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Bankruptcies

1.Chapter XIII- payment plan

a. Chapter XIII trustees throughout the state

Northern District of New York State
445 Broadway
Suite 330
Albany, NY 12207
Telephone Number (518) 257-1661

Generally only pre-petition arrearages are paid in the plan, through the trustee.  Occasionally regular monthly, post petition payments are also made through the plan.

Western District of New York State
300 Pearl Street
Buffalo, NY 14202
Telephone Number (716) 551-4130

Generally only pre-petition arrearages are paid in the plan, through the trustee.  Very rarely regular, post petition, payments may be included in the plan.  If post petition payments to the creditor are delinquent creditor may move for relief from stay.  Court will often enter an adequate protection order requiring debtor to make payments and providing for relief if debtor default.

Eastern District of New York State
271 Cadman Plaza East
Suite 1595
Brooklyn, NY 11201
Telephone Number (347) 394-1700

Pre and post petition payments are paid inside the plan.  Post petition payments may not be paid outside of the plan. Trustee does not disburse until plan is confirmed unless required to do so by an adequate protection order.  Motions from relief are usually denied the first time that they are file. However, if the creditor is provided for in the plan, adequate protection is usually granted. The adequate protection order requires the debtor to make payments.  If the debtor defaults in making payment, then upon proof of affidavit, relief may be granted.  Confirmation is at least 180 days after the case is filed.  Therefore, it is advisable to move for relief in order to get adequate protection and payments released by the trustee before confirmation. 

Southern District of New York State
One Bowling Avenue
New York, NY 10004
Telephone Number (212) 668-2870

Pre and post petition payments are made to the trustee.  If the debtor is current with a particular creditor at the time of filling debtor may opt pay that creditor outside the plan.  If payments are made outside the plan trustee will abandon her interest in the property and creditor can more easily obtain relief from stay.  Trustee does not make any disbursements to creditors prior to confirmation unless required to do so by court order.

b. Pre-petition arrearages

  1. Under U.S. Supreme Court decision in Rake v. Wade creditor is entitled to interest pre-petition arrearages if mortgage was signed on October, 1994
    • Under this case interest on arrearages may not be available if the mortgage encumbers anything in addition to the real property, ex. Personal property
    • Under 1994 amendments to Bankruptcy Code interest on arrearages may generally be included in the Proof of claim if provided for the mortgage.

2. Chapter 7- Liquidation

Purpose is to liquidate assets for benefit of creditors.

3. Under Bankruptcy Code standard to obtain relief from stay is:

i. The property is not necessary for an effective reorganization and

ii. Debtor has no equity in the property

 
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