Blogs
.jpg "mortgage modification chapter 13")
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.Jordan E. Bublick is a Miami Bankruptcy Lawyer with over 25 years of experience in filing Chapter 13 and Chapter 7 Bankruptcy Cases and Mortgage Modifications (305) 891-4055
.jpg "Florida Homestead Status and Immigrant Status Permanent Residence")
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
Atty. Jordan E. Bublick - 1221 Brickell Ave., 9th Fl., Miami, Florida
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.
Jordan E. Bublick is a Miami Bankruptcy Lawyer with over 25 years of experience in filing Chapter 13 and Chapter 7 Bankruptcy Cases and Mortgage Modifications (305) 891-4055
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
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.
Some questions in the application of this statute arise, such as what t constitutes an "annuity" and what is a "beneficiary".
A recent case dealt with a situation where annuities were awarded to the ex-wife as part of a final judgment of divorce. Connor v. Seaside National Bank, 2014 WL 1245340 (5th DCA 2014). The question presented was whether the ex-wife was a "beneficiary" of the annuity contract and therefore exempt. While the annuities were in the process of being transferred to her, one of her creditors served a writ of garnishment on the annuity company. The Florida Court of Appeals found that the annuities were exempt under section 222.14 as it found her to be the "beneficiaries" of the annuity contracts even though they were still in the process of being transferred into her name. The Court noted that the statute did not define the term "beneficiary" and therefore looked to the term's ordinary meaning, which it 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. Jordan E. Bublick is a Miami Bankruptcy Lawyer with over 25 years of experience in filing Chapter 13 and Chapter 7 Bankruptcy Cases and Mortgage Modifications (305) 891-4055
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.
Right now, filing bankruptcy does little to alleviate the burden of Student Loan debt, aside for temporarily deferring monthly payment requirements. Student loan debt is preventing young people from buying homes because they cannot afford to make student loan payments and mortgage payments.
Here is some potential relief to those who now owe student loans with a high rate of interest:
U.S. Senator Dick Durbin (D-IL) joined U.S. Senators Elizabeth Warren (D-MA) and U.S. Senator Jack Reed (D-RI) today introducing the Bank on Students Emergency Loan Refinancing Act, which would allow those with outstanding student loan debt to refinance at the lower interest rates currently offered to new borrowers. Durbin, Warren, and Reed have been working together on efforts to build broad support in the Senate for legislative action to reduce new student loan debt and make it easier for millions of working families to manage the student loan debt they already have.
Many borrowers with outstanding student loans have interest rates of nearly 7 percent or higher for under U.S. Senator Dick Durbin (D-IL) joined U.S. Senators Elizabeth Warren (D-MA) and U.S. Senator Jack Reed (D-RI) today introducing the Bank on Students Emergency Loan Refinancing Act, which would allow those with outstanding student loan debt to refinance at the lower interest rates currently offered to new borrowers. Durbin, Warren, and Reed have been working together on efforts to build broad support in the Senate for legislative action to reduce new student loan debt and make it easier for millions of working families to manage the student loan debt they already have.
For the rest of the article, please click:
If you are interested in lowering student loan interest rate, please contact your Senator as this looks like a good bill that should become law.
Attorney Ken Jorgensen is located in Clovis, California. He handles personal, property and business disputes, including bankruptcy and eviction cases in California. You can find out more about Ken on Facebook, or at his websites, www.fresnolawgroup.com and www.fresnobankruptcylawgroup.com. He can be reached at [email protected] or by telephone at 1-559-324-1882.
Photo Credit: donkeyhotey at Flickr
(305) 891-4055 - 25 Years of Experience, Over 8,000 Cases Filed - Free Initial Consultation - Miami Bankruptcy Lawyer Jordan E. Bublick - 1221 Brickell Ave., Miami, Florida - Chapter 13 and 7 Bankruptcy - www.bublicklaw.com
In December, 2007, Congress passed the "Mortgage Forgiveness Debt Relief Act of 2007" to alleviate tax consequence for some homeowners in foreclosure. This act was scheduled to expire on December 31, 2012, but was subsequently extended for another year. This Act excludes from taxable gross income certain cancelled discharged debt that may otherwise arise with respect to a "qualified principal residence indebtedness."
