Bankruptcy

In Title 11 of the United States Code (the Federal Bankruptcy Code), there are four bankruptcy filings:

Chapter 7 – Liquidation

Chapter 11 – Reorganization

Chapter 12 – Adjustment of Debts of a Family Farmer with Regular Annual Income

Chapter 13 – Adjustment of Debts of an Individual with Regular Income

The filing generally depends on the person’s financial situation. Reportedly, the most common filing is Chapter 7. Companies, married couples and individuals are allowed to file Chapter 7.

A debtor filing Chapter 7 is essentially scrapping everything and starting over, hoping for a clean financial slate. Basically what happens is that once the filing is underway, an administrator or trustee is appointed to maneuver the sale of the debtor’s assets. This does not necessarily mean that everything the person owns is sold. Both federal and state laws allow for certain exemptions, meaning that the debtor might get to keep some property, such as his or her primary residence or personal items like clothing. Once the debtor’s assets are liquidated, the trustee pays certain creditors a portion of the money raised. Obviously, not all of the creditors receive money from the proceeds, so many of those financial obligations are “forgiven,” or discharged. Once someone has filed for bankruptcy under Chapter 7, he or she cannot file again for seven years, and debts that were not forgiven in a previous filing will not be discharged in the next filing.

It is important to note that there are certain debts for which the debtor will receive no forgiveness. Alimony, child support and taxes are not discharged under any bankruptcy filing, and student loans are seldom discharged (see this page for details). So, if a lot of your debt falls into these categories, you might be better off filing Chapter 13.

Chapter 12 and Chapter 13 are basically the same filing, except that Chapter 12 is for family farmers and Chapter 13 is for other individuals. As long as you have a steady, reliable income, less than $269,250 in unsecured debt and less than $807,750 in secured debt, you can file Chapter 13. Once the filing is made, the debtor is assigned a trustee. The debtor and trustee develop a proposal for a repayment plan. The court decides whether to accept or alter the plan or dictate another repayment plan altogether. Once the plan is decided upon, it can last anywhere from three to five years.

You may be wondering why someone would file for Chapter 12 or 13 instead of Chapter 7. There are a couple of reasons for this:

Under Chapter 12 and 13 filings, debtors do not have to liquidate their assets — they actually get to keep everything, not just the items that meet the legal exemption.

In most Chapter 12 and 13 cases, the debtor is repaying only a percentage of what he or she actually owes — sometimes as little as 30 cents to 50 cents on the dollar!

Chapter 11 bankruptcy is very similar to Chapter 13. The main difference is that there is no limit regarding the amount of money owed by the debtor. Originally only intended for large corporations, individuals can now file Chapter 11 as well.

Filing for bankruptcy is not to be taken lightly. It affects your credit rating for many years. The decision to file is best made under the counsel of a financial planner and/or a legal representative.

Bankruptcy

Fort Lauderdale Foreclosure Attorney - Joann Hennessey, esq.

Civil Justice Advocates, PL.

Fort Lauderdale Foreclosure Attorney, Joann M. Hennessey

 

is a member of the Florida and New York Bar Associations.  She is admitted to practice in the Federal District Courts of Southern District of Florida, Middle District of Florida, Southern District of New York and Eastern District of New York.  Joann is an experienced civil litigator with extensive experience in foreclosure defense.  Prior to the foreclosure crisis, Joann was involved in real estate transactions reviewing documents, resolving lien issues and handling closings.  In addition, Joann practiced in the area of immigration, bankruptcy and debt defense.  As the market turned, Joann gathered forces with other practitioners who were similarly alarmed by the tactics employed by the banks in pursuit of their foreclosure and discussed approaches to best represent homeowners and protect their rights.

Fort Lauderdale Foreclosure Attorney

Fort Lauderdale Foreclosure Attorney - Joann Hennessey, esq.

