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EraseMortgage_iSTock.jpgWe are still able to strip second mortgages in a Chapter 7 bankruptcy here in Tampa Bay. However, there is a risk that the window of opportunity may be closing. Bank of America has filed several challenges to the U.S. Supreme Court in the past couple of years. Two of these cases, the U.S. Supreme Court has granted certiorari and has agreed to hear them: Bank of America v. Caulkett, Case No. 13-1421 and Bank of America, v. Toledo-Cardonna, Case No. 14-163. Currently, we are in the only Circuit that allows the stripping of second mortgages and HOA liens in a Chapter 7. The only requirement is that the home be worth less than the first mortgage at the time of filing. Once stripped, the second mortgage lien is gone forever, unless the bankruptcy discharge is revoked which is very rare.

Although we can strip an HOA lien, they are a little different in that they will likely have to be paid on transfer of the property by sale or death, even though avoided. Several cases out of the Southern District of Florida have addressed this in the past year. In re Sain, 2013 Bankr. LEXIS 4564 (Bankr. S.D. Fla. Oct. 29, 2013); In re Sain, 2014 U.S. Dist. LEXIS 12219 (S.D. Fla. Jan 31. 2014) and Stonebridge Gardens Sec Two v. Campbell, 2014 U.S. Dist. LEXIS 7195 (S.D. Fla. 2014).

Many people are still not aware that we can strip a second mortgage in a bankruptcy. So please help spread the word to those who may be in an underwater home, barely treading water themselves. This may be a once in a lifetime opportunity to use this law to get the home back to a position where equity can be rebuilt for retirement. With property values going up, sooner is better than later.

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door shut.jpgAs a Florida consumer bankruptcy attorney, we have been able to remove and strip off second mortgages due to the 11th Circuit’s decision in McNeal a couple years back. It is the only Circuit in the country that allows for a second mortgage lien to be stripped from homestead property. The key has been to show that the home does not have value over and above the amount owed on the first mortgage.

Bank of America, N.A. has an appeal in the works that the U.S. Supreme Court has just accepted for review per DS News.

So the window may be closing. Anyone who wants to strip their second mortgage on their home should contact a bankruptcy attorney right away — in case the court starts staying cases pending the appellate review, or in the event that the U.S. Supreme Court rules against homeowners.

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I don’t know if this is occurring to our Florida bankruptcy clients, but I imagine it is. The ABI

I have a warning for you about scam bill collectors. Criminal gangs are posing as law enforcement officials. They are calling people and emailing phony threats to collect on fake debts that you do not owe. They pose as bill collectors. But they’re not. They’re thieves. During the past 2 weeks, one attorney colleague has heard from at least five former clients who got these calls. The description is always the same. The caller will identify himself as a government official. The caller will proceed to tell you that they have a warrant for your arrest for bank fraud. You will be given an opportunity to pay an immediate cash settlement to avoid being arrested. These callers are thieves. They work out of telephone boiler rooms. Most are probably overseas, where they hide and avoid detection. The callers usually have a heavy foreign accent.

How Scam Bill Collectors Target You.

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cell phone stop.jpgMany of our Tampa Bay, Florida clients facing foreclosure want to speak with their mortgage company and reach some kind of agreement for a loan mod, deed in lieu, cash for keys or short sale. Many do not. They’ve been there and done that and no longer want to receive in some cases hundreds of calls from a mortgage company.

So what do we recommend clients do in these situations? Well first of all, any company which calls your cell phone after you verbally tell them not to is acting in violations of the Telephone Consumer Protection Act (“TCPA”). If you have filed a bankruptcy, all calls regarding a debt are generally prohibited. All calls after you send a cease and desist letter are generally prohibited.

The reason I say generally prohibited is because there are some areas that may be allowed. For instance, a notice required by Florida Statute to send you information about cancelled homeowners insurance or escrow notices may be fine. But these are generally letters, not phone calls. However, even these notices are potentially improper if they address a debt being owed or otherwise appear to be an effort to collect a debt. We presently are involved in a class action in the Middle District of Florida, Tampa Division, of the U.S. Bankruptcy Court, on behalf of a client who continued to receive notices about insurance and escrow that appeared to state repeatedly that he would be charged for this debt — and he had filed bankruptcy and had obtained a discharge of all debt associated with the mortgage!

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Our firm doesn’t practice much in South Florida because it’s a little too far from our base in Tampa. But word has gotten around hundreds of miles away that the incumbent Judge Lewis leaves a lot to be desired in a Judge and it is negatively impacting homeowners facing foreclosure.

