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sale of residence in chapter 13 after plan has been fully performed.
To follow up on the sale of a residence after completion of the plan where the plan is less than 100%, the motion for discharge was granted in my case, notwithstanding the fact the plan was less than 100% (42%) and the fact the trustee had not completed its accounting. The court cited a Barry Russell case called In re Berkey. But the court also required that if any unforeseen creditors arose that my client would not receive a discharge unless he pays in to the trustee what is required to pay the claim (or, presumably, objects to the claim). See the order entered on 3/30/04, In re Luis Emilio, Greenwald case filed in 2000 on Pacer.
Steve Burton
stephen burton wrote:
Thank you all for your input. Fortunately, my client has a little time to complete the sale. So, I am going to withdraw the sale motion and file a motion for discharge which should be heard on notice in time to close the escrow. This will not be a case where I will be testing the law on appeal. In this case, discretion is the better part of valor.
Steve Burton
Brian Wirsching wrote: A plan can't be modified after it has been completed. See 1329(a). Trustee's attys. Go figure.
To: cdcbaa@yahoogroups.com
Sent: Tuesday, February 17, 2004 3:49 PM
Subject: RE: [cdcbaa] sale of residence in chapter 13 after plan has been fully performed.
Andrew:
The increase in the percentage issue is a red herring. What my concern is how can the debtor be required to pay more than the plan after the plan has been fully performed by its terms.
Steve Burton
andrew smyth wrote:
>Reply-To: cdcbaa@yahoogroups.com
>To: cdcbaa@yahoogroups.com
>Subject: [cdcbaa] sale of residence in chapter 13 after plan has been fully
>performed.
>Date: Sat, 14 Feb 2004 10:00:44 -0800 (PST)
>
>Dear Colleagues:
>
>Please assume the following facts:
>
>Chapter 13 plan is confirmed in the Spring of 2000. 14% plan. I had the
>single family residence appraised as of the filing date before I filed the
>case. There is no equity above
>the homestead exemption. Really!
>
>Debtor has fully performed his plan. 36 months. The trustee did a motion
>to increase the dividend because some creditors did not file. Plan payment
>remained unchanged, so
>creditors who participated got 40%
>
>Client is now in escrow to sell, but we cannot close escrow because the
>trustee has not
>finished her final accounting, and that will take months, etc.....
>
>So, I file a motion to authorize the debtor to sell. I state plan has been
>fully performed, so no proceeds are to go the the trustee or to creditors.
>Trustee's counsel objects on the basis that creditors will not be paid
>100%. House value, of course, has doubled.
>
>Any thoughts for me and my soon to be looking for a new lawyer client?
>
>Steve Burton (818) 501-5055
>
>
>
>---------------------------------
>Do you Yahoo!?
>Yahoo! Finance: Get your refund fast by filing online
Dear Steve and colleagues,
As you know whether the trustee has increased the percentage previously or
not---she asks for all the sale proceeds when you seek permission to sell.
This is even true when the proceeds do not exceed the homestead exemption.
The proceeds retain the homestead exemption for six months if the debtor
plans to reinvest. Based on that I think some research should be done to
limit this practice of the trustee.
Andrew Smyth. PS. Ever had the situation where the trustee raises the
percentage to 100% because the plan payment will stay the same---then a
large claim comes in and the trustee moves to dismiss because it is now
infeasable to pay this large claim at 100%?
The post was migrated from Yahoo.
Thank you all for your input. Fortunately, my client has a little time to complete the sale. So, I am going to withdraw the sale motion and file a motion for discharge which should be heard on notice in time to close the escrow. This will not be a case where I will be testing the law on appeal. In this case, discretion is the better part of valor.
Steve Burton
Brian Wirsching wrote:A plan can't be modified after it has been completed. See 1329(a). Trustee's attys. Go figure.
To: cdcbaa@yahoogroups.com
Sent: Tuesday, February 17, 2004 3:49 PM
Subject: RE: [cdcbaa] sale of residence in chapter 13 after plan has been fully performed.
Andrew:
The increase in the percentage issue is a red herring. What my concern is how can the debtor be required to pay more than the plan after the plan has been fully performed by its terms.
Steve Burton
andrew smyth wrote:
>Reply-To: cdcbaa@yahoogroups.com
>To: cdcbaa@yahoogroups.com
>Subject: [cdcbaa] sale of residence in chapter 13 after plan has been fully
>performed.
>Date: Sat, 14 Feb 2004 10:00:44 -0800 (PST)
>
>Dear Colleagues:
>
>Please assume the following facts:
>
>Chapter 13 plan is confirmed in the Spring of 2000. 14% plan. I had the
>single family residence appraised as of the filing date before I filed the
>case. There is no equity above
>the homestead exemption. Really!
