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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
The decision in In re Woodberry, ___ B.R. ___, 2008 WL 677810 (Bkrtcy.D.S.C.)(Duncan, J.) illustrated the issue whether the mortgage servicer qualified to file a motion for stay relief as a "party in interest" and "real party interest." Under the facts of this case, the court held that it was a "party in interest" and "real party in interest" and allowed it to pursue its motion for stay relief.
In this case, there was an original "Lender" and MERS as "Mortgagee". The allonge to the mortgage note contained a blank endorsement. The court explained that an "allonge" is a paper annexed to a negotiable instrument for endorsement too numerous or lengthy to be contained in the original. There was no recorded assignment of the mortgage prior to the filing of the motion. Wells Fargo Bank NA d/b/a America's Servicing Co. ("ASC") was the servicer for US Bank NA as trustee pursuant to a Securitization Sub Servicing Agreement (the "Sub Servicing Agreement"). US Bank NA was trustee for Structured Asset Investment Loan Trust Mortgage Pass-Through Certificates, Series 2005-8.
ASC filed a motion for stay relief in this chapter 7 case. The debtor objected to ASC's motion for stay relief although she did not dispute to being behind in her mortgage payments. The debtor argued that ASC is not the proper "party in interest." ASC offered testimony that it was in possession of the original note and that the Sub Servicing Agreement provides that it would be the custodian for US Bank NA and that its holds the documents in trust for US Bank NA. The Sub Servicing Agreement provides that the servicer collects payments due under the terms of the note and mortgage and will foreclose on the property in the event of a default. The Sub Servicing Agreement is filed with the SEC and is available on the SEC's website. MERS as nominee assigned the mortgage to US Bank NA as Trustee for the Structured Asset Investment Loan Trust Mortgage Pass-Through Certificates, Series 2005-8.
The Debtor argued that for the servicer ASC to be the proper "party in interest", it must hold both the note and be either the mortgagee or the assignee of the mortgage. The court found that applicable state law does not require both possession of the note and an assignment of the mortgage to prove ownership. The court found that when a negotiable note payable to order is indorsed by the payee, the note and its incidents pass in the commercial world by delivery. Dearman v. Trimmier, 26 S.C. 507, 2 S.E. 501. The law in the involved state does not require that assignment of mortgages be recorded. The court found that the allonge to the noted converted the note to a bearer instrument and as such, the ownership passes with delivery of the instrument and proof of ownership can be made by possession. The court noted that possession of a bearer instrument is prima facie evidence of ownership. The fact that the note is held in trust for another is not of significance. It is interesting to note that ASC apparently did not enter the original note into evidence, but only had a "default litigation specialist" and records custodian testify that she determined ownership of the involved note and mortgage by tracking it a computer screen of a computer based system.
The court found that the servicer ASC has standing as a "party interest" to seek relief from the stay as it had provided sufficient evidence as to ownership of the note and mortgage. The court stated that since ASC was in possession of the note and mortgage at the time it filed the motion for stay relief, it had made a prima facie case that it owned the note and mortgage albeit as custodian for the Trust.
The court noted that the Bankruptcy Code does not define "party in interest" but uses the term often. The term is not restricted to creditors and the determination of the status of a party in interest under a motion for stay relief under section 362(d) is made on a case by case basis with reference to the interest asserted and how the interest if affected by the automatic stay.
The court found that the servicer ASC had a contractual relationship with the US Bank NA and other parties as set forth in the Sub Servicing Agreement. The court noted that the transfer of the note to ASC by endorsement in blank vested it with the right of the transferor and that the owner or holder of a note has a right to payment. The court found that ASC is a "creditor" for purposes of the application of the term "party in interest."
