by Carol Lawson Esq | Dec 28, 2015 | Bankruptcy
As the year comes to a close, some cases from 2015 in Bankruptcy Court should be noted.
§ 330(A) Hibbard v. General Electric Credit Union (In re Hibbard), 2015 Bankr. LEXIS 3885 (Bankr. M.D. Fla. November 13, 2015) (May, B.J.). Trustee’s attorneys’ fees awarded with significant reductions based on lodestar calculation.
§ 507(A)(1) In re Hause, 2015 Bankr. LEXIS 3923 (Bankr. M.D. Fla. November 13, 2015) (Jackson, B.J.). Claim for lump sum payment to debtor’s former spouse owed pursuant to divorce in lieu of alimony was a property settlement not entitled to priority status.
§ 1329(B)(1) In re Ford, 2015 Bankr. LEXIS 3883 (Bankr. M.D. Fla. November 13, 2015) (Funk, B.J.). The debtor could modify the plan when the medical condition resulted in decreased income.
§ 506(A) IN RE TRAVERS, 2015 Bankr. LEXIS 3934 (Bankr. E.D. Ky. November 16, 2015) (Schaaf, B.J.) The wholly unsecured junior lien could be avoided as Sixth Circuit precedent was not affected by the U.S. Supreme Court’s decision in Caulkett; discussing Lane case.
§ 522(D)(10)(D) IN RE ROYSTER, 2015 Bankr. LEXIS 4001 (Bankr. D. Kan. November 23, 2015) (Somers, B.J.)Attorney fees awarded to the debtor in state court divorce proceeding were not exempt.
§ 523(A)(8) JOHNSON V. UNITED STATES DEP’T OF EDUC. (IN RE JOHNSON), 2015 Bankr. LEXIS 4000 (Bankr. N.D. Ala. November 24, 2015) (Mitchell, B.J.)_Discharge of student loan debt denied absent undue hardship.
§ 547(B) DYMARKOWSKI V. SAVAGE (IN RE HADLEY, 2015 Bankr. LEXIS 3983 (Bankr.N.D. Ohio November 23, 2015) (Gustafson, B.J.) Prepetition transfer of motor vehicles to debtor’s attorney as payment of fees was avoidable.
§ 554(C) STURGEON V. HART CNTY. FIN., LLC (IN RE STURGEON), 2015 Bankr. LEXIS 3960 (Bankr. W.D. Ky. November 20, 2015) (Lloyd, B.J.)Bankruptcy court lacked jurisdiction over debtor’s adversary proceeding based on a claim abandoned by the trustee.
§ 105 KLOEBER V. MONTANARI (IN RE MONTANARI), 2015 Bankr. LEXIS 3682(Bankr. E.D. Tenn. October 29, 2015) (Bauknight, B.J.) Debtor sanctioned for failing to finalize agreed-upon, a binding settlement with creditor and settlement terms were incorporated in the final judgment.
§ 522(B) LOWE V. DEBERRY (IN RE DEBERRY), 2015 Bankr. LEXIS 3694 (Bankr. W.D. Tex. October 28, 2015) (Gargotta, B.J.) Proceeds from the post-petition sale of the exempt homestead were not the property of the estate.
§ 522(P)(1)(A) BRUESS V. DIETZ (IN RE BRUESS), 2015 Bankr. LEXIS 3672 (B.A.P. 8th Cir. October 29, 2015) (Saladino, B.J.) Debtor’s homestead exemption limited where the property was acquired within 1215 days prior to the petition date.
§ 524(A)(2) BEST V. NATIONSTAR MORTG. LLC (IN RE BEST), 2015 Bankr. LEXIS 3722 (B.A.P. 1st. Cir. October 30, 2015) (per curiam) Informational correspondence did not violate the discharge injunction.
§ 541 LEONARD V. WELLS FARGO HOME MORTG. CO. (IN RE LEONARD), 2015 Bankr. LEXIS 3686 (Bankr. N.D. Miss. October 29, 2015) (Ellington, B.J.)_Debtor lacked standing to pursue adversary proceeding based on the prepetition cause of action that was now the property of the estate.
§ 1307(B) IN RE MILLS, 2015 Bankr. LEXIS 3706 (Bankr. D. Kan. October 29, 2015)(Nugent, C.B.J.) Chapter 13 debtor had an absolute right to voluntary dismissal even inlight of alleged bad faith.
§ 1322(B) JORDAHL V. BURRELL (IN RE JORDAHL), 2015 Bankr. LEXIS 3721 (B.A.P. 8th Cir. November 2, 2015) (Schermer, B.J.) Debtor’s plan could not provide for regular payments on student loan debt while paying less on other unsecured non-priority debts.
