.jpg)
Chapter 20 question
Yes, but like Peter, our chapter 20 lien strip was unopposed and granted by default.
We have never had a contested Lien avoidance adversary where opposing counsel raised the chapter 20 issue.
If nobody opposes the relief requested (lien avoided upon completion of plan) VZ will grant the motion for default judgment.
-Dave
Sent from my iPhone
On May 14, 2013, at 2:41 PM, "Peter M. Lively" wrote:
> Yes, but it was accomplished by stipulation with the second lien holder.
>
> 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
>
> To: cdcbaa@yahoogroups.com
> Sent: Tuesday, May 14, 2013 2:31 PM
> Subject: [cdcbaa] Re: Chapter 20 question
>
> Hello, seems no one replied about Judge Z and chapter 20. Has no one on the list done a chapter 20 before Judge Z?
>
> d
>
> --- In mailto:cdcbaa%40yahoogroups.com, "Larry Webb" wrote:
> >
> > Mark,
> >
> >
> >
> > I have reviewed a lot of ch20 cases. In several the ECF assigned judge was
> > replaced with the prior ch7 judge once the humans got involved.
> >
> >
> >
> >
> >
> >
> >
> > Best regards
> >
> >
> >
> >
> >
> > Larry Webb
> >
> > State Bar of California 229344
> >
> > Central District California
> >
> > "A Debt Relief Agency"
> >
> > Check out my Blog
> >
> >
> >
> >
> >
> > Larry@webbklaw. com
> >
> > Law Offices of Larry Webb
> >
> > 484 Mobil Ste 43
> >
> > Camarillo Ca 93010
> >
> >
> >
> > P 805.987.1400
> >
> > F 805.987.2866
> >
> > C 805.750.2150
> >
> >
> >
> >
> >
> >
> >
ps.com] On Behalf Of
> > Mark J. Markus
> > Sent: Tuesday, April 23, 2013 2:53 PM
> > To: mailto:cdcbaa%40yahoogroups.com
> > Subject: Re: [cdcbaa] Chapter 20 question
> >
> >
> >
> >
> >
> > Nick,
> >
> > I have not had any such experience with Judge Zurzolo, but a few quick
> > comments pop to mind:
> >
> > 1. I used to believe as you did that cases get assigned to the same judge
> > when possible, but I now think that with the advent of ECF the Judge gets
> > signed automatically and randomly, so I do not believe having the prior case
> > with one judge makes it any more likely you will get him/her.
> >
> > 2. I think the good faith issue pointed out by Jeff Smith is going to be
> > more of the issue than lack of in personam liability. If you open it up so
> > that payments should be made on the stripped off portion of a formerly
> > secured debt, you'd have to do the same for all unsecured debts from the
> > prior case, and that doesn't make any sense when you review the definition
> > of "claim" in section 101 which talks in terms of a "right to payment".
> > Without in personam rights and in rem rights (post strip), there are no
> > rights to be paid and thus, they have no claim in the estate.
> >
> >
> > *************************
> > Mark J. Markus
> > Law Office of Mark J. Markus
> > 11684 Ventura Blvd. PMB #403
> > Studio City, CA 91604-2652
> > (818)509-1173 (818)509-1460 (fax)
> > web: http://www.bklaw.com/
> > Certified Bankruptcy Law Specialist--The State Bar of California Board of
> > Legal Specialization
> > This Firm is a Qualified Federal Debt Relief Agency (see what this means at
> > http://www.bklaw.com/bankruptcy-blog/20 ... definition
> > /)
> > ________________________________________________
> > NOTICE: This Electronic Message contains information from the law office of
> > Mark J. Markus that may be privileged. The information is intended for the
> > use of the addressee only. If you are not the addressee, note that any
> > disclosure, copy, distribution or use of the contents of this message is
> > prohibited.
> > IRS CIRCULAR 230 NOTICE: To ensure compliance with requirements imposed by
> > the IRS, we inform you that any U.S. tax advice contained in this
> > communication (or in any attachment) is not intended or written to be used,
> > and cannot be used, 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 in this communication.
> >
> > On 4/23/2013 12:18 PM, Nicholas Gebelt wrote:
> >
> > Dear Mark,
> >
> >
> >
> > I have read with interest your Chapter 20 thread. I have clients > > married couple for whom I did a Chapter 13. They received their discharge
> > in April 2011. As a result, any in personam liability on their two
> > mortgages was discharged.
> >
> >
> >
> > When I filed their bankruptcy papers their home value made a Lam motion
> > impossible. However, the years have not been kind to the condo market > > just had the property appraised and there is a lot of wiggle room for a lien
> > strip so they are in a great position to strip off the second. They have
> > an arrearage on the first, so there is a good reason to file the new Chapter
> > 13 other than doing the lien strip. I am planning to strip off the second
> > and then file an objection to any proof of claim the holder of the second
> > files based on the fact that the in personam liability was extinguished in
> > the prior bankruptcy.
> >
> >
> >
> > Given that the previous case was a Chapter 13, I don't have your
> > 1328(f)(1) problem, and 1328(f)(2) is obviously not a problem either.
> > However, since Judge Zurzolo was the judge in the previous Chapter 13, my
> > experiences lead me suspect that he will be the judge in the one I will be
> > filing sometime in the next couple of weeks. I know that his wont is to
> > require an adversary proceeding for a 506 lien strip action. My concern
> > is that he may still require that my clients pay something to the stripped
> > off second, in spite of the fact that there is no in personam liability.
> >
> >
> >
> > Have you, Mark, or any of you in Listserve land, had this situation before
> > Judge Zurzolo? If so, what is his predilection?
> >
> >
> >
> > All the best,
> >
> >
> >
> > Nick
> >
> >
> >
> > Nicholas Gebelt, Ph.D., J.D.
> >
> > Board Certified Bankruptcy Specialist
> >
> >
> >
> > Description: cid:image003.jpg@...
> >
> >
> >
> > Law Offices of Nicholas Gebelt
> >
> > 15150 Hornell Street
> >
> > Whittier, CA 90604
> >
> > Phone: 562.777.9159
> >
> > FAX: 562.946.1365
> >
> > Email: ngebelt@...;
> > ngebelt@...
> >
> > Web: www.goodbye2debt.com
> >
> > Blog:
> > www.southerncaliforniabankruptcylawblog.com/
> >
> >
> >
> > We are a debt relief agency. We help people file for bankruptcy relief
> > under the Bankruptcy Code.
> >
> >
> >
> > Confidentiality Note: This e-mail is intended only for the person or entity
> > to which it is addressed and may contain information that is privileged,
> > confidential, or otherwise protected from disclosure. Dissemination,
> > distribution, or copying of this e-mail or the information herein by anyone
> > other than the intended recipient, or an employee or agent responsible for
> > delivering the message to the intended recipient, is prohibited. If you
> > have received this e-mail in error, please notify us immediately at
> > 562.777.9159 or e-mail info@... and
> > destroy the original message and all copies.
