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A Totten trust, sometimes referred to as a "payable upon death" account, is a tentative trust that is revocable at will until the depositor completes the gift during his lifetime by some unequivocal act or declaration or subsequently dies. Totten Trust were first recognized in the 1904 New York case of  Matter of Totten. Since depositor has complete control over the funds during his lifetime, he is still regarded as the owner of the account. The Court in Matter of Totten ruled as follows:

            A deposit by one person of his own money, in his own name as trustee for another, standing alone,               does not establish an irrevocable trust during the lifetime of the depositor. It is a tentative trust                       merely, revocable at will, until the depositor dies or completes the gift in his lifetime by some                         unequivocal act or declaration, such as delivery of the pass book or notice to the beneficiary. In case             the depositor dies before the beneficiary without revocation, or some decisive act or declaration of               disaffirmance, the presumption arises that an absolute trust was created as to the balance on hand at             the death of the depositor. 
The Totten trust doctrine has been accepted in Florida.   The totten trust doctrine provides that the deposit by one person of his money in his own name as trustee for another is not a irrevocable trust during the lifetime of the depositor. "It is a tentative trust merely, revocable at will, until the depositor dies or completes the gift in his lifetime by some unequivocal act or declaration, such as delivery of the passbook or notice to the beneficiary." Where the depositor dies before the beneficiary without revocation, it is presumed that an absolute trust is created as to the balance on hand at the death of the depositor.

Totten trusts may be revoked. There are no specific formalities required to evidence the revocation of a Totten trust. Any decisive act or declaration of disaffirmance during the lifetime of the owner will generally suffice.

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

Although certain types of divorce related debt are non-dischargeable, certain types of debt are dischargeable in bankruptcy Whether an item is dischargeable also depends on whether the case is filed under chapter 7 or chapter 13.

Domestic Support Obligations - Alimony, Maintenance or Support

"Domestic Support Obligations" are not dischargeable in chapter 7 or chapter 13. Section 523(a)(5) of the Bankruptcy Code excludes from discharge any debt "for a domestic support obligation." A domestic support obligation is a

               "debt...owed to or recoverable by (i) a spouse, former spouse, or child of the debtor or such                        child's parent, legal guardian, or responsible relative...in the nature of alimony, maintenance, or                      support of such spouse, former spouse, or child of the debtor of such child's parent, without regard                to whether such debt is express so designated; ... established ...by reason of (i) a separation                          agreement, divorce decree, or property settlement agreement. 11 USC 101 § 101 (14A) 

The determination of whether a particular divorce-related debt is a "domestic support obligation" is a question of federal law. In making this determination, the court "cannot rely solely on the label used by the parties" and must "look beyond the label to examine whether the debt actually is in the nature of support or alimony." Cummings. v. Cummings, 244 F.3d 1263, 1265 (11th Cir. 2001).  Courts have held that the touchstone for dischargeability of a domestic support obligation is the intent of the parties. Cummings, 244 F.3d at 1266. Whether a debt is "in the nature of ... support" is determined by an element of need. In re: Lutzke, 223 B.R. 552, 554 (Bankr. D. Or. 1998). Where a former spouse does not establish an element of need or a disparity of incomes, courts generally hold that a debt cannot be characterized as a "domestic support obligation". 

Debts from Property Settlements- Chapter 7 and Chapter 13

Debts, such as those incurred in a property settlement agreement, to a spouse, former spouse, or child of the debtor that are not "domestic support obligations" that are "incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of court" are also not dischargeable in chapter 7, but they are generally dischargeable in a chapter 13 case. Steele v. Heard, 487 B.R. 302, 308 (S.D. Ala. 2013).  
(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

Before the court confirms your chapter 13 plan, you will have to pass what is commonly referred to in bankruptcy law as the “feasibility” test. This isn’t really a test, but the court will look at whether or not the information we provide in the bankruptcy forms and schedules show enough income so that you can make the proposed payments. Whether it is the monthly payments you are proposing or a lump sum payment to be paid at the end of the plan, we should be able to show that the plan can be reasonably completed with the resources we report in the schedules. The post Is Your Chapter 13 Bankruptcy Plan Feasible? appeared first on Tucson Bankruptcy Attorney.

Miami bankruptcy lawyer Jordan E. Bublick has over 25 years of experience in filing chapter 13 and chapter 7 bankruptcy case and mortgage modifications. Office: 1221 Brickell Ave., 9th Fl., Miami, Florida. Tel.: (305) 891-4055. 

