Fwd: Nonrecourse second mortgage & 506(a)
Posted: Sat Jul 26, 2014 11:04 am
That was my post. Anyone have any thoughts on whether we can/should alter
the form Chapter 13 plan to provide for vesting on confirmation?
Clifford Bordeaux
Cohen & Bordeaux, LLP
3731 Wilshire Boulevard, Suite 600
Los Angeles, CA 90010
T: 213-267-1000
F: 213-267-1000
E: cliff@cohenbordeaux.com
On Fri, Jul 25, 2014 at 10:27 PM, cdcbaa cdcbaamailbox@gmail.com [cdcbaa] wrote:
>
>
> The current variation of cdcbaa groups does not list who posted a post. I
> am replying to the last post, and in the reply, the previous poster was
> listed, but why not sign your posts?
>
> Please, if you post, sign your post.
>
> D
>
> Dennis McGoldrick, 350 S. Crenshaw Bl., #A207B, Torrance, Ca 90503
> 310-328-1001-voice
> [image: cid:part1.03050307.05030101@bklaw.com]
>
> On Jul 25, 2014, at 5:48 PM, "Clifford Bordeaux cliff@bordeauxlaw.com
> [cdcbaa]" wrote:
>
>
>
> *"Perhaps you could modify the form plan to provide for vesting of
> property of the estate in the debtor, free and clear of liens, at
> confirmation rather than at the completion of plan payments."*
>
> Can you do that? If so, shouldn't we all be doing this on every case? Is
> anyone doing this currently?
>
> Seems like revesting on confirmation would also fix the *Wolf v. Jacobson*
> problem and the post-180 day inheritance problem.
>
>
>
> On Fri, Jul 25, 2014 at 5:36 PM, 'Peter M. Lively'
> petermlively2000@yahoo.com [cdcbaa] wrote:
>
>>
>>
>> Venable barred the money judgment under CCP 580(b) on the note because
>> the lender didn't go to the security first and the land was still held by
>> the debtor.
>>
>> Brown barred the deficiency action under 580(b) by the junior trust
>> deed & note holder where the senior trust deed & note holder had
>> already foreclosed, so the real property was exhausted.
>>
>> While the property value is being determined in Chapter 13 under 506(a)
>> for plan purposes the lien isn't avoided under 506(d), in the form Chapter
>> 13 plan, until after the completion of all plan payments. This leaves the
>> creditor with some lien rights and arguably the right to participate in the
>> estate because the subject property hasn't truly been exhausted as to the
>> lien rights yet.
>>
>> Perhaps you could modify the form plan to provide for vesting of property
>> of the estate in the debtor, free and clear of liens, at confirmation
>> rather than at the completion of plan payments. This is what I understand
>> happens in form Chapter 13 plans in most of the country. Then, the debtor
>> can argue that the facts are analogous to those in Brown; property is gone
>> for good.
>>
>>
>> Peter M. Lively, J.D., M.B.A.
>> Law Office of Peter M. Lively * Personal Financial Law Center I
>> 11268 Washington Boulevard, Suite 203, Culver City, California 90230-4647
>> Telephone: (310) 391-2400 * Toll Free: (800) 307-3328 * Fax: (310)
>> 391-2462
>>
>>
>> On Friday, July 25, 2014 4:02 PM, "Nancy Clark nbc@blclaw.com
>> [cdcbaa]" wrote:
>>
>>
>>
>> I need help with an argument before Judge Houle in Riverside. I have
>> argued that a purchase money security second may not only be avoided but
>> need not be paid as an unsecured creditor based on CA Code of Civil
>> Procedure 580(b). I have cited to Tidewater Finance Co v. Kenney, 531 F.3d
>> 312, Butner v. US, 440 US 48, and more specifically Venable v. Harmon, 233
>> Cal.App.2d 297 (citing to Brown v. Jensen, 41 v. Cal.2d 193, Hecks v. Sapp,
>> 229 Cal.App. 549). Venable states:
>> "Thus, when the vendor under a security-type contract for sale of land
>> receives a personal money judgment against a vendee for breach of this
>> contract without first going against the security, he is, in effect,
>> receiving a deficiency judgment. Since only the land can be called upon to
>> satisfy the debt, under Brown, the fact there has been no prior sale is of
>> no moment. It should be noted that allowing the vendor to recover this
>> judgment places him in a better position than under the trust deed or
>> mortgage. It would allow him to recover a personal judgment and retain
>> title to the land. This would accomplish the exact result which Heckes
>> states the statute was designed to prevent."
>>
>> Judge Houle insists that there must be a foreclosure despite my citation
>> to Venable. Judge Zurzolo granted my motion. What am I missing?
>>
>> Thank you,
>> Nancy
>>
>> Nancy B. Clark
>> Attorney at Law
>> Borowitz & Clark, LLP
>> Sent from my iPhone
>>
>> Thank you,
>> Nancy
>>
>> Nancy B. Clark
>> Attorney at Law
>> Sent from my iPhone
>>
>>
>> --
>> Nancy B. Clark
>> Borowitz & Clark, LLP
>> 100 N. Barranca Street, Suite 250
>> West Covina, CA 91791
>> Tel: (626) 332-8600
>> Fax: (626) 332-8644
>> Sent from Gmail Mobile
>>
>>
>>
>>
>
>
That was my post. Anyone have any thoughts on whether we can/should alter the form Chapter 13 plan to provide for vesting on confirmation?cdcbaa@yahoogroups.com> wrote:
The post was migrated from Yahoo.