Central District Consumer Bankruptcy Attorney's Association

"In ch 11 the 1111(b) election would require full pay in ch 18 but not
because the debt has been resurrected, because that's what 1111says."
Are you saying that there is no resurrection of the old debt but that it's
tantamount to resurrection, then I agree. But if you are saying there is no
in personam liability due to the filing of the 11, can you explain a bit
more? Here is my rationale.
Assuming there is no election made under 1111(b)(1)(A)(i) what does this
code section do?
"(b)(1)(A) A claim secured by a lien on property of the estate shall be
allowed or disallowed under section
502of this title the
same
*as if the holder of such claim had recourse against the debtor* on account
of such claim, whether or not such holder has such recourse,"
I underlined the part where I believe the debt is "resurrected".
My rationale is that assuming when filing Chapter 11, there was no
recourse, i.e. no personal claim (for whatever reason, we can assume
Chapter 7 eliminated recourse). This section appears, to me, to "resurrect"
the recourse to the extent of the unsecured amount.
Now, if they make the election, I agree, the resurrection is nullified.
Sincerely,
Michael Avanesian
Attorney and Counselor at Law
818-817-1725
On Fri, May 10, 2013 at 8:09 AM, jonhayes6666 wrote:
> **
>
>
> A discharged debt is not "resurrected" in a subsequent chapter anything
> w/o a reaffirmation. And certainly not by 1111. That is why Home State Bank
> went all the way to the supremes. Section 102 will help you. Claim against
> debtor includes claim against prop ie a lien. Good luck. I still don't know
> the answer to what happens to the unsecured portion in ch 20. In ch 11 the
> 1111(b) election would require full pay in ch 18 but not because the debt
> has been resurrected, because that's what 1111says.
>
> --- In cdcbaa@yahoogroups.com, Michael Avanesian wrote:
> >
> > I am trying to keep my list post count down but since this was directed
> to
> > me I'll reply.
> >
> > Yes, 1111(b) creates the in personam and I also agree that there is no
> > similar provision in a 13. So this is one of those situations where a 13
> > might be more powerful than an 11 because you don't have to pay the
> > deficiency at all AND you don't have to worry about unbifurcation (I like
> > to make up words) under 1111(b).
> >
> > As far as interpretation, Chapter 13 just does not have anything akin to
> > 1111 so there is no ambiguity that Congress intended for individuals in
> 13s
> > not to be burdened with recourse while they did intend for those who file
> > for 11 to be burdened by such recourse. Just like Chapter 13 discharges
> > more stuff than a 7 or 11.
> >
> > Sincerely,
> > Michael Avanesian
> > On Thu, May 9, 2013 at 10:05 AM, PHiLiP E. KOeBeL, Esq.
> > wrote:
>
> >
> > >
> > > MIchael -
> > >
> > > the resurrection of in personam obligation in a "Chapter 18" is due to
> > > 1111(b) right? and we figured out that there appears to be no
> comparable
> > > statute under Chapter 13 right? just Home State Bank.
> > >
> > > it feels to me like i was reading a case recently that somehow applied
> C11
> > > statutes to help interpret C13 was silent on similar topics, but this
> is
> > > not the general rule for interpreting the Code. silence is silence
> > > generally.
> > >
> > > oh yes, here it is from a recent USSC case:
> > >
> > > Hamilton v Lanning 130 S Ct 2464 (2010) on best efforts:
> > >
> > > Petitioner argues that only the mechanical approach is consistent with
>
> > > 1129(a)(15)(B), which refers to "projected disposable income of the
> debtor
> > > (as defined in section 1325(b)(2))." This cross-reference, petitioner
> > > argues, shows that Congress intended for the term "projected disposable
> > > income" to incorporate, presumably in all contexts, the defined term
> > > "disposable income." It is evident that 1129(a)(15)(B) refers to the
> > > defined term "disposable income," see 1325(b)(2), but that fact
> offers no
> > > insight into the meaning of the word "projected" in 1129(a)(15)(B)
> and
> > > 1325(b)(1)(B). We fail to see how that word acquires a specialized
> meaning
> > > as a result of this cross-reference particularly where both
> > > 1129(a)(15)(B) and 1325(b)(1)(B) refer to projected disposable income
> "to
> > > be received" during the relevant period. See *supra,*at 11.
