Effect of lien strip on jointly owned property with nonde=
Posted: Tue Nov 18, 2014 4:24 pm
Goodpoints Pat. I'm changing my guess.
Given that506(d) is expresslylimited to the debtor and 506 is generally understood to be applicable only in the context of a plan ofreorganization, I amdoubtful that the non-debtor canbenefit from the lien avoidance.
Law Office of Peter M. Lively * Personal Financial Law Center I
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On Tuesday, November 18, 2014 3:47 PM, "'Patrick Green' pat@fitzgreenlaw.com [cdcbaa]" wrote:
Correction: I assumed the co-ownership was JT, but I now see that the facts do not say that. If you have any questions or concerns, please contact me. Pat Patrick T. GreenAttorney at LawFitzgerald & Green, Attorneys at Law1010 E. Union St. Suite 206Pasadena, CA 91106Tel: (626) 449-8433Fax: (626) 449-0565pat@fioogroups.com]
Sent: Tuesday, November 18, 2014 1:57 PM
To: cdcbaa@yahoogroups.com
Subject: Re: [cdcbaa] Effect of lien strip on jointly owned property with nondebtor [18 Attachments] [Attachment(s) from Peter M. Lively included below] 506(d)limits the benefit to the debtor. However, 1306 references after acquired 541 property and 524(a)(3) references after acquired 541(a)(2) property. Provided there is no prenuptial agreement excluding the husband's interest in the real property from community property, I think your potential client has a good argument that 506(d) covers the after acquired community property interest. Of course husband doesn't receive a discharge of the debt previously secured to the property by the lien.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 Tuesday, November 18, 2014 1:39 PM, "Shannon Doyle sdoyle@ebankruptcyassistants.com [cdcbaa]" wrote: p but the property was transmuted to CP during the Chapter 13 so (without having done the research) I would argue that the lien strip applies for these reasons: (1) When a debtor gets married during the chapter 13, the non-filing spouses income becomes property of the estate and is required to be used toward the plan. If the non-filing spouse has to contribute to the plan after marriage, why wouldnt he also get the benefit of the marital lien strip and (2) the lien strip is effective upon discharge and at the time of discharge the property was CP.
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Sent: Tuesday, November 18, 2014 12:50 PM
To: cdcbaa@yahoogroups.com
Subject: Re: [cdcbaa] Effect of lien strip on jointly owned property with nondebtor Thanks. The debtor in this case did not become married until after the lien strip. At the time the case was filed, and at the time of the lien strip, she was on title as joint tenants with a NON-spouse.
I think this is different than Maynard, unfortunately, since in Maynard they were married and the estate had an interest in the entire property. But I'd love to hear others' input.
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Mark J. Markus
Law Office of Mark J. Markus
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NOTICE: This Electronic Message contains information from the law office of Mark J. Markus that may be privileged. The information is intended for the use of the addressee only. If you are not the addressee, note that any disclosure, copy, distribution or use of the contents of this message is prohibited.
IRS CIRCULAR 230 NOTICE: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication (or in any attachment) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed in this communication. On 11/18/2014 6:52 AM, Shannon Doyle sdoyle@ebankruptcyassistants.com [cdcbaa] wrote:
That is an interesting issue Mark. In In re Maynard, 264 B.R. 209 (9th Circuit. BAP 2001), the Court said that a junior mortgage is stripped when there is a non-filing spouse on community property . Presumable the property became community property at the time of marriage (unless there are some facts to refute this) so I would argue that it is stripped and the husband is protected against deficiency. But I would also look at some other facts like did the debtor amend her plan to include the husbands income after the marriage?Maybe Pat can chime in about the CP aspect of these facts.
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Sent: Monday, November 17, 2014 10:51 PM
To: cdcbaa@yahoogroups.com
Subject: [cdcbaa] Effect of lien strip on jointly owned property with nondebtor Esteemed Colleagues:
I'm advising someone on a Chapter 13 case in which a lien strip was done.
The salient facts are:
As of the petition filing date, Debtor is on title to the property with her boyfriend who is also a co-signer on the junior mortgage loan to be stripped.
Petition filed by debtor alone.
During the Chapter 13 case, debtor marries said boyfriend.
Debtor files the complaint for the lien strip (Judge Zurzolo) and it is approved by default.
Questions:
hat there was a nondebtor on title (or on the loan) affect the extent of the strip?
cted against any deficiency owed to the stripped mortgage by virtue of the community discharge in 524(a)(3) (once it's entered)?
Thanks in advance for your input.
*************************
Mark J. Markus
Law Office of Mark J. Markus
Mailing Address Only:
11684 Ventura Blvd. PMB #403
Studio City, CA 91604-2652
(818)509-1173 (818)332-1180 (fax)
web: http://www.bklaw.com/
Certified Bankruptcy Law Specialist--The State Bar of California Board of Legal Specialization
This Firm is a Qualified Federal Debt Relief Agency
________________________________________________
NOTICE: This Electronic Message contains information from the law office of Mark J. Markus that may be privileged. The information is intended for the use of the addressee only. If you are not the addressee, note that any disclosure, copy, distribution or use of the contents of this message is prohibited.
IRS CIRCULAR 230 NOTICE: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication (or in any attachment) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed in this communication.
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