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Chapter 13 is widely used to stop a home mortgage foreclosure and propose a Chapter 13 plan to reinstate one's home mortgage. This involves catching one's mortgage up-to-date over a period of up to five years while maintaining further monthly payments. Chapter 13 is also widely used to avoid an "unsecured" second or other junior mortgage if there is no equity to support the second or junior mortgage.

What can be done for the many homeowners in South Florida whose home values have fallen vastly below the amounts due on their first mortgage? For example, if the value of the home has fallen to $200,000.00 and $300,000.00 is owed on the mortgage. Generally, one is not allowed to force a mortgage company to modify one's mortgage on his principal residence. This means, one cannot force the mortgage company to reduce the amount owed, lower the interest rate, or stretch out the term of the mortgage on one's principal residence.

Due to the continuing deterioration of the mortgage foreclosure situation in South Florida, it appears that section 1325 (a)(5) of the Bankruptcy Code may be a provision whose time has come. Section 1325 (a)(5) provides that a Chapter 13 plan should be approved by the Bankruptcy Court if the holder of a secured claim, such as a home mortgage, has accepted the Chapter 13 plan. That is, Chapter 13 of the Bankruptcy Code contemplates approval of a Chapter 13 plan if the mortgage company accepts the Chapter 13 plan even if the Chapter 13 plan proposes to modify a home mortgage.

In normal times, it would be beyond contemplation that a mortgage company would voluntarily accept the modification of a home mortgage. But these are not normal times in South Florida and in many parts of the United States. In fact, public policy and indeed economic self-interest seems to be growing that a mortgage company should accept and even seek the modification of a home mortgage. The serious campaign begun a few weeks ago by the FDIC as the receiver of Indymac is one example of this policy being put into effect in earnest.

It would seem that in today's economy, the use of Chapter 13 should be considered to seek a mortgage companies acceptance of the modification of a home mortgage as proposed under a Chapter 13 plan. While the Bankruptcy Court may not be able to force a mortgage company to modify a secured mortgage on one's principal residence, section 1325 (a)(5) would appear to indicate that one is at least able to request the mortgage company to voluntarily modify one's mortgage.

In fact, one of the largest complaints of homeowners is that they are is unable to reach anyone at the mortgage company and that they only get the runaround when they attempt to reach a mortgage company to attempt to workout or modify their home mortgage. It is widely reported that many mortgage companies appear to be overwhelmed, understaffed, and unable to handle the volume of telephone calls. The benefit of Chapter 13 is that once the bankruptcy case is filed, the mortgage company retains a bankruptcy attorney who the Chapter 13 debtor is at least able to communicate with and request a voluntary mortgage modification.(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

Most clients who call seeking chapter 7 bankruptcy relief do not have significant equity in their real estate. In fact, most clients who call today have no equity in their real estate. Since the real estate market plummeted several years ago, most clients are in a situation where they owe more on the property than+ Read MoreThe post How Much Equity Is Too Much For Chapter 7 Bankruptcy? appeared first on David M. Siegel.

Two Florida Third District Court of Appeals 2007 decisions provide a review of the meaning of the Florida Homestead Exemption in three different contexts. These decisions are Phillips et al. v. Hirshon, etc. el al., 32 Fla. L. Weekly D1151 (Fla. 3d DCA May 2, 2007) and Cutler v Cutler, 32 Fla. L.Weekly D538 (Fla. 3d DCA Feb. 28, 2007). In these decisions, the Court noted that homestead is given meaning in three different contexts under Florida law: 1. exemption from taxation per Art. VII, Section 6, Fla. Constit., 2. exemption from forced sale before and at death per Art. X, Section 4(a)-(b), Fla. Const., and 3. restrictions on devise and alienation, Art. X, Section 4(c), Fla. Const. See also Snyder v. Davis, 699 So.2d 999 (Fla. 1997)

The Court in Phillips observed in a footnote that the definition of homestead property for Article VII, section 6 purposes (taxation) is not the same as Article X, section 4 (forced sale and devise and alienation).

The Court in Cutler notes that neither the Florida Legislature nor the Florida Constitution provide a definition of what is homestead property for purposes of Art. X, Section 4 (a)(forced sale and devise and alienation). The Court states that based on the text of the Florida constitution and applicable case law, it is apparent that the following requirements must be satisfied for property to be determined as homestead property: 1. the property must be owned by a "natural person", 2. the person claiming the exemption must be a Florida resident who establishes that he intends to make the real property his permanent residence, 3. the person claiming the exemption must establish that he is the owner of the property, and 4. the property claimed as the homestead must satisfy the size and contiguity requirements of the constitution. Furthermore, the Court noted that the Florida Constitution does not limit the types of estates that are eligible for homestead status. Therefore, the exemption may generally attach to any estate in land whether it is a freehold or lesser estate. A life estate has been expressly found to be among the property interests eligible for homestead status. Furthermore, the Court noted that real property held in trust can be impressed with the character of homestead, including revocable and irrevocable trusts.

A provision protecting homestead property first appeared in the Florida Constitution of 1868. Art. IX, Section 1, Fla. Const. (1868). The Court noted that historical materials indicate that it was originally inspired by a desperate attempt by Floridians to repel the invations of "Yankee carpetbaggers" at the end of the Civil War. The limitation on devise and aliention first appeared in the 1885 Constitution. Art. IX, Section 1-3, Fla. Const. (1868).(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

When you file bankruptcy protection debtors are required to list their assets. This information is recorded in Schedule C of your filing documents or your petition. If you have children you may have concerns about their property and whether bankruptcy can assist in keeping them away from creditors. In most cases, this is not an... Read more »
The post Are My Children’s Assets Protected in Bankruptcy? appeared first on AllmandLaw.