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Florida Foreclosure Law

The lawyers at　Civil Justice Advocates, P.L., are ready to help you with any legal issues you or your business may face. Our attorneys practice in the following areas:

• Civil Litigation

• Foreclosure Defense

• Bankruptcy Chapter 7 & 13

• Consumer Protection Fair Debt Collection Practices Act

• Landlord Tenant Business Litigation

Beyond our legal knowledge, we also have attorneys with strong skills in accounting, finance, fluency in foreign languages, and consumer industries. We have a sophisticated practice that is designed to provide you with the best and most cost effective legal representation.

Florida Foreclosure Law

Joann is an experienced civil litigator with extensive experience in foreclosure defense. Prior to the foreclosure crisis, Joann was involved in real estate transactions reviewing documents, resolving lien issues and handling closings. In addition, Joann practiced in the area of immigration, bankruptcy and debt defense. As the market turned, Joann gathered forces with other practitioners who were similarly alarmed by the tactics employed by the banks in pursuit of their foreclosure and discussed approaches to best represent homeowners and protect their rights.

The statutes governing foreclosures in Florida can be found in Fla. Stat. Ann. §§ 702.01 through 702.10 and §§ 45.031 through 45.035. You can access the Florida statutes by going to FLORIDA STATE LAW and clicking on “Florida Statutes.”


Florida Foreclosure Law

attorneys

Joann M. Hennessey

is a member of the Florida and New York Bar Associations.  She is admitted to practice in the Federal District Courts of Southern District of Florida, Middle District of Florida, Southern District of New York and Eastern District of New York.  Joann is an experienced civil litigator with extensive experience in foreclosure defense.  Prior to the foreclosure crisis, Joann was involved in real estate transactions reviewing documents, resolving lien issues and handling closings.  In addition, Joann practiced in the area of immigration, bankruptcy and debt defense.  As the market turned, Joann gathered forces with other practitioners who were similarly alarmed by the tactics employed by the banks in pursuit of their foreclosure and discussed approaches to best represent homeowners and protect their rights.

Prior to becoming an attorney, Joann worked, studied and completed a graduate program in health care administration at the University of Alabama at Birmingham.  In this previous career, Joann developed many of the skills that she employs today in assisting individuals to identify and achieve the best result for their particular situation.  Joann attended law school at State University of New York at Buffalo (University of Buffalo) School of Law.  Practicing consumer protection law is the natural progression in utilizing her energy and lifelong interest of helping individuals reach and meet their goals, identify and protect their rights through her skills as an advocate.

Kunal Mirchandani

is a graduate of Case Western Reserve School of Law in Cleveland, Ohio. He is licensed to practice law in Florida, and his primary focus is on consumer protection in transactions that involve debt. However, he has handled cases ranging from civil litigation and complex international transactions to criminal law and real estate matters. In addition, he has worked in large law firms located in India. He has a background in accounting, finance, taxation, and consumer industries. This broad background provides him with an uncommon approach to solving legal issues. His understanding that issues can be solved in many ways ensures that clients receive the best and most cost efficient representation.

attorneys

Civil Law Advocates vs. Chase Home Finance, LLC

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT

January Term 2012 

GAFOOR JAFFER and NINA JAFFER, Appellants,

v.

CHASE HOME FINANCE LLC, as successor by merger to CHASE MANHATTAN MORTGAGE CORPORATION, Appellee.

No. 4D11-1572

[June 6, 2012]

POLEN, J.

Appellants, Gafoor Jaffer and Nina Jaffer, appeal the trial court’s order denying their amended motion to vacate default, set aside summary judgment, and cancel sale in an underlying foreclosure action.  In support of its case, Chase Home Finance, LLC (“Chase”) filed affidavits signed by representatives of the company. Later, Chase filed a letter with the trial court, admitting that some of its affidavits may have been signed by individuals without personal knowledge of the facts therein. As such, we remand this case to the trial court, limited strictly to the determination of whether the affidavits filed in this case were based on the personal knowledge of the affiant.