>
>Debtor has fully performed his plan. 36 months. The trustee did a motion
>to increase the dividend because some creditors did not file. Plan payment
>remained unchanged, so
>creditors who participated got 40%
>
>Client is now in escrow to sell, but we cannot close escrow because the
>trustee has not
>finished her final accounting, and that will take months, etc.....
>
>So, I file a motion to authorize the debtor to sell. I state plan has been
>fully performed, so no proceeds are to go the the trustee or to creditors.
>Trustee's counsel objects on the basis that creditors will not be paid
>100%. House value, of course, has doubled.
>
>Any thoughts for me and my soon to be looking for a new lawyer client?
>
>Steve Burton (818) 501-5055
>
>
>
>---------------------------------
>Do you Yahoo!?
>Yahoo! Finance: Get your refund fast by filing online
Dear Steve and colleagues,
As you know whether the trustee has increased the percentage previously or
not---she asks for all the sale proceeds when you seek permission to sell.
This is even true when the proceeds do not exceed the homestead exemption.
The proceeds retain the homestead exemption for six months if the debtor
plans to reinvest. Based on that I think some research should be done to
limit this practice of the trustee.
Andrew Smyth. PS. Ever had the situation where the trustee raises the
percentage to 100% because the plan payment will stay the same---then a
large claim comes in and the trustee moves to dismiss because it is now
infeasable to pay this large claim at 100%?
The post was migrated from Yahoo.
A plan can't be modified after it has been completed. See 1329(a). Trustee's attys. Go figure.
----- Original Message -----
To: cdcbaa@yahoogroups.com
Sent: Tuesday, February 17, 2004 3:49 PM
Subject: RE: [cdcbaa] sale of residence in chapter 13 after plan has been fully performed.
Andrew:
The increase in the percentage issue is a red herring. What my concern is how can the debtor be required to pay more than the plan after the plan has been fully performed by its terms.
Steve Burton
andrew smyth wrote:
>Reply-To: cdcbaa@yahoogroups.com
>To: cdcbaa@yahoogroups.com
>Subject: [cdcbaa] sale of residence in chapter 13 after plan has been fully
>performed.
>Date: Sat, 14 Feb 2004 10:00:44 -0800 (PST)
>
>Dear Colleagues:
>
>Please assume the following facts:
>
>Chapter 13 plan is confirmed in the Spring of 2000. 14% plan. I had the
>single family residence appraised as of the filing date before I filed the
>case. There is no equity above
>the homestead exemption. Really!
>
>Debtor has fully performed his plan. 36 months. The trustee did a motion
>to increase the dividend because some creditors did not file. Plan payment
>remained unchanged, so
>creditors who participated got 40%
>
>Client is now in escrow to sell, but we cannot close escrow because the
>trustee has not
>finished her final accounting, and that will take months, etc.....
>
>So, I file a motion to authorize the debtor to sell. I state plan has been
>fully performed, so no proceeds are to go the the trustee or to creditors.
>Trustee's counsel objects on the basis that creditors will not be paid >100%. House value, of course, has doubled.
>
>Any thoughts for me and my soon to be looking for a new lawyer client?
>
>Steve Burton (818) 501-5055
>
>
>
>---------------------------------
>Do you Yahoo!?
>Yahoo! Finance: Get your refund fast by filing online
Dear Steve and colleagues,
As you know whether the trustee has increased the percentage previously or
not---she asks for all the sale proceeds when you seek permission to sell.
This is even true when the proceeds do not exceed the homestead exemption.
The proceeds retain the homestead exemption for six months if the debtor
plans to reinvest. Based on that I think some research should be done to
limit this practice of the trustee.
Andrew Smyth. PS. Ever had the situation where the trustee raises the
percentage to 100% because the plan payment will stay the same---then a large claim comes in and the trustee moves to dismiss because it is now infeasable to pay this large claim at 100%?
The post was migrated from Yahoo.
> .
I'm at home and don't have a chapter 13 plan handy, but our ch 13
plan is probably the problem. Didn't they add a paragraph a few
years ago keeping the estate from reverting to the debtor and
allowing the ch 13 trustee to make motions to increase the plan
pymts?
The same thing happens now in ch 11's. The code says the estate
reverts to the debtor on confo, but our new plan doesn't let that
happen. As a result there are lots of problems with estates after
confo. For example, a judgment, which would otherwise be
collectable, can be stayed even after confo.
