On February 13, 2018, the Florida Supreme Court accepted jurisdiction in an appeal emanating from a hot button issue in contested foreclosures – can the borrower in a foreclosure secure an award of contractual attorney’s fees after successfully defending the foreclosure on the basis that the lender lacked standing to enforce the mortgage contract?

DOMESTIC

Research on the impact of repossession risk on mortgage default

Terry O’Malley published an economic letter considering whether reducing the risk of repossession resulted in more Irish borrowers defaulting on their mortgages. The letter considers the impact of the ''Dunne judgment'' in 2011 which temporarily removed a bank's ability to lawfully repossess a home. One of the key findings was that borrowers defaulted on mortgages at a higher rate than if the repossession regime at the time was legally upheld.

Introduction

There are two principal mechanisms for the dissolution of a solvent Irish company:

• Voluntary Strike-Off (VSO); and
• Members' Voluntary Liquidation (MVL).

To the extent there are other Irish or EU entities in the group, it may also be possible to dissolve the company by way of merger with another group entity.

On December 11, 2017, in a case entitled In re Iliceto, 1 the Eleventh Circuit Court of Appeals affirmed the district court's decision,2 which held that Nationstar Mortgage, LLC ("Nationstar" or the "Creditor") received notice reasonably calculated under all the circumstances to apprise it that its status as a secured creditor was being challenged by Robert Iliceto ("Iliceto" or the "Debtor") in his Chapter 13 bankruptcy proceeding,3 even though the Debtor did not notify Nationstar that he was objecting to the validity of its mortgage.

Under § 727(a)(3) of the Bankruptcy Code, a court shall not grant a debtor’s discharge if “the debtor has concealed, destroyed, mutilated, falsified, or failed to keep or preserve any recorded information, including books, documents, records, and papers, from which the debtor’s financial condition or business transactions might be ascertained, unless such act or failure to act was justified under all of the circumstances of the case.” To prevail under § 727(a)(3) an objecting party must establish that the debtor has failed to maintain or preserve records.

In Reilly & Personal Insolvency Acts 2012-2015 [2017] IEHC 558, Baker J, 5 October, 2017, the High Court held that applications to Court under Section 115A of the Personal Insolvency Acts 2012-2015 (the Acts), for approval of a Personal Insolvency Arrangement (PIA) despite its rejection by creditors, must be made by a Personal Insolvency Practitioner (PIP) and not by the Debtor themselves.

The Eleventh Circuit has revisited the question of when a debtor may be judicially estopped from pursuing a civil lawsuit due to his or her failure to disclose the claims forming the basis of the lawsuit in their bankruptcy. Judicial estoppel is an equitable doctrine intended to protect courts against parties who seek to manipulate the judicial process by changing their legal positions to suit the exigencies of the moment.

Last year, Burr & Forman lawyers won a decisive victory in the Eleventh Circuit, in the case of In re Failla, 838 F.3d 1170 (11th Cir. 2016). In Failla, the Eleventh Circuit held that a debtor who files a statement of intention to “surrender” his or her house in bankruptcy may not oppose the secured creditor’s foreclosure proceeding in state court. Failla is a significant victory for secured creditors for two primary reasons. First, the Eleventh Circuit interpreted the meaning of “surrender,” as used in 11 U.S.C.

Signed, sealed, delivered, but am I yours? Apparently not, according to the United States Court of Appeals for the Third Circuit, at least in the context of allowed administrative expense claims under Section 503(b)(9) of the Bankruptcy Code.1 The Third Circuit recently considered and ruled in a case as to when goods are deemed “received” for the purposes of determining whether a creditor may recover the value of the goods as an allowed administrative expense claim under the Bankruptcy Code.

Baker J in the High Court has given three recent judgments in matters concerning Section 115A(9) of the Personal Insolvency Acts 2012 – 2015 (the Acts). This Section gives a Court power to review and approve a Personal Insolvency Application (PIA) rejected at a meeting of creditors.

Re JD (a debtor) [2017] IEHC 119, High Court, 21 February 2017