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Dycke O'Neal, Inc. - - Recent Developments in the Collection of Deficiency Judgments after Mortgage Foreclosure
For the past 30 years in Miami-Dade County, Florida, large mortgage companies and banks virtually never pursued a "deficiency" judgment after a mortgage foreclosure on a first mortgage. The best advice at the time was not to be concerned about a deficiency judgment.
Recently though, things have apparently changed. Many people have been contacted or sued by Dycke O'Neal, Inc. which is a large "debt vulture" with its main office in Texas. This company has purchased foreclosure judgements from lenders who have already conducted their foreclosure sales, but retained the right to sue for a deficiency after the foreclosure sale. many people are being sued for amounts in the range of $100,000 to $200,000.
Deficiency Judgment
A typical residential mortgage foreclosure action usually only initially seeks a judgment setting a foreclosure sale of the real estate. It does not seek a "money judgment" upon the mortgage promissory note. But although most foreclosure judgments only determine the balance due and set a foreclosure sale, the judgment retains the jurisdiction to issue a deficiency judgment.
Limitation on Amount of Deficiency
The new "Florida Fair Foreclosure Act" effective on June 7, 2013 provides a limitation on the amount to be allowed as a deficiency regarding foreclosures of owner-occupied residential real estate. The amount to be awarded may not exceed the difference between the foreclosure judgment amount (or in the case of a short sale, the outstanding debt) and the fair market value of the property on the date of the foreclosure sale.
One-Year Statue of Limitations to Seek Deficiency Judgment
The new act also provides in Florida Section 95.11(5)(h) that for actions file on and after July 1, 2013, a claim of deficiency, subsequent to the foreclosure of one-to-four family residential properties, must be filed within one year from the day after (1) the certificate of title is issued or (2) the mortgage lender accept a deed-in-lieu of foreclosure. For other actions, a deficiency claim must be brought by the earlier of (1) five years after such action accrued or (2) by July 1, 2014.
(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
Dycke O'Neal, Inc. has filed almost 200 actions for mortgage deficiency judgments in Miami-Dade County just in the past five months - since January, 2014. Dycke O'Neal, Inc. is one creditor you do not want to meet. Dycke O'Neal, Inc. is a company out of Texas that has bought up thousands of foreclosure judgments throughout Florida to sue foreclosed homeowners for a "deficiency" judgment owed after their home is foreclosed. Dycke O'Neal, Inc. is not just after a few dollars - in many cases it is suing for about $100,000.00 to $200,000.00.
What is a Mortgage Deficiency?
A "deficiency" judgment is a money judgment for the difference between the balance due on the mortgage and the sales price at the foreclosure sale or in some cases the fair market value of the foreclosed mortgaged property.
The pursuance of a deficiency judgment is the second part of a foreclosure case. In the first part of a foreclosure case, the lender only seeks a judgment determining the balance due on the mortgage and setting a foreclosure sale of the real estate. The foreclosure judgment retains the jurisdiction for the court to enter a deficiency judgment after the foreclosure sale. In the recent decades, residential mortgage lenders virtually never pursued a deficiency judgment after a foreclosure sale. But things have recently changed in a dramatic with the flood of cases filed by Dycke O'Neal, Inc.
Some Relief - New Florida Fair Foreclosure Act of 2013
The new "Florida Fair Foreclosure Act," which was effective on June 7, 2013, provides some measure of relief to foreclosed home owners facing the threat of a deficiency judgment after a foreclosure sale.
The new act provides that for cases filed before July 1, 2013, a claim for a deficiency must be brought by the earlier of (1) five years after the action accrued or (2) by July 1, 2014. This means that the statute of limitations will bar many lenders on older foreclosure cases from filing a deficiency action on July 1, 2014.
For new actions filed on and after July 1, 2013, a claim for a deficiency judgment after a foreclosure sale of a one to four family residential property, must be filed within one year from the day after (1) the certificate of title is issued (which is normally 10 days after the foreclosure sale) or (2) the mortgage lender accepts a deed-in-lieu of foreclosure. Note that this new one year statute of limitations does not apply to foreclosures of other than one to four family residential properties.
This new act also provides a limitation on the amount to be allowed as a deficiency as to regarding foreclosures of owner-occupied residential real estate. The amount to be awarded may not exceed the difference between the foreclosure judgment amount (or in the case of a short sale, the outstanding debt) and the fair market value of the property on the date of the foreclosure sale.
