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Chapter 7
Chapter 13
Chapter 7
Chapter 13
Bankruptcy Updates:
New Bankruptcy Court Filing Fees start November 1, 2011:
• Chapter 7 $306
• Chapter 13 $281
• Chapter 11 $1,046
COURT STRIKES MORTGAGE CLAIM - NO ORIGINAL IN POSSESSION
DEBTOR FILES ADVERSARY COMPLAINT TO EXPUNGE MORTGAGE PROOF OF CLAIM
MORTGAGE SERVICER NEVER HAD POSSESSION OF ORIGINAL NOTE
COURT STRIKES PROOF OF CLAIM BUT LIEN REMAINS
In re Kemper, (Bankr.N.J. Nov. 16 2010
The court, basing its ruling on New Jersey state law and provisions of the UCC, held that the entity filing the proof of claim held an unenforceable claim because 1) the owner of the
note never had possession of the note, and 2) note was not properly endorsed to the new owner.
The ownership of the note had apparently been transferred to one or more entities, but never followed up with transfer of the original note.
" ... the note in question was never endorsed in blank or delivered to the Bank of New York, as required by the Pooling and Servicing Agreement."
" ... Countrywide, as the servicer, acts only as the agent of the owner of the instrument, and has no greater right to enforce the instrument than its principal. [cites] Because the Bank of
New York has no right to enforce the note, Countrywide as its agent and servicer cannot enforce the note." Kemp, at 21.
"Because the claim filed by 'Countrywide Home Loans, Inc., servicer for Bank of New York' cannot be enforced under applicable state law, the claim must be disallowed. 11 U.S.C. §
502(b)(1)." Kemp, at 22
The ramifications of the ruling for the Chapter 13 plan are unclear.
In a contact with the law firm representing the debtor, it is acknowledged that notwithstanding the claim is disallowed, the ruling does not automatically strip the lien.
So, you have a chapter 13 case in which the secured creditor's proof of claim is expunged, yet the mortgage is still secured on the property. How is this handled in a Chapter 13 plan?
The case also demonstrates that securitization issues are often based largely on applicable state law, and so an adversary attack on the claim must cite state statutes or cases, not
merely the Bankruptcy Code.
Analysis: Your Tampa Bankruptcy Lawyer expects that MERS will change their policy rather than fight this argument much further. This may
not change many cases but it indicates that judges are looking for creative ways to help people keep their homes.
New Bankruptcy Court Filing Fees start November 1, 2011:
• Chapter 7 $306
• Chapter 13 $281
• Chapter 11 $1,046
COURT STRIKES MORTGAGE CLAIM - NO ORIGINAL IN POSSESSION
DEBTOR FILES ADVERSARY COMPLAINT TO EXPUNGE MORTGAGE PROOF OF CLAIM
MORTGAGE SERVICER NEVER HAD POSSESSION OF ORIGINAL NOTE
COURT STRIKES PROOF OF CLAIM BUT LIEN REMAINS
In re Kemper, (Bankr.N.J. Nov. 16 2010
The court, basing its ruling on New Jersey state law and provisions of the UCC, held that the entity filing the proof of claim held an unenforceable claim because 1) the owner of the
note never had possession of the note, and 2) note was not properly endorsed to the new owner.
The ownership of the note had apparently been transferred to one or more entities, but never followed up with transfer of the original note.
" ... the note in question was never endorsed in blank or delivered to the Bank of New York, as required by the Pooling and Servicing Agreement."
" ... Countrywide, as the servicer, acts only as the agent of the owner of the instrument, and has no greater right to enforce the instrument than its principal. [cites] Because the Bank of
New York has no right to enforce the note, Countrywide as its agent and servicer cannot enforce the note." Kemp, at 21.
"Because the claim filed by 'Countrywide Home Loans, Inc., servicer for Bank of New York' cannot be enforced under applicable state law, the claim must be disallowed. 11 U.S.C. §
502(b)(1)." Kemp, at 22
The ramifications of the ruling for the Chapter 13 plan are unclear.
In a contact with the law firm representing the debtor, it is acknowledged that notwithstanding the claim is disallowed, the ruling does not automatically strip the lien.
So, you have a chapter 13 case in which the secured creditor's proof of claim is expunged, yet the mortgage is still secured on the property. How is this handled in a Chapter 13 plan?
The case also demonstrates that securitization issues are often based largely on applicable state law, and so an adversary attack on the claim must cite state statutes or cases, not
merely the Bankruptcy Code.
Analysis: Your Tampa Bankruptcy Lawyer expects that MERS will change their policy rather than fight this argument much further. This may
not change many cases but it indicates that judges are looking for creative ways to help people keep their homes.
Tampa Bankrupcty Attorney 1112 E. Kennedy Blvd, Tampa Fl 33602, Galewski Law Group, P.A.
Bankruptcy attorneys at the Galewski Law Group provides Chapter 7, Chapter 11 and Chapter 13 bankruptcy, foreclosure defense and loan modification representation to clients throughout the
Tampa Bay Area in cities that include Tampa, Clearwater, Tarpon Springs, St. Petersburg, Palm Harbor, Dunedin, Lutz, Holiday, Safety Harbor, Oldsmar, Sarasota, Crystal Beach, Bradenton,
Brandon, Plant City, Trinity, Lakeland, Spring Hill, New Port Richey, Port Richey, Largo, Seminole, Pinellas Park, Ozona and throughout Hillsborough County, Pinellas County, Manatee County,
Pasco County, Polk County, Sarasota County and Hardee County.
Tampa Bay Area in cities that include Tampa, Clearwater, Tarpon Springs, St. Petersburg, Palm Harbor, Dunedin, Lutz, Holiday, Safety Harbor, Oldsmar, Sarasota, Crystal Beach, Bradenton,
Brandon, Plant City, Trinity, Lakeland, Spring Hill, New Port Richey, Port Richey, Largo, Seminole, Pinellas Park, Ozona and throughout Hillsborough County, Pinellas County, Manatee County,
Pasco County, Polk County, Sarasota County and Hardee County.
TAMPA BANKRUPTCY
How can your Tampa Bankruptcy Attorney help you:
Individual Bankruptcy
Chapter 7 Bankruptcy
Simple debt relief for people of modest assets and average income.
Chapter 11 Bankruptcy
A complex reorganization for high worth individuals or corporations.
Chapter 13 Bankruptcy
A simplified reorganization for people with assets,above average income.
Chapter 13 Mortgage Modification Bankruptcy
A reorganization to modify a mortgage or remove a second mortgage or equity line.
Business Bankruptcy
Chapter 11 Bankruptcy
A complex reorganization for a small business or corporation
Creditor Inquiry
Creditor and Bankruptcy Litigation
How can your Tampa Bankruptcy Attorney help you:
Individual Bankruptcy
Chapter 7 Bankruptcy
Simple debt relief for people of modest assets and average income.
Chapter 11 Bankruptcy
A complex reorganization for high worth individuals or corporations.
Chapter 13 Bankruptcy
A simplified reorganization for people with assets,above average income.
Chapter 13 Mortgage Modification Bankruptcy
A reorganization to modify a mortgage or remove a second mortgage or equity line.
Business Bankruptcy
Chapter 11 Bankruptcy
A complex reorganization for a small business or corporation
Creditor Inquiry
Creditor and Bankruptcy Litigation
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