>
> > >
> > > On Thu, May 9, 2013 at 9:08 AM, Michael Avanesian > > michael@...> wrote:
> > >
> > >> **
>
> > >>
> > >>
> > >> Alik,
> > >>
> > >> Did you ever get an answer to this question? If not, yes, in a Chapter
> > >> 11, the in personam claim is "resurrected" in the fact pattern that
> you
> > >> mentioned.
> > >>
> > >> Sincerely,
> > >> Michael Avanesian
> > >> On Thu, May 2, 2013 at 1:47 PM, Alik Segal wrote:
> > >>
> > >>> **
>
> > >>>
> > >>>
> > >>> Listmates,
> > >>>
> > >>> Here's a puzzle. Or at least a puzzle to me.
> > >>>
> > >>> Debtor owns an income property. First mortgage exceeds FMV. The
> > >>> property is upside down. Debtor filed c7 and received discharge. The
> note
> > >>> was discharged. The deed of trust remains valid and could permit the
> > >>> creditor to foreclose.
> > >>>
> > >>>
> > >>>
> > >>> Next Debtor filed chapter 11. Debtor files a motion to value which
> > >>> establishes the extent of the allowed secured claim. The allowed
> secured
> > >>> claims is smaller than the original contractual mortgage obligation.
> > >>>
> > >>>
> > >>>
> > >>> What happens to the unsecured portion of the bifurcated claim? Was it
> > >>> discharged in the previous c7 case? Is it resurrected through the
> plan?
> > >>> Does the 506(b) cramdown (stripdown) resurrect previously discharged
> note?
> > >>>
> > >>> --
> > >>> Alik Segal
> > >>> Alik.Segal@...
> > >>> 310-362-6157
> > >>> California Central District
> > >>>
> > >>>
> > >>
> > >>
> > >
> > >
> >
>
>
>
"In ch 11 the 1111(b) election would require full pay in ch 18 but not because the debt has been resurrected, because that's what 1111says."Are you saying that there is no resurrection of the old debt but that it's tantamount to resurrection, then I agree. But if you are saying there is no in personam liability due to the filing of the 11, can you explain a bit more? Here is my rationale.
Assuming there is no election made under 1111(b)(1)(A)(i) what does this code section do?"(b)(1)(A) A claim secured by a lien on property of the estate shall be allowed or disallowed under section 502 of this title the same as if the holder of such claim had recourse against the debtor on account of such claim, whether or not such holder has such recourse,"
I underlined the part where I believe the debt is "resurrected". My rationale is that assuming when filing Chapter 11, there was no recourse, i.e. no personal claim (for whatever reason, we can assume Chapter 7 eliminated recourse). This section appears, to me, to "resurrect" therecourse to the extent of the unsecured amount.
Now, if they make the election, I agree, the resurrection is nullified.Sincerely, Michael Avanesian
Attorney and Counselor at Law818-817-1725
On Fri, May 10, 2013 at 8:09 AM, jonhayes6666 <
A discharged debt is not "resurrected" in a subsequent chapter anything w/o a reaffirmation. And certainly not by 1111. That is why Home State Bank went all the way to the supremes. Section 102 will help you. Claim against debtor includes claim against prop ie a lien. Good luck. I still don't know the answer to what happens to the unsecured portion in ch 20. In ch 11 the 1111(b) election would require full pay in ch 18 but not because the debt has been resurrected, because that's what 1111says.
@yahoogroups.com, Michael Avanesian <michael@...> wrote:
>
> I am trying to keep my list post count down but since this was directed to
> me I'll reply.
>
> Yes, 1111(b) creates the in personam and I also agree that there is no
> similar provision in a 13. So this is one of those situations where a 13
> might be more powerful than an 11 because you don't have to pay the
> deficiency at all AND you don't have to worry about unbifurcation (I like
> to make up words) under 1111(b).
