Central District Consumer Bankruptcy Attorney's Association

X-eGroups-Edited-By: easky1
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Good luck!!
Can you post the Motion? Thanks
Erik Clark
Borowitz, Lozano & Clark, LLP
100 N. Barranca Avenue, Suite 250
West Covina, CA 91791
Office: (626) 332-8600
Fax: (626) 332-8644
eclark@BLClaw.com
www.BLClaw.com
charset="US-ASCII"
Good luck!!
Can you post the Motion? Thanks
Erik Clark
Borowitz, Lozano & Clark, LLP
100 N. Barranca Avenue, Suite 250
West Covina, CA 91791
Office: (626) 332-8600
Fax: (626) 332-8644
eclark@BLClaw.com
www.BLClaw.com

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I read these posts every day and knew it was only a matter of time
before one of these big issues hit one of my cliets. Here goes:
Client makes $109K/yr with Boeing. Spouse does not work. Laguna
Niguel house worth $805K ($804...$803...$802...)
1st Td: $415K, principal, $23K in arrears. $2900/mo. reg. pmnt and
$380/mo x 60 to cure arrears
2nd Td: $250K principal, $13K arrears. $2400/mo reg pmnt and $215/mo
x 60 to cure arrears.
3rd Td: $37K principal, $1200 arrears, $375/mo reg pmnt and $18/mo x
60 to cure arrears.
4th Td: $33K principal, $1000 arrears. $315/mo reg pmnt and $17/mo x
60 to cure arrears.
$145K in Credit Card/ Signature loan debt. Two kids two cars,
retirement account with big loans against it.
If they pass the means test, its for one reason, and one reason only,
all that mortgage debt ($6K/month reg. payments) and arrearages
($650/mo to cure the arrearages x 60). They intend to surrender the
house, move and rent.
I read cases, and tell clients the truth: there is a split in
authority on the issue, and that cases like In re Ray say if you
intend to surrender, no mortgage deductions on means test; BUT In Re
Walker says O.K. to deduct mtg (and maybe arearage / 60 too) when
calculating means test.
They say go for it. I file Chapter 7 11/07. We are truthful on the
Stmnt of Intent, and indicate surrender on the house. We drew Judge
TA.
I got the OUST Motion to Dismiss today, authored by Nancy
Goldenberg. Candidly, its REALLY well written, very well argued. I
don't get a sense of wether this is a "canned" brief, or a targeted
case.
If I worked for the OUST, I'd look for a case just like this one to
try to make my point on this particular legal issue. Debtors have
high income and otherwise unimpressive facts other than that big
unsecured debt. If you replace the mortgage payments with
the "allowable" housing expense its not all that hard to show that
the debtors have, easily, over $1100/mo excess. The motion also
seeks 707(b) (3) (B) "totality of the circumstances" dismissal, which
I'll need to research.
I have a few questions and a comment.
Q: Has the 9th Cir. BAP or just the 9th Cir. gotten to this issue in
the last few months? If so I have not found anything. I know Judge
Jury published the Wilkins case which I have not read yet, but
should, per its headnote, support my client's position.
Q: Has anyone directly briefed this issue? If so, how did it go,
and more importantly, can I get my hands on your (winning I hope)
brief? I am going to try to get my hands on the Wilkins briefs, but
if anyone has any input I would appreciate it.
My comment is this: If anyone wants to see what you are likely to
recieve from the Orange County OUST if you file a Chapter 7 and rely
on passing the means test with secured debt payments on residential
property that you also intend to surrender.... I'll e-mail you a pdf
of the motion I got, or you can get it off the PACER dockett. My
clients case is In Re Newlon, SA07-13877 TA.
Thanks, and wish me luck, the clients said before we filed they would
pay me oppose this.
P.S. I've never dealt with Nancy G. I have a Judge Robles trial the
same day as this hearing in late February. Can I expect her
cooperation in moving the hearing or should I just pass "go" and
bring a Motion? Thank You.

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