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In a chapter 7 or 13 bankruptcy case, a "creditors' meeting" is held three to seven weeks after the case is filed. The bankruptcy code requires this meeting to be held. Although called a "creditors' meeting," in most cases no creditors attend.
A chapter 7 creditors' meeting is usually presided over by the chapter 7 trustee and a chapter 13 creditors' meeting by the standing chapter 13 trustee. The debtor is required to attend to creditors' meeting unless there are special circumstances to excuse attendance.
At the creditors' meeting the person who filed for bankruptcy - the debtor - is placed under oath and the case and bankruptcy schedules that were file are reviewed.Jordan E. Bublick - Miami Bankruptcy Lawyer - Kendall & Aventura Offices - (305) 891-4055 - www.bublicklaw.com
In a much awaited decision, the United States Supreme Court ruled in favor of Bank of America and held that "underwater" mortgages are not avoidable in a chapter 7 liquidation case. Noteably, the ruling did not involve a chapter 13 situation.
This ruling reversed the decision of the 11th Circuit Court of Appeals located in Atlanta, which covers an area in the southeastern United States. Since many other Courts in other parts of the United States already held that "underwater" mortgages are not avoidable in chapter 7 cases for many years, this new decision does not change the practice in many parts of the country.
Underwater Mortgage
A mortgage is called "underwater" in a situation where the balance due on the first priority mortgage exceeds the value of the property. For example, if $150,000 is owed on the first mortgage and $50,000 is owed on the second mortgage, the second mortgage would be wholly "underwater" if the value of the home is $150,000 or less.
Lien Stripping in Chapter 13
It should be noted though that the Supreme Court's decision was not directed at the avoidability ie. "lien stripping" of wholly underwater second or other junior mortgages or liens in a chapter 13 plan of reorganization.
Chapter 13 Plan
A chapter 13 case is often used to save a home from foreclosure. A typical plan would avoid or "lien strip" a second mortgage and provide for the first priority mortgage with a modification or reinstatement of the arrearages.Jordan E. Bublick - Miami Bankruptcy Lawyer - Kendall & Aventura Offices - (305) 891-4055 - www.bublicklaw.com
In a much awaited decision, the United States Supreme Court ruled in favor of Bank of America and held that "underwater" mortgages are not avoidable in a chapter 7 liquidation case. Noteably, the ruling did not involve a chapter 13 situation.
This ruling reversed the decision of the 11th Circuit Court of Appeals located in Atlanta, which covers an area in the southeastern United States. Since many other Courts in other parts of the United States already held that "underwater" mortgages are not avoidable in chapter 7 cases for many years, this new decision does not change the practice in many parts of the country.
Underwater Mortgage
A mortgage is called "underwater" in a situation where the balance due on the first priority mortgage exceeds the value of the property. For example, if $150,000 is owed on the first mortgage and $50,000 is owed on the second mortgage, the second mortgage would be wholly "underwater" if the value of the home is $150,000 or less.
Lien Stripping in Chapter 13
It should be noted though that the Supreme Court's decision was not directed at the avoidability ie. "lien stripping" of wholly underwater second or other junior mortgages or liens in a chapter 13 plan of reorganization.
Chapter 13 Plan
A chapter 13 case is often used to save a home from foreclosure. A typical plan would avoid or "lien strip" a second mortgage and provide for the first priority mortgage with a modification or reinstatement of the arrearages.Jordan E. Bublick - Miami Bankruptcy Lawyer - Kendall & Aventura Offices - (305) 891-4055 - www.bublicklaw.com
The filing of a chapter 13 bankruptcy case puts a stop to most foreclosure actions and gives a homeowner the opportunity to pursue a mortgage modification under the Bankruptcy Court's Mortgage Modification Mediation program ("MMM") . In addition, often second mortgages are avoidable in a chapter 13 plan
Mortgage Modification Mediation
Within the chapter 13 case, a property owners may make use of the Bankruptcy Court's new Mortgage Modification Mediation (MMM).
This program is innovative in certain respects. Under this program, a Bankruptcy Court appoints a meditor to help the parties reach an agreement to modify the mortgage. A mediator is able to help the homeowner and mortgage company communicate and reach an agreement for modification.
This program also involves the use of an internet "portal" which allows the homeowner to upload all the documents needed for the mortgage company to consider for a modification. Through this portal the homeowner and mortgage company are also able to communicate.
Avoiding of Under Water Mortgages and Association Liens
If a second mortgage is "under water," the involved lien may be avoidable. To be avoidable as to residential property, there must not be any equity in the property to support the mortgage lien. That is, more is owed on the first mortgage than the value of the property. Association liens, including condominium association liens, may also be avoidable in whole or in part, to the extent that they are "under water."Jordan E. Bublick - Miami Bankruptcy Lawyer - Kendall & Aventura Offices - (305) 891-4055 - www.bublicklaw.com
The filing of a chapter 13 bankruptcy case puts a stop to most foreclosure actions and gives a homeowner the opportunity to pursue a mortgage modification under the Bankruptcy Court's Mortgage Modification Mediation program ("MMM") . In addition, often second mortgages are avoidable in a chapter 13 plan
Mortgage Modification Mediation
Within the chapter 13 case, a property owners may make use of the Bankruptcy Court's new Mortgage Modification Mediation (MMM).
This program is innovative in certain respects. Under this program, a Bankruptcy Court appoints a meditor to help the parties reach an agreement to modify the mortgage. A mediator is able to help the homeowner and mortgage company communicate and reach an agreement for modification.
This program also involves the use of an internet "portal" which allows the homeowner to upload all the documents needed for the mortgage company to consider for a modification. Through this portal the homeowner and mortgage company are also able to communicate.
