Recent Updates
April 28, 2010
State Must Prove Defendant's Knowledge of Driver's License Suspension
April 13, 2010
Sentencing Commission Votes to Eliminate Recent Criminal History Points
October 15, 2009
Consent to search inside of vehicle does not extend to locked containers
October 14, 2009
Making phone calls to get drugs for personal use not a felony
October 07, 2009
Duval County schools agree to reduce number of students getting arrested
Bankruptcy
This section of our blog updates issues dealing with bankruptcy in the Middle District of Florida (based in Jacksonvile, but includes Gainesville, Ocala, Daytona, and the surrounding area) and nationwide. Whether it involves filing a Chapter 7 or Chapter 13, keeping one's house, getting a fresh start from credit card debt, being laid off from work, repossession of homes, vehicles, cars, or how the means test applies to you, we seek to provide information that current and potential clients find useful.
Supreme Court to Review Student Loan Discharge by Declaration
September 30, 2009
The Supreme Court granted a petition for a writ of certiorari in a case involving the discharge of student loans, which are currently not dischargeable by statute absent undue hardship. The case is United Student Aid Funds, Inc. v. Espinosa.
More Foreclosures to come
September 09, 2009
The Treasury Department today stated that it anticipates millions more foreclosures in the coming months. Click here to read more about this fact.
At Arnold & New, we defend foreclosures and we help clients who need to file bankrutpcy. If you are looking for help in either of these areas, please contact us today.
Law School Violates Discharge Injunction
August 24, 2009
A recent law school graduate filed for Chapter 7 Bankruptcy, listing $415,128 in dischargeable debt. Included in that calculation was a $5,800 debt owed to Novus Law School for overdue tuition. In the petition, the law school was listed as a creditor and received all required notices.
Mortgage Modification Process not efficient, causing more foreclosures
August 11, 2009
CNN had an article this morning about the problems with loan modifications and how there is not a proper system set up to meet the crushing number of persons trying to modify their mortgages. Our firm has a full service foreclosure defense wing. If you need help in defending a foreclosure on your house or condo, give us a call at 904-731-3800.
Lull in Foreclosures was just the eye of the Storm
July 16, 2009
News out today that lull from the foreclosure moratorium in the winter and spring has resulted in a flood of new foreclosure filings nationwide, as well as in Jacksonville. Our attorneys help save homes through providing foreclosure defense in Jacksonville, St. Augustine, Orange Park, and Fernandina. We do that in two ways: 1. Answering the foreclosure action with often power defenses, and 2. Filing Chapter 13 to save the home. To read more about the increases in foreclosure filings, click here.
Student loan debts ruled dischargeable in a Chapter 13 bankruptcy even without proof of undue hardship; and you may be entitled to reimbursement on payments made.
July 06, 2009
The court in Needelman v. Pa. Higher Educ. Assistance Agency, 399 B.R. 69 (S.D. Ca. 2009), recently affirmed that student loans are dischargeable under a Chapter 13 bankruptcy, and further held that a debtor may be entitled to reimbursement of any payments made after discharge. Student loan debts were previously dischargeable only after proof of undue hardship was made in an adversarial proceeding, a very heavy burden to meet. However, the Needelman court, following the Ninth Circuit holding in Espinosa v. United Student Aid Funds, Inc., 545 F.3d 1113 (9th Cir. 2008), ruled that student loans may be grouped with all other unsecured debt and discharged where the creditor fails to object after receiving proper notice. Payments made towards the student loan debt after the date of the Chapter 13 discharge were reimbursed to the debtor, sending an important and potentially valuable notice to anyone who has student loan debt.
It is critical to have proper guidance in handling complex matters such as bankruptcy. At Arnold & New we offer experienced counsel in many areas of law including bankruptcy, family, criminal, immigration and civil litigation all in one full-service firm. Contact us directly for a free consultation in regards to any legal question or issue you may have. Don't let rightfully entitled money slip away due to a lack of professional guidance, contact Arnold & New now.
"Unlimited" Homestead Exemptions: A Protection or a Potential Pitfall
June 10, 2009
The recent holding in Parks v. Anderson (2009 WL 1407786, D. Kan 2009) has the potential to send shockwaves through states which allow unlimited homestead exemptions. The federal code 11 U.S.C. § 522 provides for specific assets which are exempt in bankruptcy; however, leeway is also given to the states to apply additional exemptions. In Florida, for example, one's homestead exemption in their primary residence is unlimited rather than capped as in the federal code. In order to prevent pending bankruptcy debtors from using such states as a safe haven §522(p) caps the homestead at $125,000 for any interest acquired within a 1,215 day time period in any and all states.
