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The United States Bankruptcy Court for the Middle District of Florida solidified that a debtor is unable to modify a plan and vacate a confirmation order, nearly seven years after the plan was confirmed, to strip a mortgage creditor’s lien. PLG, via its attorney Seth J. Greenhill, Esq., sustained a significant victory for its client in bankruptcy court. On August 3, 2023, the Court issued its published opinion, In re Gilbert, 2023 Bankr. LEXIS 1952, whereby the Court correctly found that the Debtor was unable to use §1329 to modify a plan to strip a junior lien when plan payments were completed; and (2) the Debtor could not use §105(a) to vacate a confirmation order nearly seven years after the order was entered. It is worth noting that PLG took an aggressive approach by taking the Debtor’s deposition (i.e. Rule 2004 Examination) in order to lock in her testimony and show that she knew about the lien, yet failed to include it. This strategy, which Attorney Greenhill has successful deployed in past litigation, proved useful in this case and was, ultimately, advantageous to the Client in that it secured pivotal testimony later used by Creditors’ counsel. While the Orlansky v. Quicken Loans, LLC, No. NV-22-1181-GCB, 2023 WL 2947616, at *1 (B.A.P. 9th Cir.) (not for publication) case is not published, the Court’s decision is important. The fact that it is not published means that it cannot be cited as precedent. However, that does not mean that debtors will not reference it in an attempt to influence court decisions. As with many cases that impact the contents of a mortgage monthly statement, this case has very specific facts. After filing a Proof of Claim, Rocket fka Quicken Loans, filed Notice of Post-Petition Fees for the fees associated with the filing of the Proof of Claim and reviewing the Chapter 13 Plan. In the Winter 2021, I wrote an article warning about the statute of limitations in Washington where it had been erroneously determined that the statute of limitations begins to run with the discharge in bankruptcy upholding Edmundson v. Bank of America, 378 P.3d 272, 278 (Wash. Ct. App. 2016). In March 2022, I followed it with a case law update which was the beginning of the end of Edmundson. In Copper Creek Homeowners’ Association v. Wilmington, No. 82083-4-I, slip op. (January 18, 2022), the Court of Appeals for the State of Washington Division I gave the servicing industry an end to the misunderstanding created by the various interpretations of Edmundson. On Thursday, July 20, 2023, The Supreme Court of Washington put the final nail in the coffin of Edmundson with its opinion in Merritt v. USAA Fed. Sav. Bank, 2023 Wash. LEXIS 376 where the running of the statute of limitations was returned to its correct origination point of the date of default. |
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The information contained on this blog shall not constitute legal advice or a legal opinion. The existence of or review and/or use of this blog or any information hereon does not and is not intended to create an attorney-client relationship. Further, no information on this blog should be construed as investment advice. Independent legal and financial advice should be sought before using any information obtained from this blog. It is important to note that the cases are subject to change with future court decisions or other changes in the law. For the most up-to-date information, please contact Padgett Law Group (“PLG”). PLG shall have no liability whatsoever to any user of this blog or any information contained hereon, for any claim(s) related in any way to the use of this blog. Users hereby release and hold harmless PLG of and from any and all liability for any claim(s), whether based in contract or in tort, including, but not limited to, claims for lost profits or consequential, exemplary, incidental, indirect, special, or punitive damages arising from or related to their use of the information contained on this blog or their inability to use this blog. This Blog is provided on an "as is" basis without warranties of any kind, either express or implied, including, but not limited to, warranties of title or implied warranties of merchantability or fitness for a particular purpose. |
Padgett Law Group and Padgett Law Group EP are D/B/As of Timothy D. Padgett, P.A. Timothy D. Padgett, P.A.'s practice areas include creditors' rights, estate planning and probate, real estate transactions and litigation. Not all practices or services are available in all states in which Timothy D. Padgett, P.A. practices.
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