Thanks Melissa. Your comments are in line with my thoughts as well. I'd be glad to read Riviera. Thank you , Carolyn
----- Original Message -----
To:
cdcbaa@yahoogroups.com
Sent: Wednesday, July 21, 2004 1:34 PM
Subject: Re: [cdcbaa] Section 1328(a)
Hi Carolyn,
I had been looking at these cases lately in connection with when a plan is actually completed. I.e., number of payments and/or percentage. As far as when the debtor is entitled to a discharge, according to the Code, the Court "shall" grant the discharge as soon as payments are completed. However, the trustee must issue an "Intent to File Final Report" and then the Final Report after that. Presumably this is to give anyone a chance to object to discharge or to dispute that their claim was paid. As far as I know, the debtor cannot dispose of property of the estate in this district until the discharge is actually granted. So, even when the plan is actually completed and the debtor is entitled to a discharge pursuant to the Code, she would still need to get permission from the court to sell/refi, etc.
Some time back Judge Mund was talking about instituting an "expedited" discharge procedure, but I have not heard anything about a new procedure.
I don't have the Rivera cite with me, so I will email later. It was a Central District case written by Riblet. However, I don't think it will help you with the discharge issue as it had to do with completion of the plan.
Melissa
Carolyn Fergoda wrote:
Hi Melissa,
Thanks for your response. This has to do with when the debtor is entitled to a discharge. In Avery, the court
says the debtor gets a discharge after all the paperwork by the trustee is done even if it takes months (I do not have the case with me so i am going on short term memory). The court says that the debtor can ask for a discharge earlier but that it should be in rare circumstances. In Moss, the court says the debtor is entitled to a
discharge when the payments have been made. I don't have a cite to the Rivera case that you cite. Do you?
The issue to me is about when can the debtor start acting like s/he is not in Ch 13, for example, sell a residence or refinance without court permission and move to another state. Thank you, Carolyn
----- Original Message -----
To:
cdcbaa@yahoogroups.com
Sent: Friday, July 16, 2004 4:29 PM
Subject: Re: [cdcbaa] Section 1328(a)
Carolyn, assuming you are referring to the nebulous issue of "completion of payments," I don't see too much of a difference in the two cases. The findings seem to be fact-specific, with Avery finding that payments had not actually been completed because certain creditors who were to be paid under the plan were not, while in Moss the finding was that payments had been completed according to the plan (maybe I'm remembering wrong?).
Personally, I like In re Rivera regarding completion of payments.
By the way, does this have to do with a Trustee's Motion to Increase Percentage?
Melissa Besecker
Carolyn Fergoda wrote:
Hi Good folks: I have client with a 1328 (a) connundrum.After some research, I have two cases which appear to be very different in their views, one from the eastern division of Calif. (In re Avery) and one from the central division (In re Moss). I found Colliers 15th revised edition unhelpful (unless I did not look at the right section). Do any of you guys have a recent case in this area? Many thanks, Carolyn
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Thanks Melissa. Your comments are in line with my
thoughts as well. I'd be glad to read Riviera. Thank you , Carolyn
----- Original Message -----
From:
Melissa Besecker
To:
cdcbaa@yahoogroups.com
Sent: Wednesday, July 21, 2004 1:34
PM
Subject: Re: [cdcbaa] Section
1328(a)
Hi Carolyn,
I had been looking at these cases lately in connection with when a plan
is actually completed. I.e., number of payments and/or percentage. As
far as when the debtor is entitled to a discharge, according to the Code, the
Court "shall" grant the discharge as soon as payments are completed.
However, the trustee must issue an "Intent to File Final Report" and then the
Final Report after that. Presumably this is to give anyone a chance to
object to discharge or to dispute that their claim was paid. As far as I
know, the debtor cannot dispose of property of the estate in this district
until the discharge is actually granted. So, even when the plan is actually completed and the debtor is entitled to a discharge pursuant to the
Code, she would still need to get permission from the court to sell/refi, etc.
Some time back Judge Mund was talking about instituting an "expedited"
discharge procedure, but I have not heard anything about a new
procedure.
I don't have the Rivera cite with me, so I will email later. It was
a Central District case written by Riblet. However, I don't think it
will help you with the discharge issue as it had to do with completion of the
plan.
MelissaCarolyn Fergoda
<
cmfergoda@earthlink.net> wrote:
Hi Melissa,
Thanks for your response. This has to do with
when the debtor is entitled to a discharge. In Avery, the court
says the debtor gets a discharge after all the
paperwork by the trustee is done even if it takes months (I do not have the
case with me so i am going on short term memory). The court says that the
debtor can ask for a discharge earlier but that it should be in rare
circumstances. In Moss, the court says the debtor is entitled to a
discharge when the payments have been made. I don't have a cite to the Rivera case that you cite. Do
you?
The issue to me is about when can the debtor
start acting like s/he is not in Ch 13, for example, sell a residence or
refinance without court permission and move
to another state. Thank you, Carolyn
----- Original Message -----
From:
Melissa
Besecker
To:
cdcbaa@yahoogroups.com
Sent: Friday, July 16, 2004 4:29
PM
Subject: Re: [cdcbaa] Section 1328(a)
Carolyn, assuming you are referring to the nebulous issue of
"completion of payments," I don't see too much of a difference in the two
cases. The findings seem to be fact-specific, with Avery finding
that payments had not actually been completed because certain creditors
who were to be paid under the plan were not, while in Moss the finding was
that payments had been completed according to the plan (maybe I'm
remembering wrong?).
Personally, I like In re Rivera regarding completion of
payments.
By the way, does this have to do with a Trustee's Motion to Increase
Percentage?
Melissa BeseckerCarolyn Fergoda
<
cmfergoda@earthlink.net> wrote:
Hi Good folks: I have client with a 1328
(a) connundrum.After some research, I have two cases which appear
to be very different in their views, one from the eastern division of
Calif. (In re Avery) and one from the central division (In re Moss). I
found Colliers 15th revised edition unhelpful (unless I did not look at
the right section). Do any of you guys have a recent case in this area?
Many thanks, Carolyn
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