Bankruptcy Form Changes April 1, 2016

/in , , , /by

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: [email protected]

 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 Requires Evidence of Adequate Protection Against Other Claimants to Lost Note, Vacates Foreclosure on Lost Note

/in , /by

The 5th DCA of the State of Florida,  held that a mortgagee was not entitled to final judgment of foreclosure where the mortgagee failed to introduce any evidence of adequate protection for its lost note at trial, as required under Fla. Stat. 673.3091.

The Court followed the 3rd DCA  decision in Guerrero v. Chase Home Fin., LLC, 83 So. 3d 970, 974 (Fla. 3d DCA 2012) and reversed the lower court’s granting of final judgment of foreclosure in favor of the mortgagee and against the borrower, and remanded the matter for establishment of the lost note and mortgage.

A copy of the opinion is available at: http://www.5dca.org/Opinions/Opin2014/101314/5D14-78.op.pdf.

Fla. Stat. 673.3091 governs the enforcement of lost, destroyed or stolen instruments, and provides in pertinent part:

(2) A person seeking enforcement of an instrument under subsection (1) must prove the terms of the instrument and the person’s right to enforce the instrument. If that proof is made, s. 673.3081 [proof of signatures and status as holder in due course] applies to the case as if the person seeking enforcement had produced the instrument. The court may not enter judgment in favor of the person seeking enforcement unless it finds that the person required to pay the instrument is adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument. Adequate protection may be provided by any reasonable means.

Fla. Stat. 702.11(1) explains the concept of adequate protection, and provides in pertinent part:

(1) In connection with a mortgage foreclosure, the following constitute reasonable means of providing adequate protection under s. 673.3091, if so found by the court:

(a) A written indemnification agreement by a person reasonably believed sufficiently solvent to honor such an obligation;

(b) A surety bond;

(c) A letter of credit issued by a financial institution;

(d) A deposit of cash collateral with the clerk of the court; or

(e) Such other security as the court may deem appropriate under the circumstances.

 

 

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

Phone: (727) 410-2705;   email: [email protected]

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

4th DCA FL App Ct Reverses Trial Court’s Ruling Allowing Mortgagee to Correct Foreclosure w/ Wrong Legal Description

/in , , , /by

Fourth District District Court of Appeals of the State of Florida, entered a final summary judgment of foreclosure that had been entered with the incorrect legal description was a “voidable,” not “void” judgment and, as a result, was subject to the one year time limit for motions to vacate the judgment.

The Court held, that the mortgagee filed its motion to vacate the judgment more than three years after it was entered, the trial court erred in granting the mortgagee’s motion to vacate.

A copy of the Court’s opinion is available at:  http://www.4dca.org/opinions/Jan%202015/01-28-15/4D13-4066.op.pdf

 

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

Phone: (727) 410-2705;   email: [email protected]

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

HAMP does not Create Private Cause of Action

/in , , , /by
The Eleventh Circuit Court of Appeals  recently held that the Home Affordable Modification Program (“HAMP”) does not create a private cause of action.  

the parties had a temporary modification in place, and athough the two parties agreed to a temporary modification, the lender then indicated that it would not extend a permanent loan modification to the borrower.     

The borrower sued, alleging that the lender had not complied with its obligations under HAMP. The borrower alleged breach of contract and promissory estoppel, among other claims, in connection with his HAMP allegations. 
HAMP does not expressly create a private right of action for borrowers, the Eleventh Circuit began its analysis by reviewing the relevant factors to determine whether HAMP might create an implied right of action: (1) whether the plaintiff is one of the class for whose “especial benefit” the statute was enacted; (2) whether there is any indication of legislative intent for or against the creation of a private right of action; (3) whether an implied remedy for the plaintiff is consistent with the purposes of the statute; and (4) whether the cause of action is one traditionally relegated to state law. 
After consideration of those factors, the Eleventh Circuit held that “it is clear that no private right of action exists” under HAMP. 
The Court found the purpose of the Emergency Economic Stabilization Act of 2008 and HAMP, was to “restore liquidity and stability to the financial system of the United States.”  12 U.S.C. Sec. 5201(1).  Further, the Court found no evidence of legislative intent to create a private right of action. 
http://www.ca11.uscourts.gov/opinions/ops/201115166.pdf

