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Miami Bankruptcy Attorney Jordan E. Bublick has over 25 years of experience in filing chapter 13 and chapter 7 bankruptcy cases. His office is in Miami at 1221 Brickell Ave., 9th Fl., Miami and may be reached at (305) 891-4055. www.bublicklaw.com
The bankruptcy court in (Bkrtcy.S.D.Fla. 2006)(Isicoff, J.) held that the doctrine of res judicata did not bar the involved Truth in Lending Act ("TILA") claim. In this case, the debtor filed a bankruptcy case under chapter 13 to stop a foreclosure sale pursuant to a judgment of foreclosure. The debtor sent a letter to rescind and arguing that his right to rescind was extended as mortgagee did not provide him with the required TILA disclosures 15 U.S.C. section 1601 et seq., and Reg. Z and did not comply with HOPEA which is subsection of TILA.
The court held that in determining the res judicata effect of state court judgment, one looks to law of the state. It noted that Florida res judicata law bar any future action if there is an identity in both cases of 1. the things sued for, 2. the causes of action, 3. the identity of the parties, and 4. the identity of capacity of the parties. Res judicata bar not only issues that were raised but precludes consideration of issues that could have been raised but were not. The court reviewed that the principal test in determining whether causes of action are the same is whether the primary right and duty are the same in each case
The court noted that in this case the issue was whether the substance of the debtor's TILA was subject to res judicata based on the prior foreclosure judgment. The court further noted that the debtor's TILA claim not a compulsiary counter-claim to a foreclosure action. The court found that the language of TILA is permissive not mandatory and that it can be asserted as original action or as a defense/counterclaim. The court did not find a Florida state court case directly on point. The court held that all of the claims, except those relating to the non-HOEPA disclosures, would not be barred by res judicata.
The court held that even if the state court judgment technically would meet the requirements for res judicata, it would decline on basis of equity to grant motion for summary judgment for defendant. Hartnett v. Mustelier, 330 B.R. 823 (Bankr.S.D.Fla. 2005)(based on equitable principals court declines to give collateral estoppel effect to a default judgment). The court found that Florida law recognizes a manifest injustice exception to res judicata and collateral estoppel, especially involving a pro se litigant.Jordan E. Bublick is a Miami Personal Bankruptcy Lawyer with over 25 years of experience in filing chapter 13 and chapter 7 bankruptcies. Miami Personal Bankruptcy Lawyer Jordan E. Bublick has filed over 8,000 chapter 13 and chapter 7 cases.
The case of Mejia vs. Ruiz, 3rd DCA, May 14, 2008, 3D07-2254 involved proceedings supplementary against shareholders and directors of a judgment debtor corporation. After the corporation was sued, shareholders took corporate assets and left the corporation insolvent. A writ of execution was issued on corporation. Proceedings supplementary were subsequently pursued pursuant to 56.29.
The court explained that there are two prerequisite for proceedings supplementary - a returned and unsatisfied writ of execution and an affidavit that the writ is of execution is valid and unsatisifed along with list of third parties to be impleaded. Impleading does not imply liability but provides them with an opportunity to raise their defense and protect their interests.
The court noted that pursuant to Florida Statutes Section 56.29 provides that a transfer, assignment, or other conveyance of personal property made or contrived to delay, hinder, or defraud per 726.105is creditors is void. The burden of proof is a preponderance of the evidence. Fraudulent intent may be presumed from "badges of fraud." The badges of fraud create a prima facie case and raise a rebuttable presumption that transaction void.
The court found prima facie proof of badges of fraud. Also known creditors were not notified of dissolution of corporation per 607.1406. The court explained that shareholders follow 607.1406 given limited immunity. Jordan E. Bublick is a Miami Personal Bankruptcy Lawyer with over 25 years of experience in filing chapter 13 and chapter 7 bankruptcies. Miami Personal Bankruptcy Lawyer Jordan E. Bublick has filed over 8,000 chapter 13 and chapter 7 cases.
You get a Motion to Dismiss in the mail from the Chapter 13 Trustee. Breathe and contact your attorney. In both Oregon and Washington, there are maybe four reasons why you have been sent this Motion. First, your case has not been confirmed yet and there are some areas that the Trustee would like to resolve prior to confirmation. Second, you have been missing payments. Third, you were supposed to send in your tax returns every year you were in Chapter 13 and you haven’t sent in one of the returns yet. Fourth, you may have been obligated to turn over your tax refund every year and the Trustee has not received a payment yet.
With respect to a Motion to Dismiss prior to confirmation. Most of the time the issues can be resolved pretty quickly, but the details must be taken seriously, so you must promptly do whatever it takes to resolve that issue. When the issue is failure to make payments, contact your attorney immediately. In both Oregon and Washington, this issue can generally be resolved via a stipulated order obligating you to start making the payments again in a timely manner with the understanding that if you miss one in the next six months, your case will be dismissed. In Washington this issue may also be resolved through the filing of an amended plan. The key here is contacting your attorney immediately so that the two of you can come up with a temporary or more permanent solution to the payment problem.
