In Episode 58 of The Crushing Debt podcast, we discuss a case called In Re: Failla. This case impacts both bankruptcy and foreclosure cases in Florida, and was a win for lenders, against homeowners and borrowers.
Mr. and Mrs. Failla bought a house in Boca Raton, Florida. Eventually circumstances caused them to fall behind on their mortgage and the bank filed a foreclosure. The Faillas then decided to eliminate their debts in bankruptcy, including stating their intent to "surrender" their house to the mortgage company.
However, when the bank proceeded to foreclose, based on the Failla's intent to surrender the house, the Faillas fought the foreclosure case. The bank objected to the Failla's actions. The case found its way to the 11th Circuit Court of Appeals in Atlanta, GA (which governs bankruptcy and Federal Court cases in Florida, Georgia and Alabama). The decision is from October 2016 and now, unfortunately, means that when someone in bankruptcy indicates an intent to "surrender" the house, they're no longer allowed to later defend the foreclosure case.
Do you agree with the Court's decision?
Regular listeners to the Crushing Debt Podcast know that we are HUGE fans of AFLAC.
In this week's episode, we interview Brian Morris, We talk about a very personal story about why Brian became an AFLAC Agent.
AFLAC helps people with short term disability for accidents, cancer, and other situations. AFLAC pays money to bridge the gap between the promise of health insurance, and the protection of health insurance.
Not only is Brian responsible for helping business owners and individuals obtain AFLAC, he is also responsible for growing his AFLAC team here in the Tampa area.
If you are interested in AFLAC, either to purchase a policy or become part of Brian's team, please contact him at 727-492-9960 or David_Morris@us.AFLAC.com (Brian's first name is actually David).
In Florida, there is a committee made up of 10 Realtors and 10 attorneys that get together every few years to review the standard form contract in use by most residential real estate agents in Florida. The contract is called the FAR/BAR (Florida Association of Realtors / Florida Bar). The intent of the contract is to provide a fill-in-the-blank form for Realtors to use to avoid an allegation of the unlicensed practice of law.
In this week's episode, we discuss some of the major changes that just went into effect on April 4, 2017, including:
This is not an exhaustive list of all the changes. If you have questions about interpretation of the revised FAR/BAR, or any real estate contract, commercial or residential, please reach out to us at Shawn@YesnerLaw.com or www.yesnerlaw.com.
In Episode 55 of the Podcast, we interview Marielis Rivera, a personal injury attorney with the firm of Pipas Law Group.
Like me, Marielis started on the "other side" representing insurance companies being sued by injured parties. Now, however, Marielis represents only injured parties.
Many times, injured parties are unable to work because of their injuries and, when income drops, there is a ton of stress in addition to their injuries. Marielis does a great job of informing her clients of their options and helps her clients to manage their debts until the lawsuit is over.
You can contact Marielis on her cell phone at 813-509-6606, or on Facebook.
You can contact us at Shawn@Yesnerlaw.com or www.yesnerlaw.com. We would appreciate if you would leave a positive review of the Crushing Debt Podcast if you enjoy the content, and ask a friend to subscribe and listen to our weekly episodes!
In this episode of the podcast, we talk about a former client and an aggressive strategy we used to eliminate a potential mortgage deficiency.
The client was divorced and her ex-husband kept the property. The problem for our client was that she was still on the Promissory Note and Mortgage. The divorce did not (and can not) eliminate her liability to the lender under the promissory note and mortgage.
Years later, the husband passed away and the bank, in this case a credit union, pursued the ex-wife for foreclosure. Credit Unions never (in our experience) waive deficiency, so our client was still financially responsible to pay any deficiency to the Credit Union.
The client did not qualify for Chapter 7, so we filed a Chapter 13 reorganization (or payment plan) bankruptcy, with the hope that the Credit Union failed to file a claim in the bankruptcy case (meaning the Credit Union would not get paid).
It is an aggressive strategy because if the Credit Union had filed a claim in the bankruptcy case, they would have been entitled to payment and the payments to the bankruptcy court would have been unaffordable.
We hope you enjoy this week's episode. If you have questions about how we were able to help her and why it is an aggressive strategy, please listen to the episode, or send us an email - shawn@YesnerLaw.com or www.YesnerLaw.com.
Welcome to Year 2 of the podcast. As you have seen from previous episodes, we have re-branded the podcast and it is now The Crushing Debt Podcast, where our goal is to help you eliminate the financial bullies in your life.
This week's episode is a review of the different laws that expired at the end of 2016, and some new case law that impacts foreclosure defense in 2017 and going forward, unless or until the Supreme Court makes a conflicting decision.
