Central District Consumer Bankruptcy Attorney's Association

The Plan is not yet confirmed.
On Thursday, September 25, 2014, Nicholas Gebelt ngebelt@gebeltlaw.com
[cdcbaa] wrote:
>
>
> Dear Holly,
>
>
>
> If the plan has been confirmed, then it is binding on SBE pursuant to > 1327(a). If SBE seeks repayment other than through the confirmed plan,
> then it is in violation of the order confirming the plan. Sovereign
> immunity has been abrogated with respect to 1327 pursuant to > 106(a)(1). Therefore, you can seek relief using an OSC re contempt motion
> to get costs and attorneys fees under 105. However, you cannot get
> punitive damages because of 106(a)(3).
>
>
>
> If the plan has not been confirmed, then if SBE has filed a proof of claim
> it has waived sovereign immunity pursuant to 106(b). This waiver does
> not appear to be restricted to the Code sections listed in 106(a)(1).
>
>
>
> Sovereign immunity has also been abrogated with respect to 362 pursuant
> to 106(a)(1), and in particular, abrogated with respect to 362(k).
> Therefore, SBEs threat to the Debtor which was clearly intended to
> induce payment by the Debtor is a stay violation. Since 362(k)
> explicitly mandates costs and attorneys fees (. . . *shall* recover
> actual damages, including costs and attorneys fees . . .> paid for your efforts.
>
>
>
> And Stella, the U.S. Supreme Court upheld the constitutionality of 106
> in *Central Va. Cmty. Coll. V. Katz*, 126 S. Ct. 990 (206), so any appeal
> to the Eleventh Amendment by SBE will fail. The Court addressed the
> Eleventh Amendment argument and held: The . . . States agreed in the
> plan of the Convention not to assert any sovereign immunity defense they
> might have had in proceedings brought pursuant to Laws on the subject of
> Bankruptcies. *Central Va. Cmty. Coll. V. Katz*, 126 S. Ct. at 377.
>
>
>
> Good luck,
>
>
>
> Nick
>
>
>
> *Nicholas Gebelt*
>
>
>
> Nicholas Gebelt, Ph.D., J.D.
>
> Attorney at Law
>
> Certified Bankruptcy Law Specialist
>
>
>
> [image: Description: Description: Description:
> cid:image003.jpg@01CC076B.B14D73C0]
>
>
>
> Law Offices of Nicholas Gebelt
>
> 15150 Hornell Street
>
> Whittier, CA 90604
>
> Phone: 562.777.9159
>
> FAX: 562.946.1365
>
> Email: ngebelt@goodbye2debt.com
> ;
> ngebelt@gebeltlaw.com
>
>
> Web: www.goodbye2debt.com
>
> Blog: www.southerncaliforniabankruptcylawblog.com/
>
>
>
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>
> *From:* cdcbaa@yahoogroups.com
> [mailto:
> cdcbaa@yahoogroups.com
> ]
> *Sent:* Thursday, September 25, 2014 2:24 PM
> *To:* cdcbaa@yahoogroups.com
>
> *Subject:* RE: [cdcbaa] Question about Collection Activity of State Board
> of Equalization for Sales Tax
>
>
>
>
>
> SBE is the most difficult of all state agencies to deal with. It is a
> kingdom onto itself. Until recently, it was taking the position that it
> was not subject to the jurisdiction of the bankruptcy court because of the
> 11th amendment. I would pay the $1,400 and not make a big to do. SBE
> will do what it says it will do and worse.
>
>
>
> Stella
>
>
>
> *From:* cdcbaa@yahoogroups.com
> [mailto:
> cdcbaa@yahoogroups.com
> ]
> *Sent:* Thursday, September 25, 2014 2:13 PM
> *To:* Strictly Bankruptcy Issues; cdcbaa
> *Subject:* [cdcbaa] Question about Collection Activity of State Board of
> Equalization for Sales Tax
>
>
>
>
>
> Chapter 13 debtor filed plan which is paying 100% to State Board of
> Equalization for sales tax for which she is personally liable for a
> corporation that is no longer active. The only business that the
> corporation did was owning a restaurant. The restaurant was sold. No escrow
> was used, and apparently there was some sales tax owed for which Debtor has
> been paying pursuant to a payment plan with the SBE. Debtor does not meet
> the requirements set forth here:
> http://www.jdsupra.com/legalnews/discha ... ili-30155/
> to discharge such taxes.
