Doc081-TrusteesObjectionToPlan

7/29/2019 Doc081-TrusteesObjectionToPlan

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Trustee's Obj to Confirmation 11-57656 ASW

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DEVIN DERHAM-BURK #104353CHAPTER 13 STANDING TRUSTEEP O Box 50013San Jose, CA 95150-0013

Telephone: (408) 354-4413

Facsimile: (408) 354-5513Trustee for Debtor(s)

UNITED STATES BANKRUPTCY COURTNORTHERN DISTRICT OF CALIFORNIA - DIVISION 5

In re:

GUANCIONE, ROSALIE AUBREE

Debtor(s)

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Chapter 13Case No. 11-57656 ASW

2ND

AMENDEDTRUSTEES OBJECTION TOCONFIRMATION WITH CERTIFICATE OFSERVICE

Confirmation Date: N/A Trustees Pending List

Judge: Arthur S. Weissbrodt

Devin Derham-Burk, Trustee in the above matter, objects to the Confirmation of this Unknown%

Plan for the following reasons:

1. The Trustee is in receipt of a proof of claim filed by Internal Revenue Service onSeptember 23, 2011 [claim #2-1] for secured claims in the amount of $35,412.63.

Debtor has failed to list said tax debt in the Second Amended Chapter 13 Plan filed

on November 21, 2011 [docket #57], and has failed to list Internal Revenue Service

on the Amended Schedule D filed on December 8, 2011 [docket #68]. An Amended

Chapter 13 Plan and Amended Schedule D must be filed.

Case: 11-57656 Doc# 81 Filed: 02/08/12 Entered: 02/08/12 14:22:01 Page 1 of 5


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2. The debtor has failed to appear and/or submit to examination under oath at themeeting of creditors under 11 U.S.C. 341(a). Without conducting this examination,

the Trustee is unable to adequately investigate the debtors financial affairs as she is

required to do pursuant to 11 U.S.C. 1302(b)(1) (incorporating 11 U.S.C.704(a)(4)). In addition, until the debtor is examined by the Trustee, she is unable to

recommend confirmation of the debtors plan. The Trustee requests that the debtor

appear at a rescheduled meeting of creditors.

3. The debtor has failed to provide the Trustee with either or both 1)a government-issued photo identification, or 2) proof of a social security number. See 11 U.S.C.

521(h). Without being able to establish the identity of the debtor, the Trustee is

unable to adequately investigate the financial affairs of the debtor or recommend

confirmation. The Trustee requests that the debtor provide her with verification of

both identity and social security number.

4. There appears to be a violation of Section 1322(d) in that the term of the SecondAmended Chapter 13 Plan filed on November 21, 2011 [docket #57], exceeds 60

months. The term is approximately 601 months.

5. Debtor filed a Motion to Modify Chapter 13 Plan on November 14, 2011 [docket#41] however; the debtors Chapter 13 Case has not been confirmed. Debtor must

withdraw the Motion to Modify Chapter 13 Plan filed on November 14, 2011 [docket

#41].

6. The debtor has failed to provide a Certificate of Service showing that all creditorshave received notice of the Second Amended Chapter 13 Plan filed on November 21,

2011 [docket #57].

7. Debtor has failed to list a monthly plan payment to the Trustees office in Section 1 ofthe Second Amended Chapter 13 Plan filed on November 21, 2011 [docket #57]. An

Amended Chapter 13 Plan must be filed and served on all creditors.



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8. Debtor has failed to list the direct monthly mortgage payments for the real propertylocated at 1451 Forrestal Ave San Jose, CA 95110 in Section 4 of the Second

Amended Chapter 13 Plan filed on November 21, 2011 [docket #57], and the

Amended Schedule J filed on November 21, 2011 [docket #60]. An AmendedChapter 13 Plan and Amended Schedule J must be filed.

