US Middle District of Florida – Bankruptcy Court Announcement

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Pursuant to guidelines imposed by the Administrative Office of the United States Courts, effective immediately, a signed IRS Form W-9 must be on file before the release of funds held by the Court. Accordingly, the Court will routinely deny any Motion for Release of Unclaimed Funds filed without a completed W-9 form for the claimant.  Procedures on the Court’s website were updated to reflect this requirement. A link to IRS form W-9 is available on the Court’s website under the Motions for Release of Unclaimed Funds procedures. You may also locate the current IRS form W-9 by clicking here.

Also as a result of this change, viewing of Motions for Unclaimed Funds in CM/ECF will be restricted to protect the Claimant’s social security information contained on the IRS form W-9.

Carol A. Lawson, Esq., 28870 U.S. Hwy 19 #300, Hodusa Towers, Clearwater, FL 33761

Phone: (727) 410-2705;   email: calh@gate.net

 Clearwater Bankruptcy Attorney, Clearwater Bankruptcy Lawyer, Clearwater Bankruptcy, Clearwater Estate Planning Attorney,  Pinellas Estate Planning Attorney, Pinellas Probate Attorney #FileLocallyDontOverpay #ClearwaterBankruptcy #ClearwaterBankruptcyAttorney #ClearwaterEstatePlanning #ClearwaterProbate

Crawford Claim For Time Barred Debts

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In Crawford v. LVNV Funding, LLC, the court held that a debt collector violates the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. 1692e, when it files a proof of claim in a bankruptcy case on a debt that it knows to be time-barred.  The court concluded that, although the Code allows all creditors to file proofs of claim in bankruptcy cases, the Code does not at the same time protect those creditors from all liability.  Debt collectors – may be liable under the FDCPA for bankruptcy filings they know to be time-barred.  http://law.justia.com/cases/federal/appellate-courts/ca11/15-11240/15-11240-2016-05-24.html

 

 

Carol A. Lawson, Esq., 28870 U.S. Hwy 19 #300, Hodusa Towers, Clearwater, FL 33761

Phone: (727) 410-2705;   email: calh@gate.net

 Clearwater Bankruptcy Attorney, Clearwater Bankruptcy Lawyer, Clearwater Bankruptcy, Clearwater Estate Planning Attorney,  Pinellas Estate Planning Attorney, Pinellas Probate Attorney #FileLocallyDontOverpay #ClearwaterBankruptcy #ClearwaterBankruptcyAttorney #ClearwaterEstatePlanning #ClearwaterProbate

Bankruptcy Form Changes April 1, 2016

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Under Section 106 of the Bankruptcy Code Changes are made every three years  based on the change to the consumer price index, and rounded to the nearest $25.  The following forms are pending change: 

  • Official Form 106C, The Property You Claim as Exempt
  • Official Form 107, Your Statement of Financial Affairs for Individuals Filing for Bankruptcy
  • Official Form 201, Voluntary Petition for Non-Individuals
  • Official Form 207, Statement of Your Financial Affairs
  • Official Form 410, Proof of Claim
  • Official Form 122A-2, Chapter 7 Means Test Calculation
  • Official Form 122C-2, Chapter 13 Calculation of Your Disposable Income
  • Director’s Form 2000, Required Lists, Schedules, Statements, and Fees
  • Director’s Form 2500E, Instructions
  • Local Form 97-A, Debtor’s Certificate of Compliance, Motion For Issuance of Discharge and Notice of Deadline to Object
  • Local Form 97-B, Debtor’s Certificate of Compliance, Motion For Issuance of Discharge Before Completion of Plan Payments, and Notice of Deadline to Object
  • Instructions for Individual Debtors
  • Instructions for Non-Individual Debtors

 

Carol A. Lawson, Esq., 28870 U.S. Hwy 19 #300, Hodusa Towers, Clearwater, FL 33761

Phone: (727) 410-2705;   email: calh@gate.net

 Clearwater Bankruptcy Attorney, Clearwater Bankruptcy Lawyer, Clearwater Bankruptcy, Clearwater Estate Planning Attorney,  Pinellas Estate Planning Attorney, Pinellas Probate Attorney #FileLocallyDontOverpay #ClearwaterBankruptcy #ClearwaterBankruptcyAttorney #ClearwaterEstatePlanning #ClearwaterProbate

 

11 U.S. Code § 547 – Preferences

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Got a  Chapter 7 Trustee seeking to avoid a transfer as a  preference under 11 USC § 547 ?

You may want to think about asserting an “Indirect Transfer” Defense. The U.S. Trustee or debtor can seek to set aside a payment made to a creditor within 90 days of the debtor’s bankruptcy filing pursuant to Section 547 of the Bankruptcy Code.  One defense to the Trustee’s preference avoidance powers, is to assert the “indirect transfer” defense.

