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This is the case of Jimmy Brownlow who resides in Chicago, Illinois. He’s here for a consultation regarding Chapter 7 or Chapter 13. Mr. Brownlow has never filed for bankruptcy before. He does have a two flat which is worth approximately $176,000 and he owes $179,000. He has property tax arrears of $1400. He is+ Read MoreThe post Chapter 13 Bankruptcy Recommended For Jimmy Brownlow appeared first on David M. Siegel.
Miami bankruptcy lawyer Jordan E. Bublick has over 25 years of experience in filing chapter 13 and chapter 7 bankruptcy cases. He has filed over 8,000 bankruptcy cases.
The court in In re Adams, 375 B.R. 532 (Bkrtcy.W.D.Mo. 2007)(Dow, J.) held that the Florida homestead exemption does not have extraterritorial effect. Although the debtors filed for chapter 7 bankruptcy in Missouri, they were required to apply the Florida exemptions as they had not been domiciled in Missouri for the entire 730 days prior to the bankruptcy filing and were domiciled in Florida for the greater part of the 180 days prior to such 180 day period 11 U.S.C. Section 522(b)(3)(A).
The court noted that the Florida homestead exemption found in Florida's constitution at Art. X Section 4 does not specifically provide whether it has extraterritorial effect. The court found that the Florida courts agree with the courts that hold as a general proposition that where the homestead law is silent, it does not have extraterritorial effect. See e.g. In re Sanders, 72 B.R. 124 (Bankr.M.D.Fla.1987)(mobile home located in Tennessee not exempt under Florida law as not located within the State of Florida), In re Schlackman, 2007 WL 1482011 (Bankr.S.D.Fla.2007)(Florida courts construe the Florida constitutional homestead provision to require that the homestead be located within the State of Florida for the homestead exemption to be applicable).
The court refused to follow the case of In re Drenttel, 309 B.R. 320 (8th Cir.BAP2004) which allowed the application of the Minnesota homestead exemption to exempt the debtors' home in Arizona. The court distinguished Drenttel as being based on the interpretation of specific Minnesota exemption statutes and the state's public policy. Furthermore the court suggested that the Drenttel court reached its result in an effort to avoid the inequity of the debtors not being able to claim either state's exemptions. The court noted that BAPCPA added the right for a debtor to claim the federal exemptions if the effect of the domiciliary requirements of section 522 is to render them ineligible for any exemption.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.
Miami Personal 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
The Bankruptcy Court in Miami previously issued its decision in the case of In re Maria D. Lopez, Case No. 08-18101-BKC-LMI (Bankr. S.D.Fla. April 17, 2009)(Isicoff, J.), the Bankruptcy Court held that the involved attorney fees were not entitled to priority status as a "domestic support obligation".
The debtor's ex-husband was awarded his attorney fees in their dissolution of marriage proceeding and sought priority status for the claim in the debtor's chapter 13 case. Priority status would require full payment and the lack thereof would subject to claim to status as a general unsecured creditor and typically only a small dividend.
The Court explained that the Bankruptcy Code provides that a domestic support obligation ("DSO") owed to a former spouse is entitled to priority status and that while an award of attorney fees in some instances may be considered a DSO, not every award of attorney fees in a dissolution of marriage case are entitled to DSO status.
The Court states that for a claim to be considered as a DSO, it must meet all the requirements of section 101(14A) of the Bankruptcy Code. Generally, the claim must be
- owed to a spouse, former spouse, or child of the debtor, or such child's parent or guardian
- be in the nature of alimony, maintenance or support
- established or subject to establishment by reason of a separation agreement, divorce decree, or property settlement agreement or by court order
- not assigned to a nongovernmental entity unless voluntarily assigned for purposes of collection
At issue in this case was whether the attorney fees are "in the nature of alimony, maintenance, or support." The Court noted that the 2005 BAPCPA amendments to the Bankruptcy Code amended certain provisions relating to claims arising from "alimony, maintenance, or support" and renamed these obligations "domestic support obligations," but that the pre-BAPCPA case law does to a certain extent continue to have applicability post-BAPCPA.
