This document discusses issues related to time barred mortgages in bankruptcy. It notes that both state and federal law are unclear on this issue. Filing a proof of claim on a time barred debt could violate the Fair Debt Collection Practices Act. The statute of limitations for mortgages in Florida is 5 years from acceleration, while the statute of repose is generally 20 years from execution. However, federal law may preempt these in some cases like with FDIC or SBA assigned mortgages. The document also discusses tolling provisions and issues around determining when a mortgage is time barred.
The North Carolina Court of Appeals issued an order granting a writ of prohibition to restrain the trial court from enforcing its order requiring the state to appropriate $1.7 billion in unappropriated school funding. The majority concluded that the trial court erred in interpreting the education clause of the state constitution as an ongoing appropriation, which would undermine the separation of powers and legislative authority over appropriations. A dissenting judge argued that the majority prematurely decided the case on an expedited schedule without allowing full briefing or argument.
The North Carolina State Board of Education filed a motion seeking relief from a 2002 court order requiring it to provide all students access to a sound basic education as defined by the state constitution. The court denied the motion, finding that while legislative reforms have been enacted, the State Board failed to present convincing evidence that the reforms have substantially complied with the constitutional mandate or moved the state closer to ensuring all children receive their right to an education meeting minimum standards of quality. Test score data and other evidence in the court record show that hundreds of thousands of students continue to be denied their right to a sound basic education. The court found the State Board's motion was untimely given it relied on reforms from 2012 but was not filed until 2017.
1) The Family Court is the proper forum to determine if Husband's bankruptcy discharge applies to debts from the divorce decree. The discharge order did not specify which debts were discharged.
2) Debts from a divorce decree, including a hold harmless provision requiring Husband to pay half the credit union debt, are not automatically discharged through bankruptcy.
3) Husband's nonspecific bankruptcy discharge does not override his obligation in the divorce decree to pay half the credit union debt. The Commissioner erred in ruling the debt was discharged.
When Plaintiff Offers for Defendants to Validate Plaintiff's "Lease" and "Cas...jamesmaredmond
This supplemental declaration was submitted by David Chatfield, an attorney representing Sulphur Mountain Land and Livestock Co. LLC, in opposition to a motion to compel further deposition of Stephen Gaggero. Chatfield states that he previously offered to show opposing counsel a document establishing Sulphur Mountain's right to lease the premises in question, without copying it, but received no response. Chatfield offered again by letter on August 26th and again received no response. The declaration aims to show Chatfield attempted to resolve the issue without further court action.
Shifting Tides - The Temporary Nature of Bankruptcy Court JurisdictionChristopher Somma
The document discusses the temporary nature of bankruptcy court jurisdiction. It examines a Rhode Island bankruptcy court case that found jurisdiction is temporal and can shift over time as the underlying Chapter 7 case progresses. When adversary proceedings remain active past the closing of the main bankruptcy case, the court may find it no longer has jurisdiction to retain the proceeding. The document then provides an in-depth overview of the sources and limits of bankruptcy court jurisdiction under the U.S. Constitution and bankruptcy code. It distinguishes between core proceedings, related-to proceedings, and unrelated matters to further explain the shifting scope of a bankruptcy court's authority.
The document summarizes appellate court decisions from 2012 regarding mortgage foreclosure cases in New York State. Some key points include:
- Courts are strictly enforcing contracts as written and requiring lenders to prove they have proper standing to foreclose by demonstrating ownership of the promissory note.
- If standing is defective when the case is filed, it cannot be corrected and the case must be restarted.
- Lenders must explain the circumstances if the promissory note was lost and prove they have not sold or transferred the note.
- Foreclosure cases will not be set aside just because the auctioned property was smaller than specified in the contract; the amount foreclosed will just be reduced proportionally.
The court granted a motion to add additional judgment debtors to a $1.8 million judgment against plaintiff Stephen Gaggero. The additional judgment debtors included six entities (four limited partnerships and two LLCs) that were formerly owned by Gaggero, totaling $35-40 million in assets in 1998. It also included the trustee, Joseph Praske, of three trusts that now owned the entities, after Gaggero transferred ownership of the entities to the trusts in 1998 as part of an "estate plan". The court found all were alter egos of Gaggero based on evidence that Gaggero controlled the entities and trusts, and used them to avoid creditors like the defendants in this case. The additional judgment
The North Carolina Court of Appeals issued an order granting a writ of prohibition to restrain the trial court from enforcing its order requiring the state to appropriate $1.7 billion in unappropriated school funding. The majority concluded that the trial court erred in interpreting the education clause of the state constitution as an ongoing appropriation, which would undermine the separation of powers and legislative authority over appropriations. A dissenting judge argued that the majority prematurely decided the case on an expedited schedule without allowing full briefing or argument.
The North Carolina State Board of Education filed a motion seeking relief from a 2002 court order requiring it to provide all students access to a sound basic education as defined by the state constitution. The court denied the motion, finding that while legislative reforms have been enacted, the State Board failed to present convincing evidence that the reforms have substantially complied with the constitutional mandate or moved the state closer to ensuring all children receive their right to an education meeting minimum standards of quality. Test score data and other evidence in the court record show that hundreds of thousands of students continue to be denied their right to a sound basic education. The court found the State Board's motion was untimely given it relied on reforms from 2012 but was not filed until 2017.
1) The Family Court is the proper forum to determine if Husband's bankruptcy discharge applies to debts from the divorce decree. The discharge order did not specify which debts were discharged.
2) Debts from a divorce decree, including a hold harmless provision requiring Husband to pay half the credit union debt, are not automatically discharged through bankruptcy.
3) Husband's nonspecific bankruptcy discharge does not override his obligation in the divorce decree to pay half the credit union debt. The Commissioner erred in ruling the debt was discharged.
When Plaintiff Offers for Defendants to Validate Plaintiff's "Lease" and "Cas...jamesmaredmond
This supplemental declaration was submitted by David Chatfield, an attorney representing Sulphur Mountain Land and Livestock Co. LLC, in opposition to a motion to compel further deposition of Stephen Gaggero. Chatfield states that he previously offered to show opposing counsel a document establishing Sulphur Mountain's right to lease the premises in question, without copying it, but received no response. Chatfield offered again by letter on August 26th and again received no response. The declaration aims to show Chatfield attempted to resolve the issue without further court action.
