Fort Myers, FL
Chapter 13 bankruptcy Lawyer at Fort Myers, FL
Practice Areas: Chapter 13 Bankruptcy, Chapter 7 Bankruptcy ... +2 more
OUTCOME: Motions to Dismiss denied
In this Fair Debt Collection Practices Act case, the court denied 3 defendants’ motions to dismiss the case where suit was filed on the basis that the defendants made improper demands for an alleged de ... ficiency balance due on a mortgage debt.
OUTCOME: Circuit Court of Appeals Rev'd District and Bankruptcy Courts
In this case, the debtors filed chapter 13 bankruptcy with a plan to keep their home but did not claim the Florida constitutional homestead protection and elected instead to claim the personal property ... protection of sec. 222.25(4), Fla. Stat. The trustee objected to exemption asserting that despite not claiming the homestead exemption, the debtors were still receiving its benefits due to the protections under chapter 13 and were thus barred from claiming the personal property protection. The bankruptcy court and district court agreed with the trustee on appeal. Appeal was taken to the Eleventh Circuit and the decisions were reversed with the circuit court confirming that bankruptcy protections are not protections that would prohibit a debtor from claiming section 222.25(4).
OUTCOME: Florida Second District Court of Appeals reversed the lower court's decision and ruled that the billing statements were, in fact, attempts to collect debt by the mortgage servicer/bank.
In this case, the firm represented a homeowner who entered into a loan modification with its mortgage servicer, but the client continued to receive billing statements alleging amounts due over and abov ... e the terms of the modification. The lower court dismissed the case on the bank's motion, claiming that the billing statements could not be considered attempts to collect debt under the Florida Consumer Collection Practices Act. The firm appealed the decision to the Florida Second District Court of Appeal, case no. 2D12-6271, which reversed the lower court's decision and ruled that the billing statements were, in fact, attempts to collect debt by the mortgage servicer/bank.
OUTCOME: Federal Court recognized that the two actions sought different kinds of relief, and the plaintiff could maintain both actions despite the fact that they arose out of the same conduct.
The firm was hired to represent Mr. Davis in the case of Davis v. NCO Financial Systems, Inc., case no. 8:14-cv-198-T-24 TGW, in the United States District Court for the Middle District of Florida for ... unfair debt collection activity. The complaint alleged that the defendant debt collector violated the FDCPA and FCCPA through certain messages left on the plaintiff's answering machine in an effort to collect debt. We also alleged that these collection efforts also happened to be made while the plaintiff was protected by the automatic stay in his Chapter 13 bankruptcy. Accordingly, the firm filed an adversary proceeding against the defendant for the same conduct in the United States Bankruptcy Court for the Middle District of Florida, case no. 8:14-ap-00488-CED. The defendant filed a Motion for Judgment on the Pleadings in the Federal District Court case, claiming that a debtor could not seek relief under the FDCPA and FCCPA in federal court while simultaneously seeking relief under the automatic stay in bankruptcy court for the same conduct. In its decision denying the defendant's Motion for Judgment on the Pleadings, the Federal Court recognized that the two actions sought different kinds of relief, and the plaintiff could maintain both actions despite the fact that they arose out of the same conduct.
OUTCOME: The Court ruled that the debtor did discharge such debt.
The firm represented the debtor/plaintiff in the bankruptcy adversary proceeding, Vincent Russo v. HD Supply Electrical, Ltd., 9:11-bk-21854-FMD. The main issue was whether a debtor's pre-petition pers ... onal guarantee of business debt survives the debtor's personal Chapter 7 bankruptcy discharge. The Defendant, HD Supply vigorously defended their actions. In the order issued by the Bankruptcy Court on the parties' Cross-Motions for Summary Judgment, the Court ruled that the debtor did discharge such debt.
OUTCOME: Bankruptcy Court Reversed
In this chapter 13 bankruptcy case, the chapter 13 trustee objected to confirmation as the debtor did not commit his Social Security income to the plan. The debtor’s position was Social Security inco ... me should be excluded from the calculation of projected disposable income as it was specifically excluded from the defined term “disposable income.” The bankruptcy court disagreed and ruled against the debtor. On appeal, the district court reversed holding the plain language of the Bankruptcy Code excluded Social Security income and there was no basis to sustain the objection to confirmation.
OUTCOME: The district court disagreed finding the parties agreed to resolve the fees before the court and found the consumer was unquestionably the prevailing party.
In this improper credit reporting case, the parties went to arbitration where an award was entered in favor of the consumer. Upon entry of the award, prevailing party attorney’s fees and costs were so ... ught with the court. HSBC contested the request arguing the arbitrator decided all issues, including attorney’s fees and costs. The district court disagreed finding the parties agreed to resolve the fees before the court and found the consumer was unquestionably the prevailing party.
OUTCOME:
In this joint bankruptcy case of a married couple, the trustee objected to the claimed exemptions of the debtors that allocated disproportionate amounts of the so-called wildcard exemption to the asset ... s of the case. The trustee argued each own a 50% stake in the joint assets and should only be able to claim exemption on their portion. In response, we successfully argued that Florida is a tenancy by the entirety state and the couple did not own individual shares of the assets. Rather, the joint assets were owned by the marital partnership and each owned an indivisible share of the whole.
OUTCOME: Court Overruled the Trustee's Finding
In this chapter 13 case, the trustee objected to confirmation arguing the debtors are not meeting the “liquidation test” as creditors are not receiving what they would receive in a hypothetical chapter ... 7 case. The dispute arose because the trustee wanted the debtors to pay the total of the unexempt assets in the case. The debtors on the other hand were reducing the amount to be paid by subtracting the hypothetical chapter 7 trustee administration costs from the value of the unexempt assets. Following argument, the bankruptcy court overruled the trustee’s objection finding that the creditors would not receive the proceeds of the chapter 7 trustee’s administration costs and thus the debtors did not have to pay it to meet the test.
OUTCOME: The bankruptcy court overruled the trustee’s objection holding there was no unfair discrimination with the classification.
In this chapter 13 case, the debtor was paying 100% to all creditors. However, to avoid incurring the chapter 13 trustee’s administration fee on the payment to student loan claims, the debtor’s plan s ... eparately classified those claims to pay them directly. The chapter 13 trustee objected. The bankruptcy court overruled the trustee’s objection holding there was no unfair discrimination with the classification.
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