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Hardship discharge and lien avoidance
Yes
Law Office of Eric Alan Mitnick
21515 Hawthorne Boulevard, Ste. 1080
Torrance, California 90503
(310) 792-5864; 792-5866 (fax)
MitnickLaw@aol.com
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To: cdcbaa
Sent: Mon, Apr 29, 2013 1:09 pm
Subject: RE: [cdcbaa] Hardship discharge and lien avoidance
Dear Eric,
The form orders provision is in the disjunctive. Item 4b.vi. states: The avoidance of the junior lienholders deed of trust, mortgage or lien is contingent upon: ___ completion of the chapter 13 plan, or ____ receipt of a chapter 13 discharge. Was your order issued prior to the forms?
All the best,
Nick
Nicholas Gebelt, Ph.D., J.D.
Board Certified Bankruptcy Specialist
Law Offices of Nicholas Gebelt
15150 Hornell Street
Whittier, CA 90604
Phone: 562.777.9159
FAX: 562.946.1365
Email: ngebelt@goodbye2debt.com; ngebelt@gebeltlaw.com
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.
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I have one in an SK case where the order avoiding the lien requires discharge and completetion of the plan. Hardship discharge was entered, but, obviously, plan not complete. Any difference?
Law Office of Eric Alan Mitnick
21515 Hawthorne Boulevard, Ste. 1080
Torrance, California 90503
(310) 792-5864; 792-5866 (fax)
MitnickLaw@aol.com
Although this email and any attachments are believed to be free of any virus or other defect that might affect any computer system into which it is received and opened, it is the responsibility of the recipient to ensure that it is virus free and no responsibility is accepted by the sender for any loss or damage arising in any way from its use.
The information contained in this email message and any attached files may be privileged, confidential and protected from disclosure. If you are not the intended recipient, any dissemination, distribution or copying is strictly prohibited. If you think that you have received this email message in error, please notify the sender by reply email, and delete the email message you received and all of the attached files.
To: cdcbaa
Sent: Mon, Apr 29, 2013 12:47 pm
Subject: RE: [cdcbaa] Hardship discharge and lien avoidance
Have not had a case like that but I cannot see why it would not work. As you stated, it will be a discharge in a 13.
Thank you,
Nancy B. Clark
100 N. Barranca Ave, Suite 250
West Covina, CA 91791
Tele: (626) 332-8600
Fax: (626) 332-8644
www.blclaw.com
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Dear John,
While I have done hardship discharges, and I have done lien strips, I have not had a case in which a client who has done a lien strip had to do a hardship discharge.
However, I also wondered about your scenario, and therefore posed your question to the Riverside Division judges at one of the Inland Empire meetings with the judges. Their answer was unanimous: the lien avoidance takes effect as long as the debtor receives a Chapter 13 discharge, regardless of whether it was a plan completion discharge or a hardship discharge. (Important Caveat: If your case is in Riverside and Judge Johnson is your judge, even if you did a Lam motion, he will also require an adversary proceeding prior to discharge to get the order avoiding the lien.)
The key thing, of course, is that the order must provide for lien avoidance upon receiving a discharge, rather than upon plan completion. As you know, the form order allows for either, or both, so I always check both. This covers the Chapter 20 situation as well as the plain vanilla Chapter 13. I have never had a judge complain about both boxes being checked, and none of them has ever changed the boxes.
Good luck,
Nick
Nicholas Gebelt, Ph.D., J.D.
Board Certified Bankruptcy Specialist
[Description: cid:image003.jpg@01CC076B.B14D73C0]
Law Offices of Nicholas Gebelt
15150 Hornell Street
Whittier, CA 90604
Phone: 562.777.9159
FAX: 562.946.1365
Email: ngebelt@goodbye2debt.com; ngebelt@gebeltlaw.com
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@gebeltlaw.com 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.
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Have not had a case like that but I cannot see why it would not work. As
you stated, it will be a discharge in a 13.
Thank you,
Nancy B. Clark
100 N. Barranca Ave, Suite 250
West Covina, CA 91791
Tele: (626) 332-8600
Fax: (626) 332-8644
www.blclaw.com
The post was migrated from Yahoo.
Hello fellow chapter 13 practitioners:
My clients have completed two and half years of their chapter 13 plan. We
have an order avoiding their second trust deed; that order "is effective
upon receipt of a chapter 13 discharge in this case."
Wife has had to quit work to take care of a troubled child. I am
considering applying for a hardship discharge under 1328.
Will the hardship discharge be effective for the lien avoidance? I think
it will, because it will be a discharge under chapter 13. Has anyone had
any contrary experience?
John D. Faucher
Faucher & Associates
*818/889-8080*
Hello fellow chapter 13 practitioners:
My clients have completed two and half years of their chapter 13 plan. We have an order avoiding their second trust deed; that order "is effective upon receipt of a chapter 13 discharge in this case."
Wife has had to quit work to take care of a troubled child. I am considering applying for a hardship discharge under 1328.
Will the hardship discharge be effective for the lien avoidance? I think it will, because it will be a discharge under chapter 13. Has anyone had any contrary experience?
The post was migrated from Yahoo.