Existing tax law provides that discharged debt, whether after a foreclosure or short sale, is generally taxable income realized in the year the debt was forgiven, unless an exception applies. Generally only reductions in principal and not forgiveness of interest results in discharge of indebtedness income ("DOI"). Usually a lender is required to issue a Form 1099-C to report the DOI to the IRS. Taxpayers are required to disclose DOI to the IRS whether the lender issues a 1099-C or not. Taxpayers may be able to exclude the DOI from income if an exceptions to DOI applies.
Exceptions
Two existing exceptions to DOI are the insolvency and bankruptcy exceptions. 26 U.S.C. section 108(d). If the borrower is insolvent, DOI is not taxable. If the debt is discharged in bankruptcy, DOI is also not taxable. Another exception is the "purchase price infirmity doctrine". This allows DOI to be excluded from income where the lender agrees to write down the purchase money debt to the true value of the collateral as the purchase price was inflated in the original transaction due to fraud or misrepresentation. Another exception from DOI is when the liability was contested. Pursuant to Zarin v. Comm'r, 916 F.2d 110 (3d Cir.1990), DOI is not income where there is a legitimate basis for the borrower to claim that the debt was never owed or collectible because illegal.
The new Act adds to the existing exceptions from DOI a category of "qualified principal residence indebtedness." Up to $2 million of indebtedness may be excluded if the reason for the discharge is either a decline in the residence's value or the taxpayer's financial condition. It should be noted that debt excluded by the Act reduces the taxpayer's basis and a "short sale" could result in a taxable "gain" which may be taxable as a capital gains.
In order for this new exception to apply, the debt must be "qualified" which includes only acquisition and not home equity indebtedness. Acquisition indebtedness includes funds borrowed to buy, construct, or improve a home. Debt consolidation loans or cash out loans are generally not acquisition indebtedness. The Act only applies to debt discharged between January 1, 2007 and December 31, 2009. Pub.L.No. 110-142 Section 2(d). If acquisition debt is refinance, the refinanced principal amount retains its status as acquisition indebtedness. The excess of the total refinanced loan amount over the refinanced acquisition indebtedness is treated as home equity indebtedness and is not eligible for exclusion from income. Acquisition indebtedness included loans to "substantially improve" the principal residence.
This new exclusion only applies if the debt was discharged due to the borrower's financial condition or a decline in the home's value. A discharged based on the lender's acknowledgment of its wrongdoing or even rescission is not eligible for the qualified principal residence exclusion. Documentationj in any litigation or settlement that one of the required grounds is the basis for the discharge of the debt would be helpful.
The homeowner must apparently elect to take either the qualified principal residental exception or the insolvency exception. The insolvency exception, if elected, is "in lieu of" the qualified principal residence excetion.Jordan E. Bublick is a Miami Bankruptcy Lawyer with over 25 years of experience in filing Chapter 13 and Chapter 7 Bankruptcy Cases and Mortgage Modifications (305) 891-4055
If you are struggling financially, please know that help is available. You do not have to go through another spring and another summer with financial problems. Have you looked into filing bankruptcy? Have you looked into reorganizing under chapter 13? Have you explored all of your options to get out of this debt? If not,+ Read MoreThe post When Debt Has Got You Down…..Consider This! appeared first on David M. Siegel.