> >
> >
> >
> > Representation Note: If you have not signed a contract of representation,
> > the Law Offices of Nicholas Gebelt do not represent you, and this email does
> > not contain any legal advice for you.
> >
> >
> >
> > IRS Circular 230 Disclosure: In order to comply with the requirements
> > imposed by the Internal Revenue Service, we inform you that any U.S. tax
> > advice contained in this communication (including any attachments) is not
> > intended to be used, and cannot be used, 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.
> >
> >
> >
ps.com] On Behalf Of
> > Mark J. Markus
> > Sent: Tuesday, April 23, 2013 11:14 AM
> > To: mailto:cdcbaa%40yahoogroups.com
> > Subject: Re: [cdcbaa] Chapter 20 question
> >
> >
> >
> >
> >
> > That makes the most sense, but oddly there is a split of opinion in the
> > courts on this issue, akin to a forced 1111(b) election (from Chapter 11).
> >
> > Thanks all!
> >
> >
> > *************************
> > Mark J. Markus
> > Law Office of Mark J. Markus
> > 11684 Ventura Blvd. PMB #403
> > Studio City, CA 91604-2652
> > (818)509-1173 (818)509-1460 (fax)
> > web: http://www.bklaw.com/
> > Certified Bankruptcy Law Specialist--The State Bar of California Board of
> > Legal Specialization
> > This Firm is a Qualified Federal Debt Relief Agency (see what this means at
> > http://www.bklaw.com/bankruptcy-blog/20 ... definition
> > /)
> > ________________________________________________
> > NOTICE: This Electronic Message contains information from the law office of
> > Mark J. Markus that may be privileged. The information is intended for the
> > use of the addressee only. If you are not the addressee, note that any
> > disclosure, copy, distribution or use of the contents of this message is
> > prohibited.
> > IRS CIRCULAR 230 NOTICE: To ensure compliance with requirements imposed by
> > the IRS, we inform you that any U.S. tax advice contained in this
> > communication (or in any attachment) is not intended or written to be used,
> > and cannot be used, 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 in this communication.
> >
> > On 4/23/2013 11:03 AM, jesseelaw@... wrote:
> >
> > Would you list creditors in a new Chapter 13 case that were discharged in a
> > Chapter 7 case filed 4 years ago? (No.) Why do you need to list them from
> > a Chapter 7 case filed a year ago?
> >
> > If secured creditors have a lien on real property, then absolutely you must
> > list them for their in rem interest, but not for the in personam interest
> > since the debt was discharged in the prior Chapter 7. Those creditors are
> > in essence a nonrecourse secured creditor. The stripping of the lien does
> > not magically recreate personal liability to the debtor. Once the lien is
> > stripped, that creditor has no right to be paid on the previously discharged
> > note.
> >
> >
> >
> > Mark T. Jessee
> > Law Offices of Mark T. Jessee
> > "A Debt Relief Agency"
> > 50 W. Hillcrest Drive, Suite 200
> > Thousand Oaks, CA 91360
> > (805) 497-5868 (805) 497-5864 (Facsimile)
> >
> >
> >
> > In a message dated 4/23/2013 10:27:50 A.M. Pacific Daylight Time,
> > bklawr@... writes:
> >
> >
> >
> > Correct on #2; that was late night muddling on my part.
> >
> > I basically agree with the rest of your analysis, but am getting hearsay
> > contrary views off list from others. In this case it makes the difference
> > between proposing a 2% plan and a 100% plan. I'm not sure it really matters
> > (except to the one new creditor that wasn't discharged in the prior Ch. 7),
> > but obviously looks better to the Trustee at 100% . Debtor's income isn't
> > going to increase (she's permanently disabled) so that issue isn't there
> > either. I'm leaning towards not listing any of the discharged in personam
> > liability as unsecured, but I'm still looking for cases that discuss this
> > but haven't found any as of yet.
> >
> >
> > It sounds though like you're advocating listing ALL the claims from the
> > prior Chapter 7, and just objecting to them if they file claims in the 13.
> > That actually might be the most correct way to go, but it's going to unleash
> > an awful lot of confusion and consequent objections.
> >
> > Mark
> >
> > On 4/23/2013 12:50 AM, Michael Avanesian wrote:
> >
> > I've never done a Chapter 13 Plan let alone a 20 but I think answering the
> > following questions will help you figure out your situation:
> >
> > 1. You said, "normally one would include the unsecured portion of the
> > to-be-stripped lien". If you avoid a lien, isn't the whole thing unsecured?
> >
> > 2. You said, "the unsecured portion of any senior liens". If you only avoid
> > the 4th lien, how are there unsecured portions of senior liens? Is that 506
> > bifurcations on non-primary residence property?
> >
> > 3. You said, "in this case, since it was discharged, I presume these do NOT
> > get included as unescured claims correct?"
> >
> > I would think that if a lien is avoided (no in rem claim) and if there
> > is no personal claim because of the Chapter 7, then that claim can be
> > objected to 100%.
> >
> > However, if you're bifurcating under 506(b), the undersecured "half" of
> > the claim is just transformed into an unsecured claim. There is nothing that
> > strips its in rem claim.
> >
> >
> >
> > I don't know if this was your question but I'll rephrase my answer. When
> > someone buys a piece of property they sign a contract and a deed is
> > recorded. The contract you can think of as privity of contract and is the
> > note. The deed of trust that refers to the note you can think of as privity
> > of estate. Privity of contract gives personal liability for the loan and
> > privity of estate gives the property itself liability for the loan.
> >
> >
> >
> > Now your client files for protection under chapter 7. The personal liability
> > is discharged, there is no more privity of contract (no in personam claim
> > against Debtor). However, there is privity of estate because of the deed of
> > trust (in rem liability).
> >
> >
> >
> > Now Debtor files for Chapter 13 and avoids the lien. If there is no lien
> > (hence no in rem liability) and no in personam liability then what claim
> > does the creditor have against the estate? I'd say none ]
> >
> >
> >
> > I didn't do case law research on this so I don't know how the 9th has ruled
> > on this but this is how it should work.
> >
> >
> >
> >
> >
> > Sincerely,
> >
> > Michael Avanesian
> >
> > Attorney and Counselor at Law
> >
> > 818-817-1725
> >
> >
> >
> > On Mon, Apr 22, 2013 at 11:10 PM, Mark J. Markus wrote:
> >
> >
> >
> > I'm doing my first Chapter 20 case (13 after a 7) and want to be clear on a
> > couple of things.
> >
> > Debor has 4 mortgages against her real estate, which were all in existence
> > when she filed her Chapter 7 case a year ago. Thus, they were all
> > discharged, and their liens remain. We're doing a 13 now to attempt to lien
> > strip the 4th mortgage (and praying we get a judge that allows it).
