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Archive for December, 2010

Foreclosures: The left hand should meet the right hand

Sunday, December 12th, 2010

We all know foreclosures have been a mess for years. Homeowners trying to communicate with their lenders and the loan servicing companies cannot obtain straight answers, submit documents which are lost and must be sent over and over, and are kept in limbo for months if not years.

Two recent newspaper articles give a prime examples of the left hand not knowing what the right hand was doing. As reported in the SunSentinel on December 5, 2010, one home was sold twice. The owner was approved for a short sale and the closing took place. The new owner moved in to the home. However, the bank’s attorney did not cancel the foreclosure sale at the courthouse. Another individual bought the home at the foreclosure sale. (The second purchaser later agreed to vacate the foreclosure sale).

In the December 11, 2010 Miami Herald, an article reprinted from the Palm Beach Post, describes a case in with the homeowner lost ownership of the home in foreclosure. The owner did not know the foreclosure sale had taken place, and had tried to obtain a loan modification. After moving out and losing title, the bank notified the foreclosed homeowner that they had been appoved for a loan modification. It is common practice for the modification process to be ongoing waiting for approval while the attorneys continue with the foreclosure. A chapter 13 bankruptcy is often necessary on an emergency basis because the homeowner has been led to believe that the loan would be or has been modified, but nothing is finalized and the foreclosure sale date is about to take place.

Chapter 13 Jurisdictional Limit

Saturday, December 4th, 2010

The debt limits in the bankruptcy law continue to be a major restriction to filing chaper 13 bankruptcies. Section 109(e) provides that on the date of filing of the petition, the debtor must have less than $360,475 unsecured debt and less than $1,010,650 in secured debt. This becomes a major problem when the debtor has several properties or attempts to strip second mortgages. A debtor may have too large of a secured debt even though the debtor provides to surrender the properties in the plan. Also, a secured debt that is stripped becomes unsecured debt which can cause a failure of to meet the unsecured jurisdictional limit.

Judge Olson in In re Hinds,2010 Bankr. Lexis 3795, Case No 09-23764, (Bankr. S. D. FL July 20, 2010) rejected an attempt to avoid the chapter 13 jurisdictional limit. This was a Fort Lauderdale chapter 13 bankruptcy case. The debtor attempted to classify secured debt being surrendered as contingent and disputed. The court followed the majority view that merely classifying the debt as disputed does not mean the debt cannot be liquidated to a fixed amount by a definite procedure.

More recently, Judge Ray entered a similar decision in an opinion to be published. In re Strong, Case no 10-10142(November 17, 2010).