Northern California Bankruptcy Lawyer

On The Bankruptcy Soapbox

The Soap Box

No Discharge Chapter 13 Effective To Strip Lien

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The wait is over; the decision is in.

Homeowners in the 9th Circuit can strip off underwater mortgages in Chapter 13 cases even when they aren’t entitled to a bankruptcy discharge, the 9th Circuit BAP has held.

Thus, courts have taken another step in the building consensus that the debtor doesn’t have to be eligible for a Chapter 13 discharge in order to use Chapter 13 to eliminate an entirely underwater mortgage.

Lien strips in Chapter 20

Voluntary liens can be stripped off the debtor’s real estate only in a reorganization chapter of bankruptcy:  Chapter 11 or Chapter 13.  And since bankruptcy “reform” in 2005, you can’t get a discharge in a Chapter 13 case filed less than 4 years from a previous Chapter 7 case.

You aren’t barred from filing a Chapter 13 right after a Chapter 7.  It’s just that any debts that survived the Chapter 7 don’t get discharged in the no-discharge Chapter 13.

In bankruptcy slang, we call it a case of Chapter 20:  a Chapter 7 plus a Chapter 13.

Chapter 20 cases are useful for curing mortgage defaults or paying taxes or support that isn’t dischargeable in Chapter 7.  But it was undecided, until now,  whether a mortgage lien that was “out of the money” with respect to the value of the property could be stripped off in a Chapter 20.

A basic of bankruptcy law is that liens pass through bankruptcy undisturbed, unless the bankruptcy court, pursuant to some code section, ordered otherwise.

Thus, some argued, that the discharge was the essential element that voided the lien upon plan completion.  Without eligibility for a discharge, could a mortgage lien be voided.

Lien strip OK without discharge

In Boukatch, the Bankruptcy Appellate Panel of the 9th Circuit held that it was plan completion that made the lien strip possible, not the discharge of personal liability. [Read more…]

The Most Important Bankruptcy Decision Of 2013

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airstream trailer-flickr-stephen hillA bankruptcy case nominally about  travel trailers, ATV’s, and a car for a an adult child gets my vote as the most important bankruptcy decision of 2013 for Californians.

When the 9th Circuit decided Welsh, it told us, and Chapter 13 trustees, that you take your Chapter 13 debtors as you find them.

If you are a person filing a Chapter 13, it’s OK to have a house the Chapter 13 trustee deems “too grand”, or debts secured by things the trustee thinks “unnecessary”.

Welsh upheld the importance of the means test implemented by Congress in 2005.  The means test purports to calculate what unsecured creditors  are entitled to get through a Chapter 13 plan.

If the proposed plan meets the means test figure for a distribution to unsecured creditors, says Welsh, the debtor doesn’t have to stop paying secured creditors for “luxury” items in order to pay unsecureds more.

The “stuff” in dispute

The facts in Welsh are all too common.  The Welsh’s lived in rural Montana.  They had a car loan for a car driven by an adult daughter as well as loans on the two cars driven by the debtors.

They lived in a $400,000 home in Missoula Montana.  The opinion doesn’t tell us what the average home there costs, but the trustee clearly felt the home was too up scale for people who were in bankruptcy.

Then, there were two ATV’s and an Airstream trailer, each subject to a secured loan.

And, given the way the means test is laid out, the future payments on all of those loans, for house, vehicles, and recreational trailer, were deductions from the Welsh’s income.  After the means test calculation subtracted the loan payments, there was only about $200 a month left to pay to unsecured creditors through the plan.

And that, argued the Chapter 13 trustee, was evidence that the debtors lacked the “good faith” necessary to get court confirmation of their plan.  They were keeping the big house and the toys at the expense of the unsecured creditors. [Read more…]

What T-Boz Missed When Chapter 13 Dismissed

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T-Boz Watkins got her Chapter 13 case tossed out of court for not following the rules of Chapter 13 bankruptcy.

While Jay Fleischman at ConsumerHelpCentral laid down the law, so to speak, in listing the rules, he didn’t remind us why they are worth following.

Chapter 13 bankruptcy: better than sliced bread

You cannot beat the deal in  Chapter 13:  you get to keep your assets, by making payments over as long as five years, to give your creditors what they would have gotten had you filed Chapter 7.

You get the protection of the automatic stay for the life of the plan, keeping creditors from reaching your money or your assets, while you make payments.

You get a bankruptcy judge who will enforce the rights you get in Chapter 13, including making all creditors honor your plan.

You get to change the terms of your plan if things change and you can’t live with the original terms.

You get the broadest discharge of debts available in bankruptcy.

Somehow, following the rules doesn’t seem so onerous. [Read more…]

“Chapter 20” Lives in Northern California Bankruptcy Courts

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Debtors with a Chapter 7 discharge too recently to get a discharge in a subsequent Chapter 13 can strip off underwater mortgage liens under a decision issued by Judge Edward Jellen in the Oakland division.

This has been a simmering issue, since the guidelines issued by the judges in the Northern District of California include a form order allowing the voiding of an underwater mortgage “on entry of the discharge” in the Chapter 13.  A debtor can’t get a discharge in a 13 filed within four years of the prior Chapter 7.

Since those guidelines were promulgated, several courts in other districts have allowed lien stripping in no discharge 13’s.  Some courts have gone the other way.

Judge Jellen’s decision held that a discharge was not required in order to value and strip a lien for which there is not supporting value in the collateral.  However, he dismissed one of the pair of cases on which he wrote sua sponte for bad faith.  So, there remain issues, but not, apparently, whether lien stripping is available in Chapter 20.

Chapter 13 debt limits double for couples

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Each debtor in a Chapter 13 was entitled to debts within the debt ceilings for Chapter 13 eligibility according to a recent bankruptcy decision out of Kansas called Dana Werts.

That effectively doubled the amount of debt a married couple could have and still meet the debt limits of Chapter 13.

Judge Karlin recognized that a joint case is simply two separate cases administered together.  The debt of each spouse should be separately calculated and measured against the debt cap.

Previously,  courts have treated a joint case as though it were a single person and required that the debts of the couple be combined to look at Section 109 eligibility.

Even if we’re not in Kansas

This is a marvelous decision for Californians where hard times and underwater real estate increasingly find married couples with collective debts in excess of the limits.  I have found myself deconsolidating cases filed jointly when it was determined that the total debt rendered the couple ineligible, if you assume that the 109 limits apply to the sum of the debts.

It then raises the question of exemptions:  if a joint case is really two cases, are not the debtors entitled to two sets of exemptions?

My thanks to my friend Doug Jacobs for pointing me to this case.

More

Should both spouses file bankruptcy?

California’s phantom discharge for non filing spouse

How Chapter 13 works

Catch tax deductions in Chapter 13 payments

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It’s tax season:  don’t forget to write off the deductible expenditures made by your  Chapter 13 trustee on your tax return.

Many Chapter 13 plans are paying mortgage arrears (which are almost exclusively deductible interest), taxes of some sort, or business expenses.  These items should be deductible to you.

You can get a report from your Chapter 13 trustee of the distributions she’s made during 2008.  Many trustees have this information on line for your convenience. The report will itemize payments  made with your money, on your debts.

If you’re in a Chapter 13 and  have a bushel of lemons, make lemonade, and reduce your current tax burden.

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