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Status Conference Order in Riverside [1 Attachment]
Nancy:
There were two bills in 1978. A judges bill and a lawyers bill. The judge's bill had a statute authorizing status conferences in chapter 11. The lawyers bill did not authorize status conferences in chapter 11. The judge's bill did not pass and status conferences were taboo for a while. As a result, the only judge around who held status conferences in chapter 11's was Judge Ordin.
No status conferences were ever required in chapter 13.
I don't know which amendment brought in 105d. I am home on a weekend and cannot consult all of my codes in the office. But in 2005, 105d was amended, and now a court SHALL (it used to be may) hold such status conferences as are necessary to further the expeditious and economical resolution of the case.........
As a result, I would attack the filing of an OSC, or other order, on the basis that they are not economical.
Why?
1. They will require more fees to be paid to counsel, which were not considered in the rara.
2. The court is already getting a report from the trustee re who is being paid by the debtor, and
3. It is not economical to require counsel and the debtor to prepare a report, backed up by evidence, at a cost of in excess of $xx,
It may be time for a survey of what it costs to prepare such a report, so the Judge can see what this new tool is costing the debtors.
d
Sent from my iPad
On May 2, 2013, at 11:42 AM, "Nancy Clark" wrote:
> [Attachment(s) from Nancy Clark included below]
> Thanks Jim. I will look for it. I was unable to attend the conference, and I am at wits end with these Status Conferences. We received five all at once. It is overwhelming.
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> Ive been trying to research abuse of discretiony of the Status Conference Order if anyone wants to review it.
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> Thank you,
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> Nancy B. Clark
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> 100 N. Barranca Ave, Suite 250
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> West Covina, CA 91791
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> Tele: (626) 332-8600
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> Fax: (626) 332-8644
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> www.blclaw.com
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James T. King
> Sent: Thursday, May 02, 2013 11:33 AM
> To: cdcbaa@yahoogroups.com
> Subject: RE: [cdcbaa] Status Conference Order in Riverside
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> Did you see Jenny Dolings objection in her materials from NACBA this last weekend? She does not cite any cases but does a good review of 105 arguing that the status conference is neither necessary nor a procedure that furthers the expeditious and economical resolution of the case.
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nancybonaccorso
> Sent: Thursday, May 02, 2013 11:10 AM
> To: cdcbaa@yahoogroups.com
> Subject: [cdcbaa] Status Conference Order in Riverside
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> As I have reported on occasion before, we are having "difficulty" with our chapter 13 cases assigned to Judge Johnson. It is apparent from his rulings and comments such as:
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> "As a statistical matter, chapter 13 cases fail considerably more often than they succeed. Only one in three debtors nationwide actually makes all the required plan payments which means two-thirds (67%) of chapter 13 cases fail nationwide. This rate of failure has "persisted for more than thirty years" and has led one professor to refer to chapter 13 as the "pretend solution...a social program that does not work as intended but is not critiqued or reformed because its flaws are hidden.'"
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> Then the Judge goes on to discuss the fact that in the Riverside Division the statistics are worst. His next observation is that,
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> "With 92% of chapter 13 failing in this division and two-thirds throughout the country, chapter 13 consumes considerable resources (in the form of attorney's fees, judicial resources and the finances and hopes of debtors) with limited results. One of the initial challenges for every bankruptcy court is to sort our the chapter 13 cases filed in bad faith from the cases filed in good faith."
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> Judge Johnson uses the reasons stated above to then spell out his rules regarding chapter 13 with a warning that if one does not strictly adherence to his rules the case will be dismissed. Some of his requirement are that debtors file a mortgage declaration documenting all payments made in the year before the filing. In addition, he has requirement regarding voluntary dismissals of chapter 13, prosecutions of motions to modify, etc.
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> His latest act to deal with the high failure of chapter 13 bankruptcy is to order Status Conferences (based on his powers under 11 U.S.C.Sec. 105(d)(1)):
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> "In the declaration, the debtors should state whether and when the debtors made all direct payments to creditors required under the terms of the plan. The declaration should state the total number of payments that have come due to each creditor and the total number of payments which the debtors have actually made. The body of the declaration should also include text stating the date of each post-petition payment, the amount of each payment and the party to whom each payment was made. Ideally, this data should be presented in a table in the body of the declaration. Appropriate backup documentation should be attached to the declaration which corroborates the payment information in the declaration and demonstrates the payments were made and/or that the obligations owed to the affected creditors have been satisfied (i.e. the debt has been fully paid) or are now current (i.e. because arrearage ever existed or all arrearages have been cured). Failure to timely provide the declaration and backup documentation may result in dismissal of the case at the status conference or conversion of the case to chapter 7."
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> He is issuing this Order Setting Status Conference for case that were filed as far back as 2009. The problem I have is that the debtors have no records to back up their claims that they are current with payments. We tried getting payment histories from the creditors and they are extremely hard to read and do not provide all the information the Court has requested. In one such case, the debtors have two mortgages and are 42 months into the plan. It will cost them $672 to order all the cancelled checks. Their plan payment is only $468. There is not enough time to file a Motion to Modify suspending at least one plan payment in order to comply with the Court's order. The debtors are angry because they were never told that they would have to produce all this documentation. I am also afraid he will dismiss case if he sees that mortgage payments were reduced and or cars were paid off and debtors never filed a Motion to Modify.
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> I have been tasked with filing an objection to the Order Setting Status Conference and from my reading of 11 U.S.C. Sec. 105, this falls within the Court's powers. In addition, the Court states that this type of requirement is contemplated in In re Lopez, 372 B.R. 40, 41 (9th Cir. BAP 2007), affirmed, 550 F.3d 1202 (9th Cir. 2008). Does anyone have any cases to recommend regarding this issue. I feel this order is onerous and is a trap for debtors to be dismissed before plan completion. I just cannot seem to formulate an objection that would get the attention of an appellate court.
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> Any help would be greatly appreciated.
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> Thank you,
> Nancy B. Clark
> Bprowitz & Clark, LLP
> 100 N. Barranca Ave, Suite 250
> West Covina, CA 91791
> Tele: (626) 332-8600
> Fax: (626) 332-8644
> www.blclaw.com
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Nancy B. Clark<image001.png>100 N. Barranca Ave, Suite 250West Covina, CA 91791Tele: (626) 332-8600
The post was migrated from Yahoo.
Thank you Nancy, but I have one of my very own to deal with after Judge
J became the judge.
Thanks to you for pointing out the onerous canceled checks requirement
because I glossed over it and was able to alert my client who will get
the canceled checks. They only have one creditor paid outside the plan
and it is a 36 month plan, so not as bad as it would be for some.
Seems the judge wants to make the odds even worse for debtors.
The post was migrated from Yahoo.