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Individual Chapter 11/Chapter 18 question
D,
I don't disagree with what you've said, but what I was proposing is a
little different. My focus was on 1123(b)(5) and not exemptions. I was
saying that if it makes business sense for your client to move out, then
you have them move out before filing for bankruptcy. It makes business
sense if they are able to rent a new place for less money then they would
receive renting out their former primary residence. The Debtor would not be
moving back in unless and until their economic situation changes. The
foregoing is something I've made up and I don't have case law to back up
that actual scenario. The determination of residence for purposes of 1123
does have case law and what follows is only 1 case dealing with it.
I don't think the homestead cases apply (although I have not read many of
those), but something like ABDELGADIR (on the must read list), would apply.
See
The post was migrated from Yahoo.
Ladies and Gents:
The residence of the debtor is a fact, found by the court. If you tell someone to move out, a court can still find the property to be a residence. If you research homestead cases you will find a lot of cases saying that a person can record a homestead move out for some time, and still claim the property as a homestead. Why? Because the debtor intended the property to be the debtor's residence, a requirement to be a homestead. The cases require a showing the debtor intended the property to remain a homestead, e.g. move out for a remodel, intending to move back.
If you tell someone to move out, so they can strip liens, and then move back in, you may be suborning perjury.
Be careful out there.
d
Sent from my iPad
On May 29, 2013, at 11:34 AM, Michael Avanesian wrote:
> I have two side suggestions.
>
> The first is, (in addition to all the things Gio mentioned) you can have your client move out of his home. That allows you to bifurcate the second (careful about the pitfalls associated with this approach, SARE status etc). Too bad they are current on their first because sometimes all those arrears, penalties, and unpaid property taxes add up and suddenly the second is completely undersecured. Also keep in mind that in an 11, a creditor that is more than just nominally secured by property has a right to an 1111(b) election.
>
> My other suggestion, which might be the better choice, is to first pursue a loan mod. There are billions of dollars out there for these mods, why not have your client benefit.
>
>
> Sincerely,
> Michael Avanesian
> Attorney and Counselor at Law
> 818-817-1725
>
>
> On Wed, May 29, 2013 at 10:55 AM, Dennis McG wrote:
>>
>> Frank:
>>
>>
>> Do you want to do a chapter 18 to avoid the absolute priority rule?
>>
>> If so, that is probably bad faith,
>>
>> But chatting with a US Trustee attorney and am told the ust does not object to ch 18's.
>>
>> d
>>
>>
>> On Tuesday, May 28, 2013, FrankX19 wrote:
>>>
>>> I have a potential client that is current on his first mortgage but a couple years behind on this 2nd mortgage. The 2nd mortgage is not wholly unsecured, so we can't avoid it. He wants to keep the property and reorganize on the 2nd mortgage.
>>>
>>> He has quite a bit of unsecured debt that is in default (mainly credit cards). Is there any downside to doing a Chapter 18 (ie. Chapter 7 to wipe out unsecured debt and then a chapter 11 to reorganize on 2nd mortgage)?
>>>
>>> Thanks in advance.
>>>
>>> Frank
>>>
>>>
>>>
>>> Frank X. Ruggier
>>> Price Law Group, APC
>>> 15760 Ventura Blvd., Suite 1100
>>> Encino, CA 91436
>>> Direct: (818) 205-2406
>>> Fax: (818) 907-2106
>>> www.pricelawgroup.com
>>>
>
>
The post was migrated from Yahoo.
I have two side suggestions.
The first is, (in addition to all the things Gio mentioned) you can have
your client move out of his home. That allows you to bifurcate the second
(careful about the pitfalls associated with this approach, SARE status
etc). Too bad they are current on their first because sometimes all those
arrears, penalties, and unpaid property taxes add up and suddenly the
second is completely undersecured. Also keep in mind that in an 11, a
creditor that is more than just nominally secured by property has a right
to an 1111(b) election.
My other suggestion, which might be the better choice, is to first pursue a
loan mod. There are billions of dollars out there for these mods, why not
have your client benefit.
Sincerely,
Michael Avanesian
Attorney and Counselor at Law
818-817-1725
On Wed, May 29, 2013 at 10:55 AM, Dennis McG wrote:
> **
>
>
> Frank:
>
> Do you want to do a chapter 18 to avoid the absolute priority rule?
>
> If so, that is probably bad faith,
>
> But chatting with a US Trustee attorney and am told the ust does not
> object to ch 18's.
