Central District Consumer Bankruptcy Attorney's Association

X-eGroups-Edited-By: easky1
Yes, very helpful. I think we need to find out who is handling the appeal on Wilkins (this is the case that I was told the UST had appealed) for the debtors and get CDCBAA and NACBA involved. I agree that this is a major issue. My Judge in this case is Naugle - not a good turn of ovents for my client. In my case I & J work (after I take out the mortgage and insert the new rent) becuase of the loss of the tax deductions for mortgage interest and real estate taxes. I'll keep everyone posted but getting involved with Wilkins seems like a very good idea.

Erik Clark
name="winmail.dat"

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X-eGroups-Edited-By: easky1
Don't believe everything the OUST lawyers tell you! I drew a motion
to dismiss on this issue from the OC OUST this month, Nancy
Goldenberg authored the motion. I previously posted something on
this. My judge is Albert. I asked Nancy how many of these she has
brought and what her results to date have been. She said that they
have been winning ALL of these motions to dismiss, and that NONE of
the OC judges are following In Re Wilkins (judge Jury's opinion
siding with Debtors) or In re Walker (the primary case that most
judges are following in ruling for debtors on this issue). The
majority of District Courts are siding with debtors. I have yet to
find any BAP or Circuit opinions anywhere on this issue. Ms.
Goldenberg specifically said to me that Judge Kwan had ruled in favor
of the OUST on this issue.
BTW-The minority opinions all cite In Re Skaggs, or In Re Ray, and
side with the OUST or Chapter 7 trustees, no deduction for mortgage
payments when surrendered property.
Two days after Nancy G. told me how the OC OUST is "winning" all of
these motions, Judge Kwan showed up at our Saturday CDCBAA meeting
and informed us that he was ruling on this issue AGAINST the
OUST/monority position, and specifically, in a conversation I had
with him after the meeting, he confirmed that he is following Judge
Jury's ruling in In Re Wilkins. I don't know for sure but Wilkins
may be the case that is up on Appeal. It was decided last June or
July, if I recall. Does anyone know for sure what case is up on
appeal from Judge Jury, and where it is now (BAP/DC/Circuit?).
For my money, our money, this may be one of the biggest undecided
post reform issues to impact our businesses for the next couple of
years. If I am reading the economic situation right there are going
to be a lot of potential clients effected by this issue, and this
could have a really big impact on the number of people who are
willing to file ANY bk. I agree that we need to consider stepping
in, as a group, to assist whomever is handling the issue in our local
appellate courts. I cannot think of a better use of our collective
resources.
BTW-If you are thinking of filing one of these before we hear from a
higher court, beware of the OTHER section 707(b) grounds. My clients
are facing the mortgage deduction issue AND a good old
fashioned "substantial abuse" challenge based on the "totality of the
circumstanses" analysis. Sorry, I am away from my office and cannot
cite you to the code, but as far as I can tell, the authorities I
have reviewed seem to say that regardless of the means test, the pre-
reform analysis of "totality" of the circumstances of each circuit is
still alive and well. Here, that means that if there can be shown
that the debtors can "afford" a repayment that would give the
creditors a "substantial" distribution, the case may be dismissed.
In my case the debtors' I and J at filing show a negative $3K/month,
so I was surprised to see this argued. The OUST has backed out the
mortgage and inserted, surprise surprise, the IRS geographical median
rent for my clients, to reduce their expenses to create the
appearance of surplusage to buttress this argument. The problem is,
my clients are paying nothing for their housing yet, as the
forclosure is still weeks off, and they haven't found a place to live
yet. I really don't know how I am going to handle this yet. My
brief is not due for a few weeks yet, and I am still researching.
Anyway, any thoughts would be helpful on this issue, and I hope this
info is helpful to those who are also facing this issue either pre or
post filing.
JBS
>
> I acutally spoke with the UST's office in RIV. This is what they
say. The opinion Judge Jury wrote allowing you to do this has been
appealed. Therefore, they are still fighting this everywhere in
RIV.

