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Valuation date for property
I obviously love everything Kirk is saying because he's showing me all the
authority that favors what I think is the correct position but I want to
understand what I am misunderstanding.
Dennis said,
"Judge Kwan is correct. Look at the last two paragraphs of **
*
Abdelgadir:
*
As discussed above, a creditor's right to payment, whether it later is
deemed secured or unsecured depending on the value of the collateral, is
fixed at the petition date. [omitted the rest]"
Right there, it says, "whether it *later* is deemed secured or unsecured
depending on the value of the collateral." Does this not imply that the *
value* of the property will be determined later? Even if that is not
persuasive, where does it say the *value of the property* should be based
on the petition date?
To summarize, I think we all agree that:
1. Determination of whether real property is Debtor's principal residence
is based on the petition date.
2. Determination of the amount of the secured creditors claim amount is as
of the petition date but it may change based on 502.
The only issue I am uncertain about is the date to be used to value
collateral for 506.
To add to the confusion, I skipped the CLE on 1129 today but apparently
Ron Bender said that some creditors make their 1111(b) election in order to
capture appreciation from the bifurcation date to the confirmation date.
Which implies that they believe the extent they are secured is determined
as of confirmation / the effective date.
If it helps with the clarification, Kirk is right that I am thinking about
Chapter 11s but I don't think I am implicating anything that is special to
11s (except the 1111(b) side argument).
Thank you all for the input.
Sincerely,
Michael Avanesian
On Thu, Apr 25, 2013 at 1:02 PM, cdcbaa wrote:
> **
>
>
> Michael,
>
> Judge Kwan is correct. Look at the last two paragraphs of *
>
> Abdelgadir:
> *
>
> As discussed above, a creditor's right to payment, whether it
> later is deemed secured or unsecured depending on the value of the
> collateral, is fixed at the petition date. 11 U.S.C. 101(5), 502; In
> re Dean, 319 B.R. at 478.
> Therefore, our statutory analysis leads us to conclude that the
> determinative date for whether a claim is secured by a debtor's principal
> residence is, like all claims, fixed at the petition date.
>
> *VI. CONCLUSION*
>
> Because the bankruptcy court did not determine the character of
> BAC's claim as of the petition date, we REVERSE the orders granting the
> Motion to Modify and confirming the Debtors' Plan.
>
>
> Dennis
>
> On Apr 24, 2013, at 6:53 PM, Michael Avanesian
> wrote:
>
>
>
> You said, "My understanding is that the value of the property is
> determined as of the petition date. Is there contrary precedential
> authority?"
>
> in Crain (
> http://scholar.google.com/scholar_case? ... &as_sdt2,5
> ),
>
> Zurzolo said, "I conclude that the appropriate date of valuation for the
> Subject Property is the "effective date of the plan" or ten days after
> entry of the order confirming the plan, provided no timely appeal has been
> made."
>
> I don't know if that's what you were looking for. I am trying to figure
> out if the Abdelgadir case is truly an adverse holding to this Crain case
> or if Kwan got it wrong.
>
> Sincerely,
> Michael Avanesian
>
>
>
> On Wed, Apr 24, 2013 at 4:29 PM, Mark J. Markus wrote:
>
>> **
>>
>>
>> This is discussing valuation of the claim, not of the property securing
>> the claim, correct? My understanding is that the value of the property is
>> determined as of the petition date. Is there contrary precedential
>> authority?
>>
>> *************************
>> 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.
>> On 4/24/2013 3:25 PM, Michael Avanesian wrote:
>>
>> Yesterday, Judge Kwan said that when valuing real property, we have to
>> value it as of the petition date.
>>
>> I thought it was a misunderstanding until I looked at his 2:30 tentative.
>> Docket #47 says, in part:
>> "(2) the papers failed to identify and discuss applicable adverse
>> appellate authority in In re Abdelgadir, 455 B.R. 896 (9th Cir. BAP 2011),
>> *discussing valuation date for secured claim at petition date*, contrary
>> authority to In re Crain, 243 B.R. 75 (Bankr. C.D. Cal. 1999), relied upon
>> by debtor."