Shifting Tides - The Temporary Nature of Bankruptcy Court JurisdictionChristopher Somma
The document discusses the temporary nature of bankruptcy court jurisdiction. It examines a Rhode Island bankruptcy court case that found jurisdiction is temporal and can shift over time as the underlying Chapter 7 case progresses. When adversary proceedings remain active past the closing of the main bankruptcy case, the court may find it no longer has jurisdiction to retain the proceeding. The document then provides an in-depth overview of the sources and limits of bankruptcy court jurisdiction under the U.S. Constitution and bankruptcy code. It distinguishes between core proceedings, related-to proceedings, and unrelated matters to further explain the shifting scope of a bankruptcy court's authority.
The document summarizes appellate court decisions from 2012 regarding mortgage foreclosure cases in New York State. Some key points include:
- Courts are strictly enforcing contracts as written and requiring lenders to prove they have proper standing to foreclose by demonstrating ownership of the promissory note.
- If standing is defective when the case is filed, it cannot be corrected and the case must be restarted.
- Lenders must explain the circumstances if the promissory note was lost and prove they have not sold or transferred the note.
- Foreclosure cases will not be set aside just because the auctioned property was smaller than specified in the contract; the amount foreclosed will just be reduced proportionally.
The court granted a motion to add additional judgment debtors to a $1.8 million judgment against plaintiff Stephen Gaggero. The additional judgment debtors included six entities (four limited partnerships and two LLCs) that were formerly owned by Gaggero, totaling $35-40 million in assets in 1998. It also included the trustee, Joseph Praske, of three trusts that now owned the entities, after Gaggero transferred ownership of the entities to the trusts in 1998 as part of an "estate plan". The court found all were alter egos of Gaggero based on evidence that Gaggero controlled the entities and trusts, and used them to avoid creditors like the defendants in this case. The additional judgment
This motion for summary judgment concerns whether a letter given to a dismissed employee constituted a termination agreement. The plaintiff worked for the defendant from 2005 to 2008 as a receptionist then executive assistant. In November 2008, she was unexpectedly dismissed and given a letter offering five months salary in lieu of notice. She signed the letter. A few days later, the employer said it made a mistake and the plaintiff was only entitled to three weeks pay. The court must determine if the letter was an offer accepted by the plaintiff's signature, creating a binding contract.
This document summarizes key appellate decisions from 2012 regarding mortgage foreclosure cases in New York. Some of the main points covered include courts strictly enforcing contracts as written; the "where is the note" defense requiring plaintiffs to prove they own the promissory note; standards for lost notes; defects in standing cannot be corrected; no need to substitute plaintiff after note is sold; purchasers of failed banks' assets having standing; proceedings must be against the estate of a deceased person; limits on enforcing merger clauses; allowable counterclaims; reimbursement only for authorized maintenance costs; seeking court approval to expand receiver's powers; setting aside foreclosure not required for auctioning less property; and plaintiffs still prevailing when full payment is late.
The document summarizes key foreclosure law trends and appellate court decisions from 2012. Some of the main points covered include: appellate courts are strictly enforcing contracts as written; the Second Department has many reported foreclosure cases; plaintiffs must prove they have standing by possessing the original note or valid assignment; if standing is defective when initially filed it cannot be corrected; and lenders must seek court approval before taking actions beyond what the mortgage authorizes.
The document summarizes key trends in foreclosure law in New York in 2012. Appellate courts strictly enforced contracts and required lenders to prove they have standing by demonstrating ownership of the promissory note. If standing was defective when the case began, it could not be cured and the case had to be refiled. The Second Department, located in New York City, had the most reported foreclosure cases.
This document provides information about a UOP ACC 543 Week 4 Exam, including a link to purchase the exam materials and information about the exam topics, which include negotiable instruments, secured transactions, and documents of title under the Uniform Commercial Code. It provides sample exam questions and scenarios that assess understanding of key concepts from these commercial law topics.
Gaggero-Arenzano Interest, '97-'07, in a Class of Beneficiariesjamesmaredmond
The plaintiff's closing argument summarizes four trust documents that were disclosed pursuant to a court order. The documents establish trusts known as the Arenzano Trust and Terra Mar Trust. The plaintiff argues that the trusts were created by the defendant Steve Gaggero in an attempt to shield his assets from liability related to fraudulent conduct against the plaintiffs. Specifically, the plaintiff points to evidence that Gaggero controlled the entities in question and their assets despite being removed as a beneficiary of one trust just as he defrauded the plaintiffs. The plaintiff requests the court find Gaggero and the entities jointly and severally liable for fraud and the return of plaintiffs' money.
D'Agostino v Federal Ins Co , 969 F. Supp. 2d 116 (D. Mass. 2013)Richard Goren
1) The parties engaged in settlement negotiations but did not reach an enforceable agreement because while D'Agostino offered $1.15 million for a release, Federal responded with a release containing additional material terms like confidentiality requirements, which were not accepted.
2) The court denied Federal's motions to enforce the alleged settlement agreement and for protective orders, finding no agreement was formed.
3) The court also denied requests for sanctions from both parties, finding neither party's actions warranted sanctions.
Excellent succinct reference to talk about citizenship and domicile in legal proceedings and discovery to prevent misunderstandings about your sovereign status.
20180123 penn intervenors reply brief (Leandro)EducationNC
This document is the Penn-Intervenors' response to the State Board of Education's motion for relief from the court's jurisdiction in this education funding case. The Penn-Intervenors argue that the motion should be denied for three reasons: 1) The court properly retains jurisdiction to monitor and supervise implementation of remedies to the constitutional harms found by the court. 2) Neither the passage of time nor claimed changes in circumstances are sufficient to relieve the SBE of its obligation to fully remedy the violation. 3) The plaintiffs' claims are not moot as the constitutional deficiencies found by the court still exist.
This document is a memorandum submitted by the defendant's counsel in a civil case regarding ejectment. The plaintiff filed a complaint to eject the defendant from an apartment the defendant had been leasing. The defendant argues that the plaintiff has no cause of action because the lease contract presented by the plaintiff is fictitious. Additionally, the defendant asserts that the plaintiff's action is barred by the one-year statute of limitations for unlawful detainer cases. Finally, the defendant claims the complaint should be dismissed for lack of a proper certification against forum shopping. The defendant requests that the court dismiss the plaintiff's complaint.
