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One of the little known facts in a Chapter 13 bankruptcy, is that someone can repay a vehicle loan using the Till rate of interest rather than contract rate, as well as value the vehicle at it’s current market value.  That can be important if the vehicle is “underwater” and more is owed than what it is actually worth.

But what exactly is a Till Rate?  And why has it been going up over the past couple years?  Do we expect it to drop back down?  After all, it was incredibly low for so many years.

The Till Rate, or Trustee rate, is a presumptive interest rate used in chapter 13 cases paying off secured debts over the life of the Chapter 13 Plan. The rate takes its name from the  Supreme Court case Till v. SCS Credit Corp., which affirmed the notion that interest in chapter 13 was the combination of a risk factor and the prime rate.  The Till rate is calculated from the Wall Street Journal “Prime” rate, plus 1.5.

EFFECTIVE DATE RANGE TILL RATE
03/23/2023 9.50%
02/02/2023 9.25%
12/15/22 9.00%
11/3/2022 8.50%
9/22/22 7.75%
7/28/22 7.00%
6/16/22 6.25%
5/5/22 5.50%
3/17/22 5.00%
3/17/20 4.75%

There are so many things that can be done in a bankruptcy, whether Chapter 7 or 13.  For instance, did you know that we can even reduce or eliminate federal student loans now with the new DOJ guidance?  We helped teach an all day class on that to our fellow attorneys last week.

Come talk with us if you’d like to know more about how a bankruptcy filing can help dig you out of a hole.

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arkovich_law-narrowI know I posted about this before, but it bears repeating as I fear many homeowners will lose their home to foreclosure if they don’t know about this very important rule change last summer.

Important new change for opposing MFSJ for those living in Florida.  Don’t expect to just show up at the hearing and argue — this rule will prevent anything you say from helping you.

Take a look at the 4th Circuit case which I believe is the first ruling on the amended MFSJ rule.  Page 4:  https://www.4dca.org/content/download/839898/opinion/212397_DC05_06082022_101625_i.pdf

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By now everyone (our attorney friends) has probably watched a CLE on the new DOJ Guidance to discharge federal student loans, but do you really understand how to do the process?
We are on a panel set up by the Bransons in Orlando doing an all-day workshop via Zoom on 4/3/23 for the step-by-step process. Including how to draft complaints, serve summons properly, how to fill out the attestation form, what/when to give the DOJ information, and how to get paid. Most likely this will be a $2,500.00 no look per creditor for student loan adversary or you can file a fee application.
I’ll also have a section on other options that are only good for a short period of time when folks have non-Direct federal student loans and an adversary won’t work. This will include the new one time account adjustment under the IDR Waiver, PSLF, the new Repaye calculations which should make an IDR payment roughly 1/3 of what it used to be, BDTR claims are now processing for full forgiveness, the 10k forgiveness appeal and an update on TPD and the payment pause.
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arkovich_law-narrowSome borrowers run into trouble with their mortgage companies that is not of their own doing.  One thing the mortgage servicer likes to say is that it isn’t their problem, the prior servicer handled that – and the borrower is still in default or owes some fee.

However, the subsequent servicer has liability for this.

State v Family Bank of Hallandale, 667 So2d 257 (Fla. 1st DCA  1995) is a case that can be used to show subsequent servicer liability:  The law is well established that an unqualified assignment transfers to the assignee all the interests and rights of the assignor in and to the thing assigned.

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arkovich_law-narrowHome sellers and home buyers are likely both waiting for some kind of change in the financing markets right now.

Those homeowners locked in with low rates do not wish to sell, but cannot maintain a standard of living with their current income and increased expenses.  They may not qualify for an equity loan due to tighter credit conditions in the marketplace.  So they believe they are stuck and face mounting credit card debt.

Same with home buyers essentially, although for different reasons.  Mortgage rates above 6%, limited home inventory on the market, and now a limit to the marketability of mortgage bonds will place even more pressure on mortgage rates even if the Fed pauses the interest rates per the Wall Street Journal in its article today “How the Bank Mess Can Hit Home Buyers“.  This will limit home sales for those who are not cash buyers.

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Christie_1One of the early and frequent arguments made by opposing counsel in our private student loan discharge adversaries in bankruptcy is that the student loans were made for an educational benefit and thus are excluded from discharge.  Specifically, Section 523(a)(A)(ii) exempts from discharge “an obligation to repay funds received as an educational benefit, scholarship, or stipend.”  The creditors’ attorneys’ argue that there is ample case law to support that assertion.

The “ample” case law referenced by opposing counsel is an older view replaced by the current view clearly supported now by three circuits.  In other words, appellate law from these three circuits have more precedential value than trial level opinions often cited by defense counsel.  Bottom line, this is the typical initial creditor response that no longer has any merit.  It’s meant to test your knowledge in my opinion.  Many who are bringing these cases for the first time would fold because a student loan certainly appears to have an educational benefit at first blush.

The Second, Fifth and Tenth Circuit have recently affirmed that private student loans are not “obligation[s] to repay funds received as an educational benefit, scholarship, or stipend” – and thus not covered under 523(a)(8)(A)(ii).  See Homaidan v. Sallie Mae, Inc.

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arkovich_law-narrowLet’s say you have negotiated a settlement with a creditor. What should you include to help ensure that your credit is the best it can be?

First, under the Fair Credit Reporting Act (the “FCRA”), a creditor is not required to report anything, but what it does choose to report, must be accurate.

So this leaves the door open to ask for a trade line deletion. This means that the account won’t show up at all – no late pays, no delinquencies, and no language such as “settled for less than owed”. This is the best outcome, particularly if you have other accounts elsewhere with a positive history. Many original creditors won’t agree to this but if you can point to some kind of error on their part, you’ll be more successful in having the trade line deleted.

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arkovich_law-narrowStuck in a timeshare (or nowadays they are called vacation clubs or vacation ownership plans) you can’t get out of?  You can get rid of a timeshare in a bankruptcy.  If the timeshare is a contract agreement for points etc., then the contract can be rejected as an executory contract.  If the timeshare is a secured interest (and many are), then you can provide in a Chapter 13 Plan to revest the title to the timeshare company/lender and they get it back.

For example, the Order Confirming Plan would provide for recording purposes:

Pursuant to 11 U.S.C. Sections 1322(b) (8) & (9), title to said property shall vest in Wyndham Vacation Resorts, Inc.  Wyndham Vacation Resorts may file an unsecured claim for any resulting deficiency that may exist.  Confirmation of this plan shall constitute a deed of reconveyance to this property upon recording with the XX County Recorder.

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arkovich_law-narrowSupposed a foreclosure lawsuit is filed against you.  You file an Answer.  The plaintiff files a motion for summary judgment quickly.  New civil procedure rules require a homeowner to file his or her defense 20 days before a hearing.  Most people are unware of that rule and lose.  Even if they show up at the hearing, if they didn’t file their defenses to the MFSJ 20 days prior, they cannot raise any defenses.  This is even if they had already filed an Answer when they were initially served.  This is only one problem a homeowner could face in a foreclosure proceeding.

“I can’t imagine someone going through it without legal help, because I know how it was for me,” said Philip Jackson, a retired Clearwater police detective who has been involved in a long-running legal fight with St. Petersburg stemming from a foreclosure lawsuit the city brought against him in 2019.

Read more at: https://www.miamiherald.com/news/business/real-estate-news/article273093630.html#storylink=cpy

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