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Assignment of Mortgage Promissory Note 
It is generally the rule in Florida that the transfer of a mortgage note transfers with it the related mortgage. The mortgage note is regarded as the principal item with the mortgage being regarded as a mere accessory. 6 Fla. Jur. 2nd, Bills and Notes, Section 123. Hence the adage "the mortgage follows the note." . The Restatement (Third) of Property provides in Mortgages section 5.4(a) (1997) that "[a] transfer of an obligation secured by a mortgage also transfers the mortgage unless the parties to the transfer agree otherwise." Florida law is apparently in accordance with the Restatement. The stated objective of the Restatement is to avoid economic waste to the lender and a windfall to the borrower if the note and mortgage are split rendering the mortgage note as a practical matter unsecured. The Restatement cites the case of Carpenter v. Longan, 83 U.S. 271 (1827) which held that "[a]ll the authorities agree that the debt is the principal thing and the mortgage an accessory."
The Restatement's exception provides that a transfer of a mortgage note is possible without the transfer of the mortgage if the parties so agree, but the effect of such a transfer would be to make it impossible to foreclose the mortgage unless the transferor of the mortgage note is made the assignee's agent or trustee with authority to foreclose on the behalf of the assignee of the mortgage note.
Assignment of the Mortgage
The opposite situation is presented if a mortgage is transferred without the transfer of the mortgage note. The apparent rule in Florida is that an assignment of a mortgage without an assignment of the related mortgage note is deemed a nullity and creates no right in the assignee because a mortgage is a mere lien incidental to the obligation it secures. 37 Fla. Jur. 2nd, Mortgages, Section 511. See e.g., Sobel v. Mutual Development, Inc., 313 So.2d 77 (Fla. 1st DCA 1975). Vance v. Fields, 172 So.2d 613 (Fla. 1st DCA 1965).
Jordan E. Bublick - Miami Bankruptcy Lawyer - Kendall & Aventura Offices - (305) 891-4055 - www.bublicklaw.com
For many, bankruptcy is a confusing subject — and a daunting one. As with most issues involving the law, it can be hard to dig through all the legal jargon used. And when you’re feeling stressed about your finances, it can be even harder to understand the process.The post Understanding Bankruptcy: The Basic Concepts appeared first on Tucson Bankruptcy Attorney.
For many, bankruptcy is a confusing subject — and a daunting one. As with most issues involving the law, it can be hard to dig through all the legal jargon used. And when you’re feeling stressed about your finances, it can be even harder to understand the process.The post Understanding Bankruptcy: The Basic Concepts appeared first on Tucson Bankruptcy Attorney.
For many, bankruptcy is a confusing subject — and a daunting one. As with most issues involving the law, it can be hard to dig through all the legal jargon used. And when you’re feeling stressed about your finances, it can be even harder to understand the process.
The post Understanding Bankruptcy: The Basic Concepts appeared first on Tucson Bankruptcy Attorney.
The financial and housing crisis that began in 2008 led to a huge wave of foreclosures and foreclosure-related litigation. While foreclosure is rooted in state law, the initiation of a foreclosure proceeding by a lender often leads to federal bankruptcy proceedings initiated by a borrower, giving rise to interesting legal issues involving the interplay of state foreclosure law and federal bankruptcy law. Recently, the U.S. Court of Appeals for the Sixth Circuit (the "Sixth Circuit") considered the implications of a foreclosure on a residence following the borrowers' Chapter 7 bankruptcy proceeding.[1] Read More ›
Tags: 6th Circuit Court of Appeals, Chapter 7, Eastern District of Michigan
When you graduate from college you expect to find a job that will pay enough to allow you to take care of those student loan debts. For many, however, that dream fails to turn into reality.
Millions of people graduate each year, diploma in hand and stars in their eyes, only to find that their best employment option is in a field that doesn’t require a degree at all. Faced with a paycheck that barely covers gas for the car, the student loan bills quickly fall behind.
It’s no wonder – after all, most student loans companies don’t broadcast their payment options. That leaves borrowers and their families in the dark, feeling as if there are no options.
Here, then, are the first steps to take when you realize your salary won’t cover the student loan payments.
Get into an income-dependent repayment plan. Federal student loans give you the option of tailoring your payments to a portion of your disposable income. Income-based repayment and Pay As You Earn are very popular, and can even result in payments as low as $0 per month.
Look to the public sector. Jobs with the government or 501(c)(3) not-for-profit companies may not pay well, but if you snag one of these jobs you may be able to wipe out your federal student loans after making 120 timely payments through Public Service Loan Forgiveness. Combine this with one of those income-dependent repayment plans and you have a powerful student loan weapon.
Look at your benefits package. Some employers will actually pay all or part of your student loan debt after a period of time. This is more likely to be the case if you go to graduate school while working for a large employer, but companies like Starbucks have been rolling out programs like this for a greater number of their work force.
