Bankruptcy Lawyer - Chapter 13 Bankruptcy Lawyer Jordan E. Bublick has an office in Miami and has over 25 years of experience in filing chapter 13 and chapter 7 bankruptcy cases. His office is located in Miami at 1221 Brickell Ave., 9th Fl., Miami and may be reached at (305) 891-4055. www.bublicklaw.com
The status of real property held in trust as homestead has been questioned in recent cases. Often a person will convey his homestead to a revocable trust of which he remains trustee and beneficiary.
Some courts uphold the claim of homestead status if the trust is freely revocable and the debtor is the sole beneficiary and thereby the grantor maintains a legal or equitable interest in the real estate. The courts note that the Florida Constitution does not distinguish the different types of ownership interests that may qualify for the homestead exemption.
Friday, August 30, 2013
Thursday, August 29, 2013
Time Period Credit Report
Miami Personal Bankruptcy Lawyer Jordan E. Bublick has over 25 years of experience in filing Chapter 13 and Chapter 7 bankruptcy cases. His office is centrally located in Miami at 1221 Brickell Avenue, 9th Fl., Miami and may be reached at (305) 891-4055. www.bublicklaw.com
The federal statue that deals with the time period restriction on credit reporting on credit reports is 15 USC 1681 (c).
The federal statue that deals with the time period restriction on credit reporting on credit reports is 15 USC 1681 (c).
The "Consumer" Exception to Chapter 15
Miami Bankruptcy Lawyer Jordan E. Bublick has over 25 years of experience in filing chapter 13 and chapter 7 bankruptcy cases. His office is in Miami at 1221 Brickell Ave., 9th Fl., Miami and may be reached at (305) 891-4055. www.bublicklaw.com
In the case of In re Steadman, 410 B.R. 397 (Bkrtcy.D.N.J. 2009), the court held that the "consumer" exception to applicability of chapter 15 applied and therefore denied the U.K. foreign trustee's petition for recognition of a foreign representative under chapter 15. In this case, the debtor had transferred substantial inherited sums of money from the U.K. to his wife in New Jersey. Subsequently, the debtor filed for insolvency relief in the U.K. The U.K. receiver discovered the transfer of the inheritance and a trustee was appointed who sought to obtain recognition as a foreign representative under chapter 15.
Section 1501 (c)(2) provides that chapter 15 does not apply to an individual within the section 109 (e) debt limitations who is a U.S. citizen or an alien lawfully admitted for permanent residence in the U.S. The issue before the court was whether this exception applied to the debtor who held a permanent resident card with an expiration date for which the debtor applied to be removed. The court stated that although the foreign representative generally bears the burden of proof as to the criteria of recognition proceeding, the debtor beared the burden of proof to establish that chapter 15 is not applicable as section 1501 (c)(2) is an exception to the rule.
The Court found that the debtor met the section 109 (e) debt limitations and further found that based on the legislative history, the intent of the Model Law, and other policy considerations, the debtor was in "the class of person intended by Congress to be excepted from chapter 15" as he made clear his intent to remain in the United States and had a family, a job, and owned a home in the United States. The Court rejected the trustee’s argument that the debtor’s status was not “permanent” and was merely “conditional” using the Immigration and Nationality Act (“INA”) as a source of the term “permanent.” The Court held that the INA’s statutory definition of “permanent” includes one that “may be subject to change.”
In the case of In re Steadman, 410 B.R. 397 (Bkrtcy.D.N.J. 2009), the court held that the "consumer" exception to applicability of chapter 15 applied and therefore denied the U.K. foreign trustee's petition for recognition of a foreign representative under chapter 15. In this case, the debtor had transferred substantial inherited sums of money from the U.K. to his wife in New Jersey. Subsequently, the debtor filed for insolvency relief in the U.K. The U.K. receiver discovered the transfer of the inheritance and a trustee was appointed who sought to obtain recognition as a foreign representative under chapter 15.
Section 1501 (c)(2) provides that chapter 15 does not apply to an individual within the section 109 (e) debt limitations who is a U.S. citizen or an alien lawfully admitted for permanent residence in the U.S. The issue before the court was whether this exception applied to the debtor who held a permanent resident card with an expiration date for which the debtor applied to be removed. The court stated that although the foreign representative generally bears the burden of proof as to the criteria of recognition proceeding, the debtor beared the burden of proof to establish that chapter 15 is not applicable as section 1501 (c)(2) is an exception to the rule.