What did we lose? HAMP which helped with modifications, HARP which helped with refinances, HAFA which helped with short sales, and the Mortgage Debt Relief Act, which made mortgage and foreclosure deficiencies non-taxable.
In addition, we discuss the Bartram case, which has a huge impact on foreclosure law here in Florida.
We hope you enjoy the content, and we ask that you share this post and episode if you think the content has value!
Welcome to the last episode of the first year of the podcast!
In this week's episode, we have a repeat guest, Jason Avery of Avery Construction and Constructing Debt. However, in this episode of the podcast, we talk to Jason about Room Full of Referrals provided by Jason through the company, Asentiv.
In Room Full of Referrals, we learn that people are faster paced or slower paced, people oriented or task oriented. The seminar is highly useful in determining your own style, learning the behavioral style of other people, and how to use that information to better connect, and generate better referrals.
Jason was my jury consultant a while back and used his behavioral style analysis to help me pick the right jury and win my case! I also utilize tactic learned in Room Full of Referrals to better connect with potential clients and customers. In Room Full of Referrals we learn the Platinum Rule. Everyone knows the Golden Rule - treat others the way you want to be treated. The Platinum Rule is to treat others how they want to be treated.
To reach me, please email Shawn@YesnerLaw.com or www.YesnerLaw.com. As this is Episode 52, we want to continue to provide value to you, our listeners. Please let us know what you like about the podcast, what we can improve about the podcast, and what you want us to keep the same about the podcast.
In this week's episode, we interview attorney Kelly Petry. Kelly and I discuss issues with Student Loans.
Kelly and I discuss whether student loans are dischargeable in bankruptcy court, how student loans are treated in bankruptcy court, and some things that we can do in bankruptcy court to address the debtor's student loans.
In certain circumstances, student loans are dischargeable. In Tampa, we utilize the Brunner Test to determine whether a student loan can be eliminated by the bankruptcy court. However, there is a very high standard to discharge a student loan in bankruptcy court.
The Brunner factors are: (1) debtor cannot maintain a minimal standard of living if forced to repay the loans, (2) there are additional circumstances that show the debtor's financial condition is going to persist for the foreseeable future, and (3) that the debtor has tried to repay the student loan.
While the standard is high, there have been some inroads and Congress is currently trying to determine if they can provide additional assistance to people trying to repay their student loans.
To contact Kelly, please call her at 813-873-0713.
Student loan debt is becoming unduly burdensome. Student loan debt is quickly becoming the biggest area of debt for borrowers who are having trouble making their monthly obligations.
Christie and her firm can help people eliminate or negotiate student loan debt that was taken out by a parent or co-borrower for the student, or for schools that have closed. In addition, outside of bankruptcy court, there are other options to help students eliminate, reduce or negotiate their student loans. Of course, if the borrower can prove "undue hardship" those cases may be dischargeable in bankruptcy court, but that is a high standard and rare.
As you will hear there are many other avenues available to help people negotiate or eliminate their student loan debts, under various federal programs.
We appreciate Christie being on the podcast. We have referred her clients who have been very happy with her services.
Christie offers free consultations and phone consultations. To reach her, please call 813-258-2808 or www.ChristieArkovich.com, www.TampaBankruptcyLawyer.com. Check out her student loan survival package on her website!
In Episode 49 of the Podcast, I discuss the case Bartram v. US Bank National Association, which was decided by the Florida Supreme Court in November 2016.
Bartram is a significant decision in Florida because the FL Supreme Court holds that the bank can file a second foreclosure case, after dismissing its first foreclosure case, even if the date that the borrowers stopped making payments is beyond Florida's five-year statute of limitations.
For whatever reason, some banks decide to dismiss foreclosure cases when those cases have a technical deficiency (ownership of the promissory note for example). If it took the bank too long to fix that issue, so that the date of default became more than five years old, some courts in Florida held that the bank could not foreclose again (because the default date was more than 5 years old). Bartram reversed that line of thinking and, because it was decided by the Supreme Court of the State of Florida, that is now the "law of the land" in Florida.
The Court did say that any payments that were past due more than 5 years are uncollectible as being beyond the 5-year statute of limitations, but the foreclosure itself could proceed as long as the bank alleged a default date that was within the five years - meaning the bank would simply waive any late payments that are more than five years past due and continue their foreclosure. Already we've seen a slight increase in foreclosure filed under these circumstances.