>
> As far as interpretation, Chapter 13 just does not have anything akin to
> 1111 so there is no ambiguity that Congress intended for individuals in 13s
> not to be burdened with recourse while they did intend for those who file
> for 11 to be burdened by such recourse. Just like Chapter 13 discharges
> more stuff than a 7 or 11.
>
> Sincerely,
> Michael Avanesian
> On Thu, May 9, 2013 at 10:05 AM, PHiLiP E. KOeBeL, Esq.
> <LawOfPEK@...>wrote:
>
> >
> > MIchael -
> >
> > the resurrection of in personam obligation in a "Chapter 18" is due to
> > 1111(b) right? and we figured out that there appears to be no comparable
> > statute under Chapter 13 right? just Home State Bank.
> >
> > it feels to me like i was reading a case recently that somehow applied C11
> > statutes to help interpret C13 was silent on similar topics, but this is
> > not the general rule for interpreting the Code. silence is silence
> > generally.
> >
> > oh yes, here it is from a recent USSC case:
> >
> > Hamilton v Lanning 130 S Ct 2464 (2010) on best efforts:
> >
> > Petitioner argues that only the mechanical approach is consistent with
> > 1129(a)(15)(B), which refers to "projected disposable income of the debtor
> > (as defined in section 1325(b)(2))." This cross-reference, petitioner
> > argues, shows that Congress intended for the term "projected disposable
> > income" to incorporate, presumably in all contexts, the defined term
> > "disposable income." It is evident that 1129(a)(15)(B) refers to the
> > defined term "disposable income," see 1325(b)(2), but that fact offers no
> > insight into the meaning of the word "projected" in > > 1325(b)(1)(B). We fail to see how that word acquires a specialized meaning
> > as a result of this cross-reference particularly where both > > 1129(a)(15)(B) and 1325(b)(1)(B) refer to projected disposable income "to
> > be received" during the relevant period. See *supra,*at 11.
> >
> > On Thu, May 9, 2013 at 9:08 AM, Michael Avanesian <
> > michael@...> wrote:
> >
> >> **
> >>
> >>
> >> Alik,
> >>
> >> Did you ever get an answer to this question? If not, yes, in a Chapter
> >> 11, the in personam claim is "resurrected" in the fact pattern that you
> >> mentioned.
> >>
> >> Sincerely,
> >> Michael Avanesian
> >> On Thu, May 2, 2013 at 1:47 PM, Alik Segal <listserv.inbox@...>wrote:
> >>
> >>> **
> >>>
> >>>
> >>> Listmates,
> >>>
> >>> Here's a puzzle. Or at least a puzzle to me.
> >>>
> >>> Debtor owns an income property. First mortgage exceeds FMV. The
> >>> property is upside down. Debtor filed c7 and received discharge. The note
> >>> was discharged. The deed of trust remains valid and could permit the
> >>> creditor to foreclose.
> >>>
> >>>
> >>>
> >>> Next Debtor filed chapter 11. Debtor files a motion to value which
> >>> establishes the extent of the allowed secured claim. The allowed secured
> >>> claims is smaller than the original contractual mortgage obligation.
> >>>
> >>>
> >>>
> >>> What happens to the unsecured portion of the bifurcated claim? Was it
> >>> discharged in the previous c7 case? Is it resurrected through the plan?
> >>> Does the 506(b) cramdown (stripdown) resurrect previously discharged note?
> >>>
> >>> --
> >>> Alik Segal
> >>> Alik.Segal@...
> >>> 310-362-6157
> >>> California Central District
> >>>
> >>>
> >>
> >>
> >
> >
>

The post was migrated from Yahoo.

so resurrection of the post-C7-discharge in personam obligation under C11,
but no resurrection under C13. i agree.
but what is the amount to be paid towards the in rem claim in the C13? i
fear that it is the grand total at the time of the C7 discharge plus
anything else that has accrued under the deed of trust since the C7
discharge. i don't see how the concept of "arrearages" to be cured in a C13
Plan works in a post-C7-discharge case. the whole debt has come due (or
none of it - i wish) so what portion could be deemed arrearages to be cured
in the C13 Plan?
i have not found caselaw on how the C20 actually deals with the primary
mortgage. the Tran case from Northern District is about stripping the
junior lien.
surely someone on this list-serve has done a "Chapter 20" after a C7
discharge on the first mortgage? if so, can that someone share with the
list (or with me) how does it work?