Chase filed a mortgage foreclosure complaint and an amended mortgage foreclosure complaint against the Jaffers.  The amended complaint states that Chase is the holder of the note and mortgage and is entitled to enforce the same against the property owner, the Jaffers.  The Jaffers defaulted and Chase declared the entire amount on the note due. In anticipation of a hearing on its motion for summary judgment in the course of this foreclosure case, Chase filed an affidavit as to amounts due and owing.  The affiant was Mary Cook, employee of Chase.¹ Cook averred as to Chase’s practice regarding its books, records, and documents and stated that she had personal knowledge of the sums of

¹ In two separately filed affidavits, Mary Cook was referred to in two different positions.  In one, she was the assistant secretary, and in the other, she was referred to as vice president.

money owed by the Jaffers.  After the summary judgment hearing, the court entered final summary judgment of mortgage foreclosure in favor of Chase, making the unpaid principal balance, interest, late charges, miscellaneous fees and expenses, and taxes due.  Public sale was set for September 1, 2010, at 10:00 a.m.

Chase filed a motion to cancel foreclosure sale, attaching a letter stating that “[i]t has come to the attention of Chase . . . that in some cases employees in Chase’s mortgage foreclosure operations may have signed affidavits about loan documents on the basis of file reviews done by other personnel – without the signer personally having reviewed those loan files.”  The court granted Chase’s motion to cancel the sale.  The Jaffers filed a motion to vacate default, set aside summary judgment and cancel sale, pursuant to Florida Rule of Civil Procedure 1.540(3)-(5).  The trial court entered an order denying the Jaffers’ motion.  This appeal timely followed.

The Jaffers argue that the affidavit in support of Chase’s motion for summary judgment was never confirmed as valid after Chase placed the authenticity of its affidavits at issue in its motion to cancel foreclosure sale.  Therefore, the Jaffers contend that the trial court erred in its failure to set aside default and summary judgment when Chase placed its own underlying evidence into question.

“Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So. 3d 170, 172 (Fla. 4th DCA 2012).  Here, Chase filed a motion to cancel foreclosure sale, stating that it filed an affidavit of indebtedness in support of its motion for summary judgment and that it accurately reflected the Jaffers’ debt.  However, Chase also submitted a letter, providing that it was internally investigating the validity of its affidavits, as personnel without proper personal knowledge had signed such documents.

“Under rule 1.510(e), Florida Rules of Civil Procedure, affidavits must be based on personal knowledge, set forth facts which would be admissible in evidence, and show ‘the affiant is competent to testify to the matters stated therein.’” Coleman v. Grandma’s Place, Inc., 63 So. 3d 929, 932 (Fla. 4th DCA 2011).

Chase’s motion for summary judgment states that the Jaffers are in default and that all of their outstanding expenses are detailed in an affidavit as to attorney’s fees and costs.  The affidavit as to amounts due

-2­

and owing was later filed in support of the motion for final summary judgment.  The Jaffers filed an affidavit in which they admitted late payments, return of payments, and forbearance, but they never actually admitted default and a complete inability to continue making mortgage payments.  Therefore, the only affidavit on the record which actually explains the Jaffers’ indebtedness is an affidavit by Chase, which may or may not be in compliance with Florida Rule of Civil Procedure 1.510(e), based on the letter filed with the court by Chase.

Due to the possibility that Chase’s affidavits were signed by improper personnel, we remand this case and direct the trial court to limit its considerations to whether the affidavits filed in this case were based on the personal knowledge of the affiants.

Reversed and Remanded.

HAZOURI and LEVINE, JJ., concur.

* * *

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Michael L. Gates, Judge; L.T. Case No. 10-449 CACE.

Joann M. Hennessey of Civil Justice Advocates, PL, Fort Lauderdale, for appellants.

Rossana Navarro and Dennis M. Campbell of Campbell Law Firm PLLC, Coral Gables, for appellee.

Not final until disposition of timely filed motion for rehearing.

Civil Justice Advocates, PL.

Civil Law Advocates vs. Chase Home Finance, LLC