> >
> > Anyway, when structuring the plan, normally one would include the unsecured
> > portion of the to-be-stripped lien and the unsecured portion of any senior
> > liens, in the Class 5 general unsecured class. But in this case, since it
> > was discharged, I presume these do NOT get included as unescured claims
> > correct? And if so, this becomes a de facto 100% plan after all other
> > payments are made (we're also doing a vehicle cramdown and attorneys' fees
> > in the plan).
> >
> > Does that sound right?
> >
> >
> > *************************
> > Mark J. Markus
> > Law Office of Mark J. Markus
> > 11684 Ventura Blvd. PMB #403
> > Studio City, CA 91604-2652
> > (818)509-1173 (818)509-1460 (fax)
> > web: http://www.bklaw.com/
> > Certified Bankruptcy Law Specialist--The State Bar of California Board of
> > Legal Specialization
> > This Firm is a Qualified Federal Debt Relief Agency (see what this means at
> > http://www.bklaw.com/bankruptcy-blog/20 ... definition
> > /)
> > ________________________________________________
> > NOTICE: This Electronic Message contains information from the law office of
> > Mark J. Markus that may be privileged. The information is intended for the
> > use of the addressee only. If you are not the addressee, note that any
> > disclosure, copy, distribution or use of the contents of this message is
> > prohibited.
> > IRS CIRCULAR 230 NOTICE: To ensure compliance with requirements imposed by
> > the IRS, we inform you that any U.S. tax advice contained in this
> > communication (or in any attachment) is not intended or written to be used,
> > and cannot be used, 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 in this communication.
> >
>
>
The post was migrated from Yahoo.
Yes, but it was accomplished by stipulation with the second lien holder.
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
________________________________
To: cdcbaa@yahoogroups.com
Sent: Tuesday, May 14, 2013 2:31 PM
Subject: [cdcbaa] Re: Chapter 20 question
Hello, seems no one replied about Judge Z and chapter 20. Has no one on the list done a chapter 20 before Judge Z?
d
>
> Mark,
>
>
>
> I have reviewed a lot of ch20 cases. In several the ECF assigned judge was
> replaced with the prior ch7 judge once the humans got involved.
>
>
>
>
>
>
>
> Best regards
>
>
>
>
>
> Larry Webb
>
> State Bar of California 229344
>
> Central District California
>
> "A Debt Relief Agency"
>
> Check out my Blog
>
>
>
>
>
> Larry@webbklaw. com
>
> Law Offices of Larry Webb
>
> 484 Mobil Ste 43
>
> Camarillo Ca 93010
>
>
>
> P 805.987.1400
>
> F 805.987.2866
>
> C 805.750.2150
>
>
>
>
>
>
>
.com] On Behalf Of
> Mark J. Markus
> Sent: Tuesday, April 23, 2013 2:53 PM
> To: mailto:cdcbaa%40yahoogroups.com
> Subject: Re: [cdcbaa] Chapter 20 question
>
>
>
>
>
> Nick,
>
> I have not had any such experience with Judge Zurzolo, but a few quick
> comments pop to mind:
>
> 1. I used to believe as you did that cases get assigned to the same judge
> when possible, but I now think that with the advent of ECF the Judge gets
> signed automatically and randomly, so I do not believe having the prior case
> with one judge makes it any more likely you will get him/her.
>
> 2. I think the good faith issue pointed out by Jeff Smith is going to be
> more of the issue than lack of in personam liability. If you open it up so
> that payments should be made on the stripped off portion of a formerly
> secured debt, you'd have to do the same for all unsecured debts from the
> prior case, and that doesn't make any sense when you review the definition
> of "claim" in section 101 which talks in terms of a "right to payment".
> Without in personam rights and in rem rights (post strip), there are no
> rights to be paid and thus, they have no claim in the estate.
>
>
> *************************
> Mark J. Markus
> Law Office of Mark J. Markus
> 11684 Ventura Blvd. PMB #403
> Studio City, CA 91604-2652
> (818)509-1173 (818)509-1460 (fax)
> web: http://www.bklaw.com/
> Certified Bankruptcy Law Specialist--The State Bar of California Board of
> Legal Specialization
> This Firm is a Qualified Federal Debt Relief Agency (see what this means at
> http://www.bklaw.com/bankruptcy-blog/20 ... definition
> /)
> ________________________________________________
> NOTICE: This Electronic Message contains information from the law office of
> Mark J. Markus that may be privileged. The information is intended for the
> use of the addressee only. If you are not the addressee, note that any
> disclosure, copy, distribution or use of the contents of this message is
> prohibited.
> IRS CIRCULAR 230 NOTICE: To ensure compliance with requirements imposed by
> the IRS, we inform you that any U.S. tax advice contained in this
> communication (or in any attachment) is not intended or written to be used,
> and cannot be used, 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 in this communication.>
> On 4/23/2013 12:18 PM, Nicholas Gebelt wrote:
>
> Dear Mark,
>
>
>
> I have read with interest your Chapter 20 thread. I have clients > married couple for whom I did a Chapter 13. They received their discharge
> in April 2011. As a result, any in personam liability on their two
> mortgages was discharged.
>
>
>
> When I filed their bankruptcy papers their home value made a Lam motion
> impossible. However, the years have not been kind to the condo market > just had the property appraised and there is a lot of wiggle room for a lien
> strip so they are in a great position to strip off the second. They have
> an arrearage on the first, so there is a good reason to file the new Chapter
> 13 other than doing the lien strip. I am planning to strip off the second
> and then file an objection to any proof of claim the holder of the second
> files based on the fact that the in personam liability was extinguished in
> the prior bankruptcy.
>
>
>
> Given that the previous case was a Chapter 13, I don't have your
> 1328(f)(1) problem, and 1328(f)(2) is obviously not a problem either.
> However, since Judge Zurzolo was the judge in the previous Chapter 13, my
> experiences lead me suspect that he will be the judge in the one I will be
> filing sometime in the next couple of weeks. I know that his wont is to
> require an adversary proceeding for a 506 lien strip action. My concern
> is that he may still require that my clients pay something to the stripped
> off second, in spite of the fact that there is no in personam liability.>
>
>
> Have you, Mark, or any of you in Listserve land, had this situation before
> Judge Zurzolo? If so, what is his predilection?
>
>
>
> All the best,
>
>
>
> Nick
>
>
>
> Nicholas Gebelt, Ph.D., J.D.
>
> Board Certified Bankruptcy Specialist
>
>
>
> Description: cid:image003.jpg@...
>
>
>
> Law Offices of Nicholas Gebelt
>
> 15150 Hornell Street
>
> Whittier, CA 90604
>
> Phone: 562.777.9159
>
> FAX: 562.946.1365
>
> Email: ngebelt@...;
> ngebelt@...
>
> Web: www.goodbye2debt.com
>
> Blog:
> www.southerncaliforniabankruptcylawblog.com/
>
>
>
> We are a debt relief agency. We help people file for bankruptcy relief
> under the Bankruptcy Code.
