BANKRUPTCY ISSUES RELATED TO MORTGAGE FORECLOSURES

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1 TABAS FREEDMAN Attorneys One Flagler Building 14 Northeast First Avenue, Penthouse Miami, Florida Telephone Facsimile Gary M. Freedman BANKRUPTCY ISSUES RELATED TO MORTGAGE FORECLOSURES by Gary M. Freedman A. CREDITORS AND CLAIMS Claims - A secured claim in a bankruptcy proceeding is one that is secured by a lien on property of the estate or subject to setoff. The claim is secured only to the extent of the value of the collateral and is an unsecured claim for the remaining amount. See, 11 U.S.C a. Filing a Proof of Claim - The filing of a proof of claim is governed by 11 U.S.C See 11 U.S.C Under 11 U.S.C. 502, a claim is deemed allowed unless a party in interest objects. See 11 U.S.C A secured creditor should file a proof of claim, but if it fails to do so, the lien on the collateral ordinarily survives. Nevertheless, it is recommended that a creditor file a claim to protect its interest as well as to protect its entitlement to an unsecured deficiency claim. b. Time for filing claim - A bar date is set by the clerk of the court or by court order and noticed to all creditors in a bankruptcy case. In the Southern District of Florida, Local Rules and govern the determination of the claims bar dates in Chapter 7, 11 and 13 cases. If the case is file as a No-Asset Chapter 7, no claims bar date is issued until and unless the Trustee files a Notice of Assets. In a Chapter 11 case, unless otherwise ordered by the Court, the deadline for filing claims is 90 days after the date first scheduled for the 341 meeting of creditors. In Chapter 13 cases, a proof of claim must be served on the Debtor, attorney for the Debtor and the Chapter 13 Trustee pursuant to Local Rule (E).

2 c. Form - When filing a proof of claim, the approved Local Form Proof of Claim should be used. 2. Disputes Over Validity, Priority and/or Extent of Lien - When a dispute arises over the validity, priority, and/or extent of a creditor s lien (as it relates to the Debtor and/or third parties), it is usually resolved by virtue of the filing of an adversary proceeding under Fed. R. Bankr. P. 7001(2). An adversary proceeding begins with a complaint filed by either the debtor, trustee or the creditor and is assigned an adversary case number under the main bankruptcy case. The adversary proceeding is a federal civil action which proceeds in the bankruptcy court where most of the Federal Rules of Civil Procedure apply. By way of a complaint to determine the validity, priority and/or extent of a lien, parties can obtain a determination from the Court as to the entitlement to a lien on real property or proceeds thereof. 3. Effects of Foreclosure Sale or Deed in Lieu Transaction -11 U.S.C A foreclosure sale and/or deed in lieu transaction may be attacked by a Trustee or debtor in possession as being a fraudulent transfer under 11 U.S.C See 11 U.S.C Under 11 U.S.C. 548, a transfer made within one year of the petition date can be avoided if the transfer was for less than reasonably equivalent value. The courts have set aside transfers for less than 70 percent of the market value. Durrett v. Washington Nat. Ins. Co., 621 F.2d 201 (5 th Cir. 1980). The Supreme Court s decision in BFP v. Resolution Trust Corp., 511 U.S. 531 (1994), insulated foreclosure sales from challenges under 11 U.S.C. 548 to the extent that all the state law requirements of the foreclosure law were met. The Supreme Court held that the price at foreclosure sale conclusively established reasonably equivalent value although it limited its decision to foreclosure sales. Consequently, the reasonably equivalent value requirement retains its independent meaning in deed in lieu transactions and other transfers occurring outside the foreclosure sale context. 4. Preferential Transfers - 11 U.S.C Providing a mortgage to secure a prior (antecedent) debt 90 days prior to a bankruptcy filing, may be subject to an avoidance action. If your client is an insider of the Debtor, as defined in 11 U.S.C. 101, the client may be subject to a preferential transfer action by a trustee or debtor in possession if it loaned money to the Debtor in exchange for a 2