“Beware the 1099-C Trap” was published in Tickmarks Vol 55, No. 3 (Fall/Winter 2006), the Iowa Society of CPA’s semi-annual publication distributed to 4,400 members. This article is tailored to CPAs and highlights one of the many areas where tax compliance advice provided by CPAs converges with legal advice. It highlights one of the liability traps that awaits the inattentive CPA who strays into the realm of legal advice.
This memorandum decision addresses cross motions for summary judgment in a case regarding leases on the Osprey Meadows Golf Course and Lodge. Bryant, as the court-appointed fiduciary for RSPT, holds a promissory note, mortgage, and assignment of rents on the property from the defaulting owner, WMG. Tamarack Municipal Association (TMA) leased and operated the golf course and lodge. The court denies Bryant's motions for summary judgment on contract claims and to strike expert testimony. The court partially grants and denies TMA's motion for summary judgment, finding issues of fact remain regarding Bryant's authority to terminate TMA's leases unilaterally upon WMG's default.
This presentation discusses settlements of workers\' compensation cases in Florida. The discussion includes federal law affecting personal injury cases, MSA\'s and CMS participation. General contract principles are also explored.
Sample meet and confer declaration for motion for judgment on the pleadings i...LegalDocsPro
This document is a declaration regarding compliance with meet and confer requirements before filing a motion for judgment on the pleadings, as required by Section 439(a) of the California Code of Civil Procedure. It states that the declarant attempted to meet and confer with the opposing party/counsel to resolve objections to be raised in the motion, but an agreement could not be reached. It then declares under penalty of perjury that the requirements were complied with.
Doc723 motion to vacate claims & stay further proceedingmalp2009
The Chapter 11 Trustee filed a motion to vacate claims orders and stay further proceedings related to two claims filed against the bankruptcy estate. The claims, totaling $275,000 each, were based on promissory notes related to the debtor's purchase of a company called Premier. After the claims orders were entered allowing the claims in part, an indictment was filed describing how organized crime figures took control of the debtor and looted it for their personal benefit through fraudulent transactions like the one involving Premier. The indictment revealed that one of the claimants, Learned, was controlled by one of the crime figures and was used to defraud the debtor and launder money as part of the scheme.
This document is a summary of the Supreme Court's opinion in the case of BNSF Railway Co. v. Tyrrell. The Court held that:
1) Section 56 of the Federal Employers' Liability Act (FELA) addresses venue, not personal jurisdiction over railroads. It specifies where FELA claims can be brought in federal court, but does not govern personal jurisdiction.
2) Montana state courts could not exercise general personal jurisdiction over BNSF Railway under Montana law. While BNSF operates in Montana, it is not incorporated or headquartered there, and its activities in the state are not so substantial as to render it "at home" there.
3) For
Judge Mosman avoided directly ruling on the application of SB 814 to the defense costs being sought by Schnitzer, instead holding that Schnitzer was judicially estopped from arguing that its defense counsel was "independent counsel" subject to SB 814.
This document discusses various issues relating to statutes of limitations (SOLs) and notice provisions in insurance and reinsurance contracts. It provides an overview of SOL rules and accrual dates for direct insurance policies and reinsurance contracts. It also discusses how SOL defenses are addressed in reinsurance arbitrations and ways SOLs may be avoided, such as through tolling agreements. The document further examines issues around exhaustion of underlying limits for excess policies and notice requirements in reinsurance contracts.
This document summarizes a court case between First American Title Insurance Company, Winnebago County Title Company, and TCF Bank regarding a mortgage on a property owned by Patricia Bartholomew. TCF Bank held the first mortgage on the property as a revolving line of credit. Winnebago acted as an agent in a second mortgage taken out by Bartholomew. Winnebago paid off the TCF Bank mortgage but TCF did not release its lien. Bartholomew then took out more funds through the revolving credit and defaulted. The court found that TCF Bank was not legally required to release the lien until the revolving credit was cancelled by Bartholomew. However
This document discusses the responsibilities of a debtor's counsel throughout a Chapter 13 bankruptcy case. It begins by providing a hypothetical scenario where a debtor is 49 months into a 60 month repayment plan when the counsel receives a motion for relief from stay and a motion to dismiss for unpaid plan payments. The document analyzes what the counsel's responsibilities are in this situation based on case law and local rules. It emphasizes that the counsel is obligated to represent the debtor on important motions like these and cannot demand more money or refuse to appear in court. The best practices for counsel include clearly establishing communication expectations, documenting them, and acting in accordance with professional responsibilities throughout the case.
Case Study : Business Law I Essay
Unit 2 Business Law Essay
Business Law
Business Law Essay
Business Law: Case Study Questions And Answers
The Business Law Short Essay
Business Law Essay
Business Law
Business Law Questions and Answers
Business Law and Ethics Essay
Business Law Essay
Business Law
Business Law Essay
Business Law Essay
Common Law Vs Civil Law Essay
Business Law
Business Law Essay
Business Law Essay
Business Law
This motion for summary judgment concerns whether a letter given to a dismissed employee constituted a termination agreement. The plaintiff worked for the defendant from 2005 to 2008 as a receptionist then executive assistant. In November 2008, she was unexpectedly dismissed and given a letter offering five months salary in lieu of notice. She signed the letter. A few days later, the employer said it made a mistake and the plaintiff was only entitled to three weeks pay. The court must determine if the letter was an offer accepted by the plaintiff's signature, creating a binding contract.
This document summarizes key appellate decisions from 2012 regarding mortgage foreclosure cases in New York. Some of the main points covered include courts strictly enforcing contracts as written; the "where is the note" defense requiring plaintiffs to prove they own the promissory note; standards for lost notes; defects in standing cannot be corrected; no need to substitute plaintiff after note is sold; purchasers of failed banks' assets having standing; proceedings must be against the estate of a deceased person; limits on enforcing merger clauses; allowable counterclaims; reimbursement only for authorized maintenance costs; seeking court approval to expand receiver's powers; setting aside foreclosure not required for auctioning less property; and plaintiffs still prevailing when full payment is late.
The document summarizes key foreclosure law trends and appellate court decisions from 2012. Some of the main points covered include: appellate courts are strictly enforcing contracts as written; the Second Department has many reported foreclosure cases; plaintiffs must prove they have standing by possessing the original note or valid assignment; if standing is defective when initially filed it cannot be corrected; and lenders must seek court approval before taking actions beyond what the mortgage authorizes.
