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In an excellent decision for preference targets, the Eleventh Circuit recently held in the case of Kaye v. Blue Bell Creameries, Inc. (In re BFW Liquidation, LLC) that the new value defense, under Section 547(c)(4), does not require new value to remain unpaid.

In reaching this conclusion, the 11th Circuit has found common ground with the Fourth, Fifth, Eighth, and Ninth Circuits which also reject the idea that § 547(c)(4) requires new value to remain unpaid.

This opinion should result in a meaningful reduction of preference exposure for vendors and others that continue to extend credit and transact business with financially troubled debtors.  In fact, vendors may be incentivized to continue extending short-term credit without fear of having all the payments they receive for newly delivered goods clawed back.

Yet another benefit (for practitioners) – complicated “remains unpaid” preference analysis spreadsheets will soon be distant memory (at least in the 11th Circuit).  Thank you 11th Circuit!

  Heather L. Ries is an attorney with the Financial Restructuring and Bankruptcy Department of the law firm of Fox Rothschild LLP. Heather focuses her practice in matters related to bankruptcy, creditors’ rights, commercial workout and foreclosure disputes, and commercial litigation. You can contact Heather at 561-804-4419 or hries@foxrothschild.com.

 

 

 

Debtors generally file a bankruptcy petition seeking a fresh start, free from their personal debts.  Debtors have the option to agree to pay certain debts to retain a car or other property through reaffirmation agreements and lease assumption.  Reaffirmation or lease assumption may seem like a good option at the time – when for instance a debtor wants to keep his current car.   However, whether he should enter into such an agreement should be given careful consideration as to the debtor’s ability to make payments going forward.  Once a pre-petition debt is reaffirmed or a lease is assumed, a debtor is bound to make the payments and if the debtor defaults, the debt is not included in the debtor’s fresh start – the coveted discharge.

By example, the debtor in a recent South Florida bankruptcy case,  entered into a assumption agreement for his leased vehicle.  At some point thereafter, the debtor determined that he could not continue to make the lease payments and turned the car over to the lessor.  Not wishing to be personally liable for the remainder of the payments under the lease, the debtor argued that he should not have any personal liability under the lease because he did not reaffirm his obligations under the lease in accordance with subsection 524(c) and thus the personal liability will be discharged when he receives his discharge.  Alternatively, he argued that because he “rescinded assumption” prior to discharge, his personal liability under the lease should be discharged.

The bankruptcy court considered in its decision on the matter, whether the safeguards contained within 11 U.S.C. 524 must be satisfied when a debtor assumes a lease pursuant to subsection 365(p) in order for a debtor’s personal liability under the assumed lease to survive the debtor’s discharge.

The court held that in personam liability under an assumed lease is not dependent on adherence to the reaffirmation provisions of subsection 524(c) and that Toyota may proceed against the car and has the right, subject to the provisions of the lease and applicable non-bankruptcy law, to seek from the debtor any remaining amounts due under the lease.  However, the lessor could not proceed against the debtor until after the debtor received his discharge, or the lessor sought stay relief against the debtor.

Whether to assume a lease or reaffirm a debt in bankruptcy requires careful consideration!  Debtors should ask themselves – can I foresee having any trouble making the payments going forward?  If the answer is maybe – just say no to assumption and reaffirmation!

  Heather L. Ries is an attorney with the Financial Restructuring and Bankruptcy Department of the law firm of Fox Rothschild LLP. Heather focuses her practice in matters related to bankruptcy, creditors’ rights, commercial workout and foreclosure disputes, and commercial litigation. You can contact Heather at 561-804-4419 or hries@foxrothschild.com.

IRA and 401(k) retirement accounts are generally exempt from claims of creditors pursuant to Section 222.21, Florida Statutes and Section 522 of the Bankruptcy Code.  For this reason, these types of retirement accounts can be a useful asset protection tool.  However, as I have mentioned in previous blog posts, there are exceptions to every rule!

Beware – prohibited transactions can cause the assets in your IRA or 401(k) account to LOSE their exempt status!  Terms like “set it and forget it,” and “we are programmed to receive,” come to mind when I think of these types of accounts.  Playing around with IRA or 401(k) funds, especially self-directed accounts, is risky business!