These things are not in the code.
dennis
The post was migrated from Yahoo.
Dennis: Heyman or Hayman occurred to me. The case came into Plotkin's office when I was still there and Amy Goldman argued before the BAP after I left. The problem is that was a chapter 7 case. I dont think property appreciation stays in the estate in a 13; has
Hayman been extended to 13's? I just finished another case where Curry is the trustee where the debtors had fully performed a 24% plan and the clients refied taking out 40K before the case closed. Did a motion to refi with the caveat that the trustee and creditors receive nothing. Curry signed off, no problem. This case is no different. But, I tend to agree, I motion for a discharge may be the better way.
The real problem is reconciling the inconsistent positions taken by two different trustees!
Steve Burton
Steve:
10, 15 years ago the Hyman case was decided. It is a 9th Cir case
and held a home, which remains property of an estate, accrues equity
for the estate, not for the debtor.
You probably have to withdraw the motion to sell and press a motion
to have the case closed.
dennis
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Dennis: Heyman or Hayman occurred to me. The case came into Plotkin's office when I was still there and Amy Goldman argued before the BAP after I left. The problem is that was a chapter 7 case. I dont think property appreciation stays in the estate in a 13; has
Hayman been extended to 13's? I just finished another case where Curry is the trustee where the debtors had fully performed a 24% plan and the clients refied taking out 40K before the case closed. Did a motion to refi with the caveat that the trustee and creditors receive nothing. Curry signed off, no problem. This case is no different. But, I tend to agree, I motion for a discharge may be the better way.
The real problem is reconciling the inconsistent positions taken by two different trustees!
Steve Burton
Steve:10, 15 years ago the Hyman case was decided. It is a 9th Cir case and held a home, which remains property of an estate, accrues equity for the estate, not for the debtor. You probably have to withdraw the motion to sell and press a motion to have the case closed.dennis
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Yahoo! Mail SpamGuard - Read only the mail you want.
The post was migrated from Yahoo.
Yea, but......
There is no requirement in the Code that a Chapter 13 debtor must provide all assets and rents, issues, and profits of all assets, during the pendency of a Ch. 13 case unless the Plan is a 100% plan. It requires that all DISPOSABLE INCOME be put into the plan, and D/I is defined in terms of PROJECTED income and expenses. Unless the debtor knew (which is impossible) that the property was going to increase in value by that amount when he filed his case initially, then I don't see how it can be required to turn over the proceeds from sale of such an asset to the creditors, when those creditors would NOT have gotten those funds in a Ch. 7 case (unless the Trustee kept the case open for 3 years in the hopes it would increase in value, etc.).
However, the reality is that it's probably best to close the case first, but there's no way to expedite that. It's a minimum 3-month process under the best of circumstances.
This is the kind of thing our new group might consider taking up on appeal in a case
***********************************************
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)
e-mail: bklawr@bklaw.com
web: http://www.bklaw.com/
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----- Original Message -----
To: cdcbaa@yahoogroups.com
Sent: Tuesday, February 17, 2004 7:56 PM
Subject: [cdcbaa] Re: sale of residence in chapter 13 after plan has been fully performed.
Steve:
10, 15 years ago the Hyman case was decided. It is a 9th Cir case
and held a home, which remains property of an estate, accrues equity
for the estate, not for the debtor.
You probably have to withdraw the motion to sell and press a motion
to have the case closed.
dennis
Yahoo! Groups Links
a.. To visit your group on the web, go to:
http://groups.yahoo.com/group/cdcbaa/
b.. To unsubscribe from this group, send an email to:
cdcbaa-unsubscribe@yahoogroups.com
c.. Your use of Yahoo! Groups is subject to the Yahoo! Terms of Service.
Yea, but......
There is no requirement in the Code that a Chapter
13 debtor must provide all assets and rents, issues, and profits of all assets,
during the pendency of a Ch. 13 case unless the Plan is a 100% plan.
It requires that all DISPOSABLE INCOME be put into the plan, and D/I is defined
in terms of PROJECTED income and expenses. Unless the debtor knew
(which is impossible) that the property was going to increase in value by that
amount when he filed his case initially, then I don't see how it can be required
to turn over the proceeds from sale of such an asset to the creditors, whenthose creditors would NOT have gotten those funds in a Ch. 7 case (unless the
Trustee kept the case open for 3 years in the hopes it would increase in value,
etc.).
However, the reality is that it's probably best to
close the case first, but there's no way to expedite that. It's a minimum
3-month process under the best of circumstances.