Also note we are changing the name and branding of the Podcast to Crushing Debt. You'll hear the name change in Episodes 53 and beyond. We've updated the logo with this episode and would appreciate any feedback!
In this Episode of the podcast, we have our friend Tiffanie Kellog back for an interview. Tiffanie has a new book out, Knock the Socks off your Audience, to go along with her first book 4 1/2 Networking Mistakes and its accompanying workbook, Networking for Results.
In this episode of the podcast, Tiffanie turns the tables and interviews me on what makes a good referral for Yesner Law, using some of the techniques she writes about in her books.
You can find and order Tiffanie's books on Amazon.
Please leave a review or comment if you enjoy the content.
In this week's episode of the Podcast, we again interview our friend Loren Pincus. In addition to being a personal injury and criminal law attorney, Loren is also a sports agent for Minor League Baseball.
Loren has a few clients who may get called up to the big leagues, moving Loren to the big leagues as an agent himself. While Loren is a fantastic attorney, you can hear in his voice that being a baseball agent is his true passion.
This was one of my most interesting interviews and one I enjoyed the most. Loren talks about what it takes to be a sports agent, particularly in Minor and Major League Baseball.
You can learn more about Loren at www.GreenLineSportsManagement.com, or follow him on twitter @Greenlinesm.
When a small business owner files bankruptcy, their company becomes an asset of the bankruptcy case. Therefore, the business owner needs to evaluate the value of the business.
Some business owners want to say that their small business is worth nothing because if they don't work, the company doesn't make money and is worth nothing. However, the bankruptcy judges and trustees in Tampa will not accept that argument, because the business has value. What would a competitor pay to buy the business? What is the value of the assets of the business? What are its receivables? What are its revenues? Its profits?
In this episode of the podcast, we review all of these different valuation techniques in connection with business owners who want to file personal bankruptcy.
In this week's episode, I have a conversation with Tyler Sheff of The Cash Flow Guys. Tyler is a real estate investor, coach, consultant, podcast host, and most importantly a friend and mentor to me personally.
Tyler is one of the real estate investors that does it right. He always looks for a win-win scenario and coaches his students in the right way to buy and invest in real estate (i.e. without taking advantage of anyone).
Tyler refers customers, clients and investors to Yesner Law and we very much appreciate the referral relationship we've created with The Cash Flow Guys.
We recently acquired equipment that allows us to conduct podcast interviews by skype and Tyler was kind enough to be a guinea pig. This episode is the result. We hope you enjoy the content, and visit Tyler's website for more information.
Typically, people dealing with foreclosure, bankruptcy or short sales are concerned about the impact those things may have on their credit.
We focus on taking the mystery out of your credit score, so that you can focus on eliminating the potential liability to the creditor. However, understanding what makes up a credit score will help when facing foreclosure, bankruptcy or short sales, even though credit does recover quickly.
The five factors are:
We discuss these factors in detail in this week's episode of the podcast.
In this week's episode of the Podcast, we interview attorney Loren Pincus, with the firm Yanchuck, Berman, Wadley, Zervos & Thomas. Loren focuses on Criminal Law and Personal Injury Law.
What should you do if you're involved in a car accident? In this week's episode, Loren answers this question, as well as other questions like Uninsured or Underinsured Motorist Coverage, Bodily Injury Coverage, PIP Coverage, and Florida's recent law change that requires someone involved in a car accident to see a doctor within 10 days of the accident.
Bankruptcy Chapter 6.5 is a term of my creation and it references a situation where a homeowner files Chapter 13 bankruptcy to save their home through a mediated loan modification, but then dismisses the bankruptcy once the modification is completed - thus completing half of a Chapter 13 reorganization (13 divided by 2 equals 6.5).
Recently, I posted a blog article and related podcast that asked the question "Why is Bankruptcy so Odd?" In that article, I never discussed Chapter 6.5. You won't find Chapter 6.5 in any bankruptcy law book, code book, or rule book. You won't even find it amongst any slang around the courthouse (unless, of course, this podcast episode and its related blog go viral).
Today's episode covers when this might be a good strategy for someone in bankruptcy or foreclosure, and also covers why this strategy exists in the first place - it has to do mostly with the way payments are accepted and applied by the Chapter 13 Trustees here in Tampa, Florida.
We hope you enjoy this episode. If you have any questions, or if you have topics that you think would make a great future topic, please contact me at by email at Shawn@Yesnerlaw.com, or visit the Yesner Law website.
After a Thanksgiving Break, we're back!
In this week's episode, we interview Attorney Nick Ekonomides again, but this time on the issue of commercial foreclosures.