In case anyone reading this has friends or relatives in Palm Beach county, please pass along this blog and its links as we would like to help promote the candidacy of Jessica Ticktin as someone we feel would be an experienced, understanding and impartial judge.

Some words from Ms. Ticktin: https://www.youtube.com/watch?v=UW6HeTRPgEs

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I’m looking for someone fitting this description to help to publicize this problem – CNN Money is interested in doing a story – Please contact me if you know someone who would be willing to share their story and be interviewed. Plus I may be able to help…

Stay tuned, I’ll update this blog post when the story develops.

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cell phone stop.jpgHave you ever provided your cell number to a company and it later started to call you incessantly to collect a debt of someone else. I’ve recently had that happen to me. My father was hospitalized with a stroke and I gave my cell phone number to somebody at the hospital when we were making decisions about his medical care. At no time did I authorize the hospital to have its bill collectors call me at 9:00 p.m. every night well after my father was discharged from their care.

Fortunately, the Federal Communications Commission (FCC) just clarified a 2008 ruling and stated that such debt collection activity is in violation of the TCPA. (the Telephone Consumer Protection Act). The clarification resulted from a recent appellate case Nigro v. Mercantile Adjustment Bureau where someone had sued because they were called 72 times over a nine month period of time to collect on a $67 delinquent bill. Mr. Nigro had provided his cell phone number to the company when he called to shut off the service of his deceased mother in law’s account.

Mr. Nigro lost his case at trial. But the appellate court judges reached out to the FCC for clarification. The clarification stated that prior express consent to call is deemed to be granted only if the wireless number was provided by the consumer to the creditor and that such number was provided during the transaction that resulted in the debt owed. While Mr. Nigro did provide his number to the creditor, it was not during the transaction that resulted in the debt owed. This FCC clarification will have a nationwide impact.

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money palm tree.jpgMortgage companies in Florida must think money really does grow on trees as they are now suing for deficiency judgments on past foreclosures of homes. July 1, 2014 was the deadline in Florida for lenders to file deficiency lawsuits for foreclosure Judgments issued between July 1, 2009 and July 1, 2013. This is the result of the foreclosure bill last summer drastically dropping the number of years for a mortgage company to sue for a deficiency from five years to only one year.

So we’ve seen a flurry of filings from a couple groups: Dyck-O’Neal, Inc. and Collins Asset Group. The approaches have differed somewhat, Dyck-O’Neal files new actions for primarily FNMA while Collins substitutes plaintiffs and simply files a motion in an existing case that is likely re-opened to do so. Until recently, actions seeking a deficiency have been limited mostly to small local banks or credit unions. The Washington Post described Fannie and Freddie filing more deficiency actions through debt collection firms such as Dyck-O’Neil in order to stop strategic defaulters and try to collect debts on behalf of taxpayers. However, Dyck-O’Neal has been sanctioned in Georgia and Texas for improper actions.

Former Florida homeowners are just learning of this now when they are being served by process servers with a summons or a motion for deficiency judgment. Just when they thought their problems were behind them noted a recent Marketplace article.

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house.JPGThe Affordable Care Act has caused millions of people to sign up for Medicaid for the first time. Medicaid is a program of free health insurance provided to low to no income individuals. Although the care itself is free, there is a lien against estate assets for any Medicaid payments made for any individual who received benefits after he or she reaches 55 years of age. This includes a lien against their home.

In some states, a Medicaid lien will result in the loss of a homestead to the government. This is one of those unintended consequences we hear about. However, in Florida, we do not have to worry about a Medicaid recipient’s house being taken. This is because of the Florida homestead laws.

For additional questions and consultation on debt related issues, please consider contacting Arkovich Law

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medmalpractice.jpgIn a long awaited decision by the Florida Supreme Court, Estate of Michelle Evette McCall v. U.S., No. SC11-1148, the damages cap provided in the Tort Reform law from a few years back was ruled illegal as it violated the Equal Protection Clause of the Florida Constitution.

Although this opinion is limited to wrongful death noneconomic damages, it is likely that some trial courts will apply this Court’s reasoning to personal injury medical malpractice cases as well.

Because of the limits for noneconomic damages, it became cost prohibitive for plaintiff’s personal injury lawyers to seek relief for someone too young or too old to work. Why should those persons be entitled to any less than someone fully employed?

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