Johnny F. Robles and Karina V. Robles

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UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
In re 	No. 08-43015 TG
Chapter 13
JOHNNY F. ROBLES, KARINA V.
ROBLES,
Debtors.
___________________________/
MEMORANDUM RE THIRD AMENDED CHAPTER 13 PLAN
The Court has reviewed the Third Amended Chapter 13 Plan filed
by 	the 	above-captioned 	debtors 	on 	December 	13, 	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 Saxon Mortgage, 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: 08-43015 Doc# 47 Filed: 12/19/08 Entered: 12/22/08 13:28:44 Page 1 of 3

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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 paragraph 7.2, describing the
proposed treatment of American General, in accordance with Espinosa
v. United Student Aid Funds, 2008 WL 5158728 (9 th Cir.), the debtors
may propose to strip off this second deed of trust on the ground that
it 	is 	fully 	unsecured 	by 	including 	this 	provision 	in 	their 	plan
unless American General objects to this procedure and requests that
the relief be sought by adversary proceeding. 	However, to preserve
this option, the plan must be served on American General 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 American General.
If American General does not file an objection, 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 	second 	deed 	of 	trust 	is 	fully 	unsecured.
If American General files an objection and disputes this contention,
an evidentiary hearing would probably be required. Until this issue
has been resolved, the plan could probably not be confirmed.
END OF DOCUMENT
Case: 08-43015 Doc# 47 Filed: 12/19/08 Entered: 12/22/08 13:28:44 Page 2 of 3

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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: 08-43015 Doc# 47 Filed: 12/19/08 Entered: 12/22/08 13:28:44 Page 3 of 3