>
>
>
> Confidentiality Note: This e-mail is intended only for the person or entity
> to which it is addressed and may contain information that is privileged,
> confidential, or otherwise protected from disclosure. Dissemination,
> distribution, or copying of this e-mail or the information herein by anyone
> other than the intended recipient, or an employee or agent responsible for
> delivering the message to the intended recipient, is prohibited. If you
> have received this e-mail in error, please notify us immediately at
> 562.777.9159 or e-mail info@... and
> destroy the original message and all copies.
>
>
>
> Representation Note: If you have not signed a contract of representation,
> the Law Offices of Nicholas Gebelt do not represent you, and this email does
> not contain any legal advice for you.
>
>
>
> IRS Circular 230 Disclosure: In order to comply with the requirements
> imposed by the Internal Revenue Service, we inform you that any U.S. tax
> advice contained in this communication (including any attachments) is not
> intended to be used, and cannot be used, 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.
>
>
>
.com] On Behalf Of
> Mark J. Markus
> Sent: Tuesday, April 23, 2013 11:14 AM
> To: mailto:cdcbaa%40yahoogroups.com
> Subject: Re: [cdcbaa] Chapter 20 question
>
>
>
>
>
> That makes the most sense, but oddly there is a split of opinion in the
> courts on this issue, akin to a forced 1111(b) election (from Chapter 11).
>
> Thanks all!
>
>
> *************************
> Mark J. Markus
> Law Office of Mark J. Markus
> 11684 Ventura Blvd. PMB #403
> Studio City, CA 91604-2652
> (818)509-1173 (818)509-1460 (fax)
> web: http://www.bklaw.com/
> Certified Bankruptcy Law Specialist--The State Bar of California Board of
> Legal Specialization
> This Firm is a Qualified Federal Debt Relief Agency (see what this means at
> http://www.bklaw.com/bankruptcy-blog/20 ... definition
> /)
> ________________________________________________
> NOTICE: This Electronic Message contains information from the law office of
> Mark J. Markus that may be privileged. The information is intended for the
> use of the addressee only. If you are not the addressee, note that any
> disclosure, copy, distribution or use of the contents of this message is
> prohibited.
> IRS CIRCULAR 230 NOTICE: To ensure compliance with requirements imposed by
> the IRS, we inform you that any U.S. tax advice contained in this
> communication (or in any attachment) is not intended or written to be used,
> and cannot be used, 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 in this communication.>
> On 4/23/2013 11:03 AM, jesseelaw@... wrote:
>
> Would you list creditors in a new Chapter 13 case that were discharged in a
> Chapter 7 case filed 4 years ago? (No.) Why do you need to list them from
> a Chapter 7 case filed a year ago?
>
> If secured creditors have a lien on real property, then absolutely you must
> list them for their in rem interest, but not for the in personam interest
> since the debt was discharged in the prior Chapter 7. Those creditors are
> in essence a nonrecourse secured creditor. The stripping of the lien does
> not magically recreate personal liability to the debtor. Once the lien is
> stripped, that creditor has no right to be paid on the previously discharged
> note.
>
>
>
> Mark T. Jessee
> Law Offices of Mark T. Jessee
> "A Debt Relief Agency"
> 50 W. Hillcrest Drive, Suite 200
> Thousand Oaks, CA 91360
> (805) 497-5868 (805) 497-5864 (Facsimile)
>
>
>
> In a message dated 4/23/2013 10:27:50 A.M. Pacific Daylight Time,
> bklawr@... writes:
>
>
>
> Correct on #2; that was late night muddling on my part.
>
> I basically agree with the rest of your analysis, but am getting hearsay
> contrary views off list from others. In this case it makes the difference
> between proposing a 2% plan and a 100% plan. I'm not sure it really matters
> (except to the one new creditor that wasn't discharged in the prior Ch. 7),
> but obviously looks better to the Trustee at 100% . Debtor's income isn't
> going to increase (she's permanently disabled) so that issue isn't there
> either. I'm leaning towards not listing any of the discharged in personam
> liability as unsecured, but I'm still looking for cases that discuss this
> but haven't found any as of yet.
>
>
> It sounds though like you're advocating listing ALL the claims from the
> prior Chapter 7, and just objecting to them if they file claims in the 13.
> That actually might be the most correct way to go, but it's going to unleash
> an awful lot of confusion and consequent objections.
>
> Mark
>
> On 4/23/2013 12:50 AM, Michael Avanesian wrote:
>
> I've never done a Chapter 13 Plan let alone a 20 but I think answering the
> following questions will help you figure out your situation:
>
> 1. You said, "normally one would include the unsecured portion of the
> to-be-stripped lien". If you avoid a lien, isn't the whole thing unsecured?
>
> 2. You said, "the unsecured portion of any senior liens". If you only avoid
> the 4th lien, how are there unsecured portions of senior liens? Is that 506
> bifurcations on non-primary residence property?
>
> 3. You said, "in this case, since it was discharged, I presume these do NOT
> get included as unescured claims correct?"
>
> I would think that if a lien is avoided (no in rem claim) and if there
> is no personal claim because of the Chapter 7, then that claim can be
> objected to 100%.
>
> However, if you're bifurcating under 506(b), the undersecured "half" of
> the claim is just transformed into an unsecured claim. There is nothing that
> strips its in rem claim.
>
>
>
> I don't know if this was your question but I'll rephrase my answer. When
> someone buys a piece of property they sign a contract and a deed is
> recorded. The contract you can think of as privity of contract and is the
> note. The deed of trust that refers to the note you can think of as privity
> of estate. Privity of contract gives personal liability for the loan and
> privity of estate gives the property itself liability for the loan.
>
>
>
> Now your client files for protection under chapter 7. The personal liability
> is discharged, there is no more privity of contract (no in personam claim
> against Debtor). However, there is privity of estate because of the deed of
> trust (in rem liability).
>
>
>
> Now Debtor files for Chapter 13 and avoids the lien. If there is no lien
> (hence no in rem liability) and no in personam liability then what claim
> does the creditor have against the estate? I'd say none ]
>
>
>
> I didn't do case law research on this so I don't know how the 9th has ruled
> on this but this is how it should work.
>
>
>
>
>
> Sincerely,
>
> Michael Avanesian
>
> Attorney and Counselor at Law
>
> 818-817-1725
>
>
>
> On Mon, Apr 22, 2013 at 11:10 PM, Mark J. Markus wrote:
>
>
>
> I'm doing my first Chapter 20 case (13 after a 7) and want to be clear on a
> couple of things.
>
> Debor has 4 mortgages against her real estate, which were all in existence
> when she filed her Chapter 7 case a year ago. Thus, they were all
> discharged, and their liens remain. We're doing a 13 now to attempt to lien
> strip the 4th mortgage (and praying we get a judge that allows it).