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Good question. Can we please get a reference to the case and counsel
so that the Board can direct possible appellate assistance?
Lou Esbin
>
> Exactly, and this highlights my whole point. How can a rational
judge take
> the position that the Riverside judges are apparently taking? If the
> debtor can get around having this affect the means test by merely
> manipulating the filing (either by listing an intent to retain on
the SoI or
> by filing a CH. 13 first) it strikes me that the analysis is wrong ab
> initio. The statutory language is pretty darned clear, in my opinion.
>
> Who is handling the appeal of Judge Jury's decision?
>
> ______________________
> 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).
>
> ----- Original Message -----
> To:
> Sent: Saturday, February 09, 2008 8:38 PM
> Subject: [cdcbaa] Re: What is the status of the law?
>
>
> > How about commencing the case as a chapter 13 case and doing the B22
> > under a chapter 13 scenario, thereby giving rise to a presumption that
> > your client intends to retain the property. If they are unable to
> > make the payments before the first 341(a), the case is converted, but
> > only one B22 is prepared in the case, at the chapter 13 level!
> >
> > Best regards. Lou
> >
> > --- In cdcbaa@yahoogroups.com, Mtotaro@ wrote:
> >>
> >> If the debtor is behind in payments the UST will presume they are
> >> surrendering the house and you cannot count it in the means test.
> > All of the Riverside
> >> judges are on this side and the UST will discount any deduction on
> > the means
> >> test for items being surrendered.
> >>
> >>
> >>
> >>
> >> Michael R. Totaro J.D., L.LM.
> >> Totaro & Shanahan
> >> P.O. Box 789
> >> Pacific Palisades, CA 90272
> >> 310 573 0276 (v) 310 496 1260 (f)
> >>
> >>
> >>
> >> **************Biggest Grammy Award surprises of all time on AOL
> > Music.
> >>
> >

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Exactly, and this highlights my whole point. How can a rational judge take
the position that the Riverside judges are apparently taking? If the
debtor can get around having this affect the means test by merely
manipulating the filing (either by listing an intent to retain on the SoI or
by filing a CH. 13 first) it strikes me that the analysis is wrong ab
initio. The statutory language is pretty darned clear, in my opinion.
Who is handling the appeal of Judge Jury's decision?
______________________
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).
To:
Sent: Saturday, February 09, 2008 8:38 PM
Subject: [cdcbaa] Re: What is the status of the law?
> How about commencing the case as a chapter 13 case and doing the B22
> under a chapter 13 scenario, thereby giving rise to a presumption that
> your client intends to retain the property. If they are unable to
> make the payments before the first 341(a), the case is converted, but
> only one B22 is prepared in the case, at the chapter 13 level!
>
> Best regards. Lou
>
> --- In cdcbaa@yahoogroups.com, Mtotaro@... wrote:
>>
>> If the debtor is behind in payments the UST will presume they are
>> surrendering the house and you cannot count it in the means test.
> All of the Riverside
>> judges are on this side and the UST will discount any deduction on
> the means
>> test for items being surrendered.
>>
>>
>>
>>
>> Michael R. Totaro J.D., L.LM.
>> Totaro & Shanahan
>> P.O. Box 789
>> Pacific Palisades, CA 90272
>> 310 573 0276 (v) 310 496 1260 (f)
>>
>>
>>
>> **************Biggest Grammy Award surprises of all time on AOL
> Music.
>>
> (http://music.aol.com/grammys/pictures/n ... 3000000025
>> 48)
>>
>
>
>
>
>
> Yahoo! Groups Links
>
>
>

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How about commencing the case as a chapter 13 case and doing the B22
under a chapter 13 scenario, thereby giving rise to a presumption that
your client intends to retain the property. If they are unable to
make the payments before the first 341(a), the case is converted, but
only one B22 is prepared in the case, at the chapter 13 level!
Best regards. Lou
>
> If the debtor is behind in payments the UST will presume they are
> surrendering the house and you cannot count it in the means test.
All of the Riverside
> judges are on this side and the UST will discount any deduction on
the means
> test for items being surrendered.
>
>
>
>
> Michael R. Totaro J.D., L.LM.
> Totaro & Shanahan
> P.O. Box 789
> Pacific Palisades, CA 90272
> 310 573 0276 (v) 310 496 1260 (f)
>
>
>
> **************Biggest Grammy Award surprises of all time on AOL
Music.
>

The post was migrated from Yahoo.

