Commentary: The effects of that intestacy and the Law of Partition, which this video  by  Prof.  Thomas Wilson Mitchell   very clearly encapsulates, have,  particularly on People of Color,  is routinely an issue in consumer bankruptcy cases.  Too often the successful,  … Video: Thomas Wilson Mitchell, Property Law Scholar & 2020 MacArthur Fellow- Racial Bias and Impact of Intestacy and the Law of Partition Read More »

Accelerated Rehabilitative Disposition in Pennsylvania (hereafter referred to as ARD) is a Pennsylvania Statute that is encoded at Title 75 Section  1552.  ARD is a minimally reporting probation, that varies from county to county in terms of the requirements, that can be used to resolve first-time offender cases that are either “driving under the influence” […] The post Accelerated Rehabilitative Disposition (ARD) and the Chichkin Case appeared first on .

   In an analysis of the Florida exemption laws and exceptions to such laws, Judge Vaughan dismissed adversary proceedings against two debtors (a husband and spouse) in separate bankruptcy cases.  Roberts v. Hopkins (In re Hopkins), 2021 Bankr. LEXIS 260, Adv #6:20-ap-00032-LVV (Bankr. M.D. FL, 3 February 2021).  The underlying debt arose from debt from Hopkins to purchase a business from the plaintiff, secured by stock in the business.  Hopkins transferred the stock to himself and his spouse as tenancy by the entireties.  Plaintiffs then sued in state court, after which the business made a series of payments on behalf of Hopkins and his spouse, including mortgage payments, and subsequently dissolved the corporation and transferred its remaining assets to a business owned by the debtors for no consideration.  Plaintiffs filed objections to exemptions in both cases requesting that the court impose an equitable lien on their property.  Defendants sought to dismiss under Fed. R. Civ. P. 12(b)(6) (made applicable in bankruptcy by Rule 7012 Fed. R. Bankr. Proc.) for failure to state a claim.  Rule 12(b)(6) requires that a plaintiff provide the grounds of his entitlement for relief, with sufficient factual matter to state a claim to relief that is plausible on it's face.1   The plaintiff must plead factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.2    As the only count in the complaint filed was a request for the Court to impose an equitable lien on the Debtors' homestead, the court analyzed whether such relief was available to Plaintiffs on the facts alleged.  In Florida, the homestead exemption is exempt from execution by a creditor except for 1) the payment of taxes and assessments thereon; 2) obligations contracted for the purchase, improvement, or repair thereon; or 3) obligations contracted for house, field or other labor performed on the realty.   Fla. Const. art. X §4.  Florida has established a broad and liberal application of the homestead exemption.    The primary case examining the limits of this protection is Havoco of America, Ltd. v. Hill, 290 So.2d 1018 (790 So.2d 1018, 1028 (Fla. 2001).  This case ruled that the exemption is protected even when the homeowner transferred non-exempt assets into the homestead with the intent to hinder, delay or defraud creditors.  The Havoco court did limit this protection but solely where the funds converted into the homestead were obtained through fraud or egregious conduct.  This can include funds obtained by fraudulent transfer.3  The imposition of an equitable lien remedy is designed to prevent unjust enrichment.4   The remedy is only permitted when the funds used to invest in, purchase, or improve the home were obtained through fraud or egregious conduct.   Courts look at how the money was obtained rather than how the funds were used.   Creditors seeking the remedy must establish both the fraud and the egregious conduct and then trace those funds into an investment in, purchase, or improvement of the homestead.  As the Plaintiffs in this case failed to establish the first two requirements.  They fail to assert how the transferred funds end up in the homestead.    The Court went on to note that simply making mortgage payments on the home is insufficient to support the imposition of an equitable lien.  They support their allegation by showing three mortgage payments of $1,297.70 each in successive months from the businesses.  The court found that ongoing mortgage payments are not funds 'used to invest in, purchase, or improve the homestead.'  Plaintiffs do not even allege that the mortgage on which the payments were made had been used to purchase the property. To invest in a property requires the addition of value to such property.  The three mortgage payments do not equate too improvement of the homestead.  The court granted the motion to dismiss under Rule 12(b)(6) for failure to state a claim, in failing to state grounds under Florida law for their request to impose an equitable lien on the property.1 Ashcroft v. Iqbal, 556 U.S. 662, 677-78, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009).↩2 Id↩3 LaMarca v. Jansen (In re Bifani), 580 F. App'x. 740, 747 (11th Cir. 2014).↩4 Palm Beach Sav. & Loan Ass'n, F.S.A. v. Fishbein, 619 So. 2d 267, 270 (Fla. 1993).↩Michael BarnettMichael Barnett, PA506 N Armenia Ave.Tampa, FL 33609-1703813 870-3100https://hillsboroughbankruptcy.com

https://www.bizjournals.com/triangle/news/2021/02/08/business-bankruptcies-attorneys-pandemic-flood.html?fbclid=IwAR1Z WyHDO6zH PcahbcnlE Oy8SiIxV2O22XgUR8XG2VD0jDuzk4gy2LMTQ Lk

If you or a loved one has been charged with a felony or a misdemeanor, you may wonder what that means and what the differences between the two types of crimes are. Misdemeanors are more minor crimes and felonies are more serious. But both can carry significant consequences. The Bucks County criminal defense lawyers at […] The post What Is the Difference Between a Felony and a Misdemeanor in Pennsylvania and NJ? appeared first on .

