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03.30.2016
I came across an article published in the Miami Herald on March 21, 2016 relating to the Tropical Point Condominium in Miami. The article is titled Condo Owners Face Financial Losses Under Receivers. The article discusses the issues arising from the retention of a receiver in state court to resolve the Tropical Point condominium’s financial issues and the resulting problems with the receivership. [more]

If you are a member of a condominium and/or homeowner association, the following article - from a leading Miami bankruptcy attorney - may be useful and relevant to your specific circumstances:

Condominium and homeowner associations are constantly confronted with financial issues which are left up to a board of directors consisting of unit owners and a management company to resolve.  Sometimes these financial issues are inherited from one board of directors to another and from one management company to another.  Over time, these financial issues take on a life of their own as the problems snowball and the issues get bigger and bigger.

I came across an article published in the Miami Herald on March 21, 2016 relating to the Tropical Point Condominium in Miami.  The article is titled Condo Owners Face Financial Losses Under Receivers. The article discusses the issues arising from the retention of a receiver in state court to resolve the Tropical Point condominium’s financial issues and the resulting problems with the receivership.

Many condominium and homeowner associations look to retaining receivers for resolving debt and management problems but receivership may not be the best tool in these circumstances.  Bankruptcy law is specifically designed to deal with management and debt issues under a well-defined federal bankruptcy system.  An association is a corporation, and as such, qualifies for the protection of the federal bankruptcy law under Chapter 11.  Unlike receiverships, a Chapter 11 bankruptcy allows for the reorganization of debt.  This means debt can be reduced, completely eliminated and/or restructured to make it manageable for the association.  Oversight is another benefit of a Chapter 11 bankruptcy filing.  There is direct oversight by the bankruptcy court judge and the U.S. Trustee’s office to maintain the integrity of the federal bankruptcy system and to ensure the proper implementation of the federal bankruptcy law.  The federal bankruptcy law requires that the retention of any professionals such as attorneys, accountants, realtors, etc. be approved by the Court.  Federal bankruptcy law also requires that fees charged by these professionals be reasonable and fee applications must be approved by the Court by which any party can object including the debtor association itself, the U.S. Trustee’s office, creditors and the unit and homeowners.  In the Chapter 11 bankruptcy, the association remains in possession of the operations and is referred to as a Debtor in Possession.  This allows the association’s attorneys, board of directors, management company and accountants to work together to fix the financial issues affecting the association without the interference of third parties.  One of the most important tools for associations for dealing with financial crisis is the bankruptcy automatic stay.  The automatic stay under 11 U.S.C. § 362 of the U.S. Bankruptcy Code gives debtor associations breathing room so they can reorganize their affairs.  The automatic stay acts as an injunction to stop lawsuits, collection activity and adverse action against the debtor association.  The prevention of these actions through the automatic stay ensures that the debtor association is permitted to reorganize its affairs without interference.  Federal bankruptcy law also provides a mechanism to recoup transfers and assets through adversary proceedings.  Debtor associations can further use federal bankruptcy law to reject certain contracts and agreements.  In certain circumstances, federal bankruptcy may permit a surcharge to creditors when they have benefited from the Chapter 11 bankruptcy filing at the debtor association’s expense.  As can be seen here, federal bankruptcy law offers many benefits over a state court receivership and eliminates many of the resulting problems with receiverships.

In 2014, as a leading Miami bankruptcy law firm, we represented the Bella Luna Condominium Association which resulted in the confirmation of a Chapter 11 bankruptcy plan. Through the condominium association’s bankruptcy filing, the association was able to stop its water from being turned off, it was able to eliminate lawsuits, reorganize its debt and develop a management plan for its future operations.  The federal bankruptcy law was extremely useful for this association to get back on its feet. This association is one of many organizations and companies which our Miami bankruptcy lawyers have assisted.

Looking for a Miami bankruptcy attorney? Find out more.

This article was written by Richard Robles, Esq, a leading bankruptcy attorney in Miami. For more information or legal advice from his bankruptcy law firm in Miami, please Contact Us.