>>
>> In Court, he said that he follows Abdelgadir.
>> Did Judge Kwan make a mistake? When I read Abdelgadir, I thought (and
>> still do think) that the Court says that Crain is reasonable, that there is
>> contrary authority out there, but then moves on and distinguishes valuation
>> of property from determination of "primary residence" which is what
>> Abdelgadir is focused on.
>>
>> Sincerely,
>> Michael Avanesian
>>
>>
>>
>
>
I obviously love everything Kirk is saying because he's showing me all the authority that favors what I think is the correct position but I want to understand what I am misunderstanding.Dennis said, "Judge Kwan is correct. Look at the last two paragraphs of Abdelgadir:
The post was migrated from Yahoo.
Check out this tentative ruling by Judge Bason.
Very on point.
He values properties on current date, not on date of petition.
On Thu, Apr 25, 2013 at 1:36 PM, Kirk Brennan wrote:
> Judge Riblet has stated that the valuation date must be the date of
> chapter 11 confirmation. I believe Michael's case is a chapter 11 since
> that is the focus of his practice.
> So the answer may vary by judge.
>
>
> On Thu, Apr 25, 2013 at 1:02 PM, cdcbaa wrote:
>
>> **
>>
>>
>> Michael,
>>
>> Judge Kwan is correct. Look at the last two paragraphs of *
>>
>> Abdelgadir:
>> *
>>
>> As discussed above, a creditor's right to payment, whether it
>> later is deemed secured or unsecured depending on the value of the
>> collateral, is fixed at the petition date. 11 U.S.C. 101(5), 502; In
>> re Dean, 319 B.R. at 478.
>> Therefore, our statutory analysis leads us to conclude that the
>> determinative date for whether a claim is secured by a debtor's principal
>> residence is, like all claims, fixed at the petition date.
>>
>> *VI. CONCLUSION*
>>
>> Because the bankruptcy court did not determine the character of
>> BAC's claim as of the petition date, we REVERSE the orders granting the
>> Motion to Modify and confirming the Debtors' Plan.
>>
>>
>> Dennis
>>
>> On Apr 24, 2013, at 6:53 PM, Michael Avanesian
>> wrote:
>>
>>
>>
>> You said, "My understanding is that the value of the property is
>> determined as of the petition date. Is there contrary precedential
>> authority?"
>>
>> in Crain (
>> http://scholar.google.com/scholar_case? ... &as_sdt2,5
>> ),
>>
>> Zurzolo said, "I conclude that the appropriate date of valuation for
>> the Subject Property is the "effective date of the plan" or ten days after
>> entry of the order confirming the plan, provided no timely appeal has been
>> made."
>>
>> I don't know if that's what you were looking for. I am trying to figure
>> out if the Abdelgadir case is truly an adverse holding to this Crain case
>> or if Kwan got it wrong.
>>
>> Sincerely,
>> Michael Avanesian
>>
>>
>>
>> On Wed, Apr 24, 2013 at 4:29 PM, Mark J. Markus wrote:
>>
>>> **
>>>
>>>
>>> This is discussing valuation of the claim, not of the property securing
>>> the claim, correct? My understanding is that the value of the property is
>>> determined as of the petition date. Is there contrary precedential
>>> authority?
>>>
>>> *************************
>>> 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.
>>> On 4/24/2013 3:25 PM, Michael Avanesian wrote:
>>>
>>> Yesterday, Judge Kwan said that when valuing real property, we have to
>>> value it as of the petition date.
>>>
>>> I thought it was a misunderstanding until I looked at his 2:30
>>> tentative. Docket #47 says, in part:
>>> "(2) the papers failed to identify and discuss applicable adverse
>>> appellate authority in In re Abdelgadir, 455 B.R. 896 (9th Cir. BAP 2011),
>>> *discussing valuation date for secured claim at petition date*,
>>> contrary authority to In re Crain, 243 B.R. 75 (Bankr. C.D. Cal. 1999),
>>> relied upon by debtor."
