Bankruptcy and Foreclosure Attorney Blog

Surpisingly, most debts are dischargeable in a bankruptcy. There are actually very few exceptions in the bankruptcy code to dischargeability. For example, recent IRS debt is not dischargeable. However, old tax debt maybe dischargeable if the IRS has not imposed a lien against the debtor.

Criminal restitution, fines, and costs are not dischargeable. Child support and alimony are obligations are not dischargeable. If there is a civil judgement against a debtor and it is related to driving under the influence that is also not dischargeable. If the accident was the result of an intentional tort, that too is also nondischargeable.

To find out more bankruptcy and dischargeability, please contact an experienced bankruptcy attorney.

Continue reading " Is a Civil Judgment from a DUI crash Dischargeable in Bankruptcy? " »

Suspending driver licenses is a practice that is becoming more and more common among insurance carriers when a civil judgment is obtained against a defendant who did not have valid automobile insurance at the time of the accident.

In order to prevent this, the defendant can show the state of Florida proof that you did in fact have valid insurance at the time of the accident and your license should be reinstated. If that does not work, you can get consent from the (plaintiff or in most cases plaintiff's attorneys) to put down a deposit and setup a monthly plan to reinstate your license. As long as you keep making the payments and satisfy the debt, your license should be valid.

Continue reading " My License was Suspended because of a Civil Judgment: Help! " »

This depends on several factors. First, was the case dismissed with or without prejudice? If the case was dismissed with prejudice, then that action cannot be filed by the plaintiff against the defendant again. If the case is dismissed without prejudice, the Plaintiff may be able to file it again assuming the statute of limitations has not run.

If the case is dismissed with prejudice and the statute of limitations for notice of acceleration has run, then there is a interesting issue that will be seen over the months and years to come.

Can the homeowner get the home free and clear excluding insurance and property taxes? The answer is we shall see. This is the million dollar question that keeps coming up.

Continue reading " What happens if my Florida foreclosure action is dismissed? " »

Most mortgages and notes are held by different servicers and investors from whoever originated the note. Borrowers who are being sued for foreclosure are being sued by entities they had never seen nor heard of.

There should be valid assignments attached to the complaint for the Plaintiff to have standing to sue. Was the assignment executed by someone authorized to endorse such an agreement? Is the notary actually commissioned with the secretary of state? Was the assignment assigned after their was a default by the borrower?

If so, how can the assignee claim the Plaintiff was in default towards them? These are a just a few issues that have come up in the world of foreclosure defense. Because of the foreclosure crisis last fall, foreclosure defense attorneys are picking these pleadings apart. As a consumer, you are entitled to certain rights on debt collection activities. If you feel your rights have been violated, contact an experienced foreclosure attorney.

Continue reading " I Have Never Seen nor Heard of the Party suing me for Foreclosure!! " »

This is a question I get many times from my clients. The answer depends on each client's uniques set of circumstances. If all a client is facing is a foreclosure suit and no other debts, we need to find out what type of noneconomic values the client has on keeping the home.

Most homeowners are underwater, and at the end of the day, if the loan is reinstated through a bankruptcy, is the client satisifed on paying for an investment that may never have equity again? If a client has no real attachment to the home, foreclosure defense may alllow someone to stay in the home longer without making a mortgage payment than ad they not tried to fight it.

The HAMP (Obama plan) has not really worked well and borrowers are being left in limbo on whether or not they will be approved for loan modification. If the debtor has other debts that need to be controlled through a bankruptcy setting, than maybe bankruptcy is something the debtor should consider.

Continue reading " Should I consider bankruptcy or foreclosure defense? " »

l Recently, in Naples, Florida, a retired police officer and his wife were served with foreclosure papers from Bank of America for allegedly being behind on their mortgage. The only problem is they were not behind on anything because they paid cash for their home outright several years before.

l So, as expected, they were extremely shocked when they were served with the papers. They hired an attorney and the bank abandoned the matter. The homeowners requested attorneys fees form the bank on several occasions but never got a response.

l The attorney then went to the local branch with two sheriff deputies demanded they start opening up drawers and droors. The bank manager called soon after handed over a check in the amount of $5,300.00 to satisfy the costs associated with the debacle.

To learn more about this article, please visitHomeowner Forecloses on Bank of America.

Continue reading " Bank of America Sued by Homewners For Wrongful Foreclosure " »

I get this question all the time. Clients do not want someone coming out and going through their stuff. Whether a trustee will or not, really depends. In most cases, no. However, that is not to say that they will not. If a Trustee questions the amount listed as a personal asset, the Trustee may decide to visit the personal residence just so that he or she can personally see the asset.

Many times the trustee may ask the debtor to photograph the asset and send it in. Remember, part of the Trustee's job is to go through and liquidate nonexempt assets (in a Chapter 7) if they are any available.

The Trustee pays back creditors with the proceeds from the sale and are usually entitled to a percentage of whatever they recover. If you do not disclose an asset and the Trustee somehow finds out about, the debtor could the discharge and could face federal charges for perjury and defrauding the court.

Continue reading " Does a Bankruptcy Trustee come out to My House? " »

Some of my clients have asked me about workman's compensation benefits and whether or not these benefits must be turned over to the Trustee in a bankruptcy. Trustees may try and ask the bankruptcy court to make the debtor turn over these proceeds but Florida statute 440.22 provides that these benefits should be exempt from all creditors (except for alimony or child support).

What if the debtor settled a workman's compensation claim? The bankruptcy court for the Middle District of Florida has issued case law opinions declaring that even these types of settlements are protected. What if, after the settlement, the debtor deposits those proceeds into a bank or investment account? Do they lose their exempt status?

Again, the middle district bankruptcy court says these funds do not lose their exempt status and are protected from creditors (except for domestic support obligations).