The Court found that the debtor met the section 109 (e) debt limitations and further found that based on the legislative history, the intent of the Model Law, and other policy considerations, the debtor was in "the class of person intended by Congress to be excepted from chapter 15" as he made clear his intent to remain in the United States and had a family, a job, and owned a home in the United States. The Court rejected the trustee’s argument that the debtor’s status was not “permanent” and was merely “conditional” using the Immigration and Nationality Act (“INA”) as a source of the term “permanent.” The Court held that the INA’s statutory definition of “permanent” includes one that “may be subject to change.”
Sunday, August 25, 2013
11th Circuit Upholds "Forum Non-Conveniens" Dismissal
In the 2009 case of Kings, et al. v. Cessna Aircraft Co., 562 F.3d 1374 (11th Cir. 2009), the United States Court of Appeals for the 11th Judicial Circuit upheld the lower court's order dismissal of suits by European plaintiffs against an American aircraft company in the case on the basis of forum non conveniens The action arose out of a plan crash in Milan, Italy between a German and a Scandinavian aircraft. The lower court dismissed the suits of the European plaintiffs but not that of the American plaintiff (the suits were consolidated for administrative purposes only) on the basis of forum non conveniens.
The Court of Appeals noted that dismissal of the suits of the European plaintiffs on the basis of forum non conveniens is a final, appealable order. The Court noted though that it did not have jurisdiction to review the denial of the defendant's motion to dismiss as to the American plaintiff on the basis of forum non conveniens as it is not a final order. Furthermore, the Court did not find a basis to exercise "pendent appellate jurisdiction" as to the order of denial of dismissal of the American plaintiff. Pendent appellate jurisdiction is present when a nonappealable decision is "inextricably intertwined" with an appealable decision or when review of nonappealable decision is necessary to ensure meaningful review of the appealable decision.
Citing Leon v. Million Air., Inc. 251 F.3d 1305, (11th Cir. 2001), the Court stated that the following three factors must be demonstrated for the dismissal of a case on grounds of forum non conveniens: 1. an adequate alternative forum is available (burden of proof on the defendant), 2. the public and private factors weigh in favor of dismissal, and 3. the plaintiff can reinstate their suit in the alternative forum without undue convenience or prejudice. The Court listed the private and public interest factors to be considered as set forth by the U.S. Supreme Court in Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947).
The Court found that the first factor was met as Italy is available as an adequate alternative forum. The Court noted that the defendant was willing to submit to jurisdiction in Italy and was amenable to process in Italy. The Court also found that Italian courts have addressed similar cases and that Italian law provides the rule of decisions.
The Court also found that the public and private factors weighed in favor of dismissal. The Court stated that although a United States citizens, resident, or corporation is entitled to a presumption in favor of his choice of forum, a foreign plaintiff's choice of forum receives less deference. The Court noted that the lesser deference give to the European plaintiffs' choice of forum was consistent with treaty obligations of the United States, such as Treaties of Friendship, Commerce, and Navigation," which accord "no less favorable" access to U.S. court than an American national to redress injuries caused by American actor. The Court also found other relevant private factors present supporting finding of forum non convenience including the ease of access to sources of proof, availability of compulsory process for attendance, and other practicable problems making the trial easy, expeditious and inexpensive.
The Court stated that the district court found that the public interest factors also weighed in favor of dismissal of the European plaintiffs' case. Public interest factors included Italy's strong interest in hearing the case as the event occurred in Italy, the heavy administrative burdens placed on the court in evaluating liability and damages as to each European plaintiff, and the need to apply Italian law to the numerous issues in the case.
The Court modified the dismissal order so as to require the defendant to submit to the jurisdiction of the Italian courts, to waive the statute of limitations, and to allow for the reinstatement of the case in the event that the Italian courts reject jurisdiction to entertain the case.