>
> The tax is only $1,400, so we are not talking a huge amount here.
>
> Despite including the SBE in the Plan as a priority debt, serving the Plan
> on the SBE, and talking to the SBE about this treatment in the Plan, SBE
> *threatened* Debtor that if she did not stick to their prior payment plan
> of $300/month, then they would go after the buyer of the restaurant who is
> apparently also liable on the tax by virtue of buying the restaurant and
> not getting a certificate of tax clearance:
> http://www.boe.ca.gov/sutax/faqbus.htm
>
> Aside from the Stay violation, which is another conversation (SBE will
> probably say, no, they were not really talking to the "Debtor" but to the
> officer of the dead corporation that originally owed the tax), I'd like to
> know if anyone has had experience with the SBE, and what can Debtor do, if
> anything, to keep the SBE from seeking payment from the buyers? If SBE does
> get paid from buyers, does Debtor then have to pay back the buyers through
> the Chapter 13 Plan as a priority debt as if buyer were the SBE?
>
>
>
> I'd like to hear any other comments or observations you have on this. I
> want to call the SBE back with some leverage, but I want to make sure I
> understand what's what here.
>
>
> Holly Roark
>
> Certified Bankruptcy Specialist*
>
> *and Sports Lawyer*
>
> holly@roarklawoffices.com
> **primary
> email address**
>
> www.roarklawoffices.com
>
> Central District of California
>
> Consumer Bankruptcy Attorney
>
> 1875 Century Park East, Suite 600
>
> Los Angeles, CA 90067
>
> T (310) 553-2600
>
> F (310) 553-2601
>
> *By State Bar of California Board of Legal Specialization
>
>
>
> **For a quicker response, email me at holly@roarklawoffices.com
> .
>
> I only use gmail for my listservs, and am likely to miss private emails
>
> directed to my gmail account.**
>
>
>
>
>
Holly Roark
Certified Bankruptcy Specialist*
*and Sports Lawyer*
holly@roarklawoffices.com **primary email address**
www.roarklawoffices.com
Central District of California
Consumer Bankruptcy Attorney
1875 Century Park East, Suite 600
Los Angeles, CA 90067
T (310) 553-2600
F (310) 553-2601
*By State Bar of California Board of Legal Specialization
**For a quicker response, email me at holly@roarklawoffices.com.
I only use gmail for my listservs, and am likely to miss private emails
directed to my gmail account.**
The Plan is not yet confirmed.On Thursday, September 25, 2014, Nicholas Gebelt ngebelt@gebeltlaw.com [cdcbaa] <cdcbaa@yahoogroups.com> wrote:
Dear Holly,
If the plan has been confirmed, then it is binding on SBE pursuant to 1327(a). If SBE seeks repayment other than through the confirmed plan, then it is in
violation of the order confirming the plan. Sovereign immunity has been abrogated with respect to 1327 pursuant to 106(a)(1).osts and attorneys fees under 105. However, you cannot
get punitive damages because of 106(a)(3).
If the plan has not been confirmed, then if SBE has filed a proof of claim it has waived sovereign immunity pursuant to 106(b). This waiver does not appear
to be restricted to the Code sections listed in 106(a)(1).
Sovereign immunity has also been abrogated with respect to 362 pursuant to 106(a)(1), and in particular, abrogated with respect to 362(k). Therefore,
SBEs threat to the Debtor which was clearly intended to induce payment by the Debtor is a stay violation. Since shall recover actual damages, including costs and attorneys fees . . .), you can get paid for your efforts.
And Stella, the U.S. Supreme Court upheld the constitutionality of 106 in
Central Va. Cmty. Coll. V. Katz, 126 S. Ct. 990 (206), so any appeal to the Eleventh Amendment by SBE will fail. The Court addressed the Eleventh Amendment argument and held: The . . . States agreed in the plan of the Convention not to assert any
sovereign immunity defense they might have had in proceedings brought pursuant to Laws on the subject of Bankruptcies.Central Va. Cmty. Coll. V. Katz, 126 S. Ct. at 377.
Good luck,
Nick
Nicholas Gebelt
an>
Nicholas Gebelt, Ph.D., J.D.
Attorney at Law
Certified Bankruptcy Law Specialist
an>
Law Offices of Nicholas Gebelt
15150 Hornell Street
Whittier, CA 90604
Phone: 562.777.9159
FAX::#1f497d">
Email:

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