Not all attorney fee awards in divorce proceedings are domestic support obligations in Bankruptcy Court
May 19, 2009
In the recent case of In re Lopez (2009 WL 1064581, Bankr. S.D. Fla. 2009), the court held that attorney fees awarded in a dissolution proceeding were not a domestic support obligation entitled to an unsecured priority claim once in bankruptcy. Although attorney fees in divorce proceedings often are domestic support obligations, this ruling highlights the complexities of the overlap between bankruptcy and family law.
FEDERAL TRADE COMMISSION EXPOSES ?CREDIT REPAIR? SERVICES FOR THE FRAUD THEY ARE
March 23, 2009
CNBC reports that the Federal Trade Commission has finally started cracking down on credit repair companies that promise to take all the negative items off a credit report. While persons do end up with some false things on their credit report, the majority of persons who hire credit repair agencies do so with the hope that the agency will remove legitimate reports off their report. Many potential clients who have consultations with our firm ask why they should declare bankruptcy when for a few thousand dollars they can hire a credit repair agency to fix their credit.
Misconceptions about how Helping Families Save Their Homes in Bankruptcy Act Bill will affect house prices in Jacksonville, Florida
March 12, 2009
In February the House passed H.R. 1106 (Helping Families Save Their Homes in Bankruptcy Act 2009). It is predicted that the bill will pass the Senate solely on the backs of Democrats. Republicans have not made a decision about whether they would filibuster the bill, but that seems unlikely. The greatest misconception is that judges will be able to arbitrarily decide what a home's value is worth. Some bankers have gone as far as to say that judges will be shills for the homeowner and simply mark the house down to a level that would "make the homeowner happy."
Nothing could be further from the truth. The courts will conduct hearings in the same way they do now in considering the value of something in all Chapter 13 proceedings. First, the underlying debt is established. Second, the Trustee, debtor, and or the Bank may present evidence about the current value of the item. Despite the lower value of homes in general, sales of houses has actually increased in the Jacksonville area in recent months as foreclosures and distressed sales have actually caused the number of sales in increase. Increases in the number of sales make it easier to establish a market because there are more comparable sales to derive at a fair present value of the asset.
Moreover the value at which the home can be kept with the homeowner is less than what the bank could get at a foreclosure sale or a short sale. The bank would then be able to mark the asset and help bring a close to the process more quickly. Currently, banks are so far behind in getting foreclosures through the State courts that many persons in foreclosure are able to stay in the home without paying any mortgage payments for months and sometimes more than a year.
In a Chapter 13, a debtor must make their first payment towards their debt within 30 days of the filing of Chapter 13. Therefore, the debtor begins making payments and the bank can start receiving money more quickly in Chapter 13 reorganization than it would under a foreclosure.
Jacksonville bankruptcy Judges Paul Glenn and Jerry Funk will be addressing those issues at the Ralph W. "Buddy" Nimmons, Jr. Federal Practice Seminar in Jacksonville on April 23rd. I will report on their comments after the seminar about how they believe this bill may be enforced in the Jacksonville bankruptcy division of the Middle District of Florida.
Should you withdraw money from a 401k or file Bankruptcy?
March 12, 2009
Most persons who end up considering bankruptcy have tried to exhaust other sources of income before resorting to bankruptcy. One source of substantial savings is 401k. However, the first misunderstanding that persons considering bankruptcy have is that retirement accounts are exempt, up to one million dollars, from collection under a bankruptcy proceeding.
Foreclosure Rate up 81% in last year
January 15, 2009
The foreclosure rate in the United States, already at a record rate last year climbed another 81 % in 2008. For a full discussion of the issue, please see this article in Jacksonville's Florida Times Union. Many of our bankruptcy clients contact us because of a pending foreclosure or threat of foreclosure. There are many more options available to client's who file bankrutpcy before the foreclosure process starts than after the suit has begun if the goal of the client is to keep their house.
However, for those who do not wish to keep the house, a Chapter 7 is still an option to discharge the dificency that may result from a foreclosure on a house. This is particularly true for those who owe more on their house than the house is worth.
Our bankruptcy clients in Jacksonville, Orange Park, St. Augustine, and throughout Florida will have literally millions in debt discharged this year through the bankruptcy process. Not all persons qualify, so please contact us to see if we can help you at Arnold and New. Give one of our attorneys a call today.
Citigroup agrees to support Mortgage Modifications
January 08, 2009
Citigroup has agreed to back the Democrats' plan for modifying existing mortgages through a Chapter 13 plan. Again, currently first mortgages cannot be modified, even if the exisiting mortgage more than the home itself is worth. Under this plan, the mortgages could be modified as second mortgages or vehicle loans can be. There are exceptions to the rules and the modification process is lengthy. However, the relief can be tremendous.