Wednesday, August 21, 2013
Commercial Lease Default
Miami bankruptcy lawyer Jordan E. Bublick has over 25 years of experience in filing chapter 13 and chapter 7 bankruptcy cases. Office: 1221 Brickell Ave., 9th Fl., Miami, Florida. Tel.: (305) 891-4055. www.bublicklaw.com
The case of Quntero-Chadid Corp. v. Gersten, 582 So. 2d 685 (3rd DCA, 1991) dealt with the issue of a landlord's damages upon a commercial lease default. The Court held that a landlord has three alternative courses of action upon a commercial tenant's default:
1. Treat the the lease as terminated and retake possession for the landlord's account, ends further tenant liability
2. Retake possession for the account of the tenant and hold him liable for the difference of the rent due under the lease and what in good faith the lessor may recover from releting the property
3. Do nothing and hold the tenant liable for all rent due if the lease contains an acceleration clause which is exercised
The case of Quntero-Chadid Corp. v. Gersten, 582 So. 2d 685 (3rd DCA, 1991) dealt with the issue of a landlord's damages upon a commercial lease default. The Court held that a landlord has three alternative courses of action upon a commercial tenant's default:
1. Treat the the lease as terminated and retake possession for the landlord's account, ends further tenant liability
2. Retake possession for the account of the tenant and hold him liable for the difference of the rent due under the lease and what in good faith the lessor may recover from releting the property
3. Do nothing and hold the tenant liable for all rent due if the lease contains an acceleration clause which is exercised
No Constitutional Right to Counsel for Chapter 7 Debtor
In the case of In re Eagle, ___ F.3d ___, 2007 WL 2278902 (C.A.8(Ark.)), the court held that under the circumstances the Chapter 7 Debtor did not have a constitutional right to counsel. The Debtor had filed a pro se Chapter 7 case. As the Debtor failed to file the necessary schedules and statements, the court dismissed his case. The court granted the Debtor's motion to reinstate his case and advised the Debtor to obtain counsel. In subsequent proceedings, the court sustained a Creditor's exemption objection. The Debtor appealed the order sustaining the exemption objection.
The Court of Appeals held that the Debtor did not have a right to counsel as his physical liberty was not at issue in the bankruptcy case. Lassiter v. Dep't of Soc. Servs. of Furham County, 452 U.S. 18 (1981). The court further noted that although it had no duty to do so, the court had advised the Debtor to obtain counsel.
The issue to use bankrutpcy estate funds to employ criminal counsel in a bankruptcy case was previously addressed in the Miami, Florida bankruptcy case of In re Duque, 48 B.R. 965 (DC Fla. 1984)(Hastings, J.). In this case involving an individual chapter 11 debtor, the District Court held that the Debtor did not under the circumstances have the right to use bankruptcy estate money to pay for his criminal counsel. The court set forth three underlying principles in its determination. First, the employment of special criminal counsel must be in the best interest of the estate. That is, there must be an actual need for the services based upon a actual not hypothetical or speculative threat to the estate or its property. Second, special criminal counsel must not be for the personal benefit of the debtor, but must be for the benefit of protecting the assets of the estate or furthering its interests. Third, potential violations of the debtor's constituational rights posed by criminal investigations or prosecutions occurring after the filing are of concern to the criminal forum and not the bankruptcy court.
The Court of Appeals held that the Debtor did not have a right to counsel as his physical liberty was not at issue in the bankruptcy case. Lassiter v. Dep't of Soc. Servs. of Furham County, 452 U.S. 18 (1981). The court further noted that although it had no duty to do so, the court had advised the Debtor to obtain counsel.
The issue to use bankrutpcy estate funds to employ criminal counsel in a bankruptcy case was previously addressed in the Miami, Florida bankruptcy case of In re Duque, 48 B.R. 965 (DC Fla. 1984)(Hastings, J.). In this case involving an individual chapter 11 debtor, the District Court held that the Debtor did not under the circumstances have the right to use bankruptcy estate money to pay for his criminal counsel. The court set forth three underlying principles in its determination. First, the employment of special criminal counsel must be in the best interest of the estate. That is, there must be an actual need for the services based upon a actual not hypothetical or speculative threat to the estate or its property. Second, special criminal counsel must not be for the personal benefit of the debtor, but must be for the benefit of protecting the assets of the estate or furthering its interests. Third, potential violations of the debtor's constituational rights posed by criminal investigations or prosecutions occurring after the filing are of concern to the criminal forum and not the bankruptcy court.
Change in Miami-Dade Foreclosure Mediation Program
The Miami Herald reported in March, 2011 that the 11th Circuit Court, which includes Miami-Dade County, made a change in the organization that has been managing the mortgage foreclosure mediation program since its initiation. It replaced the Collins Center with the Oasis Alliance Corporation, apparently based in Tampa. Herald quotes a director of the Collins Center that it operates in "six of Florida's judicial districts and receives $275 for each case it handles, [and] has managed about 8,000 foreclosure mediations in Miami-Dade over the past two years."
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