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
On March 4, 2014 the US Supreme Court issued its decision in the case of Law v. Siegal, 134 S.Ct. 118 (2014). The Court ruled that the Bankruptcy Court exceeded its authority when it ordered that the debtor's homestead be "surcharged" to pay the chapter 7 trustee's fees of $75,000.00.
The Court explained that the filing for bankruptcy under chapter 7 creates a bankruptcy "estate" generally consisting of all of the debtor's property. The Court further explained that "[t]he estate is placed under the control of a trustee, who is responsible for managing liquidation of the estate's assets and distribution of the proceeds." The Court noted that the Bankruptcy Code allows a debtor to exempt certain assets from the bankruptcy estate and that these exempt assets are generally not liable for any of the expenses in administering the bankruptcy estate.(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
In this next post we will be discussing the issue surrounding dismissal or conversion of bankruptcy and the role and mechanism of the means test and presumption of abuseThe post Bankruptcy Dismissal, Conversion, and the Means Test appeared first on Tucson Bankruptcy Attorney.
I am pleased to report that after our bankruptcy law firm’s successful expansion to Seattle,we are now opening a bankruptcy law office in Tacoma to serve the needs of consumers in Pierce County. We have launched a Tacoma bankruptcy website which can be found at http://www.tacoma-bankruptcyattorney.net/
Tacoma Bankruptcy Law Office
The original post is titled Tacoma Bankruptcy Law Office , and it came from Portland Bankruptcy Attorney | Northwest Debt Relief .
The filing of a chapter 13 bankruptcy case puts a stop to most creditor actions, including most foreclosure cases. Under chapter 13, a property owner is given the opportunity to reorganize his affairs while under the protection of the Bankruptcy Court.
The following three main features available under chapter 13 are described below.
1. Mortgage modification
2. Chapter 13 Plan to reinstate mortgage
3. Avoiding of junior mortgages
Mortgage Modification - Mediation
Within the chapter 13 case, a property owners may make use of the Bankruptcy Court's new "Loss Mitigation Mediation" (LMM).
This program is innovative in certain respects. Under this program, a Bankruptcy Court appoints a meditor to help the parties reach an agreement to modify the mortgage. A mediator is able to help the homeowner and mortgage company communicate and reach an agreement for modification.
This program also involves the use of an internet "portal" which allows the homeowner to upload all the documents needed for the mortgage company to consider for a modification. Through this portal the homeowner and mortgage company are also able to communicate.
Reinstate Mortgage
If a homeowner does not want to modify his mortgage, he may propose a chapter 13 plan to provide for the reinstatement of his mortgage by catching up the mortgage arrearage over a period of 3 to 5 years, while maintaining current payments.
Avoiding of Under Water Mortgages and Association Liens
If a second mortgage is "under water," the involved lien may be avoidable. To be avoidable as to residential property, there must not be any equity in the property to support the mortgage lien. That is, more is owed on the first mortgage than the value of the property. Association liens, including condominium association liens, may also be avoidable in whole or in part, to the extent that they are "under water."
(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
Atty. Jordan E. Bublick - 1221 Brickell Ave., 9th Fl., Miami, Florida
The filing of a chapter 13 bankruptcy case puts a stop to most foreclosure action and gives a homeowner the opportunity to pursue a mortgage modification. In addition, often second mortgages are avoidable in a chapter 13 plan
Mortgage Modification - Mediation
Within the chapter 13 case, a property owners may make use of the Bankruptcy Court's new "Loss Mitigation Mediation" (LMM).
This program is innovative in certain respects. Under this program, a Bankruptcy Court appoints a meditor to help the parties reach an agreement to modify the mortgage. A mediator is able to help the homeowner and mortgage company communicate and reach an agreement for modification.
This program also involves the use of an internet "portal" which allows the homeowner to upload all the documents needed for the mortgage company to consider for a modification. Through this portal the homeowner and mortgage company are also able to communicate.
Avoiding of Under Water Mortgages and Association Liens
If a second mortgage is "under water," the involved lien may be avoidable. To be avoidable as to residential property, there must not be any equity in the property to support the mortgage lien. That is, more is owed on the first mortgage than the value of the property. Association liens, including condominium association liens, may also be avoidable in whole or in part, to the extent that they are "under water."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
Atty. Jordan E. Bublick - 1221 Brickell Ave., 9th Fl., Miami, Florida - www. bublicklaw.com
The bankruptcy law regarding the scope of the chapter 13 discharge is complex and has recently undergone major changes. Therefore, debtors should consult competent legal counsel prior to filing regarding the scope of the chapter 13 discharge.