With respect to a missing return issue, nothing will dispense with the motion more quickly than making a point of getting the missing tax return to your attorney immediately so that it can be redacted and sent on to the Trustee. When it comes to a missing refund, it is imperative that you act quickly so that you and your attorney can immediately seek to amend your plan to call for retaining the missing refund, or work out a payment schedule with the trustee for repayment of the missing amount over the remainder of your plan.
The key once again to resolving a Motion to Dismiss is quickly contacting your attorney. Just remember to breathe first.
The original post is titled The Chapter 13 Bankruptcy Trustee Has Now Filed a Motion to Dismiss, Is It too Late? , and it came from Oregon Bankruptcy Lawyer | Portland, Salem, and Vancouver, Wa .
When filing for bankruptcy, you don’t want to pay too much for an attorney. You also don’t want to pay too little.
There are about a dozen bankruptcy attorneys who routinely file Chapter 7 cases in New York City. When it comes to Chapter 13, there are maybe half that number.
Looking at those of us with the most practical experience, you’ll see some trends.
We’ve all been practicing bankruptcy law for more than a decade. We all take on difficult issues when necessary, and have a good working relationship with the trustees.
And on the continuum of legal fees, we charge about 20% more than most of the other bankruptcy attorneys.
Why is that? And how much should you expect to pay for a lawyer if you’re in New York City?
Look For Competence And Experience First
Experience doesn’t translate into competence – just because you’ve been doing something for a long time doesn’t necessarily mean you’re any good at it.
That’s why you need to look for experience as well as competence. That maximizes the chance that you’re getting a bankruptcy lawyer who’s been around the block a few times and has a good relationship with the court and the trustees.
Your first step is to look up the attorney on the Unified Court System’s attorney search website. Every lawyer in New York is listed there, and the system will tell you how long he or she has been licensed in New York State.
From there, hit Google and type in the attorney’s name. Look at every possible review site to see what people are saying about him or her. It’s not a hard-and-fast rule, but someone with no reviews and no online footprint is suspicious in my book. In that sense, a bad review is almost as useful as a good one – at least it shows that the lawyer’s active in the field.
Taking a few minutes on these two steps won’t solidify your decision, but it will narrow the field a bit.
See Also:
Get A Feel For The Lawyer
You’re going to want to make a few phone calls to get a sense for the attorney as well as the way they run their practice.
Is there an office staff, or is the bankruptcy attorney a true solo? There are benefits to both set-ups, as well as downsides.
Does the attorney provide a lot of information on a website, blog or social media platform? If so, can you understand it or is it all densely-packed legalese that makes your head swim?
How about industry associations? Certifications and extra educational programs? These can be proof of an attorney who takes the field seriously.
Expect To Pay For Advice
Lots of bankruptcy attorneys in New York offer free consultations in one form or another. That consultation is typically a very broad overview of bankruptcy options, and seldom a deep dive into your specific problem.
There’s a reason for that. Advice and analysis takes some time, and requires a deep understanding of your situation. If a bankruptcy attorney is giving that away for free, you’ve got to question the value of what you’re getting.
After all, you get what you pay for.
What’s The Range Of Legal Fees?
A Chapter 7 bankruptcy from an experienced and competent bankruptcy lawyer in New York City should run you somewhere in the $2,500 – $3,000 range, more if you have significant assets or own a business.
For Chapter 13 cases, the fee range should be in the $6,500 – $7,500 range and cover all of the typical steps involved in handling your case for the entire 3-5 year Plan period.
See Also:
- How Much It Costs To File For Bankruptcy
- Why Chapter 7 Bankruptcy Legal Fees Need To Be Paid Before You File
- How The Bankruptcy Court Keeps You From Getting Overcharged
A Tough Decision That’s Worth It
I know you don’t have a ton of spare cash sitting around waiting to be spent on some fancy-pants lawyer.
You’ve got to balance reality with the marketplace, and get the best lawyer you can afford.
But if you make your decision based solely on cost then you may end up getting exactly what you paid for.
What do you think? Have you filed for bankruptcy in New York with a lawyer? If so, sound off in the comments section to tell us how much you paid – and if it was worth it.
Debtors have the option of filing “pro se” (Latin phrase meaning for oneself), but they are warned the process includes levels of complication when tackled without a bankruptcy attorney. Some think the process is simple since you can easily download forms required online to get your case filed. Although if you fail to file the [...]
Short on funds? If you’re in California, don’t write a check unless you know you can cash it.
You’ve got $11 left in your checking account and the cash register at the grocery store in Los Angeles shows a balance due of $108.14.
There’s not much you can pull off the conveyor belt.
There’s no available credit on your cards. The car needs gas.
Payday is next week.
So you pull out your checkbook, cross your fingers and write a check.
Bad move. Even worse under California law.
Your Bank Won’t Be Happy
If you write a check that you can’t cover, your bank may pay the check and issue an overdraft fee. If you’re not so lucky, the bank will dishonor the check and send it back to the store you made your purchase from.
