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.
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