But the court further analyzed that Fed.R.Bankr.P. 7017 applies to contested matters pursuant to Fed.R.Bankr.P. 9014(d). Fed.R.Bankr.P. adopts Fed.R.Civ.P. 17 which provides that "[e]very action shall be prosecuted in the name of the real party in interest". The term real party interest is on who under the applicable substantive law has the legal right which is sought to be enforced or is the party entitled to bring suit." In re Comcoach Corp., 698 F.2d 571, 573 (2nd Cir. 1983). The court found that the general principal of Comcoach is that "party in interest standing does not arise if a party seeks to assert some right that is purely derivative of another party's right in the bankruptcy proceeding." The court found that under the state's law, the plaintiff in a mortgage foreclosure suit should be the real, beneficial owner of the mortgage debtor." 27 S.C. Juris Mortgage Section 107. Despite this general proposition, the court noted that it appears that foreclosures and motions for relief from the stay are often brought by parties other than the beneficial owner.
The court found that other jurisdictions tend to favor the view that a loan servicer is a "party in interest" and a "real party in interest". "The general rule is that a mortgage servicer has standing by virtue of its pecuniary interest in collecting payments under the terms of the note and mortgage." See In re Tainan, 48 B.R. 205 (Bankr.E.D.PA. 1985), In re O'Dell, 268 B.R. 607, 618 (N.D.Ala.2001)(A servicer was allowed to defend a proof of claim on behalf of its principal). aff'd, 305 F.3d 1297, 1302 (11th Cir.2002)(A servicer is a party in interest in proceeding involving loans which it services"). The court noted that is seems to be the better view that a loan servicer, with a contractual duty to collect payments and foreclose a mortgage has standing to move from relief from stay in the Bankruptcy Court.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 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. www.bublicklaw.com
Florida Statutes provide for certain limited exemptions of life insurance.
Cash Surrender Value
Florida Statutes section 222.14 provides that the "cash surrender value" of life insurance "issued" upon the lives of citizens or resident of Florida is exempt from the claims of
- creditors of the person whose life is so insured (some courts hold insured must also be the owner of policy)
- creditors of the beneficiary
unless the policy was effected for the creditor's benefit.
Florida courts broadly construe the required nature of the "form" of the "cash surrender value" to include any cash value that may be obtained either by means of negotiation or pursuant to an agreement for surrendering the policy. One court held that this exemption applied to a certificate of deposit purchased with the cash surrender proceeds of the life insurance policy.
It should be noted that this statutory exemption is subject to disallowance if created by the conversion of non-exempt funds into exempt assets in contravention of Florida Statute sections 222.29 and 222.30.
Proceeds of Life Insurance - Exempt from Claims of Insured but Not Claims of Beneficiary
Florida Statutes section 222.13 provides for the exemption of the proceeds of life insurance from the creditors of the "insured" upon the death of a person residing in Florida. Courts hold that this statute provides for the exemption from the claims of creditors of the insured but not from the claims of the creditors of the beneficiary. This means that the proceeds are available to the claims of the beneficiary's creditors. 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 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 bankruptcy case of In re Dumford, ___ B.R. ___ (Bankr. S.D.Fla. 2009) involved a situation where a person placed their homestead into a revocable living trust and retained a "life estate" and subsequently filed for chapter 7 bankruptcy. In the chapter 7 case, the person, now a debtor in a bankruptcy case, claimed her life estate in the home as an exempt Florida "homestead".
The chapter 7 bankruptcy trustee objected to the exemption of this real property as exempt under the provisions of Florida Constitution Article X, Section 4. The trustee argued that since the real property was owed by the trust it was not owned by a "natural person." Article X Section 4 of the Florida Constitution provides as follows:
SECTION 4. Homestead; exemptions.—
(a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty, the following property owned by a natural person:
(1) a homestead . . .
To complicate matters further, the debtor also died during the bankruptcy case. Due to the death, the chapter 7 trustee attempted to amend the living trust to make the bankruptcy estate the beneficiary of the revocable living trust. This was an attempt by the chapter 7 trustee to become the sole owner of the property.
