Homeowner Supported by Judge in Home Surrender

August 26, 2015 Posted by kingcade

Miami U.S. Bankruptcy Judge A. Jay Cristol decided against two precedent-setting rulings, finding it unconstitutional to force homeowners to give up on their foreclosure cases after surrendering property in bankruptcy court. The ruling contradicted those made by Chief Judge Paul Hyman Jr. in the Southern District of Florida and Judge Michael Williamson in the Middle District.

In his August 12 ruling, Cristol sided with a Cutler Bay homeowner in a case against Bank of America. His decision served to complicate the already controversial “surrender” issue linking bankruptcy and foreclosure cases. In 2012, the Cutler Bay homeowner had filed for Chapter 7 bankruptcy protection and received a discharge four months later. Then, the bank reopened the bankruptcy case to force the homeowner to surrender her property and give up on the foreclosure fight.

Cristol believed it to be inequitable to stop homeowners from fighting against a foreclosure on their home after surrendering the property in bankruptcy court.  Other judges like Hyman and Williamson, have been far less understanding. Many have threatened homeowners with sanctions and penalties if they continue fighting their foreclosure after surrendering their home for bankruptcy protection.

These rulings created legal precedents that have divided bankruptcy judges by finding that “surrender” means relinquishing property to “make it available to the secured creditor by refraining from taking any overt act that impedes” foreclosure. Federal bankruptcy law indicates that debtors seeking personal bankruptcy protection must submit a statement of intention within 30 days of filing bankruptcy petitions or before the first meeting of creditors.

In the Cutler Bay case, Bank of America failed to prove that the homeowner had agreed to “surrender” her home in bankruptcy; therefore, the bank’s suit in state court to foreclose on the four-bedroom home could not be supported. According to Cristol, even if a debtor had indicated the intent to surrender their property and then fails to do so, disallowing them to fight a foreclosure action would simply be unjust.

Choosing the right attorney can make the difference between whether or not you can keep your home. A well-qualified Miami foreclosure defense attorney will not only help you keep your home, but they will be able to negotiate a loan that has payments you can afford. Miami foreclosure defense attorney Timothy Kingcade has helped many facing foreclosure alleviate their stress by letting them stay in their homes for at least another year, allowing them to re-organize their lives. If you have any questions on the topic of foreclosure please feel free to contact me at (305) 285-9100. You can also find useful consumer information on the Kingcade & Garcia website at www.miamibankruptcy.com.



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