Hi everyone,
Public Counsel’s DAP will be having a Chapter 13 bankruptcy program titled “Crafting a Chapter 13 plan” on Wed. July 27 from 11:00 a.m.-2:00 p.m. I have also attached a flyer for the event.
The program will be taking place from 10:00-2:00 and will include lunch. To register for the event please go to: https://www.surveymonkey.com/r/c13plan Read more…
From another listserve. The debtor files – postpetition – a Motion to Vacate Judgment against him in state court. He was the defendant in the state court case. Is he violating the automatic stay?
My first reaction was to say – of course not. The automatic stay in section 362(a) is actually pretty specific. Read more…
I have been advised that Los Angeles County has appealed the adverse decision in Mainline Equipment to the Ninth Circuit. It has filed its opening brief and the responsive brief should be coming in the next few weeks absent any extensions. Obviously, the county disagrees with Judge Brand’s decision but we’ll see what happens. It seems to me that the tax is still a priority debt and must be paid in full with interest (which is 18% at the present time) so it really only matters if the debtor is trying to sell the property free of the county’s lien.
My brief of the BAP decision is below: Read more…
You can find the complete list here. Notable changes for consumer lawyers:
These changes apply to cases that are filed on or after April 1, 2016.
The Force Awakens: Objections to Exemptions After Law v. Siegel
Thursday, February 18, 2016 Program 12:00 – 1:00 P.M.
Location Los Angeles County Bar Association 1055 W. 7th Street, Suite 2700 Los Angeles, CA 90017 Read more…
Judge Tighe did a great analysis on eligibility of trusts to file bankruptcy. Her tentative is below In re: The Shahla Dowlati 2005 Living Trust.
UST moves to dismiss this chapter 11 case because the Shahla Doowlati 2005 Living Trust (the “Trust“) was created for estate planning purposes, and thus is ineligible to be a debtor. Section 109(a) establishes that “only a person that resides or has a domicile, a place of business, or property in the United States, or a municipality, may be a debtor under this title.” Section 101(41) defines “person” to include any “individual, partnership, and corporation.” It does not include governmental units or trusts. See 11 U.S.C. § 101(41).
Be careful Banks – in California you get one bite at the apple in collecting a deficiency judgment against a homeowner (or possible debtor in bankruptcy).
For creditor attorneys – make sure you’ve complied with the ‘one action rule,’ or you waive your client’s right in a deficiency judgment against the former homeowner.
For debtor attorneys – if the creditor has violated the ‘one action rule,’ and are seeking to recoup against your debtor-client now, make sure to object to their proof of claim under §502(b)(1), such that the claim is unenforceable against the debtor under state law. Read more…
Jon’s post here got me thinking about the attorney in the Southern District, who to me at least, seems to have committed malpractice by filing a bad Chapter 13 Plan.
The facts in the In re Schleger case, which you can read here, are dumb-bed down as follows: Chapter 13 Plan is filed where Debtors say they will pay 48% of unsecured claims. They know that they are about to void a 150k lien but they do not amend their plan to reduce the 48% or really do anything to deal with the claim. Five years passes and they want a discharge despite not paying anywhere close to 48% or amending their plan. That’s just a ridiculous position to take! But was it his fault or the system’s fault? This case was an appeal from the Southern District which we will see has a confusing form.
In chapter 13s, the plan – the preprinted plan form – says the debtor will pay x amount per month “which is estimated to pay unsecured creditors x% over the plan period” (paraphrasing the quote). There is a recent crazy BAP case, In re Schlegel, that says the debtor is promising, per the form, to pay the percentage to unsecured creditors, not just the amount specified. So if a proof of claim is filed after the plan is confirmed, the debtor must object or amend his plan to change the percentage in the plan. Assuming there is no basis to object, it is a complete waste of time if you ask me to amend the plan just to change the percentage. Anyway, I was explaining this to one of the associates here and it occurred to me that the chapter 11 plan for an individual should include language that the debtor is not promising to pay some specific percentage to unsecured unsecured creditors, only some specific amount to the class as a whole.
An attorney on the CDCBAA forums asked the following question, I was asked to post my answer for all to see:
Question.
The CD chapter 13 plan estimates Chapter 13 Trustee’s Fee at 11% “unless advised otherwise.” However, Section 326(b) appears to limit the chapter 13 trustee’s fee to no greater than 5% of all payment under the plan. I’ve always figured the 11% was just to keep the bases covered with a built in cushion. Read more…
