Friday, November 16, 2012

Weidner Oral Argument 2nd DCA


Sunday, November 4, 2012

Preparing for your Bankruptcy

Get your free credit report at

Cheap Credit Counseling- Pre-Filing Course. Consumer Bankruptcy Counseling is now available for $5 from the website:  or

The Justice Department also provides a list of approved counseling agencies at

Wednesday, June 13, 2012

Case Law Update

Drummond v. Welsh (In re Welsh), Means test allows debtor to deduct from current monthly income payments on secured debts; debtor need not take into account Social Security income to satisfy § 1325.

Deutsche Bank National Trust Company v. Clarke
January 2012
The trial court entered a directed verdict in favor of the defendant, finding that the Plaintiff's failure to enter the original note and mortgage at trial was fatally defective to its case. During the course of the trial, the court inquired as to the location of the originals. "The original note had been filed with the clerk of the court and was in the court file in preparation for an earlier scheduled summary judgment hearing." The trial court stated it would accept the use of copies after being advised of the originals whereabouts. There was no objection to the use of the copies pursuant to the best evidence rule. Fla. Stat. § 90.953 (2010). The court reserved ruling and did not enter its order until the trial was concluded.
In overturning the trial court's order, the Fourth DCA not only made an evidentiary ruling, it also harmonized a series of cases addressing the need to tender the original documents to the trial court in foreclosure proceedings. Through its opinion, the Fourth DCA has held the tender of the documents to the court at any time during the foreclosure action should be sufficient.

McNeal v. GMAC Mortgage, LLC, Homecomings Financial, LLC
March 11,2012
The holding in McNeal v. GMAC Mortg., LLC (In re McNeal), 2012 U.S. App. LEXIS 9589 (11th Cir May 11, 2012) is based on the concept that Dewsnup - which involved an attempt to cramdown a partially secured mortgage - did not overrule, explicitly, the Folendore decision. Accordingly, it remains good law, and a three judge panel cannot overrule an earlier three judge panel. The undercutting of the Folendore reasoning by the Supreme Court was not sufficient to allow lower courts to disregard binding precedent of the earlier 11th Circuit decision.
At present, stripping mortgages in Chapter 7 is permitted in the 11th Circuit.

Castillo v Deutsche, June 6, 2012
The Florida Third District Court of Appeals ruled on an issue that relates to borrower claims that an investor must establish compliance with its obligations under a Securitized Trust Agreement as a condition of enforcing a note and mortgage held by the trust. The Court ruled that the borrower does not have standing. This ruling is subject to a motion for rehearing and is not final but confident it will stand. 

In the News

Virginia Ruling Holds that Mortgage Lenders Must Hold Face-to-Face Meetings Before Foreclosure in FHA/HUD Loans

HUD Regulation 4155.1 4.C.2.f, which governs FHA mortgages, addresses this common scenario. This regulation states that the contingent liability of the ex-spouse for the future payments due on the mortgage on the home now owned by the other spouse is not be counted if the loan was foreclosed. The regulation reads as follows:
A borrower is generally not eligible for a new FHA-insured mortgage if, during the previous three years his/her previous principal residence or other real property was foreclosed, or he/she gave a deed-in-lieu of foreclosure.
Exception: The lender may grant an exception to the three-year requirement if the foreclosure was the result of documented extenuating circumstances that were beyond the control of the borrower, such as a serious illness or death of a wage earner, and the borrower has re-established good credit since the foreclosure.

Recent changes to the HARP Program removed the maximum percentage amount that a property can have an underwater mortgage. Prior to December 1, 2011, the maximum amount that a property could be underwater was 125% of the loan balance.
This means that if a property is valued at $100,000, the maximum that the mortgage being refinanced would be $125,000 or 125% of $100,000. This would also be referred to as 125% LTV or loan-to-value. is a comprehensive online resource for underwater homeowners who are looking for non-biased information about their options to stay and refinance or consider a short sale.

foreclosure rescue scams overview

The Mortgage Forgiveness Debt Relief Act generally exempts you from being taxed on up to $2 million of mortgage forgiveness on your primary residence through the end of 2012 as long as its due to a decline in the value of your or your financial situation. That means you’ll want to avoid turning it into a vacation or rental property first or waiting until after the act is scheduled to expire at the end of the year.

Thursday, May 24, 2012


SIGTARP, CFPB, and Treasury today issued a fraud alert to the Armed Services community to combat scams targeted at homeowners seeking to apply for mortgage assistance through the Home Affordable Modification Program (HAMP) and other federal programs.