>
> Anyway, when structuring the plan, normally one would include the unsecured
> portion of the to-be-stripped lien and the unsecured portion of any senior
> liens, in the Class 5 general unsecured class. But in this case, since it
> was discharged, I presume these do NOT get included as unescured claims
> correct? And if so, this becomes a de facto 100% plan after all other
> payments are made (we're also doing a vehicle cramdown and attorneys' fees
> in the plan).
>
> Does that sound right?
>
>
> *************************
> Mark J. Markus
> Law Office of Mark J. Markus
> 11684 Ventura Blvd. PMB #403
> Studio City, CA 91604-2652
> (818)509-1173 (818)509-1460 (fax)
> web: http://www.bklaw.com/
> Certified Bankruptcy Law Specialist--The State Bar of California Board of
> Legal Specialization
> This Firm is a Qualified Federal Debt Relief Agency (see what this means at
> http://www.bklaw.com/bankruptcy-blog/20 ... definition
> /)
> ________________________________________________
> NOTICE: This Electronic Message contains information from the law office of
> Mark J. Markus that may be privileged. The information is intended for the
> use of the addressee only. If you are not the addressee, note that any
> disclosure, copy, distribution or use of the contents of this message is
> prohibited.
> IRS CIRCULAR 230 NOTICE: To ensure compliance with requirements imposed by
> the IRS, we inform you that any U.S. tax advice contained in this
> communication (or in any attachment) is not intended or written to be used,
> and cannot be used, 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 in this communication.
>
The post was migrated from Yahoo.
Hello, seems no one replied about Judge Z and chapter 20. Has no one on the list done a chapter 20 before Judge Z?
d
>
> Mark,
>
>
>
> I have reviewed a lot of ch20 cases. In several the ECF assigned judge was
> replaced with the prior ch7 judge once the humans got involved.
>
>
>
>
>
>
>
> Best regards
>
>
>
>
>
> Larry Webb
>
> State Bar of California 229344
>
> Central District California
>
> "A Debt Relief Agency"
>
> Check out my Blog
>
>
>
>
>
> Larry@webbklaw. com
>
> Law Offices of Larry Webb
>
> 484 Mobil Ste 43
>
> Camarillo Ca 93010
>
>
>
> P 805.987.1400
>
> F 805.987.2866
>
> C 805.750.2150
>
>
>
>
>
>
>
> Mark J. Markus
> Sent: Tuesday, April 23, 2013 2:53 PM
> To: cdcbaa@yahoogroups.com
> Subject: Re: [cdcbaa] Chapter 20 question
>
>
>
>
>
> Nick,
>
> I have not had any such experience with Judge Zurzolo, but a few quick
> comments pop to mind:
>
> 1. I used to believe as you did that cases get assigned to the same judge
> when possible, but I now think that with the advent of ECF the Judge gets
> signed automatically and randomly, so I do not believe having the prior case
> with one judge makes it any more likely you will get him/her.
>
> 2. I think the good faith issue pointed out by Jeff Smith is going to be
> more of the issue than lack of in personam liability. If you open it up so
> that payments should be made on the stripped off portion of a formerly
> secured debt, you'd have to do the same for all unsecured debts from the
> prior case, and that doesn't make any sense when you review the definition
> of "claim" in section 101 which talks in terms of a "right to payment".
> Without in personam rights and in rem rights (post strip), there are no
> rights to be paid and thus, they have no claim in the estate.
>
>
> *************************
> Mark J. Markus
> Law Office of Mark J. Markus
> 11684 Ventura Blvd. PMB #403
> Studio City, CA 91604-2652
> (818)509-1173 (818)509-1460 (fax)
> web: http://www.bklaw.com/
> Certified Bankruptcy Law Specialist--The State Bar of California Board of
> Legal Specialization
> This Firm is a Qualified Federal Debt Relief Agency (see what this means at
> http://www.bklaw.com/bankruptcy-blog/20 ... definition
> /)
> ________________________________________________
> NOTICE: This Electronic Message contains information from the law office of
> Mark J. Markus that may be privileged. The information is intended for the
> use of the addressee only. If you are not the addressee, note that any
> disclosure, copy, distribution or use of the contents of this message is
> prohibited.
> IRS CIRCULAR 230 NOTICE: To ensure compliance with requirements imposed by
> the IRS, we inform you that any U.S. tax advice contained in this
> communication (or in any attachment) is not intended or written to be used,
> and cannot be used, 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 in this communication.>
> On 4/23/2013 12:18 PM, Nicholas Gebelt wrote:
>
> Dear Mark,
>
>
>
> I have read with interest your Chapter 20 thread. I have clients a
> married couple for whom I did a Chapter 13. They received their discharge
> in April 2011. As a result, any in personam liability on their two
> mortgages was discharged.
>
>
>
> When I filed their bankruptcy papers their home value made a Lam motion
> impossible. However, the years have not been kind to the condo market > just had the property appraised and there is a lot of wiggle room for a lien
> strip so they are in a great position to strip off the second. They have
> an arrearage on the first, so there is a good reason to file the new Chapter
> 13 other than doing the lien strip. I am planning to strip off the second
> and then file an objection to any proof of claim the holder of the second
> files based on the fact that the in personam liability was extinguished in
> the prior bankruptcy.
>
>
>
> Given that the previous case was a Chapter 13, I don't have your
> 1328(f)(1) problem, and 1328(f)(2) is obviously not a problem either.
> However, since Judge Zurzolo was the judge in the previous Chapter 13, my
> experiences lead me suspect that he will be the judge in the one I will be
> filing sometime in the next couple of weeks. I know that his wont is to
> require an adversary proceeding for a 506 lien strip action. My concern
> is that he may still require that my clients pay something to the stripped
> off second, in spite of the fact that there is no in personam liability. >
>
>
> Have you, Mark, or any of you in Listserve land, had this situation before
> Judge Zurzolo? If so, what is his predilection?
>
>
>
> All the best,
>
>
>
> Nick
>
>
>
> Nicholas Gebelt, Ph.D., J.D.
>
> Board Certified Bankruptcy Specialist
>
>
>
> Description: cid:image003.jpg@...
>
>
>
> Law Offices of Nicholas Gebelt
>
> 15150 Hornell Street
>
> Whittier, CA 90604
>
> Phone: 562.777.9159
>
> FAX: 562.946.1365
>
> Email: ngebelt@...;
> ngebelt@...
>
> Web: www.goodbye2debt.com
>
> Blog:
> www.southerncaliforniabankruptcylawblog.com/
>
>
>
> We are a debt relief agency. We help people file for bankruptcy relief
> under the Bankruptcy Code.
>
>
>
> Confidentiality Note: This e-mail is intended only for the person or entity
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> IRS Circular 230 Disclosure: In order to comply with the requirements
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> advice contained in this communication (including any attachments) is not
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>
>
>
> Mark J. Markus
> Sent: Tuesday, April 23, 2013 11:14 AM
> To: cdcbaa@yahoogroups.com
> Subject: Re: [cdcbaa] Chapter 20 question
>
>
>
>
>
> That makes the most sense, but oddly there is a split of opinion in the
> courts on this issue, akin to a forced 1111(b) election (from Chapter 11).