Recognize the risks of nonpayment. With the payment options available for federal student loans there’s a good chance you can afford to make the payments, but private student loans don’t come with such protections. For federal student loans, nonpayment can result in administrative wage garnishment and tax return offsets, among other things. Private student loans, if not paid, will likely result in a lawsuit against you.
Free up some cash. Look around you and see if there’s anything you can live without – if so, hit Craig’s List or hold a yard sale to collect some money to throw at the private student loan balance. If you’ve also got significant credit card debt, consider bankruptcy as a way to wipe the slate clean and free up more money to pay down the student loans. Desperate times call for desperate measures.
Act strategically. If you’re not able to pay the private student loans, you need to have a plan to put away a small amount of money each month to fund a settlement or legal defense. Your chances of settling the debt improve as the delinquency gets longer, but unless you’ve got money to hand over the lender isn’t going to approve a settlement at all. It helps to talk with a lawyer who focuses his or her practice on student loan resolution because this way you’ll get the facts about your situation.
Remain calm. Student loans can be impossible to manage, and your options aren’t always as good as you might hope. But a little knowledge goes a long way, and you can get on top of things if you approach the problem head-on.
On September 4, 2014, the United States Court of Appeals for the 11th Circuit Court of Appeals addressed the "party aggrieved" doctrine in the case of Benjamin Atkinson v. Ernie Haire Ford, Inc. (In Re: Ernie Ford, Inc.), 2014 WL 4358417.
Party Aggrieved Requirement
The Court explained that, as bankruptcy cases often involve numerous creditors who are dissatisfied with any compromise that jeopardizes the full payment of their outstanding claims against the bankrupt, that "special rules have been developed to govern which parties my appeal a bankruptcy court order. The Court reviewed that courts continue to apply this rule, which was codified in the 1898 Bankruptcy Act, that only a "person aggrieved" can appeal a bankruptcy court order.
Definition of a Party Aggrieved
The Court cited its previous holding in the case of In re Westwood Cmty. Two Ass'n v. Barbee (In re Westwood Cmty. Two Ass'n) 293 F.3d 1332 (11th Cir. 2002) which defined a party aggrieved as those individuals that are "directly, adversely, and pecuniarily, affect[ed]" by a bankruptcy court's order." This case further explained that "[a]n order will directly, adversely, and pecuniarily affect a person if that order diminishes their property, increases their burdens, or impairs their rights."
Bankruptcy Code Interests
The Court further held that it agreed with other circuit courts which have held that a person is not "aggrieved" when the interests harmed by the court order are "not the interests that the Bankruptcy Code seeks to protect or regulate." The Court cited another case which states that this doctrine was developed to limit appeals of bankruptcy court to avoid "endless appeals brought by the myriad of parties who are indirectly affected by every bankruptcy court order." It explained that the purpose of this doctrine was to ensure that the goals of bankruptcy are not derailed by a flood of appeals" by those parties "who do not suffer a direct harm to interests the Bankruptcy Code seeks to protect or regulate." It further stated that the allowance of appeals from parties who have suffered "only an indirect harm or who hold interests outside of the scope of the Bankruptcy Code would defeat the very purpose underlying our person aggrieved standard."
Further References
The Court in In re Randy L. Jones, Case 09-11551-MGW (Bankr. M.D. Florida 2013) (Williamson, J), applied the party aggrieved doctrine in a chapter 13 case to avoid the Chapter 13 trustee's objections to an attorney fee settlement as the unsecured creditors were being paid 100%.
A lengthy law review article published in 2010 on the party aggrieved doctrine is available entitled "Non-Pecuniary Interests and the Injudicious Limits of Appellate Standing in Bankruptcy" by S. Todd Brown.
Jordan E. Bublick - Miami Bankruptcy Lawyer - Kendall & Aventura Offices - (305) 891-4055 - www.bublicklaw.com
Ocwen Back-Dates Loan Mod letters–according to NY Attorney General. One of the scary thing about applying for loan mods is the short deadlines you have to get them stuff–often things you’ve sent them twice before. As a bankrutpcy lawyer, I’m often sent copies of those requests to send on to my clients–and sometimes the dates […]The post Ocwen Back-Dates Loan Mod Letters by Robert Weed appeared first on Robert Weed.
Avvo names Robert Weed a Top Contributor One of the ethical aspirations of lawyers is to help the public understand their rights. To help with that, Avvo provides a forum for lawyers to answer questions–not give legal advice–to members of the public. On November 1, Avvo named me one of the Top Contributors in Bankruptcy […]The post Avvo names Robert Weed a Top Contributor in Bankruptcy Law by Robert Weed appeared first on Robert Weed.
It is true that filing bankruptcy in some instances will allow you to regain your driver’s license. There are a few scenarios where this is definitely the case. The first of which is driving with no insurance. If you are caught driving with no insurance and your license is subsequently suspended, you can have that+ Read More
The post Reclaiming Your Driver’s License Through Bankruptcy Filing appeared first on David M. Siegel.
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