[CLBS] Questions re Plan modification and looking at liquidation, timing, etc.

[Holly Roark]

CDCA case:

 

1.	Let's say that we're 4.5 years in to the plan, and I just realized
in the liquidation analysis we forgot to subtract out the hypothetical CH 7
trustee's fees which would reduce the amount that is required to be paid to
general unsecured creditors. I filed a motion to modify the plan along with
an application for supplemental fees. The chapter 13 trustee says we cannot
look at the mistake in the original plan liquidation analysis at this time
without also looking at the value of the assets as of modification. He says
at the hearing that "case law" supports this. My motion to modify was denied
and the court invited me to withdraw my application for fees and refile both
in light of the trustee's arguments.

 

Can anyone point me to this case law he is referring to regarding valuing
assets at modification if you are going back and addressing a mistake you
made in the liquidation analysis? (The reason he wants to do this is because
the house value has increased by $100K, and he wants to deny me my fees in
the case).

 

2.	Also, deducted as part of the liquidation analysis were fees I
earned in the original litigious chapter 7 ($28K). I applied for them under
503(b) and they were paid in the chapter 13. I had a feeling this would come
up. The CH 13 trustee noticed this now that we are looking at liquidation,
and said under no circumstances would debtor's counsel get awarded fees in
the chapter 7, so he wants to use this to increase the net equity that
should have been paid in to the estate. During the chapter 7, I had to act
as a fiduciary of the estate because the chapter 7 trustee and his counsel
would not. This had to do with probate cases I appeared in to try to
preserve assets for the estate where the chapter 7 trustee failed to do his
job. I know I was not hired by the estate (as debtor's) counsel, but are
there any exceptions at all where I would have been awarded these fees and
so could deduct them from liquidation? How about the argument that had the
trustee been doing his job, his counsel would have incurred these fees?

 

I need to get my arguments and case law together to refile these. I am so
exhausted from all the litigation in this case that the trustee invited and
made me do and now wants to deny payment to me because of a 1325(a)(4) issue
that was a mistake in calculation. 

 

Best regards,

HOLLY ROARK

Attorney at Law 

Certified Bankruptcy Specialist -

By the State Bar of California Board of Legal Specialization

 

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