The document summarizes key trends in foreclosure law in New York in 2012. Appellate courts strictly enforced contracts and required lenders to prove they have standing by demonstrating ownership of the promissory note. If standing was defective when the case began, it could not be cured and the case had to be refiled. The Second Department, located in New York City, had the most reported foreclosure cases.
This document provides information about a UOP ACC 543 Week 4 Exam, including a link to purchase the exam materials and information about the exam topics, which include negotiable instruments, secured transactions, and documents of title under the Uniform Commercial Code. It provides sample exam questions and scenarios that assess understanding of key concepts from these commercial law topics.
Gaggero-Arenzano Interest, '97-'07, in a Class of Beneficiariesjamesmaredmond
The plaintiff's closing argument summarizes four trust documents that were disclosed pursuant to a court order. The documents establish trusts known as the Arenzano Trust and Terra Mar Trust. The plaintiff argues that the trusts were created by the defendant Steve Gaggero in an attempt to shield his assets from liability related to fraudulent conduct against the plaintiffs. Specifically, the plaintiff points to evidence that Gaggero controlled the entities in question and their assets despite being removed as a beneficiary of one trust just as he defrauded the plaintiffs. The plaintiff requests the court find Gaggero and the entities jointly and severally liable for fraud and the return of plaintiffs' money.
D'Agostino v Federal Ins Co , 969 F. Supp. 2d 116 (D. Mass. 2013)Richard Goren
1) The parties engaged in settlement negotiations but did not reach an enforceable agreement because while D'Agostino offered $1.15 million for a release, Federal responded with a release containing additional material terms like confidentiality requirements, which were not accepted.
2) The court denied Federal's motions to enforce the alleged settlement agreement and for protective orders, finding no agreement was formed.
3) The court also denied requests for sanctions from both parties, finding neither party's actions warranted sanctions.
Excellent succinct reference to talk about citizenship and domicile in legal proceedings and discovery to prevent misunderstandings about your sovereign status.
20180123 penn intervenors reply brief (Leandro)EducationNC
This document is the Penn-Intervenors' response to the State Board of Education's motion for relief from the court's jurisdiction in this education funding case. The Penn-Intervenors argue that the motion should be denied for three reasons: 1) The court properly retains jurisdiction to monitor and supervise implementation of remedies to the constitutional harms found by the court. 2) Neither the passage of time nor claimed changes in circumstances are sufficient to relieve the SBE of its obligation to fully remedy the violation. 3) The plaintiffs' claims are not moot as the constitutional deficiencies found by the court still exist.
This document is a memorandum submitted by the defendant's counsel in a civil case regarding ejectment. The plaintiff filed a complaint to eject the defendant from an apartment the defendant had been leasing. The defendant argues that the plaintiff has no cause of action because the lease contract presented by the plaintiff is fictitious. Additionally, the defendant asserts that the plaintiff's action is barred by the one-year statute of limitations for unlawful detainer cases. Finally, the defendant claims the complaint should be dismissed for lack of a proper certification against forum shopping. The defendant requests that the court dismiss the plaintiff's complaint.
“Beware the 1099-C Trap” was published in Tickmarks Vol 55, No. 3 (Fall/Winter 2006), the Iowa Society of CPA’s semi-annual publication distributed to 4,400 members. This article is tailored to CPAs and highlights one of the many areas where tax compliance advice provided by CPAs converges with legal advice. It highlights one of the liability traps that awaits the inattentive CPA who strays into the realm of legal advice.
This memorandum decision addresses cross motions for summary judgment in a case regarding leases on the Osprey Meadows Golf Course and Lodge. Bryant, as the court-appointed fiduciary for RSPT, holds a promissory note, mortgage, and assignment of rents on the property from the defaulting owner, WMG. Tamarack Municipal Association (TMA) leased and operated the golf course and lodge. The court denies Bryant's motions for summary judgment on contract claims and to strike expert testimony. The court partially grants and denies TMA's motion for summary judgment, finding issues of fact remain regarding Bryant's authority to terminate TMA's leases unilaterally upon WMG's default.
This presentation discusses settlements of workers\' compensation cases in Florida. The discussion includes federal law affecting personal injury cases, MSA\'s and CMS participation. General contract principles are also explored.
Sample meet and confer declaration for motion for judgment on the pleadings i...LegalDocsPro
This document is a declaration regarding compliance with meet and confer requirements before filing a motion for judgment on the pleadings, as required by Section 439(a) of the California Code of Civil Procedure. It states that the declarant attempted to meet and confer with the opposing party/counsel to resolve objections to be raised in the motion, but an agreement could not be reached. It then declares under penalty of perjury that the requirements were complied with.
Doc723 motion to vacate claims & stay further proceedingmalp2009
The Chapter 11 Trustee filed a motion to vacate claims orders and stay further proceedings related to two claims filed against the bankruptcy estate. The claims, totaling $275,000 each, were based on promissory notes related to the debtor's purchase of a company called Premier. After the claims orders were entered allowing the claims in part, an indictment was filed describing how organized crime figures took control of the debtor and looted it for their personal benefit through fraudulent transactions like the one involving Premier. The indictment revealed that one of the claimants, Learned, was controlled by one of the crime figures and was used to defraud the debtor and launder money as part of the scheme.
This document is a summary of the Supreme Court's opinion in the case of BNSF Railway Co. v. Tyrrell. The Court held that:
1) Section 56 of the Federal Employers' Liability Act (FELA) addresses venue, not personal jurisdiction over railroads. It specifies where FELA claims can be brought in federal court, but does not govern personal jurisdiction.
2) Montana state courts could not exercise general personal jurisdiction over BNSF Railway under Montana law. While BNSF operates in Montana, it is not incorporated or headquartered there, and its activities in the state are not so substantial as to render it "at home" there.
3) For
Judge Mosman avoided directly ruling on the application of SB 814 to the defense costs being sought by Schnitzer, instead holding that Schnitzer was judicially estopped from arguing that its defense counsel was "independent counsel" subject to SB 814.
This document discusses various issues relating to statutes of limitations (SOLs) and notice provisions in insurance and reinsurance contracts. It provides an overview of SOL rules and accrual dates for direct insurance policies and reinsurance contracts. It also discusses how SOL defenses are addressed in reinsurance arbitrations and ways SOLs may be avoided, such as through tolling agreements. The document further examines issues around exhaustion of underlying limits for excess policies and notice requirements in reinsurance contracts.
