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Evidence required to avoid a lien under 522(f) years after discharge
Sam:
After a case is closed, the property is abandoned to the debtor. The estate, from that point, does not own an increase in value.
d
Dennis McGoldrick, 350 S. Crenshaw Bl., #A207B, Torrance, Ca 90503 310-328-1001-voice
> On Oct 22, 2015, at 11:15 AM, sam@southbaybk.com [cdcbaa] wrote:
>
> Just a thought here. We know that any increase in equity belongs to the estate until the case is closed. So, query, if you reopen a case to avoid a lien, isn't the new equity relevant? Since 522(a) indicates that the value of the property is generally determined as of the date of filing, the court has to use this valuation. However, the payoff amount is arguably not subject to this constraint. In other words, if the mortgage has been paid down enough, the judgment may no longer impair the exemption.
>
> As an aside, I've always been fearful of a reopening some very old cases for fear that the trustee may swoop in and claim an interest in the higher equity that has accrued - although I've never actually had it happen.
>
>
After a case is closed, the property is abandoned to the debtor. The estate, from that point, does not own an increase in value.dDennis McGoldrick, 350 S. Crenshaw Bl., #A207B, Torrance, Ca 90503 310-328-1001-voiceOn Oct 22, 2015, at 11:15 AM, sam@southbaybk.com [cdcbaa] <cdcbaa@yahoogroups.com> wrote:
Just a thought here. We know that any increase in equity belongs to the estate until the case is closed. So, query, if you reopen a case to avoid a lien, isn't the new equity relevant? Since 522(a) indicates that the value of the property is generally determined as of the date of filing, the court has to use this valuation. However, the payoff amount is arguably not subject to this constraint. In other words, if the mortgage has been paid down enough, the judgment may no longer impair the exemption.As an aside, I've always been fearful of a reopening some very old cases for fear that the trustee may swoop in and claim an interest in the higher equity that has accrued - although I've never actually had it happen.
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Mike:
If you don't like a form, you can volunteer to fix it. Contact the chief judge.
d
Dennis McGoldrick, 350 S. Crenshaw Bl., #A207B, Torrance, Ca 90503 310-328-1001-voice
> On Oct 22, 2015, at 7:44 AM, Michael Avanesian michael@avanesianlaw.com [cdcbaa] wrote:
>
> The 522(f) form motion needs to be revised. I personally would not use it.
>
>
>
>
> Sincerely,
>
> Michael Avanesian, Esq.
> Avanesian Law Firm
> 101 N. Brand Blvd. PH 1920
> Glendale, CA 91203
> Tel: 818.276.2477 | Fax: 818.208.4550
>
> Confidentiality: This electronic transmission and its contents are legally privileged and confidential information and intended solely for the use of the addressee. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution, copying or other use of this message and its contents is strictly prohibited. If you have received this transmission in error, please reply to us immediately and delete this message from your directory.
> IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS, please be advised that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used or relied upon, and cannot be used or relied upon, for the purpose of (i) avoiding penalties under the Internal Revenue Code, or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
>
>
>> On Thu, Oct 22, 2015 at 7:11 AM, Shannon Doyle sdoyle@ebankruptcyassistants.com [cdcbaa] wrote:
>>
>> I have filed these motions many times with no issues but recently I had one wherein Judge Donovans clerk rejected the order avoiding lien because the evidence provided in the motion included the value of the home as of the date of filing and the first mortgage payoff as of the date of filing. The clerk stated the evidence needs to show the first mortgage payoff as of the current date (which happened to be three years after the date of filing) . I followed the clerks instructions and the order was entered but this didnt make sense to me. Why do you skew the equity analysis in this way using the value from the date of filing and the payoff from three years later? Is this just a Judge Donovan thing or am I completely missing something here? I have the same fact pattern with Judge Kaufman do I use the first mortgage payoff as of the date of filing or as of today?
>>
>>
>>
>> Thank you!
