April 3, 2016
The median income amounts for the means test change on April 1, 2016. The figures for a Florida means test have a slight increase for household sizes of one and two and a slight decrease for household sizes of three and four. The median income in Florida for a household of 1 is now $ 43,136.00; for a household of 2 is now $ 53,654.00; for 3 is now $ 57,080.00; and for 4 is now $ 66,588.00. The median income increases for each additional member of the household $8400.00.00.
October 11, 2015
I represented the debtor in a case where Judge Olson entered an important ruling of general interest to bankruptcy attorneys and foreclosure attorneys in particular for Broward County including Fort Lauderdale bankruptcies and foreclosures. The state court foreclosing lender attempted to reopen a 2009 chapter 7 in which the debtor in her Statement of Intention stated her intent to surrender non-exempt real property. The state court foreclosure, filed in 2009 with little activity for years, had not yet been completed. The issue of the meaning and enforcement of the Debtor’s Statement of Intention in a state court foreclosure has been brought in several bankruptcy cases throughout Florida. Decisions are conflicting. In re Kourogenis, Case No. 09-32936, DE 28, October 6,, 2015, is the first bankruptcy court decision on this issue in Broward County as to chapter 7 cases. Careful reading of the decision is critical. The court did find that in…
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June 22, 2015
Caulkett Does Not Affect Lien-Stripping in Chapter 13 Posted by NCBRC – June 22, 2015 The recent Supreme Court decision in Bank of America v. Caulkett, ___ U.S. ___, 2015 WL 2464049 (June 1, 2015), does not apply to lien stripping in chapter 13. Turman v. Pinnacle Bank, No. 14-80062, Adv. Proc. 14-8035 (Bankr. D. Neb. June 12, 2015). Alton and Leslie Turman’s residence was subject to two liens, the second of which was wholly unsecured. Relying on Minnesota Housing Fin. Agency v. Schmidt (In re Schmidt), 765 F.3d 877 (8th Cir. 2014), and noting that seven other circuits have found that wholly unsecured liens may be stripped off in chapter 13, the court granted the debtors’ motion for summary judgment to avoid Pinnacle Bank’s lien. The court briefly reiterated the well-established interpretation of Nobelman v. American Sav. Bank, 508 U.S. 324 (1993), that a lien that is wholly unsecured…
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June 1, 2015
The United States Supreme Court ended lien strips in chapter 7 bankruptcy cases. In its June 1, 2015 decision, Bank of America v Caulkett, the Supreme Court reversed the decision of the 11th Circuit Court of Appeals which had permitted lien strips in chapter 7 cases. Florida bankruptcy attorneys had been able to strip second mortgages as a result of the McNeal decision. See my prior posts on this issue. While courts throughout the country did not permit eliminating completely underwater second mortgages (and association fees), Florida and Georgia attorneys had a short window of opportunity to eliminate junior liens in bankruptcy. We are now back to the prior practice which typically involved filing a chapter 13 to eliminate junior mortgage liens.
December 13, 2014
On December 12, 2014, the Supreme Court released an order granting petitions for certiorari in two more consumer bankruptcy cases: This update is from Robin Miller who provides bankruptcy consumer law updates to attorneys. Bullard v. Hyde Park Savings Bank, Case No. 14-116 (U.S. Sup. Ct., pet. for cert. granted Dec. 12, 2014) The Supreme Court granted the Chapter 13 debtor’s petition for certiorari seeking review of In re Bullard, 752 F.3d 483 (1st Cir. May 14, 2014), which held that a bankruptcy court order denying confirmation of a proposed Chapter 13 plan, and giving the debtor an opportunity to file an amended plan, was not a final appealable order. Harris v. Viegelahn, Case No. 14-400 (U.S. Sup. Ct., pet. for cert. granted Dec. 12, 2014) The Supreme Court granted the Chapter 13 debtor’s petition for certiorari seeking review of In re Harris, 757 F.3d 468 (5th Cir., July 7,…
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December 2, 2014
The home office income tax deduction has formed the basis for a denial in part of the Florida homestead exemption. More specifically, there is now case authority that the exclusive use of a portion of a Florida homestead which in part can be evidenced by the home office income tax deduction and depreciation of the home justifies apportioning the residence to homestead and non- homestead. The idea is as follows: Suppose 25% of the home is exclusively used for business such as an office. Or assume that 25% is exclusively used by a tenant who is paying rent for one room in the home. The trustee can sell the home, 75% of the equity belongs to the debtor, and 25% of the net proceeds would be retained by the trustee. Sounds contrary to the whole idea of the liberal protections for a Florida homestead? Sounds contrary to the…
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November 30, 2014
A recent decision also found that a chapter 13 debtor in a 5-year payment plan could payoff the balance of the plan early to end the bankruptcy and obtain the discharge. Miami bankruptcy Judge Mark in In re Nelson Gonzalez, Case No. 11-16677 (November 17, 2014)(DE 155). The rule as interpreted for a Florida Chapter 13 is that an over-median income debtor must file a chapter 13 plan with a term of 5 years. (under median can be a three year period ). This is based on a technical interpretation of the statute as to “an applicable committment period”. The 11th Circuit has previously ruled that the 5 year plan is necessary for confirmation for an over median income debtor. However, what if after confirmation the debtor wants to modify a chapter 13 plan to pay if off early? Judge permitted the modified plan for an early payoff and…
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November 23, 2014
Last week the U.S. Supreme Court agreed to hear an appeal on whether debtors can strip or eliminate underwater second mortgages in chapter 7. Fort Lauderdale bankruptcy debtors have been able to strip second mortgages and equity lines in chapter 7 for only about the past year based on an appellate court’s decision that is binding in Florida, Georgia and Alabama. The 11th Circuit Court of Appeals in the GMAC v McNeal decision held that based on prior authority of this circuit, debtors could strip underwater second mortgages and equity lines. (See prior blog posts on McNeal) The 11th Circuit Court opinion is contrary to the rulings in most of the country. The Supreme Court agreed to resolve the conflict in this “McNeal appeal.” (This rhymes and sounds good, but actually the appeal is not in this GMAC v McNeal case but in an appeal brought by Bank of America….
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