Fortunately for heirs of the now-deceased debtor, the court refused to allow the trustee to amend the living trust as the trustee did not act until after the death of the debtor. The court held that the trust by its own terms could only amended while the debtor was living and competent.
The court's ruling though leaves open the possibility that a future trustee could amend the trust of a living debtor. This case gives much caution to the idea of filing for chapter 7 bankruptcy while one's "homestead" is held in this type of trust.
If one must file for bankruptcy relief when the "homestead" is held in such a trust, one may instead consider filing for chapter 13 relief where one generally does not face liquidation powers of a chapter 7 trustee.
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 Lawyer - Chapter 13 Bankruptcy Lawyer Jordan E. Bublick has an office in Miami and has over 25 years of experience in filing chapter 13 and chapter 7 bankruptcy cases. His office is located in Miami at 1221 Brickell Ave., 9th Fl., Miami and may be reached at (305) 891-4055. www.bublicklaw.com
Florida Bankruptcy Exemptions
Florida law provides certain defined exemptions for property in the following categories:
Homestead - unlimited in value, l/2 acre in municipality, 160 acres outside municipality, Art. X, Section 4, Florida Constitution
Personal Property - to extent of $1,000, Art. X, Section 4, Florida Constitution and a further $4,000 in certain circumstances
Earnings of Head of Family - section 222.11(2)(a), Fla. Stat.
Motor Vehicles - to extent of $1,000, section 222.25, Fla. Stat.
Health Aides Professionally Prescribed - section 222.25, Fla. Stat.
Proceeds of Life Insurance on Florida Resident - section 222.13(1), Fla. Stat.
Cash Surrender Value of Life Insurance on Life of Florida Resident - section 222.14
Annuity Contracts - section 222.14, Fla. Stat.
Disability Income Benefits - section 222.18, Fla. Stat.
Workers' Compensation Benefits - section 444.22, Fla. Stat.
Qualified Tuition Programs, Prepaid College Trust Funds - section 222.22(1), Fla. Stat.
Health or Medical Savings Accounts - section 222.22(2), Fla. Stat.
Educational IRA - section 222.22(3), Fla. Stat.
Property Held as Tenants by Entireties for debts of only one spouseJordan 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 may wonder is it really possible to get student loans discharged, especially after hearing someone you know personally got theirs eliminated in bankruptcy. If this is the case, you may want to review the possibility with a qualified bankruptcy attorney. There may be some information you might not know that could help you either [...]
The best way to stop a garnishment is almost always through the filing of a bankruptcy. In both Washington and Oregon, we put an end to garnishments nearly every day and often get money back for our clients as well. For those few Washington debtors who for whatever reason cannot file bankruptcy(many Washington consumers believe that they are in this category but few actually are), it is important to know the rules of the garnishment game.
In Washington a combination of state and federal laws protect certain kinds of property and income from garnishment. There are, as always, a few exceptions to these exemptions for child support, federal student loans, and some other debts to the federal government so if the debt falls into one of these areas, please contact our offices immediately. However, under normal circumstances, the following types of income or money cannot be garnished or levied.
- Social Security disability and retirement benefits (unless you owe child support or, federal student loans, or a federal tax debt)
- SSI benefits
- TANF benefits (state welfare)
- ABD benefits (state disability)
- Unemployment Compensation (unless you owe child support)
- VA benefits (with some exceptions for money you owe the government or for support)
- Student Loans
- Child Support you receive
- $500 in your Bank Account and $1000 Additional Cash, for a total exemption of up to $1500
Try not to put any cash into a bank account if you can avoid it. Even though $500 in a bank account is exempt from garnishment if you have less than $1,500 in cash, the bank may freeze your account anyway if the creditor claims you actually have more than $1,500 total. This can result in bounced checks, overdraft fees, and other bank charges.bMost pensions are exempt from garnishment even after they are sent to you. But some are not. Do not have pension checks direct deposited into a bank account, if possible. See if the pension fund can mail pension checks directly to your home.
