Central District Consumer Bankruptcy Attorney's Association

Gosh, what makes a discharge avoid debts incurred after the petition is filed?
If your clients pay their postpetition rent, there will be no problem. This is the basic trade in bankruptcy. Prepetition debts are discharged and the debtor gets a fresh start, and must pay postpetition debts. The "fresh start", does not include postpetition obligations.
Why do you think a postpetiton debt should be discharged?
How many months/years would you add debts to the discharge, to make sure the debtor's get a "fresh start?"
If you want a postpetition debt discharged, convert to another chapter and file new schedules listing the debt.
Dennis
Dennis McGoldrick, 350 S. Crenshaw Bl., #A207B, Torrance, Ca 90503 310-328-1001-voice
> On Sep 9, 2014, at 7:47 AM, "'arsen.pogosov@hotmail.com' arsen.pogosov@hotmail.com [cdcbaa]" wrote:
>
> I'm not saying you're wrong, but if your logic is followed, all debtors who surrender a vehicle through bankruptcy would emerge from bk with potential lawsuits for the usage of their vehicles for a month during bankruptcy, before it is repossessed by the lender or lessor.
>
> Your same unjust enrichment theory could be used by car loan lenders and lessors to harass debtors and ruin their fresh start. It just seems to defeat the purpose of the bankruptcy code of providing the honest but unfortunate debtor a fresh start. My clients were honest debtors, and their decision to file for bankruptcy had nothing to do with their living arrangements or any attempt to not pay rent. Seems to be a shame that they're being sued now.
>
> Connected by DROID on Verizon Wireless
>

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I'm a big fan of fairness. You say your client is an honest person, but
what is the basis or justification for living in someone's property,
against their will, without paying rent? I don't think honest people do
that. I think your clients took advantage of the stay to get a free month
out of the landlord. This landlord pursued them. I don't think equity is on
their side.
I am not certain about the 9th Circuit specifically, but some courts treat
an obligation as a prepetition date if it comes due while other courts
prorate. For example, person files for bankruptcy on August 10. Some courts
discharge the August rent, other court's discharge rent due for the August
1 through 10 portion while August 11 through 31 is postpetition rent which
is not discharged.
If a person files for bankruptcy and rejects a car lease, *he should return
the car*. If he keeps the car, does not pay for it, why shouldn't he be
liable for postpetition use? Those guys are lucky no one wants to sue for
$200.
I highlighted "he should return the car" because in your example, you said
"all debtors who surrender a vehicle". It's not surrendering if you're
driving around town with it until the repo man can surprise you. Just like
if your clients moved out voluntarily, the landlord isn't going to sue them
for 2 days rent (from my limited experience, landlords will pay the guy to
move out voluntarily).
Sincerely,
Michael Avanesian
On Tue, Sep 9, 2014 at 7:47 AM, 'arsen.pogosov@hotmail.com'
arsen.pogosov@hotmail.com [cdcbaa] wrote:
>
>
> I'm not saying you're wrong, but if your logic is followed, all debtors
> who surrender a vehicle through bankruptcy would emerge from bk with
> potential lawsuits for the usage of their vehicles for a month during
> bankruptcy, before it is repossessed by the lender or lessor.
>
> Your same unjust enrichment theory could be used by car loan lenders and
> lessors to harass debtors and ruin their fresh start. It just seems to
> defeat the purpose of the bankruptcy code of providing the honest but
> unfortunate debtor a fresh start. My clients were honest debtors, and
> their decision to file for bankruptcy had nothing to do with their living
> arrangements or any attempt to not pay rent. Seems to be a shame that
> they're being sued now.
>
> *Connected by DROID on Verizon Wireless*
>
>
>
I'm a big fan of fairness. You say your client is an honest person, but what is the basis or justification for living in someone&
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I'm not saying you're wrong, but if your logic is followed, all debtors who
surrender a vehicle through bankruptcy would emerge from bk with potential
lawsuits for the usage of their vehicles for a month during bankruptcy,
before it is repossessed by the lender or lessor.
Your same unjust enrichment theory could be used by car loan lenders and
lessors to harass debtors and ruin their fresh start. It just seems to
defeat the purpose of the bankruptcy code of providing the honest but
unfortunate debtor a fresh start. My clients were honest debtors, and their
decision to file for bankruptcy had nothing to do with their living
arrangements or any attempt to not pay rent. Seems to be a shame that
they're being sued now.
Connected by DROID on Verizon Wireless

