., #A207B, Torrance, Ca 90503 310-328-1001-voice
> On Nov 13, 2013, at 4:05 PM, wrote:
>
> Has anyone done a similar motion? If you think this is not worthy of the group listserve (have to wonder when I get no replys ??) please reply offline to bertbrio@gmail.com THANKS!
>
>
>
> ---In cdcbaa@yahoogroups.com, wrote:
>
> I have a Chapter 13 case where the Debtor husband is filing as an individual (wife not filing). He was married only a few months before filing. Shortly after filing his wife went a leased a new car. He did not sign on the lease. Trustee Curry is now objecting to the new debt incurred. The form motion for authority to incur new debt does not seem to apply. The Judge is Zurzolo. It seems that Rule 4001 (c) applies. However, I am not sure if Code section 364 would be the best to use? Any ideas would be appreciated!
>
>
On Nov 13, 2013, at 4:05 PM, <bertbri@ymail.com> wrote:
Has anyone done a similar motion? If you think this is not worthy of the group listserve (have to wonder when I get no replys ??) please reply offline to bertbrio@gmail.com THANKS! ---In cdcbaa@yahoogroups.com, <bertbri@...> wrote:
I have a Chapter 13 case where the Debtor husband is filing
as an individual (wife not filing). He was married only a few months
before filing. Shortly after filing his wife went a leased a new car. He
did not sign on the lease. Trustee Curry is now objecting to the new debt
incurred. The form motion for authority to incur new debt does not seem
to apply. The Judge is Zurzolo. It seems that Rule 4001 (c)
applies. However, I am not sure if Code section 364 would be the
best to use? Any ideas would be appreciated!
The post was migrated from Yahoo.