Tag Archives: McNeal

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….
Read More »

Posted in Bankruptcy Cases and Laws, Bankruptcy News | Tagged | Leave a comment

Florida Chapter 7 Lien Strip Alive and Well (For now)

I attended the November 8 Bankruptcy View from the Bench Seminar.  All of the bankruptcy judges from the Southern District of Florida attended as well as a few other judges from elsewhere in Florida.  They provided their annual update and comments on important court cases during the past year. One of the issues discussed was the pending litigation in the GMAC v McNeal case on the stripping off of a wholly unsecured second mortgage in Chapter 7.   Bottom line, the current status of McNeal  provides binding authority for Florida bankruptcies that would permit the elimination of entirely unsecured second mortgages in Chapter 7, but this binding authority might not last long.  Now may be the only time to strip off second mortgages in chapter 7.  If you want to get confused, keep reading the next paragraph. The 11th Circuit Court of Appeals decision was previously unpublished, non-binding,  but became published so is…
Read More »

Posted in Bankruptcy Cases and Laws, Bankruptcy News, Personal Announcements | Tagged | Leave a comment

McNeal update: Stripping 2nd mortgage in Chapter 7

I have written previous posts on the McNeal case.  On January 18, 2013,  Judge Cristol sitting in the Miami bankruptcy division granted a motion to strip a second mortgage in a chapter 7 in a contested case.  This is apparently the first motion granted in the Southern District of Florida including Fort Lauderdale bankruptcies where the mortage holder filed and briefed an objection to the motion to value.  In re Bertan, 2013 Bankr Lexis 216(Bankr. S. D.  FL  2013)(Case No 11-27057).

Posted in Bankruptcy Cases and Laws, Chapter 13 | Tagged | 1 Comment