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A 2013 Florida case dealt with the issue of whether a mortgage remained enforceable after a the dismissal of a foreclosure case and more than five years has passed from the date of the first default in mortgage payments. The homeowner argued that the five year Florida statute of limitations applied to render the mortgage no longer enforceable.
In agreement with a number of recent decisions, the District Court in the case of Kaan v. Wells Fargo Bank, N.A., 2013 WL 5944075 (S.D. Fla. 2013) held that after the dismissal of a foreclosure case, with or without prejudice, a mortgage remains a valid and enforceable lien on the property and a lender is not barred from filing a second foreclosure action if the second foreclosure action is based on payment defaults different from and subsequent to those that formed the basis for the first foreclosure case. As have other courts recently, the Court based its ruling on the Florida Supreme Court's decision in Singleton v. Greymar Assoc., 882 So. 2d 1004 (Fla. 2004).
Quiet Title Action DismissedThe Court dismissed the homeowner's "quiet title" action in which he sought to obtain a court order determining that the mortgage was no longer enforceable after the dismissal of the foreclosure case as more than the fiver year period had passed. The Court dismissed the homeowner's quiet title action pursuant to Fed. R. Civ. Pro. 12(b)(6), holding that as a "matter of law," the homeowner could not state a claim based on plausible facts "actual, apparent, or potential", that his title to the land was at issue or show that a cloud on the title to his home existed as despite the dismissal of the foreclosure case and the passage of five years since his first default in payment, the mortgage note remained valid and the mortgage remained a valid and enforceable lien against the property.
Jordan E. Bublick - Miami Bankruptcy Lawyer - Kendall & Aventura Offices - (305) 891-4055 - www.bublicklaw.com
A 2013 Florida case dealt with the issue of whether a mortgage remained enforceable after a the dismissal of a foreclosure case and more than five years has passed from the date of the first default in mortgage payments. The homeowner argued that the five year Florida statute of limitations applied to render the mortgage no longer enforceable.
In agreement with a number of recent decisions, the District Court in the case of Kaan v. Wells Fargo Bank, N.A., 2013 WL 5944075 (S.D. Fla. 2013) held that after the dismissal of a foreclosure case, with or without prejudice, a mortgage remains a valid and enforceable lien on the property and a lender is not barred from filing a second foreclosure action if the second foreclosure action is based on payment defaults different from and subsequent to those that formed the basis for the first foreclosure case. As have other courts recently, the Court based its ruling on the Florida Supreme Court's decision in Singleton v. Greymar Assoc., 882 So. 2d 1004 (Fla. 2004).
Quiet Title Action DismissedThe Court dismissed the homeowner's "quiet title" action in which he sought to obtain a court order determining that the mortgage was no longer enforceable after the dismissal of the foreclosure case as more than the fiver year period had passed. The Court dismissed the homeowner's quiet title action pursuant to Fed. R. Civ. Pro. 12(b)(6), holding that as a "matter of law," the homeowner could not state a claim based on plausible facts "actual, apparent, or potential", that his title to the land was at issue or show that a cloud on the title to his home existed as despite the dismissal of the foreclosure case and the passage of five years since his first default in payment, the mortgage note remained valid and the mortgage remained a valid and enforceable lien against the property.
Jordan E. Bublick - Miami Bankruptcy Lawyer - Kendall & Aventura Offices - (305) 891-4055 - www.bublicklaw.com
A 2013 Florida case dealt with the issue of whether a mortgage remained enforceable after a the dismissal of a foreclosure case and more than five years has passed from the date of the first default in mortgage payments. The homeowner argued that the five year Florida statute of limitations applied to render the mortgage no longer enforceable.
In agreement with a number of recent decisions, the District Court in the case of Kaan v. Wells Fargo Bank, N.A., 2013 WL 5944075 (S.D. Fla. 2013) held that after the dismissal of a foreclosure case, with or without prejudice, a mortgage remains a valid and enforceable lien on the property and a lender is not barred from filing a second foreclosure action if the second foreclosure action is based on payment defaults different from and subsequent to those that formed the basis for the first foreclosure case. As have other courts recently, the Court based its ruling on the Florida Supreme Court's decision in Singleton v. Greymar Assoc., 882 So. 2d 1004 (Fla. 2004).