>
> d
>
>
> On Tuesday, May 28, 2013, FrankX19 wrote:
>
>> **
>>
>>
>> I have a potential client that is current on his first mortgage but a
>> couple years behind on this 2nd mortgage. The 2nd mortgage is not wholly
>> unsecured, so we can't avoid it. He wants to keep the property and
>> reorganize on the 2nd mortgage.
>>
>> He has quite a bit of unsecured debt that is in default (mainly credit
>> cards). Is there any downside to doing a Chapter 18 (ie. Chapter 7 to wipe
>> out unsecured debt and then a chapter 11 to reorganize on 2nd mortgage)?
>>
>> Thanks in advance.
>>
>> Frank
>>
>>
>>
>> Frank X. Ruggier
>> Price Law Group, APC
>> 15760 Ventura Blvd., Suite 1100
>> Encino, CA 91436
>> Direct: (818) 205-2406
>> Fax: (818) 907-2106
>> www.pricelawgroup.com
>>
>>
>
I have two side suggestions. The first is, (in addition to all the things Gio mentioned) you can have your client move out of his home. That allows you to bifurcate the second (careful about the pitfalls associated with this approach, SARE status etc). Too bad they are current on their first because sometimes all those arrears,penalties, and unpaid property taxesadd up and suddenly the second is completely undersecured. Also keep in mind that in an 11, a creditor that is more than just nominally secured by property has a right to an 1111(b) election.
My other suggestion, which might be thebetter choice, is to first pursue a loan mod. There are billions of dollars out there for these mods, why not have your client benefit.
Sincerely, Michael AvanesianAttorney and Counselor at Law818-817-1725
On Wed, May 29, 2013 at 10:55 AM, Dennis McG <cdcbaamailbox@gmail.com> wrote:
Frank:Do you want to do a chapter 18 to avoid the absolute priority rule?If so, that is probably bad faith,But chatting with a US Trustee attorney and am told the ust does not object to ch 18's.
dOn Tuesday, May 28, 2013, FrankX19 wrote:
The post was migrated from Yahoo.
Frank:
Do you want to do a chapter 18 to avoid the absolute priority rule?
If so, that is probably bad faith,
But chatting with a US Trustee attorney and am told the ust does not object
to ch 18's.
d
On Tuesday, May 28, 2013, FrankX19 wrote:
> **
>
>
> I have a potential client that is current on his first mortgage but a
> couple years behind on this 2nd mortgage. The 2nd mortgage is not wholly
> unsecured, so we can't avoid it. He wants to keep the property and
> reorganize on the 2nd mortgage.
>
> He has quite a bit of unsecured debt that is in default (mainly credit
> cards). Is there any downside to doing a Chapter 18 (ie. Chapter 7 to wipe
> out unsecured debt and then a chapter 11 to reorganize on 2nd mortgage)?
>
> Thanks in advance.
>
> Frank
>
>
>
> Frank X. Ruggier
> Price Law Group, APC
> 15760 Ventura Blvd., Suite 1100
> Encino, CA 91436
> Direct: (818) 205-2406
> Fax: (818) 907-2106
> www.pricelawgroup.com
>
>
>
Frank:Do you want to do a chapter 18 to avoid the absolute priority rule?If so, that is probably bad faith,But chatting with a US Trustee attorney and am told the ust does not object to ch 18's.
dOn Tuesday, May 28, 2013, FrankX19 wrote:
I have a potential client that is current on his first mortgage but a couple years behind on this 2nd mortgage. The 2nd mortgage is not wholly unsecured, so we can't avoid it. He wants to keep the property and reorganize on the 2nd mortgage.
He has quite a bit of unsecured debt that is in default (mainly credit cards). Is there any downside to doing a Chapter 18 (ie. Chapter 7 to wipe out unsecured debt and then a chapter 11 to reorganize on 2nd mortgage)?
Thanks in advance.Frank
Frank
X. Ruggier
Price Law Group, APC
15760 Ventura Blvd., Suite 1100
Encino, CA 91436
Direct: (818) 205-2406
Fax: (818) 907-2106
www.pricelawgroup.com
The post was migrated from Yahoo.
If you file a 7 to get rid of the unsecured and negotiate with the creditor on the 2nd you may not need to file a costly Ch 11.