By example, in a S.D. Fla. Bankruptcy Case, the Court concluded that the funds in the Debtor’s Merrill Lynch IRA were not exempt because the Debtor engaged in prohibited transactions pursuant to the Internal Revenue Code and the funds in his two other IRA accounts were not exempt because they constituted funds from the Merrill Lynch IRA which had lost its exempt status.

  Heather L. Ries is an attorney with the Financial Restructuring and Bankruptcy Department of the law firm of Fox Rothschild LLP. Heather focuses her practice in matters related to bankruptcy, creditors’ rights, commercial workout and foreclosure disputes, and commercial litigation. You can contact Heather at 561-804-4419 or hries@foxrothschild.com.

My November, December, and February posts, discussed details of homestead protection in Florida including requirements, benefits and pitfalls.  If you are married, another asset protection and estate planning tool available to you is Tenants by the Entirety (“TBE”) ownership.  In Florida, a married couple may own several types of property TBE, including, but not limited to, bank accounts, real property (including their homestead) and personal property.   In fact, Florida law presumes that property acquired by a married couple is TBE property if the “six unities” of TBE ownership are present.  The six unities required for TBE ownership are (1) unity of possession (joint ownership and control); (2) unity of interest (the interests in the account must be identical); (3) unity of title (the interests must have originated in the same instrument); (4) unity of time (the interests must have commenced simultaneously); (5) survivorship; and (6) unity of marriage (the parties must be married at the time the property became titled in their joint names).

Under Florida law, the benefit of owning property TBE is that it is exempt from process to satisfy debts owed to individual creditors of either spouse.  This is because an interest in TBE property is not equivalent to one half of the equity in the property, but rather, an inseverable interest in the whole owned by both spouses.

However, TBE is not a perfect asset protection tool as it can be broken, severed, and/or create unwanted liability.

  •  TBE property is not exempt from process to satisfy joint debts of both spouses;
  •  TBE protection dissolves if one of the spouses passes away;
  •  TBE protection is broken by divorce; and
  •  TBE ownership of cars, boats and/or other recreational vehicles could result in liability for both spouses under the dangerous instrumentality doctrine.

TBE ownership is not right for everyone or every situation, but it is worth considering if it is available to you.

  Heather L. Ries is an attorney with the Financial Restructuring and Bankruptcy Department of the law firm of Fox Rothschild LLP. Heather focuses her practice in matters related to bankruptcy, creditors’ rights, commercial workout and foreclosure disputes, and commercial litigation. You can contact Heather at 561-804-4419 or hries@foxrothschild.com.

"Welcome to Palm Beach, Florida" Retro PosterOn Fox’s Tax Controversy Sentinel blog, partner Charles Bender recently examined a Florida case involving the state’s Homestead Exemption. The Exemption allows for a reduction in local real estate taxes and also provides that the homestead is exempt from claims of creditors of Florida residents. In the Circuit Court for Palm Beach County case Ramos v. Motamed, a creditor sought to enforce a judgment against a debtor by challenging his change of domicile to Florida and his use of the Exemption to protect his luxury condominium from creditors. Though the debtor took the usual official steps to establish residency in Florida, at trial the plaintiff presented a crucial exhibit to the contrary.

To read Charles’ full piece and learn the case’s outcome, please visit the Tax Controversy Sentinel blog.

In my August post, I discussed two cases.  In the Failla case, the Eleventh Circuit affirmed the District Court’s opinion that “once the debtor decides to ‘surrender’ secured property… [w]hile the debtor need not physically deliver the property to the secured party, the debtor is precluded from taking any action which would interfere with the secured creditor’s ability to obtain legal title to, and possession of, the property through legal means.”  Thereafter, the S.D. Bankruptcy Court held, in the Kurzban case, that “the Eleventh Circuit did not rule that a debtor’s decision to surrender lasted in perpetuity“.

As of October 1, 2018, a new statute which expands on the spirit of both the Failla and Kurzban cases will apply to all foreclosure cases filed on or after October 1, 2018.  Specifically, Senate Bill No. 220 was signed into law by Florida Governor Rick Scott this month and will become effective as Section 702.12, Florida Statutes.

