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using undersecured portion of claim in 109(e) analysis
Assume the following facts:
California debtor. IRS has lien against debtor's assets, which is all personal property (no real property). Amongst the personal property is an ERISA qualified teacher's pension plan.
IRS is owed approximately $350,000+. Debtor's assets are worth about $12,000 NOT counting the pension plan (I honestly don't know how to value the pension plan because it only pays monthly a fixed amount upon retirement).
I researched and found only ONE ninth circuit case, a 1988 bankruptcy court opinion, In Re Edmonston, 99 B.R. 993 (E.D. Calif. 1988) dealing with whether and how the value of collateral securing a lien is applicable to the debt limit determination under 11 USC 109(e). To my great surprise, that case held that if a debt is secured at all, it is considered ALL secured for purposes of 109(e). Thus, according to that case, my debtor could actually do a Ch. 13!
Does this comport with the group's experience here in the 9th circuit?
If true, my next question is going to be: Must 100% of this secured claim be paid in the Ch. 13, or can you then do a 506 motion to separate it and pay out only the allowed secured portion and, if that is so, what value should be given to the ERISA qualified pension plan?
Thanks in advance for your input.
***********************************************
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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Assume the following facts:
California debtor. IRS has lien against debtor's assets, which is all personal property (no
real property). Amongst the personal property is an ERISA qualified
teacher's pension plan.
IRS is owed approximately $350,000+.
Debtor's assets are worth about $12,000 NOT counting the pension plan (I
honestly don't know how to value the pension plan because it only pays monthly a
fixed amount upon retirement).
I researched and found only ONE ninth circuit case,
a 1988 bankruptcy court opinion, In Re Edmonston, 99 B.R. 993 (E.D. Calif. 1988)
dealing with whether and how the value of collateral securing a lien is
applicable to the debt limit determination under 11 USC
109(e). To my great surprise, that case held that if a debt is
secured at all, it is considered ALL secured for purposes of 109(e).
Thus, according to that case, my debtor could actually do a Ch. 13!
Does this comport with the group's experience here
in the 9th circuit?
If true, my next question is going to be:
Must 100% of this secured claim be paid in the Ch. 13, or can you then do a 506
motion to separate it and pay out only the allowed secured portion and, if that
is so, what value should be given to the ERISA qualified pension
plan?
Thanks in advance for your input.
***********************************************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:
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