3 mortgage which was recorded within the preference period, i.e. one year prior to the filing of the petition. 5. Valuation Issues - A determination of the value of a creditor s collateral may be necessary for various reasons which include the following: a. To determine the amount of equity in the property for purposes of ordering adequate protection to the lender; b. For determining the amount and class of a claim under Chapter 11; c. For determining whether the lien could be stripped under 11 U.S.C B. AUTOMATIC STAY/CASH COLLATERAL 1. Automatic Stay - 11 U.S.C A bankruptcy petition operates as a stay of certain acts which is applicable to all entities. See 11 U.S.C Sanctions - An individual injured by any willful violation of the automatic stay may recover actual damages, including costs and attorney s fees and even punitive damages against the offending party. 11 U.S.C. 362(h). In certain instances, this remedy has been applied to injured business entities under 11 U.S.C Relief from the Automatic Stay - A party may request relief from the automatic stay under 11 U.S.C. 362(d) for reasons including but not limited to: lack of adequate protection, or if the debtor lacks equity in the property and the property is not necessary for an effective reorganization. See 11 U.S.C. 362(d)(3), specifically dealing with relief from the automatic stay in single asset real estate cases. An entity s interest in property may be adequately protected in various ways including through periodic cash payments, by an additional or replacement lien or by any relief constituting the indubitable equivalent of the entity s interest in the property. These forms of adequate protection serve to compensate the entity for any decrease in the value of its interest due the automatic stay. See 11 U.S.C a. Local Rule Negative Notice Procedure - In the Southern District of Florida, the bankruptcy courts have adopted a negative notice procedure which allows parties to 3

4 obtain relief from the automatic stay without the necessity of a hearing. Under Administrative Order 98-7, secured creditors whose claims are not treated in the plan may also use the negative notice procedure in Local Rule (C). b. Homestead vs. Non-Homestead Property - In a Chapter 7 case, a secured creditor s position may differ if the property is non-homestead property. A Trustee may seek to sell nonhomestead property in order to realize any equity therein for the estate. As a result, a secured creditor may be unable to obtain relief from the automatic stay over the Trustee s objection. One possible resolution in order to avoid delay in foreclosure proceedings is to obtain an agreement from a Trustee to relief from the automatic stay through judgment of foreclosure but not sale. Usually, if the Trustee is unable to obtain a buyer for the property by the time the foreclosure judgment is entered, a bankruptcy court will grant rehearing of a motion for relief from stay and grant full relief through sale. 4. Cash Collateral - 11 U.S.C Cash collateral means cash, negotiable instruments, documents of title, securities, deposit accounts and other cash equivalents whenever acquired in which the estate and an entity other than the estate have an interest. See 11 U.S.C. 363(a). These include rents, profits of property etc. a. Motion to Prohibit Use of Cash Collateral - Issues relating to use of cash collateral are most often resolved by stipulation before the filing of a Chapter 11 bankruptcy proceeding or within the initial days of the case. Debtors will usually approach a lender prior to the filing to work out any issues that may arise with respect to the use of cash collateral. In bankruptcy court, Debtors are usually given the benefit of the doubt with respect to cash collateral disputes in order to give the Debtor a reasonable opportunity to reorganize. Most Debtors would be unable to reorganize without at least limited use of cash collateral. However, there are instances where Debtors file for Chapter 11 protection and use a lender s cash collateral without authorization from the lender or approval of the court. Unauthorized use of cash 4

