Category Archives: Bankruptcy Cases and Laws

Beware Home Office Income Tax Deduction

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

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

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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