All posts in Chapter 13

Marijuana Dispensary Tenant in Chapter 13 Debtor’s Commercial Property – Sua Sponte Dismissal Valid?

I’m surprised this was not a published BAP decision –  chapter 13 debtor filed to stop a foreclosure of a commercial property with a dispensary as a one of the tenants :::cue the audience gasps:::

Debtor’s chapter 13 plan proposed to sell that commercial property with the dispensary and pay all creditors.  The bankruptcy court immediately dismissed the case on the grounds that the postpetition rents and sale were ill gotten gold basically (criminal in nature).  The BAP vacated the dismissal and remanded it to the court to make proper findings as to why it should dismiss.  From my reading of the case, it appears to me that the courts are becoming more mainstream and comfortable with dispensaries and not immediately concluding that any mention or involvement with a dispensary is criminal and grounds for sua sponte dismissal.

See case here 

Notifying the State Court of the Automatic Stay

More stuff I didn’t know.  A person on the California Bankruptcy Specialists listserve complained that the Superior Court in Orange wanted him to pay a first appearance fee in order to file a Notice of Automatic Stay.  A tip of the hat to Frank X. Ruggier for his response, ”If you haven’t appeared, it is the other parties responsibility to file Notice of Stay.”

Rule 3.650(a) of the California Rules of Court requires the party who requested or caused a stay of the proceedings to notify the court of its existence, unless that party has not appeared or is not subject to the jurisdiction of the court, in which case the plaintiff in the pending action must immediately notify the court of the stay.  Therefore, if you or your assignee commenced a civil action to recover attorney’s fees and/or costs from the client, and the clients has not appeared in the action, it is the responsibility of you or your assignee to notify the court of the automatic stay.  Judicial Council Form CM-180 has been adopted for mandatory use in giving notice of a stay of proceedings, and a copy is attached for your use.

Must a Chapter 13 Plan be 3 or 5 years (or full pay) even if no one objects?

One of the more interesting cases we will discuss on Saturday is In re Escarcega.  The BAP really blasts the chapter 13 trustee up in San Jose.   The BAP ruled that a chapter 13 plan must be 3 or 5 years (or full pay), even if no one objects.

In re Escarcega, 573 B.R. 219 (9th Cir. BAP September 2017) 

Issue:   Where the chapter 13 trustee does not object to a plan, must the plan still be for “the applicable commitment period”?

Holding:   Yes.  Plus the chapter 13 trustee should be objecting to such plans.

Judges Elaine Hammond and Stephen Johnson, Northern District of California (San Jose Division) Read more…

More Comments from Aki re New Chapter 13 Plan Form

Some Common Errors with the New Plan – Part 2

I just wanted to touch on some common drafting errors/omissions that I have observed with the new plan. My sample has been limited but my hope is that clarification today will make for a smoother process for the bar, the trustees and the judges.  Here they are:

1. Class 7 and Adequate Protection Order Payments for a Leased Vehicle [Page 11 of Plan] – if your client has entered into an APO with a creditor for cure of an arrearage on a leased vehicle and your client’s intention is to make direct payments to Read more…

Comments from Aki Koyama on Attorneys Fees in Chapter 13


This is the final part of this series. I wanted to cover this section last because we are dealing with substantial form and procedural changes.

As an initial matter, the LBR has only been changed to make clear that if a RARA has been filed, it can be withdrawn with the written consent of your client. The ability to withdraw a RARA, once a RARA was filed in the case, was unclear in the prior language. As there is currently no official form for withdrawal of a RARA, you will have to draft your own pleading. See LBR 3015-1(v)(5).

As most of you are aware, most of the changes have come with the revised RARA and new supplemental fee application forms for post confirmation work and a new fee application for when the case has been dismissed or converted. Both of the new forms are limited to cases where a RARA has been filed.

The links for these forms are as follows: Read more…

Comments from Aki Koyama on the new Chapter 13 Plan Form

Some Common Errors with the New Plan

I just wanted to touch on some common drafting errors/omissions that I have observed with the new plan.  My sample has been limited but my hope is that clarification today will make for a smoother process for the bar, the trustees and the judges.

Here they are:

1. Post Petition Car Payments: if your client is making car payments directly and there is no arrearage on the car loan, please indicate that they are doing so by checking off the box for non-standard provisions [Page 2, section 1.4] and providing the detail in Section IV(D) Other Non Standard Provisions [Page 14]; Read more…

Very Nice Article on Paid Preparers

How to Get Away With Bankruptcy Fraud

This article by Paul Kiel for ProPublica is really nice.  We all know it goes on and most of us wish we could help fix the problem.  The article shows why Judge Maureen Tighe should be up for canonization.

I sent Paul an email thanking him for the investigative work and the great article.  Here is his response:”

Thanks, Jon. I hope it leads to something!  Please let me know if you see any evidence of stepped-up enforcement or anything like that, because we publish our stories with the goal that they bring change.  There has been some chatter about a kind of task force between the debtor and creditor bar on the CACBA listserv, I think.

The Chapter 13 Rights and Responsibilities Agreement (RARA) Form Allows For What?!

When the Law Offices of M. Jonathan Hayes merged with Simon & Resnik in 2012 (has it really been 5 years!?) I began to work exclusively on petitions filed under my beloved chapter of the Bankruptcy Code, 11.  I recently began to again work on Chp. 13 cases, albeit on a fairly limited basis, and I am continually amazed at the differences between these two most popular reorganizing chapters of the code.

Take a look at the “no-look” fee form we use here in the Central District, the Rights and Responsibilities Agreement between Chapter 13 Debtors and their Attorneys (“RARA”) [court form F3015-1.7.RARA], specifically pages 5-6 (I have added emphasis):

The guidelines in this district for payment of costs incurred in performing the services described in bold face type in this agreement (“Included Costs”) and attorneys’ fees in chapter 13 cases without a detailed fee application provide for the following maximum Included Costs and fees for the services described in this agreement in bold face type (that is, the services described on pages 3 through 5 of this agreement)…

Other than the initial retainer, the attorney may not receive fees directly from the Debtor prior to confirmation. All other fees due through confirmation shall be paid through the plan unless otherwise ordered by the court. Read more…

Is Continuance of Hearing on MSJ a Violation of the Automatic Stay?

From the California Bankruptcy Specialists listserve:

Question:  Is it a violation to continue a hearing on a motion for summary judgment if a notice of stay is given to the Court before the hearing on the motion for summary judgment?

Answer from Wayne Silver, Santa Clara:

Eskanos & Adler, P.C. v. Leetien, 309 F.3d 1210 (9th Cir. 2002)
Under § 362(a), the prohibition against continuation of judicial actions requires that the action be automatically dismissed or stayed, and not merely that it not be pursued.

Should ‘No Money Down’ Chapter 7s Be Allowed?

I am quoted by Danny Gill in his Bloomberg Bankruptcy Law Reporter article.  He quotes me saying that I agree that there should be some way to permit bankruptcy attorneys to be paid post-petition for filing a chapter 7 petition and representing the debtor throughout.   The article is here.

“I talk to people all the time who don’t have the money to file a Chapter 7,” M. Jonathan Hayes told Bloomberg Law Oct. 16.  Hayes is a member of Simon Resnik & Hayes in Sherman Oaks, Calif., and has practiced consumer bankruptcy law for 37 years in the Central District of California. Read more…