Quiet Title Action DismissedThe Court dismissed the homeowner's "quiet title" action in which he sought to obtain a court order determining that the mortgage was no longer enforceable after the dismissal of the foreclosure case as more than the fiver year period had passed. The Court dismissed the homeowner's quiet title action pursuant to Fed. R. Civ. Pro. 12(b)(6), holding that as a "matter of law," the homeowner could not state a claim based on plausible facts "actual, apparent, or potential", that his title to the land was at issue or show that a cloud on the title to his home existed as despite the dismissal of the foreclosure case and the passage of five years since his first default in payment, the mortgage note remained valid and the mortgage remained a valid and enforceable lien against the property.
Jordan E. Bublick - Miami Bankruptcy Lawyer - North Miami & Kendall Offices - (305) 891-4055 - www.bublicklaw.com
A 2013 Florida case dealt with the issue of whether a mortgage remained enforceable after a the dismissal of a foreclosure case and more than five years has passed from the date of the first default in mortgage payments. The homeowner argued that the five year Florida statute of limitations applied to render the mortgage no longer enforceable.
In agreement with a number of recent decisions, the District Court in the case of Kaan v. Wells Fargo Bank, N.A., 2013 WL 5944075 (S.D. Fla. 2013) held that after the dismissal of a foreclosure case, with or without prejudice, a mortgage remains a valid and enforceable lien on the property and a lender is not barred from filing a second foreclosure action if the second foreclosure action is based on payment defaults different from and subsequent to those that formed the basis for the first foreclosure case. As have other courts recently, the Court based its ruling on the Florida Supreme Court's decision in Singleton v. Greymar Assoc., 882 So. 2d 1004 (Fla. 2004).
Quiet Title Action DismissedThe Court dismissed the homeowner's "quiet title" action in which he sought to obtain a court order determining that the mortgage was no longer enforceable after the dismissal of the foreclosure case as more than the fiver year period had passed. The Court dismissed the homeowner's quiet title action pursuant to Fed. R. Civ. Pro. 12(b)(6), holding that as a "matter of law," the homeowner could not state a claim based on plausible facts "actual, apparent, or potential", that his title to the land was at issue or show that a cloud on the title to his home existed as despite the dismissal of the foreclosure case and the passage of five years since his first default in payment, the mortgage note remained valid and the mortgage remained a valid and enforceable lien against the property.
Jordan E. Bublick - Miami Bankruptcy Lawyer - North Miami & Kendall Offices - (305) 891-4055 - www.bublicklaw.com
According to the Consumer Financial Protection Bureau (CFPB) “Discover created student debt stress for borrowers by inflating their bills and misleading them about important benefits,” said CFPB Director Richard Cordray. “Illegal servicing and debt collection practices add insult to injury for borrowers struggling to pay back their loans. Today’s action is an important step in the Bureau’s work to clean up the student loan servicing market.”
Discover Bank is an Illinois-based depository institution. Its student loan affiliates – The Student Loan Corporation and Discover Products, Inc. – are also charged in today’s action. Beginning in 2010, Discover expanded its private student loan portfolio by acquiring more than 800,000 accounts from Citibank. As a loan servicer, Discover is responsible for providing basic services to borrowers, including accurate periodic account statements, supplying year-end tax information, and contacting borrowers regarding overdue amounts.
- • Overstated the minimum amount due in billing statements.
- Misrepresented on its website the amount of student loan interest paid.
- Illegally called consumers early in the morning and late at night, often excessively.
- Engaged in illegal debt collection tactics by failure to comply with the consumer notices required by federal law.
The post Discover Bank to Pay $18.5 M for Illegal Student Loan Servicing Practices appeared first on Diane L. Drain - Phoenix Bankruptcy & Foreclosure Attorney.
I hate it when companies do illegal stuff to my customers. I’m a personal bankruptcy lawyer. I love being a bankruptcy lawyer, because I can help almost everyone I see. I love being able to help people get back on their feet. And I hate it, when companies do illegal stuff to my customers. (And people in financial trouble are […]The post Why FCRA and FDCPA Cases in the General District Court by Robert Weed appeared first on Robert Weed.