Section 702.12 will streamline the foreclosure process for mortgage lenders where bankrupt borrowers have filed an intention to surrender the lender’s property, not withdrawn that intention, and the Bankruptcy Court has entered a final order either granting the bankruptcy debtor(s) a discharge, or confirming a repayment plan that provides for surrender of the property.  If these circumstances are present, the statute provides mortgage lenders with a rebuttable presumption that the borrower has waived any defenses to foreclosure.  The statute further provides that the court shall take judicial notice of Bankruptcy Court orders upon the request of lender.

While Section 702.12 is a positive new law for mortgage lenders, the advice in my August post, still applies – Do NOT sit on your rights!   Section 702.12(3), similar to the ruling in Kurzban, provides that the borrower is not precluded from raising a defense based on the mortgage lender’s action or inaction subsequent to the filing of the bankruptcy document which evidenced the borrower’s intention to surrender the mortgaged property to the mortgage lender.

  Heather L. Ries is an attorney with the Financial Restructuring and Bankruptcy Department of the law firm of Fox Rothschild LLP. Heather focuses her practice in matters related to bankruptcy, creditors’ rights, commercial workout and foreclosure disputes, and commercial litigation. You can contact Heather at 561-804-4419 or hries@foxrothschild.com.

In my November and December posts, I discussed the basics regarding protection of your Florida Homestead from forced sale by creditors and some of the exceptions.

A recent decision from the Second District Court of Appeal of Florida provides a good reminder of another Florida Homestead pitfall.

The Florida Constitution, Article X, Section 4 provides as follows: “There shall be exempt from forced sale under process of any court, and no judgment, decree[,] or execution shall be a lien thereon, … property owned by a natural person.”  As such, the plain language of the Florida Constitution requires that the owner of the property be a natural person to claim the homestead exemption.

While there is case authority which provides that property held in a revocable living trust may qualify for homestead protection, property titled in the name of a corporation, a limited liability company, or a partnership doesn’t qualify.  This is because an individual must have an ownership interest in a residence that gives the individual the right to use and occupy it as his or her place of abode, to qualify for Florida’s homestead exemption.  Be careful how you title your home!

  Heather L. Ries is an attorney with the Financial Restructuring and Bankruptcy Department of the law firm of Fox Rothschild LLP. Heather focuses her practice in matters related to bankruptcy, creditors’ rights, commercial workout and foreclosure disputes, and commercial litigation. You can contact Heather at 561-804-4419 or hries@foxrothschild.com.

In the case of Mantiply v. Horne (In re Horne), 876 F.3d 1076 (11th Cir. 2017) the Eleventh Circuit decided an issue of first impression in the Circuit: Whether the Bankruptcy Code authorizes payment of attorneys’ fees and costs incurred by debtors in successfully pursuing an action for damages resulting from the violation of the automatic stay and in defending the damages award on appeal.

The stay violator argued on appeal that the debtors were not entitled to appellate fees as a matter of law under Section 362(k)(1) of the Bankruptcy Code because the statute only provides for mandatory fees for damages and attorneys’ fees incurred in ending a stay violation, not incurred in pursuing a damages award nor fees incurred in defending a damages award on appeal.

The Eleventh Circuit disagreed with the stay violator and held that Section 362(k)(1) of the Bankruptcy Code specifically departs from the American Rule and authorizes costs and attorneys’ fees incurred by the debtor in ending a willful violation of an automatic stay, prosecuting a damages violation, and defending those judgements on appeal.

Specifically, the Court reasoned that, unlike Section 330, Section 362(k) specifically and explicitly provides for the recovery of “costs and attorneys’ fees” in the measure of damages arising from a willful violation of the automatic stay, allowing for a departure from the American Rule.  Moreover, nothing in the text of Section 362(k)(1) limits the scope of attorneys’ fees to solely ending a stay violation.  Instead, Section 362(k)(1) speaks to full recovery of damages including fees and cost incurred from violating the stay.  The Court noted that this result makes sense in the context of bankruptcy litigation where the lion’s share of damages from violations of the automatic stay are attorneys’ fees and the debtors are least able to afford them.

The Takeaway?  While there are always exceptions to the rule, it is generally best to attempt to settle “willful” stay violations early on.  The damages in what may seem like a simple matter, escalate quickly.  If you choose to litigate and lose, you could be responsible for paying “actual damages, including costs and attorneys’ fees” to the debtor(s) for all the proceedings related to the stay violation dispute and, to add insult to injury, your own attorneys’ fees and costs.