On Thu, May 9, 2013 at 10:55 AM, Michael Avanesian wrote:
> I am trying to keep my list post count down but since this was directed to
> me I'll reply.
>
> Yes, 1111(b) creates the in personam and I also agree that there is no
> similar provision in a 13. So this is one of those situations where a 13
> might be more powerful than an 11 because you don't have to pay the
> deficiency at all AND you don't have to worry about unbifurcation (I like
> to make up words) under 1111(b).
>
> As far as interpretation, Chapter 13 just does not have anything akin to
> 1111 so there is no ambiguity that Congress intended for individuals in 13s
> not to be burdened with recourse while they did intend for those who file
> for 11 to be burdened by such recourse. Just like Chapter 13 discharges
> more stuff than a 7 or 11.
>
> Sincerely,
> Michael Avanesian
> On Thu, May 9, 2013 at 10:05 AM, PHiLiP E. KOeBeL, Esq. LawOfPEK@gmail.com> wrote:
>
>>
>> MIchael -
>>
>> the resurrection of in personam obligation in a "Chapter 18" is due to
>> 1111(b) right? and we figured out that there appears to be no comparable
>> statute under Chapter 13 right? just Home State Bank.
>>
>> it feels to me like i was reading a case recently that somehow applied
>> C11 statutes to help interpret C13 was silent on similar topics, but this
>> is not the general rule for interpreting the Code. silence is silence
>> generally.
>>
>> oh yes, here it is from a recent USSC case:
>>
>> Hamilton v Lanning 130 S Ct 2464 (2010) on best efforts:
>>
>> Petitioner argues that only the mechanical approach is consistent with >> 1129(a)(15)(B), which refers to "projected disposable income of the debtor
>> (as defined in section 1325(b)(2))." This cross-reference, petitioner
>> argues, shows that Congress intended for the term "projected disposable
>> income" to incorporate, presumably in all contexts, the defined term
>> "disposable income." It is evident that 1129(a)(15)(B) refers to the
>> defined term "disposable income," see 1325(b)(2), but that fact offers no
>> insight into the meaning of the word "projected" in 1129(a)(15)(B) and
>> 1325(b)(1)(B). We fail to see how that word acquires a specialized meaning
>> as a result of this cross-reference particularly where both
>> 1129(a)(15)(B) and 1325(b)(1)(B) refer to projected disposable income "to
>> be received" during the relevant period. See *supra,*at 11.
>>
>> On Thu, May 9, 2013 at 9:08 AM, Michael Avanesian > michael@avanesianlaw.com> wrote:
>>
>>> **
>>>
>>>
>>> Alik,
>>>
>>> Did you ever get an answer to this question? If not, yes, in a Chapter
>>> 11, the in personam claim is "resurrected" in the fact pattern that you
>>> mentioned.
>>>
>>> Sincerely,
>>> Michael Avanesian
>>> On Thu, May 2, 2013 at 1:47 PM, Alik Segal wrote:
>>>
>>>> **
>>>>
>>>>
>>>> Listmates,
>>>>
>>>> Here's a puzzle. Or at least a puzzle to me.
>>>>
>>>> Debtor owns an income property. First mortgage exceeds FMV. The
>>>> property is upside down. Debtor filed c7 and received discharge. The note
>>>> was discharged. The deed of trust remains valid and could permit the
>>>> creditor to foreclose.
>>>>
>>>>
>>>>
>>>> Next Debtor filed chapter 11. Debtor files a motion to value which
>>>> establishes the extent of the allowed secured claim. The allowed secured
>>>> claims is smaller than the original contractual mortgage obligation.
>>>>
>>>>
>>>>
>>>> What happens to the unsecured portion of the bifurcated claim? Was it
>>>> discharged in the previous c7 case? Is it resurrected through the plan?
