.jpg)
Death of debtor in Chapter 13
A few years ago, I coordinated with the County of LA Public Administrator to continue making payments through the plan of the deceased debtor because it was beneficial to the heirs.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
On Thursday, February 5, 2015 12:57 PM, "jesseelaw@aol.com [cdcbaa]" wrote:
I do not read FRBP 2016to mean a Chapter 13 in "normally dismissed" after a debtor's death when it says the "...case may be dismissed, or if further administration is possible and in best interests of the parties, the case may proceed...." If it said shall be dismissed unless, I would agree, but not with the far less restrictive language of "...the case may be dismissed, or...."
Depending on the circumstancesrather than seeking a hardship discharge, continuing to pay off the plan after the Chapter 13 debtor's death may be the leastproblematic option. 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)
a@yahoogroups.com writes:
issed upon the death of the debtorand assets are distributed through theprobate process"unless further administration is possible and in the best interest of the parties". Under this rule, creditors have the right to oppose a chapter 13 discharge if it is intheir best interests that the debtor's assets be distributed through a probate proceeding. Inyour case, the "stripped" mortgage creditor may have something to say about the court granting a hardship discharge!
The post was migrated from Yahoo.
I do not read FRBP 2016 to mean a Chapter 13 in "normally dismissed" aftera debtor's death when it says the "...case may be dismissed, or if
further administration is possible and in best interests of the parties, the case
may proceed...." If it said shall be dismissed unless, I would agree, butnot with the far less restrictive language of "...the case may be
dismissed, or...."
Depending on the circumstances rather than seeking a hardship discharge,
continuing to pay off the plan after the Chapter 13 debtor's death may bethe least problematic option.
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 2/5/2015 9:28:30 A.M. Pacific Standard Time,
cdcbaa@yahoogroups.com writes:
Also note that, under rule 1016, a Chapter 13 is normally dismissed upon
the death of the debtor and assets are distributed through the probate
process "unless further administration is possible and in the best interest of
the parties". Under this rule, creditors have the right to oppose a chapter
13 discharge if it is in their best interests that the debtor's assets bedistributed through a probate proceeding. In your case, the "stripped"
mortgage creditor may have something to say about the court granting a hardship
discharge!
I do not read FRBP 2016 to mean a Chapter 13 in "normally dismissed"
after a debtor's death when it says the "...case may be dismissed, or if
further administration is possible and in best interests of the parties, the
case may proceed...." If it said shall be dismissed unless, I would agree,
but not with the far less restrictive language of "...the case may be dismissed,
or...."
Depending on the circumstances rather than seeking a hardshipdischarge, continuing to pay off the plan after the Chapter 13 debtor's death
may be the least problematic option.
Mark T.
JesseeLaw Offices of Mark T. Jessee"A Debt Relief Agency"50 W.Hillcrest Drive, Suite 200Thousand Oaks, CA 91360(805) 497-5868 (805)
497-5864 (Facsimile)
In a message dated 2/5/2015 9:28:30 A.M. Pacific Standard Time,
cdcbaa@yahoogroups.com writes:
Also note that, under rule 1016, a Chapter 13 is normally dismissed
upon the death of the debtor and assets are distributed through
the probate process "unless further administration is possible and
in the best interest of the parties". Under this rule, creditors have
the right to oppose a chapter 13 discharge if it is in their best
interests that the debtor's assets be distributed through a probate
proceeding. In your case, the "stripped" mortgage creditor may have something to say about the court granting a hardship discharge!
The post was migrated from Yahoo.
I have completed a Ch 13 after the debtors death. We got ex-parte letters of spec admin from the probate court and then general letters as there was no trust. Your administrator then signs all docs.
If you have any questions or concerns, please contact me.
Pat
Patrick T. Green
Attorney at Law
Fitzgerald & Green, Attorneys at Law
1010 E. Union St. Suite 206
Pasadena, CA 91106
Tel: (626) 449-8433
Fax: (626) 449-0565
pat@fitzgreenlaw.com
The post was migrated from Yahoo.
Hale:
The issue is how does the attorney have standing to request anything whenthe client is dead? If there is a codebtor, the codebtor could request the
waiver of the certificate of compliance from the court for the decedent
spouse. If no codebtor then the personal representative of the decedent
debtor's estate could apply for the waiver. Since the debtor is dead there is
no infant or incompetent person so FRBP 1004.1 does not really seem to fitfor the bankruptcy court to appoint a guardian ad litem and FRBP 1016 doesnot inform us how to proceed with a Chapter 13 after a debtor's death. Itjust says the case may proceed and be concluded in the same manner, as faras possible as though the death had not occurred.
