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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
One of the hottest topics in South Florida is the real estate "short sale." Actually a short sale is nothing new, but it now quite the vogue. A short sale basically means that the mortgage lender (or lenders) agree to satisfy its mortgage lien and allow the transfer of the real estate in exchange for receipt of less than the full amount of the amount due on its mortgage loan. In a short sale, the real estate is sold to a buyer who obtains a new mortgage. As the net proceeds of the sales price is less than the full amount due on the mortgage lien(s), the mortgage holder(s) must agree to accept a "short" payoff in exchange for release of its mortgage lien.
Despite this basic definition, there is more involved with the short sale and whether it is actually beneficial to the homeowner facing foreclosure. The fact that the internet is full of courses, books, and seminars offering to turn out "short sale experts" should in and of itself advise caution.
It is been my experience so far that many homeowners facing foreclosure seek out the "short sale", but do not entirely understand the process or many of its implications. Some do not even seem to understand where they stand on various issues even after a "short sale" supposedly took place. Apparently, one of the short sale's greatest boosters, at least at present, is the real estate broker or other "third party negotiator" who would earn a commission upon the closing of a short sale.
At this time, it seems that substantially more are failing to achieve a short sale than are those who have achieved one. Many seem to seek out the short sale as almost a holy grail and advise that they are in the "process of a short sale", but few have actually advised that they have completed one. Many seem to indicate frustration in the attempt to communicate with the mortgage lender(s) and/or actually complete a short sale.
Apparently the most difficult item in the short sale process is communicating with the lender and any second mortgage holder, such as a "home equity loan." In addition to the agreement of the first mortgage holder, the agreement of any junior mortgage holders must also be obtained. Outstanding judgment or tax liens may also be an issue as the buyer would need to receive clear title.
One of the most important issues in the short sale is whether the homeowner is actually released from liability for the "short" or unpaid amount. If the mortgage company and/or the second mortgage company do not release a person from liability for the unpaid portion, the benefit of a short sale to a homeowner may be questioned.
Another important issue is the federal income tax consequences. If the unpaid mortgage debt is forgiven, "discharge of indebtedness income" may be implicated. Discharge of indebtedness income basically involves the recognition as income for federal income tax purposes of the discharged mortgage debt. But there are various exceptions to the recognition of discharge of indebtedness income, such as the insolvency exception or discharge in bankruptcy. Although a form 1099 may be issued as to the homeowner/seller to the IRS, one of the various exceptions to the rule may apply and income taxation on the discharge amount may not be due. A complete analysis of this issue should be completed before one commits to undertake a "short sale."
Many seem to seek out the short sale to "save their credit." One should try to get the best understand possible of whether a short save will actually save or protect one's credit from the reporting of a foreclosure. In general, a credit reporting agency may report accurate information on your credit report. Although a "foreclosure" may not be reported on one's credit, a mortgage delinquency may. One may question the effective difference.
A short sale may be in the mortgage lender's supposed "best interest." But one should realize that many lenders may be under contractual or regulatory restrictions that may not permit them to agree to a short sale. Furthermore, one may actually be communicating with the lender's loan servicer and not the actual mortgage lender.
In any even a short sale usually takes several weeks to pursue and one needs to furnish substantial documentation, including personal financial information such as paycheck stubs, bank statements, 401(k) statements, and tax returns. One may also need to furnish information about a hardship.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.
Bringing you the most up-to-date news, tips and blogs throughout the web. Here’s your Bankruptcy Update for October 17, 2013 JCPenney stock falls over false bankruptcy rumor Puerto Rico Denies Bankruptcy And Takeover Rumors Park Cities’ Bank Holding Company Files for Bankruptcy
A federal grand jury returned a 24-count indictment on former Enron Executive Jeffery Adam Shankman, 46, that included concealing assets with bankruptcy fraud. He is expected to make his appearance before a U.S magistrate judge upon turning himself in to authorities. His charges include purposely hiding assets from creditors and the bankruptcy trustee who was [...]
Unfortunately many Michigan families have seen a drop in their income due to a reduction in work hours or a decrease in their pay. They may even be performing a job beneath their skill set due to a sluggish job market. These circumstances are termed “underemployment”. The creation of many more part time jobs in [...]The post Dealing with Underemployment in Michigan appeared first on Acclaim Legal Services, PLLC.
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.
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? Chapter 7 Part 2 Your 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 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.One uncommon but certainly possible way to have your Chapter 7 bankruptcy dismissed is for ineligibility to receive a Chapter 7 discharge. In order for you to be eligible for receive a discharge in a Chapter 7 bankruptcy, you must not have previously received a Chapter 7 through a case that was filed within 8 years of the filing of the new bankruptcy case.
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.
In contrast to federal programs, there’s no private student loan forgiveness. Or is there?
When you take out a student loan, you may not care much about whether it’s federal or private. Some of my clients don’t know which type of loan they have even years later.
See also:
- How To Know If Your Student Loan Is Federal Or Private
- Federal Student Loan Standard Repayment Options
- Income-Based Repayment For Federal Student Loans
Federal student loans offer a variety of repayment options and opportunities for forgiveness or discharge, but private student loans are a different animal entirely.
A Private Student Loan Is Just A Regular Loan
The only time it matters that a loan is used for educational purposes is when you’re talking about filing for bankruptcy.
In all other respects, a private student loan is nothing more than money borrowed. If you look at the loan documents, there’s no difference between this any unsecured loan you get from a bank or credit union.
The Ordinary Rules Apply
Federal and state laws govern all loans. That includes the use of initial disclosures, applications procedures, and limitations of time for filing a lawsuit.
Debt collectors seeking payment on private student loans are required to comply with the Fair Debt Collection Practices Act as well as with state laws.
If they fail to do so, you may have the right to sue them for damages.
See also:
- Why Some Debt Collectors Get Away With Breaking The Law, And How To Stop Them
- Private Student Loan Statute Of Limitations In California
The Rules Provide Opportunities
If the loan doesn’t come with appropriate disclosures, the lender may be subject to federal and civil penalties.
If a private student loan lender doesn’t sue you within the statute of limitations, you can get the case kicked out of court.
If collections aren’t undertaken within the bounds of the law, you can sue and collect damages.
If a private student loan creditor sues you without proper proof and documentation, you may win the case.
And if all else fails, you may be able to file for Chapter 13 bankruptcy and force the lender to temporarily accept lower payments than would otherwise be possible.
Know The Rules To Use Them
Private student loan forgiveness doesn’t exist as a matter of law, nor are there formal programs to help you get out from under those obligations. But if you know the rules, there’s a lot you can do to better your situation.
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.
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