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Does the 506(b) cramdown (stripdown) resurrect previously discharged note?

Posted: Fri May 10, 2013 1:36 pm
by Yahoo Bot

The effect of the 1111(b) election is to require payment of discharged debt. The election does not make the debt not discharged. A little esoteric I say - sorry bout that.
>
> "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
> > > >>>
> > > >>>
> > > >>
> > > >>
> > > >
> > > >
> > >
> >
> >
> >
>

The post was migrated from Yahoo.

Does the 506(b) cramdown (stripdown) resurrect previously discharged note?

Posted: Fri May 10, 2013 8:09 am
by Yahoo Bot

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.
>
> 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
> >>>
> >>>
> >>
> >>
> >
> >
>

The post was migrated from Yahoo.

Does the 506(b) cramdown (stripdown) resurrect previously discharged note?

Posted: Thu May 02, 2013 1:47 pm
by Yahoo Bot

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
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 SegalAlik.Segal@gmail.com310-362-6157California Central District

The post was migrated from Yahoo.