>>>
>>> In Court, he said that he follows Abdelgadir.
>>> Did Judge Kwan make a mistake? When I read Abdelgadir, I thought (and
>>> still do think) that the Court says that Crain is reasonable, that there is
>>> contrary authority out there, but then moves on and distinguishes valuation
>>> of property from determination of "primary residence" which is what
>>> Abdelgadir is focused on.
>>>
>>> Sincerely,
>>> Michael Avanesian
>>>
>>>
>>>
>>
>>
>
>
>
> --
>
>
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> letters containing the signature of a director.
>
CONFIDENTIALITY NOTICE: This e-mail and any attachments are for the
exclusive and confidential use of the intended recipient. If you are not
the intended recipient, please do not read, distribute or take action in
reliance on this message. If you have received this message in error,
please notify us immediately by return e-mail and promptly delete this
message and its attachments from your computer system. We do not waive
attorney-client or work product privilege by the transmission of this
message.
TAX ADVICE NOTICE: Tax advice, if any, contained in this e-mail does not
constitute a "reliance opinion" as defined in IRS Circular 230 and may not
be used to establish reasonable reliance on the opinion of counsel for the
purpose of avoiding the penalty imposed by Section 6662A of the Internal
Revenue Code. The firm provides reliance opinions only in formal opinion
letters containing the signature of a director.
Check out this tentative ruling by Judge Bason.Very on point.He values properties on current date, not on date of petition.
The post was migrated from Yahoo.
Judge Riblet has stated that the valuation date must be the date of chapter
11 confirmation. I believe Michael's case is a chapter 11 since that is
the focus of his practice.
So the answer may vary by judge.
On Thu, Apr 25, 2013 at 1:02 PM, cdcbaa wrote:
> **
>
>
> Michael,
>
> Judge Kwan is correct. Look at the last two paragraphs of *
>
> Abdelgadir:
> *
>
> As discussed above, a creditor's right to payment, whether it
> later is deemed secured or unsecured depending on the value of the
> collateral, is fixed at the petition date. 11 U.S.C. 101(5), 502; In
> re Dean, 319 B.R. at 478.
> Therefore, our statutory analysis leads us to conclude that the
> determinative date for whether a claim is secured by a debtor's principal
> residence is, like all claims, fixed at the petition date.
>
> *VI. CONCLUSION*
>
> Because the bankruptcy court did not determine the character of
> BAC's claim as of the petition date, we REVERSE the orders granting the
> Motion to Modify and confirming the Debtors' Plan.
>
>
> Dennis
>
> On Apr 24, 2013, at 6:53 PM, Michael Avanesian
> wrote:
>
>
>
> You said, "My understanding is that the value of the property is
> determined as of the petition date. Is there contrary precedential
> authority?"
>
> in Crain (
> http://scholar.google.com/scholar_case? ... &as_sdt2,5
> ),
>
> Zurzolo said, "I conclude that the appropriate date of valuation for the
> Subject Property is the "effective date of the plan" or ten days after
> entry of the order confirming the plan, provided no timely appeal has been
> made."
>
> I don't know if that's what you were looking for. I am trying to figure
> out if the Abdelgadir case is truly an adverse holding to this Crain case
> or if Kwan got it wrong.
>
> Sincerely,
> Michael Avanesian
>
>
>
> On Wed, Apr 24, 2013 at 4:29 PM, Mark J. Markus wrote:
>
>> **
>>
>>
>> This is discussing valuation of the claim, not of the property securing
>> the claim, correct? My understanding is that the value of the property is
>> determined as of the petition date. Is there contrary precedential
>> authority?
>>
>> *************************
>> 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.
