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New Case
Nate:
Unfortunately, this is NOT news. This trend began more than 20 years ago
with a bad facts case filed, pursued and ultimately appealed by attorney
Richard Moneymaker (a good lawyer known for pursuing bad facts cases to the
nth degree).
David A. Tilem
Certified Bankruptcy Specialist*
Law Offices of David A. Tilem (a debt relief agency)
206 N. Jackson Street, #201, Glendale, CA 91206
Tel: 818-507-6000 Fax: 818-507-6800
* Bankruptcy specialist cert. by State Bar of CA Bd of Legal
Specialization.
Nathan Berneman
Sent: Tuesday, October 12, 2010 11:53 PM
To: cdcbaa
Subject: [cdcbaa] New Case
I just received today a new case that was sent by NACBA. SEE BELOW
** In a case that poses a real threat to Chapter 7 debtors who hope to
retain their homes, the Ninth Circuit Court of Appeals held that, even
though a Chapter 7 debtor has validity exempted all of the equity the debtor
has in the home on the petition date, the Chapter 7 trustee may hold the
case open for years, wait for the property to appreciate, and then sell it
and pay the debtor the amount exempted.
Nate Berneman
Message
Nate:
Unfortunately, this is NOT
news. This trend began more than 20 years ago with a bad facts case
filed, pursued and ultimately appealed by attorney Richard Moneymaker (a good
lawyer known for pursuing bad facts cases to the nth
degree).
David A.
Tilem
Certified Bankruptcy
Specialist*
The post was migrated from Yahoo.
Wow, I am amending my retainer accordingly...what a bad thing for debtors.
>
> Case cite is Gebhart v. Gaughan 07-16769. Seems to me that another implication of this decision is that you should always claim the full amount of the allowable homestead exemption, regardless of the property value at the time of filing, in order to cover as much post-petition appreciation as possible--then counsel the client of the risk that if property values increase, they could receive only the dollar value of the exemption. Is that what others are doing?
>
> Also, what about completely underwater properties? If property is valued at $300K on filing date and the first mortgage is $305K, then later the property appreciates to $325K, could the Trustee sell? Or would the post-petition appreciation be excluded from the definition of "property of the estate" under 541(d) without claiming an exemption?
>
> --- In cdcbaa@yahoogroups.com, Law Offices of Jonathan Leventhal wrote:
> >
> > The key to these type of cases is if the property value is close to the exemption level, you need to to make a motion to have the property abandoned. If the case is held open you risk the chance of having the trustee grab the property.
> >
> > As a side note I have changed my retainer agreement advising clients of the risk f property value increase and the potential of the trustee holding the case open hoping that the property value increases.
> >
> > Nate, please contact me off list to discuss the phone message I left you.
> >
> > Jonathan Leventhal
> > Attorney at Law
> > 818-347-5800
> >
> > On Oct 12, 2010, at 11:53 PM, "Nathan Berneman" wrote:
> >
> >
> >
> > I just received today a new case that was sent by NACBA. SEE BELOW
> >
> > ** In a case that poses a real threat to Chapter 7 debtors who hope to retain their homes, the Ninth Circuit Court of Appeals held that, even though a Chapter 7 debtor has validity exempted all of the equity the debtor has in the home on the petition date, the Chapter 7 trustee may hold the case open for years, wait for the property to appreciate, and then sell it and pay the debtor the amount exempted.
> >
> > Nate Berneman
> >
>
The post was migrated from Yahoo.
Case cite is Gebhart v. Gaughan 07-16769. Seems to me that another implication of this decision is that you should always claim the full amount of the allowable homestead exemption, regardless of the property value at the time of filing, in order to cover as much post-petition appreciation as possible--then counsel the client of the risk that if property values increase, they could receive only the dollar value of the exemption. Is that what others are doing?
Also, what about completely underwater properties? If property is valued at $300K on filing date and the first mortgage is $305K, then later the property appreciates to $325K, could the Trustee sell? Or would the post-petition appreciation be excluded from the definition of "property of the estate" under 541(d) without claiming an exemption?
wrote:
>
> The key to these type of cases is if the property value is close to the exemption level, you need to to make a motion to have the property abandoned. If the case is held open you risk the chance of having the trustee grab the property.
>
> As a side note I have changed my retainer agreement advising clients of the risk f property value increase and the potential of the trustee holding the case open hoping that the property value increases.
>
> Nate, please contact me off list to discuss the phone message I left you.
>
> Jonathan Leventhal
> Attorney at Law
> 818-347-5800
>
> On Oct 12, 2010, at 11:53 PM, "Nathan Berneman" wrote:
>
>
>
> I just received today a new case that was sent by NACBA. SEE BELOW
>
> ** In a case that poses a real threat to Chapter 7 debtors who hope to retain their homes, the Ninth Circuit Court of Appeals held that, even though a Chapter 7 debtor has validity exempted all of the equity the debtor has in the home on the petition date, the Chapter 7 trustee may hold the case open for years, wait for the property to appreciate, and then sell it and pay the debtor the amount exempted.
>
> Nate Berneman
>
The post was migrated from Yahoo.
I just received today a new case that was sent by NACBA. SEE BELOW
** In a case that poses a real threat to Chapter 7
debtors who hope to retain their homes, the Ninth Circuit Court of Appeals held
that, even though a Chapter 7 debtor has validity exempted all of the equity the
debtor has in the home on the petition date, the Chapter 7 trustee may hold the
case open for years, wait for the property to appreciate, and then sell it and
pay the debtor the amount exempted.
Nate Berneman
I just received today a new case that was sent by NACBA. SEE BELOW** In a case that poses a real threat to Chapter 7
debtors who hope to retain their homes, the Ninth Circuit Court of Appeals held
that, even though a Chapter 7 debtor has validity exempted all of the equity the
debtor has in the home on the petition date, the Chapter 7 trustee may hold the
case open for years, wait for the property to appreciate, and then sell it and
pay the debtor the amount exempted. Nate Berneman
The post was migrated from Yahoo.
Ladies and Gents:
I was sent this case by one of our members, Marvin Mann:
A California appellate court has found that failure to counsel a debtor regarding curing defaults on a mortgage, Before Filing A NOD, is actionalbe, and if proven, the court must require the bank to give the counseling and start the foreclosure process over.
see attached.
dennis
Ladies and Gents:
I was sent this case by one of our members, Marvin Mann:
A California appellate court has found that failure to counsel a debtor regarding curing defaults on a mortgage, Before Filing A NOD, is actionalbe, and if proven, the court must require the bank to give the counseling and start the foreclosure process over.
see attached.
dennis---
The post was migrated from Yahoo.