 

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

Phone: (727) 410-2705;   email: [email protected]

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

 

11th Cir Compels Arbitration in Overdraft Fee Putative Class Action, Severs Allegedly Unconscionable Fee Shifting Provision from Arbitration Provision

/in , , /by
The Eleventh Circuit Appeals held in a putative class action that:  (1) the Federal Arbitration Act did not preempt South Carolina law regarding the contract defense of unconscionability; (2) a fee-shifting provision in a bank’s deposit account agreement containing a separate mandatory arbitration provision was unconscionable and thus unenforceable; (3) the fee-shifting provision was severable from the arbitration provision; and  (4) the mandatory arbitration provision was thus enforceable.
A bank depositor filed a putative class action against Bank,  regarding charged overdraft fees on checking accounts.
 
The district court denied Banks’  motion to compel arbitration, ruling that the arbitration agreement was unconscionable and thus unenforceable under South Carolina law.  Bank appealed the ruling.
The bank appealed twice!   In light of the U.S. Supreme Court’s decision in AT&T Mobility, LLC v. Concepcion, 131 S CT. 1740 (2011)(“Concepcion”), the Eleventh Circuit remanded with instructions to compel arbitration, ruling that, severed from the unconscionable Fee-Shifting Provision, the mandatory arbitration provision was enforceable.
 
The Eleventh Circuit noted that the FAA did not preempt “‘generally applicable contract defenses’ provided by state law ‘such as fraud, duress, or unconscionability’”  See Concepcion, 131 S.Ct. at 1746. South Carolina’s test for unconscionability applied equally to arbitration as well as other agreements.  See, e.g., Community State Bank v. Strong, 651 F.3d 1241, 1267 (11th Cir. 2011).
 
Concluding that the terms of the Fee-Shifting Provision were unconscionable under South Carolina law, the Eleventh Circuit ruled that the Fee-Shifting Provision was unenforceable. Ruckelshaus v. Sierra Club, 463 U.S. 680, 685 (1983)(losing parties normally not entitled to recover costs and fees). 
  
http://www.ca11.uscourts.gov/opinions/ops/201114318.pdf

Carol A. Lawson, Esq., 28870 U.S. Hwy19 #300, Hodusa Towers, Clearwater, FL 33761, Phone: (727) 410-2705 email: [email protected]

 

FL App Ct Holds Res Judicata Does Not Bar New Foreclosure Action Based on New Defaults

/in , , , /by

The Fourth District Court of Appeal of the State of Florida,held that res judicata does not render a mortgage unenforceable or preclude a subsequent foreclosure action based on a default not alleged in the prior action.

The mortgage and note was sold and assigned to another entity (“Lender”).  Borrower defaulted on the note and failed to pay homeowner association fees assessed by her homeowner association (“HOA”).

Lender’s predecessor in interest filed suit to foreclose in August 2007, alleging a default in the payment due on April 1, 2007.  The complaint named HOA as a co-defendant because of its potential junior lien interest. The First Foreclosure by Lender was eventually dismissed.

Between the dismissal of the first foreclosure action and the Lender’s filing of its second foreclosure action, HOA obtained title to the subject property by foreclosing its own homeowner association lien and purchasing the property at the court-ordered foreclosure sale.

HOA  filed a motion for final summary judgment, arguing that the involuntary dismissal of Lender’s first foreclosure action operated as an adjudication on the merits pursuant to Florida Rule of Civil Procedure 1.420(b), and thus, Lender was barred from re-litigating the claim.  The trial court agreed and granted HOA’s motion.

HOA to quiet title on the basis of res judicata and sought a court order removing Lender’s mortgage as an encumbrance on the property.  The trial court also granted judgment on HOA’s quiet title in favor of HOA.

The Appellate Court in this case agreed with Lender that despite an adjudication on the merits in a prior action to foreclose a mortgage, res judicata did not render the mortgage unenforceable by precluding enforcement actions on subsequent defaults

Courts have  previously held that res judicata does not bar the later foreclosure action, because a new default — based on a different act or date of default not alleged in the dismissed action — creates a new cause of action that is not barred by res judicata.  See Singleton v. Greymar Assocs., 882 So. 2d 1004, 1008 (Fla. 2004); Star Funding Solutions, LLC v. Krondes, 101 So. 3d 403, 403 (Fla. 4th DCA 2012).