 

  Heather L. Ries is an attorney with the Financial Restructuring and Bankruptcy Department of the law firm of Fox Rothschild LLP. Heather focuses her practice in matters related to bankruptcy, creditors’ rights, commercial workout and foreclosure disputes, and commercial litigation. You can contact Heather at 561-804-4419 or hries@foxrothschild.com.

In my November post, I discussed the basics regarding protection of your Florida Homestead from forced sale by creditors and alluded to exceptions to the rule.  Let’s discuss some of those exceptions as it relates to a bankruptcy filing.

If you have acquired an ownership interest in your Florida Homestead within 1,215 of the date you file for bankruptcy, your exemption is subject to a homestead exemption cap under section 522(p) of Title 11 (the “Bankruptcy Code”).  If you bought a house for the first time within the 1,215 day period, your Florida Homestead exemption is limited the amount of $160,375.00 for single debtors and $320,750.00 for married Debtors.  If you bought a new residence within the 1,215 day period, you may add any equity transferred to the previous residence to the exemption limit.  For instance, if you are a single Debtor, sold your home, and used $100,000.00 of equity from your old home to buy your new one, your allowed exemption would be $260,375.00.  As you can see, if you have more than the exemption limit in your Florida Homestead, it is important to consider and calculate the length of time you have owned your home before contemplating a bankruptcy filing.  In addition, if you have been chased by one or more creditora for several years prior to contemplating bankruptcy, you should consider what, if any, funds you have used to purchase the property, prepay your mortgage or improve the property.  Creditors may look to 522(o) of the Bankruptcy Code to attempt to recover those funds based on your intent to hinder, delay or defraud them.

Another risk to your Florida Homestead exemption is the dreaded “Ponzi Scheme”.  In a June, 2017 decision from the Middle District of Florida Bankruptcy Court, the Court awarded an equitable lien and constructive trust on the homestead of a Ponzi scheme investor’s Florida Homestead.  The Ponzi scheme investor, who had filed for bankruptcy and was not involved in or aware of the fraud, “passively received the fraudulent transfers” which he used to purchased the Florida Homestead.  The Court held that the Ponzi scheme investor’s lack of participation in the fraud was not determinative; the focus must be on the fraudulent nature of the funds and unjust enrichment.  The Ponzi scheme investor had been unjustly enriched by the receipt of the fraudulent transfers that he and his wife invested in their home.  Accordingly, the Court determined that an equitable lien and constructive trust should be imposed on the Florida Homestead to the extent the Ponzi scheme distributions were traceable into the Florida Homestead.   The take away – be wary of investment schemes (if it is too good to be true, it probably is) and be thoughtful about the source of funds you invest in your homestead.

  Heather L. Ries is an attorney with the Financial Restructuring and Bankruptcy Department of the law firm of Fox Rothschild LLP. Heather focuses her practice in matters related to bankruptcy, creditors’ rights, commercial workout and foreclosure disputes, and commercial litigation. You can contact Heather at 561-804-4419 or hries@foxrothschild.com.

Your primary residence in Florida (“Homestead”) can be a very useful tool for protection of assets from creditors during your life, and after your death for the benefit or your spouse and heirs.

The Florida Constitution, Article X, Section 4 sets forth the applicable restrictions on forced sale and the devise of your Homestead.  If your Homestead is one-half acre or less within a municipality or 160 acres or less outside a municipality, the entire Homestead is generally protected from forced sale by someone that sues you and obtains a judgment.  This same protection from judgment creditors will also benefit your spouse and/or heirs who inherit your Homestead after you’re gone.

However, there are exceptions to every rule and your actions could unwittingly subject your Homestead to the claims of creditors.  Have I peaked your interest?  If so, you won’t want to miss my series of blog posts discussing Homestead issues in Florida.  Stay tuned!

  Heather L. Ries is an attorney with the Financial Restructuring and Bankruptcy Department of the law firm of Fox Rothschild LLP. Heather focuses her practice in matters related to bankruptcy, creditors’ rights, commercial workout and foreclosure disputes, and commercial litigation. You can contact Heather at 561-804-4419 or hries@foxrothschild.com.