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Today's New York Times refers to a recent decision by the Supreme Court of Kansas in the case of Landmark National Bank v. Kesler, et al., No. 98,489 (Kansas 2009) involving the controversial organization known as "MERS" - the Mortgage Electronic Registration Systems, Inc. MERS was established by large lenders as a quasi-parallel recording recording system to facilitate electronic trading and tracking of mortgages.
The Kesler case involved a routine residential foreclosure by the holder of the first mortgagee, Landmark National Bank. Landmark included as defendant the homeowner and Millennia Mortgage Corp. who per the public records held the mortgage. Sovereign Bank and MERS as its nominee were not included as defendants and subsequently claimed to be the assignees of Millennia.
The court stated that it would base its decision on the true roles of the parties and not the mere "nomenclature" used in the mortgage document. The court found that the form of the mortgage designated MERS as the mortgagee but not the lender.  
The court found that MERS had no right to the underlying debt repayment secured by the mortgage and did not even act as the servicing agent. The court found that MERS was only the agent of the lender. 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.

My Case Was Dismissed, Now What? Part 1Your bankruptcy case was dismissed and now you want to know what options you have. It first depends on what chapter of bankruptcy you filed and then on why the case was dismissed.Chapter 7It is not so common that a Chapter 7 is dismissed. The only obligations that a Debtor has after the filing of a Chapter 7 is to attend the Trustee’s 341 Meeting of creditors, complete the Financial Management Course, also known as the 2ndcertificate or FMC, and providing any requested information to the trustee. Given there are so few obligations, most Chapter 7’s see completion without dismissal or other issues.However, cases can dismissed for failing to comply with the obligations mentioned above. If the Debtor or Debtors do not appear at the Trustee’s 341 Meeting of creditors the trustee will continue it to another date for Debtor or Debtors to appear. However, if Debtor or Debtors do not appear at the continued Trustee’s 341 Meeting of creditors, the trustee can move for dismissal of the case.Failure to complete the Financial Management Course, also known as the 2ndcertificate or FMC will not end in dismissal of the case but it will result in closing of the case without discharge. Receiving a discharge of your debt is the reason a bankruptcy is filed so closing of your case without discharge means that all of your debt is still owed and defeats the whole purpose of you filing for bankruptcy. To avoid this, complete your Financial Management Course right after the case is filed so that after your Trustee’s 341 Meeting of creditors, there is nothing for you to do unless your attorney or the trustee requests additional information.Failure to comply with trustee’s requests is an unfortunate way to have your case dismissed without discharge. If the trustee requests any information from you directly or through your attorney and you fail to comply with the request, the case will likely be dismissed. If your case is dismissed you do not receive a discharge even if documents of discharge were previously received. Discharge can be revoked for failure to comply. Here is a common example: You attend your Trustee’s 341 Meeting of creditors and the trustee asks that you forward him a copy of your upcoming year’s taxes once they are filed. You say okay, and go on about life. You receive notice of your discharge, wiping all of your dischargeable debts away. Now you do not have to send anything to the trustee right? Wrong, and unfortunately an all too common wrong. 

Miami Personal Bankruptcy Lawyer Jordan E. Bublick has over 25 years of experience in filing Chapter 13 and Chapter 7 bankruptcy cases. His office is centrally located in Miami at 1221 Brickell Avenue, 9th Fl., Miami and may be reached at (305) 891-4055.  www.bublicklaw.com

The U.S. Supreme Court previously issued its decision on an important issue of chapter 13 bankruptcy law in the case of Hamilton, Chapter 13 Trustee v. Lanning. Justice Samuel Alito authored the Court's decision in which only Justice Scalia dissented. The issue involved was how "a bankruptcy court should calculate a debtor's 'projected disposable income'" which is one of the factors upon which the amount of a chapter 13 debtor's monthly plan payment is based. The Court rejected the "mechanical approach" and adopted the "forward-looking approach" pursuant to which the Court may, in the "the most unusual cases," go beyond the statutory formula for determining "disposable income" and "take into account other known or virtually known certain information about the debtor's future income or expenses."

The Court first reviewed the pre-BAPCPA (which was enacted in 2005) situation in which the Bankruptcy Code only "loosely defined 'disposable income'" and did "not define term 'projected disposable income.'" The Court stated that "in most cases, bankruptcy courts used a 'mechanical approach' in calculating projected disposable income" pursuant to which monthly income was multiplied by the number of the months of the plan and then the portion of the result that was "excess" or "disposable" was determined for dedication to the chapter 13 plan. "In exceptional cases, the bankruptcy courts took into account foreseeable changes in a debtor's income or expenses."