If the debtor is behind in payments the UST will presume they are
surrendering the house and you cannot count it in the means test. All of the Riverside
judges are on this side and the UST will discount any deduction on the means
test for items being surrendered.
Michael R. Totaro J.D., L.LM.
Totaro & Shanahan
P.O. Box 789
Pacific Palisades, CA 90272
310 573 0276 (v) 310 496 1260 (f)
**************Biggest Grammy Award surprises of all time on AOL Music.

The post was migrated from Yahoo.

This should rarely be an issue. Just check that the debtor intends to retain the property on the Statement of Intentions. The only way this possibly becomes an issue (and I'm not convinced it's an issue then) is if the bankruptcy case is filed post-foreclosure (in which case, arguably, the debtor no longer has that secured contractual obligation). But more importantly, how can the debtor's intent with respect to an asset have anything to do with the statutory allowance (i.e. REQUIREMENT) that the debtor deduct amounts owed on contractually due secured obligations as of the petition date?
______________________
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).
----- Original Message -----
To: cdcbaa@yahoogroups.com
Sent: Friday, February 08, 2008 7:50 PM
Subject: RE: [cdcbaa] What is the status of the law?
I acutally spoke with the USTs office in RIV. This is what they say. The opinion Judge Jury wrote allowing you to do this has been appealed. Therefore, they are still fighting this everywhere in RIV. Unfortunately, I have Judge Naugle and dont like my chances. Well fight it out but I am arguing that the loss of the tax deduction makes a big difference and well see where that goes.
I do not know what the LA USTs offices position on this is.
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
Privileged/Confidential Information may be contained in this message. If you are not the addressee indicated in this message (or responsible for delivery of the message to such person), you may not copy or deliver this message to anyone. In such case, you should destroy this message and kindly notify the sender by reply email. Please advise immediately if you or your employer does not consent to Internet email for messages of this kind. Opinions, conclusions and other information in this message that do not relate to the official business of my firm shall be understood as neither given nor endorsed by it.
IRS Circular 230 Disclosure: To ensure compliance with Treasury Department Regulations, we advise you that, unless otherwise expressly indicated, any federal tax advice contained in this communication was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or applicable state or local tax law provisions or (ii) promoting, marketing or recommending to another party any tax-related matter addressed herein.
David A. Tilem
Sent: Friday, February 08, 2008 4:51 PM
To: cdcbaa@yahoogroups.com
Subject: RE: [cdcbaa] What is the status of the law?
you can.
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-----
Erik Clark
Sent: Friday, February 08, 2008 2:55 PM
To: cdcbaa@yahoogroups.com
Subject: [cdcbaa] What is the status of the law?
I am having a Friday afternoon moment here.
What is the status of the law in terms of being able to deduct mrtgage payments in the mean test for a property that you are surrendering? 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
Privileged/Confidential Information may be contained in this message. If you are not the addressee indicated in this message (or responsible for delivery of the message to such person), you may not copy or deliver this message to anyone. In such case, you should destroy this message and kindly notify the sender by reply email. Please advise immediately if you or your employer does not consent to Internet email for messages of this kind. Opinions, conclusions and other information in this message that do not relate to the official business of my firm shall be understood as neither given nor endorsed by it.
IRS Circular 230 Disclosure: To ensure compliance with Treasury Department Regulations, we advise you that, unless otherwise expressly indicated, any federal tax advice contained in this communication was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or applicable state or local tax law provisions or (ii) promoting, marketing or recommending to another party any tax-related matter addressed herein.