Clearwater Bankruptcy, 28870 U.S. Hwy 19 #300, Hodusa Towers, Clearwater, FL 33761,
Phone: (727) 330-1627 email: calh@gate.net
by Carol Lawson Esq | Dec 15, 2015 | Bankruptcy
In case you were not aware, ALL of the Bankruptcy Forms were changed on 12/1/15 supposedly to make the process easier. Attached is a cheat sheet of the new forms.
form_number_conversion_chart_2015 (1)
Clearwater Bankruptcy, 28870 U.S. Hwy 19 #300, Hodusa Towers, Clearwater, FL 33761,
Phone: (727) 330-1627 email: calh@gate.net
by Carol Lawson Esq | Dec 15, 2015 | Holiday Greetings, Uncategorized
Happy Holidays from Clearwater Bankruptcy
Clearwater Bankruptcy, 28870 U.S. Hwy 19 #300, Hodusa Towers, Clearwater, FL 33761,
Phone: (727) 330-1627 email: calh@gate.net
by Carol Lawson Esq | Oct 24, 2015 | Florida Foreclosures, Foreclosure, Uncategorized
5th DCA State of Florida held that trial court erred in granting a mortgagee’s motion for summary judgment when the plaintiff failed to provide an authenticated notice of acceleration.
http://www.5dca.org/Opinions/Opin2015/020215/5D14-1191.op.pdf
Clearwater Bankruptcy, 28870 U.S. Hwy 19 #300, Hodusa Towers, Clearwater, FL 33761,
Phone: (727) 330-1627 email: calh@gate.net
by Carol Lawson Esq | Oct 24, 2015 | Consumer Credit, Florida Foreclosures, Foreclosure
3rd DCA Florida reversed a final summary judgment of foreclosure terminating constructions liens of the developer.
https://scholar.google.com/scholar_case?case=14261552780645400537&q=CDC+Builders,+Inc.+v+Biltmore&hl=en&as_sdt=40006
Clearwater Bankruptcy, 28870 U.S. Hwy 19 #300, Hodusa Towers, Clearwater, FL 33761,
Phone: (727) 330-1627 email: calh@gate.net
by Carol Lawson Esq | Sep 9, 2015 | Consumer Credit
When creditors or debt collectors are attempting to collect a past-due debt. You may receive debt collection calls and voicemails in their attempts to collect a debt. There are several rules, that must be strictly followed if the creditor or debt collector is going to comply with both state (“FCCPA”) and federal (“FDCPA”) law.
Many creditor and debt collectors use technology (i.e., computers or software) to place these debt collection calls. Automatic Telephone Dialing Systems (ATDS) and Predictive Telephone Dialing Systems (PTDS) are used to place calls repeatedly to consumers until a call is answered. This can mean that you are receiving calls dozens if not hundreds of times a month until a creditor or debt collector reaches you and secure payment. The Telephone Consumer Protection Act (“TCPA”) 47 U.S.C. Section 227, restricts telephone solicitations (i.e., telemarketing) and the use of ATDS, and PTDS from placing or making telephone calls to consumers cellular telephones, as well as the use of prerecorded voice messages, SMS text messages, and fax machines, in certain circumstances.
Under the Fair Debt Collection Practices Act (“FDCPA”), creditors are strictly prohibited from behaving in a way that can be classified as harassing. This includes calling debtors at all hours of the night, using offensive language, persistently communicating with a debtor at their place of work after being asked to desist and misrepresenting facts in any way.
If you have notified a creditor or debt collector that you have hired an attorney for representation regarding your debts, the debt collector cannot call you to collect the debt. If it does, it is violating both the FCCPA and the FDCPA. You could be entitled to up to $2,000.00 statutory damages plus reasonable attorney fees and costs. If you have suffered from the abuse of a harassing creditor, you may have rights. Have the following taken place:
- Creditor/Debt Collector has notice of attorney representation regarding the debt;
- Creditor/Debt Collector Calls your cell phone in an attempt to collect the debt and has been told not to;
- Creditor/Debt Collector uses an Automatic Telephone Dialing System,
If a creditor or debt collector leaves a voicemail on your answering machine or cell phone, never delete it! It is evidence that could assist you in proving a violation of consumer protection laws and getting potentially thousands of dollars in damages, you could be entitled to up to $1,500.00 per call. Specifically note if the call was made to your cell phone, what your cell phone number is, and why you think the call was placed using an automatic telephone dialing system, also make note of the details of when the call was received, to what phone, etc.