>
> Thanks all!
>
>
> *************************
> Mark J. Markus
> Law Office of Mark J. Markus
> 11684 Ventura Blvd. PMB #403
> Studio City, CA 91604-2652
> (818)509-1173 (818)509-1460 (fax)
> web: http://www.bklaw.com/
> Certified Bankruptcy Law Specialist--The State Bar of California Board of
> Legal Specialization
> This Firm is a Qualified Federal Debt Relief Agency (see what this means at
> http://www.bklaw.com/bankruptcy-blog/20 ... definition
> /)
> ________________________________________________
> NOTICE: This Electronic Message contains information from the law office of
> Mark J. Markus that may be privileged. The information is intended for the
> use of the addressee only. If you are not the addressee, note that any
> disclosure, copy, distribution or use of the contents of this message is
> prohibited.
> IRS CIRCULAR 230 NOTICE: To ensure compliance with requirements imposed by
> the IRS, we inform you that any U.S. tax advice contained in this
> communication (or in any attachment) is not intended or written to be used,
> and cannot be used, 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 in this communication.>
> On 4/23/2013 11:03 AM, jesseelaw@... wrote:
>
> Would you list creditors in a new Chapter 13 case that were discharged in a
> Chapter 7 case filed 4 years ago? (No.) Why do you need to list them from
> a Chapter 7 case filed a year ago?
>
> If secured creditors have a lien on real property, then absolutely you must
> list them for their in rem interest, but not for the in personam interest
> since the debt was discharged in the prior Chapter 7. Those creditors are
> in essence a nonrecourse secured creditor. The stripping of the lien does
> not magically recreate personal liability to the debtor. Once the lien is
> stripped, that creditor has no right to be paid on the previously discharged
> note.
>
>
>
> Mark T. Jessee
> Law Offices of Mark T. Jessee
> "A Debt Relief Agency"
> 50 W. Hillcrest Drive, Suite 200
> Thousand Oaks, CA 91360
> (805) 497-5868 (805) 497-5864 (Facsimile)
>
>
>
> In a message dated 4/23/2013 10:27:50 A.M. Pacific Daylight Time,
> bklawr@... writes:
>
>
>
> Correct on #2; that was late night muddling on my part.
>
> I basically agree with the rest of your analysis, but am getting hearsay
> contrary views off list from others. In this case it makes the difference
> between proposing a 2% plan and a 100% plan. I'm not sure it really matters
> (except to the one new creditor that wasn't discharged in the prior Ch. 7),
> but obviously looks better to the Trustee at 100% . Debtor's income isn't
> going to increase (she's permanently disabled) so that issue isn't there
> either. I'm leaning towards not listing any of the discharged in personam
> liability as unsecured, but I'm still looking for cases that discuss this
> but haven't found any as of yet.
>
>
> It sounds though like you're advocating listing ALL the claims from the
> prior Chapter 7, and just objecting to them if they file claims in the 13.
> That actually might be the most correct way to go, but it's going to unleash
> an awful lot of confusion and consequent objections.
>
> Mark
>
> On 4/23/2013 12:50 AM, Michael Avanesian wrote:
>
> I've never done a Chapter 13 Plan let alone a 20 but I think answering the
> following questions will help you figure out your situation:
>
> 1. You said, "normally one would include the unsecured portion of the
> to-be-stripped lien". If you avoid a lien, isn't the whole thing unsecured?
>
> 2. You said, "the unsecured portion of any senior liens". If you only avoid
> the 4th lien, how are there unsecured portions of senior liens? Is that 506
> bifurcations on non-primary residence property?
>
> 3. You said, "in this case, since it was discharged, I presume these do NOT
> get included as unescured claims correct?"
>
> I would think that if a lien is avoided (no in rem claim) and if there
> is no personal claim because of the Chapter 7, then that claim can be
> objected to 100%.
>
> However, if you're bifurcating under 506(b), the undersecured "half" of
> the claim is just transformed into an unsecured claim. There is nothing that
> strips its in rem claim.
>
>
>
> I don't know if this was your question but I'll rephrase my answer. When
> someone buys a piece of property they sign a contract and a deed is
> recorded. The contract you can think of as privity of contract and is the
> note. The deed of trust that refers to the note you can think of as privity
> of estate. Privity of contract gives personal liability for the loan and
> privity of estate gives the property itself liability for the loan.
>
>
>
> Now your client files for protection under chapter 7. The personal liability
> is discharged, there is no more privity of contract (no in personam claim
> against Debtor). However, there is privity of estate because of the deed of
> trust (in rem liability).
>
>
>
> Now Debtor files for Chapter 13 and avoids the lien. If there is no lien
> (hence no in rem liability) and no in personam liability then what claim
> does the creditor have against the estate? I'd say none ]
>
>
>
> I didn't do case law research on this so I don't know how the 9th has ruled
> on this but this is how it should work.
>
>
>
>
>
> Sincerely,
>
> Michael Avanesian
>
> Attorney and Counselor at Law
>
> 818-817-1725
>
>
>
> On Mon, Apr 22, 2013 at 11:10 PM, Mark J. Markus wrote:
>
>
>
> I'm doing my first Chapter 20 case (13 after a 7) and want to be clear on a
> couple of things.
>
> Debor has 4 mortgages against her real estate, which were all in existence
> when she filed her Chapter 7 case a year ago. Thus, they were all
> discharged, and their liens remain. We're doing a 13 now to attempt to lien
> strip the 4th mortgage (and praying we get a judge that allows it).
>
> Anyway, when structuring the plan, normally one would include the unsecured
> portion of the to-be-stripped lien and the unsecured portion of any senior
> liens, in the Class 5 general unsecured class. But in this case, since it
> was discharged, I presume these do NOT get included as unescured claims
> correct? And if so, this becomes a de facto 100% plan after all other
> payments are made (we're also doing a vehicle cramdown and attorneys' fees
> in the plan).
>
> Does that sound right?
>
>
> *************************
> Mark J. Markus
> Law Office of Mark J. Markus
> 11684 Ventura Blvd. PMB #403
> Studio City, CA 91604-2652
> (818)509-1173 (818)509-1460 (fax)
> web: http://www.bklaw.com/
> Certified Bankruptcy Law Specialist--The State Bar of California Board of
> Legal Specialization
> This Firm is a Qualified Federal Debt Relief Agency (see what this means at
> http://www.bklaw.com/bankruptcy-blog/20 ... definition
> /)
> ________________________________________________
> NOTICE: This Electronic Message contains information from the law office of
> Mark J. Markus that may be privileged. The information is intended for the
> use of the addressee only. If you are not the addressee, note that any
> disclosure, copy, distribution or use of the contents of this message is
> prohibited.