Homes for $1,000
January 08, 2009
The real estate market in some parts of the country are so bad that existing homes are being sold by banks for $1,000.
BANKRUPTCY MAY SOON ALLOW REDUCTIONS IN PRINCIPAL ON HOMES
January 07, 2009
Under a Chapter 13 filing, the Bankruptcy Code allows that many obligations including car loans and second mortgages on homes can be reduced or sometimes eliminated (for mortgages) from a debtor's obligations if the value of the assets is less than the value of the loan on the asset. On January 6, Senator Dick Durbin and Representative John Conyers introduced new legislation titled "Helping Families Save Their Homes In Bankruptcy Act of 2009" which will allow bankruptcy judges to do the same thing on first mortgages on residences.
Chapter 7 vs. Chapter 13 filings with co-debtors
January 05, 2009
Assuming a debtor is eligible to file a Chapter 7 or a Chapter 13, one of the many issues to consider is whether your debt is held jointly with another person, often a spouse, child, or parent. If you file for bankruptcy under Chapter 7, your co debtor likely is liable for the entire debt, leaving them exposed to litigation to collect on the debt upon your filing of bankruptcy.
Car is in my name, but son makes the payments
January 05, 2009
Recently a potential client brought up a point which is a common issue we hear about from clients. The client has a son whose car is in the client's name, but the son makes the payment. The client believed that despite the fact that the car was titled in the client's name, a trustee in a bankruptcy proceeding would not be able to demand equity from the vehicle or sell the vehicle to raise money for unsecured creditors because the vehicle was being used by the son.
Nearly One-Third of Homes in Jacksonville Under Water
November 21, 2008
Today's Florida Times Union reported that nearly 1/3 of all homes in Jacksonville are under water, meaning that the owner of the home owes more on the home than the house is currently worth. Many of our bankrutpcy clients are in the situation, and in fact no client who has come into our office since June has had positive equity in their home. Most of our clients have bought a home between 2002 and 2007. This article addresses the problems facing homeowners today.
Congress Considering weaking Pension Laws
November 20, 2008
Post the fallout from the Enron debacle earlier this decade, Congress passed laws strengthening the requirements of companies to make deposits to keep pension plans strong. However, just two years later, CNBC is reporting that Congress is considering returning the laws to pre-Enron because of the tough economic times.
Tenancy by the Entirety in Bankruptcy and Homestead Exemptions
November 19, 2008
A court has held that under Florida law property held by a married couple under tenancy by the entirety may be exempt if only one of the spouses owes a debt. If both spouses owe a debt, the usual homestead exemptions could protect the home if bankruptcy proceedings are initiated.
In Florida, property held by husband and wife as tenants by the entireties belongs to neither spouse individually, but to both spouses. The property is not limited in size or description. Any property could be held as tenancy by the entirety, not just real estate. When property is held as a tenancy by the entireties, only the creditors of both the husband and wife, jointly, may attach the tenancy by the entireties property. Therefore, the property is not divisible on behalf of one spouse alone, and it cannot be reached to satisfy the obligation of only one spouse. If the both spouses owe the debt, the Florida constitutional homestead protection is more extensive than the protection bestowed by tenancy by the entireties law. For example, only spouses can own property as tenants by the entireties. Any natural person can claim the constitutional homestead protection. Also, joint creditors of the spouses can reach the entireties property, but they cannot reach property that the debtor claims as homestead, unless one of the applicable exceptions applies. The Florida Constitution therefore provides an unlimited and powerful exemption for Florida homeowners, married or not. If the property does not qualify under the homestead exemption, tenancy by the entirety could provide additional protection for property held as tenancy by the entirety.
Estate/asset planning is important in everyday life and is especially important when it comes to families that fall into economic problems. However, there are rules against pledging assets or hiding assets prior to the filing of bankruptcy. In fact, trustees and the courts will examine transfers made the 2 years prior to the filing at a minimum and upon good cause, can look back even further.
We can explore your assets allocations and explain what effect a bankruptcy might have on your estate and assets. Give us a call.
At the Arnold Law Firm, we continue to monitor advances in bankruptcy law. Please contact us to discuss your bankruptcy needs and concerns.
One of the most important aspects of the filing of a bankruptcy claim is the timing of the claim. Many important rights can be gained or lost based on a proper timing of the claim. Contact the Arnold Law Firm's bankruptcy attorneys today to discuss your bankruptcy needs.