The Court rejected the claimant's argument that the attorney fees met the requirement of being "in the nature of alimony, maintenance or support" as they related to custody, parentage, or visitation. The Court noted that the determination of what constitutes "support" is a matter of federal law. The Court further noted that in determining whether an award of state court attorneys' fees constitutes "support", the Bankruptcy Court may "only undertake a simple inquiry as to whether the debt can be characterized as 'support'" and that it may look to state law for guidance on whether the obligation should be considered in the nature of "support". The Court noted that the state court judgment awarded claimant attorney fees based on the debtor's litigation misconduct and not based on their respective wages or ability to pay.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 10, 2013 North End Segway tour co. rolls into bankruptcy Houston Astros have filed a motion to dismiss the involuntary Chapter 11 bankruptcy Sunland ceases operations, files Chapter 7 bankruptcy
A Wisconsin man is ordered to pay close to $10,000 in fines and restitution, along with a 30 day jail sentence and four years of supervised released for tampering with a grand jury witness and bankruptcy. Brett Pohle, 45, of Neillsville committed bankruptcy fraud by concealing information about his personal assets. He later tried to [...]
So how does bankruptcy effect Employment status? 11 USC Section 525 gives an explanation of that. The bankruptcy effect on employment is thus:
Private Employers
525(b) says that no private employer may terminate SOLEY because of a bankruptcy. So that means bankruptcy can actually be a reason but it cannot be the only reason. It also says that no private employer may discriminate with respect to employment solely because of BK.
Government Jobs
Under 525(a), the government must similarly abide by the same expectations a private employer has with respect to discriminating or terminating an employee who has filed BK or a potential employee who has filed a BK.
Now if one hasn’t filed BK but let the cat out of the bag? Perhaps that isn’t covered under 525. Perhaps an employer can discriminate against those contemplating a BK. That’s a highly unlikely scenario but it needs to be considered.
Conclusion
In most bankruptcy attorneys’ experience, job discrimination or loss of employment is rare, but it has happened before. However, always remember an employer cannot do so SOLELY because the debtor is a bankrupt or was a bankruptcy.
So how does bankruptcy effect Employment status? 11 USC Section 525 gives an explanation of that. The bankruptcy effect on employment is thus:
Private Employers
525(b) says that no private employer may terminate SOLEY because of a bankruptcy. So that means bankruptcy can actually be a reason but it cannot be the only reason. It also says that no private employer may discriminate with respect to employment solely because of BK.
Government Jobs
Under 525(a), the government must similarly abide by the same expectations a private employer has with respect to discriminating or terminating an employee who has filed BK or a potential employee who has filed a BK.
Now if one hasn’t filed BK but let the cat out of the bag? Perhaps that isn’t covered under 525. Perhaps an employer can discriminate against those contemplating a BK. That’s a highly unlikely scenario but it needs to be considered.
Conclusion
In most bankruptcy attorneys’ experience, job discrimination or loss of employment is rare, but it has happened before. However, always remember an employer cannot do so SOLELY because the debtor is a bankrupt or was a bankruptcy.
So how does bankruptcy effect Employment status? 11 USC Section 525 gives an explanation of that. The bankruptcy effect on employment is thus:
Private Employers
525(b) says that no private employer may terminate SOLEY because of a bankruptcy. So that means bankruptcy can actually be a reason but it cannot be the only reason. It also says that no private employer may discriminate with respect to employment solely because of BK.
Government Jobs
Under 525(a), the government must similarly abide by the same expectations a private employer has with respect to discriminating or terminating an employee who has filed BK or a potential employee who has filed a BK.
Now if one hasn’t filed BK but let the cat out of the bag? Perhaps that isn’t covered under 525. Perhaps an employer can discriminate against those contemplating a BK. That’s a highly unlikely scenario but it needs to be considered.
Conclusion
In most bankruptcy attorneys’ experience, job discrimination or loss of employment is rare, but it has happened before. However, always remember an employer cannot do so SOLELY because the debtor is a bankrupt or was a bankruptcy.
The post Afraid That Filing Bankruptcy Will Get You Fired From Your Job??? Is There a Bankruptcy Effect on Employment? appeared first on JCH LAW FIRM.
So how does bankruptcy effect Employment status? 11 USC Section 525 gives an explanation of that. The bankruptcy effect on employment is thus:
Private Employers
525(b) says that no private employer may terminate SOLEY because of a bankruptcy. So that means bankruptcy can actually be a reason but it cannot be the only reason. It also says that no private employer may discriminate with respect to employment solely because of BK.
Government Jobs
Under 525(a), the government must similarly abide by the same expectations a private employer has with respect to discriminating or terminating an employee who has filed BK or a potential employee who has filed a BK.
