Blogs

Mortgage modification rules make it easier to combine a mortgage modification, including under HAMP  with a Chapter 13 Bankruptcy. Combining a HAMP mortgage modification may be beneficial to many homeowners.

The filing of a chapter 13 bankruptcy generally stays all foreclosure and collection actions by mortgage companies and other creditors. This allows a person to formulate a chapter 13 plan to reorganize their financial situation.

A typical homeowner who owes more on their home than it is valued at will propose a chapter 13 plan to avoid their second mortgage lien and categorize it with other unsecured claims, such as credit cards. The homeowner will also file a HAMP mortgage modification request if they haven't already file it. The chapter 13 plan will provide for payment of the estimated and anticipated HAMP modified mortgage payment. The chapter 13 plan provides also provides for a percentage dividend to unsecured creditors.

Filing for a HAMP modification together with a chapter 13 bankruptcy may increase the likelihood of obtaining a HAMP modification for various reasons, including the increased feasibility of making the new payment for the first mortgage, as the second mortgage is avoided and categorized as an unsecured creditor. Also, as the HAMP is being filed in the context of the chapter 13 case, it may receive more prompt review by the mortgage company.

A typical HAMP modified mortgage payment is calculated as 31% of the homeowner's gross income. The 31% amount would cover principal, interest, taxes, insurance and associations.(305) 891-4055 - Jordan E. Bublick is a Miami Bankruptcy Lawyer with over 25 years of experience in filing Chapter 13 and Chapter 7 Bankrkuptcy Cases and Mortgage Modifications

The immigration status of a property owner is a very important component of whether a property actually is entitled to a Florida homestead status. For example, homestead status was denied to property owned by

• Canadian tourists who were only in the U.S. temporarily  and did not have the legal right to have the requisite intent to reside permanently in Florida.  
• A Hungarian citizen who only held a multiple-entry business visa that barred him from remaining in the U.S. for more than 180 days at a time and was only granted permanent residency status on a conditional basis as his marriage to a U.S. citizen was for less than 2 years. 

In a recent case though, the Third District Court of Appeals in Florida allowed the property homestead status as it found that the property owner did meet the requirements of the homestead provision of the Florida Constitution finding that he intended to make the property his family's permanent residency as his son who was a U.S. citizen resided at the property, the property owner and his were did live at the property and were legally entitled to live temporarily in the U.S., and he and his wife were in the process of applying for permanent residency status.

The Court of reversed the lower court's ruling that denied the property homestead status which would have made the property subject to the claim of a creditor. The Court of Appeal explained that the Florida courts liberally construe the constitutional homestead exemption in the interest of the family home and in favor of "those it was designed to protect."   The Court also noted that the Florida Supreme Court does not even require a property owner to reside at the property for it to have homestead statuts, but that it was sufficient that the property owner's family resides at the property and that the property owner intended to make the property his family's permanent residence.

(305) 891-4055 - Jordan E. Bublick is a Miami Bankruptcy Lawyer with over 25 years of experience in filing Chapter 13 and Chapter 7 Bankrkuptcy Cases and Mortgage Modifications

Annuities issued to citizens or residents of Florida are generally exempt from the creditors of the beneficiary of the annuity. Florida Statute section 222.14 provides that "the proceeds of annuity contracts issued to citizens or residents of the state,  upon whatever form, shall not in any case be liable to attachment, garnishment         or legal process in favor of any creditor ... of the person who is the beneficiary of such annuity contract, unless the  ... annuity contract was effected for the benefit of such creditor.
Although the application of this exemption would seem to be straightforward, it has presented may questions to courts over the years, such as: 

• what constitutes an "annuity"
• what is a "beneficiary" 

A recent case dealt with the question of whether an ex-wife was a "beneficiary" of an annuity. Connor v. Seaside National Bank, 2014 WL 1245340 (5th DCA 2014). In this case the annuities were purchased by a former husband and were distributed to the ex-wife in the final judgment of the dissolution of marriage. During the process while the annuities were being transferred into the ex-wife's name, a creditor obtained a judgment against her and served a writ of garnishment on the annuity company. The ex-wife asserted that the the annuities were exempt under the provisions of section 222.14.  
The lower court held that the annuity contract were not exempt as the ex-wife was not yet the named annuitant and was not the "beneficiary" of the proceeds of the annuity contracts. The Court of Appeals revered this decision and held that the annuity contracts were exempt under section 222.14. 
The Court of Appeals explained that the term "beneficiary" is not defined in the statute and determined the meaning of the term "beneficiary" based on its ordinary meaning which is found to be a "party who will benefit from a transfer of property or other arrangement."  The Court found that the ex-wife was a "beneficiary" as she was entitled to payment of the proceeds of the annuities in accordance with the divorce judgment. (305) 891-4055 - Jordan E. Bublick is a Miami Bankruptcy Lawyer with over 25 years of experience in filing Chapter 13 and Chapter 7 Bankrkuptcy Cases and Mortgage Modifications

Everyone typically wants to know how long a bankruptcy case is going to take from start to finish. There is so much uncertainty about the process and about what a client must do to make it work. The transcript from the Video below outlines some of the keys points regarding timing. Please keep in mind+ Read MoreThe post What Happens Immediately After A Bankruptcy Case Is Filed? appeared first on David M. Siegel.