Executor of Probate Estate
Posted: Tue Feb 07, 2017 6:14 pm
That made no difference in my case.
Eric
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
Sent from my iPhone
> On Feb 7, 2017, at 5:06 PM, Giovanni Orantes go@gobklaw.com [cdcbaa] wrote:
>
> Would the outcome be different if the beneficiary also resides in the Property and intends to reside therein?
>
>> On Tue, Feb 7, 2017 at 4:23 PM, mitnicklaw@aol.com [cdcbaa] wrote:
>>
>> I represented a secured creditor in a case where the chapter 13 debtor tried to assert that real property in a probate estate was really his property to try to get the benefit of the automatic stay. One of our central district judges found that debtor had no ownership interest and ruled that the stay, if any, was not applicable, and terminated the stay, if any, that existed. Mark's suggestion if implemented could change the result.
>>
>>
>> Eric
>>
>> Law Office of Eric Alan Mitnick
>> 21515 Hawthorne Boulevard, Ste. 1080
>> Torrance, California 90503
>> Telephone: (310) 792-5864
>> Facsimile: (310) 347-4353
>> Email: MitnickLaw@aol.com, MitnickLaw@gmail.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.
>>
>> ***NOTICE OF EX PARTE HEARINGS WILL NOT BE ACCEPTED BY EMAIL***
>>
>>
>> -----Original Message-----
>> To: cdcbaa
>> Sent: Tue, Feb 7, 2017 4:00 pm
>> Subject: Re: [cdcbaa] Executor of Probate Estate
>>
>>
>> I am not aware of any case law on it one way or the other. The debtor's argument is that the probate estate beneficiary has an equitable interest in the property when the Chapter 13 case is filed and therefore the automatic stay applies. From the creditor perspective, that estate beneficiary has no present ownership interest and any future interest is contingent on there being property in the trust to distribute to the beneficiary via court order after all the decedent's bills are paid and costs of estate administration. The creditor argument is that the beneficiary has no control over the property and no liability on the debt so the automatic stay does not apply. I do not think the level of beneficial interest matters one way or the other as to standing. If the probate administration can be accelerated or a partial distribution authorized by the Superior Court such that the beneficiary is placed on title prior to the foreclosure sale and at the point the beneficiary files a chapter 13, then the automatic stay clearly applies. Plan feasibility and how to address the debtor only owning 20% of the property while wanting to pay the arrears through the plan are another issue entirely. Otherwise, many of our learned colleagues affirmatively believe the debtor's argument is correct, To me the ownership interest seems too speculative, but we all have a duty to vigorously represent our clients and advocate on their behalf, even if we might personally like the other sides argument better.
>>
>> The trustee of the trust may have remedies available under state law to delay the foreclosure sale and seeking injunctive relief in the probate case would be the avenue to explore first.
>>
>> 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 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 2/7/2017 2:52:09 P.M. Pacific Standard Time, cdcbaa@yahoogroups.com writes:
>>
>> Dear List,
>>
>> I remember seeing this before but was hoping for some input. I know that a probate estate cannot file chapter 13 bankruptcy to cure arrears on a property within the estate since its not an individual. However, would one of the beneficiaries be able to file for Chapter 13 to save the property that is facing foreclosure? If so, what is the likelihood that the bank could obtain relief from stay if the beneficiary has only a 20% interest? Also, would the fact that the beneficiary is not on title create an issue as to ownership of the property and ultimately it being apart of the beneficiary's bankruptcy estate?
>>
>> Thanks,
>> Tuan Le
>
>
>
> --
> WE DO NOT ACCEPT SERVICE BY EMAIL UNLESS WE HAVE AGREED TO ACCEPT IT IN WRITING.
>
> Giovanni Orantes, Esq.*
> Orantes Law Firm, P.C.