Chicago bankruptcy attorney David M. Siegel answers a few important questions pertaining to Chapter 7 bankruptcy. The questions were made a part of the Legal Action television show which airs in the Chicago market. Whats a Chapter 7 Bankruptcy? Interviewer: What’s a Chapter 7? David Siegel: Chapter 7 is the most common form of bankruptcy. About 75+ Read More
The post Chapter 7 Bankruptcy Answers appeared first on David M. Siegel.
In a recent bankruptcy decision, Bank of America v. Caulkett, the Supreme Court denied a chapter 7 debtor's attempt to strip away or discharge an unsecured second mortgage in a chapter 7 bankruptcy filing.
The debtor, Mr. Caulkett, owned a house in Florida. The house was subject to a first mortgage in the amount of $183,264, the house had a fair market value of $98,000 and was subject to a second mortgage in the amount of $47,855, that was held by the Bank of America.
Mr. Caulkett's position was that since the Bank of America second mortgage was "underwater", or totally unsecured, the second mortgage should be stripped away or discharged in the chapter 7 bankruptcy filing like a credit card debt.
The Supreme Court, relying on an earlier decision known as Dewsnup denied the Debtor's claim stating that the outcome in Caulkett was controlled by Dewsnup . Although in a footnote by Justice Thomas, Justice Thomas noted that from its inception Dewsnup has been the target of criticism. Additionally during oral argument one of the Justices asked the Debtor if they were seeking to overturn Dewsnup and counsel for the debtor said no. In the future a debtor may seek to have Dewsnup overturned based on this footnote.
Notwithstanding the Caulkett decision which involved a chapter 7 bankruptcy case, a debtor may still be able to strip off or discharge an unsecured second mortgage or home equity loan in a chapter 13 bankruptcy case. Homeowners whose houses are underwater and subject to a second mortgage, may want to seek a consultation to determine their options with Jim Shenwick.
Sixth Circuit Affirms Bankruptcy Court Order Allowing Amended Exemptions Following Re-Opening of Case
In a Chapter 7 bankruptcy case, a debtor is required to file a schedule listing all of the debtor’s property. This includes cash, hard assets such as furniture and cars, as well as intangibles such as causes of action or potential causes of action. The Bankruptcy Code allows debtors to “exempt” certain types of property from the estate, enabling them to retain exempted assets post-bankruptcy.
In a recent opinion, the U.S. Court of Appeals for the Sixth Circuit analyzed the limits of a bankruptcy court’s authority to disallow claimed exemptions. Read More ›
Tags: 6th Circuit Court of Appeals, Chapter 13, Chapter 7
MacKenzie v. Neidorf (IN RE NEIDORF; 9TH CIR. BAP)
Chapter 7 debtor Carrie Margaret Neidorf (Debtor)scheduled her real property (Residence) as an asset of her estate. There was no equity in the property. Postpetition, the lender obtained an unopposed relief from stay order and foreclosed on the property. Years after the foreclosure, but while her bankruptcy case was still open, Debtor received a postpetition payment in the amount of $31,250 (Foreclosure Payment). The payment was made to Debtor pursuant to a national settlement between banking regulators and certain financial institutions, including Bank of America (B of A). Debtor disclosed her receipt of the Foreclosure Payment to Robert A. MacKenzie, the chapter 7 trustee (Trustee). Trustee then filed a Motion to Compel Debtor to Turnover Estate Property (Turnover Motion), asserting that the Foreclosure Payment was property of the estate under § 541(a)(7). The bankruptcy court denied his motion, and this appeal followed. For the reasons discussed below, we AFFIRM.
The result is that, in the Ninth Circuit, the debtor is able to keep funds that become available after the bankruptcy is filed. This is a great result for individuals. My congratulations to Ms. Neidorf’s attorney Kenneth Neeley.
The post Debtor in Bankruptcy Keeps Post-Petition Mortgage Settlement Funds appeared first on Diane L. Drain - Phoenix Bankruptcy & Foreclosure Attorney.
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