The Court turned to HOA’s quiet title claim.  The Court reasoned that because each payment default created a basis for a subsequent foreclosure, the note and mortgaged remained a valid and enforceable lien against the property, and did not, as a matter of law, constitute a cloud on the property supporting a quiet title claim.  See Kaan v. Wells Fargo Bank, N.A., 981 F. Supp. 2d 1271, 1274 (S.D. Fla. 2013).

Accordingly the Appellate Court reversed.

http://www.4dca.org/opinions/Sept.%202014/09-24-14/4D13-1992.op.pdf

 

 

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

Phone: (727) 410-2705;   email: [email protected]

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

6th Cir Holds Mortgagee Did Not Breach Settlement w/ Borrower By Disclosing Cancelled Indebtedness to IRS

/in , , , /by

The U.S. Court of Appeals for the Sixth Circuit  reversed  a  summary judgment in favor of a mortgagor where the plain language of a settlement agreement ( in a breach of contract claim) did not prohibit a lender from reporting its transaction with the Internal Revenue Service (IRS).

http://scholar.google.com/scholar_case?q=mccluskey+v+century+bank+sixth+circuit&hl=en&as_sdt=400006&as_ylo=2015&case=5477080525693672075&scilh=0

The Sixth Circuit concluded the Settlement Order said nothing about how each party would treat the transaction for tax purposes nor about how each party would report the transaction to  the IRS.  The Lender  was allowed to issue the 1099.

 

Carol A. Lawson, Esq., 28870 U.S. Hwy19 #300, Hodusa Towers, Clearwater, FL 33761, Phone: (727) 410-2705 email: [email protected]

 

FL Trial Court Rules Mortgage Loan Owner’s Liability for Unpaid Condo Assessments Not Limited by Fla Safe Harbor, Where Foreclosure Judgment Was Entered in Servicer’s Name

/in , , /by

A Broward County  Judge- 17th Circuit of Florida held that a mortgage loan owner’s liability to a condominium association for unpaid assessments was not limited by Florida’s safe harbor provision at Fla. Stat. § 718.116(1)(b).  The safe harbor did not apply where the loan owner was not the first mortgagee of record at the time of foreclosure but rather was assigned the right to bid at the foreclosure sale by the loan’s servicer, ( the plaintiff and mortgagee of record) .

Section 718.116(1)(b) limits “the liability of a first mortgagee or its successors or assignees who acquire title to a [condominium] unit by foreclosure or by deed in lieu of foreclosure for unpaid assessments that became due before the mortgagee’s acquisition of title to the lesser of: (a) the [unpaid assessments] which accrued or came due during the 12 months immediately preceding [acquisition of title]; or (b) one percent of the original mortgage debt[.]” § 718.116(1)(b), Fla. Stat.

To be entitled to limited liability under the Florida safe harbor, “a party must establish: (1) it was a first mortgagee; (2) it acquired title to the condominium unit through foreclosure; and (3) the condominium association was joined as a defendant in the foreclosure action[.]”

The court held, in order to be entitled to the safe harbor, “[t]he key is who had rights and obligations under the mortgage at the time of foreclosure, whether as a first mortgagee or as a successor or assignee.” Bermuda Dunes Private Residences v. Bank of Am., 133 So. 3d 609, 615 (Fla. 5th DCA 2014).

A post-judgment assignment of a foreclosure judgment is insufficient to confer the protection of the safe harbor as a matter of Florida law. Bay Holdings, Inc. et al. v. 2000 Island Boulevard Condo. Ass’n, 895 So. 2d 1197 (Fla. 3d DCA 2005).

Fannie Mae v Park Place at Pompano Condo. Ass’n (17th Jud Cir)

 

Carol A. Lawson, Esq., 28870 U.S. Hwy19 #300, Hodusa Towers, Clearwater, FL 33761             Phone: (727) 410-2705;   email: [email protected]

 

2nd Cir Confirms Defendant May Remove State Action to Fed Ct Before Being Served With Process

/in , , /by

The U.S. Court of Appeals for the Second Circuit held that a defendant may remove a state court action to federal court before being formally served with process.

http://media.ca1.uscourts.gov/pdf.opinions/13-2543P-01A.pdf

Under 28 U.S.C. § 1446(b)(1), a defendant may remove a pending action from state to federal court at two points in time – i.e., the shorter of either within 30 days after receiving the initial pleading or, alternatively, within 30 days after being served with a summons.  This forum shopping may be useful depending on your local circuit.