- Wages – If you make less than the following amounts, none of your wages can be garnished:$253.75 weekly
- $507.50 every 2 weeks
- $550.00 twice a month
- $1099.33 monthly
- Even if you take home more than these amounts, you may still keep 75% of your TAKE HOME PAY. (Example: You earn $400 per week after taxes. This is more than $253.75. Multiply your take home pay by 75% ($400 x .75 = $300). The law allows you to keep $300. A creditor can take $100 of that check.)
If possible, do not get your pay check by direct deposit. Wages are exempt from garnishment at the time your employer pays you. If you cash your check and put the money in a bank account, or if your employer pays you by direct deposit, a creditor may claim that the funds are no longer exempt as wages. Never give creditors permission to withdraw money from your bank account. If you absolutely must keep money in a bank account, avoid keeping it in an account where you also owe the bank money.
The original post is titled Avoiding Garnishment Outside of Bankruptcy in Washington , and it came from Oregon Bankruptcy Lawyer | Portland, Salem, and Vancouver, Wa .
Chapter 13 Bankruptcy - Chapter 7 Bankruptcy - 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 2011, the U.S. Supreme Court issued its 8-1 decision in Ransom. today. Justice Kagan wrote for the majority and Justice Scalia wrote a dissenting opinion. It was Justice Kagan's first opinion.
The majority opinion held that an over-median income debtor in chapter 13 is not entitled to the "ownership costs" deduction (approx. $471.00) in the computation of the means test (used to determine "disposable income") for a vehicle that is not encumbered by debt. The debtor is though is entitled to a deduction for the "operating costs" deduction (approx. $388.00) for an unencumbered vehicle.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.
Chapter 13 Bankruptcy - Chapter 7 Bankruptcy - 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 2011, the U.S. Supreme Court issued its 8-1 decision in Ransom. today. Justice Kagan wrote for the majority and Justice Scalia wrote a dissenting opinion. It was Justice Kagan's first opinion.
The majority opinion held that an over-median income debtor in chapter 13 is not entitled to the "ownership costs" deduction (approx. $471.00) in the computation of the means test (used to determine "disposable income") for a vehicle that is not encumbered by debt. The debtor is though is entitled to a deduction for the "operating costs" deduction (approx. $388.00) for an unencumbered vehicle.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.
Online payday loans
Here is a question that was recently asked:
Hello! I'm currently using a consumer law firm outside my state to settle multiple online payday loans I made several months ago. They are taking over $500 a month that goes to a dedicated account set up but they don't really try to tell me where my payments goes to. I won't be able to find out if all my debts were settled up until I finish the 10 month program. Rt. now I'm in a situation that I can't even make the monthly payments anymore. I just need to know if I did the right thing. Is there an alternative solution to my dilemma? Thanks!
In my experience, these types of companies charge too much in fees and take to long. Hence, their clients do not have much success as the first responding attorney noted.
I offer this service to my clients, however, they need to have the money saved up to offer a compromise. Otherwise, I believe that I am doing a disservice to the client. The key to debt settlement is to offer between 15% to 80% of the total value of the debt. If your disciplined enough, cancel your contract and set aside the $500 per month in a bank account. When you reach 50% of the debt level, call the company to offer a payment. Be careful however, they do not have to accept the offer and they have a right to sue you for the full amount, plus interest and maybe attorney fees too.
Too often the clients do not have enough money to "settle" their debt. If the debt is too much, then it is time to start talking about the dreaded "B" word, bankruptcy.
Ken Jorgensen, California Attorney
www.fresnobankruptcylawgroup.com
Photo credit: http://www.flickr.com/photos/pinkmoose/
While studies have shown that over the past year alone, bankruptcy filings have shown a slight decrease, this doesn’t necessarily mean the economy is improving. A number of consumers have cut back on spending and borrowing since the housing market collapse in 2007. But, as people try to stick to reasonable budget, dealing with other [...]
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