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Florida Banking Law Blog Legal developments impacting banking, finance and loan enforcement in Florida

Tag Archives: Chapter 13


Posted in Bankruptcy

Trustees, creditors and other interested parties are responsible for reviewing a chapter 13 Debtor’s plan and schedules to determine whether the Debtor’s plan complies with the Bankruptcy Code. This point is illustrated in a recent case out of the Middle District of Florida, Bankruptcy Court. In In re Ford, the chapter 13 Debtor’s schedules reflected… Continue Reading

Southern District Revises Mortgage Modification Mediation Program

Posted in Bankruptcy

Creditors take note; the Southern District of Florida Bankruptcy Court recently revised procedures for its Mortgage Modification Mediation Program. The new changes relate to individual debtors who are unable to settle at mediation with the lender for real property in which the debtor has an interest or is obligated on a mortgage or promissory note…. Continue Reading

Chapter 13 Debtors Choosing to Retain Residential Property and Not Claim Homestead Are Not Entitled to Wildcard Exemption

Posted in Bankruptcy

In Florida, it is well settled that a Chapter 7 debtor who does not claim or receive the benefit of the homestead exemption on his bankruptcy schedules is entitled to claim the “wildcard” exemption pursuant to Fla. Stat. § 222.25(4).  The “wildcard” exemption provides that a debtor can exempt up to $4,000 in personal property… Continue Reading

Recent Decision Creates Split in Middle District Regarding Whether 11 U.S.C. § 707(b)(2) Applies to Cases Converted to Chapter 7

Posted in Bankruptcy

In the last 2 years, three judges of the Middle District of Florida (Judges Funk, Delano and Williamson) have each issued opinions finding 11 U.S.C. § 707(b)(2) inapplicable in cases converted from a Chapter 13 to a Chapter 7.  These Courts have based their findings on the “plain language” of the provision. 11 U.S.C. §… Continue Reading

Eleventh Circuit Concludes That Filing a Proof of Claim After the Expiration of Statute of Limitations On the Ability to Collect a Debt Violates the FDCPA

Posted in Bankruptcy, Commercial Lending

Recently, the Eleventh Circuit Court of Appeals (the “Court”) ruled whether filing a proof of claim in a chapter 13 bankruptcy case after the statute of limitations on the ability to collect the debt expires violates the FDCPA.  In Crawford v. LVNV Funding, LLC, et. al., Debtor was indebted to a furniture company.  A third-party… Continue Reading

Non-Dischargeable Tax Debt Not Special Class of Unsecured Creditors

Posted in Bankruptcy, Debt and Judgment Collection

In numerous previous posts, we have noted that the purpose of the Bankruptcy Code is to help the “honest but unfortunate debtor.”  Like gerrymandering, certain “creative” debtors have attempted to classify their non-dischargeable debt as a separate, special class of unsecured creditors.  In a recent case out of the Eighth Circuit, In re Copeland, the… Continue Reading

Eleventh Circuit Rules Post-Confirmation Settlement Proceeds are Property of Chapter 13 Estate

Posted in Bankruptcy, Commercial Lending

A recent case out of the Eleventh Circuit Court of Appeals (the “Court”) concluded that proceeds stemming from a post-confirmation settlement agreement between a chapter 13 debtor and its mortgagor related to a violation of the automatic stay become property of the bankruptcy estate.  In Crouser v. BAC Home Loans Servicing, LP (In re Crouser),… Continue Reading

Eleventh Circuit Doubles Down on Lien Stripping

Posted in Uncategorized

When the Fourth Circuit handed down its opinion in the case of In re Davis,[1] which permitted lien stripping in “Chapter 20” proceedings, the stage was set for the Eleventh Circuit to expand debtor’s ability to escape from underwater junior mortgages.  Before the June 18th opinion in In re Scantling,[2] bankruptcy courts within the Eleventh… Continue Reading

Applicability of the Automatic Stay to Serial Chapter 13 Petition Filers

Posted in Bankruptcy

Ordinarily, when a debtor files a chapter 13 bankruptcy petition, the automatic stay is triggered immediately.  The stay prohibits lenders from pursuing any claim against the debtor unless they seek and are provided relief from the automatic stay.  However, lenders should be aware of certain scenarios where the automatic stay may expire without the need… Continue Reading

Eleventh Circuit Holds Replacement Value – Applies to Surrender of Collateral in Chapter 13 Plan

Posted in Bankruptcy, Commercial Lending

On March 27, 2014, the Eleventh Circuit (the “Court”) issued a ruling, which will have a major impact on how Chapter 7 and 13 debtors are able to treat claims of secured creditors. The issue in In re Brown, 13-13013, 2014 WL 1245266 (11th Cir. 2014) was whether §506(a)(2)’s valuation standard, which requires use of… Continue Reading

Caveat Debtor: Disgorging Inheritance in Chapter 13 Cases

Posted in Bankruptcy

A recent case out of the 9th Circuit, In re Dale, revives a controversial subject for Chapter 13 debtors: whether an inheritance received more than 180 days after commencement of the case is part of the bankruptcy estate.  Ultimately the 9th Circuit agreed with the 4th Circuit that while inheritance that debtor received more than… Continue Reading

BAPCPA Backfires: Unsecured Creditor’s Returns Decrease in Post-BAPCPA Landscape

Posted in Bankruptcy, Debt and Judgment Collection

A new study published by the American Bankruptcy Institute has found that the aggregate effect of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), which was passed in part to improve creditor returns in consumer bankruptcy proceedings, has actually had the opposite effect since the Act’s sweeping changes to the consumer bankruptcy… Continue Reading

The Threat of Lien Stripping in “Chapter 20” Bankruptcy

Posted in Bankruptcy, Debt and Judgment Collection

As discussed in the McNeal posts below, junior mortgage holders are increasingly finding that their mortgages are worth less than the paper they were printed on. Especially troubling to lenders, are conflicting decisions that allow liens, which otherwise would have passed through a Chapter 7 bankruptcy, to be avoided in a subsequent Chapter 13 proceeding…. Continue Reading

First Challenge to McNeal Reveals Lien Stripping Challenges for Chapter 7 and 13 Debtors

Posted in Bankruptcy, Commercial Lending, Debt and Judgment Collection

Nearly five months after McNeal was decided by the Eleventh Circuit, a challenge has arisen within the Eastern District of New York, which has historically been fertile ground for bankruptcy law. In Wachovia Mortgage v. Smoot, the court rejected a debtor’s attempt to strip off a wholly unsecured junior mortgage in a Chapter 7 proceeding,… Continue Reading