This is the kind of thing our new group might
consider taking up on appeal in a case
***********************************************Mark J. MarkusLaw
Office of Mark J. Markus11684 Ventura Blvd. PMB #403Studio City, CA91604-2652(818)509-1173(818)509-1460 (fax)e-mail: bklawr@bklaw.comweb:
The post was migrated from Yahoo.
Steve:
10, 15 years ago the Hyman case was decided. It is a 9th Cir case
and held a home, which remains property of an estate, accrues equity
for the estate, not for the debtor.
You probably have to withdraw the motion to sell and press a motion
to have the case closed.
dennis
The post was migrated from Yahoo.
Andrew:
The increase in the percentage issue is a red herring. What my concern is how can the debtor be required to pay more than the plan after the plan has been fully performed by its terms.
Steve Burton
andrew smyth wrote:
>Reply-To: cdcbaa@yahoogroups.com
>To: cdcbaa@yahoogroups.com
>Subject: [cdcbaa] sale of residence in chapter 13 after plan has been fully
>performed.
>Date: Sat, 14 Feb 2004 10:00:44 -0800 (PST)
>
>Dear Colleagues:
>
>Please assume the following facts:
>
>Chapter 13 plan is confirmed in the Spring of 2000. 14% plan. I had the
>single family residence appraised as of the filing date before I filed the
>case. There is no equity above
>the homestead exemption. Really!
>
>Debtor has fully performed his plan. 36 months. The trustee did a motion
>to increase the dividend because some creditors did not file. Plan payment
>remained unchanged, so
>creditors who participated got 40%
>
>Client is now in escrow to sell, but we cannot close escrow because the
>trustee has not
>finished her final accounting, and that will take months, etc.....
>
>So, I file a motion to authorize the debtor to sell. I state plan has been
>fully performed, so no proceeds are to go the the trustee or to creditors.
>Trustee's counsel objects on the basis that creditors will not be paid
>100%. House value, of course, has doubled.
>
>Any thoughts for me and my soon to be looking for a new lawyer client?
>
>Steve Burton (818) 501-5055
>
>
>
>---------------------------------
>Do you Yahoo!?
>Yahoo! Finance: Get your refund fast by filing online
Dear Steve and colleagues,
As you know whether the trustee has increased the percentage previously or
not---she asks for all the sale proceeds when you seek permission to sell.
This is even true when the proceeds do not exceed the homestead exemption.
The proceeds retain the homestead exemption for six months if the debtor
plans to reinvest. Based on that I think some research should be done to
limit this practice of the trustee.
Andrew Smyth. PS. Ever had the situation where the trustee raises the
percentage to 100% because the plan payment will stay the same---then a
large claim comes in and the trustee moves to dismiss because it is now
infeasable to pay this large claim at 100%?
The post was migrated from Yahoo.
Dear Colleagues:
Please assume the following facts:
Chapter 13 plan is confirmed in the Spring of 2000. 14% plan. I had the single family residence appraised as of the filing date before I filed the case. There is no equity above
the homestead exemption. Really!
Debtor has fully performed his plan. 36 months. The trustee did a motion to increase the dividend because some creditors did not file. Plan payment remained unchanged, so
creditors who participated got 40%
Client is now in escrow to sell, but we cannot close escrow because the trustee has not
finished her final accounting, and that will take months, etc.....
So, I file a motion to authorize the debtor to sell. I state plan has been fully performed, so no proceeds are to go the the trustee or to creditors. Trustee's counsel objects on the basis that creditors will not be paid 100%. House value, of course, has doubled.
Any thoughts for me and my soon to be looking for a new lawyer client?
Steve Burton (818) 501-5055
Do you Yahoo!?
Yahoo! Finance: Get your refund fast by filing online
Dear Colleagues:
Please assume the following facts:
Chapter 13 plan is confirmed in the Spring of 2000. 14% plan. I had the single family residence appraised as of the filing date before I filed the case. There is no equity above
the homestead exemption. Really!
Debtor has fully performed his plan. 36 months. The trustee did a motion to increase the dividend because some creditors did not file. Plan payment remained unchanged, so
creditors who participated got 40%
Client is now in escrow to sell, but we cannot close escrow because the trustee has not
finished her final accounting, and that will take months, etc.....
So, I file a motion to authorize the debtor to sell. I state plan has been fully performed, so no proceeds are to go the the trustee or to creditors. Trustee's counsel objects on the basis that creditors will not be paid 100%. House value, of course, has doubled.
Any thoughts for me and my soon to be looking for a new lawyer client?
Steve Burton (818) 501-5055
Do you Yahoo!?
Yahoo! Finance: Get your refund fast by filing online
The post was migrated from Yahoo.