The three toughest questions at your bankruptcy hearing. The three toughest bankruptcy hearing questions are NOT what most people expect.  The bankruptcy trustee does NOT ask you to explain how you got into this mess. They are not asking about your plans for the future.  And the creditors are NOT there demanding their money. Have […] The post The three toughest questions at your bankruptcy hearing by Robert Weed appeared first on Northern VA Bankruptcy Lawyer Robert Weed.

   In denying a request to avoid a judgment lien recorded in 2009 in a chapter 7 bankruptcy filed in 2010, the court found that laches barred the debtor's request.  In re Horvath, 2021 Bankr. LEXIS 238, case NO 10-60520 (Bankr. N.D. Ohio, 2 February 2021).  The creditor has been scheduled on the no-asset bankruptcy, which was discharged in 2010.  The creditor renewed it's lien in 2014 and 2019.  Debtors reopened the case in September 2020 and sought to avoid the lien, which was opposed by the creditor.     While finding that this was the type of lien that is avoidable under 11 U.S.C. §522(f), the court agreed with the creditor that laches prevented granting of the request.  The 6th Cir. B.A.P. had previously recognized that laches may prevent belated avoidances.  In re McCoy 560 B.R. 684 (B.A.P. 6th Cir. 2016); In re Yonish, 2016 Bankr. LEXIS 650, 2016 WL 832587 (B.A.P. 6th Cir. 2016).  While Rule 5010, Fed. R. Bankr. Proc does not establish a time limit for a debtor to reopen a case to avoid a lien, the BAP found that if the delay associated with the reopening of the case is accompanied by a demonstration of prejudice to the creditor as a result of such delay, the request may be denied.  The court was troubled by the debtor's failure to identify the lien at the time the case was filed.  There was no dispute that the lien existed at the time the case was filed, nor is it disputed it was properly filed.  Such records were available through a simple online search.  Sanctions had been considered against debtor counsel in prior cases when counsel had not employed such external verification tools that were available and not cost prohibitive.1  When debtors own real estate, and are aware a judgment was filed, such lien search should be perfunctory, and failure to do so does not satisfy the 'reasonable investigation' requirement.  Even though the fault for such omission lies with counsel, they are bound by his act or omission.2    The creditor in this case had incurred additional costs to maintain the lien, in twice renewing the lien, and in maintaining records of the loan and interest for the past decade.  It also responded to two inquiries regarding title searches in 2017 and 2019 and incurred the cost for the current defense against the lien avoidance.  While Debtors counter that they would have incurred some of these expenses anyway as there was a non-debtor third party, they acknowledge that some expenses were incurred, and offered to mitigate the damages.  They requested that the court balance the equities, but there court noted there is no requirement to do so.   Author note: Every debtor counsel should have a checklist to follow prior to filing, which should include pacer searches for prior filings, court record searched, official record searches, vehicle information searches, and property record searches.  While state law may provide alternative methods to eliminate judgment lien's on homestead (ie §§55.145, 222.01 Florida Statutes) this does not eliminate counsel's duty of due diligence.  However,  courts should also consider that  the due diligence standard is evolving over time to be more stringent, and courts should also keep this in mind.    The case also raises the issue whether such malpractice could be an asset of the bankruptcy estate, giving the debtor little or no remedy.    1 In re Parikh, 508 B.R. 572, 585 (Bankr. E.D.N.Y. 2014) (citing Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 404, 110 S. Ct. 2447, 110 L. Ed. 2d 359 (1990)).2 Dreier v. Love (In re Love), 3 Fed.Appx. 497, 498 (6th Cir. 2001) (unpublished) (citing Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 396-97, 113 S.Ct. 1489, 123 L. Ed. 2d 74 (1993).↩↩Michael BarnettMichael Barnett, PA506 N Armenia Ave.Tampa, FL 33609-1703813 870-3100https://hillsboroughbankruptcy.com  

If you are disabled, you may be eligible for monthly Social Security Disability Insurance (SSDI) payments. To qualify for SSDI, your condition must be serious enough to limit your ability to earn a living. Earning a living does not necessarily mean you cannot work – you may still work and earn some money while you […] The post SSDI Income Limits 2021 in Pennsylvania appeared first on .

Did you know that in Pennsylvania, you do NOT need a license to carry a firearm in order to purchase a gun?  You don’t need a license to own a gun either.  Finally, you don’t even need a license to keep a gun in your home or place of business. So when do you need […] The post What Are the Gun Laws in Pennsylvania? appeared first on .

People who owe others money are sometimes used to phone calls, emails, letters, or other communications from creditors and debt collectors. While creditors are allowed to collect the money owed to them, there are specific rules they must follow. When a debt collector’s behavior crosses the line into harassment or abuse, you have legal options. […] The post When is it Creditor Harassment in Pennsylvania? appeared first on .