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Means Test-Median Income Change April 1, 2016

Posted on April 3, 2016 by Admin

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.

Judge Olson on Surrender in Chapter 7 and Foreclosures

Posted on October 11, 2015 by Admin

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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Does Lien Stripping Remain in Chapter 13?

Posted on June 22, 2015 by Admin

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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Supreme Court Ends Chapter 7 Lien Strips

Posted on June 1, 2015 by Admin

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.  

Supreme Court Consumer Bankruptcy Update

Posted on December 13, 2014 by Admin

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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Beware Home Office Income Tax Deduction

Posted on December 2, 2014 by Admin

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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Early Chapter 13 Plan Payoff Allowed

Posted on November 30, 2014 by Admin

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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Supreme Court to Decide Lien Strips in Chapter 7

Posted on November 23, 2014 by Admin

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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Florida Exemptions

Posted on December 31, 2020 by solomonjeffrey

As I take down my website, I thought I would post the following list of exemptions applicable in Florida. The reader should consult an attorney for any updates and how the exemption law applies in your particular case. Exemption List Will I lose my home if I file bankruptcy?  Will I lose my car?  Can I protect my retirement account?  The answers to these questions are based on the law of exemptions from the claims of creditors or from the bankruptcy trustee. The following is a list of several exemptions for Florida residents. Florida residents who have not resided in Florida for two years cannot use these exemptions in bankruptcy. However, the debtor often is better off using the prior states’ exemptions, except as to the homestead. This list does not mean you can now transfer the asset to make it exempt. The exemption can be rejected because you fraudulently…
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Bankruptcy Planning: Don’t do the following!

Posted on December 31, 2020 by solomonjeffrey

Bankruptcy Planning: What not to do As I take down my website, I thought I would post the following information I have had on my website for years. Still good advice. Thirty-Three DON’TS in preparing to file a Chapter 7 1.  Don’t leave out Bank, Checking, Savings, Brokerage, Credit Union accounts. 2.  Don’t keep a bank account where you owe money such as a credit card debt. 3.  Don’t use your credit cards. 4.  Don’t take Credit Card Cash Advances. 5.  Don’t use convenience checks. 6.  Don’t do balance transfers. 7.  Don’t pay money to family. 8.  Don’t pay money to friends. 9.  Don’t tell a creditor that you intend to pay. 10. Don’t leave assets off of your paperwork. 11. Don’t file bankruptcy if you are about to receive a tax refund or inheritance.  Discuss the timing with your attorney. 12. Don’t fail to tell your attorney about your…
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Student Loans

Posted on December 31, 2020 by solomonjeffrey

Student loan debt is larger than credit card debt. We usually consider issues of debt relief with respect to credit cards, medical bills, business debts, mortgages, and other similar debts. But a student loan debt is often the biggest debt that confronts individuals and their families. Unlike other debts, the student loan debt may appear to be unsolvable, but potential solutions are available. Bankruptcy and non-bankruptcy student loan remedies should be reviewed. Student loan debts usually cannot be discharged in chapter 7 bankruptcy. The burden of establishing “undue hardship” is extremely high. A lawsuit within a bankruptcy case called an adversary complaint must be filed to establish an undue hardship. There is also legal authority that can permit a partial discharge based on undue hardship to eliminate a portion of the student loan debt. These remedies are more likely to be successful as to private student loans then non-private student…
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