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Miami - Ft. Lauderdale Bankruptcy Lawyer

Bankruptcy laws are always changing. While the Bankruptcy Code is a federal statute promulgated by Congress, the interpretation of the Code is constantly evolving, day-by-day, district-by-district, and judge-by-judge.  When hiring a Miami or Fort Lauderdale bankruptcy lawyer, it is important to make sure he or she keeps up-to-date with current legal developments in the Southern District of Florida to make sure you are obtaining the most you can from your bankruptcy, and complying with applicable law. Below are some important cases to come from our district over the last few years.

Presumption of Abuse Under Means-Test

In re Castillo, 2008 Bankr. LEXIS 2740 (Bankr. S.D. Fla. Oct. 10, 2008). The debtors filed their joint chapter 7 bankruptcy petition on January 25, 2008, They indicated their intent to surrender their homestead property in their statement of intentions and made no mortgage payments subsequent to December 7, 2008. However, in their means test calculation, they included their mortgage payments in the amount deducted from their current monthly income for secured debt payments. Urging the Court to adopt a "forwardlooking approach," the chapter 7 trustee moved to dismiss the debtors bankruptcy case because the presumption of abuse arises if the debtors` mortgage payments are excluded from the deduction for secured debt payments. The Court allowed the deduction of payments scheduled as contractually due as of the petition date, regardless of whether the debtor actually intends to make the payments. 

In re Foster, 2009 Bankr. LEXIS 376 (Bankr, SD. Fla, Feb. 11, 2009). A chapter 7 debtor whose homestead property is encumbered by two mortgages deducted both mortgage payments from her current monthy income in her means test (Calculation despite indicating her intent to surrender her homestead property in her statement of intentions. The chapter 7 trustee objected to the debtor`s deduction of her mortgage and other payments relating to the homestead property and contended that the presumption of abuse arises. Adopting the majority "snapshot approach" to means test calculation, the Court held that it "will allow, for purpose of the means test calculation, a deduction from [current monthly income] for amounts that would have been due, but which Debtor may not pay, to secure creditors on account or property she intends to, and in fact does surrender after the petition date." The Court denied the trustee`s motion to dismiss. 

Domestic Support Obligations

In re Lopez, 2009 Bankr. LEXIS 1045 (Bankr. S.D. Fla. Apr. 17, 2009). The chapter 13 debtor`s ex-husband filed a proof of claim for an obligation identified as a domestic support obligation entitled to priority which consisted of attorney fees awarded in connection with the Former couples dissolution proceeding. The debtor objected to the claim, seeking to treat it, in its entirety, as a general unsecured claim. The Court found that the plain language of the state court order awarding attorney fee, which order provided that "This Courfs award of attorney fees and costs in favor of the former Husband is based upon and supported by the bad faith litigation misconduct of the former Wife" clearly indicates that the fees award was not for "support." The Court rejected the ex-husband`s argument. Because the Court ultimately concluded that, in this case, the attorney fees are not in the nature of alimony, maintenance, or support," the attorney fees award is not a "domestic support obligation" and the ex-husband`s claim was not entitled to priority.

Fraudulent Transfer

Bakst v. Clarkston (In re Clarkston), 387 B.R. 882 (Bankr. S.D. Fla. 2008). The debtor and his non-debtor wife, the defendant in this adversary proceeding, purchased real property in North Carolina and granted the seller a mortgage on the property. The couple later divorced, and the defendant agreed to transfer all her right, title, and interest in the property to the debtor. In 2004, the debtor moved back in with the defendant. The debtor Fell behind on his mortgage payments awl, to avoid foreclosure, agreed to convey the property back to the defendant in exchange for her payment of the balance on the mortgage, which amounted to $13,800. in August 2005, after the defendant paid off the mortgage, the debtor deeded the property to her, rendering himself insolvent. In November 2005, the defendant sold the property back to the original seller-mortgagee for $44,712.41 and agreed to split the sales proceeds in half with the debtor. The chapter 7 trustee filed the instant adversary proceeding to recover the full amount of the sales proceeds less any amounts paid by the defendant in satisfaction of the mortgage. The Court found that the August 2005 transfer of the property to the defendant is avoidable because the debtor transferred the property with the intent to hinder, delay, or defraud his creditors. 

Homestead Exemption