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    Florida bankruptcy court holds debtor who ‘surrenders’ property in BK cannot impede foreclosure
    2015-10-19

    The U.S. Bankruptcy Court for the Middle District of Florida recently held that, at a minimum, “surrender” under Bankruptcy Code §§ 521 and 1325 means a debtor cannot take an overt act that impedes a secured creditor from foreclosing its interest in secured property.

    In so holding, the Court found that actively contesting a post-bankruptcy foreclosure case is inconsistent with a “surrender” of the property.

    Filed under:
    USA, Florida, Banking, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Debtor, Foreclosure, Secured creditor, United States bankruptcy court
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    2nd Cir. Holds Debtor Entitled to Bankruptcy Homestead Exemption for Non-Primary Residence
    2021-01-12

    The U.S. Court of Appeals for the Second Circuit recently held that property in which a debtor’s dependent son lived part-time with his father qualified for the so-called homestead exemption contained in section 522(d)(1) of the Bankruptcy Code, regardless of state law.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP
    Authors:
    Hector E. Lora
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    5th Cir. Holds Mortgagee Needed to Issue New Acceleration Notice Before Foreclosing
    2018-05-23

    The U.S. Court of Appeals for the Fifth Circuit held that where a mortgagee rescinded a notice of intent to accelerate and then filed a foreclosure action without first issuing a new notice of intent to accelerate, it failed to meet its burden to show clear and unequivocal notice of intent to accelerate prior to filing suit, and therefore was not entitled to foreclosure judgment.

    Accordingly, the Fifth Circuit reversed the ruling of the trial court granting summary judgment in favor of the bank, and dismissed the foreclosure action.

    Filed under:
    USA, Texas, Banking, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Fifth Circuit
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    Fla. App. Court (5th DCA) Reverses Foreclosure Judgment That Excluded Interest, Escrow
    2017-08-24

    The District Court of Appeal of the State of Florida, Fifth District, recently reversed final judgment of foreclosure entered in favor of a mortgagee that omitted interest and escrow amounts due, and remanded to the trial court to modify judgment to include these amounts.

    In so ruling, the 5th DCA determined that the mortgagee met its burden to provide the trial court with figures necessary to calculate the interest and escrow amounts through its witnesses’ testimony and evidence.

    Filed under:
    USA, Florida, Banking, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Foreclosure
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    4th Cir. Holds Escrow, Other Principal Residence Mortgage Loan Items Not Subject to Chapter 13 Bifurcation
    2017-02-13

    The U.S. Court of Appeals for the Fourth Circuit recently held that “escrow funds, insurance proceeds, or miscellaneous proceeds” are protected by the anti-modification provisions for Chapter 13 bankruptcies as “incidental property” under the definition of “debtor’s principal residence” in the federal Bankruptcy Code.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Bankruptcy, Mortgage loan, Fourth Circuit
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    Bankruptcy Court holds wholly unsecured second mortgage lien may be ‘stripped off’
    2015-05-15

    The U.S. Bankruptcy Court for the Southern District of Florida recently held that a wholly unsecured second mortgage lien may be “stripped off,” even if the property encumbered by the lien is no longer part of the bankruptcy estate due to abandonment by the bankruptcy trustee.

    The Bankruptcy Court did not specifically reference the consolidated cases now before the U.S. Supreme Court in Bank of Amer. v. Toledo-Cardona, and Bank of Amer. v. Caulkett, which should resolve the issue of whether a wholly unsecured lien may be stripped off in a Chapter 7 bankruptcy.

    Filed under:
    USA, Florida, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Debtor, Unsecured debt, United States bankruptcy court
    Authors:
    Ralph T. Wutscher
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    In God We Trust, All Others Pay Cash Collateral: Can Chapter 11 Bankruptcy Debtors Use Assigned Rents for Business Reorganizations Under Ohio Law?
    2020-09-24

    IN BRIEF

    Filed under:
    USA, Ohio, Banking, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Coronavirus, European Securities and Markets Authority
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    11th Cir. Vacates Dismissal of Mortgagee’s Deficiency Claims Following Debtor’s Bankruptcy
    2018-05-14

    The U.S. Court of Appeals for the Eleventh Circuit recently vacated a trial court’s dismissal of a mortgagee’s deficiency claims and remanded to the trial court to determine whether the voluntary dismissal of a bankrupt debtor’s Chapter 11 case without a discharge had any effect on the mortgagee’s right to pursue its pre-petition deficiency claims.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Bankruptcy, Eleventh Circuit
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    6th Cir. Holds Debtors Could Compel Abandonment of Home If Little Equity Available
    2017-08-18

    The U.S. Court of Appeals for the Sixth Circuit recently affirmed a bankruptcy court’s order granting the debtors’ motion to compel the trustee to abandon their home as property of the estate because it had little equity and thus little value for unsecured creditors.

    A copy of the opinion is available at: Link to Opinion.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, United States bankruptcy court, Sixth Circuit
    Authors:
    Hector E. Lora
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    1st Cir. Holds IRS 1099-A Forms Did Not Violate Discharge Injunction
    2017-01-11

    The U.S. Court of Appeals for the First Circuit recently affirmed a bankruptcy court’s ruling that a mortgagee did not violate the discharge injunction in 11 U.S.C. § 524(a) by sending IRS 1099-A forms to borrowers after their discharge, agreeing that the IRS forms were not objectively coercive attempts to collect a debt.

    A copy of the opinion in Bates v. CitiMortgage, Inc. is available at: Link to Opinion.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Real Estate, Maurice Wutscher LLP, Bankruptcy discharge, Internal Revenue Service (USA), First Circuit
    Location:
    USA
    Firm:
    Maurice Wutscher LLP

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