> 3435 Wilshire Blvd. Suite 2920
> Los Angeles, CA 90010
> Tel: (213) 389-4362
> Fax: (877) 789-5776
> e-mail: go@gobklaw.com
> website: www.gobklaw.com
>
> *Certified Bankruptcy Specialist, State Bar of California, Board of Legal Specialization
> *Board Certified - Business Bankruptcy Law - American Board of Certification
> *Board Certified - Consumer Bankruptcy Law - American Board of Certification
> Commercial Litigation
> Estate Planning
> Outside General Counsel
>
>
>
> WE ARE A "DEBT RELIEF AGENCY" AS DEFINED BY FEDERAL LAW.
>
> SERVING BAKERSFIELD, LOS ANGELES, ORANGE COUNTY, RIVERSIDE, SAN BERNARDINO AND SANTA BARBARA AND THE WORLD FOR CHAPTER 11 AND 15 CASES.
>
MitnickLaw@gmail.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.
***NOTICE OF EX PARTE HEARINGS WILL NOT BE ACCEPTED BY EMAIL***
-----Original Message-----
com [cdcbaa] <cdcbaa@yahoogroups.com>
To: cdcbaa <cdcbaa@yahoogroups.com>
Sent: Tue, Feb 7, 2017 4:00 pm
Subject: Re: [cdcbaa] Executor of Probate Estate
I am not aware of any case law on it one way or the other. The
debtor's argument is that the probate estate beneficiary has an equitable
interest in the property when the Chapter 13 case is filed and therefore the
automatic stay applies. From the creditor perspective, that estate
beneficiary has no present ownership interest and any future interest
is contingent on there being property in the trust to distribute to the
beneficiary via court order after all the decedent's bills are
paid and costs of estate administration. The creditor argument is
that the beneficiary has no control over the property and no liability
on the debt so the automatic stay does not apply. I do not think the
level of beneficial interest matters one way or the other as to
standing. If the probate administration can be accelerated or
a partial distribution authorized by the Superior Court such that the
beneficiary is placed on title prior to the foreclosure sale and at the point
the beneficiary files a chapter 13, then the automatic stay clearly
applies. Plan feasibility and how to address the debtor only owning
20% of the property while wanting to pay the arrears through the plan are
another issue entirely. Otherwise, many of our learned colleagues
affirmatively believe the debtor's argument is correct, To me the
ownership interest seems too speculative, but we all have a duty to
vigorously represent our clients and advocate on their behalf, even if we
might personally like the other sides argument better.
The trustee of the trust may have remedies available under state law to
delay the foreclosure sale and seeking injunctive relief in the probate
case would be the avenue to explore first.
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 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 2/7/2017 2:52:09 P.M. Pacific Standard Time,
cdcbaa@yahoogroups.com writes:
Dear List,
I remember seeing this before but was hoping for some
input. I know that a probate estate cannot file chapter 13 bankruptcy to
cure arrears on a property within the estate since its not an
individual. However, would one of the beneficiaries be able to file for
Chapter 13 to save the property that is facing foreclosure? If so, what
is the likelihood that the bank could obtain relief from stay if the
beneficiary has only a 20% interest? Also, would the fact that the beneficiary is not on title create an issue as to ownership of the property
and ultimately it being apart of the beneficiary's bankruptcy
estate?
Thanks,
Tuan Le
-- WE DO NOT ACCEPT SERVICE BY EMAIL UNLESS WE HAVE AGREED TO ACCEPT IT IN WRITING.Giovanni Orantes, Esq.*Orantes Law Firm, P.C.3435 Wilshire Blvd. Suite 2920Los Angeles, CA 90010Tel: (213) 389-4362Fax: (877) 789-5776e-mail: go@gobklaw.comwebsite: www.gobklaw.com*Certified Bankruptcy Specialist, State Bar of California, Board of Legal Specialization*Board Certified - Business Bankruptcy Law - American Board of Certification*Board Certified - Consumer Bankruptcy Law - American Board of CertificationCommercial LitigationEstate PlanningOutside General Counsel
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