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Category Archives: Dischargeability of Debts

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Marriage Equality and The Equal Credit Opportunity Act

Posted in Banking Operations, Commercial Lending, Commercial Real Estate Lending, Debt and Judgment Collection, Dischargeability of Debts, Residential Foreclosure, Residential Real Estate Lending, Special Assets Litigation

On January 1, 2015, United States District Judge Hinkle issued an Order  ruling that all Florida counties are to start issuing marriage licenses to same-sex couples as of January 6, 2015. The implications of this ruling are significant for same-sex couples, and their creditors as well. There are various legal aspects to consider as Florida law… Continue Reading

Documentary Stamp Taxes: Enforcing a Promissory Note and Mortgage Prior to Payment

Posted in Commercial Lending, Commercial Real Estate Lending, Dischargeability of Debts, Residential Real Estate Lending

While failure to pay Florida’s documentary stamp taxes on a promissory note or mortgage can subject the offender to criminal and financial sanctions, the state’s courts of appeal are split when it comes to determining whether Florida law permits enforcement of a note or mortgage when those taxes remain unpaid.  The split centers on language… Continue Reading

Enforcing a Lost Promissory Note

Posted in Banking Operations, Commercial Lending, Commercial Real Estate Lending, Debt and Judgment Collection, Dischargeability of Debts, Loan Sales and Syndications, Residential Foreclosure, Residential Real Estate Lending, Special Assets Litigation

In Florida, it is well established that the original promissory note must be surrendered to the court as a condition of its enforcement. What do you do when you cannot find the original promissory note? Florida Statutes 673.3091 sets out a procedure to follow in order to  “reestablish” a lost note and provides that a… Continue Reading

Discharge and the Unscheduled Debt Part III: Collection of Non-Discharged Debt

Posted in Bankruptcy, Commercial Lending, Debt and Judgment Collection, Dischargeability of Debts

The Bankruptcy Code provides that creditors holding nondischargeable claims may pursue post-confirmation collection efforts. For example, § 1141(a), provides that a confirmed plan binds the debtor and the debtor’s creditors, “except as provided in subsections (d)(2),” which subsection provides that the confirmation of a plan does not discharge an individual debtor from debts that are… Continue Reading

Discharge and the Unscheduled Debt Part II: Punitive Effects of Intentional Non-Disclosure

Posted in Bankruptcy, Commercial Lending, Debt and Judgment Collection, Dischargeability of Debts

In our previous post we discussed the due process requirements that underpin a debtor’s bankruptcy discharge. We noted that a debtor’s failure to schedule an actual or potential claim may prejudice the debtor’s ability to discharge any debt under such claim. Courts understand that debtors may inadvertently fail to list or schedule a debt. Under… Continue Reading

Discharge and the Unscheduled Debt: Discharge Requires Due Process

Posted in Bankruptcy, Commercial Lending, Debt and Judgment Collection, Dischargeability of Debts

Often referred to as the “holy grail” of bankruptcy law, a bankruptcy discharge releases the debtor from personal liability for certain specified types of debts. Because of the sweeping relief, a debtor must follow numerous requirements, among the most important disclosing all current or potential claims against the debtor or the bankruptcy estate. Failure of… Continue Reading