By Richard R. Robles, Esquire    
Law Offices of Richard R. Robles, P.A.
905 Brickell Bay Drive, Suite 228
Miami, Florida 33131
(305) 755-9200
rrobles@roblespa.com
03.29.2016
In bankruptcy, debtors have the ability to strip down or strip off mortgages and liens on real property as long as the real property is worth less than the mortgage or lien. However, when the real property constitutes the principal or primary residence of the debtor, the antimodification provision applies. There is an exception to this rule when the debt is secured by something other than the principal or primary residence. [more]

When choosing your next bankruptcy attorney in Miami, you should make sure that he/she has knowledge of the following, as it may prove to be important in your case.

In bankruptcy, debtors have the ability to strip down or strip off mortgages and liens on real property as long as the real property is worth less than the mortgage or lien.  However, when the real property constitutes the principal or primary residence of the debtor, the antimodification provision applies.  The antimodification provision states that a mortgage or lien cannot be stripped on the debtor’s principal or primary residence if the mortgage or lien has any security.  This means that if a mortgage or lien has even $1 dollar of secured value, the mortgage or loan cannot be modified if it is the debtor’s principal or primary residence.  However, this antimodification provision does not apply when: 1) the real property is not the principal or primary residence of the debtor, such as investment property or second homes; or 2) when the mortgage or lien is secured by something other than the primary or principal residence.

For example, let’s say that you’re facing bankruptcy and your primary residence is a condominium in Miami and has a mortgage and secured value of $400,000. Your Miami bankruptcy attorney may advise you that your mortgage cannot be modified because your mortgage is secured to a certain extent.

However, when discussing what it means to have a security interest in something other than the primary or principal residence of the debtor, we have to look at the loan documents.  In Chapter 13 and Chapter 11, the Bankruptcy Code states that claims secured only by real property constituting the principal residence of the debtor cannot be modified.  11 U.S.C. §1322(b)(2); 11 U.S.C. §1123(b)(5).  The antimodification provisions in Chapter 13 and Chapter 11 should be interpreted similarly.  In re Benafel, 461 B.R. 581,586 (9th Cir. BAP 2011).  When creditor’s claim is secured on something more than just the debtor’s principal or primary residence, the creditor loses the protection of the antimodification provisions.  Such security beyond the principal or primary residence have constituted escrow accounts and personal checking accounts. In re Crystian, 197 B.R. 803, 806-807 (Bankr.W.D.Pa.1996).  Such additional security eliminating the antimodification provisions have also included security interests in appliances, machinery, furniture and equipment. In re Hammond, 27 F.3d 52, 55-56 (3d Cir,1994); In re Johns, 37 F.3d 1021, 1023-1024 (3d Cir.1994); In re Sapos, 967 F.2d 918, 922 (household appliances and wall to wall carpeting); Wilson v. Commonwealth Mortgage Corp., 895 F.2d 123, 128-129 (3d Cir.1990); In re Davis, 989 F.2d 208, 212-213 (6th Cir.1993).  The antimodification provisions have also not applied  where a creditor asserts a security interest in household furniture and a motor vehicle.  In re Baksa, 5 B.R. 184, 186-187 (Bankr.N.D.Ohio 1980); cf. In re Rolle, 218 B.R. 636 (Bankr. S.D. Fla. 1998), Judge Mixon, sitting in place of Judge Cristol (Refrigerator and gas stove was not enough to remove purchase money mortgage from antimodifcation provision).  The antimodification provisions were narrowly drafted to apply to protect mortgage lenders but not secured claims based on extraneous consumer purchases. In re Loper, 222 B.R. 431, 439 (Bankr.D.Vt.1998).

In summary, you and your bankruptcy attorney in Miami should be aware that for debtor’s stripping off or stripping down mortgages or liens on their principal or primary residence, the antimodification provisions may not be applicable allowing these mortgages and liens to be modified just like any other property.  For creditors, this means that creditors need to take extra special care to not secure collateral beyond the principal or primary residence of the debtor or these creditors risk losing the protections of the antimodification provisions.

Looking for a Miami bankruptcy attorney? Find out more!

This article was written by Richard R. Robles, Esquire, a leading bankruptcy attorney in Miami. For more information or legal advice from his bankruptcy law firm in Miami, please Contact Us

 

By Richard R. Robles, Esquire    
Law Offices of Richard R. Robles, P.A.
905 Brickell Bay Drive, Suite 228
Miami, Florida 33131
(305) 755-9200
rrobles@roblespa.com


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