I need a chapter 13 mentor
Posted: Fri Feb 12, 2010 12:54 pm
This is a commercial lease - a restaurant. No UD trial yet. I have told many people over the years that the lease died when the 3 days ran and bk won't bring it back but state law allows relief from forefiture, typically I think on cure in full - right now. I am hoping to avoid going back to state court where the client will lose. I don't think they can cure even over 60 months but the MFR has already been filed so I'm grasping at straws. Its a VK case.
>
> I am a newbie myself, but I had this issue recently so I will chime in. >
> For starters, since it does not appear that a judgment for possession has been in this case, the automatic stay exception in 362(b)(22) should not apply. So probably the worst case scenario is a landlord motion for relief.
>
> In the residential context, a lot of debtors are on month to month rental agreements (either because this was the original agreement, or because original lease has expired). So assuming the lease may not really benefit the client that much. So I would start by evaluating whether or not debtor has a long term below-market lease locked in, which is worth assuming (unlikely to be the case in this market, it seems to me).
>
> In my case, Debtor was 2 months behind on a month-to-month rental agreement, 3 day notice had passed and a UD had been filed, but there was not yet an order for possession. So the automatic stay exception in Section 362(b)(22) did not apply. Since client was month to month, I explained that yes, if LL wants to, they can file a motion for relief from the automatic stay and proceed with the UD. But my plan calls for payment in full of rent arrearages "promptly," so I don't see why the landlord would do such a thing. If landlord proceeds with the UD, he will have a general unsecured claim in client's Chapter 13 case, and will not get paid the back rent. If landlord does not object to the plan, he will get the back rent and the current rent. I don't see why landlord would want to file a motion for relief to proceed with the UD if debtor stays current on future rent and plan payments. Especially in this rental market. Moreover, landlord can always file a POC if they want to collect on their attorneys' fees and costs for filing the UD.
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>
> --- In cdcbaa@yahoogroups.com, "David A. Tilem" wrote:
> >
> > Jon:
> >
> > 365 provides very precise time parameters: "promptly", hence it us up to
> > each individual judge.
> >
> >
> > 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
> >
> >
> > -----Original Message-----
Of
> > jonhayes6666
> > Sent: Thursday, February 11, 2010 6:56 PM
> > To: cdcbaa@yahoogroups.com
> > Subject: [cdcbaa] I need a chapter 13 mentor
> >
> >
> >
> >
> > Can a chapter 13 debtor cure a real property lease over 60 months (or x
> > months) in the chapter 13 plan? The 3 day notice ran a long time ago. The
> > debtor wants to stay but cannot cure all at once. I know its an executory
> > contract that must be assumed and therefore must be cured. But can cure be
> > over 60 months or do I have to go to state court and ask for relief from
> > forfeiture? Do I have to do that stuff in 362(l) or can I do it in the plan?
> > Jon
> >
>
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