Avoiding of Under Water Mortgages and Association Liens
If a second mortgage is "under water," the involved lien may be avoidable. To be avoidable as to residential property, there must not be any equity in the property to support the mortgage lien. That is, more is owed on the first mortgage than the value of the property. Association liens, including condominium association liens, may also be avoidable in whole or in part, to the extent that they are "under water."Jordan E. Bublick - Miami Bankruptcy Lawyer - Kendall & Aventura Offices - (305) 891-4055 - www.bublicklaw.com
In a Totten trust bank account a person deposits his money into an account in his own name as trustee for another. A Totten trust account is also known as a "payable upon death" account. The Totten trust doctrine has been accepted in Florida.
A Totten trust account is a tentative trust that is revocable at will until the depositor completes the gift during his lifetime by some unequivocal act or declaration or subsequently dies. The depositor is still regarded as the owner as he retains complete control over the funds during his lifetime.
Totten trusts may be revoked. There are no specific formalities required to evidence the revocation of a Totten trust. Any decisive act or declaration of disaffirmance during the lifetime of the owner will generally suffice.
Jordan E. Bublick - Miami Bankruptcy Lawyer - Kendall & Aventura Offices - (305) 891-4055 - www.bublicklaw.com
Real Property
Homestead - unlimited in value, l/2 acre in municipality, 160 acres outside municipality, Art. X, Section 4, Florida Constitution
Personal Property
Generally - to extent of $1,000, Art. X, Section 4, Florida Constitution and a further $4,000 in certain circumstances
Motor Vehicles - to extent of $1,000
Property Held as Tenants by Entireties for debts of only one spouse
Health Aides Professionally Prescribed
Earnings of Head of Family
Proceeds of Life Insurance on Florida Resident
Cash Surrender Value of Life Insurance on Life of Florida Resident
Annuity Contracts
Disability Income Benefits
Workers' Compensation Benefits
Qualified Tuition Programs, Prepaid College Trust Funds
Health or Medical Savings Accounts
Educational IRA
Jordan E. Bublick - Miami Bankruptcy Lawyer - Kendall & Aventura Offices - (305) 891-4055 - www.bublicklaw.com
Real Property
Homestead - unlimited in value, l/2 acre in municipality, 160 acres outside municipality, Art. X, Section 4, Florida Constitution
Personal Property
Generally - to extent of $1,000, Art. X, Section 4, Florida Constitution and a further $4,000 in certain circumstances
Motor Vehicles - to extent of $1,000
Property Held as Tenants by Entireties for debts of only one spouse
Health Aides Professionally Prescribed
Earnings of Head of Family
Proceeds of Life Insurance on Florida Resident
Cash Surrender Value of Life Insurance on Life of Florida Resident
Annuity Contracts
Disability Income Benefits
Workers' Compensation Benefits
Qualified Tuition Programs, Prepaid College Trust Funds
Health or Medical Savings Accounts
Educational IRA
Jordan E. Bublick - Miami Bankruptcy Lawyer - Kendall & Aventura Offices - (305) 891-4055 - www.bublicklaw.com
Real Property
Homestead - unlimited in value, l/2 acre in municipality, 160 acres outside municipality, Art. X, Section 4, Florida Constitution
Personal Property
Generally - to extent of $1,000, Art. X, Section 4, Florida Constitution and a further $4,000 in certain circumstances
Motor Vehicles - to extent of $1,000
Property Held as Tenants by Entireties for debts of only one spouse
Health Aides Professionally Prescribed
Earnings of Head of Family
Proceeds of Life Insurance on Florida Resident
Cash Surrender Value of Life Insurance on Life of Florida Resident
Annuity Contracts
Disability Income Benefits
Workers' Compensation Benefits
Qualified Tuition Programs, Prepaid College Trust Funds
Health or Medical Savings Accounts
Educational IRA
Jordan E. Bublick - Miami Bankruptcy Lawyer - Kendall & Aventura Offices - (305) 891-4055 - www.bublicklaw.com
Bankruptcy Lawyer - Chapter 13 Bankruptcy Lawyer Jordan E. Bublick has an office in Miami and has over 25 years of experience in filing chapter 13 and chapter 7 bankruptcy cases. His office is located in Miami at 1221 Brickell Ave., 9th Fl., Miami and may be reached at (305) 891-4055. www.bublicklaw.com
Florida statute §222.14 provides that the proceeds of annuity contracts issued to citizens or residents of Florida are exempt from a beneficiary’s creditors unless the annuity was effectuated for the benefit of the creditor. §222.14, Florida Statutes. In the case of Mc Collam v. LeCroy, 612 So. 2d 572 (1993), the Florida Supreme Court held that an annuity contract awarded to the debtor by a defendant to fund a structured settlement of a personal injury case was exempt. The creditor argued that the annuity contract did not qualify as an exempt annuity contract as being in substance a nonexempt structured settlement. The court noted that the statute does not define “annuity contracts” and hence it did not find the exemption limited to any particular types of annuity contracts, such as those based on the insurance of human lives.
The court in In re Dillon, 166 B.R. 766 (Bankr. S.D. Fla. 1994) illustrated the distinction between an exempt annuity contract purchased to fund a structured settlement and a mere structured settlement. In Dillon the judgment creditor agreed to make annual payments and did not purchase an annuity contract to effectuate the annual payments. The court held that the annual payments were not exempt proceeds of an “annuity contract” pursuant to §222.14, Florida Statutes.Jordan E. Bublick - Miami Bankruptcy Lawyer - Kendall & Aventura Offices - (305) 891-4055 - www.bublicklaw.com
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