Law Office of Catherine Christiansen
17011 Beach Blvd. Ste 900, Huntington Beach, CA 92647
Tel: (714) 375-6651 Fax: (562) 490-8572
attorneychristiansen@gmail.com
________________________________
To: cdcbaa@yahoogroups.com
Sent: Tuesday, May 28, 2013 11:47 AM
Subject: [cdcbaa] Individual Chapter 11/Chapter 18 question
I have a potential client that is current on his first mortgage but a couple years behind on this 2nd mortgage. The 2nd mortgage is not wholly unsecured, so we can't avoid it. He wants to keep the property and reorganize on the 2nd mortgage.
He has quite a bit of unsecured debt that is in default (mainly credit cards). Is there any downside to doing a Chapter 18 (ie. Chapter 7 to wipe out unsecured debt and then a chapter 11 to reorganize on 2nd mortgage)?
Thanks in advance.
Frank
Frank
X. Ruggier
Price Law Group, APC
15760 Ventura Blvd., Suite 1100
Encino, CA 91436
Direct: (818) 205-2406
Fax: (818) 907-2106
www.pricelawgroup.com
The post was migrated from Yahoo.
Who is going to vote to accept your plan if you eliminate all your
unsecureds? Do you have any secured creditor who can be classified in its
own class and therefore carry its class with its vote so that you can get
the minimum decisive class vote to cramdown? Note that most creditors do
not bother to vote and others simply refuse to vote seemingly on principle.
How much is the debtor's disposable income in the next 5 years? If not
much, perhaps you don't need to eliminate the unsecureds through a 7 first
and simply give them some distribution in the 11. You ought not to take an
11 unless you know it has a chance of confirmation (or make it so).
Giovanni Orantes, Esq.
Certified Bankruptcy Specialist*
Orantes Law Firm, P.C.
3435 Wilshire Blvd. Suite 2920
Los Angeles, CA 90010
Tel: (213) 389-4362
Fax: (877) 789-5776
e-mail: go@gobklaw.com
website: www.gobklaw.com
*Board Certified - Business Bankruptcy Law - American Board of Certification
*Board Certified - Consumer Bankruptcy Law - American Board of Certification
Who is going to vote to accept your plan if you eliminate all your unsecureds? Do you have any secured creditor who can be classified in its own class and therefore carry its class with its vote so that you can get the minimum decisive class vote to cramdown? Note that most creditors do not bother to vote and others simply refuse to vote seemingly on principle. How much is the debtor's disposable income in the next 5 years? If not much, perhaps you don't need to eliminate the unsecureds through a 7 first and simply give them some distribution in the 11. You ought not to take an 11 unless you know it has a chance of confirmation-- Giovanni Orantes, Esq.Certified Bankruptcy Specialist* Orantes Law Firm, P.C.3435 Wilshire Blvd. Suite 2920Los Angeles, CA 90010Tel: (213) 389-4362
Fax: (877) 789-5776e-mail: go@gobklaw.comwebsite: www.gobklaw.com*Board Certified - Business Bankruptcy Law - American Board of Certification
*Board Certified - Consumer Bankruptcy Law - American Board of Certification
The post was migrated from Yahoo.
I have a potential client that is current on his first mortgage but a
couple years behind on this 2nd mortgage. The 2nd mortgage is not
wholly unsecured, so we can't avoid it. He wants to keep the property
and reorganize on the 2nd mortgage.
He has quite a bit of unsecured debt that is in default (mainly credit
cards). Is there any downside to doing a Chapter 18 (ie. Chapter 7 to
wipe out unsecured debt and then a chapter 11 to reorganize on 2nd
mortgage)?
Thanks in advance.
Frank
Frank X. Ruggier
Price Law Group, APC
15760 Ventura Blvd., Suite 1100
Encino, CA 91436
Direct: (818) 205-2406
Fax: (818) 907-2106
www.pricelawgroup.com
I have a potential client that is current on his first mortgage but a couple years behind on this 2nd mortgage. The 2nd mortgage is not wholly unsecured, so we can't avoid it. He wants to keep the property and reorganize on the 2nd mortgage. He has quite a bit of unsecured debt that is in default (mainly credit cards). Is there any downside to doing a Chapter 18 (ie. Chapter 7 to wipe out unsecured debt and then a chapter 11 to reorganize on 2nd mortgage)?Thanks in advance.Frank
Frank
X. Ruggier
Price Law Group, APC
15760 Ventura Blvd., Suite 1100
Encino, CA 91436
Direct: (818) 205-2406
Fax: (818) 907-2106
www.pricelawgroup.com
The post was migrated from Yahoo.