 

 

Carol A. Lawson, Esq., 28870 U.S. Hwy19 #300, Hodusa Towers, Clearwater, FL 33761             Phone: (727) 410-2705;   email: [email protected]

Note Worthy Foreclosure Cases for August 2015

/in , , , /by

There are many recent changes to foreclosure case law that effect  consumers.    in an effort to keep you informed of what you may see in your foreclosure defense case, I have listed the very case synopses here.  Many  of these case synopsis were done by Judge Cynthia Cox in the 19th Circuit.  Judge Cox’s synopsis  could not be improved upon so I posted hers.  Pinellas , Pasco and Hillsborough counties are 2nd DCA and a link to the case is included.  Contact us for your foreclosure defense today.

Voce v. Wachovia, Case No. 4D15-34 (4th DCA 8/26/15) Borrowers moved to vacate FJ due to the failure of the Bank to offer modification and  claimed disclose settlement was extrinsic fraud per 1.540(b). For Florida Statute  1.540(b) fraud motion must be within one year and the motion was untimely at three years later! Additionally, the motion was without merit because it  must prove borrowers were prevented from participating to allege extrinsic fraud and  they had no rights nor were they the  intended beneficiary or party to settlement between  the State and Bank. 

Deutsche v. Stone, Case No. 4D14-2514 (4th DCA 8/26/15) Court may not involuntarily dismiss a case before plaintiff rests its case.

Vercosa v. Fields, Case No. 4D14-4724 (4th DCA 8/26/15) When damages are unliquidated, a defaulting party is entitled to notice and an opportunity to be heard.   When the notice is mailed to the wrong address or lists the wrong courtroom (or the location is later changed), the final judgment is void and should be vacated/set aside.   

Fiorito v. Chase, Case No. 4D13-2813 (4th DCA 8/26/15) Reversed and dismissed for lack of standing. Copy of note attached contained no endorsements or allonges and after the dismissal of  the lost note count in the complaint,  the original note  contained an undated blank endorsement,  but no testimony was presented as to the date the endorsement was placed on note. 

Nationstar v. Brown, Case No. 1D14-4381 (1st DCA 8/24/15) A subsequent and separate default creates a new and independent right to accelerate payment in a subsequent foreclosure action and it is  irrelevant that acceleration was sought in an earlier foreclosure action or that dismissal with prejudice  was granted and  is not time barred under 95.11.   See Singleton v. Greymar.  

Fowler v. TD Bank, Case No. 5D14-4134 (5th DCA 8/21/15) Affidavit that rental properties never intended to be encumbered and conflict in street address and legal descriptions creates an ambiguity and question of material fact that should not have been decided on SJ.

BOA v. Enclave, Case No. 2D14-3643 (2d DCA 8/21/15) BOA sought enforcement of FJ of 718.116 safe harbor.   Assn estopped from taking a position contrary to which it affirmatively took in the f/c proceeding –its answer of entitlement to only lesser of 6 mos or 1% was a waiver of any other claim.

Grand Cent v. Space Coast, Case No. 2D14-2740 (2d DCA 8/19/15) More than a year after FJ, Space Coast filed a motion to enforce FJ seeking entitlement to safe harbor for condo fees under 718.116(1)(b). Trial court lacked jurisdiction because assessments was neither litigated nor adjudicated and there was no reservation of jurisdiction to determine the assessments.   Trial courts lose jurisdiction after expiration of rehearing or new trial or 1.540 unless reserved. “We would encourage courts to consider specific language reserving jurisdiction to address entitlement to and amount of any unpaid assessments.”  

Bayview v. Hambleton, Case No. 1D14-1703 (1st DCA 8/19/15) Condo association foreclosure proceeding, to which Bank was not a party, does not extinguish a bank’s superior interest and Bank owned and held the Note and thus  had standing.