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Mark is right. Think about it this way. The debtor is protected by the stay to collect the prepetition contractual debt, but the landlord is not required to give his money to your debtor, and if the debtor takes free rent, postpetition, he/she is obtaining an unjust enrichment.
d
Dennis McGoldrick, 350 S. Crenshaw Bl., #A207B, Torrance, Ca 90503 310-328-1001-voice
> On Sep 8, 2014, at 3:03 PM, "Mark Jessee jesseelaw@aol.com [cdcbaa]" wrote:
>
> There's no automatic stay violation. The automatic stay did not cause the debt, your client did by continuing to live in the property postpetition and not paying rent. The landlord has every right to pursue postpetition damages not based on a discharged lease but based on the fair rental value of the property for which your client benefited.
>
> The alternative is your client lives rent free postpetition leaving the landlord holding the bag. It sure seems to me that it's a lot more fair that your client be held accountable for the benefit received post petition living in the property than the landlord be left holding the bag.
>
> Mark Jessee
>
> Sent from my iPhone
>
>> On Sep 8, 2014, at 7:36 AM, "'arsen.pogosov@hotmail.com' arsen.pogosov@hotmail.com [cdcbaa]" wrote:
>>
>>
>> I have a client who filed for bankruptcy in July. Several days after filing, his landlord filed a UD action against him, which was duly stayed. The landlord filed a motion for relief from stay, which was unopposed, and duly granted.
>>
>> My client moved out of the apartment on August 30. Now the landlord is suing my client in small claims court for the rent for August, which is entirely postpetition. Client's chapter 7 case is still open. I've never had this situation happen before. Is this a violation of the Automatic Stay?
>>
>> Although the landlord is collecting on a postpetition debt, the debt itself was caused by operation of law, that is to say, the automatic stay caused this debt because it prevented the landlord from evicting my client earlier. Is it fair for my client to be stuck with a brand new debt for back rent, the cause of which was section 362 of the co de?
>>
>> Any thoughts?
>>
>> Connected by DROID on Verizon Wireless
>
>
On Sep 8, 2014, at 3:03 PM, "Mark Jessee jesseelaw@aol.com [cdcbaa]" <cdcbaa@yahoogroups.com> wrote:

There's no automatic stay violation. The automatic stay did not cause the debt, your client did by continuing to live in the property postpetition and not paying rent. The landlord has every right to pursue postpetition damages not based on a discharged lease but based on the fair rental value of the property for which your client benefited. The alternative is your client lives rent free postpetition leaving the landlord holding the bag. It sure seems to me that it's a lot more fair that your client be held accountable for the benefit received post petition living in the property than the landlord be left holding the bag.Mark JesseeSent from my iPhoneOn Sep 8, 2014, at 7:36 AM, "'arsen.pogosov@hotmail.com' arsen.pogosov@hotmail.com [cdcbaa]" <cdcbaa@yahoogroups.com> wrote:

I have a client who filed for bankruptcy in July. Several days after filing, his landlord filed a UD action against him, which was duly stayed. The landlord filed a motion for relief from stay, which was unopposed, and duly granted.My client moved out of the apartment on August 30. Now the landlord is suing my client in small claims court for the rent for August, which is entirely postpetition. Client's chapter 7 case is still open. I've never had this situation happen before. Is this a violation of the Automatic Stay?Although the landlord is collecting on a postpetition debt, the debt itself was caused by operation of law, that is to say, the automatic stay caused this debt because it prevented the landlord from evicting my client earlier. Is it fair for my client to be stuck with a brand new debt for back rent, the cause of which was section 362 of the co
de?Any thoughts?Connected by DROID on Verizon Wireless

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There's no automatic stay violation. The automatic stay did not cause the debt, your client did by continuing to live in the property postpetition and not paying rent. The landlord has every right to pursue postpetition damages not based on a discharged lease but based on the fair rental value of the property for which your client benefited.
The alternative is your client lives rent free postpetition leaving the landlord holding the bag. It sure seems to me that it's a lot more fair that your client be held accountable for the benefit received post petition living in the property than the landlord be left holding the bag.
Mark Jessee
Sent from my iPhone
> On Sep 8, 2014, at 7:36 AM, "'arsen.pogosov@hotmail.com' arsen.pogosov@hotmail.com [cdcbaa]" wrote:
>
> I have a client who filed for bankruptcy in July. Several days after filing, his landlord filed a UD action against him, which was duly stayed. The landlord filed a motion for relief from stay, which was unopposed, and duly granted.
>
> My client moved out of the apartment on August 30. Now the landlord is suing my client in small claims court for the rent for August, which is entirely postpetition. Client's chapter 7 case is still open. I've never had this situation happen before. Is this a violation of the Automatic Stay?
>
> Although the landlord is collecting on a postpetition debt, the debt itself was caused by operation of law, that is to say, the automatic stay caused this debt because it prevented the landlord from evicting my client earlier. Is it fair for my client to be stuck with a brand new debt for back rent, the cause of which was section 362 of the co de?
>
> Any thoughts?
>
> Connected by DROID on Verizon Wireless
>

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I have a client who filed for bankruptcy in July. Several days after
filing, his landlord filed a UD action against him, which was duly stayed.
The landlord filed a motion for relief from stay, which was unopposed, and
duly granted.
My client moved out of the apartment on August 30. Now the landlord is
suing my client in small claims court for the rent for August, which is
entirely postpetition. Client's chapter 7 case is still open. I've never
had this situation happen before. Is this a violation of the Automatic
Stay?
Although the landlord is collecting on a postpetition debt, the debt itself
was caused by operation of law, that is to say, the automatic stay caused
this debt because it prevented the landlord from evicting my client earlier.
Is it fair for my client to be stuck with a brand new debt for back rent,
the cause of which was section 362 of the code?
Any thoughts?
Connected by DROID on Verizon Wireless

The post was migrated from Yahoo.