Month: April 2016

foreclosure

Modification after Foreclosure Judgment

Clients often come in for a consultation panicked that their lender has gotten a foreclosure judgment or a foreclosure sale has been set by the lender. The common concern by clients is can they get a modification after the entry of a foreclosure judgment or once the sale is set.

Time is of the Essence

The answer, like many legal questions, is maybe. Outside of bankruptcy, the lender may have a loan modification package that is pending review for approval of a mortgage modification, but understand that the lender will not hurry to process the package based on the judgment being entered or the foreclosure sale being set.

If the client is going to wait until the last minute to see if the modification is approved before the sale of the home, then it is important for the homeowner to know definitely the status of their loan modification package. If the package is deemed complete and the review has been pending for about a month, a modification could be on its way. If the lender is still asking for documents, then you are at a minimum 60 days out from receiving an approval letter. Sixty days is usually more time than exists before a foreclosure sale will be completed. Once the foreclosure sale is completed, a modification is not possible since the borrower is no longer the owner of the property. In the words of the lender, there is no obligation to modify for the borrower. Only a deficiency for the lender to pursue.

Modification inside of a Bankruptcy

When a foreclosure sale is set and time is of the essence, a bankruptcy can be a good vessel for the loan modification process. The bankruptcy stops the sale and efforts by the lender to take back the property through the bankruptcy filing’s automatic stay. The bankruptcy functions to allow a borrower time to go through the loan modification process to see if the borrower can save his or her home through the bankruptcy court’s Mortgage Modification Mediation program.

The court’s program allows the lender and the borrower to take 150 days to see if an agreement can be reached through mediation. The program enables to party’s to stick to a tighter time table than traditional loan modifications because the program’s portal allows the lender and the borrower’s counsel to communicate about documents, title issues, and programs are available to the loan and borrower.  Additionally, the mediations create a discussion forum to gain understanding about the loan and any modification that may be available. The open channel of communication and clarification limits the modifications that are denied based on lack of documents or technicalities from a failure to communicate.

If you have a foreclosure judgment or foreclosure sale set and want to keep your home, please call our office immediately to schedule a free consultation to see if bankruptcy and the Mortgage Modification Mediation program can help you to save your home. Our office can be reached at (305) 278-0811 or simply contact us here.

 

 

Tax Debt

Can I Discharge my Income Tax Debt?

Clients with income tax debt often come in for consultations feeling like there is no hope. Their tax debt could be based on 1099’s, penalties on past due tax debt, or a result of a business closing. Many people think you cannot discharge a taxes in bankruptcy because it is a debt owed to s government entity, but the bankruptcy code maps out the requirements for when taxes can be discharged.

If the taxes are not considered priority, then the tax debt can be discharged. For the tax debt to not be considered priority under bankruptcy code section 507(a)(8)(A), the below requirements must be met:

  1. The tax return was last due without penalty more than three years ago;
  2. The return was filed more than two years ago;
  3. The tax was assessed more than eight months ago; and
  4. You did not willfully attempt to evade or defeat the tax.  A recent opinion even held that the failure to file tax returns for years on end showed debtor did not try in good faith to comply with the tax laws and held the taxes non-dischargeable in bankruptcy even though conditions one through three, above, were met!

The most important thing is the returns MUST be filed. Often clients come in with tax debt and the client was too afraid to file the return knowing that tax debt would arise. Without a timely return, we cannot help, so the moral of the story: file your taxes even if you cannot pay them!

If you have tax obligations that you cannot pay, contact our office for analysis of how much of your taxes you have to pay and how much of it you can discharge in bankruptcy. The consultation is free. Contact us today to gain knowledge and information on how to gain back control of your financial life (305) 278-0811.

Bartram

Oral Argument heard on Bartram, what to expect?

Oral argument in the landmark Bartram case was heard by the Florida Supreme Court on November 4, 2015.  As you will recall, Bartram is the statute of limitations case that deals with whether a mortgagee is time-barred from foreclosing if its previous foreclosure was dismissed and more than five years has passed from the date the foreclosure was commenced.

What can we expect?  Well, with the amount of money at stake for the banks and homeowners likely in the billions of dollars, we can expect the court to take its time and consider the issues carefully.  Six months or more is not an inordinate amount of time for the Florida Supreme Court to render a ruling on a case of this magnitude.  That having been said, it has already been five months, so a ruling could come any day now!

For those you interested in watching the video of the oral arguments, click here.

It seems some of the Supreme Justices are leaning toward Bartram and some are leaning toward U.S. Bank, N.A.  The ruling, when it comes, will not likely be unanimous.

If you or your client has property that was the subject of a dismissed foreclosure that was begun more than five years ago, call our office on (30) 278 0811 for your free consultation.

At the Bankruptcy Law Offices of James Schwitalla, P.A., our Miami bankruptcy lawyers have been committed to helping people get debt relief through bankruptcy for over 18 years. Contact us to learn more about consultations with a Bankruptcy Attorney.

5 Reasons to Have your Consultation with an Attorney

Many bankruptcy law offices have assistants and paralegals conduct new client consultations. This should be a big red flag to a client contemplating bankruptcy.

5 Reasons your Consultation should be with a Bankruptcy Attorney

Here are 5 reasons that it is important for your initial consultation to be with a Bankruptcy Attorney.

  1. A consultation should involve the analysis of the prospective client’s situation and how bankruptcy could help. This means giving legal advice. Legal advice about bankruptcy can only come from an attorney. Legal advice coming from an assistant or paralegal is the unlicensed practice of law.
  2. The Bankruptcy Attorney is the one who goes to court. Seeing how cases play out in court and with the trustees gives the Bankruptcy Attorney first hand knowledge of how bankruptcy can work for you.
  3. The attorney’s office works together to collect documents, prepare the paperwork, and file your bankruptcy, but the Bankruptcy Attorney should be the one to work out the strategy of the case with you and discuss your goals in bankruptcy.
  4. Consultations let you know a lot about the service you will receive. If you are not important enough for the attorney to make time to an answer your questions at the beginning, then how confident are you that the attorney will have time for your questions during the bankruptcy process.
  5. You deserve to hear from your would be Attorney!

At the Bankruptcy Law Offices of James Schwitalla, P.A., our Miami bankruptcy lawyers have been committed to helping people get debt relief through bankruptcy for over 18 years. Contact us to learn more about consultations with a Bankruptcy Attorney.