This document summarizes a court case between First American Title Insurance Company, Winnebago County Title Company, and TCF Bank regarding a mortgage on a property owned by Patricia Bartholomew. TCF Bank held the first mortgage on the property as a revolving line of credit. Winnebago acted as an agent in a second mortgage taken out by Bartholomew. Winnebago paid off the TCF Bank mortgage but TCF did not release its lien. Bartholomew then took out more funds through the revolving credit and defaulted. The court found that TCF Bank was not legally required to release the lien until the revolving credit was cancelled by Bartholomew. However
This document discusses the responsibilities of a debtor's counsel throughout a Chapter 13 bankruptcy case. It begins by providing a hypothetical scenario where a debtor is 49 months into a 60 month repayment plan when the counsel receives a motion for relief from stay and a motion to dismiss for unpaid plan payments. The document analyzes what the counsel's responsibilities are in this situation based on case law and local rules. It emphasizes that the counsel is obligated to represent the debtor on important motions like these and cannot demand more money or refuse to appear in court. The best practices for counsel include clearly establishing communication expectations, documenting them, and acting in accordance with professional responsibilities throughout the case.
Case Study : Business Law I Essay
Unit 2 Business Law Essay
Business Law
Business Law Essay
Business Law: Case Study Questions And Answers
The Business Law Short Essay
Business Law Essay
Business Law
Business Law Questions and Answers
Business Law and Ethics Essay
Business Law Essay
Business Law
Business Law Essay
Business Law Essay
Common Law Vs Civil Law Essay
Business Law
Business Law Essay
Business Law Essay
Business Law
The creditor should return the garnished funds to the client and is in violation of the automatic stay by not doing so. Once a bankruptcy petition is filed, the automatic stay goes into effect and prevents creditors from garnishing wages, even if earned before the filing. Both case law discussed and bankruptcy code require creditors to affirmatively stop garnishment and return any funds obtained after a bankruptcy petition is filed and notice is provided. The client can file a motion for turnover or sanctions to recover the garnished wages and attorney's fees from the creditor who failed to return the funds after the bankruptcy filing.
When Is The Surety Liable For Attorneys Feesmcarruthers
This paper examines both attorneys’-fees and interest awards against sureties on Miller Act payment-bond claims. It also suggests several policy arguments against imposing attorneys’ fees and interest awards on sureties.
By: Daniel R. Hansen and William H. Sturges
This document discusses two recent bankruptcy court decisions regarding setoffs. In the first case, Bank of America offset $500 million from a Lehman Brothers account, but the court later ruled this was an unlawful setoff and ordered repayment. The second case found that a creditor had moved too slowly to offset debts before the debtor's assets, including accounts receivable, were sold to a third party. Together, the cases show that moving too quickly or slowly to execute a setoff can pose risks in bankruptcy. Creditors must carefully review the facts and bankruptcy code before attempting a setoff.
King county-superior-court-order-on-rha-v-city-of-seattle-22421Roger Valdez
This order denies the plaintiffs' motion for summary judgment and grants the defendant's cross-motion for summary judgment. It finds that the three Seattle ordinances establishing defenses to eviction due to financial hardship during COVID-19 do not conflict with state law and are therefore not preempted. While the ordinance provision staying late fees is preempted, the rest can be harmonized with state eviction statutes as establishing substantive defenses rather than conflicting with the statutes' procedural framework. Controlling Washington precedent has established that the state eviction laws provide only procedures, not substantive rights, so local governments can permissibly provide additional defenses.
PANELISTS:
DAMIAN NASSIRI | CUONG M. NGUYEN
LYNDA T. BUI | ANN N. NGUYEN
National Conference of Vietnamese American Attorneys
NCVAA is the only national organization that provides a forum for distinguished Vietnamese American judges, elected officials and attorneys to celebrate our accomplishments in the U.S. and abroad, promote the high standards of professionalism in law and politics, and discuss legal and community issues affecting Vietnamese Americans.
Past guests, panelists and speakers of NCVAA include Vietnamese Americans that are prominent judges, highly regarded elected officials and accomplished attorneys: Hon. Thang Nguyen Barrett, Hon. Tam Bui, Hon. Jacqueline Duong, Prof. Wendy Duong, Viet V. Le, Hon. Jacqueline Nguyen, Madison Nguyen, Hon. Nho Nguyen, Tasha Nguyen, Prof. Xuan-Thao Nguyen, Thuy Thi Nguyen, Hon. Tu Pham, Assemblyman Van Tran, Prof. Nhan Vu and many more.
We have also been honored with the attendance of esteemed non-Vietnamese Americans that either gave speeches, sat as panelists or attended the events: Jeffrey Bleich (Pres. of CA State Bar), Hon. David O. Carter (U.S. District Court, Central District of CA) Hon. John Chiang (CA State Controller), Justice Ming W. Chin (California Supreme Court), Kamala Harris (San Francisco District Attorney), Peter McHugh (Santa Clara County Supervisor), Hon. Nathan Mihara (CA Sixth Appellate District Court of Appeals), Justice Carlos R. Moren (California Supreme Court), Hon. Alicemarie Stotler (Chief Judge of the US District Court, Central District of CA) and many others.
PANELISTS:
DAMIAN NASSIRI | CUONG M. NGUYEN
LYNDA T. BUI | ANN N. NGUYEN
National Conference of Vietnamese American Attorneys
NCVAA is the only national organization that provides a forum for distinguished Vietnamese American judges, elected officials and attorneys to celebrate our accomplishments in the U.S. and abroad, promote the high standards of professionalism in law and politics, and discuss legal and community issues affecting Vietnamese Americans.
Past guests, panelists and speakers of NCVAA include Vietnamese Americans that are prominent judges, highly regarded elected officials and accomplished attorneys: Hon. Thang Nguyen Barrett, Hon. Tam Bui, Hon. Jacqueline Duong, Prof. Wendy Duong, Viet V. Le, Hon. Jacqueline Nguyen, Madison Nguyen, Hon. Nho Nguyen, Tasha Nguyen, Prof. Xuan-Thao Nguyen, Thuy Thi Nguyen, Hon. Tu Pham, Assemblyman Van Tran, Prof. Nhan Vu and many more.
