Judges Views on Various Issues
Posted: Mon Apr 15, 2013 12:16 am
Thank you very much, these are great answers.
Judge Kwan did not let us do a lien strip through our Plan, he told us to
go do motions to value but Brand let me do it. So I thought their may be a
split.
Sincerely,
Michael Avanesian
Attorney and Counselor at Law
818-817-1725
On Sun, Apr 14, 2013 at 5:25 PM, jonhayes6666 wrote:
> **
>
>
> Michael,
>
> Thanks for the response. If the answer is "depends on the judge," I think
> we can ask. If the answer is, "depends on the code," we can't ask. So
> you're stuck with my answer on most of these.
>
> -Does the Absolute Priority Rule apply in individual chapter 11 cases? If
> so, is there a new value exception? OF COURSE - at least to the extent
> there is any new value exception.
>
> If so, can the new value be exempt estate property? Must it be cash? Read
> Ahlers, and Case v. Los Angeles Lumber Products Co., 308 U.S. 106 (1939).
> "A plan by which the old shareholders contribute new "money or money's
> worth," in proportion to the interests they are receiving, may be fair and
> equitable."
>
> -Can deficiency claim be separately classified in chap 11 when owner has
> guaranteed the debt? (PROBABLY NOT) What if the guarantor is insolvent or
> insolvent? See answer to previous question.
>
> -Is Debtor's declaration enough to value property absent any proof to the
> contrary? The court must WEIGH the evidence. I think we can ask the judges
> about their individual views on this.
>
> -Can a lien be stripped through a Plan of Reorganization (YES) or must
> there be a motion or must there be an adversary?
>
>
> -In a Chapter 11, a note secured by a first priority deed of trust on
> Debtor's primary residence cannot be modified except to cure arrears. Can
> the arrears be cured over the life of the note? i.e. if there are 27 years
> left on the first, can the note be cured over that time? YES IF IT IS PAID
> IN FULL AND IS "FAIR AND EQUITABLE" TO CREDITORS AND IS IN THE BEST
> INTEREST OF CREDITORS.
>
> -Client files for Chapter 11 for LLC then Chapter 7 for himself. Is
> Chapter 7 trustee now the DIP until he abandons LLC? I.e., does the firm
> that filed Chapter 11 for the LLC now take instruction from the Chapter 7
> trustee? YES (sort of). The chapter 7 trustee is the managing member if
> that is what the debtor was.
>
> -Is it impermissible to not pay post-petition property taxes and / or
> mortgage payments on Debtor's primary residence in order to eat the equity
> and strip the second. YES - not in the best interest of creditors.
>
> --- In cdcbaa@yahoogroups.com, Michael Avanesian wrote:
> >
> > If you're asking these Chapter 11 questions, can you do follow ups? For
> > example:
> >
> > -Does the Absolute Priority Rule apply in individual chapter 11 cases? If
> > so, is there a new value exception? If so, can the new value be exempt
> estate property? Must it be cash?
> >
> > -Can deficiency claim be separately classified in chap 11 when owner has
> > guaranteed the debt? What if the guarantor is insolvent or insolvent?
> >
> > Some additional questions for your consideration:
> > -Is Debtor's declaration enough to value property absent any proof to the
> > contrary?
> > -Can a lien be stripped through a Plan of Reorganization or must there
> be a
> > motion or must there be an adversary?
> > -In a Chapter 11, a note secured by a first priority deed of trust on
> > Debtor's primary residence cannot be modified except to cure arrears. Can
> > the arrears be cured over the life of the note? i.e. if there are 27
> years
> > left on the first, can the note be cured over that time?
> > -Client files for Chapter 11 for LLC then Chapter 7 for himself. Is
> Chapter
> > 7 trustee now the DIP until he abandons LLC? I.e., does the firm that
> filed
> > Chapter 11 for the LLC now take instruction from the Chapter 7 trustee?
> >
> > Not sure if this one is appropriate but:
> > -Is it impermissible to not pay post-petition property taxes and / or
> > mortgage payments on Debtor's primary residence in order to eat the
> equity
> > and strip the second.
> >
> > Sincerely,
> > Michael Avanesian
> > Attorney and Counselor at Law
> > 818-817-1725
> >
> >
> > On Sat, Apr 13, 2013 at 3:32 PM, jonhayes6666 wrote:
> >
> > > **
>
> > >
> > >
> > > I'll update this list as I get suggestions.
> > >
> > > -Is there an Absolute Priority Rule in individual chapter 11 cases?
> > >
> > > -Does unsecured secured debt count as sec or unsec for ch 13
> eligibility
> > >
> > > -Is discharge required to strip a second lien in a chapter 20? (or ch
> 18)
> > >
> > > -Does "no auto stay" in second case apply to both the debtor and the
> > > estate? (Reswick)
> > >
> > > -Can deficiency claim be separately classified in chap 11 when owner
> has
> > > guaranteed the debt?
> > >
> > > -Can student loan be separately classified in chapter 13?
> > >
> > >
> > >
> >
>
>
>
Thank you very much, these are great answers.Judge Kwan did not let us do a lien strip through our Plan, he told us to go do motions to value butBrand let me do it. So I thought their may be a split.
Sincerely, Michael AvanesianAttorney and Counselor at Law818-817-1725
On Sun, Apr 14, 2013 at 5:25 PM, jonhayes6666 <
Michael,
Thanks for the response. If the answer is "depends on the judge," I think we can ask. If the answer is, "depends on the code,"
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