Revoking Consent
To revoke any consent Associated Recovery Systems or its affiliated entities have to contact you in an attempt to collect any debt owed to them, including revoking consent to use an automatic telephone dialing system to call your cellular telephone, please either:
- Tell them you have hired LAW OFFICE OF CAROL A. LAWSON, to represent you, give them our contact information and then use the Creditor Communications Log to capture information regarding debt collection calls;
- Send them a Cease & Desist Letter; or contact the creditor/debt collector and revoke consent with the creditor via their website or telephone.
Clearwater Bankruptcy, 28870 U.S. Hwy 19 #300, Hodusa Towers, Clearwater, FL 33761,
Phone: (727) 330-1627 email: calh@gate.net
by Carol Lawson Esq | Aug 30, 2015 | Consumer Credit
What you Need to Know:
Callers cannot avoid obtaining consumer consent for a robocall simply because they are not ‘currently’ or ‘presently’ dialing random or sequential phone numbers.”
2. A called party “may revoke consent at any time and through any reasonable means.”
The FCC states that “a called party may revoke consent at any time and through any reasonable means. A caller may not limit the manner in which revocation may occur.”
The FCC also emphasized that “regardless of the means by which a caller obtains consent, under longstanding [FCC] precedent, if any question arises as to whether prior express consent was provided by a call recipient, the burden is on the caller to prove that it obtained the necessary prior express consent.”
3. Consent must be specific to the type of call, and type of telephone service of the number being dialed.
4. Only “the consumer assigned the telephone number dialed and billed for the call” or “the non-subscriber customary user of a telephone number included in a family or business calling plan” may consent.
However, “providing one’s phone number evidences prior express consent to be called at that number, absent instructions to the contrary.”—I got a real problem with this part. Just because I give Google my phone number and post it on my webpage does not mean I consent for business to call and solicit me. I really hate the Google partner calls wanting to do my ads or SEO. Wonder if this counts as an expressed revocation of acceptance of solicitation calls under TCPA ???
5. “Callers are liable for robocalls to reassigned wireless numbers when the current subscriber to or customary user of the number has not consented, subject to a limited, one-call exception for cases in which the caller does not have actual or constructive knowledge of the reassignment.”
6. The FCC rejected one Petitioner’s arguments (subsequently withdrawn) that “the TCPA’s protections are limited to telemarketing calls to wireless numbers and should not require consent for non-telemarketing robocalls made with a predictive dialer.”
7. “The TCPA’s consent requirement applies to short message service text messages (“SMS” or “text message”),” as well as “internet to phone text messages,” in addition to voice calls.
8. The FCC’s 2012 “prior express written consent” rule is waived “for certain parties for a limited period of time to allow them to obtain updated consent.”
9. “'[O]n demand’ text messages sent in response to a consumer request are not subject to TCPA liability.”
10. “[C]ertain free, pro-consumer financial- and healthcare-related messages” are exempt “from the consumer-consent requirement, subject to strict conditions and limitations to protect consumer privacy.”
The FCC imposed the following restrictions and requirements regarding these messages:
“voice calls and text messages must be sent, if at all, only to the wireless telephone number provided by the customer of the financial institution;
voice calls and text messages must state the name and contact information of the financial institution (for voice calls, these disclosures must be made at the beginning of the call);
voice calls and text messages are strictly limited to the [specified purposes] and must not include any telemarketing, cross-marketing, solicitation, debt collection, or advertising content;
voice calls and text messages must be concise, generally one minute or less in length for voice calls (unless more time is needed to obtain customer responses or answer customer questions) and 160 characters or less in length for text messages;
a financial institution may initiate no more than three messages (whether by voice call or text message) per event over a three-day period for an affected account;
a financial institution must offer recipients within each message an easy means to opt out of future such messages, voice calls that could be answered by a live person must include an automated, interactive voice- and/or keypress-activated opt-out mechanism that enables the call recipient to make an opt-out request prior to terminating the call, voice calls that could be answered by an answering machine or voice mail service must include a toll-free number that the consumer can call to opt out of future calls, text messages must inform recipients of the ability to opt out by replying ‘STOP,’ which will be the exclusive means by which consumers may opt out of such messages; and
a financial institution must honor opt-out requests immediately.”