The Court noted that the BAPCPA "left the term 'projected disposable income' undefined but specified in some detail" the manner in which it is to be calculated. In general "disposable income" is based upon "current monthly income" less certain "amounts reasonably necessary to be expended" for maintenance and support and other items. The term current monthly income is statutorily defined and generally based on the 6-month period prior to the date preceding the filing of the bankrkuptcy case. "Amounts reasonably necessary to be expended" is calculated in a different manner for those below and those above the State median income amount.

The Court adopted the "forward-looking approach" which would allow for the consideration of the debtor's actual projected income in addition to the historically based "current monthly income." The court held that this approach is supported by the "ordinary meaning of the term 'projected.'" The Court noted that the term "projected" is not defined in the statute and that in "ordinary usage future occurrences are not 'projected' based on the assumption that the past will necessarily repeat itself.

The Court also noted the usage of the word "projected" in other federal statutes and stated that "Congress rarely used it [the phrase "projected"] to mean simple multiplication." In contrast, the Court referred to certain provisions in the Bankruptcy Code and noted that when Congress wished to mandate "simple multiplication, it does so unambiguously-most commonly by using the term 'multiplied'".

The Court remarked that pre-BAPCPA case law favors the "forward-looking" approach in that the general rule was that "courts would multiply a debtor's current monthly income by the number of months" of the plan as the first step in determining projected disposable income. But the Court also observed that the courts also "had discretion to account for known or virtually certain changes in the debtor's income." The Court noted that pre-BAPCPA practice is telling based on the principal that it "will not read the Bankruptcy Code to erode past bankruptcy practice absent a clear indication that Congress intended such a departure."

The Court also observed that the mechanical approach "clashed" with the terms of 11 U.S.C. section 1325 in that it would read out of the statute the phrase "to be received in the applicable commitment period" and the direction to determine projected disposable income "as of the effective date of the plan" (as opposed to the filing date).

But the Court noted that the statutory formula for determining "disposable income" still plays an important function under the forward-looking approach in that in "most cases, nothing further is required" and that only "in the most unusual cases" may a court "go further and take into account other known or virtually certain information about the debtor's future income or expenses." In short, the Court adopted the Tenth Circuit's analysis that "a person making a projection uses past occurrences as a starting point."

The Court further noted that the mechanical approach would "produce senseless results that we do not think Congress intended" where the debtor's income has changed since the historical six month period.

Justice Scalia dissented and held that the Court's conclusion is "contrary the Code's text" and "refus[es] to hold that Congress meant what it said."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.

Bankruptcy Attorney Jordan E. Bublick has over 25 years of experience in filing Chapter 13 and Chapter 7 bankruptcy cases. His office is centrally located in Miami at 1221 Brickell Avenue, 9th Fl., Miami and may be reached at (305) 891-4055.  www.bublicklaw.com

A topic of much concern is liability in a residential mortgage foreclosure in Florida.

In a typical residential mortgage transaction in Florida, there are two instruments - the promissory note and the mortgage. The promissory note documents the actual terms of borrowing and the mortgage provides for a lien on the real property to secure the debt of the promissory note.

In a typical residential mortgage foreclosure action in this part of Florida, the foreclosure case initially usually only seeks a judgment setting a foreclosure sale of the involved real estate - not a "money judgment" upon which the mortgage company can seek "execution" or collection of the sum of due.   This judgment of foreclosure only usually seeks the setting of a foreclosure auction sale by the Clerk of the Court. It should be noted though, that some residential mortgage foreclosure cases contain an additional count for a judgment on the promissory note which would be a "money" judgment and allow the mortgage company to seek "execution" or collection from any non-exempt assets

After the foreclosure sale, the mortgage company may be able to seek a "deficiency" judgment or otherwise sue for the balance due on the promissory note that was not paid from proceeds of the foreclosure sale. In recent times in Miami, Florida most mortgage companies have not pursued deficiency judgments for a variety of reasons.

In a situation of a first and second mortgage on a property in today's market, often the second mortgagee will not pursue a foreclosure but will sue on the promissory note to obtain a "money" judgment upon which it may seek collection.

Where a husband and a wife own a property, it needs to be clarified if both parties actually signed the promissory note. Often only one of the spouses only signed the mortgage and not the promissory note and such non-signing spouse would not generally face liability for a deficiency or on the promissory note. The spouse would have signed the mortgage but not the promissory note if he or she was a title holder or even if not on title, due to the Florida homestead provisions.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.