We have also been honored with the attendance of esteemed non-Vietnamese Americans that either gave speeches, sat as panelists or attended the events: Jeffrey Bleich (Pres. of CA State Bar), Hon. David O. Carter (U.S. District Court, Central District of CA) Hon. John Chiang (CA State Controller), Justice Ming W. Chin (California Supreme Court), Kamala Harris (San Francisco District Attorney), Peter McHugh (Santa Clara County Supervisor), Hon. Nathan Mihara (CA Sixth Appellate District Court of Appeals), Justice Carlos R. Moren (California Supreme Court), Hon. Alicemarie Stotler (Chief Judge of the US District Court, Central District of CA) and many others.
121815 - OBJECTION TO 120815 ORDER ON OBJECTION (Townsend Matter)VogelDenise
POWER WITH "WE THE PEOPLE" - KNOW YOUR LEGAL/LAWFUL RIGHTS TO OVERTHROW THE UNITED STATES OF AMERICA'S DESPOTISM GOVERNMENT and have a GOVERNMENT that WORKS for "WE THE PEOPLE!"
DECLARATION OF INDEPENDENCE - Overthrowing Despotism, Political Corruption, Judicial Corruption/Injustices. . . .HEALING and RESTORING a NATION!
This document provides an overview of statute of limitations laws in California. It explains that statutes of limitations impose deadlines for filing legal claims and lists common claim types and their limitation periods, ranging from 1 to 6 years from the date of occurrence or discovery. It notes exceptions that can extend deadlines, such as for minors, and warns that the laws are complex. Government claims have especially short deadlines. The document advises seeking legal consultation to determine the applicable statute of limitations.
This document provides an overview of statute of limitations laws in California. It explains that statutes of limitations impose deadlines for filing legal claims and lists common claim types and their limitation periods, ranging from 1 to 6 years from the date of occurrence or discovery. It notes exceptions that can extend deadlines, such as for minors, and warns that the laws are complex. Government claims have especially short deadlines. The document advises seeking legal consultation to determine the applicable statute of limitations.
Consumer Finance Class Actions & Litigation - Conference MaterialsRachel Hamilton
Consumer financial services companies are facing unprecedented regulatory and enforcement scrutiny and mounting litigation, and there is no sign of change coming anytime soon. That is why it is essential that in-house an outside counsel have a mastery of new class action trends, emerging theories of liability, the latest enforcement actions and regulatory initiatives, and the most effective defense and settlement strategies.
The document discusses the purposes and limitations of negative pledge clauses. It examines whether an automatic negative pledge clause constitutes a form of security, and analyzes potential remedies for breach of a negative pledge, including damages, injunction, and specific performance. Specifically:
1) A negative pledge aims to maintain equal treatment of unsecured creditors and prevent the granting of security to other lenders, but it does not restrict all unsecured debt. An automatic negative pledge operates as a floating charge that crystallizes upon the creation of prohibited security.
2) Damages are generally not an adequate remedy for breach of a negative pledge since they do not undermine the security granted to other lenders.
3) An injunction may be granted to
This document summarizes key issues in removing bad faith litigation from state to federal court, including improper joinder and establishing the amount in controversy. It also discusses procedural issues like concurrent litigation, choice of law analyses, and enforcing or ignoring choice of law clauses in insurance contracts. The document is from a national forum on bad faith claims and litigation, and provides an overview of removal procedures and the tests used to determine improper joinder or the applicability of state versus federal law.
This document discusses a motion filed by Creditor Vogel Newsome regarding the bankruptcy case of Ladye M. Townsend. Newsome argues the bankruptcy court lacks jurisdiction over the matter as her prior federal lawsuit against Townsend in district court established that court's jurisdiction. Newsome also alleges misconduct by Townsend's attorney and moves for Rule 11 sanctions. Newsome consolidates her various motions and does not waive her defense that the bankruptcy court lacks jurisdiction.
Doc962 freeman group motion compromise & settlement_ a walk-awaymalp2009
The Trustee filed a motion seeking court approval of a compromise and settlement agreement between the Trustee and the Freeman Parties. The agreement provides that Robert Freeman and David Ward will withdraw their respective $92,500 proof of claims against the estate with prejudice, and the Trustee will dismiss the Freeman Parties from an adversary proceeding. The agreement achieves a walk-away settlement and full mutual release of claims between the parties. The Trustee believes the settlement is in the best interest of creditors and the estate by avoiding substantial time and costs of litigation, despite believing there are good objections to the proof of claims.
United Western Bank v Office of Thrift Supervision-1Liana Prieto
This document summarizes a court case from the United States District Court for the District of Columbia regarding United Western Bank's challenge of the appointment of the Federal Deposit Insurance Corporation (FDIC) as the receiver of the bank by the Acting Director of the Office of Thrift Supervision (OTS). The court granted in part and denied in part motions to dismiss filed by OTS, the Acting Director, FDIC as receiver, and FDIC in its corporate capacity. The court found that United Western Bank could proceed with its claims against OTS and the Acting Director, but that the claims of the bank's holding company and individual directors, as well as claims against FDIC, must be dismissed.
This document is an objection filed by the United States Trustee to motions filed by Petitioning Creditors and Alleged Debtors to seal certain documents filed with the court. The U.S. Trustee does not oppose sealing documents pending a ruling on whether the bankruptcy cases will proceed, but argues that any sealing should end if the court finds cause to open bankruptcy cases, as the information would then become public. The U.S. Trustee asserts that bankruptcy law favors public disclosure of information relevant to creditors and parties in interest.
Similar to Time Barred Mortgages in Bankruptcy 2.0 (20)
3. Why is this issue important?
- Both State and Federal Law are in a deep state of
disagreement and flux
- Filling a Proof of Claim on a consumer debt Barred
by the Statute of Limitations or Repose may be a
Fair Debt Collection Practices Act violation.
4. Why is this issue important?
- Debtors can use negative notice and a motion to determine
secured status under 11 U.S.C. § 506 as a core proceeding
to discharge mortgages in bankruptcy court after
confirmation. See In re Brown, 2014 WL 983532 (Bankr. M.D.
Fla.) Quiet Title as an adversary proceeding may also
available.
- Attorneys who file Proofs of claim on a time barred debts may
be subject to penalties under Bankruptcy Procedure Rule
9011
- Candor to the court under Fla. R. Prof Conduct 4-3.3(a)(1)
5. FDCPA Liability-Recent Cases
- Crawford v. LVNV Funding, LLC, 758 F.3d 1254 (11th Cir.
2014).