The FCC also adopted the following conditions for each exempted message made by or on behalf of a healthcare provider:
voice calls and text messages must be sent, if at all, only to the wireless telephone number provided by the patient;
voice calls and text messages must state the name and contact information of the healthcare provider (for voice calls, these disclosures would need to be made at the beginning of the call);
voice calls and text messages are strictly limited to [certain specific healthcare-related purposes]; must not include any telemarketing, solicitation, or advertising; may not include accounting, billing, debt-collection, or other financial content; and must comply with HIPAA privacy rules;
voice calls and text messages must be concise, generally one minute or less in length for voice calls and 160 characters or less in length for text messages;
a healthcare provider may initiate only one message (whether by voice call or text message) per day, up to a maximum of three voice calls or text messages combined per week from a specific healthcare provider;
a healthcare provider must offer recipients within each message an easy means to opt out of future such messages, voice calls that could be answered by a live person must include an automated, interactive voice- and/or keypress-activated opt-out mechanism that enables the call recipient to make an opt-out request prior to terminating the call, voice calls that could be answered by an answering machine or voice mail service must include a toll-free number that the consumer can call to opt out of future healthcare calls, text messages must inform recipients of the ability to opt out by replying ‘STOP,’ which will be the exclusive means by which consumers may opt out of such messages; and
a healthcare provider must honor the opt-out requests immediately.”
https://www.fcc.gov/document/tcpa-omnibus-declaratory-ruling-and-order-order
If your right have been violated contact our office to discuss the matter.
Clearwater Bankruptcy, 28870 U.S. Hwy 19 #300, Hodusa Towers, Clearwater, FL 33761,
Phone: (727) 330-1627 email: calh@gate.net
by Carol Lawson Esq | Jul 23, 2015 | Consumer Credit, Florida Foreclosures, Foreclosure
I just wrote a blog on Note Worthy Foreclosure Case for July in Florida check it out at
http://carollawsonpa.com/note-worthy-foreclosure-cases-in-florida-july-2015/
Clearwater Bankruptcy, 28870 U.S. Hwy 19 #300, Hodusa Towers, Clearwater, FL 33761,
Phone: (727) 330-1627 email: calh@gate.net
by Carol Lawson Esq | Jul 2, 2015 | Florida Foreclosures, Foreclosure
I don’t know about you, but, I’m seeing a trend and it is not good for the consumer. First the 4th DCA, then the 5th DCA and now the 2nd DCA rule Prior Servicer’s Records Admissible On Testimony By Subsequent Servicer. I wonder do any of these Judges know that the Creditor law firms have direct access to the payment history and can go in and manipulate charges and how the money is applied? These banks changes servicers and law firms constantly- do you have any idea how many people have touched your loan history? I don’t.
The latest case is AS Lily LLC v. Harold Morgan it was appealed from Judge Campbell in Pinellas County by The Solomon Law Firm on behalf of AS Lily. The 2nd DCA found that incorporation or adoption of prior servicer’s records was allowed if the servicer verified them before using them as his own. WAMCO XXVII, Ltd. V. Integrated Electronic Environments, Inc., 902 So. 2d 230 (Fla. 2d DCA 2005).
Judge Campbell had relied on Glarum v. LaSalle Bank Natl. Ass’n, 83 So. 3d 780 (Fla. 4th DCA 2011).
http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2015/May/May%2008,%202015/2D14-863.pdf
Clearwater Bankruptcy, 28870 U.S. Hwy 19 #300, Hodusa Towers, Clearwater, FL 33761,
Phone: (727) 330-1627 email: calh@gate.net
by Carol Lawson Esq | Jul 2, 2015 | Florida Foreclosures, Foreclosure
Le v. U.S. Bank, 5D14-578 (May 22, 2015) (Fla 5th DCA 2015)
US Bank’s Loan Payment History was used to establish the homeowner’s default and the amount of the alleged debt as is the case in all foreclosures. Often the histories contain information transmitted by one or more prior loan servicers, with only the current servicer present at trial. The question, in this case, was are these prior histories inadmissible hearsay within hearsay.
For a current servicer to establish the business records exception for information transmitted by a prior servicer under FL § 90.803(6), the testifying witness must not only testify that the current servicer verified the information it received, but must also have knowledge of the prior servicers’ record keeping procedures. See Kimberly Le v. U.S. Bank, 5D14-578 (May 22, 2015) (Fla 5th DCA 2015).
In Kimberly Le, this Court held that a payment history was admissible where the bank’s witness testified that her company’s loan boarding process (i) verifies the accuracy of the information it received from the prior servicer and (ii) confirms that the prior servicer’s entries conformed to industry standards. Id. at p.3. Unless the witness can testify to both elements, the information transmitted by the prior servicer does not satisfy the business records exception to hearsay.
Clearwater Bankruptcy, 28870 U.S. Hwy 19 #300, Hodusa Towers, Clearwater, FL 33761,
Phone: (727) 330-1627 email: calh@gate.net
