Oscar Vega and Maria C. Ramirez-Vega

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UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
In re 	No. 08-45293 TG
Chapter 13
OSCAR VEGA, MARIA C.
RAMIREZ-VEGA,
Debtors.
___________________________/
MEMORANDUM RE FIRST AMENDED CHAPTER 13 PLAN
The Court has reviewed the First Amended Chapter 13 Plan filed
by 	the 	above-captioned 	debtors 	on 	December 	16, 	2008 	and 	apparently
not yet noticed for hearing. 	A hearing on the plan has tentatively
been scheduled for February 18, 2009. 	It would be premature to make
any ruling with respect to the plan at this time. 	However, the Court
wishes 	to 	let 	the 	debtors 	and 	other 	interested 	parties 	know 	of 	its
thoughts after reviewing the plan.
With respect to the provisions of 7.1, describing the proposed
treatment of Washington Mutual, the Court would require the debtors
to 	file 	an 	adversary 	proceeding 	to 	litigate 	the 	claims 	asserted.
Moreover, the Court is unlikely to confirm the plan, permitting the
debtors to alter the post-petition payment amount and interest rate
Signed: December 19, 2008
________________________________________
LESLIE TCHAIKOVSKY
U.S. Bankruptcy Judge
________________________________________
Entered on Docket
December 22, 2008
GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
Case: 08-45293 Doc# 25 Filed: 12/19/08 Entered: 12/22/08 12:21:51 Page 1 of 4

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and 	directing 	the 	trustee 	not 	to 	pay 	the 	pre-petition 	arrearages,
simply 	because 	the 	debtors 	have 	filed 	an 	adversary 	proceeding
asserting such claims. 	The Court is likely to require a showing in
the 	adversary 	proceeding 	sufficient 	to 	sustain 	a 	preliminary
injunction 	enjoining 	foreclosure: 	i.e., 	that 	the 	debtors 	are 	more
likely than not to prevail on the claims asserted.
With respect to the provisions of paragraphs 7.2, 7.3, and 7.4
describing the proposed treatment of GMAC Mortgage, Central Mortgage,
and Saxon Mortgage, in accordance with Espinosa v. United Student Aid
Funds, 	2008 	WL 	5158728 	(9 th 	Cir.), 	the 	debtors 	may 	propose 	to 	strip
off these deeds of trust on the ground that they are 	fully unsecured
by 	including 	this 	provision 	in 	their 	plan 	unless 	the 	deed 	of 	trust
holders 	object 	to 	this 	procedure 	and 	request 	that 	the 	relief 	be
sought 	by 	adversary 	proceeding. 	However, 	to 	preserve 	this 	option,
the 	plan 	must 	be 	served 	on 	the 	deed 	of 	trust 	holders 	in 	the 	same
manner 	as 	an 	adversary 	proceeding 	or 	contested 	matter: 	i.e., 	by
directing 	the 	mailed 	document 	to 	the 	attention 	of 	an 	officer,
director, or managing agent for the deed of trust holders.
If the deed of trust holders do not file objections, the debtors
must file a declaration under penalty of perjury executed by someone
competent to testify as to the value of the real property, supporting
their contention that the deeds of trust are fully unsecured. 	If the
deed of trust holders file objections and dispute this contention, an
evidentiary hearing would probably be required. Until this issue has
been resolved, the plan could probably not be confirmed.
Case: 08-45293 Doc# 25 Filed: 12/19/08 Entered: 12/22/08 12:21:51 Page 2 of 4

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The 	Court 	notes 	that 	Saxon 	Mortgage 	filed 	a 	preliminary
objection 	on 	December 	18, 	2008. 	The 	preliminary 	objection 	assumes
that 	the 	debtors 	will 	file 	an 	adversary 	proceeding 	to 	attempt 	to
strip 	its 	lien 	but 	does 	not 	clearly 	request 	that 	they 	use 	this
procedure as opposed to having the issue litigated in the procedural
context of a plan. 	The Court requests that Saxon Mortgage make its
position 	clearer 	in 	any 	final 	objection 	and 	also 	state 	clearly
whether it contends that its deed of trust is not fully unsecured.
END OF DOCUMENT
Case: 08-45293 Doc# 25 Filed: 12/19/08 Entered: 12/22/08 12:21:51 Page 3 of 4

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COURT SERVICE LIST
Marc A. Fisher
Law Offices of Marc A. Fisher
1070 Marina Village Pk. #206
Alameda, CA 94501
Martha G. Bronitsky
P.O. Box 5004
Hayward, CA 94540-5004
Case: 08-45293 Doc# 25 Filed: 12/19/08 Entered: 12/22/08 12:21:51 Page 4 of 4