Interesting blog on the need for a Good Bail Bondsman

Posted by on Jun 9, 2014 in bail bonds

I like to start off my Monday’s by reading some of the many articles relating to the practice of law that I receive on a daily basis.  Below is a link to a very good short piece on the need for criminal defense attorney’s and everyone in general to have a strong relationship with a professional bail bondsman. I would also like to shout out to Sanctuary Bail Bonds for their tireless work for the Firm’s clients. I’m not a criminal. I don’t need a bail bondsman....

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Motions To Value Real Property

Posted by on Jun 9, 2014 in bankruptcy

Recently, the U.S. Bankruptcy Court for the Southern District of California changed the proceedure involving Motions to Value Real Property and Avoid Juior Liens, AKA “Lien Strip Motions.” The changes were enacted in order to streamline the Lien Striping process and allow theCourt to better handle the volume of motions currently be filed. The most important change effecting our clients is that a full real property appraisal will be required for each and every Lien Strip Motion.  The Court will no longer allow B.P.O.’s or other evidence previously considered acceptable.  Fortunately, we always use appraisals and have an appraiser should our client’sneed a referral. Contact us today for more information about striping a junior lien from your real property through a Chapter 13...

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Adversary Proceedings to Avoid a Junior Lien? A New View From The Riverside Bench

Posted by on Jun 9, 2014 in foreclosure

There’s a new judge in the U.S. District Court – Central District, Riverside Division and he has a new take on what is necessary in order to ‘strip’ a junior lien on real property following a valuation motion. According to Hon. Wayne Johnson, who sits in Courtroom 302 of the U.S. Dist. Court – Central District of California, Riverside Division, debtor’s may very well find themselves having to file adversary proceedings pursuant to F.R.B.P. Rule 7001(2) to obtain a order or judgment avoiding junior liens on real property: “The relief granted is limited solely to valuing the collateral of a junior lienholder and determining the treatment of its claims in this bankruptcy case.  Nothing in the order granting the motion shall be construed to avoid a lien or determine the extent, validity, or priority of a lien or security interest.  The lien of the junior lienholder will remain of record and the junior lienholder shall retain all rights under the lien unless and until the Court enters a further order or judgment avoiding the lien.  If the Court confirms a plan of reorganization and the debtors timely perform all obligations under the confirmed plan, the debtors may thereafter initiate an adversary proceeding pursuant to F.R.B.P. Rule 7001(2) to obtain a further order or judgment extinguishing or avoiding the junior lien.” (emphasis added) The full text of Judge Johnson’s tentative ruling in the Matter of Kevin W. Reily and Morgana R. Reilly may be found at http://ecf-ciao.cacb.uscourts.gov/CiaoPosted/default.aspx on pages 94-96 for April 20, 2011. This becomes important when discussing the Lien Strip (or LAM) Motion process with clients as initiation of and representation in adversary proceedings is normally outside the scope of the initial representation agreement.  Specifically, they become more costly for the client.  As always, comments and questions are welcome.  I look forward to discussing this issue. Frank R....

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Judge Mann Confirms That MERS’ Is Not A Cure-All For Lenders’ Recording Woes

Posted by on Jun 9, 2014 in foreclosure

Every home owner in Southern California (as well as the rest of the Country) is familiar with the letter.  The one that comes in the mail from some corporate entity you’ve never heard of letting you know that they will now be servicing your mortgage loan.  Of course, the home owner is skeptical.  Not wanting to take any chances, the diligent home owner embarks on a Gilligan-Like “3-Hour Tour” attempting to get someone on the phone at this new servicing provider to confirm the information. Meanwhile, for those whose homes are going to foreclosure, the larger question becomes; who actually owns the note?  Record numbers of homes are still being foreclosed upon.  We have all read and seen on the news how a lack of proper recording of all these transfers from one mortgage lender to another has provided home owners with a defense of sorts to a foreclosure action.  The mortgage companies argue that the invention of MERS (Mortgage Electronic Recording System) alleviates any legal issue concerning chain of title and thus, a particular foreclosure should move forward based on evidence of the MERS recording. In a recent opinion involving a relief from stay motion in a Chapter 13 Bankruptcy, Judge Mann of the United States Bankruptcy Court, Southern District of California confirms the current view from the bench that MERS is not a cure-all for a mortgage company’s obligation to provide adequate proof of proper recordation of title. “Relying upon controlling California statutory and decisional authority, the Court concludes MERS’ original involvement in this loan does not provide talismanic protection against US Bank’s foreclosure deficiencies.  US Bank’s failure to record its beneficiary status before foreclosure left [Debtor] with equitable title to his residence.”  In re: Eleazar Salazar can be found athttp://www.casb.uscourts.gov/pdf/opinions/10-17456.pdf I’ve never been a big fan of MERS.  Even working as the foreclosure manager of a Federal Bank years ago I often found it difficult to ascertain who the current owner of a particular note was.  Judge Mann’s opinion in Salazar confirms the current view from the bench that reliance on MERS is insufficient and continues to provide a much needed weapon for home owners facing the possibility of a wrongful foreclosure action. Frank R....

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Changed Circumstances & Chapter 13 Plans; Don’t Give Up Yet!

Posted by on Jun 9, 2014 in bankruptcy

So there you are, cruising along making your Chapter 13 Plan payments on time when suddenly, the bottom drops out … again!  You’ve suffered a lose in income or an increase in expenses that simply cannot be avoided.  Now What? Sections 11 USC 1323, 1329 govern Modification or Suspension of Chapter 13 Plan Payments.  While a debtor may modify a plan at any time before confirmation, after confirmation the plan may be modified upon the request of the debtor, the trustee, or holder of an unsecured claim.  However, the request must be approved by the Court upon a noticed motion and hearing. Furthermore, a request to suspend payments on the plan may be made is the suspension will not extend the plan beyond the maximum plan length of 60 months (5 years).  In order to amend or suspend payments established by a confirmed plan, the debtor’s financial circumstances must have changed and those circumstances must be set forth in the motion.  Additionally, the motion must set forth the payments to be modified or suspended.  Attached to the motion should be proof of the changed circumstances (pay stub, termination notice, etc.) as well as amended Schedules I and J.  Also, a proposed amended plan should be submitted. In summary, the Trustees and Courts are well aware that Chapter 13 Plan’s last for some time (3 to 5 years) and are sympathetic to changing circumstances.  Just because your financial situation changes, you don’t have to give up on your Chapter 13 Plan.  Consult counsel for a re-evaluation of your financial situation and to see whether a modification or suspension of your plan is feasible. As always, please do not hesitate to contact me for more information on this topic and others. Best Regards, Frank R. Pabst,...

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