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When is Chapter 13 Plan Technically Completed?
Depends on the order approving the motion.
Law Office of Eric Alan Mitnick
21515 Hawthorne Boulevard, Ste. 1080
Torrance, CA 90503
(310) 792-5864 (tel)
(310) 347-4353 (fax)
MitnickLaw@aol.com
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> On Jan 5, 2018, at 4:10 PM, jesseelaw@aol.com [cdcbaa] wrote:
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> When is a Chapter 13 plan technically completed for Lam motion purposes?
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> Chapter 13 Debtor has just completed a 5 years plan having made all plan payments, etc. Lam motion was granted 4 plus years ago conditional on completion of the plan (not upon discharge). Debtor behind on 1st TD payments and facing recording of NOD by lender (Lender obtained relief from stay) Any NOD being recorded has a negative impact on the sales price of a voluntary sale as the potential buyer knows the property can be purchased at the foreclosure auction for less. Debtor needs to have the final order avoiding the junior liens in order to be able to sell the property and based upon current market conditions be able to net enough money to move and pocket a extremely modest amount. Otherwise there is no equity. Debtor does not have the several months time i t will take for the trustee's accounting, etc and entry of a discharge. The property will be likely be on the verge of a foreclosure sale by that point.
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> Debtor filed the Certificate of Compliance under Section 1328(a) as Debtor has done everything required under the plan. I filed a Declaration RE: Debtor's Motion to Avoid Junior Lien on Principal Residence on the applicable local rule mandatory form checking box 4 that the Debtor has completed the Chapter 13 plan. I submitted the proposed Order RE: Debtor's Motion to Avoid Junior Lien on Principal Residence (After Plan Completion/Discharge). I always have interpreted plan completion to be when the debtor completed all the required terms of the plan as being the condition placed as the condition precedent to be met for a final order avoiding the lien. The Certificate of Compliance has a declaration under penalty of perjury that all terms of the plan were completed. The Declaration RE: Debtor's Motion to Avoid Junior Lien on Principal Residence on the applicable local rule mandatory form has an attorney declaration under penalty of perjury that the Chapter 13 plan was completed. Judge Kaufman's interpretation is otherwise. She rejected the submitted orders on the grounds that the Chapter 13 trustee has not submitted her report saying the plan was completed from the trustee's perspective. The trustee's report needing to be filed is not listed in section 506(d) any other FRBP or local rule for a chapter 13 plan to be completed. Obviously a final report is required for a discharge, but that is not the same thing in my analysis. Nor does that requirement seemingly comport with the local form's language. The trustee having filed her final report is not an element of the local form terms in the requirement for issuance of the final lien avoidance order. If a trustee final report is a requirement it seems odd the form wants the attorney to submit a declaration under penalty of perjury that the plan is completed. Basically the attorney's representation is insufficient under those circumstances.
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> Anyone else faced this issue?
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> Mark Jessee
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