Now if one hasn’t filed BK but let the cat out of the bag? Perhaps that isn’t covered under 525. Perhaps an employer can discriminate against those contemplating a BK. That’s a highly unlikely scenario but it needs to be considered.
Conclusion
In most bankruptcy attorneys’ experience, job discrimination or loss of employment is rare, but it has happened before. However, always remember an employer cannot do so SOLELY because the debtor is a bankrupt or was a bankruptcy.
The post Afraid That Filing Bankruptcy Will Get You Fired From Your Job??? Is There a Bankruptcy Effect on Employment? appeared first on JCH LAW FIRM.
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
In today's financial world, the law regarding the transfer of mortgage notes and mortgages in the secondary mortgage market is quite a relevant topic. Issues may arise of the effect of the assignment of a mortgage note without the assignment of the related mortgage. One may also question the effect of the assignment of a mortgage without the assignment of the related mortgage note.
It appears to be the general rule in Florida that the transfer of a mortgage note transfers with it the related mortgage. The mortgage note is regarded as the principal item with the mortgage being regarded as a mere accessory. 6 Fla. Jur. 2nd, Bills and Notes, Section 123. Hence the adage "the mortgage follows the note." The Restatement (Third) of Property: Mortgages provides a general rule that is accordance with the apparent general rule in Florida but specifically provides an exception to this rule if the parties to the transfer of the mortgage note agree otherwise. The Restatement (Third) of Property: Mortgages section 5.4(a) (1997) provides that "[a] transfer of an obligation secured by a mortgage also transfers the mortgage unless the parties to the transfer agree otherwise." The stated objective of the Restatement is to avoid economic waste to the lender and a windfall to the borrower if the note and mortgage are split rendering the mortgage note as a practical matter unsecured. The Restatement cites the case of Carpenter v. Longan, 83 U.S. 271 (1827) which held that "[a]ll the authorities agree that the debt is the principal thing and the mortgage an accessory."
It is interesting to note that this question of law is not nothing new under the sun. A digest of California law published in 1916 provides various entries that reflect case law that the transfer of a note operates as an equitable assignment of the mortgage or deed of trust given to secure it, in the absence of any provision to the contrary. Vol. 6 The New Complete Digest of the Decisions of the Supreme Court and the District Courts of Appeal of the State of California and of all the Federal Decisions Dealing with California Law, Mortgages V section 111, James M. Kerr (1916).
The Restatement further provides that the recordation of a mortgage assignment is not necessary to the effective transfer of the mortgage note, although an assignee would be "well advised" to record the mortgage assignment.
The Restatement's exception provides that a transfer of a mortgage note is possible without the transfer of the mortgage if the parties so agree, but the effect of such a transfer would be to make it impossible to foreclose the mortgage unless the transferor of the mortgage note is made the assignee's agent or trustee with authority to foreclose on the behalf of the assignee of the mortgage note.
The opposite situation would be presented if a mortgage is transferred without the transfer of the mortgage note. The apparent rule in Florida is that an assignment of a mortgage without an assignment of the related mortgage note is deemed a nullity and creates no right in the assignee because a mortgage is a mere lien incidental to the obligation it secures. 37 Fla. Jur. 2nd, Mortgages, Section 511. See e.g., Sobel v. Mutual Development, Inc., 313 So.2d 77 (Fla. 1st DCA 1975). Vance v. Fields, 172 So.2d 613 (Fla. 1st DCA 1965).
A further provision in the Restatement would appear to inherently agree with Florida's position, but avoids its result in some situations by providing that unless otherwise required by the U.C.C. or otherwise agreed, the transfer of a mortgage also transfers the mortgage note obligation. "Except as otherwise required by the Uniform Commercial Code, a transfer of a mortgage also transfers the obligation the mortgage secures unless the parties to the transfer agree otherwise." Restatement (Third) of Property: Mortgages section 5.4(b).
It would appear that this rule of the Restatement may often only apply to mortgages secured by non-negotiable instruments as the Restatement's exception to its application would apparently apply to mortgages secured by negotiable instruments as section 3-203 of the U.C.C. provides for the enforcement of negotiable instruments only by delivery of the instrument itself to the transferee.
The Restatement comments that the "otherwise agreed" exception to this rule would apply in the context of institutional purchasers of mortgage loans in the secondary market where a mortgage originator assigns a mortgage to an appointed third party servicer while the mortgage note is transferred to the actual investor. In this situation, the agreement and intent of the parties is for the investor to be the owner of both the mortgage and mortgage note despite the assignment of the mortgage to the servicer.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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