Tampa's Best Bankruptcy Attorneys: 1112 E. Kennedy Blvd. Tampa, FL 33602 * T 813.222.8210 * F 813.222.8211
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www.Galewski.com
www.GalewskiTitle.com
Bankruptcy Updates:
New Bankruptcy Court Filing Fees start November 1, 2011:
• Chapter 7 $306
• Chapter 13 $281
• Chapter 11 $1,046
Some State Foreclosure courts have dismissed mortgage foreclosure cases, can a Tampa Bankruptcy Attorney
get my foreclosure dismissed. There have been limited and extreme cases where a judge, in state court or
Federal Bankruptcy court, may have dismissed a foreclosure case. These foreclosure cases are far and few
between and are not the normal case. In these cases there was typically a bad act or delay on the part of the
foreclosure attorney or company and the problem was immediately remedied to allow the case to go forward.
Your Tampa foreclosure defense attorneys believe in reasonable expectations and reasonable results. Chances
are no one is going to walk away with a free home. Your Tampa Lawyer will do what is right to help you achieve
realistic results, save your home, file bankruptcy, fight foreclosure and deliver quality service, but it is unlikely
and really against the rules of court for the judge to grant a windfall to a homeowner.
Bankruptcy Changes Take a back seat to Government Shutdown.
Your Tampa Bankruptcy Lawyer is sad to announce that the current debate in Congress over budget problems has put some
bankruptcy reform on hold. Items currently on hold may include:
Allowing bankruptcy judges to order banks to mediate mortgage modifications, allowing bankruptcy to modify mortgages on
primary homes and otherwise allowing bankruptcy courts to have more control over the mortgage foreclosure process.
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
Some State Foreclosure courts have dismissed mortgage foreclosure cases, can a Tampa Bankruptcy Attorney
get my foreclosure dismissed. There have been limited and extreme cases where a judge, in state court or
Federal Bankruptcy court, may have dismissed a foreclosure case. These foreclosure cases are far and few
between and are not the normal case. In these cases there was typically a bad act or delay on the part of the
foreclosure attorney or company and the problem was immediately remedied to allow the case to go forward.
Your Tampa foreclosure defense attorneys believe in reasonable expectations and reasonable results. Chances
are no one is going to walk away with a free home. Your Tampa Lawyer will do what is right to help you achieve
realistic results, save your home, file bankruptcy, fight foreclosure and deliver quality service, but it is unlikely
and really against the rules of court for the judge to grant a windfall to a homeowner.
Bankruptcy Changes Take a back seat to Government Shutdown.
Your Tampa Bankruptcy Lawyer is sad to announce that the current debate in Congress over budget problems has put some
bankruptcy reform on hold. Items currently on hold may include:
Allowing bankruptcy judges to order banks to mediate mortgage modifications, allowing bankruptcy to modify mortgages on
primary homes and otherwise allowing bankruptcy courts to have more control over the mortgage foreclosure process.
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.
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Chapter 7
Chapter 13
Chapter 7
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Tampa Bankruptcy Lawyer 1112 E. Kennedy Blvd, Tampa Fl 33602, Galewski Law Group, P.A.
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.
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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