If the bank decides to return the check, you’ll get a letter from the store demanding immediate payment. The store might also demand a fee for the bounced check. If you fail to pay within a specified time, usually seven days, the merchant can sue you. If that happens, you might end up having to pay two or three times the amount of the check, as well as other fees.
Even worse, if this happens more than a couple of times, the bank may choose to close your account. Since accounts that are closed for cause are reported to ChexSystems, this can make it incredibly difficult to open another account elsewhere.
In California, A Bad Check Can Mean Criminal Charges
Under California law, writing a bad check may be a crime under Penal Code 476a. Charges may be filed either as a misdemeanor or a felony – it depends on the prosecutor’s choice.
If it’s filed as a misdemeanor, you could be looking at up to one year in a county jail and a maximum fine of $1,000. If you’re convicted as a felony then you could get up to three years in jail and a maximum fine of $10,000.
There are possible civil penalties as well. The payee (that’s the person or company that you wrote the check to) can sue you for the amount of the check in addition to damages of up to $1,500.
Here’s a good recap of Penal Code 476a.
Can Bankruptcy Help?
If you’ve bounced a check, filing for bankruptcy may allow you to wipe out the fees and amounts due. The vendor may have a good reason to file a complaint with the bankruptcy court to keep you from discharging the debt, but that’s something we can talk about before filing a bankruptcy case for you.
If you’ve been prosecuted under the California bad check law, a bankruptcy won’t wipe out the fines. A Chapter 13, however, may be a good way for you to repay the fines and penalties over time.
The civil penalties, however, may be able to be wiped out in bankruptcy. Again, the vendor may be able to fight your ability to discharge the debt so you’ll want to have your lawyer assess the risk in advance of filing.
See Also:
Don’t Write A Bad Check In California
If you’re short on cash, writing a check you can’t cover may be a tempting solution.
But it’s not a solution. It’s an invitation to bigger problems.
Don’t do it.
Bringing you the most up-to-date news, tips and blogs throughout the web. Here’s your Bankruptcy Update for October 24, 2013 Will Detroit actually enter bankruptcy? Oncor should be well protected from bankruptcy, Moody’s says 11 people who now control Detroit’s bankruptcy future
In most cases, you cannot be discriminated against because you filed for bankruptcy protection. There are agencies and businesses that may not deny, suspend, or revoke opportunities or privileges because of a bankruptcy filing. Yet, keep in mind there are a few establishments where rules are not as strict depending on the entity. It is [...]
Members of the military get certain protections when it comes to federal student loans.
Over the years I’ve represented a number of people in the Armed Forces. Two things that blow my mind are how little they get paid to serve our country, and how many of them are burdened with student loans.
Student loans are bad enough for people working for a living, but when it comes to the military it’s often a case of juggling finances to keep the federal student loans up to date.
Thankfully, the government has some ways to make it easier to bear the burden.
Deferring Federal Student Loans While On Active Duty
If you’re called to active duty (or performing National Guard duty) during a war, military operation, or national emergency then you may be eligible to defer federal student loan payments.
Your deferment begins at the time of mobilization and continues for up to 180 days following qualifying service.
If you took out your student loans – private or federal – before you entered the military or were called to active duty, the Servicemembers Civil Relief Act limits the interest rate on your loans to 6% during your active duty military service.
In addition, if you have a Direct Loans first disbursed on or after Oct. 1, 2008 then no interest will accrue on your Direct Loans for up to 60 months of active duty or while performing qualifying National Guard duty during a war, other military operation, or national emergency and are serving in an area of hostilities qualifying for special pay.
If You’re Enrolled In School When You’re Called To Active Duty
Under the College Cost Reduction and Access Act (CCRAA), if you’re a member of the National Guard, Armed Forces Reserve, or the Armed Forces in retired status, you are eligible for a 13 month period of deferment on repayment of your Perkins loans following the completion of your active duty military service.
This deferent applies only if you were enrolled in a postsecondary school at the time of, or within six months prior to, your activation.
Public Service Loan Forgiveness
Under the Public Service Loan Forgiveness Program you can have your federal student loans completely wiped out if you have:
- made 120 regular payments on your federal student loans;
- while employed full-time by the U.S. Military or by certain other types of employers.
Payment Plans And Consolidation
Consolidation of your federal student loans may lower your payments due.
In addition, you should look into the possibility of extended repayment options, income-based repayment, and other ways of bringing the payments in line with your income.
See Also:
- Federal Student Loan Standard Repayment Options
- Income-Based Repayment Options
- Pay-As-You-Earn Program For Federal Student Loans
What About Private Student Loans?
Remember that the Servicemembers Civil Relief Act limits the interest rate on private student loans to 6% during your active duty military service.
Unfortunately, there are no other formal programs to help you. That said, some lenders may be in a position to work with you on payments during your active duty period.
See Also:
Look Into Options And Maximize Your Protection
If you’re serving the country, the last thing you should be worried about are your student loan problems.
Your loved ones, your finances and your professional responsibilities come before anything else.
Looking into your options will help keep you out of trouble with your student loans. You serve your country; always remember to serve yourself as well.
Jeff in today's Advertiser.
My name is Jeff McLeod, and I live in Montgomery.
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