Commercial Foreclosures are different than residential foreclosures. Many of the defenses available in a residential situation are unavailable to the commercial defendants. In addition, other issues like assignment of rents and receivers often come up in commercial foreclosure litigation.
In this week's episode of the podcast, we discuss bankruptcy and why it is broken into all odd-numbered chapters, except for one even-numbered chapter. We also go into a little detail about the differences between all of the bankruptcy chapters.
We hope you enjoy this week's episode. Please let us know if you have any questions, comments or topics you want us to cover in future episodes.
In this week's episode of the podcast, we interview Matt Friesz with Properly Inspected Home Inspection.
When buying a house, we HIGHLY recommend obtaining a home inspection and Matt is one of the best in Tampa Bay. We discuss what a home inspection covers and what it doesn't cover. We discuss what types of inspections Matt performs; he can do inspections for home buyers, home sellers, insurance purposes, and for other reasons.
There's even a horror story or two in this week's episode.
To contact Matt, please visit his website: www.properlyinspected.com.
In this week's episode, we interview Nickolas Ekonomides, who practices in civil litigation. Civil litigation and Nick's practice primarily focuses on disputes between businesses that owe money or are owed money.
Nick and I discuss non-compete agreements, exclusivity agreements, and other issues that cause disputes between business owners or landlord / tenant.
In this week's episode, we interview Barb Hennessey with The Joy Within, a company that uses somatic intuitive training to help people release and recover from their emotional stresses. Barb can help people who have any type of emotional pain or trauma: the loss of a loved-one, PTSD, financial trauma. This is where Barb overlaps with Yesner Law; she can help people who are upset at their current financial situation, where we can help people keep their creditors at bay, or eliminate those creditors entirely.
We come across situations often where one spouse wants to file without involving the other spouse. Maybe one spouse carries the debt. Maybe the parties are divorcing. The questions I get most often are: (1) can I file alone? (2) what happens to the debt of the other spouse? (3) how else will my spouse be affected.
Sometimes this also comes up in situations where one roommate wants to file, and I've even had this happen a few times where the parties are in a relationship (whether straight or gay) and the question is "how does this affect my significant other?"
The answer is that it really won't affect the non-filing party. We explain further in this week's episode of the podcast!
In this week's episode of the Yesner Law Podcast, we interview David Rosenthal, who is a commercial real estate agent here in Tampa Bay.
David has accounting experience and experience with helping his clients review a commercial real estate deal to see if it is a good fit for the client's needs.
Commercial and Residential real estate are really two completely different things. Most residential realtors know nothing about commercial real estate.
If you'd like to contact David, please call 813-245-7333. David@GrimaldiCommercialRealty.com.
Hello Yesner Law Podcast listeners. This episode is all about Wells Fargo and Bankruptcy. I wrote a blog about this topic below. For this week's episode, I simply read the blog post because I think the content is still good and accurate. I hope you enjoy. If you have questions or ideas for another episode, please contact me at Shawn@yesnerlaw.com or www.YesnerLaw.com.
Each night, as we sleep, Wells Fargo combs the Federal electronic database of all new bankruptcy filings looking for a customer that filed Chapter 7 bankruptcy. When that happens, WF freezes the clients checking and savings accounts, thus denying the depositor access to his money.
The apparent authority for Wells Fargo to do this comes from a United State Supreme Court Case, Citizens Bank of Maryland v. Strumpf, 516 U.S. 16 (1995). In that case, the Supreme Court ruled that a deposit account is "nothing more or less than a promise to pay, from the bank to the depositor" and the bank's "temporary refusal to pay was neither a taking of possession of ... property nor an exercising of control over it, but merely a refusal to perform its promise." Accordingly, the Court ruled that the freeze was allowed and did not sanction the bank for its conduct.
Wells Fargo banking customers who live in the Tampa Bay Area and other areas comprising the Middle District of Florida will have to do some pre-bankruptcy planning. The most logical strategy is to move the money from a Wells Fargo bank account to another bank (as of the writing of this article, Wells Fargo is the only bank that imposes this account hold.) Another possible strategy is to remove sufficient case funds to cover regular expenses until such time as the Chapter 7 Trustee has an opportunity to review the schedules and send notice to Wells Fargo that the hold can be removed. Although this process normally takes a few days, it could take up to 30 days or more. Both of these strategies will have an impact on a debtor's bankruptcy petition and must be disclosed within the schedules. Thus having experienced legal counsel is a necessity when making a determination whether bankruptcy is the best option.
... or we could try to get Wells Fargo to change their policies ...