>> On 4/24/2013 3:25 PM, Michael Avanesian wrote:
>>
>> Yesterday, Judge Kwan said that when valuing real property, we have to
>> value it as of the petition date.
>>
>> I thought it was a misunderstanding until I looked at his 2:30 tentative.
>> Docket #47 says, in part:
>> "(2) the papers failed to identify and discuss applicable adverse
>> appellate authority in In re Abdelgadir, 455 B.R. 896 (9th Cir. BAP 2011),
>> *discussing valuation date for secured claim at petition date*, contrary
>> authority to In re Crain, 243 B.R. 75 (Bankr. C.D. Cal. 1999), relied upon
>> by debtor."
>>
>> In Court, he said that he follows Abdelgadir.
>> Did Judge Kwan make a mistake? When I read Abdelgadir, I thought (and
>> still do think) that the Court says that Crain is reasonable, that there is
>> contrary authority out there, but then moves on and distinguishes valuation
>> of property from determination of "primary residence" which is what
>> Abdelgadir is focused on.
>>
>> Sincerely,
>> Michael Avanesian
>>
>>
>>
>
>
CONFIDENTIALITY NOTICE: This e-mail and any attachments are for the
exclusive and confidential use of the intended recipient. If you are not
the intended recipient, please do not read, distribute or take action in
reliance on this message. If you have received this message in error,
please notify us immediately by return e-mail and promptly delete this
message and its attachments from your computer system. We do not waive
attorney-client or work product privilege by the transmission of this
message.
TAX ADVICE NOTICE: Tax advice, if any, contained in this e-mail does not
constitute a "reliance opinion" as defined in IRS Circular 230 and may not
be used to establish reasonable reliance on the opinion of counsel for the
purpose of avoiding the penalty imposed by Section 6662A of the Internal
Revenue Code. The firm provides reliance opinions only in formal opinion
letters containing the signature of a director.
Judge Riblet has stated that the valuation date must be the date of chapter 11 confirmation. I believe Michael's case is a chapter 11 since that is the focus of his practice.So the answer may vary by judge.
On Thu, Apr 25, 2013 at 1:02 PM, cdcbaa <cdcbaamailbox@gmail.com> wrote:
Michael,Judge Kwan is correct. Look at the last two paragraphs ofAbdelgadir: As discussed above, a creditor's right to payment, whether it later is deemed secured or unsecured depending on the value of the collateral, is fixed at the petition date. 11 U.S.C. 101(5), 502;
The post was migrated from Yahoo.
Michael,
Judge Kwan is correct. Look at the last two paragraphs of Abdelgadir:
As discussed above, a creditor's right to payment, whether it later is deemed secured or unsecured depending on the value of the collateral, is fixed at the petition date. 11 U.S.C. 101(5), 502; In re Dean, 319 B.R. at 478. Therefore, our statutory analysis leads us to conclude that the determinative date for whether a claim is secured by a debtor's principal residence is, like all claims, fixed at the petition date.
VI. CONCLUSION
Because the bankruptcy court did not determine the character of BAC's claim as of the petition date, we REVERSE the orders granting the Motion to Modify and confirming the Debtors' Plan.
Dennis
On Apr 24, 2013, at 6:53 PM, Michael Avanesian wrote:
> You said, "My understanding is that the value of the property is determined as of the petition date. Is there contrary precedential authority?"
>
> in Crain (http://scholar.google.com/scholar_case? ... &as_sdt2,5),
>
> Zurzolo said, "I conclude that the appropriate date of valuation for the Subject Property is the "effective date of the plan" or ten days after entry of the order confirming the plan, provided no timely appeal has been made."
>
> I don't know if that's what you were looking for. I am trying to figure out if the Abdelgadir case is truly an adverse holding to this Crain case or if Kwan got it wrong.
>
> Sincerely,
> Michael Avanesian
>
>
>
> On Wed, Apr 24, 2013 at 4:29 PM, Mark J. Markus wrote:
>>
>> This is discussing valuation of the claim, not of the property securing the claim, correct? My understanding is that the value of the property is determined as of the petition date. Is there contrary precedential authority?