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)
NOTICE TO RECIPIENT: THIS E-MAIL IS MEANT FOR ONLY THE INTENDED RECIPIENTOF THE TRANSMISSION, AND THIS COMMUNICATION IS INTENDED TO BE PRIVILEGED BY
LAW. IF YOU RECEIVED THIS E-MAIL IN ERROR, ANY REVIEW, USE, DISSEMINATION,DISTRIBUTION, OR COPYING OF THIS E-MAIL IS STRICTLY PROHIBITED. PLEASE
NOTIFY US IMMEDIATELY OF THE ERROR BY RETURN E-MAIL AND PLEASE DELETE THISMESSAGE FROM YOUR SYSTEM. THANK YOU IN ADVANCE FOR YOUR COOPERATION.
In a message dated 2/4/2015 8:41:09 A.M. Pacific Standard Time,
cdcbaa@yahoogroups.com writes:
Not to hijack the thread, but two follow-up questions:
1) upon plan completion, must debtor's counsel request Hardship Dischargesince no debtor is alive to sign the Entry for Discharge?
2) If case in 1) were joint filing, if joint debtor dies during plan, cansurviving debtor alone sign the Entry for Discharge, or is there some
procedural hurdle?
Hale
____________________________________
Sent: Tuesday, February 03, 2015 7:50 PM
To: cdcbaa@yahoogroups.com
Subject: Re: [cdcbaa] Re: Death of debtor in Chapter 13
Depending on the amount and number of the remaining payments it may just be easier to complete the plan. If all of his assets are in the trust noprobate proceeding would usually be required as there are no assets subjectto probate. Under those circumstances obtaining letters of special
administration strictly to wrap up the bankruptcy documentation would be less
cumbersome than pursuing a full probate proceeding.
Mark Jessee
Sent from my iPhone
On Feb 3, 2015, at 5:25 PM, stephen burton _stephenburtonlaw@yahoo.com_
(mailto:stephenburtonlaw@yahoo.com) [cdcbaa] wrote:
This is my situation. Single chapter 13 debtor passes away just a few
months shy of the five year on the lien strip. Heirs are the beneficiary of
his trust. There is now substantial equity in the home after the strip
becomes effective (if I can get there). So converting to chapter 7 is out of
the question.
Is the consensus from this string that the debtor apply for the hardship
discharge and declare the plan performed? The lien strip order provides the
lien strip is contingent upon the performance of the plan and entry of thedischarge. I imagine I need to file a proceeding in Probate Court to
obtain letters testamentary so the heirs can sign the necessary follow updocuments in the bankruptcy case.
On Thursday, September 11, 2008 7:18 AM, James T. King wrote:
You are correct. That is the case and no you cant do it. Nor can you
do it in the 13 and then convert and maintain the strip----see previous e-mails.
Jim King
Of Creighton Stephens
Sent: Wednesday, September 10, 2008 11:10 AM
To: cdcbaa@yahoogroups. com
Subject: RE: [cdcbaa] Re: Death of debtor in Chapter 13
I seem to recall a case prohibiting lien stripping in Chapter 7 - in re
Dewsnup... not sure of the spelling, from some time ago,
Has anyone been successful in a Chapter 7 lien strip?
Creighton Stephens
THIS COMMUNICATION MAY BE PRIVILEGED
DO NOT FORWARD WITHOUT PERMISSION
Confidentiality: This e-mail and any attachments to it are intended onlyfor use by the addressee(s) named herein and may contain legally privileged
and/or confidential information. If you are not the intended recipient ofthis e-mail, you are hereby notified that any dissemination, distributionor copying of this e-mail or any attachments to it is strictly prohibited.If you have received this e-mail in error, please immediately notify me bytelephone at (805) 504-2816 and permanently delete the original and any
copy of this e-mail and any printout of it.
Not Intended as a Substitute for a Writing: Notwithstanding the Uniform Electronic Transactions Act or the applicability of any other law of similar
substance or effect, absent an express statement to the contrary
hereinabove, this email message, its contents, and any attachments hereto are not
intended to represent an offer or acceptance to enter into a contract andare not otherwise intended to bind the sender, CREIGHTON A. STEPHENS,
clients, or any other person or entity.