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charset="windows-1251"
I acutally spoke with the USTs office in RIV. This is what they say. The opinion Judge Jury wrote allowing you to do this has been appealed. Therefore, they are still fighting this everywhere in RIV. Unfortunately, I have Judge Naugle and dont like my chances. Well fight it out but I am arguing that the loss of the tax deduction makes a big difference and we
I do not know what the LA USTs offices position on this is.
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
Privileged/Confidential Information may be contained in this message. If you are not the addressee indicated in this message (or responsible for delivery of the message to such person), you may not copy or deliver this message to anyone. In such case, you should destroy this message and kindly notify the sender by reply email. Please advise immediately if you or your employer does not consent to Internet email for messages of this kind. Opinions, conclusions and other information in this message that do not relate to the official business of my firm shall be understood as neither given nor endorsed by it.
IRS Circular 230 Disclosure: To ensure compliance with Treasury Department Regulations, we advise you that, unless otherwise expressly indicated, any federal tax advice contained in this communication was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or applicable state or local tax law provisions or (ii) promoting, marketing or recommending to another party any tax-related matter addressed herein.
________________________________

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Message
But not after foreclosure (I don't think). I have one right now, actually in northern california, where the foreclosure sale date is in like 2 weeks. WIthout the mortgage deduction, the debtor is a 100% repayment in a Ch. 13. WIth it, it's an easy Ch. 7.
______________________
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).
----- Original Message -----
To: cdcbaa@yahoogroups.com
Sent: Friday, February 08, 2008 4:50 PM
Subject: RE: [cdcbaa] What is the status of the law?
you can.
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-----
Erik Clark
Sent: Friday, February 08, 2008 2:55 PM
To: cdcbaa@yahoogroups.com
Subject: [cdcbaa] What is the status of the law?
I am having a Friday afternoon moment here.
What is the status of the law in terms of being able to deduct mrtgage payments in the mean test for a property that you are surrendering? 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
Privileged/Confidential Information may be contained in this message. If you are not the addressee indicated in this message (or responsible for delivery of the message to such person), you may not copy or deliver this message to anyone. In such case, you should destroy this message and kindly notify the sender by reply email. Please advise immediately if you or your employer does not consent to Internet email for messages of this kind. Opinions, conclusions and other information in this message that do not relate to the official business of my firm shall be understood as neither given nor endorsed by it.
IRS Circular 230 Disclosure: To ensure compliance with Treasury Department Regulations, we advise you that, unless otherwise expressly indicated, any federal tax advice contained in this communication was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or applicable state or local tax law provisions or (ii) promoting, marketing or recommending to another party any tax-related matter addressed herein.
Message

The post was migrated from Yahoo.

you can.
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.
Erik Clark
Sent: Friday, February 08, 2008 2:55 PM
To: cdcbaa@yahoogroups.com
Subject: [cdcbaa] What is the status of the law?
I am having a Friday afternoon moment here.
What is the status of the law in terms of being able to deduct mrtgage
payments in the mean test for a property that you are surrendering? 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
Privileged/Confidential Information may be contained in this message. If you
are not the addressee indicated in this message (or responsible for delivery
of the message to such person), you may not copy or deliver this message to
anyone. In such case, you should destroy this message and kindly notify the
sender by reply email. Please advise immediately if you or your employer
does not consent to Internet email for messages of this kind. Opinions,
conclusions and other information in this message that do not relate to the
official business of my firm shall be understood as neither given nor
endorsed by it.
IRS Circular 230 Disclosure: To ensure compliance with Treasury Department
Regulations, we advise you that, unless otherwise expressly indicated, any
federal tax advice contained in this communication was not intended or
written to be used, and cannot be used, for the purpose of (i) avoiding
tax-related penalties under the Internal Revenue Code or applicable state or
local tax law provisions or (ii) promoting, marketing or recommending to
another party any tax-related matter addressed herein.
Message
you
can.

David A.
Tilem
Certified Bankruptcy
Specialist*
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