SouthFloridaBankruptcyLawBlog

"Willful and Malicious Injury" - Exception from Chapter 7 Discharge

02/21/14

On February 22, 2012, the 11th Circuit Court of Appeals issued its decision in Jennings v. Jennings, 670 F.3d 1330 (11th Cir. 2012).  The case involved the issue of whether debt arising from the debtor's active participation with a co-conspirator in performing a fraudulent transfer of real property was excepted from discharge under 11 U.S.C. §§523(a)(6) which provides that a debt for "willful and malicious injury by the debtor to another entity or to the property of another entity" is non-dischargeble.

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The $4,000 Florida Personal Property Exemption

02/20/14

In the recent case of Guillermo A. Morales, Case No. 07-16284-BKC-RBR, (Bankr.S.D.Fla. January 2, 2008)(Ray, J.) the Bankruptcy Court was given the opportunity to interpret new section 222.25(4), Florida Statutes which allows a debtor to exempt personal property not to exceed $4,000 if he does not "claim or receive the benefits of a homestead exemption under s. 4, Art.

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Enforcement of Spendthrift Trust Clause Upheld

02/20/14

On May 31, 2013, the Florida Fifth Circuit Court of Appeals issued it decision in the case of Zlatkis v. All America Team Concepts, LLC  upheld the validity and enforcement of spendthrift trusts. In this case, a judgement holder attempted to enforce its judgment against the debtor's interest in a spendthrift trust.

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Long-Term Leasehold Interest May Qualify as Protected Homestead

02/20/14

On June 27, 2012, the Florida Second District Court of Appeals issued its decision in Geraci v. Ems, 93 So. 3d 384 (Fla. 2nd DCA 2012).  The issue before the Court was whether a person's long-term leasehold interest in his condominium could qualify as a "homestead" exempt from forced sale under article X, section 4 of the Florida Constitution.  The lower Court held that it could not qualify as a homestead as it was not a fee simple interest. The Court of Appeals reversed and held that such a condominium may qualify as a homestead.

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Saving Your Home or Investment Real Estate in Chapter 13

02/19/14

Much of my practice today consists of consulting with clients who are interested in saving their real estate from foreclosure using Chapter 13 of the Bankruptcy Code. The discussions breakdown into two different categories - real estate that is used as a principal residence and real estate that is not used as a principal residence.

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Passive Homestead Appreciation Not Subject to $125,000.00 Cap

02/14/14

Bankruptcy Judge K. Rodney May from the Middle District of Florida held that the equity passively resulting from market appreciation is not to be counted towards the $125,000.00 cap placed by 11 USC 522 (p) on a homestead exemption for property "acquired" during the 1,215 prepetition period.

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Florida Bankruptcy Filing, Maryland Exemptions, Real Property Exempt under Florida Tenants by Entireties Law

02/13/14

The January 30, 2007 case of In re Schwarz, __ B.R. ___, 2007 WL247649 (Bkrtcy.S.D. Fla.)(Olson, J.) held certain real property as exempt from administration in the estate under 11 522 (b)(3)(B) which allows for the exemption of any interest in property which the debtor held as tenants by the entireties to the extent that it is exempt from process under applicable nonbankruptcy law.

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Eligibility to File Chapter 13 Bankruptcy

02/12/14

In order to be eligible to file for Chapter 13 Bankruptcy one must be an individual with "regular income." Corporations, partnerships, estates, and trusts are not eligible to file for Chapter 13.  But individual operating their own business as a sole proprietorship (unincorporated) are generally eligible to file chapter 13 to deal with their personal and business debt.

A husband and wife can file a joint Chapter 13 case. The filing of a joint petition does not automatically result in the substantive consolidation of the two debtors' estates.

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