CREIGHTON A. STEPHENS
ATTORNEY AND COUNSELOR AT LAW
ARBITRATOR-MEDIATOR
179 CINDY AVENUE
POST OFFICE BOX 3 NEWBURY PARK CA 91319
PHONE: 805.504.2816 FAX: 805.830.1112
CASESQ@VERIZON. NET
BANKRUPTCY REAL ESTATE LITIGATION APPEALS
____________________________________
Of David A. Tilem
Sent: Wednesday, September 10, 2008 6:30 AM
To: cdcbaa@yahoogroups. com
Subject: RE: [cdcbaa] Re: Death of debtor in Chapter 13
Thanks for the correction. Lien strip would have to be repeated in C7,
but res judicata, so should be unopposed motion.
David A. Tilem
Certified Bankruptcy Specialist*
Law Offices of David A. Tilem (a debt relief agency)
206 N. Jackson Street, #201, Glendale, CA 91206
Tel: 818-507-6000 Fax: 818-507-6800
* Bankruptcy specialist cert. by State Bar of CA Bd of Legal
Specialization.
tion
Of Law Offices of Louis J. Esbin
Sent: Monday, September 08, 2008 9:09 PM
To: cdcbaa@yahoogroups. com
Subject: [cdcbaa] Re: Death of debtor in Chapter 13
Sorry to disagree, David, lien strip is only final upon entry of the
discharge, not upon conversion and discharge. Complete Chapter 13
following hardship discharge. Lou
A. Tilem" wrote:
>
> When he dies, convert case to C7 to discharge debt.
> Lien strip is done so RP will go to heirs free of junior lien and
without
> discharged debt.
> You did not say anything about mtg arrearage so assuming there is
none.
> If there is, then heirs can do C13 based on equitable interest in RP and
> cure default through C13.
>
> David A. Tilem
> Certified Bankruptcy Specialist*
> Law Offices of David A. Tilem (a debt relief agency)
> 206 N. Jackson Street, #201, Glendale, CA 91206
> Tel: 818-507-6000 Fax: 818-507-6800
>
> * Bankruptcy specialist cert. by State Bar of CA Bd of Legal
> Specialization.
> Business bankruptcy specialist cert. by Amer. Bd. of Certification
>
>
>
[mailto:_cdcbaa@yahoogroups. com_ (mailto:cdcbaa@yahoogroups.com) ] On
Behalf Of
> wolveklaw@.. .
> Sent: Thursday, September 04, 2008 12:52 PM
> To: _cdcbaa@yahoogroups. com_ (mailto:cdcbaa@yahoogroups.com)
> Subject: [cdcbaa] Death of debtor in Chapter 13
>
>
>
> Anyone have this experience? I have a single debtor in Chapter 13 who
> is in grave health and is not going to live much longer. I did a lien
> strip of his second. He is 24 months from discharge. The real property
> at issue is in a trust to go to his heirs. Can I do a request for a
> hardship discharge with the heirs paying off the plan? Looked at
> Bankruptcy Rule 1016 but was not sure if best interest included heirs
> who could then take the property free and clear from the 2nd. Thank you> for your responses.
>
> Steven A. Wolvek, Esq.
> Law Offices of Steven A. Wolvek
> 23901 Calabasas Road, Suite 1063
> Calabasas, CA 91302
> 818-227-3379
> FAX 818-227-3383
> Web: _wolveklaw.com_ (http://wolveklaw.com/)
>
Hale:
The issue is how does the attorney have standing to request anything
when the client is dead? If there is a codebtor, the codebtor could
request the waiver of the certificate of compliance from the court for the
decedent spouse. If no codebtor then the personal representative of
the decedent debtor's estate could apply for the waiver. Since the debtor
is dead there is no infant or incompetent person so FRBP 1004.1
does not really seem to fit for the bankruptcy court to appoint a guardian
ad litem and FRBP 1016 does not inform us how to proceed with a Chapter
13 after a debtor's death. It just says the case may proceed and be
concluded in the same manner, as far as possible as though the death had not
occurred.
Mark T.