- Facts: Creditor regularly purchases stale debts and files
proofs of claim in bankruptcy court. Creditor filed a proof of
claim on a debt barred under Alabama law and debtor filed
an adversary proceeding alleging FDCPA violation. Creditor
admitted that the debt at issue in this case would be
unenforceable in state court and the creditor.
6. FDCPA Liability
- Crawford v. LVNV Funding, LLC, 758 F.3d 1254 (11th Cir.
2014).
- Held: since the debt was unenforceable under state law, filing
a proof of claim was an FDCPA violation.
- The reasonable consumer standard applies to proofs of
claims filed by attorneys in the bankruptcy context
7. FDCPA Liability
- However the second circuit, the Northern District of Illinois,
Southern District of Illinois, and the Eastern District of
Pennsylvania hold that a proof of claim on a time barred debt
is not an FDCPA violation
8. FDCPA Liability- LVNV Strikes Back
- Donaldson v. LVNV Funding, LLC, 1:14-cv-01979-LJM-TAB;
2015 WL 1539607 (S.D. Ind. 2015 April 7, 2015).
- Facts: Debtor files Ch.13. LVNV files proofs of claims on
credit cards that were barred under Indiana law because
more than 6 years passed from the last payment made.
Debtor files complaint for violation of the FDCPA.
9. FDCPA Liability- LVNV Strikes Back
- Donaldson v. LVNV Funding, LLC, 2015 WL 1539607 (S.D.
Ind. 2015 April 7, 2015).
Held: Not false or deceptive when debtor lists debt on his
schedules.
Under Indiana law debt was still owed even though it was
barred.
Applied the competent lawyer standard, not least
sophisticated consumer standard
10. FDCPA Liability
Torres v. Asset Acceptance, LLC, 2015 WL 1529297 (E.D. Pa.
Apr. 7, 2015)
Facts: Debtor files a Chapter 13 in 2013. Creditor files a proof
of claim for small debt with a last payment and transaction of
June 10, 2002 outside of Pennsylvania’s four year statute of
limitations. Debtor files a complaint for violation of FDCPA.
11. FDCPA Liability
Torres v. Asset Acceptance, LLC, 2015 WL 1529297 (E.D. Pa.
Apr. 7, 2015)
Held: Not possible to sue under the FDCPA for any violation in
a proof of claim filed under the Bankruptcy Code.
The remedies under the Code (9011) were sufficient
“the Court will not insert judicially created remedies into
Congress’s carefully calibrated bankruptcy scheme, thus
tilting the balance of rights and obligations between debtors
and creditors.”
12. FDCPA Liability
Bad News:
We don’t live in those jurisdictions
So how do we avoid liability until SCOTUS
resolves the conflict?
First, find out if your debt is barred
13. State Law:
Its not just the place you find the homestead
exemption anymore
Choice of law for determining the
limitations statute for mortgages is the
same under both Federal and Florida –
local laws of situs subject to preemption
14. State Law:
Its not just the place you find the homestead
exemption anymore
- Judgment – collateral estoppel law of the state is
applied to determine judgment’s preclusive effect
- However, the bankruptcy court retains exclusive
jurisdiction to determine dischargeability. St.
Laurent v. Ambrose, 991 F.2d 672, 675 (11th Cir.
1993).
15. WHAT IS A MORTGAGE?
- Any written instrument
securing money or advances
(i.e. a Note).
- Installment Notes, Balloon
Notes, Revolving Credit
Agreements, Equitable
Mortgages
16. COVENANTS
- Payments
- Due on Sale Clause
- Occupancy
- Acceleration based on a government
taking
- Taxes
- Insurance
- Miscellaneous – e.g. mortgagor provide
service Dogs
17. Which Statute of Limitations applies to
Mortgages?
Trick Question: 2 statutes – statute of limitations
and statute of repose
18. Statute of Limitations
- Fla. Stat. § 95.11(2)(C) – within 5
years of accrual
- A procedural Statute that prevents the
enforcement of the cause of action
that has accrued. Houck Corp.
19. Statute of Limitations
- Prevents the enforcement of the
remedy rather than the termination of
the substantive rights of the parties.
Allie v. Ionata
20. Five years from What?
- Last Element occurs. Fla. Stat. § 95.11(2)(c)
- 4 elements of a foreclosure action
- (1) an agreement (2) a default (3)
acceleration of debt to maturity (4)
damages. Ernest v. Carter, 368 So.2d
428, 429 (Fla. 2d DCA 1979)
21. Five years from What?
- Majority Opinion - Central Home Trust Co. v.
Lippincott, 392 So.2d 931, 933 (Fla. 5th DCA
1980) – Acceleration starts the clock
- when some affirmative action is taken to
accelerate the debt such as “… making an oral
demand, and alleging acceleration in a pleading
filed in a suit on the debt.”
22. Five years from What?
- What if there is no acceleration clause?
- You cannot foreclose the mortgage. Reed
v. Lincoln 731 So.2d 104 (Fla. 5th DCA
1999)
BUT: you can sue for future damages
under the note. National Educ. Centers,
Inc. v. Kirkland, 635 So.2d 33 (Fla. 4th
DCA 1993).
23. Optional vs. Absolute Acceleration Clauses
- Optional – says acceleration does not occur
until plaintiff exercises the option. i.e.
Lippencott
- Absolute – Says that upon default future
payments are immediately accelerated.
Baader v. Walker, 153 So.2d 51 (Fla. 2d
DCA 1963).
24. Optional vs. Absolute Acceleration Clauses
- Can a presuit letter be the “acceleration”?
Held: not an acceleration because conduct
was to occur in the future.
Snow v. Wells Fargo Bank, N.A., 156 So.3d 538
(Fla. 3d DCA 2015) “If you do not pay the full
amount of the default, we shall accelerate the
entire sum of both principal and interest due and
payable....”. Mortgage contained an optional
acceleration clause.
25. Minority/Dicta Position – Date of Default
- Mostly Dicta and inaccurate restatement
of Florida Law
- CCM Pathfinder Palm Harbor Management, LLC v.
Unknown Heirs of Gendron, 40 Fla. L. Weekly D244
(Fla. 2d DCA 2015); Dorta v. Wilmington Trust Nat.
Ass’n, No. 5:13-cv-185-Oc-10PRL, 2014 WL
1152917 (M.D. Fla. March 24, 2014); Kaan v. Wells
Fargo Bank, N.A., 2013 WL 5944074 (S.D.Fla. Nov.