Lamb v. Mortgage, Case No. 4D13-3125 (4th DCA 8/19/15) Aurora filed and Nationstar substituted  as Plaintiff upon assignment of mortgage (note not assigned). Original note was lost and copy endorsed to Aurora. No testimony about standing provided; only that Nationstar acquired Aurora, but nothing about this Note.   When seeking to enforce a note endorsed to another, standing is proven through assignment, proof of purchase of the debt or evidence of an effective transfer. 

Donado v. Pennymac, Case No. 4D13-1383 (4th DCA 8/19/15) Complaint dismissed without prejudice as defective when complaint was filed as not verified as required.   In 2010, it was Rule 1.110(b) but now Rule 1.115. 

Cardona v. Nationstar, Case No. 4D14-1609 (4th DCA 8/19/15) FJ reversed when bank’s witness testified about business records which were not introduced into evidence. Without the business records, the employee had no personal knowledge. 

Perez v. Deutsche, Case No. 4D13-4812 (4th DCA 8/19/15) Bank offered undated blank note and witness did not know when note was endorsed; PSA was insufficient to establish standing and there was no evidence of transfer prior to filing. FJ reversed lack of standing.

Bis v. US Bank, Case No. 4D13-3310 (4th DCA 8/19/15) Bank voluntarily dismissed foreclosure action and amount of the fee hearing not accompanied with transcript.   Rule 1.420(d) is unambiguous as to costs, which are to be assessed upon voluntary dismissal. 

Fed Home v. Beekman, Case No. 4D13-4086 (4th DCA 8/19/15) Borrower had not complied with trial modification payment plan and then tried to force bank into a modification at trial.   Trial court erred by forcing a modification offer or imposed a new contract on the parties – it was outside the scope of the pleadings and was not tried by consent.   

Citation Way Condo v. Wells Fargo, Case No. 4D14-2667 (4DCA 8/19/15) Distinguishable from Sienna Ridge requiring independent action for unpaid condo assessment because it was raised in the foreclosure action and FNMA and Wells had direct relationship as its servicer. 

TD Bank v. Graubard, Case No. 5D14-1505 (5th DCA 8/14/15) A deficiency is a continuation of the foreclosure proceeding and no additional proof of debt is necessary. Bank only has to prove and introduce evidence that property’s FMV on date of sale was less than total amount of FJ. Court does not have to take judicial notice of orders it entered in the case. 

Boumarate v. HSBC, Case No. 5D14-1379 (5th DCA 8/14/15) Bank has to prove more than mere possession for lost note; but that it was entitled to enforce note at the time of loss. 

Tanner v. Bayview, Case No. 5D14-3746 (5th DCA 8/14/15)   Third persons whose rights or interests are adversely affected have standing to contest a foreclosure action and Plaintiff to present its case at trial.   Consent FJ thus improper and not binding on junior lienors. 

Assil v. Aurora Loan, Case No. 4D14-2257 (4th DCA 8/12/15)   Bank failed to prove standing as nonholder in possession by relying on a letter notifying of transfer of servicing rights; not a servicing agreement that proved Aurora had the right to enforce when it filed the action and had claimed Note was lost in first complaint, with 3 amendments of varying allegations.

Onewest v. Cummings, Case No. 2D14-2397 (2d DCA 8/12/15) Dismissal reversed, Bank had standing.   A plaintiff who is not original lender may establish standing by submitting note with blank or special endorsement, assignment or affidavit proving status as holder at time the complaint was filed. 

Balch v. Lasalle Bank, Case No. 4D14-2057 (4th DCA 8/4/15 on rehearing) Standing not proven through an assignment executed after complaint was filed and by MERS who was not even a party to the PSA and there was no evidence indicating when the indorsement was placed on the note. 

Citi v. Turner, Case No. 1D14-1137 (1st DCA 8/4/15) The plain language of the mortgage unambiguously gave the bank a security interest in the entire property, the Court erred in concluding bank not entitled to foreclosure ½ interest.   Contracts must be interpreted and enforced in accordance with their meaning and in rational manner.

Snowden v. Wells Fargo, Case No. 1D14-2529 (1st DCA 8/4/15) Without a transcript, appellate courts presume the trial court’s judgment was based on evidence adduced at the hearing.

 

 

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

Phone: (727) 410-2705;   email: [email protected]

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