JesseeLaw Offices of Mark T. Jessee"A Debt Relief Agency"50 W.Hillcrest Drive, Suite 200Thousand Oaks, CA 91360(805) 497-5868 (805)
497-5864 (Facsimile)NOTICE TO RECIPIENT: THIS E-MAIL IS MEANT FOR ONLY
THE INTENDED RECIPIENT OF THE TRANSMISSION, AND THIS COMMUNICATION IS INTENDED
TO BE PRIVILEGED BY LAW. IF YOU RECEIVED THIS E-MAIL IN ERROR, ANY REVIEW, USE,
DISSEMINATION, DISTRIBUTION, OR COPYING OF THIS E-MAIL IS STRICTLY PROHIBITED.
PLEASE NOTIFY US IMMEDIATELY OF THE ERROR BY RETURN E-MAIL AND PLEASE DELETE
THIS MESSAGE FROM YOUR SYSTEM. THANK YOU IN ADVANCE FOR YOUR COOPERATION.
In a message dated 2/4/2015 8:41:09 A.M. Pacific Standard Time,
cdcbaa@yahoogroups.com writes:
Not to hijack the thread, but two follow-up questions:
1) upon plan completion, must debtor's counsel request
Hardship Discharge since no debtor is alive to sign the Entry for
Discharge?
2) If case in 1) were joint filing, if joint debtor dies
during plan, can surviving debtor alone sign the Entry for Discharge, or is
there some procedural hurdle?
Hale
From: cdcbaa@yahoogroups.com
[mailto:cdcbaa@yahoogroups.com] Sent: Tuesday, February 03, 2015
7:50 PMTo: cdcbaa@yahoogroups.comSubject: Re: [cdcbaa]
Re: Death of debtor in Chapter 13
Depending on the amount and number of the remaining payments it may just
be easier to complete the plan. If all of his assets are in the trust
no probate proceeding would usually be required as there are no assets subject
to probate. Under those circumstances obtaining letters of special
administration strictly to wrap up the bankruptcy documentation would be less
cumbersome than pursuing a full probate proceeding.
Mark Jessee
Sent from my iPhone
On Feb 3, 2015, at 5:25 PM, stephen burton
The post was migrated from Yahoo.
charset="windows-1251"
Not to hijack the thread, but two follow-up questions:
1) upon plan completion, must debtor's counsel request Hardship Discharge
since no debtor is alive to sign the Entry for Discharge?
2) If case in 1) were joint filing, if joint debtor dies during plan, can
surviving debtor alone sign the Entry for Discharge, or is there some
procedural hurdle?
Hale
_____
The post was migrated from Yahoo.
Depending on the amount and number of the remaining payments it may just be easier to complete the plan. If all of his assets are in the trust no probate proceeding would usually be required as there are no assets subject to probate. Under those circumstances obtaining letters of special administration strictly to wrap up the bankruptcy documentation would be less cumbersome than pursuing a full probate proceeding.
Mark Jessee
Sent from my iPhone
> On Feb 3, 2015, at 5:25 PM, stephen burton stephenburtonlaw@yahoo.com [cdcbaa] wrote:
>
> This is my situation. Single chapter 13 debtor passes away just a few months shy of the five year on the lien strip. Heirs are the beneficiary of his trust. There is now substantial equity in the home after the strip becomes effective (if I can get there). So converting to chapter 7 is out of the question.
>
> Is the consensus from this string that the debtor apply for the hardship discharge and declare the plan performed? The lien strip order provides the lien strip is contingent upon the performance of the plan and entry of the discharge. I imagine I need to file a proceeding in Probate Court to obtain letters testamentary so the heirs can sign the necessary follow up documents in the bankruptcy case.
>
>
> On Thursday, September 11, 2008 7:18 AM, James T. King wrote:
>
>
> You are correct. That is the case and no you cant do it. Nor can you do it in the 13 and then convert and maintain the strip----see previous e-mails.
> Jim King
>
Of Creighton Stephens
> Sent: Wednesday, September 10, 2008 11:10 AM
> To: cdcbaa@yahoogroups. com
> Subject: RE: [cdcbaa] Re: Death of debtor in Chapter 13
>
> I seem to recall a case prohibiting lien stripping in Chapter 7 - in re Dewsnup... not sure of the spelling, from some time ago,
> Has anyone been successful in a Chapter 7 lien strip?