Continue reading " Worker's Compensation Benefits and my Florida Bankruptcy " »

In Florida banks and mortgage companies will soon be requesting more and more pre-foreclosure mediations. While on the face of things, it may appear that Florida banks and mortgage companies are seeking to work with homeowners as to loan revisions, mortgage modifications and other relief. Florida consumer advocates are concerned that homeowners will unknowingly and in advertently waive important legal rights during the mediation process and sign documents that, in turn, make the defense of a subsequent foreclosure action more difficult for the homeowner. While pre-foreclosure mediation can be helpful in some instances, it is important for the homeowner to understand his or her legal rights and have legal representation at such proceedings. Florida Banks and mortgage companies have their own attorney and homeowners should be adequately represented in pre foreclosure mediation matters as well. Homeowners have a right to representation and should protect their rights of homeowership accordingly. For more on this topic see pre-foreclosure mediation.

Many times creditors make mistakes and misreport items on credit reports. If a debt was discharged in a banIkruptcy, the balance on the credit report should be zero. If the creditor reports anything but zero, the former debtor should try notifying the creditor of the mistake.

The former debtor should document everytime he or she tried contacting the creditor including who answered the phone call and what was said. If the creditor continues to misreport items, the debtor should notify an attorney and seek legal advice as to whether or not there is merit to a claim.

The attorney could reopen the bankruptcy case and file an adversary proceeding alleging the discharge injunction/automatic stay has been violated. There may be an opportunity for the debtor to recover monetary damages.

Continue reading " What if a discharged debt appears on my Credit Report after my Florida Bankruptcy? " »

Many times, clients come in and want to defend a foreclosure suit adamantly. However, I always ask them to take a step back and look at the big picture. In some instances, a client is hundreds of thousands of dollars underwater on their home because they have multiple mortgages or home equity lines of credit. Some clients have a deep emotional attachment to a home, some do not and are more willing to walk away.

At the end of the day, if you are successful in defending a foreclosure suit, you are still on the hook for the loan. Your mortgage is just brought current and reinstated.

There may be an opportunity to recover attorneys fees if the suit was filed under false pretenses, but for the most part you will not be reimbursed for paying attorney's fees.

Continue reading " Facing Foreclosure: What is your goal? " »

In the middle district of Florida, it is becoming more prevalent that debtors must submit a formal appraisal with the motion to strip in order to have the 2nd lien stripped from the property.

As mentioned in recent posts, if the value of the home is worth more than the 1st lien on the property, it is highly unlikely that the debtor will be able to receive the benefit of the strip. Furthermore, a strip will only become effective if the debtor makes all payments and successfully completes the plan.

The middle district of Florida, for the most part, is not accepting property tax appraisals and home valued sites such as Zillow.com and Trulia.

In some instances, it may be acceptable to use these resources but I always tell my clients to prepare hiring an appraiser for a formal appraisal.

Continue reading " Stripping Liens in Chapter 13 Bankruptcy and Home Appraisals " »

Last year, the state court system was alotted around $6 million specifically for the foreclosure volume crisis. The money was applied towards additional resources to help combat the volume of foreclosure actions being filed.

However, the Florida legislature claims it was a one year allocation and that that line item was omitted from the budget for upcoming year. The state of Florida fiscal year begins and ends in July. This could bode major problems to the state court system. The courts are already overwhelmed with the volume of actions being filed and that are still pending. This struggle exists even with the additional monetary allocations that were handed down by the Florida legislature over the past few years.

To learn more about this article, please visit, Florida Legislators Pull Funding for Foreclosure Courts.

Continue reading " Foreclosure Courts Must Find Seek Alternate Funding Source " »

Many times, parties to a contract will try and insert termination clauses in the event one party files for bankruptcy. The party agreeing to the clause believes he or she is waiving their right to file for bankruptcy if the need arises or else they are in breach.

The Bankruptcy Code specifically addresses this issue and, for the most part, holds these types of clauses unenforceable. The clause will state something to the effect of..."should one party file for bankruptcy....this acts as a default under the agreement and that party is in breach." Again, these types of agreements are not enforceable. Once a bankruptcy petition is filed, that property under the contract is considered "property of the debtor's estate." Prior to 1988, these types of clauses were permitted and enforced.

Lawyers and companies have not taken out these clauses out of their standardized contracts for various reasons including laziness and intimidation factors. If you have questions about these types of contracts, you should contact an experienced attorney.

Continue reading " Are termination clauses for filing bankruptcy enforceable? " »

This is a very common question. Many times a debtor will experience a drop in income. Sometimes the reduction can be very significant and trying to resume the confirmed plan payments is impossible. The plan may be modified in certain circumstances.

However, if a debtor is only paying unsecured creditors a low percentage rate and there is secured arrearage in the plan also, the plan may not be modified much lower. The arrearage must be paid off within five years through the plan.

If a plan is modified where the arrearage will not be paid off in those five years, then the plan will not be accepted or confirmed by the bankruptcy court or trustee. If this is the case, the debtor may want to converting his or her case to a chapter 7 if eligible.

Continue reading " Can my Chapter 13 plan be modified? " »

Many times, clients ask if a bankruptcy will stop a wage garnishment for child support obligations. The answer is most likely, no. It may temporariily suspend the garnishment at best, but it will not stop it completely. A debtor certainly should not file bankruptcy just to stop this type of action.

Back child support owed cannot be discharged either. In fact, the payor can be put in jail if he or she continue to miss child support payments where there is a court order mandating that that person do so. Property settlement distributions with an ex-spouse can possibly be discharged but if the settlement is in the form of "support" the court will not discharge those obligations.

If you have questions about domestic support obligations and bankruptcy, you should contact my office.

Continue reading " Bankruptcy and Child Support Obligations " »