Attorney Jeffrey Randolph Becker's Legal Cases

Debt collection

Jelencovich v. Dodge Enters., 2009 U.S. Dist. LEXIS 116309 (S.D. Fla. Dec. 14, 2009)

Dec 14, 2009

OUTCOME: A creditor is not required to advise a debtor of all possible exemptions recognized by law which might prevent enforcement of a judgment.

A judgment creditor properly asserting its rights to garnishment cannot know whether any exemption applies to the particular judgment debtor unless and until such exemptions are raised defensively by t ... he judgment debtor. In fact, under the provisions of Fla. Stat. § 77.041, the Clerk of Court has to attach a notice to writs of garnishment along with a "Claim of Exemption and Request for Hearing" form. Fla. Stat. § 77.041(1). This form contains eleven authorized exemptions for the person's identification by way of marking the relevant ones, along with a space to list "[o]ther exemptions as provided by law," indicating the need to explain any such applicability. Thus, the Florida legislature has proscribed a means by which the judgment debtor will be informed of possible exemptions and the procedure by which to assert them. To hold otherwise would require every judgment creditor to advise all debtors of all possible exemptions recognized by the law which might prevent enforcement of the judgment. The Court rejects this proposition. Accordingly, Defendant is entitled to an entry of judgment on the pleadings.

Chapter 13 bankruptcy

In re Pittman, 289 B.R. 448 (Bankr. M.D. Fla. 2003)

Jan 17, 2003

OUTCOME: Chapter 13 debtor may not finance the residual purchase price of a vehicle in a Chapter 13. The lease unambiguously required the debtor to make a lump sum payment in order to exercise the purchase option.

The debtor and creditor had entered into a 36 month motor vehicle lease. The creditor was the vehicle's registered owner, and the lease contained an option which allowed the debtor to purchase the vehi ... cle for its residual value on the scheduled termination date. The debtor sent a letter to the creditor purporting to exercise her purchase option, but the debtor did not send a payment for the purchase price of the vehicle. The debtor filed a Chapter 13 bankruptcy petition. The first amended Chapter 13 plan provided that the debtor would pay the purchase price over a period of 36 months. The creditor objected to confirmation of the plan and contended that allowing the debtor to finance the purchase price of the vehicle over the life of the plan was inconsistent with the terms of the lease. The issue before the court was whether a Chapter 13 debtor could finance a residual purchase price of a leased automobile over the life of a Chapter 13 plan. 11 U.S.C.S. § 1322(b)(7) did not permit a Chapter 13 debtor to finance the residual purchase price of the vehicle. The lease unambiguously required the debtor to make a lump sum payment in order to exercise the purchase option.

Chapter 7 bankruptcy

Duguid v. Rogers (in Re Rogers), 193 B.R. 55 (Bankr. M.D. Fla. 1996)

Feb 05, 1996

OUTCOME: The court granted summary judgment in favor of the judgment creditors and held that the award of damages to them in the state court action was nondischargeable by the debtors.

A final judgment on default was entered in favor of the judgment creditors against the debtors in a state court action for breach of contract and fraud. After the debtors sought relief in bankruptcy, t ... he judgment creditors brought an adversary proceeding. The court granted the judgment creditors' motion for partial summary judgment on the basis that the state court's final judgment collaterally estopped the debtors from relitigating issues decided by the state court. The judgment creditors then sought a determination of whether they were entitled to summary judgment on damages. The court granted their motion, finding that the compensatory damages awarded to the judgment creditors arose out of the debtors' fraudulent conduct, and therefore, were excepted from discharge under § 523(a)(2)(A). Further, the state court's award of punitive damages was predicated upon a finding that the debtors transferred construction funds to their own personal use with intent to defraud the judgment creditors, and thus, punitive damages were also not excepted from discharge. The court held that the treble damages awarded under the state theft statute were nondischargeable as well.

Chapter 7 bankruptcy

Phillips v. Phillips (In re Phillips), 187 B.R. 363 (Bankr. M.D. Fla. 1995)

Oct 16, 1995

OUTCOME: The court found in favor of the trustee and the ex-wife on the objections to the debtor's discharge, and the debtor's discharge was denied.

The ex-wife sought an exception from discharge for a large lump-sum alimony award made in the final judgment of dissolution of her marriage the debtor and claimed that it was a nondischargeable debt th ... at the debtor had the ability to pay and that the detriment to her outweighed the benefit of a discharge to the debtor. The court disagreed and found that the lump sum was dischargeable. Even though the amount was in the nature of a property settlement that would ordinarily not be excepted under § 523(a)(5), when the court balanced the equities under § 523(a)(15), it found that the ex-husband's need for a fresh start outweighed the detriment that the deprivation would cause to the ex-wife. However, the court nonetheless denied the discharge under § 727(a)(4)(A) because the ex-husband had made a series of material omissions from his schedules and his statement of financial affairs. The court inferred fraudulent intent because the ex-husband's conduct showed a reckless disregard for the truth, and it found that the ex-husband knowingly and fraudulently made a false oath in completing his petition papers.

Jeffrey Randolph Becker's Legal Cases (4)

Jelencovich v. Dodge Enters., 2009 U.S. Dist. LEXIS 116309 (S.D. Fla. Dec. 14, 2009)

In re Pittman, 289 B.R. 448 (Bankr. M.D. Fla. 2003)

Duguid v. Rogers (in Re Rogers), 193 B.R. 55 (Bankr. M.D. Fla. 1996)

Phillips v. Phillips (In re Phillips), 187 B.R. 363 (Bankr. M.D. Fla. 1995)