Tuesday, May 8, 2012

Means Test New Income Guidelines for Ch. 7

Household Size
1 person $42,053
2 people $51,299
3 people $54,508
4 people $64,722*

*$7,500 for each additional person

Tuesday, May 1, 2012

Judge Alexander Paskay


PASKAY, Judge Alexander L., of Tampa, passed away on April 27th, 2012, at his home, surrounded by his loved ones. He was 89. Judge Paskay was born near the famous Danube river on November 5th, 1922, in Mohacs, Hungary.

In essence, the Judge was born into the legal world and it would be his number one passion for the rest of his life. His father was a prominent attorney, as well as Vice Mayor and City Attorney. Thus, Alexander and his three sisters, grew up in a state-provided castle, built in 1500 AD where he had a happy, privileged life. At home, his favorite pastime was bedeviling a long string of governesses, with his solo soccer games echoing within the massive corridors of the palace. After a Jesuit high school education, at his father's urging, he headed straight off to the University of Budapest Law School. As always, Alexander did well in his studies, but an exotic new interest entered his life in the form of music, theater and cinema. He swiftly became the youngest arts critic for the top Budapest weekly newspaper. Alexander was truly enjoying this new facet of his life, away from the dry and sterile legal bubble in which he usually lived. In fact, his father worried that his son was having too much fun, hob-nobbling with his new show business pals - especially the attractive starlets often seen on his arm. In short order, Papa Paskay ordered his son home, immediately after graduation. Once back in the family fold, Alexander worked in his father's firm by day, and studied for the Hungarian Bar at night. He easily passed his exams, but his promising legal career was abruptly derailed by World War II. He was able to keep himself out of the fray for many lucky months. But in 1944, Alexander was captured by the German Army and forced to dig trenches for the enemy on the Western Front. Along with two friends, one night he engineered an escape from their German guards and made his way through France and finally into the safe hands of British Intelligence. As the war was now ending, and because he spoke 5 languages, he became Staff Chief Interpreter for the British Army and Interpreter of the British War Crimes Commission. Until 1949 he also worked for the French Army helping to relocate displaced persons in the French Zone of Occupation. Now a war refugee himself, Paskay made sure his family in Hungary was safe and then emigrated in 1949 to the US with only 5 dollars in his pocket and the dream of starting a new life in America. Alexander ultimately settled in Miami where, the day after his arrival, he met 20 year-old, Rose Mazzaglia. Within two weeks of meeting Rose he felt he had found the woman of his dreams, and promptly proposed. Though she never actually said yes or no - the couple did marry one year later. Thus embarking on their 62 years of love and life together. In 1952, Alexander became a US citizen and, while holding down two jobs, he attended night school at the University of Miami School of Law, where he graduated third in his class in 1958. During these years he and Rose had two sons, Rick and Steve. After passing the Florida Bar, Alexander was lucky once again to find employment as senior Law Clerk for Federal Judge Joseph P. Lieb. Once Alexander began working within the judicial system he became very interested in the US legal concept of bankruptcy. It was a perfect fit for his deeply held philosophy that every person deserved at least one second chance in life. In 1963, when the Court found the need for a full-time Bankruptcy Judge in the Middle District, the newly-appointed Judge Paskay and his family moved to Tampa. There the eager young jurist would begin a historic 48 year career that ended in December of 2011. Judge Paskay was a member of the American Bar Association, Florida Bar Association, Hillsborough County Bar Association, Tampa Bay Bankruptcy Bar Association and the Southwest Florida Bankruptcy Professional Association. He was admitted to practice before the US Supreme Court, 5th and 11th Circuits Courts of Appeal and all federal courts. He served in the past as Chairman of the Bankruptcy Committee of the Florida Bar and served on the Board of Governors of the National Conference of Bankruptcy Judges. Judge Paskay also served as Vice President and was on the Board of Directors of the American Bankruptcy Institute and a faculty member sponsored by the ABI. Judge Paskay was a fellow of the American College of Bankruptcy, inducted into its original class at the Supreme Court in Washington DC. Judge Paskay is the author of thousands of legal opinions, publications and books including: "Creditor's Rights", "Handbook for Trustees and Receivers", co-author of the "14th Edition of Collier on Bankruptcy", and he was a principal contributing editor of "Norton Bankruptcy Law and Practice". In 1979 the Judge was appointed by US Supreme Court Chief Justice Burger to the Advisory Committee on Bankruptcy Rules and Practice and served on that committee until 1984. Thereafter he was appointed to serve on the Task Force of the Administrative Office of US Courts charged with the revision of the official Bankruptcy Forms. After the fall of communism in Eastern Europe and Asia, Judge Paskay was appointed by the US Government to lecture on bankruptcy law in the newly emerging liberated countries of Russia, Slovakia and Albania. He was instrumental in guiding those emerging democracies in the concepts and protections needed in their bankruptcy laws being written at that time. Judge Paskay was an Adjunct Professor of Law at Stetson University College of Law since 1973. Since 1976 he was the Chairman of the annual Alexander L. Paskay Seminar on Bankruptcy Law and Practice sponsored by the Stetson University College of Law and the American Bankruptcy Institute. Since 2005, Stetson University has awarded the Alexander L. Paskay Endowment Scholarship to many of its most notable graduates. He was inducted into that school's Hall of Fame in 2007. The Judge leaves behind a loving and grieving family: his wife Rose; his sons Richard and Steven; his daughter-in-law Licia; and his sisters Martha, Lucia, Csoppi and their families. He also leaves behind hundreds of friends and admirers around the world. As well as a loving and devoted staff headed, by Ms. Mary Morrison, plus a legal legacy unmatched in the US Bankruptcy Courts. Judge Paskay was known for his sense of humor, both on and off the bench. He was also an avid tennis player until the age of 87, (yes, in this heat!). He was also a world traveler, a huge international soccer fan, and a well-known griller of killer steaks for his family on many a Saturday night. In lieu of flowers memorial donations may be made to: the Alexander L. Paskay Endowed Scholarship at Stetson University in Gulfport, the Moffitt Cancer Center Foundation in Tampa or Lifepath Hospice of Tampa. The family would like to thank the staff of the Tampa General Hospital Rehabilitation Center and the Lifepath Hospice-Burgundy Team for their loving care and support of the Judge in his final days at home. The Honorable Alexander L. Paskay has banged his gavel for the last time, but not before touching and inspiring the lives of thousands of people during his 89 years on Earth.