 

https://www.law.cornell.edu/uscode/text/11/547

This defense can be used when:

  1. The Creditor whom the Debtor owes can assert a right to payment against a third party if the debtor defaults ( ex. non-filing spouse)
  2. The third party would then be able to seek indemnification from the debtor ( ex. co-signer)

If the value the debtor received from the third party equaled the payment the debtor made to the creditor, there was no net loss to the estate and the “indirect transfer” defense may be asserted successfully.

 

Carol A. Lawson, Esq., 28870 U.S. Hwy 19 #300, Hodusa Towers, Clearwater, FL 33761

Phone: (727) 410-2705;   email: calh@gate.net

 Clearwater Bankruptcy Attorney, Clearwater Bankruptcy Lawyer, Clearwater Bankruptcy, Clearwater Estate Planning Attorney,  Pinellas Estate Planning Attorney, Pinellas Probate Attorney #FileLocallyDontOverpay #ClearwaterBankruptcy #ClearwaterBankruptcyAttorney #ClearwaterEstatePlanning #ClearwaterProbate

FL App Ct 3rd DCA Holds Foreclosure SOL Triggered By Acceleration, Not Merely By Notice of Default With Reference to Future Acceleration

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The Third District Court of Appeal, State of Florida, held that a re-filed foreclosure action was not barred by Florida’s five year statute of limitations, because the statute of limitations was triggered by a notice of default.

The Appellate Court held that the statute of limitations was triggered by the foreclosure complaint, not the mortgagee’s notice of default, because the mortgagee exercised its acceleration option and notified the borrower by filing its foreclosure complaint -the foreclosure complaint explicitly provided that the sums due and owing were accelerated, but the notice of default only sought to collect the amount necessary to cure the default and did not constitute an automatic acceleration.

The statute of limitations on a mortgage foreclosure action in Florida does not commence until a default in payment of the final installment due, unless the mortgage contains an acceleration clause. Locke v. State Farm Fire and Cas. Co., 509 So. 2d 61375 (Fla. 1st DCA 1987).

Under Florida law, when an acceleration clause is absolute, the entire indebtedness becomes due immediately upon default, requiring neither notice of default nor some further action to accelerate the debt.  Baader v. Walker, 153 So. 2d 51 (Fla. 2d DCA 1963). By contrast, where the acceleration clause is optional, it is not automatic or self-executing, but requires the lender to exercise this option and to give notice to the borrower that it has done so.  See Campbell v. Werner, 232 So. 2d 252, 254 n. 1 (Fla. 3d DCA 1970).

When the borrower defaults on a payment under a note containing an optional acceleration clause, the lender can exercise its option to accelerate all future payments, making the entire debt immediately due and payable- the statute of limitation commences, when the lender exercises the acceleration option and notifies the borrower of this exercise. See Greene, 733 So. 2d at 1115; Monte v. Tipton, 612 So. 2d 714 (Fla. 2d DCA 1993).

The Appellate Court held that the notice of default did not accelerate the debt nor did it “apprise the maker of the fact that the option to accelerate has been exercised.”  Central Home Trust, 392 So. 2d at 933.  The communication served as a notice of default, notice of borrowers’ right to cure, and notice that the mortgagee intended, at some unspecified future date, to accelerate the debt if borrowers failed to cure the default as set forth in the notice.

Under the terms of the mortgage, a tender by borrowers of the default amount would cure the default and prevent mortgagee from accelerating the debt. Yelen v. Bankers Trust Co., 476 So. 2d 767 (Fla. 3d DCA 1985). The payment demanded by the notice of default was merely the specific amount necessary to bring the loan current.

http://www.3dca.flcourts.org/Opinions/3D14-1547.pdf

 

Carol A. Lawson, Esq., 28870 U.S. Hwy 19 #300, Hodusa Towers, Clearwater, FL 33761

Phone: (727) 410-2705;   email: calh@gate.net

 Clearwater Bankruptcy Attorney, Clearwater Bankruptcy Lawyer, Clearwater Bankruptcy, Clearwater Estate Planning Attorney,  Pinellas Estate Planning Attorney, Pinellas Probate Attorney #FileLocallyDontOverpay #ClearwaterBankruptcy #ClearwaterBankruptcyAttorney #ClearwaterEstatePlanning #ClearwaterProbate

Pinellas County Violates Bankruptcy Stay

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The Sixth Circuit modified the foreclosure procedure on August 15, 2015 by Administrative Order.   If you have a Bankruptcy client who has had a prior bankruptcy in the same foreclosure suit, the Judges will not stop the foreclosure sale-  even if the bankruptcies were more then a year apart and the Stay is valid.

The rationale behind this is that a “void sale” can be set aside later.   However,  you will need to pay a fee of $53.00 to reopen the case to file your Motion to Set Aside the Sale, and you only have 10 days to file the Motion after the sale!  If the bank buys the property and you have notified the bank’s counsel, your client may be safe.

