thank you thank you thank you Jeff Smith... for showing us In re Higgins
201 BR 965, 967-968...
"Congress has made it clear in amending Section 522 that a lien will be
deemed to impair an exemption, even when there is no equity in the
property, if the sum of all the liens on the property and the hypothetical
value of the exemption without liens exceeds the value of the debtor's
interest in the property 968*968 in the absence of liens. Pursuant to the
plain language of the amended statute, the Debtors in this case are
entitled to avoid HFC's lien.
this is the link i have been missing in my theory to avoid foreclosure
sales by credit bid to undersecured creditors as fraudulent transfers.
On Tue, Mar 12, 2013 at 11:17 PM, jbsesq1965 wrote:
> **
>
>
> I disagree. What's the authority for the position that the bank carve out
> isn't exemptable?
>
> I am at home and don't have the citation, but the case of In Re Higgins
> might help. In that case the issue was 11 U.S.C. section 522(f) and whether
> the debtor could claim an exemption in "negative equity" in the house to
> get a judicial lien avoided. The 9th Cir. (BAP I believe) said yes. I
> haven't read that case in a while but if memory serves me the court
> specifically said that the debtor's possessory interest has value, and that
> is exemptable.
>
> Same logic should apply. If you have exemptions available, amend C right
> away. Cite Higgins right on the schedule. Then watch what happens when the
> bank finds out they have to carve out for the trustee and the borrower's
> exemption. Most bankers would rather claw their eyes out with their
> fingernails than allow a short sale carve out of more than moving costs for
> the borrower, then pay for realtors and then pay some of the borrower's
> creditors. Plus if Linda gets fought and loses even one of these, it will
> very quickly become not cost efficient for her to do this with her new
> realtor best friends.
>
> Jeff Smith
>
> --- In
cdcbaa@yahoogroups.com, Larry Simons wrote:
> >
> > But if the lenders are giving the trustee a carve out, those monies are
> not something that can be exempted. Essentially, the trustee is sharing the
> lien position with the lender giving the carve out. Secured liens are paid
> before exemptions. Exemptions protect equity in an asset.
> >
> > Sent from my iPad
> >
> > On Mar 10, 2013, at 6:43 PM, "Leventhal Law Group, P.C." ...> wrote:
> >
> >
> >
> > Yes, because the Trustee could potentially hold the case open waiting
> for the property to increase in value.
> >
> >
> >
> > Jonathan Leventhal, Esq..
> > Leventhal Law Group, P.C.
> > 818-347-5800
> >
> > NO EX-PARTE NOTICE VIA VOICE MAIL OR EMAIL: I do not accept e-mail
> notice for ex parte Applications via voicemail or by email. You must comply
> with California Law and give notice to a person in my office during regular
> business hours.
> >
> > This email and any attachments thereto may contain private,
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> intended recipient, please contact the sender immediately and permanently
> delete the original and any copies of this email and any attachments
> thereto.
> >
> > Leventhal Law Group, P.C. is a Debt Relief Agency under federal law.
> >
> > Note: The Leventhal Law Group, P.C. does not represent you until a
> written fee agreement has been signed by you and a representative of the
> Leventhal Law Group, P.C. and all fees listed in the agreement have been
> paid.
> >
> > On Mar 10, 2013, at 6:31 PM, "Paul Horn" > wrote:
> >
> >
> >
> > Can you exempt a primary resident is that negative equity?
> >
> >
> > Paul Horn
> > Attorney at Law
> > Certified Public Accountant
> > 850 E. Las Tunas Drive
> > San Gabriel, CA 91776
> > 800-380-7076
> >
> >
> > ________________________________
> > To: "
cdcbaa@yahoogroups.com cdcbaa@yahoogroups.com>
>
> > Sent: Sunday, March 10, 2013 5:04 PM
> > Subject: Re: [cdcbaa] Chapter 7 Tru stee Forcing Short Sale
> >
> >
> > Converting would assume their is some positive cash flow. Exemption and
> motion to abandon is really the best viable option in my opinion.
> >
> >
> >
> > Jonathan Leventhal, Esq..
> > Leventhal Law Group, P.C.
> > 818-347-5800
> >
> > NO EX-PARTE NOTICE VIA VOICE MAIL OR EMAIL: I do not accept e-mail
> notice for ex parte Applications via voicemail or by email. You must comply
> with California Law and give notice to a person in my office during regular
> business hours.
> >
> > This email and any attachments thereto may contain private,
> confidential, and privileged material for the sole use of the intended
> recipient. Any review, copying, or distribution of this email (or any
> attachments thereto) by others is strictly prohibited. If you are not the
> intended recipient, please contact the sender immediately and permanently
> delete the original and any copies of this email and any attachments
> thereto.
> >
> > Leventhal Law Group, P.C. is a Debt Relief Agency under federal law.
> >
> > Note: The Leventhal Law Group, P.C. does not represent you until a
> written fee agreement has been signed by you and a representative of the
> Leventhal Law Group, P.C. and all fees listed in the agreement have been
> paid.
> >
> > On Mar 10, 2013, at 5:02 PM, "Clifford Bordeaux" > wrote:
> >
> >
> > I would think that the judge would want to make sure that the debtor is
> prepared to pay creditors at least the amount of the proposed carve-out
> before letting the debtor convert. And if it is a WJ case, then conversion
> probably wouldn't be a viable option.
> >
> > On Sun, Mar 10, 2013 at 4:19 PM, Mark J. Markus > wrote:
> > Apparently happening quite a bit now. There was a thread on this a
> couple weeks ago, so check the prior posts.
> >
> > Hasn't happened in one of my cases yet, but if client wants to keep the
> house, why not convert to Ch. 13 and do something like a $50 per month
> 36-month plan (assuming the Form 22C so allows and they don't have any
> priority debts that wouldn't be paid in full, although even then the
> creditor can agree to different treatment)?
> >
> > *************************
> > 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 3/10/2013 4:06 PM, Paul Horn wrote:
> >
> > Good Afternoon
> >
> > Lynda Bui, a Chapter 7 Trustee, is forcing my Chapter 7 client to short
> sale his house. Has anyone seen this and how to deal with it if
> >
> > debtor is applying for a loan modification to keep the house? There is
> absolutely no equity in the house.
> >
> > Thank You!!
> >
> > Paul Horn
> > Attorney at Law
> > Certified Public Accountant
> > 850 E. Las Tunas Drive
> > San Gabriel, CA 91776
> > 800-380-7076
> >
> >
> >
> >
> >
> > --
> > Clifford Bordeaux
> > Bordeaux Law, P.C.
> > 790 E. Colorado Boulevard, 9th Floor
> > Pasadena, CA 91101
> > T: 626-405-2345 / F: 626-4-628-1820 E: cliff@...
> >
> >
>
>
>
thank you thank you thank you Jeff Smith... for showing us In re Higgins 201 BR 965, 967-968...
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