> IRS CIRCULAR 230 NOTICE: To ensure compliance with requirements imposed by
> the IRS, we inform you that any U.S. tax advice contained in this
> communication (or in any attachment) is not intended or written to be used,
> and cannot be used, 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 in this communication.
>
The post was migrated from Yahoo.
Yes, in a case like this, I put secured portion, if any, on Skd D, and unsecured portion on Skd F.
I understand why you may think that Odd, but you cannot make the position more clear.
d
Sent from my iPad
On Apr 24, 2013, at 11:37 AM, "Mark J. Markus" wrote:
> List the secured debt in Schedule "F"?
>
> On 4/24/2013 11:29 AM, Dennis McG wrote:
>> Mark:
>>
>> yes, list as zero in skd f, specifically say debt discharged in 7.
>> es
>> Another reason ch 20 should work, debt has already been discharged.
>>
>> d
>>
>>
>> On Mon, Apr 22, 2013 at 11:10 PM, Mark J. Markus wrote:
>>>
>>> I'm doing my first Chapter 20 case (13 after a 7) and want to be clear on a couple of things.
>>>
>>> Debor has 4 mortgages against her real estate, which were all in existence when she filed her Chapter 7 case a year ago. Thus, they were all discharged, and their liens remain. We're doing a 13 now to attempt to lien strip the 4th mortgage (and praying we get a judge that allows it).
>>>
>>> Anyway, when structuring the plan, normally one would include the unsecured portion of the to-be-stripped lien and the unsecured portion of any senior liens, in the Class 5 general unsecured class. But in this case, since it was discharged, I presume these do NOT get included as unescured claims correct? And if so, this becomes a de facto 100% plan after all other payments are made (we're also doing a vehicle cramdown and attorneys' fees in the plan).
>>>
>>> Does that sound right?
>>>
>>> *************************
>>> Mark J. Markus
>>> Law Office of Mark J. Markus
>>> 11684 Ventura Blvd. PMB #403
>>> Studio City, CA 91604-2652
>>> (818)509-1173 (818)509-1460 (fax)
>>> web: http://www.bklaw.com/
>>> Certified Bankruptcy Law Specialist--The State Bar of California Board of Legal Specialization
>>> This Firm is a Qualified Federal Debt Relief Agency (see what this means at http://www.bklaw.com/bankruptcy-blog/20 ... efinition/)
>>> ________________________________________________
>>> NOTICE: This Electronic Message contains information from the law office of Mark J. Markus that may be privileged. The information is intended for the use of the addressee only. If you are not the addressee, note that any disclosure, copy, distribution or use of the contents of this message is prohibited.
>>> IRS CIRCULAR 230 NOTICE: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication (or in any attachment) is not intended or written to be used, and cannot be used, 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 in this communication.
>
>
The post was migrated from Yahoo.
Mark:
yes, list as zero in skd f, specifically say debt discharged in 7.
Another reason ch 20 should work, debt has already been discharged.
d
On Mon, Apr 22, 2013 at 11:10 PM, Mark J. Markus wrote:
> **
>
>
> I'm doing my first Chapter 20 case (13 after a 7) and want to be clear on
> a couple of things.
>
> Debor has 4 mortgages against her real estate, which were all in existence
> when she filed her Chapter 7 case a year ago. Thus, they were all
> discharged, and their liens remain. We're doing a 13 now to attempt to
> lien strip the 4th mortgage (and praying we get a judge that allows it).
>
> Anyway, when structuring the plan, normally one would include the
> unsecured portion of the to-be-stripped lien and the unsecured portion of
> any senior liens, in the Class 5 general unsecured class. But in this
> case, since it was discharged, I presume these do NOT get included as
> unescured claims correct? And if so, this becomes a de facto 100% plan
> after all other payments are made (we're also doing a vehicle cramdown and
> attorneys' fees in the plan).
>
> Does that sound right?
>
> *************************
> Mark J. Markus
> Law Office of Mark J. Markus
> 11684 Ventura Blvd. PMB #403
> Studio City, CA 91604-2652
> (818)509-1173 (818)509-1460 (fax)
> web: http://www.bklaw.com/
> Certified Bankruptcy Law Specialist--The State Bar of California Board of
> Legal Specialization
> This Firm is a Qualified Federal Debt Relief Agency (see what this means
> at
> http://www.bklaw.com/bankruptcy-blog/20 ... efinition/
> )
> ________________________________________________
> NOTICE: This Electronic Message contains information from the law office
> of Mark J. Markus that may be privileged. The information is intended for
> the use of the addressee only. If you are not the addressee, note that any
> disclosure, copy, distribution or use of the contents of this message is
> prohibited.
> IRS CIRCULAR 230 NOTICE: To ensure compliance with requirements imposed by
> the IRS, we inform you that any U.S. tax advice contained in this
> communication (or in any attachment) is not intended or written to be used,
> and cannot be used, 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 in this communication.
>
>
>
Mark:yes, list as zero in skd f, specifically say debt discharged in 7.Another reason ch 20 should work, debt has already been discharged.
dOn Mon, Apr 22, 2013 at 11:10 PM, Mark J. Markus <bklawr@yahoo.com> wrote:
I'm doing
my first Chapter 20 case (13 after a 7) and want to be clear on
a couple of things.
Debor has 4 mortgages against her real estate, which were all in
existence when she filed her Chapter 7 case a year ago. Thus,
they were all discharged, and their liens remain. We're doing a
13 now to attempt to lien strip the 4th mortgage (and praying we
get a judge that allows it).
Anyway, when structuring the plan, normally one would include
the unsecured portion of the to-be-stripped lien and the
unsecured portion of any senior liens, in the Class 5 general
unsecured class. But in this case, since it was discharged, I
presume these do NOT get included as unescured claims correct?
And if so, this becomes a de facto 100% plan after all other
payments are made (we're also doing a vehicle cramdown and
attorneys' fees in the plan).
Does that sound right?
*************************
Mark J. Markus
Law Office of Mark J. Markus
11684 Ventura Blvd. PMB #403
Studio City, CA 91604-2652
(818)509-1173 (818)509-1460 (fax)
web: http://www.bklaw.com/
Certified Bankruptcy Law Specialist--The State Bar of
California Board of Legal Specialization
This Firm is a Qualified Federal Debt Relief Agency (see what
this means at
http://www.bklaw.com/bankruptcy-blog/20 ... efinition/)
The post was migrated from Yahoo.
Mark,
I have reviewed a lot of ch20 cases. In several the ECF assigned judge was
replaced with the prior ch7 judge once the humans got involved.
