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stay of debtor appeal in Ch. 7
In a message dated 1/10/2008 10:40:40 A.M. Pacific Standard Time,
bklawr@yahoo.com writes:
Q: If debtor files a Chapter 7 case, what happens to the appeal?
The debtor can proceed with his appeal but the respondent will have to move
the court to lift the stay. This is only theory. As a practical matter if the
appeal is in the Second District, the court will stay the entire appeal
unless the parties want it to go forward. The second district takes the position
it is not bound by the stay. I sit as a mediation attorney for the court of
appeal and we have had this happen occasionally.
If the Trustee for some reason decides not to pursue the appeal and proceeds
to liquidate debtor's assets, how can debtor prevent the judgment creditor
from being paid on their lien?
If the trustee does not want to pursue the appeal the debtor is certainly
free to do so.
And...what happens if after the creditor gets paid, debtor ultimately
(presumably after the bankruptcy case is closed) prevails on the appeal? Would the
Trustee then not have a duty to recapture the funds disbursed since it might
result in a much higher percentage to unsecureds (and wouldn't that be an
incentive for the Trustee to allow the appeal to go forward prior to
liquidating)
I seriously doubt any trustee is going to try to liquidate the estate if
there is a appeal pending. You may be able to get a writ of supersedeas from the
court of appeal to prevent the trustee from touching the estate until the
appeal is over.
Michael R. Totaro J.D., L.LM.
Totaro & Shanahan
P.O. Box 789
Pacific Palisades, CA 90272
310 573 0276 (v) 310 712 6317 (f)
**************Start the year off right. Easy ways to stay in shape.
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Facts: Debtor has a large pre-petition judgment against him, which debtor has appealed. The judgment creditor obtained a lien against debtor's numerous real property holdings over 2 years ago. Please ignore lien avoidance issues for this scenario.
Q: If debtor files a Chapter 7 case, what happens to the appeal?
Sub-questions:
If the Trustee for some reason decides not to pursue the appeal and proceeds to liquidate debtor's assets, how can debtor prevent the judgment creditor from being paid on their lien? And...what happens if after the creditor gets paid, debtor ultimately (presumably after the bankruptcy case is closed) prevails on the appeal? Would the Trustee then not have a duty to recapture the funds disbursed since it might result in a much higher percentage to unsecureds (and wouldn't that be an incentive for the Trustee to allow the appeal to go forward prior to liquidating)?
______________________
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)
web: http://www.bklaw.com/
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 (or in any attachment).
Facts: Debtor has a large pre-petition
judgment against him, which debtor has appealed. The judgment creditor
obtained a lien against debtor's numerous real property holdings over 2 years
ago. Please ignore lien avoidance issues for this scenario.
Q: If debtor files a Chapter 7 case, what
happens to the appeal?
Sub-questions:
If the Trustee for some reason decides not to
pursue the appeal and proceeds to liquidate debtor's assets, how can debtorprevent the judgment creditor from being paid on their lien? And...what
happens if after the creditor gets paid, debtor ultimately (presumably after the
bankruptcy case is closed) prevails on the appeal? Would the Trustee then
not have a duty to recapture the funds disbursed since it might result in a much
higher percentage to unsecureds (and wouldn't that be an incentive for theTrustee to allow the appeal to go forward prior to liquidating)?
______________________Mark J. MarkusLaw
Office of Mark J. Markus11684 Ventura Blvd. PMB #403Studio City, CA91604-2652(818)509-1173 (818)509-1460 (fax)web: http://www.bklaw.com/This Firm is aQualified 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 addresseeonly. 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 (or in any
attachment).
The post was migrated from Yahoo.