If, a third party with no knowledge of the bankruptcy buys the property,  is your client out of luck? Does the filing of the Suggestion of bankruptcy in the Court record constitute constructive notice on the Third Party Purchaser?  What about the Fact that a Valid Stay Was Enforced?   One of my colleagues has taken this issue to our Tampa Middle District Bankruptcy Judges- stay tune!

Side Note

Apparently, the Clerk’s Office in Seminole County tried a similar move through their internal procedures.  A Motion For Sanction was filed against the Clerk’s office.

Motion for Sanctions – Seminole County Clerk

 

Carol A. Lawson, Esq., 28870 U.S. Hwy19 #300, Hodusa Towers, Clearwater, FL 33761             Phone: (727) 410-2705;   email: calh@gate.net

 

No More Lien Stripping in Chapter 7

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Today, the Supreme Court decided the case of Bank of America, N.A. v. Caulkett.  The Court held, unanimously that a debtor in chapter 7 cannot void a junior mortgage lien pursuant to Section 506(d)( lien strip).   SCOTUS reinforced Dewsnup in holding that, the junior lien claims are secured by a lien and allowed under Section 502, that claim cannot be voided, however, when you add the effect of Section 1322(b)(2), the results might well be different, as they were in Nobleman ( you can strip in 13)sup ct decision no more lien strip in 7 6-1-15

http://www.housingwire.com/articles/34051-supreme-court-rejects-2nd-lien-stripping-in-chapter-7-bankruptcies#.VWygK_5o9U8.facebook

 

Carol A. Lawson, Esq., 28870 U.S. Hwy19 #300, Hodusa Towers, Clearwater, FL 33761             Phone: (727) 410-2705;   email: calh@gate.net

Bankruptcy Court Denies Creditor’s Request to Compel Debtor to Surrender Property

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In re Trussel

2015 WL 1058253 (Bankr. M.D. Fla. March 5, 2015) (Jennemann, J.)

Secured creditor was not entitled to injunctive relief compelling debtor to surrender the property and cease asserting affirmative defenses in the foreclosure action. Evidence presented did not support the argument that debtor failed to comply with his duties under section 521 regarding the statement of intentions. Debtor attempted to reaffirm the debt, but could not reach an agreement with the creditor. The creditor’s desire to “short-circuit” the debtor’s legitimate defenses was not grounds for the relief the creditor requested.

http://www.flmb.uscourts.gov/newsletter/volume5_issue1.pdf

Carol A. Lawson, Esq., 28870 U.S. Hwy19 #300, Hodusa Towers, Clearwater, FL 33761             Phone: (727) 410-2705;   email: calh@gate.net

New Amended Administrative Order Requiring Photo Identification by Unrepresented Parties

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New Amended Administrative Order Requiring Photo Identification by Unrepresented Parties

Effective June 1, 2015, every unrepresented party, including debtor(s) wishing to file a voluntary bankruptcy petition and petitioning creditor(s) wishing to file an involuntary petition in any division of the United States Bankruptcy Court for the Middle District of Florida, must provide acceptable photo identification at the time of filing, and the required debtor(s) or petitioning creditor(s)signatures on the petition.
http://www.flmb.uscourts.gov/

Carol A. Lawson, Esq., 28870 U.S. Hwy19 #300, Hodusa Towers, Clearwater, FL 33761             Phone: (727) 410-2705;   email: calh@gate.net

Time Barred Debt in Chapter 13

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Debts that are past the statute of limitations are considered time-barred debts. The following case law  sho0ws that time-barred debts are not allowed in the Eleventh Circuit, which is Florida’s Circuit.

Crawford v. LVNV Funding LLC  785 F3d 1254 (11th Cir. July 10,2014) 

Proof of claim was filed on a time-barred debt in Chapter 13. this was a violation of  1692e- which prohibits  ” any false, deceptive, or misleading representation or means in connection with the collection of any debt” and Section 1692f which prohibits a debt collector from using ” unfair or unconscionable means to collect or attempt to collect any debt.”

Creditors filing bankruptcy proofs of claims will now be subject to the FDCPA, at least in the Eleventh Circuit, but there is renewed hope for certain defenses, such as the litigation privilege.

https://scholar.google.com/scholar_case?case=15631228362360253615&q=Crawford+v.+LVNV+Funding+LLC++785+F3d+1254+&hl=en&as_sdt=40006

Bazemore v Jefferson Capital Systems LLC  (SD Georgia, May 15,2015)

Jefferson motion to enforce arbitration was ruled groundless  with regards to the FDCPA claim.

https://scholar.google.com/scholar_case?case=10648902652621483690&q=Crawford+v.+LVNV+Funding+LLC++785+F3d+1254+&hl=en&as_sdt=40006

Carol A. Lawson, Esq., 28870 U.S. Hwy19 #300, Hodusa Towers, Clearwater, FL 33761             Phone: (727) 410-2705;   email: calh@gate.net