Funeral services will be held at Sacred Heart Church in downtown Tampa on Saturday, May 5th, 2012 at 2PM. Please sign the online guestbook by clicking here

Friday, April 27, 2012

Judge Paskay

Judge Paskay
It is with deep sadness that I inform you that the Honorable Alexander L. Paskay passed away (peacefully) early this morning, with Mrs Paskay (his wife of 62 years) and their sons, Steve and Rick at his side. She wanted me to thank you for your cards and prayers over the last few months. Judge Paskay will certainly be missed by his Colleagues in this District and around the nation, together with his Court family in the Tampa and Ft. Myers Divisions.
Funeral services will be held on Saturday, May 5, 2012, at 2:00 p.m. at Sacred Heart Catholic Church, (Corner of Twiggs Street and Florida Avenue), 509 North Florida Avenue, Tampa, Florida.
A Gathering of loved ones and friends, will be held immediately following the service at Stetson University College of Law, Tampa Law Center, 1700 North Tampa Street, Tampa, Florida.
May he rest in peace.
Chuck Kilcoyne, Deputy-in-Charge

Tracey Eller
Website Administrator
Tampa Bay Bankruptcy Bar Association

Saturday, February 18, 2012

Common Bad Habits That Are Good for You

Common Bad Habits That Are Good for You

Cheap Credit Counseling- Pre-Filing Course

Consumer Bankruptcy Counseling is now available for $5 from the website:  In 2005, Congress required all individuals wishing to file bankruptcy to first undergo a “Credit Counseling”. Bankruptcy credit counseling takes about an hour and is now a primarily automated process. The standard fee charged by most authorized credit counselors is between $30 and $50. The low cost does come with some minor delay in issuance of the required certificate. They do not provide same day service and there are no operators “standing by” on a toll free line to handle technical problems. This program has received authorization from the Executive Office for United States Trustee, United States Department of Justice, to service all federal Districts except for the District of Alabama and the District of North Carolina, to provide credit counseling and to issue certificates in compliance with the Bankruptcy Code. Approval does not endorse or guarantee the quality of any Agency's services.

In the News

The average 30-year fixed-rate mortgage is still at an all-time low of 3.87 percent and it's been there since the first week of February, according to the weekly market survey published by Freddie Mac. The 30-year average has managed to remain below 4 percent for the past 11 weeks, and below 5 percent for the past 52 weeks, dating back to February 17, 2011. The 15-year rate was also unchanged in the GSE's study, while the 5-year adjustable rate posted a slight decline and the 1-year adjustable rate increased.