>>>> Does the 506(b) cramdown (stripdown) resurrect previously discharged note?
>>>>
>>>> --
>>>> Alik Segal
>>>> Alik.Segal@gmail.com
>>>> 310-362-6157
>>>> California Central District
>>>>
>>>>
>>>
>>>
>>
>>
>
so resurrection of the post-C7-discharge in personam obligation under C11, but no resurrection under C13. i agree.but what is the amount to be paid towards the in rem claim in the C13? i fear that it is the grand total at the time of the C7 discharge plus anything else that has accrued under the deed of trust since the C7 discharge. i don't see how the concept of "arrearages" to be cured in a C13 Plan works in a post-C7-discharge case. the whole debt has come due (or none of it - i wish) so what portion could be deemed arrearages to be cured in the C13 Plan?
i have not found caselaw on how the C20 actually deals with the primary mortgage. the Tran case from Northern District is about stripping the junior lien.surely someone on this list-serve has done a "Chapter 20" after a C7 discharge on the first mortgage? if so, can that someone share with the list (or with me) how does it work?
On Thu, May 9, 2013 at 10:55 AM, Michael Avanesian <michael@avanesianlaw.com> wrote:
I am trying to keep my list post count down but since this was directed to me I'll reply.Yes, 1111(b) creates the in personam and I also agree that there is no similar provision in a 13. So this is one of those situations where a 13 might be more powerful than an 11 because you don't have to pay the deficiency at all AND you don't have to worry about unbifurcation (I like to make up words) under 1111(b).
As far as interpretation, Chapter 13 just does not have anything akin to 1111 so there is no ambiguity that Congress intended for individuals in 13s not to be burdened with recourse while they did intend for those who file for 11 to be burdened by such recourse. Just like Chapter 13 discharges more stuff than a 7 or 11.
Sincerely, Michael AvanesianOn Thu, May 9, 2013 at 10:05 AM, PHiLiP E. KOeBeL, Esq. <LawOfPEK@gmail.com> wrote:

The post was migrated from Yahoo.

I am trying to keep my list post count down but since this was directed to
me I'll reply.
Yes, 1111(b) creates the in personam and I also agree that there is no
similar provision in a 13. So this is one of those situations where a 13
might be more powerful than an 11 because you don't have to pay the
deficiency at all AND you don't have to worry about unbifurcation (I like
to make up words) under 1111(b).
As far as interpretation, Chapter 13 just does not have anything akin to
1111 so there is no ambiguity that Congress intended for individuals in 13s
not to be burdened with recourse while they did intend for those who file
for 11 to be burdened by such recourse. Just like Chapter 13 discharges
more stuff than a 7 or 11.
Sincerely,
Michael Avanesian
On Thu, May 9, 2013 at 10:05 AM, PHiLiP E. KOeBeL, Esq.
wrote:
>
> MIchael -
>
> the resurrection of in personam obligation in a "Chapter 18" is due to
> 1111(b) right? and we figured out that there appears to be no comparable
> statute under Chapter 13 right? just Home State Bank.
>
> it feels to me like i was reading a case recently that somehow applied C11
> statutes to help interpret C13 was silent on similar topics, but this is
> not the general rule for interpreting the Code. silence is silence
> generally.
>
> oh yes, here it is from a recent USSC case:
>
> Hamilton v Lanning 130 S Ct 2464 (2010) on best efforts:
>
> Petitioner argues that only the mechanical approach is consistent with > 1129(a)(15)(B), which refers to "projected disposable income of the debtor
> (as defined in section 1325(b)(2))." This cross-reference, petitioner
> argues, shows that Congress intended for the term "projected disposable
> income" to incorporate, presumably in all contexts, the defined term
> "disposable income." It is evident that 1129(a)(15)(B) refers to the
> defined term "disposable income," see 1325(b)(2), but that fact offers no
> insight into the meaning of the word "projected" in 1129(a)(15)(B) and
> 1325(b)(1)(B). We fail to see how that word acquires a specialized meaning
> as a result of this cross-reference particularly where both
> 1129(a)(15)(B) and 1325(b)(1)(B) refer to projected disposable income "to
> be received" during the relevant period. See *supra,*at 11.