9. Schedule A filed on November 21, 2011 [docket #59] lists the total amount ofSecured claims for the real property located at 1451 Forrestal Ave San Jose, CA

95110 as $465,000.00 however; the Amended Schedule D filed on December 8, 2011

[docket #68] shows the total amount of Secured Claims to be $481,000.00. The

proper amendments must be filed.

10.There appears to be a violation of Section 1325(a)(4) in that unsecured creditorswould receive more in a Chapter 7 liquidation. The excess equity, above the debtors

allowed exemptions, in the debtors personal property is $1,127,733.73, therefore;

unsecured creditors must receive 100% plus interest at the Federal Judgment Interest

Rate on the date the case was filed. The Federal Judgment Interest rate as of the date

of filing was .11%. The Plan must be amended and served on all creditors.

11.All creditors listed on Schedule D filed on November 21, 2011 [docket #59-1], andthe Amended Schedule D filed on December 8, 2011 [docket #68] have been omitted

from the courts Certificate of Service for the Notice of Chapter 13 Bankruptcy Case,

Meeting of Creditors, & deadlines. The debtor must serve all creditors listed on

Schedule D filed on November 21, 2011 [docket #59-1], and the Amended Schedule

D filed on December 8, 2011 [docket #68] with the Notice of Chapter 13 Bankruptcy

Case, Meeting of Creditors, & Deadlines and the Chapter 13 Plan, along with the

applicable Notice to Creditors Regarding Plan Provisions, and the Order

Establishing Procedures for Objection to Confirmation.

12.All creditors listed on Schedule F filed on November 21, 2011 [docket #59-1], andthe Amended Schedule F filed on December 8, 2011 [docket #68] have been omitted



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from the courts Certificate of Service for the Notice of Chapter 13 Bankruptcy Case,

Meeting of Creditors, & deadlines. The debtor must serve all creditors listed on

Schedule F filed on November 21, 2011 [docket #59-1], and the Amended Schedule F

filed on December 8, 2011 [docket #68] with the Notice of Chapter 13 BankruptcyCase, Meeting of Creditors, & Deadlines and the Chapter 13 Plan, along with the

applicable Notice to Creditors Regarding Plan Provisions, and the Order

Establishing Procedures for Objection to Confirmation.

13.Internal Revenue Svs (sic), Co. of Santa Clara, and Superior Ct of Calif (sic) listed onSchedule E filed on November 21, 2011 [docket #59-1], and the Amended Schedule

E filed on December 8, 2011 [docket #68] have been omitted from the courts

Certificate of Service for the Notice of Chapter 13 Bankruptcy Case, Meeting of

Creditors, & deadlines. The debtor must serve said creditors with the Notice of

Chapter 13 Bankruptcy Case, Meeting of Creditors, & Deadlines and the Chapter 13

Plan, along with the applicable Notice to Creditors Regarding Plan Provisions, and

the Order Establishing Procedures for Objection to Confirmation.

THE TRUSTEE STRONGLY RECOMMENDS DEBTOR CONTACT AN

EXPERIENCED CHAPTER 13 ATTORNEY FOR ASSISTANCE. DEBTORS

FAILURE TO COMPLY WITH THE BANKRUPTCY CODE MAY RESULT IN

DISMISSAL OF THE CASE.

Dated: February 8, 2012 /S/ Devin Derham-Burk____________________________________

Chapter 13 Trustee



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CERTIFICATE OF SERVICE BY MAIL

I declare that I am over the age of 18 years, not a party to the within cause; my businessaddress is 983 University Ave. C-100, Los Gatos, California 95032. I served a copy of the

within Trustees 2nd

Amended Objection to Confirmation by placing same in an envelope in the

U.S. Mail at Los Gatos, California on February 8, 2012.

Said envelopes were addressed as follows:

ROSALIE AUBREE GUANCIONEP O BOX 90452

SAN JOSE, CA 95109

PRO SE

/S/_Erin Chew____________________Office of Devin Derham-Burk, Trustee


Documents

Doc081-TrusteesObjectionToPlan