CitiMortgage, a subsidiary of CitiBank, agreed to pay $158.3 million due to claims that the bank failed to comply with HUD and FHA requirements in underwriting loans for federal insurance, and for stating certain loans were eligible for FHA's mortgage insurance program when they were not. As a result of these actions, HUD incurred losses from defaulted loans that should not have been approved. CitiMortgage accepted responsibility for specific actions including failing to conduct a full review of certain loans it endorsed.


The 11th Circuit handed down a summary judgment on claims under Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq., and affirmed that (a) a letter sent to an invalid address was not "initial communication" but rather later phone call was initial communication that was not followed by required written notice within 5 days, (b) a call to a third party to locate the debtor failed to include required disclosure, and (c) the debt collector's statement based on general knowledge of insurance practices and not specific knowledge of the debtor's circumstances was "false, deceptive, or misleading representation" under the applicable "least sophisticated consumer" standard.


On December 5, 2011, the court began operations under Bankruptcy CM/ECF Release 4.2. Release 4.2 will support an additional noticing-related improvement provided by the court’s Bankruptcy Noticing Center (BNC) contractor.

Previously, you received the notice of 341 meeting of creditors by Notice of Electronic Filing (NEF) with the debtor's redacted Social Security Number (SSN), and by U.S. Mail through the BNC with the debtor’s full SSN. The improvement provided with CM/ECF Release 4.2 will allow the BNC to send you an email containing a secure hyperlink to the unredacted 341 notice in place of a paper notice. The BNC will send one summary email per day containing hyperlinks to one or more notices. Each hyperlink provides one free look to the full notice. You will no longer receive the paper 341 notice from the BNC.

A sample BNC email notification is provided at the following web page:

Tax Forgiveness on that 1099

Obama’s FY2013 budget proposal includes an extension of the Mortgage Forgiveness Debt Relief Act of 2007.

The Act ensures that homeowners who received principal reductions or other forms of debt forgiveness on their primary residences do not have to pay taxes on the amount forgiven. The administration is proposing an extension that would apply to any amounts forgiven before January 1, 2015.

Robosigner Settlement

Consumers who want their foreclosure cases checked by a third party as part of federal regulators' independent foreclosure review directive now have until July 31, 2012, to submit their requests. The Federal Reserve and the Office of the Comptroller of the Currency announced Wednesday that the deadline has been pushed out by three months to give consumers more time to file for a case assessment if they believe they suffered financial injury as a result of errors in foreclosure actions in 2009 or 2010.

Participating servicers include:

• America’s Servicing Company

• Aurora Loan Services

• BAC Home Loans Servicing

• Bank of America

• Beneficial

• Chase

• Citibank

• CitiFinancial

• CitiMortgage

• Countrywide


• Everbank/Everhome Mortgage Company

• Financial Freedom

• GMAC Mortgage



• IndyMac Mortgage Services

• MetLife Bank

• National City Mortgage

• PNC Mortgage

• Sovereign Bank

• U.S. Bank

• Wachovia Mortgage

• Washington Mutual

• Wells Fargo

• Wilshire Credit Corporation

Borrowers are eligible for a foreclosure review if their loan is serviced by one of the participating companies above, the mortgage loan was subject to foreclosure between January 1, 2009 and December 31, 2010, and the property securing the mortgage was the borrower’s primary residence.

Articles of Interst

On January 23, 2012 the Supreme Court released its opinion in United States v. Jones--the GPS surveillance case

Means Test Chapter 13

For a detailed explanation of the Means Test you might want to read The Bankruptcy Means Test Explained In English.

One of the biggest problems with the Means Test (and there are many!) is that if you have over a certain amount of Disposable Income ($182.50 in current monthly income available after allowed deductions, which equals $10,950 over five years) you are presumed to be abusing the Bankruptcy system by filing a Chapter 7 bankruptcy.

Because the Means Test takes a cookie cutter, one size fits all approach to expenses. Some examples:

• You are only permitted to claim $147.92 per month per child under the age of 18 for educational expenses, and you are going to have to have documentation to support those expenses.
• If you must be in a Chapter 13, you must be in it for 60 months if you are a an above means debtor. If you own an older vehicle and don’t have a car note, you can only claim an additional $250.00 per month for maintenance expenses.  If you want to purchase a vehicle during your chapter 13  you must have approval from the trustee. You might be allowed a car payment of about $350 a month.
• In a Chapter 13 bankruptcy you are permitted to treat your withholding for retirement plans such as 401K expenses as an expense for your health and welfare, but you are not permitted to claim this expense in a Chapter 7 bankruptcy.

Articles of Interest

On January 23, 2012 the Supreme Court released its opinion in United States v. Jones--the GPS surveillance case