5 collateral may be the basis for dismissal of a bankruptcy proceeding. Unresolved disputes over use of cash collateral may lead to evidentiary hearings which center around whether the lender is adequately protected and/or whether the lender has sufficient replacement collateral to protect its interests. C. DISCHARGE AND DISCHARGEABILITY ISSUES Secured lenders do not often have a basis for objecting to either discharge or dischargeability of debts in bankruptcy proceedings. However, to the extent that a lender has relied on false financial statements and or misrepresentations for loaning funds to an individual debtor, the lender may have a basis to object to the dischargeability of the debt. 11 U.S.C A secured creditor might have a basis to object to dischargeability of a debt under 11 U.S.C. 523(a)(2) if a debtor obtained a loan using false financial statements or false representations. D. EXEMPTIONS 1. Homestead Exemption - Florida Constitution Article 10 4 a. Within a municipality - limited to ½ acre of contiguous land b. Outside a municipality - limited to 160 acres of contiguous land 2. Homestead Property vs. Non-Homestead Property in Bankruptcy See discussion under B(3)(b) above. E. REAFFIRMATION - 11 U.S.C. 524 A reaffirmation agreement is an agreement in which the Debtor agrees to repay a claim which, in whole or in part, is dischargeable. See, 11 U.S.C. 524 attached hereto as Exhibit 14". To be enforceable, the agreement must be made before a discharge is granted and must contain statements required under 11 U.S.C. 524(c)(2)(A) and(b). Moreover, the Debtor must be represented by an attorney or the reaffirmation agreement must be approved by the bankruptcy court after a hearing. 5

6 F. CHAPTER 7, 11 AND CHAPTER 7 a. Sales of Property Free and Clear of Liens - 11 U.S.C Under 11 U.S.C. 363(f), the Trustee may sell property free and clear of any interest in the property under certain circumstances and use the net proceeds to pay the secured claims attaching thereto. A secured creditor may consent to the sale but must be cognizant that its lien is to attach to the proceeds in order to protect its interest. See 11 U.S.C. 363(f). b. Surcharge Against Collateral - 11 U.S.C. 506(c) - In the event the Trustee sells collateral to which a secured creditor s lien attaches, the Trustee may recover from property securing an allowed secured claim the reasonable, necessary costs and expenses of preserving, or disposing of, such property to the extent of any benefit to the holder of such claim. In most cases, the secured creditor and the Trustee reach an agreement as to the amount of such costs and expenses. However, a court may impose a surcharge on a secured creditor under 11 U.S.C. 506(c). c. Oversecured Claims - If the value of the collateral exceeds the amount of a creditor s claim, the creditor is entitled to post-petition interest and reasonable fees, costs or other charges to which it would be entitled under the loan documents. 11 U.S.C. 506(b). d. Motion to Compel Abandonment - If a secured creditor believes there is no equity in property it may file a motion to compel abandonment of the property by the Trustee under 11 U.S.C. 554(b). 6

7 2. CHAPTER 11 a. Liquidation of Secured Claims - A determination of the value of secured claims may affect how a secured creditor is treated under a Chapter 11 Plan. In order to determine how its claim will be treated, a secured creditor may seek to value its collateral and/or its claim in order to determine whether any portion of its claim is unsecured for voting purposes under the Chapter 11 Plan or entitlement to interest, attorneys fees and related costs pursuant to 11 U.S.C. 506(c). If a creditor s claim is bifurcated into secured and unsecured portions, the amount of its unsecured claim may determine whether it controls a class of claims for voting purposes. b. Liquidating Plans -A Chapter 11 Plan may seek to liquidate a debtor s assets. Accordingly, a debtor may seek to sell collateral under 11 U.S.C. 363 free and clear of liens or the sale can be consummated under a liquidating plan. A secured creditor should be cognizant that its lien is protected and attaches to any proceeds from the sale. c. 11 U.S.C. 1111(b) Election - Nonrecourse Secured Claims - Under 1111(b), an undersecured creditor may choose whether its claim should be divided into a secured claim equal to the court determined value of the collateral and an unsecured claim for the deficiency under 1111(b)(1)(A) or whether its entire claim should be considered as secured under 1111(b)(2). Making an 1111(b)(2) election may enable a creditor to recover the full amount of its claim in a case where its collateral appreciated in value. However, creditors rarely elect treatment under 1111(b)(2) since it gives the creditor no assurance of economic value beyond present value and the creditor loses its opportunity to affect the decision of the unsecured class to accept or reject a Chapter 11 plan. d. Single Asset Real Estate Chapter U.S.C. 101(51B) now defines single asset real estate as real property constituting a single property or project, other than residential real property with fewer than 4 residential 7