>>
>> *************************
>> 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.
>> On 4/24/2013 3:25 PM, Michael Avanesian wrote:
>>> Yesterday, Judge Kwan said that when valuing real property, we have to value it as of the petition date.
>>>
>>> I thought it was a misunderstanding until I looked at his 2:30 tentative. Docket #47 says, in part:
>>> "(2) the papers failed to identify and discuss applicable adverse appellate authority in In re Abdelgadir, 455 B.R. 896 (9th Cir. BAP 2011), discussing valuation date for secured claim at petition date, contrary authority to In re Crain, 243 B.R. 75 (Bankr. C.D. Cal. 1999), relied upon by debtor."
>>> In Court, he said that he follows Abdelgadir.
>>>
>>> Did Judge Kwan make a mistake? When I read Abdelgadir, I thought (and still do think) that the Court says that Crain is reasonable, that there is contrary authority out there, but then moves on and distinguishes valuation of property from determination of "primary residence" which is what Abdelgadir is focused on.
>>>
>>> Sincerely,
>>> Michael Avanesian
>
>
Michael,Judge Kwan is correct. Look at the last two paragraphs of Abdelgadir: As discussed above, a creditor's right to payment, whether it later is deemed secured or unsecured depending on the value of the collateral, is fixed at the petition date. 11 U.S.C. 101(5), 502; In re Dean, 319 B.R. at 478. Therefore, our statutory analysis leads us to conclude that the determinative date for whether a claim is secured by a debtor's principal residence is, like all claims, fixed at the petition date.
The post was migrated from Yahoo.
I believe that on aLam motion it is the petition date. I always ask the appraiser to value as of petition date (or close to that date):
Pursuant to11 U.S.C.S. 101(5)and502, a creditor's right to payment, whether it later is deemed secured or unsecured depending on the value of the collateral, is fixed at the petition date. Therefore, the panel's statutory analysis led it to conclude that the determinative date for whether a claim is secured by a debtor's principal residence is, like all claims, fixed at the petition date.
The post was migrated from Yahoo.
Yesterday, Judge Kwan said that when valuing real property, we have to
value it as of the petition date.
I thought it was a misunderstanding until I looked at his 2:30 tentative.
Docket #47 says, in part:
"(2) the papers failed to identify and discuss applicable adverse appellate
authority in In re Abdelgadir, 455 B.R. 896 (9th Cir. BAP 2011), *discussing
valuation date for secured claim at petition date*, contrary authority to
In re Crain, 243 B.R. 75 (Bankr. C.D. Cal. 1999), relied upon by debtor."
In Court, he said that he follows Abdelgadir.
Did Judge Kwan make a mistake? When I read Abdelgadir, I thought (and still
do think) that the Court says that Crain is reasonable, that there is
contrary authority out there, but then moves on and distinguishes valuation
of property from determination of "primary residence" which is what
Abdelgadir is focused on.
Sincerely,
Michael Avanesian
Yesterday, Judge Kwan said that when valuing real property, we have to value it as of the petition date. I thought it was a misunderstanding until I looked at his 2:30 tentative. Docket #47 says, in part:
"(2) the papers failed
to identify and discuss applicable adverse appellate authority in In re Abdelgadir, 455 B.R.
896 (9th Cir. BAP 2011), discussing valuation date for secured claim at petition date,
contrary authority to In re Crain, 243 B.R. 75 (Bankr. C.D. Cal. 1999), relied upon by
debtor."In Court, he said that he follows Abdelgadir. Did Judge Kwan make a mistake? When I read Abdelgadir, I thought (and still do think) thatthe Court says that Crain is reasonable, that there is contrary authority out there, but then moves on and distinguishes valuation of property from determination of "primary residence" which is what Abdelgadir is focused on.
Sincerely, Michael Avanesian
The post was migrated from Yahoo.