Best regards
Larry Webb
State Bar of California 229344
Central District California
"A Debt Relief Agency"
Check out my Blog
Larry@webbklaw. com
Law Offices of Larry Webb
484 Mobil Ste 43
Camarillo Ca 93010
P 805.987.1400
F 805.987.2866
C 805.750.2150
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Mark:
Who was the Chapter 7 Judge? If not downtown, you will likely get that judge again in the Chapter 13. I've successfully done a couple of these now. I do not include the proposed to be stripped off junior in the Class 5 creditors. Dependiong what program you use it might help to list that creditor in schedule D with a $0 dollar amount and a point blank explination of why they are listed that way and exactly what you are doing vis-a-vis the Plan in the description section. That way the computer program doesnt pick it up and try to pay it in the plan. Took me a while to figure that out with my EZ Filing program.
The judges that I know will allow it sometimes want a showing of "good faith" so that they don't believe that the thing was set up this way from the start. Showing that hasn't been hard. In a couple of cases the Chapter 7 was filed while the debtor was working a loan mod and didn't know if keeping the house was even feasible in the CH 7. Once the loan mod was granted by the first, THEN Chapter 13 made sense. Two judges found that the Chapter 13 with a $0 to the stripped lien was confirmable on those facts. The judges I know will confirm a Chapter 20 are Jury, Smith, Albert and Kwan. Not sure about Klein but I bet she'd listen.
Jeffrey B. Smith**
CURD, GALINDO & SMITH, L.L.P.
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Long Beach, CA 90802
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In Bankruptcy Law
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Dear Mark,
I have read with interest your Chapter 20 thread. I have clients - a married couple - for whom I did a Chapter 13. They received their discharge in April 2011. As a result, any in personam liability on their two mortgages was discharged.
When I filed their bankruptcy papers their home value made a Lam motion impossible. However, the years have not been kind to the condo market - we just had the property appraised and there is a lot of wiggle room for a lien strip - so they are in a great position to strip off the second. They have an arrearage on the first, so there is a good reason to file the new Chapter 13 other than doing the lien strip. I am planning to strip off the second and then file an objection to any proof of claim the holder of the second files based on the fact that the in personam liability was extinguished in the prior bankruptcy.
Given that the previous case was a Chapter 13, I don't have your 1328(f)(1) problem, and 1328(f)(2) is obviously not a problem either. However, since Judge Zurzolo was the judge in the previous Chapter 13, my experiences lead me suspect that he will be the judge in the one I will be filing sometime in the next couple of weeks. I know that his wont is to require an adversary proceeding for a 506 lien strip action. My concern is that he may still require that my clients pay something to the stripped off second, in spite of the fact that there is no in personam liability.
Have you, Mark, or any of you in Listserve land, had this situation before Judge Zurzolo? If so, what is his predilection?
All the best,
Nick
Nicholas Gebelt, Ph.D., J.D.
Board Certified Bankruptcy Specialist
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Would you list creditors in a new Chapter 13 case that were discharged ina Chapter 7 case filed 4 years ago? (No.) Why do you need to list themfrom a Chapter 7 case filed a year ago?
If secured creditors have a lien on real property, then absolutely you
must list them for their in rem interest, but not for the in personam interest
since the debt was discharged in the prior Chapter 7. Those creditors arein essence a nonrecourse secured creditor. The stripping of the lien doesnot magically recreate personal liability to the debtor. Once the lien isstripped, that creditor has no right to be paid on the previously
discharged note.
Mark T. Jessee
Law Offices of Mark T. Jessee
"A Debt Relief Agency"
50 W. Hillcrest Drive, Suite 200
Thousand Oaks, CA 91360
(805) 497-5868 (805) 497-5864 (Facsimile)
In a message dated 4/23/2013 10:27:50 A.M. Pacific Daylight Time,
bklawr@yahoo.com writes:
Correct on #2; that was late night muddling on my part.
I basically agree with the rest of your analysis, but am getting hearsay
contrary views off list from others. In this case it makes the differencebetween proposing a 2% plan and a 100% plan. I'm not sure it really matters
(except to the one new creditor that wasn't discharged in the prior Ch.
7), but obviously looks better to the Trustee at 100% . Debtor's incomeisn't going to increase (she's permanently disabled) so that issue isn't there
either. I'm leaning towards not listing any of the discharged in personamliability as unsecured, but I'm still looking for cases that discuss thisbut haven't found any as of yet.
It sounds though like you're advocating listing ALL the claims from the
prior Chapter 7, and just objecting to them if they file claims in the 13.That actually might be the most correct way to go, but it's going to unleash
an awful lot of confusion and consequent objections.
Mark
On 4/23/2013 12:50 AM, Michael Avanesian wrote:
I've never done a Chapter 13 Plan let alone a 20 but I think answering thefollowing questions will help you figure out your situation:
1. You said, "normally one would include the unsecured portion of the
to-be-stripped lien". If you avoid a lien, isn't the whole thing unsecured?
2. You said, "the unsecured portion of any senior liens". If you only
avoid the 4th lien, how are there unsecured portions of senior liens? Is that
506 bifurcations on non-primary residence property?
3. You said, "in this case, since it was discharged, I presume these do
NOT get included as unescured claims correct?"
I would think that if a lien is avoided (no in rem claim) and if thereis no personal claim because of the Chapter 7, then that claim can be
objected to 100%.
However, if you're bifurcating under 506(b), the undersecured "half"
of the claim is just transformed into an unsecured claim. There is nothingthat strips its in rem claim.
I don't know if this was your question but I'll rephrase my answer. When
someone buys a piece of property they sign a contract and a deed is
recorded. The contract you can think of as privity of contract and is the note. The
deed of trust that refers to the note you can think of as privity of
estate. Privity of contract gives personal liability for the loan and privity of
estate gives the property itself liability for the loan.
Now your client files for protection under chapter 7. The personal
liability is discharged, there is no more privity of contract (no in personam
claim against Debtor). However, there is privity of estate because of the deed
of trust (in rem liability).
Now Debtor files for Chapter 13 and avoids the lien. If there is no lien
(hence no in rem liability) and no in personam liability then what claim
does the creditor have against the estate? I'd say none ]
I didn't do case law research on this so I don't know how the 9th has
ruled on this but this is how it should work.
Sincerely,
Michael Avanesian
Attorney and Counselor at Law
818-817-1725
On Mon, Apr 22, 2013 at 11:10 PM, Mark J. Markus wrote:
I'm doing my first Chapter 20 case (13 after a 7) and want to be clear ona couple of things.
Debor has 4 mortgages against her real estate, which were all in existencewhen she filed her Chapter 7 case a year ago. Thus, they were all
discharged, and their liens remain. We're doing a 13 now to attempt to lien
strip the 4th mortgage (and praying we get a judge that allows it).
Anyway, when structuring the plan, normally one would include the
unsecured portion of the to-be-stripped lien and the unsecured portion of any
senior liens, in the Class 5 general unsecured class. But in this case, since
it was discharged, I presume these do NOT get included as unescured claimscorrect? And if so, this becomes a de facto 100% plan after all other
payments are made (we're also doing a vehicle cramdown and attorneys' fees in
the plan).
Does that sound right?
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