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Supreme Court Disappoints Lien Stripping Homeowners

At the beginning of this term, there was hope that the United States Supreme Court would issue an opinion in Bank of America v. Caulkett that would provide homeowners with the opportunity for lien stripping second mortgages  during bankruptcy.  Earlier this month, the Court issued its ruling and opinion and those hopes were crushed.  Lien Stripping Background The Court’s decision addressed two consolidated bankruptcy cases with substantially the same facts.  In each case, the bankruptcy de[...]

Florida Foreclosure Statute of Limitations

As we’ve discussed in earlier versions of this Florida foreclosure blog, the law on whether and when a lender can foreclose on the same property more than once is in flux.  The Florida Supreme Court is set to hear oral arguments in Bartram v. US Bank on October 7, 2015.  The court will decide whether the acceleration of a mortgage note by a lender conclusively and irreversibly begins the running of the Florida foreclosure statute of limitations (deadline for bringing a lawsuit). In the inte[...]

Bankruptcy Discrimination in Florida

It is axiomatic that the purpose of permitting Bankruptcy of all kinds is to allow the debtor a fresh start.  The United States Supreme Court has recognized that this goal benefits the public as well as the debtor because the debtor receives “a new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt.”  Bankruptcy Discrimination Protection It is this overarching goal that Congress was undoubtedly pursuing when it drafted[...]

Karma Comes to Mortgage Relief Scams

Taking advantage of distressed homeowners is reprehensible.  Recently, one group running mortgage relief scams got a taste of what it feels like to lose money when the Southern District of Florida, a federal court, entered a judgment totally over $27 million against a group of entities accused of ripping off homeowners. Mortgage Reilef Scam Background As we’ve discussed in earlier blogs, homeowners that have fallen behind on their mortgages do have options that range from defenses to foreclos[...]

Condition Precedent Defenses in Foreclosure Actions: Raise Them or Lose them

Mortgages are contracts under which both the lender and the homeowner, borrower have obligations.  One of the homeowner’s obligations is to make their mortgage payments.  When homeowners are unable to meet this obligation, the lender typically begins foreclosure proceedings.  However, before filing the foreclosure action, the lender typically has contractual obligations, like giving notice of default, which it must comply with before it can file the lawsuit.  The notice and other requireme[...]

Executory Contracts in Business Bankruptcy

Business Bankruptcy Business bankruptcy, typically filed under Chapter 11 of the bankruptcy code, present a host of unique issues.   One of those issues is what happens to executory contracts.  What is an executory contract? Even though it has a large statutory section dedicated to them, the Bankruptcy Code does not explicitly define what an executory contract is.  However, courts routinely define such contracts in the same way.  Essentially, an executory contract is one where both parties [...]

Mortgage Relief Act Extension

There have always been legal and practical options for those having difficulty making their mortgage payments.  However, during the housing crisis, legislators and agencies added additional options and programs designed to help struggling homeowners.  As the housing market and economy continue to recover, some of the relief programs and options are beginning to reach their deadlines. Two of the largest such programs, Home Affordable Modification Program (HAMP) and the Home Affordable Refina[...]

Florida Tenant Rights in Foreclosure

The news can be tough to follow, from the violence in Maryland to the earthquake in Nepal. The good news unfortunately seems to get buried in small articles and clips.  However, it is there fore those who look.  The past few weeks have yielded good news for homeowners and tenants alike, in different forms. As discussed in earlier blogs, the Protecting Tenants at Foreclosure Act of 2009 (PTFA) expired at the start of this year.  The PTFA protected tenants from being immediately evicted if the [...]

Social Media Property Rights in Bankruptcy

Modern technology, particularly the internet and smartphones, has brought with it many new types of property, property that is largely intangible.  Intangible property does not have a physical existence and cannot be touched or moved like a car, painting, or other type of tangible property.  Much of the law has evolved to deal with tangible property so courts are still adapting to how to deal with intangible property in all areas of the law. Earlier this month, one bankruptcy court began to ta[...]

Homeowner with Mortgage Insurance Foreclosed Unnecessarily

Laura Coleman Biggs is a former nurse whose husband died in 2003.  After his death, she struggled to make payments on their home for years.  Upon the advice of her attorney, she filed for bankruptcy but didn’t pursue the case to completion.  The filing alone was enough to scare creditors and she lost the ability to use her credit cards.  Foreclosure proceedings were commenced against Biggs on behalf of the lender, a Bank of America subsidiary and by December of 2013, Biggs was on the verge[...]