5, 2013)
26. Statute of Repose
- Fla. Stat. § 95.281
- a substantive statute which not only bars
enforcement of an accrued cause of action but
may also prevent the accrual of a cause of
action where the final element necessary for its
creation occurs beyond the time period
established by the statute. Houck Corp. v. New
River, Ltd, 900 So.2d 601 (Fla. 2d DCA 2005).
27. Statute of Repose
- Either 5 years after the date of maturity if
the maturity date is ascertainable from
the record . . . OR
- If the maturity date is not ascertainable -
20 years after the date of the [execution of
the] mortgage unless the note has a
definite maturity date, etc.
28. Ascertainable from the record
- Must be clearly visible on the face of the
recorded mortgage. CCM Pathfinder Palm
Harbor Management, LLC v. Unknown Heirs of
Gendron, 40 Fla. L. Weekly D244 (Fla. 2d DCA
2015).
30. Federal Preemption
- FDIC Assignee - enjoys a six year limitations period that
trumps both the Statute of limitations and the statute of
repose. 12 U.S.C. § 1821(d)(14)(A). WRH Mortg. Inc. v.
Butler, 684 So.2d 325 (Fla. 5th DCA 1996).
- Runs from the later of the accrual of the cause of
Action or the date the FDIC takes over as receiver
31. - SBA Administration Assignee – infinite time to
foreclose because there is no limitations period stated
in the Small Business Administration Act. See
Magnolia Federal Bank for Savings v. The United
States of America, (U.S.D.C. So. Dist. Miss. 1993).
See generally, United States v. Alvarado, 5 F.3d 1425
(11th Cir. Fla. 1993).
- Assignee of the USA acquires right to unlimited time
to foreclose. LPP Mtg Ltd. v. Tucker, 48 So.3d 115
(Fla. 3rd DCA 2010).
Federal Preemption
32. Federal Preemption
United States of America as Mortgagee – Same as
SBA Unlimited time to foreclose
- 28 U.S.C. § 2415(c) states “nothing herein shall be
deemed to limit the time for bringing an action to
establish the title to, or right of possession of real or
personal property”.
34. Tolling
Death or incapacitation of the Mortgagee before the expiration
of the cause of action (Applies to both limitations and repose)
(if death) the action may be commenced within 12 months
from the date of the mortgagee’s death. Fla. Stat. §
733.104
(if incapacitation) within one year of appointment by the
guardian. Fla. Stat. § 744.394
35. Tolling
Future Advance Clause - If the mortgage contains a
future advance clause under Fla. Stat. § 697.04, then
future advances made under the mortgage can
extend the maturity date from five years to 20 years.
See Razak v. Marina Club of Tampa Homeowners
Assn., Inc., 968 So.2d 616 (Fla. 2d DCA 2007).
Typically seen in construction loans
36. Tolling
- Bankruptcy 11 U.S.C.A. § 108 applies to both
repose and limitations
- If the cause of action was not barred before the
filing then you have the later of
- The end of the original statute of limitations
OR
- 30 days after the notice of termination or
expiration of the automatic stay.
37. Tolling
Fla. Stat. § 95.051 (outline at p.6) limitations only
- Absence of defendant from state
- Use by Defendant of a false name
- Concealment by Defendant in state
- Payment of any part of the principle or interest of
any obligation or liability founded on instrument
- Incapacity or minority of plaintiff to sue and no
guardian exists
39. Tolling
- Equitable tolling – Prudent Plaintiff runs astray
- Does not require active deception on the part of
the defendant but focuses on the plaintiff with a
reasonably prudent regard for his rights
- Examples:
- Mislead or lulled into inaction
- In some extraordinary way been prevented from
asserting rights
- Timely asserted rights in wrong forum
41. Tolling
Equitable Estoppel a.k.a. Wrongdoing by Defendant
- Plaintiff must plead that Plaintiff knew it had a cause of
action but defendants wrong doing prevented plaintiff
from bringing a timely action
- Plaintiff and defendant know about the facts giving rise to
the suit but the wrongdoer prevails upon the other to
forego enforcing his right until the statutory time has
elapsed
42. Tolling
- Oral Promise to pay may also toll the statute of
limitations
- Oral promise to pay or make partial payment if
made prior to the statute of limitations tolls the
statute of limitations. Jacksonville Am. Pub. Co. v.
Jacksonville Paper Co., 197 So. 672, 676 (Fla.
1940)
45. What happens when the statute of limitations runs?
- Singleton v. Greymar Associates, 882 So.2d
1004, 1008 (Fla. 2004)
- Each new default is a breach which may be
separately accelerated (in the context of res
judicata)
46. What happens when the statute of limitations runs?
- U.S. Bank v. Bartram, 140 So.3d 1007 (5th
DCA 2014).
- Each new default represents a new cause of
action which may be an independent basis to
accelerate the loan again
- Currently pending in supreme court – oral
argument set for October 6, 2015.
47. What happens when the statute of limitations runs?
Third DCA - Deutsche Bank Trust Co. Amer. V.
Beauvais, 2014 WL 7156961 (Fla. 3d DCA
2014). Bartram only applies to a subsequent
action that follows a dismissal with prejudice.
Dismissals without prejudice including voluntary
dismissals do not reset statute of limitations.
Deceleration notice may reset the action for
SOL purposes, but unforeclosable lien remains
in force until the expiration of the repose.
48. What happens when the statute of limitations runs?
- Clear Split of authority see chart on P. 11 of
outline
49. FDCPA Liability Revisited
What do you do when you have a barred debt?
1. Is your debt barred? (see above)
2. Is your debt barred by SOL? If yes – 3 options
1. File a proof of claim and advise your client they
will end up at the Supreme Court
2. File a motion to determine the secured status of
your own claim and ask the court for an
50. FDCPA Liability Revisited
What do you do when you have a barred debt?
1. Is your debt barred by SOL? If yes – 2 options:
1. File a motion to determine the secured status of
your own claim and ask the court for an
extension to file your proof of claim.
2. File the proof of claim and see what happens -
If opposed, ask court to stay its ruling until
Bartram is decided.
51. FDCPA Liability Revisited
What do you do when you have a barred debt?
1. Is your debt barred by the Statute of Repose?
- Is your debt really barred by the Statute of
Repose? (see above)
- Tough luck – I like by bar license