Chapter 7 Trustee Forcing Short Sale
Posted: Thu May 16, 2013 12:39 pm
Interesting opinion from last month
On Fri, Mar 15, 2013 at 9:47 AM, Wesley H. Avery wrote:
> **
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> Touch.****
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> ** **
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> ** **
>
> *Wesley H. Avery**
> Wesley H. Avery, Esq.
> Roquemore, Pringle & Moore, Inc.*
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> *From:* cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com] *On Behalf
> Of *Jeffrey S. Shinbrot
> *Sent:* Friday, March 15, 2013 9:35 AM
> *To:* cdcbaa@yahoogroups.com
> *Subject:* RE: [cdcbaa] Re: Chapter 7 Trustee Forcing Short Sale****
>
> ** **
>
> ****
>
> If we are talking about a homestead property, whether behind on the
> mortgage or not, it constitutes a forced sale by a trustee ((In re Cole, 93
> B.R. 707 (9th Cir BAP 1988)) and I would argue that that the homestead
> trumps I am interested in the appeal (really on either side but Id
> rather have the debtor in this one, especially if I get to take Wes to
> breakfast in Pasadena after oral argument). ****
>
> ****
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> ****
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> ****
>
> *From:* cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com]
> *On Behalf Of *Leventhal Law Group, P.C.
> *Sent:* Friday, March 15, 2013 8:45 AM
> *To:* cdcbaa@yahoogroups.com
> *Subject:* Re: [cdcbaa] Re: Chapter 7 Trustee Forcing Short Sale****
>
> ****
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> Is their any statistics as to wether this is happening when the Debtors
> are current with the mortgage payments or behind in payments, or.....?****
>
> ****
>
> ****
>
> 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
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>
> On Mar 15, 2013, at 6:25 AM, "Catherine Christiansen" christiansenlaw@yahoo.com> wrote:****
>
> ****
>
> It appears that the "lenders" are working to circumvent the Debtor filing
> a lawsuit to litigate Chain of Title or other Issues after discharge. The
> Debtor does not have standing to litigate in Chapter 7 because the Trustee
> steps into the shoes of the Debtor and can refuse to litigate. The Debtor
> would have to litigate outside of Bankruptcy, maybe before filing the
> petition.
> The "lenders" actions are also cutting off Debtors rights under the HBOR.
> Perhaps Relief from Stay limited to negotiations would circumvent the offer
> to the Trustee. ****
>
> ****
>
> ****
>
> Law Office of Catherine Christiansen
> 17011 Beach Blvd. Ste 900, Huntington Beach, CA 92647
> Tel: (714) 375-6651 Fax: (562) 490-8572
> attorneychristiansen@gmail.com****
>
> ****
>
> ****
> ------------------------------
>
> *From:* "jesseelaw@aol.com"
> *To:* cdcbaa@yahoogroups.com
> *Sent:* Thursday, March 14, 2013 8:56 PM
> *Subject:* Re: [cdcbaa] Re: Chapter 7 Trustee Forcing Short Sale****
>
> ****
>
> ****
>
> It appears to me that the lender is not waiving a portion of its claim
> but rather assigning part of its claim to the Chapter 7 trustee in
> consideration for being paid without the hassle, delay and uncertainty of
> pursuing a foreclosure sale. Thus no equity is created for the debtor to
> exempt. I agree with Larry that a judgment lien's treatment where there is
> negative equity as in Higgins is distinguishable from a voluntary lien
> situation. ****
>
> ****
>
> That said, I do not like the potential resulting consequences for my
> debtor clients and would try and find a way to dissuade the Chapter 7
> trustee from pursuing a short sale. In the personal residence context
> it seems antithetical to the concept of a fresh start for a trustee to
> short sell a property out from under a debtor without any proceeds being
> exemptible, but I warn all who are underwater on their real property of the
> possibility of a Chapter 7 trustee attempting a short sale. ****
>
> ****
>
> 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 3/14/2013 8:24:40 P.M. Pacific Daylight Time,
> mitnicklaw@aol.com writes:****
>
> ****
>
> The homestead protects equity in the real property. When the bank agrees
> to accept less than its full claim, it creates equity that the debtor
> should be allowed to protect.
>
> Sent from my iPhone ****
>
> Law Office of Eric Alan Mitnick ****
>
> (310) 792-5864 MitnickLaw@aol.com****
>
> Communications and attachments may be confidential and attorney-client
> privileged. ****
>
>
> On Mar 14, 2013, at 1:57 PM, Dennis wrote:****
>
> ****
>
> The bank has a lien for x. The bank says it will give trustee so many
> dollars of it's property. How in sam hill is that property of the debtor?
> If not property of debtor, how can it be exempted.****
>
> ****
>
> D
>
> Sent from my iPhone****
>
>
> On Mar 12, 2013, at 11:17 PM, "jbsesq1965" wrote:***
> *
>
> ****
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> 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." law@...> 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,
> confidential, and privileged material for the sole use of the intended
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> 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 6:31 PM, "Paul Horn" attorneypaul2000@...> 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" cliff@...> 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 bklawr@...> 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/
> )
> > ________________________________________________
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> > 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@...
> >
> >****
>
> ****
>
>
>
>
>
> ****
>
> ****
>
>
>
Marvin Mann
2706 Artesia Blvd A
Redondo Beach, CA 90278
Interesting opinion from last monthOn Fri, Mar 15, 2013 at 9:47 AM, Wesley H. Avery <wavery@rpmlaw.com> wrote:
Touch
cdcbaa@yahoogroups.com, Larry Simons <larry@...> 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." <law@...<mailto:law@...>> 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, 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 6:31 PM, "Paul Horn" <attorneypaul2000@...<mailto:attorneypaul2000@...>> 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
>
>
> ________________________________
...%3cmailto:law@..." target"_blank">law@...<mailto:law@...>>
> To: "cdcbaa@yahoogroups.com<mailto:cdcbaa@yahoogroups.comcdcbaa@yahoogroups.com<mailto: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" <
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