All posts in Chapter 13

Dower and Curtesy? Sounds like a restaurant on Melrose

I had no idea what a dower and curtsy are.  Where did I find these words?  In Section 363 sale/use/lease of property.   Section 363(g) says the trustee may sell property free and clear of any right in nature of a dower or curtesy.    ::::go to google.com::::

A dower or curtesy is a surviving spouse’s right to receive a set portion of the deceased spouse’s estate (1/2 in California).  Dower (not dowry) refers to the portion to which a surviving wife is entitled, while curtesy refers to what a man may claim.  However, because discrimination on the basis of sex is now illegal in most cases, most states have abolished dower and curtesy and generally provide the same benefits regardless of sex — and this amount is often known simply as the statutory share.

Learn something new everyday.

Listening Session in Riverside July 9, 2018 re Chapter 13

This is a great concept.  Judge Scott Clarkson, Chair of the Central District of California Case Management Committee, is going to preside over a “Listening Session” which will allow him to listen to “community members and canvass arising issues regarding current chapter 13 procedures after the implementation of the new chapter 13 form plan.”   You can see the flyer here.  Listening Session Clarkson  I might have to attend myself.

Important Request from Nancy Curry’s Office re Processing Payments

———- Forwarded message ———-
From: Heather Pedroza <hpedroza@trusteecurry.com>
Date: Tue, May 22, 2018 at 1:26 PM
Subject: Updated Cover Sheets for Nancy Curry’s Office
To:

Hello,

Over the course of the last few years, the office of Nancy Curry, Chapter 13 Trustee has learned that more often than not, debtors do not include their bankruptcy case numbers and/or other pertinent information our office needs in order to process the payments/documents in a timely manner. This has been an ongoing issue and does create significant delays in our office. Read more…

Judge Zurzolo Brown Bag on May 14, 2018

Judge Vincent Zurzolo will host a Brown Bag discussion on Monday May 14th at 12:15 p.m. in his courtroom at the Los Angeles Division.

The specific topic is his new procedure to advance the hearing date on confirmation of a chapter 13 plan for chapter 13 cases over which he presides.

In addition, attendees can ask questions about chapter 13 procedures or other general court matters. Please see the flyer and 4 exhibits that will be discussed by clicking the link below.

To view this announcement and the exhibits please click here.

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.”

ATTORNEY’S RESPONSIBILITIES FOR GIVING OF REQUIRED NOTICE TO COURT
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

ATTORNEY FEES

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…