The Florida Fourth District Court of Appeals decided an issue regarding the enforcement of lost mortgage notes in the case of StateStreetBank and Trust Co., Trustee for Holders of Bear Stearns Mortgage Securities, Inc. Mortgage Pass-Through Certificates, Series 1993-12 v. Harley Lord, et al., 851 So.2d 790 (Fla. 4th DCA 2003). The Court held that StateStreet could not maintain a cause of action to enforce a missing promissory note or to foreclose on the related mortgage in the absence of proof that it or its assignor ever held possession of the promissory note. Section 673.3091, Florida Statutes (2002).

StateStreet filed an action in the Circuit Court under section 71.011, Florida Statutes to reestablish the lost promissory note. The Court of Appeals upheld the lower court's decision and held that the right to enforce the lost instrument was not properly assigned to StateStreet where it was found that neither StateStreet nor its predecessor in interest possessed the note and StateStreet did not otherwise satisfy the requirements of section 673.3091, Florida Statutes (2002) which is Florida's version of the UCC's article on negotiable instruments. The court noted that it was undisputed that the note was lost before the assignment to StateStreet was made.

In footnote one, the Court noted that the enforcement of lost promissory notes, which are negotiable instruments, is actually governed by section 673.3091, Florida Statutes and not section 71.011 which governs enforcement of lost papers. It should be noted that the case of Mason v. Rubin, 727 So.2d 2883 (Fla. 4th DCA 1999) previously held that the reestablishment of a lost promissory note which is a negotiable instrument is controlled by section 673.3091, Florida Statutes (1993) and not section 71.011, Florida Statutes (1995). The court explained that section 71.011, Florida Statutes (1995) provides for establishing lost documents "except when otherwise provided" -- the implication being that section 673.3091, Florida Statutes (1993) otherwise provides. The court also characterized the provisions of section 673.3091, Florida Statutes (1993) as "more stringent requirements" than section 71.011, Florida Statutes (1995).

The Court explained that pursuant to section 90.953, Florida Statutes, (2002), Florida's code of evidence, the plaintiff in a mortgage foreclosure must present the original promissory note as a duplicate of a note is not admissible. Otherwise, the plaintiff must meet the requirements of section 673.3091, Florida Statutes to pursue enforcement. W.H. Dwoning v. First Na'tl Bank of Lake City, 81 So.2d 486 (Fla.1955), Nat'l Loan Investors, L.P. v. Joymar Assocs., 767 So.2d 549, 551 (Fla. 3d DCA 2000).

The Court further explained that although it and the Third District Court of Appeals have held that the right or enforcement of a lost note can be assigned, here there was no evidence as to who possessed the note when it was lost. See Slizyk v. Smilack, 825 So.2d 428, 430 (Fla. 4th DCA 2002), Deakter v. Menendez, 830 So.2d 124 (Fla. 3d DCA 2002). In Slizyk, the Court allowed the assignee of the note and mortgage to foreclose as the assignor of the note was in possession of the note at the time of the assignment and therefore the right to enforce the instruments was assigned to the assignee as well. In contrast, here the undisputed evidence was that the assignor never held possession of the note and therefore could not enforce the note under section 673.3091, Florida Statutes (2002). As the assignor could not enforce the lost note under section 673.3091, it had no power of enforcement which it could assign to StateStreet.

The court noted that it did not reach the question of whether Slizyk and National Loan could be applied to allow enforcement of a note if there was proof of possession by an assignor earlier than the most immediate assignor.

It should be noted that in 2004, section 673.3091(1)(a), Florida Statutes was amended to allow enforcement of an instrument if the "person seeking to enforce the instrument was entitled to enforce the instrument when loss of possession occurred, or has directly or indirectly acquired ownership of the instrument from a person who was entitled to enforce the instrument when loss of possession occurred." It is not clear that this amendment would have changed the court's decision in StateStreet.

StateStreet was later cited with approval by Dasma Investments, LLC v. Realty Associates Fund III, L.P., 459 F.Supp.2d 1294(S.D.Fla.2006) where the court held that if a party is not in possession of the original note and cannot reestablish it, the party cannot prevail in an action on the note. In Dasma, the court explained that in Florida a promissory note is a negotiable instrument and that a party suing on a promissory note, whether just on the note itself or together with a foreclose on a mortgage securing the note, must be in possession of the original of the note or reestablish the note pursuant to Fla. Stat. § 673.3091. See, Shelter Dev. Group, Inc. v. Mma of Georgia, Inc., 50 B.R. 588, 590 (Bkrtcy.S.D.Fla.1985).

StateStreet was also cited with approval in the case of In re American Equity Corporation of Pinellas, 332 B.R. 645 (M.D.Fla.2005)(Paskay, J.) where the court held that a party must comply with section 673.3091, Florida Statues in order to enforce a lost, destroyed or stolen negotiable instrument. It is noteworthy that the court found that the creditors' affidavits merely stated that the creditors had searched for the original promissory notes but were unable to find them and failed to state that the creditors ever received possession of the original promissory note.(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