All posts in Chapter 13

Employment Law & BK — “Will Filing BK Affect My Chances of Getting Hired?”

Section 525 deals with protection of debtors against discrimination.  Section 525 is broken up into two main sections relating to two main standards:  one for governmental employers and one for private employers.   Let’s take a look…and note the big omission by Congress for private employers.

525(a) says a governmental unit may not:

  • Deny employment to
  • Terminate the employment of…
  • Discriminate re: employment against a person on basis of their bankruptcy filing.

525(b) says a private employer may not:

  • Terminate the employment of…
  • Discriminate re: employment against a person on basis of their bankruptcy filing.

Government cannot deny your employment because you filed bk but a private employer can!  This is also how rental companies can ask you “did you file bk in past” and deny your rental application.

 

Difference Between “False Pretense” and “False Representation” under 523(a)(2)

Section 523(a)(2)(A) excepts from discharge any debt for money obtained by false pretense, a false representation or actual fraud.   But how can you tell the difference?

False representation is an express representation.  “There are no leaks in the roof of my house.” 

False pretense is an implied representation or conduct intended to create a false impression.  “Whenever it rains, it is dry as a bone in this house, which is why I like it, I also got their decorated the right way with even an aquarium and glow in the dark fish ornaments I found online.”

 

Reasonable versus Promptly Standard

Arrears can be cured over a reasonable time (i.e. over 5 years).  Did you know there is a different standard for curing leases?  Promptly!

Section 1322(b)(5) says the debtor’s plan may provide for the curing of any default within a reasonable time….

Section 365(b) says the debtor will promptly cure such lease default… and Webster definition of promptly is “with little or no delay; immediately.”

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…