Bankruptcy Middle District Florida | Carol A. Lawson

Time Barred Debt in Chapter 13

May 30, 2015/in Bankruptcy, Bankruptcy Middle District Florida, Case Law, Consumer Financial Protection Bureau, Credit/by damg

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

Bank of America v Caulkett

March 4, 2015/in Bankruptcy, Bankruptcy Middle District Florida, Case Law, Florida Foreclosure Defense, Uncategorized/by damg

Bank of America v. Caulkett (March 24 US Supreme Court Hearing) — A complex bankruptcy issue: When there are multiple liens on a property, can the debtor “strip off” junior mortgage liens if the debt owed a senior lien holder exceeds the value of the property? (Bank of America v. Toledo-Cardona also deals with the same issue and will be heard on the same day.)

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

U.S. Supreme Court Agrees to Review Florida Chapter 7 Lien Strip Cases

February 3, 2015/in Bankruptcy, Bankruptcy Middle District Florida, Case Law, Uncategorized/by damg

The U.S. Supreme Court agreed earlier this week that it would hear the cases of Bank of America v. Caulkett and Bank of America v. Toledo-Cardona following the bank’s appeal in both cases, which were both decided in favor of the homeowners by the 11th Circuit U.S. Court of Appeals back in May. The Supreme Court said in granting the petition on Monday that it would consolidate the two cases and allot one hour for oral arguments.

This is not good for chapter 7 debtors in Alabama, Georgia, or Florida because the Supreme Court might disagree with Eleventh Circuit decisions that currently allow lien strips in chapter 7 cases. An unfavorable decision could potentially invalidate numerous previous lien strips in chapter 7 cases in these states.

The 1992 case of Dewsnup will be clarified. Is there a distinction between strip offs and strip downs in Ch. 7 as the 11th Circuit believes, or not? Stay Tuned.

TCPA Allows Consent Through Intermediaries

October 7, 2014/in Bankruptcy, Bankruptcy Middle District Florida, Consumer Financial Protection Bureau, Credit, Uncategorized/by damg

The Eleventh Circuit, U.S. Court of Appeals, held that the TCPA allows callers to obtain consent through intermediaries.

The Court also held that a 2008 FCC Ruling interpreting the “prior express consent” defense applies to all creditors and debt collectors, including medical debt collectors, when calling wireless telephone numbers.

The 11th Circuit held that the district court lacked jurisdiction to consider the validity of the 2008 FCC Ruling, pursuant to the Hobbs Act.

http://media.ca11.uscourts.gov/opinions/pub/files/201314008.pdf

With regards to autodialers to cellphones see

http://www.ca11.uscourts.gov/opinions/ops/201310951.pdf

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

Revised Chapter 13 Model Plan in Ft. Myers and Tampa

May 14, 2014/in Bankruptcy Middle District Florida, Uncategorized/by damg

The judges of the Tampa and Ft. Myers Divisions have revised the approved Chapter 13 Model Plan. The revised Model Plan must be used by all Chapter 13 debtors in cases filed on or after June 1, 2014.

Changes from the previous model plan include:
Paragraph 5 which provides that secured creditors who have filed proofs of claim prior to the claims bar date or within 14 days from the date of an order converting or dismissing the case, whichever date is earlier, shall have an administrative lien on plan payments paid by the debtor to the Chapter 13 Trustee prior to confirmation.

Paragraph 5(G), (H) and (I) of the Model Plan.

In 5(G), the debtor may elect to pay secured claims/leased claims direct to the creditor. If the Debtor makes this election, the automatic stay and any codebtor stay are terminated in rem upon the filing of the Plan. The debtor’s state law contract rights are not abrogated.

In 5(H), the debtor may designate secured claims that are not provided for under the plan. The automatic stay and any codebtor stay are terminated, the debtor’s liability to the creditor is not discharged under the plan, and the debtor’s state law contract rights are not abrogated.

In 5(I), the debtor may elect to surrender secured/leased property. The automatic stay is terminated in rem as to the secured creditor.

Revisions have also been made to the following form orders to make them consistent with the revised Model Plan: Order Establishing Duties of Debtor, etc., the Order Granting Trustee’s Motion to Dismiss, and the Order Governing Procedures After Conversion to Chapter 7.

Click to download Chapter 13 Plan (pdf)

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