>>
>>
>>
>>
>>
>>
>>
>> Shannon A. Doyle
>>
>> Attorney | Virtual Bankruptcy Assistant
>>
>> Phone: 855-378-4080
>>
>> Fax: 562-249-8435
>>
>>
>>
>>
>>
>>
>>
>>
>>
>
>
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If you don't like a form, you can volunteer to fix it. Contact the chief judge.dDennis McGoldrick, 350 S. Crenshaw Bl., #A207B, Torrance, Ca 90503 310-328-1001-voiceOn Oct 22, 2015, at 7:44 AM, Michael Avanesian michael@avanesianlaw.com [cdcbaa] <cdcbaa@yahoogroups.com> wrote:
The 522(f) form motion needs to be revised. I personally would not use it. Sincerely,Michael Avanesian, Esq. Avanesian Law Firm101 N. Brand Blvd. PH 1920Glendale, CA 91203Tel: 818.276.2477 | Fax: 818.208.4550Confidentiality: This electronic transmission and its contents are legally privileged and confidential information and intended solely for the use of the addressee. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution, copying or other use of this message and its contents is strictly prohibited. If you have received this transmission in error, please reply to us immediately and delete this message from your directory.IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS, please be advised that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used or relied upon, and cannot be used or relied upon, for the purpose of (i) avoiding penalties under the Internal Revenue Code, or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
On Thu, Oct 22, 2015 at 7:11 AM, Shannon Doyle sdoyle@ebankruptcyassistants.com [cdcbaa] <cdcbaa@yahoogroups.com> wrote:
I have filed these motions many times with no issues but recently I had one wherein Judge Donovans clerk rejected the order avoiding lien because the evidence provided in the motion included the value of the home as of the date of filing
and the first mortgage payoff as of the date of filing. The clerk stated the evidence needs to show the first mortgage payoff as of the
current date (which happened to be three years after the date of filing) . I followed the clerks instructions and the order was entered but this didnt make sense to me. Why do you skew the equity analysis in this way using the value from the date
of filing and the payoff from three years later? Is this just a Judge Donovan thing or am I completely missing something here? I have the same fact pattern with Judge Kaufman do I use the first mortgage payoff as of the date of filing or as of today?
Thank you!
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Shannon:
You are asking for the lien today to be voided, so today's balance makes sense.
d
Dennis McGoldrick, 350 S. Crenshaw Bl., #A207B, Torrance, Ca 90503 310-328-1001-voice
> On Oct 22, 2015, at 7:11 AM, Shannon Doyle sdoyle@ebankruptcyassistants.com [cdcbaa] wrote:
>
> I have filed these motions many times with no issues but recently I had one wherein Judge Donovans clerk rejected the order avoiding lien because the evidence provided in the motion included the value of the home as of the date of filing and the first mortgage payoff as of the date of filing. The clerk stated the evidence needs to show the first mortgage payoff as of the current date (which happened to be three years after the date of filing) . I followed the clerks instructions and the order was entered but this didnt make sense to me. Why do you skew the equity analysis in this way using the value from the date of filing and the payoff from three years later? Is this just a Judge Donovan thing or am I completely missing something here? I have the same fact pattern with Judge Kaufman do I use the first mortgage payoff as of the date of filing or as of today?
>
>
>
> Thank you!
>
>
>
>
>
>
>
> Shannon A. Doyle
>
> Attorney | Virtual Bankruptcy Assistant
>
> Phone: 855-378-4080
>
> Fax: 562-249-8435
>
>
>
>
>
>
>
>
>
>
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boundaryple-Mail-51509A05-52E3-47C1-B2E9-1362533A7117
You are asking for the lien today to be voided, so today's balance makes sense.
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> On Oct 22, 2015, at 11:15 AM, sam@southbaybk.com [cdcbaa] wrote:
>
> Just a thought here. We know that any increase in equity belongs to the estate until the case is closed. So, query, if you reopen a case to avoid a lien, isn't the new equity relevant? Since 522(a) indicates that the value of the property is generally determined as of the date of filing, the court has to use this valuation. However, the payoff amount is arguably not subject to this constraint. In other words, if the mortgage has been paid down enough, the judgment may no longer impair the exemption.
>
> As an aside, I've always been fearful of a reopening some very old cases for fear that the trustee may swoop in and claim an interest in the higher equity that has accrued - although I've never actually had it happen.
>
>
The post was migrated from Yahoo.
X-Original-Return-Path: Chris Gautschi
To: cdcbaa@yahoogroups.com
X-Yahoo-Newman-Id: groups-system
Compare Vietnam by
Sent from my iPhone
> On Oct 22, 2015, at 11:15 AM, sam@southbaybk.com [cdcbaa] wrote:
>
> Just a thought here. We know that any increase in equity belongs to the estate until the case is closed. So, query, if you reopen a case to avoid a lien, isn't the new equity relevant? Since 522(a) indicates that the value of the property is generally determined as of the date of filing, the court has to use this valuation. However, the payoff amount is arguably not subject to this constraint. In other words, if the mortgage has been paid down enough, the judgment may no longer impair the exemption.
>
> As an aside, I've always been fearful of a reopening some very old cases for fear that the trustee may swoop in and claim an interest in the higher equity that has accrued - although I've never actually had it happen.
>
>
The post was migrated from Yahoo.