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A chapter 13 debtor is entitled to a discharge upon completion of all payments under the chapter 13 plan so long as the debtor: (1) certifies (if applicable) that all domestic support obligations that came due prior to making such certification have been paid; (2) has not received a discharge in a prior case filed within a certain time frame (two years after a prior chapter 13 cases and four years after a prior chapter 7 case) and (3) has completed an approved course in financial management.
The discharge releases the debtor from all debts provided for by the plan or disallowed with limited exceptions. Creditors provided for in full or in part under the chapter 13 plan may no longer initiate or continue any legal or other action against the debtor to collect the discharged obligations.
As a general rule, the discharge releases the debtor from all debts provided for by the plan or disallowed, with the exception of certain debts referenced in 11 U.S.C. § 1328. Debts not discharged in chapter 13 include certain long term obligations (such as a home mortgage), debts for alimony or child support, certain taxes, debts for most government funded or guaranteed educational loans or benefit overpayments, debts arising from death or personal injury caused by driving while intoxicated or under the influence of drugs, and debts for restitution or a criminal fine included in a sentence on the debtor's conviction of a crime. To the extent that they are not fully paid under the chapter 13 plan, the debtor will still be responsible for these debts after the bankruptcy case has concluded.
Debts for money or property obtained by false pretenses, debts for fraud or defalcation while acting in a fiduciary capacity, and debts for restitution or damages awarded in a civil case for willful or malicious actions by the debtor that cause personal injury or death to a person will be discharged unless a creditor timely files and prevails in an action to have such debts declared nondischargeable. .
The discharge in a chapter 13 case is somewhat broader than in a chapter 7 case. Debts dischargeable in a chapter 13, but not in chapter 7, include debts for willful and malicious injury to property (as opposed to a person), debts incurred to pay nondischargeable tax obligations, and debts arising from property settlements in divorce or separation proceedings.(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
Atty. Jordan E. Bublick - 1221 Brickell Ave., 9th Fl., Miami, Florida - www. bublicklaw.com
The bankruptcy law regarding the scope of the chapter 13 discharge is complex and has recently undergone major changes. Therefore, debtors should consult competent legal counsel prior to filing regarding the scope of the chapter 13 discharge.
A chapter 13 debtor is entitled to a discharge upon completion of all payments under the chapter 13 plan so long as the debtor: (1) certifies (if applicable) that all domestic support obligations that came due prior to making such certification have been paid; (2) has not received a discharge in a prior case filed within a certain time frame (two years after a prior chapter 13 cases and four years after a prior chapter 7 case) and (3) has completed an approved course in financial management.
The discharge releases the debtor from all debts provided for by the plan or disallowed with limited exceptions. Creditors provided for in full or in part under the chapter 13 plan may no longer initiate or continue any legal or other action against the debtor to collect the discharged obligations.
As a general rule, the discharge releases the debtor from all debts provided for by the plan or disallowed, with the exception of certain debts referenced in 11 U.S.C. § 1328. Debts not discharged in chapter 13 include certain long term obligations (such as a home mortgage), debts for alimony or child support, certain taxes, debts for most government funded or guaranteed educational loans or benefit overpayments, debts arising from death or personal injury caused by driving while intoxicated or under the influence of drugs, and debts for restitution or a criminal fine included in a sentence on the debtor's conviction of a crime. To the extent that they are not fully paid under the chapter 13 plan, the debtor will still be responsible for these debts after the bankruptcy case has concluded.
Debts for money or property obtained by false pretenses, debts for fraud or defalcation while acting in a fiduciary capacity, and debts for restitution or damages awarded in a civil case for willful or malicious actions by the debtor that cause personal injury or death to a person will be discharged unless a creditor timely files and prevails in an action to have such debts declared nondischargeable. .
The discharge in a chapter 13 case is somewhat broader than in a chapter 7 case. Debts dischargeable in a chapter 13, but not in chapter 7, include debts for willful and malicious injury to property (as opposed to a person), debts incurred to pay nondischargeable tax obligations, and debts arising from property settlements in divorce or separation proceedings.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
Chapter 13 Bankruptcy Case Tip 1 There are many tips that I can give you which will help you have a successful chapter 13 case or at least the most success possible under your circumstances. The biggest tip that I can give you however, is to go on payroll control for your chapter 13 trustee+ Read MoreThe post Three Tips For A Successful Chapter 13 Bankruptcy Case appeared first on David M. Siegel.
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