In the recent case of Guillermo A. Morales, Case No. 07-16284-BKC-RBR, (Bankr.S.D.Fla. January 2, 2008)(Ray, J.) the Bankruptcy Court was given the opportunity to interpret new section 222.25(4), Florida Statutes which allows a debtor to exempt personal property not to exceed $4,000 if he does not "claim or receive the benefits of a homestead exemption under s. 4, Art. X of the State Constitution." Based on the particular facts of the case, the Court held that the debtor had not proven that he had not received the "benefits" of the homestead exemption and the trustee's objection to the debtor's exemption under section 222.25(4), Florida Statutes was sustained. But the court did state that if a debtor properly abandons his entire interest in his homestead at the start of a case or and does not claim his homestead exemption or does so by proper subsequent schedule amendments, then he would be able to claim the $4,000 section 222.25(4) personal property exemption.
F.jpg "Exemption of Florida Personal Property from Seizure or Levy")
In his chapter 7 schedules, the debtor listed one piece of real property with two mortgages. He did not claim the real property as exempt in his schedule C. In his original statement of intentions, the debtor set forth his intentions to reaffirm the two mortgages. Later he filed an amended statement of intentions where he indicated that his intentions were to surrender the real property to one of the mortgagees and reaffirm [sic] the other mortgage. The debtor claimed the use the $4000 personal property exemption under section 222.25(4), Florida Statutes (2007) and the trustee filed an objection to this claim of exemption.
The issue before the court was the meaning of section 222.25(4)'s phrase "receive the benefits of a homestead exemption." The trustee argued that the debtor was not eligible for the section 222.25(4) exemption as by owning a homestead, the debtor receives the benefit of the homestead exemption whether or not he makes use of it. The debtor contended that he had abandoned his interest in the real property, had not claimed it as exempt in his schedule C, and was not receiving any "benefits" of a homestead exemption.
The court looked to the language of the statute and found that it was written in the present tense. The court stated that the fact that a "debtor may have claimed or received the benefits of a homestead exemption in the past would appear to have no bearing on the application of the statute to a debtor's present situation." The court reasoned that even if a debtor had in the past received the benefits of the homestead exemption, he would qualify for the $4,000 section 222.25(4) personal property exemption if he does not claim it [the real property] as exempt and ceases to receive the benefits of a homestead exemption.
The court noted that in this case, that although debtor did not claim the homestead exemption, it was not clear whether he had derived any "benefits" from the exemption. The debtor argued that his amended statement of intentions to surrender the real property constituted an "abandonment" of the real property and that he was no longer receiving any "benefit" of the homestead exemption.
The court stated that the debtor was correct in his statement that under Florida law, abandonment of a homestead is one way that the protection of the homestead exemption may be lost. However, the court concluded that the debtor had failed to clearly indicate his intention with respect to the real property and that the court could not conclude that he had abandoned his homestead. The court noted that at the beginning of the case, the debtor had filed a statement of intentions indicating his intention to reaffirm the mortgages and retain the real property. The debtor only later changed his mind. The court also found "incompatible" with an abandonment the debtor's stated intention in his amended statement of intentions to surrender the real property to only one of the two mortgage holders and reaffirm the debt owed to the other mortgage holder.
Although the court failed to find an abandonment of the homestead in this case which led to the court's denial of the debtor's claim of exemption under section 222.25(4), the court stated that if a debtor "properly abandons his entire interest in his homestead at the start of a case and does not claim his homestead exemption" then he would be able to claim the $4,000 section 222.25(4) personal property exemption. The court even left open the possibility of a subsequent amendment of the debtor's schedules to indicate an abandonment of all interest in his homestead and to claim the $4,000 section 222.25(4) personal property exemptions.
In this case, the court found that the debtor failed to clearly indicate his intentions with respect to the real property and was denied use of the section 222.25(4) exemptions. Since the rendering of the court's decision, the debtor filed an amended statement of intentions setting forth a surrender to both mortgagees and has moved the court for a rehearing. In his motion for rehearing, the debtor refers to this amended statement of intention and points out that he did not oppose the motion for stay relief filed by one of the mortgagees.(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
Updated daily, this blog will keep you informed on the latest bankruptcy news! 
Learn more about how Bankruptcy works and what you need to know.