8 3. CHAPTER 13 units, which generates substantially all of the gross income of a debtor and on which no substantial business is being conducted by the debtor other than the business of operating the real property and activities incidental thereto having aggregate noncontingent, liquidated secured debts in an amount no more than $4 million. 11 U.S.C. 362(d) was amended to provide for single asset real estate cases but limits the automatic stay to 90 days unless the debtor has filed a Chapter 11 plan which has a reasonable possibility of being confirmed in a reasonable time or the debtor commences making payments to every creditor whose claim is secured by the real estate equal to market rate interest on the value of the creditor s interest in the real estate. The court may extend the 90 day period for cause. Under 101(51B) and 362(d), single asset real estate cases which were once held to be per se bad faith are now permitted. a. Who May be a Debtor Under Chapter 13 - Only an individual with regular income that owes, on the date of the filing, noncontingent, liquidated unsecured debts of less than $269,250 and noncontingent, liquidated secured debts of less than $807,750 may be a debtor under Chapter 13 (exceptions for stock or commodity brokers). See 11 U.S.C. 109(e). b. Challenges to Good Faith and Feasibility - Confirmation of a Chapter 13 Plan may be challenged on the basis of good faith and feasibility. Objections to confirmation of a Chapter 13 Plan must be raised at or before the 341 meeting of creditors and any written objection must be filed and served on the Chapter 13 Trustee at or before the meeting, or the objection is deemed waived pursuant to Local Rule (A). c. Valuation of Collateral - A chapter 13 plan may seek a determination of valuation of collateral pursuant to 11 U.S.C. 506 (a) if specified in the plan in print either highlighted or in bold, pursuant to Administrative Order Any oral or written objections to such determination must be raised at or before the 341 meeting of creditors. If no oral or written objections to such determination are raised at or before the meeting of creditors, the valuation specified in the plan will be binding on the secured creditor. 8

9 d. Modification of Mortgages - Under 1322(b)(2), the rights of secured creditors may be modified except those with a claim secured only by a security interest in real property that is the debtor s principal residence. 11 U.S.C. 1325(a)(5) provides 3 alternative ways in which a holder of a secured claim may be bound by a modification: 1) the holder may accept the plan under 1325(a)(5)(A); 2) the debtor may surrender the collateral under 1325(a)(5)(C); or the plan may provide for retention of the security interest and payment of the present value of the secured claim over the life of the plan under 1325(a)(5)(B). Unless it is a mortgage on a debtor s principal residence, payments may be modified under 11 U.S.C. 1325(a)(5)(B) by lowering the amount of installment payments, changing the interest rate, or shortening the term of the loan. However, a default on a lien on the debtor s principal residence may be cured only under 1322(c)(1) and 1322(b)(3) or (5). In the case where the last payment on the original payment schedule for a claim secured by real property that is the debtor s principal residence is due before the date on which the final plan payment is due, the plan may modify the rights of the secured creditor. This allows a debtor liable on a balloon mortgage to modify the mortgage under 1325(a)(5)(B), even if it is a mortgage on the debtor s principle residence so long as the balloon payment is due prior to the last payment on the Chapter 13 plan. e. Lien Stripping under Chapter 13 - A lien of a junior mortgage holder which is wholly unsecured may be stripped off under 11 U.S.C. 506(a) and 1322(b)(2). In In re Tanner, 217 F. 3d 1357 (11th Cir. 2000), the Eleventh Circuit Court of Appeals held that the antimodification provision in 1322(b)(2) does not apply to a wholly unsecured junior homestead mortgage. In In re Dickerson, 222 F.3d 924 (11th Cir. 2000), a different panel on the Eleventh Circuit stated that were it to decide the issue on a clean slate, it would not agree with the Tanner court. However, due to the prior precedent rule, the Eleventh Circuit panel in Dickerson applied the Tanner ruling to strip a wholly unsecured junior mortgage on the Debtor s principal residence. Based on the panel s comments in Dickerson, the issue is likely to be revisited by the Eleventh Circuit en banc. 9

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