>
>
> Creighton Stephens
>
>
>
> >
> THIS COMMUNICATION MAY BE PRIVILEGED
> DO NOT FORWARD WITHOUT PERMISSION
> Confidentiality: This e-mail and any attachments to it are intended only for use by the addressee(s) named herein and may contain legally privileged and/or confidential information. If you are not the intended recipient of this e-mail, you are hereby notified that any dissemination, distribution or copying of this e-mail or any attachments to it is strictly prohibited. If you have received this e-mail in error, please immediately notify me by telephone at (805) 504-2816 and permanently delete the original and any copy of this e-mail and any printout of it.
> Not Intended as a Substitute for a Writing: Notwithstanding the Uniform Electronic Transactions Act or the applicability of any other law of similar substance or effect, absent an express statement to the contrary hereinabove, this email message, its contents, and any attachments hereto are not intended to represent an offer or acceptance to enter into a contract and are not otherwise intended to bind the sender, CREIGHTON A. STEPHENS, clients, or any other person or entity.
> CREIGHTON A. STEPHENS
>
> ATTORNEY AND COUNSELOR AT LAW
> ARBITRATOR-MEDIATOR
>
> 179 CINDY AVENUE
> POST OFFICE BOX 3 NEWBURY PARK CA 91319
> PHONE: 805.504.2816 FAX: 805.830.1112
> CASESQ@VERIZON. NET
>
> BANKRUPTCY REAL ESTATE LITIGATION APPEALS
>
Of David A. Tilem
> Sent: Wednesday, September 10, 2008 6:30 AM
> To: cdcbaa@yahoogroups. com
> Subject: RE: [cdcbaa] Re: Death of debtor in Chapter 13
>
> Thanks for the correction. Lien strip would have to be repeated in C7, but res judicata, so should be unopposed motion.
>
>
> David A. Tilem
> Certified Bankruptcy Specialist*
> Law Offices of David A. Tilem (a debt relief agency)
> 206 N. Jackson Street, #201, Glendale, CA 91206
> Tel: 818-507-6000 Fax: 818-507-6800
>
> * Bankruptcy specialist cert. by State Bar of CA Bd of Legal Specialization.
> Business bankruptcy specialist cert. by Amer. Bd. of Certification
> -----Original Message-----
Of Law Offices of Louis J. Esbin
> Sent: Monday, September 08, 2008 9:09 PM
> To: cdcbaa@yahoogroups. com
> Subject: [cdcbaa] Re: Death of debtor in Chapter 13
> Sorry to disagree, David, lien strip is only final upon entry of the
> discharge, not upon conversion and discharge. Complete Chapter 13
> following hardship discharge. Lou
>
> --- In cdcbaa@yahoogroups. com, "David A. Tilem" wrote:
> >
> > When he dies, convert case to C7 to discharge debt.
> > Lien strip is done so RP will go to heirs free of junior lien and
> without
> > discharged debt.
> > You did not say anything about mtg arrearage so assuming there is
> none.
> > If there is, then heirs can do C13 based on equitable interest in RP and
> > cure default through C13.
> >
> > David A. Tilem
> > Certified Bankruptcy Specialist*
> > Law Offices of David A. Tilem (a debt relief agency)
> > 206 N. Jackson Street, #201, Glendale, CA 91206
> > Tel: 818-507-6000 Fax: 818-507-6800
> >
> > * Bankruptcy specialist cert. by State Bar of CA Bd of Legal
> > Specialization.
> > Business bankruptcy specialist cert. by Amer. Bd. of Certification
> >
> >
> >
> Behalf Of
> > wolveklaw@.. .
> > Sent: Thursday, September 04, 2008 12:52 PM
> > To: cdcbaa@yahoogroups. com
> > Subject: [cdcbaa] Death of debtor in Chapter 13
> >
> >
> >
> > Anyone have this experience? I have a single debtor in Chapter 13 who
> > is in grave health and is not going to live much longer. I did a lien
> > strip of his second. He is 24 months from discharge. The real property> > at issue is in a trust to go to his heirs. Can I do a request for a
> > hardship discharge with the heirs paying off the plan? Looked at
> > Bankruptcy Rule 1016 but was not sure if best interest included heirs
> > who could then take the property free and clear from the 2nd. Thank you> > for your responses.
> >
> > Steven A. Wolvek, Esq.
> > Law Offices of Steven A. Wolvek
> > 23901 Calabasas Road, Suite 1063
> > Calabasas, CA 91302
> > 818-227-3379
> > FAX 818-227-3383
> > Web: wolveklaw.com
> >
>
>
>
The post was migrated from Yahoo.