Tampa's Best Bankruptcy Lawyers: 1112 E. Kennedy Blvd. * Tampa, FL 33602 * T 813.222.8210 * F 813.222.8211
www.Galewski.com
www.GalewskiTitle.com
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
BANKRUPCTY 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
BANKRUPCTY 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 BANKRUPTCY, INSOLVENCY & WORKOUTS
We are experienced in all areas of corporate and business insolvency matters. Past representation includes
representing creditors, debtors and trustees under all areas of the bankruptcy code. In addition, we have
represented businesses as well as assignees under Florida's Chapter 727: Assignments for the Benefit of
Creditors.
Our network of professionals includes cash flow experts, auditors, forensic accountants and turn-around
specialists, all dedicated to protecting the future of your investment. If your business is in trouble, or a
business you have invested in appears to be faltering, we can help.
UPDATE: With the recent change in politics in DC, the one thing that both sides of the isle may
agree on is helping people save their home. Currently only a chapter 11 can change a mortgage
value, but it is expected that Congress will find a way to modify Chapter 13 to allow people to
reduce principal due on their mortgage. However, the Local Courts have taken action to allow a
modification in Bankruptcy. The Tampa Bankruptcy Court has created its own mediation and
modification process. The process starts by setting the mortgage payment to 31% of the
household income and working with the bank for approval through mediation. The Tampa
Bankruptcy Court is counting on pressure from the Court to compel the bank or mortgage lender
to push the modification through. Click here for information on a chapter 13 bankruptcy
mortgage modification.
Significant Representations:
* Successfully represented international banking conglomerate as white knight purchaser of bankruptcy
debtor corporation.
* Successfully represented large pediatrician practice struggling with claims for retribution for alleged
up-coding (over-billing) from insurance companies and million dollar claim from the IRS with reorganization
and debt consolidation.
* Successfully represented hotel and its principals from up-side-down mortgage by removing junior lien
and reducing mortgage to value of the real estate.
How can your Tampa Bankruptcy Attorney help you:
How can your Tampa Bankruptcy Attorney help you:
Individual Bankruptcy
Chapter 7 Bankruptcy
Simple debt relief for people of modest assets and average income or the liquidation of a business.
Chapter 11 Bankruptcy
A complex reorganization for high worth individuals or corporations.
Chapter 13 Bankruptcy
A simplified reorganization for people with assets or 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
We are experienced in all areas of corporate and business insolvency matters. Past representation includes
representing creditors, debtors and trustees under all areas of the bankruptcy code. In addition, we have
represented businesses as well as assignees under Florida's Chapter 727: Assignments for the Benefit of
Creditors.
Our network of professionals includes cash flow experts, auditors, forensic accountants and turn-around
specialists, all dedicated to protecting the future of your investment. If your business is in trouble, or a
business you have invested in appears to be faltering, we can help.
UPDATE: With the recent change in politics in DC, the one thing that both sides of the isle may
agree on is helping people save their home. Currently only a chapter 11 can change a mortgage
value, but it is expected that Congress will find a way to modify Chapter 13 to allow people to
reduce principal due on their mortgage. However, the Local Courts have taken action to allow a
modification in Bankruptcy. The Tampa Bankruptcy Court has created its own mediation and
modification process. The process starts by setting the mortgage payment to 31% of the
household income and working with the bank for approval through mediation. The Tampa
Bankruptcy Court is counting on pressure from the Court to compel the bank or mortgage lender
to push the modification through. Click here for information on a chapter 13 bankruptcy
mortgage modification.
Significant Representations:
* Successfully represented international banking conglomerate as white knight purchaser of bankruptcy
debtor corporation.
* Successfully represented large pediatrician practice struggling with claims for retribution for alleged
up-coding (over-billing) from insurance companies and million dollar claim from the IRS with reorganization
and debt consolidation.
* Successfully represented hotel and its principals from up-side-down mortgage by removing junior lien
and reducing mortgage to value of the real estate.
How can your Tampa Bankruptcy Attorney help you:
How can your Tampa Bankruptcy Attorney help you:
Individual Bankruptcy
Chapter 7 Bankruptcy
Simple debt relief for people of modest assets and average income or the liquidation of a business.
Chapter 11 Bankruptcy
A complex reorganization for high worth individuals or corporations.
Chapter 13 Bankruptcy
A simplified reorganization for people with assets or 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
Free Bankruptcy Information
Chapter 7
Chapter 13
Chapter 7
Chapter 13
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.
| Home Practice Areas Tampa Lawyers Contact Disclaimer Links Tampa Bankruptcy Forum Tampa Divorce Forum Privacy Policy |