>
> On Thu, May 9, 2013 at 9:08 AM, Michael Avanesian michael@avanesianlaw.com> wrote:
>
>> **
>>
>>
>> Alik,
>>
>> Did you ever get an answer to this question? If not, yes, in a Chapter
>> 11, the in personam claim is "resurrected" in the fact pattern that you
>> mentioned.
>>
>> Sincerely,
>> Michael Avanesian
>> On Thu, May 2, 2013 at 1:47 PM, Alik Segal wrote:
>>
>>> **
>>>
>>>
>>> Listmates,
>>>
>>> Here's a puzzle. Or at least a puzzle to me.
>>>
>>> Debtor owns an income property. First mortgage exceeds FMV. The
>>> property is upside down. Debtor filed c7 and received discharge. The note
>>> was discharged. The deed of trust remains valid and could permit the
>>> creditor to foreclose.
>>>
>>>
>>>
>>> Next Debtor filed chapter 11. Debtor files a motion to value which
>>> establishes the extent of the allowed secured claim. The allowed secured
>>> claims is smaller than the original contractual mortgage obligation.
>>>
>>>
>>>
>>> What happens to the unsecured portion of the bifurcated claim? Was it
>>> discharged in the previous c7 case? Is it resurrected through the plan?
>>> Does the 506(b) cramdown (stripdown) resurrect previously discharged note?
>>>
>>> --
>>> Alik Segal
>>> Alik.Segal@gmail.com
>>> 310-362-6157
>>> California Central District
>>>
>>>
>>
>>
>
>
I am trying to keep my list post count down but since this was directed to me I'll reply.Yes, 1111(b) creates the in personam and I also agree that there is no similar provision in a 13. So this is one of those situations where a 13 might be more powerful than an 11 because you don't have to pay the deficiency at all AND you don't have to worry about unbifurcation (I like to make up words) under 1111(b).
As far as interpretation, Chapter 13 just does not have anything akin to 1111 so there is no ambiguity that Congress intended for individuals in 13s not to be burdened with recourse while they did intend for those who file for 11 to be burdened by such recourse. Just like Chapter 13 discharges more stuff than a 7 or 11.
Sincerely, Michael AvanesianOn Thu, May 9, 2013 at 10:05 AM, PHiLiP E. KOeBeL, Esq. <LawOfPEK@gmail.com> wrote:

The post was migrated from Yahoo.

Alik,
Did you ever get an answer to this question? If not, yes, in a Chapter 11,
the in personam claim is "resurrected" in the fact pattern that you
mentioned.
Sincerely,
Michael Avanesian
On Thu, May 2, 2013 at 1:47 PM, Alik Segal wrote:
> **
>
>
> Listmates,
>
> Here's a puzzle. Or at least a puzzle to me.
>
> Debtor owns an income property. First mortgage exceeds FMV. The
> property is upside down. Debtor filed c7 and received discharge. The note
> was discharged. The deed of trust remains valid and could permit the
> creditor to foreclose.
>
>
>
> Next Debtor filed chapter 11. Debtor files a motion to value which
> establishes the extent of the allowed secured claim. The allowed secured
> claims is smaller than the original contractual mortgage obligation.
>
>
>
> What happens to the unsecured portion of the bifurcated claim? Was it
> discharged in the previous c7 case? Is it resurrected through the plan?
> Does the 506(b) cramdown (stripdown) resurrect previously discharged note?
>
> --
> Alik Segal
> Alik.Segal@gmail.com
> 310-362-6157
> California Central District
>
>
>
Alik,Did you ever get an answer to this question? If not, yes, in a Chapter 11, the in personam claim is "resurrected" in thefact pattern that you mentioned.
Sincerely, Michael AvanesianOn Thu, May 2, 2013 at 1:47 PM, Alik Segal <listserv.inbox@gmail.com> wrote:

The post was migrated from Yahoo.