But has anyone tried this successfully yet?
Law Offices of Louis J. Esbin
Sent: Monday, January 26, 2009 9:52 PM
To:
cdcbaa@yahoogroups.com
Subject: [cdcbaa] Re: Timing of Ch. 7 vs. 13 and lien stripping
Correct!
>
> Lou:
>
> So if I understand your reasoning (per your last line below), the
Chapter 13
> purpose is completed when all plan payments are made. Whether or
not the
> debtor gets a Chapter 13 discharge is irrelevant. In other words,
you don't
> need a discharge to strip a lien - you only need to complete the
payments
> under a confirmed plan. Chapter 20 works even though there is no
Chapter 13
> discharge due to recent Chapter 7.
> 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.
> Business bankruptcy specialist cert. by Amer. Bd. of Certification
>
>
>
Behalf Of
> Law Offices of Louis J. Esbin
> Sent: Sunday, January 25, 2009 11:25 AM
> To:
cdcbaa@yahoogroups.com
> Subject: [cdcbaa] Re: Timing of Ch. 7 vs. 13 and lien stripping
>
>
>
> David,
>
> I just posted to the List Serv Files under Newsletters, the January
> 2009 Newsletter that includes my article on Motions to Value and its
> effect on lien avoidance. That is the analysis for Chapter 13, upon
> which the following analysis follows:
>
> Once the trust purpose (the note) has been extinguished with a
> discharge, under California law the lien must be avoided; however, in
> a Chapter 7 the real property is property of the estate until the
> Trustee abandons, and after that the court really has no jurisdiction
> to effectuate the state law, because the Trustee has abandoned it back
> to the Debtor. One alternative is that in a subsequent Chapter 13
> (Chapter 20), the court will determine value such that the lien does
> not "ride through" for two reasons: first, the underlying trust
> purpose was discharged in the Chapter 7, and second, the lien is
> "wholly undersecured," and therefore, there is no equity against which
> the deed of trust can "ride through" against. Remember thought that
> there must be an effective reorganization for the Chapter 13 to be
> filed in good faith. Past due payments to the first, past due
> property taxes (remember, even though client may have paid the first
> half, the whole amount was due in December, and so, according to the
> Los Angeles County Assessor the second half is also due and includable
> as a claim in the Chapter 13 and payable over time), past due income
> taxes, nondischargeable debt determined during the course of the
> Chapter 7, and reaffirmed debt are all candidates for payments over
> time in a Chapter 13. And, so, the lien may be avoided once the
> purpose for the Chapter 13 has been fully consummated - the Chapter 13
> plan completed in payments.
>
> Lou Esbin
>
> --- In cdcbaa@yahoogroups. com,
"David A.
> Tilem" wrote:
> >
> > Why does debtor need a discharge in the subsequent C13? The underlying
> > personal obligation on the debt was discharged in the prior C7. All
> that
> > remains is to strip the lien. Is the lien strip effective upon
> discharge or
> > upon completion of the plan?
> >
> > 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.
> > Business bankruptcy specialist cert. by Amer. Bd. of Certification
> >
> >
> >
> [mailto:cdcbaa@yahoogroups. com] On
> Behalf Of
> > Mark JM
> > Sent: Friday, January 23, 2009 9:51 AM
> > To: cdcbaa@yahoogroups. com
> > Subject: RE: [cdcbaa] Timing of Ch. 7 vs. 13 and lien stripping
> >
> >
> >
> >
> > Yea, that's the issue.
> >
> [mailto:cdcbaa@yahoogroups. com] On
> Behalf Of
> > Dennis McGoldrick
> > Sent: Friday, January 23, 2009 1:37 AM
> > To: cdcbaa@yahoogroups. com
> > Subject: Re: [cdcbaa] Timing of Ch. 7 vs. 13 and lien stripping
> >
> >
> > Isn't the real problem the fact the Lam strip isn't effective
until the
> > chapter 13 discharge is issued? And wouldn''t a discharge be
> precluded in
> > the w/in 4 years chapter 13?
> >
> > We' posed the question before, but unless a judge would issue a Lam
> order,
> > effectively immediately, due to the prior 7, there would never be a 13
> > dischage and the chapter 20 would therefore be ineffective.
> >
> > dennis
> >
> > --- On Thu, 1/22/09, Mark JM wrote:
> >
> > Subject: [cdcbaa] Timing of Ch. 7 vs. 13 and lien stripping
> > To: cdcbaa@yahoogroups. com
> > Date: Thursday, January 22, 2009, 4:51 PM
> >
> > I keep getting the same fact scenarios over and over lately for
> people who
> > have real property with underwater Deeds of Trust that could be Lam
> Motioned
> > (lien stripped) in a Chapter 13, but that do not presently have income
> > sufficient to do a Chapter 13 plan (even after eliminating the
> junior lien
> > payments).
> >
> >
> >
> > Thus, facing pressure from creditors, they may need to do a Chapter
> 7 now,
> > and do loan modifications with their secured lenders.
> >
> >
> >
> > My question is this: Can they do a Chapter 7, get a discharge, then
> file a
> > Chapter 13 case before four years have passed, and do a lien strip
> in the
> > new Chapter 13 (would be a 100% repayment plan, because there
would most
> > likely not be any unsecureds). Theyre not seeking a discharge in
> the new
> > Chapter 13, only a lien strip and ability to pay something in the new
> > Chapter 13 (perhaps).
> >
> > I think Jeff Hagen was positing this scenario to Judge Mund who
gave an
> > initial negative response to that. Has anyone tried it? Any other
> ideas?
> >
> >
> > ************ ********* ****
> >
> > Mark J. Markus
> >
> > Law Office of Mark J. Markus
> >
> > 11684 Ventura Blvd. PMB #403
> >
> > Studio City, CA 91604-2652
> >
> > (818)509-1173 (818)509-1460 (fax)
> >
> > Toll Free: 1-866-576-6275
> >
> > web:
http://www.bklaw. com/
> >
> > This Firm is a Qualified Federal Debt Relief Agency (see what this
> means at
> >
http://bklaw. com/bankruptcy- blog/2008/ 09/debt-relief- agencies-
> > definition/)
> >
> > ____________ _________ _________ _________ _________
> >
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