DEFENSES IN FLORIDA FORECLOSURE
provides is that what follows is the
property is abandoned to the debtor.”8
Judge Isicoff’s third analysis
is her reiteration of what other judges
said in the earlier years: tardy actions
by the creditor will not be received
with favor. And, in fact, Judge Isicoff
measured that anything filed beyond
“three months” could be too late.9
The effect of this ruling is not
yet known. It is strongly worded and
concludes that the majority is in error
as it “[i]s apodictic that a lienholder
cannot, in any court, assert that a
debtor’s indicated intent to surrender
real property in a chapter 7 case has
any consequence with respect to the
lienholder post-bankruptcy, including
precluding the debtor from defending
an action by a lienholder to foreclose
its security interest in real property.”0
property was “surrendered.”
But,
because Elkouby seemingly reverses
the majority’s position, an emboldened
debtor may seek to rely on the Isicoff
ruling and fight the foreclosure after
the “surrender” in bankruptcy.
No
solid answer can be given as to which
path will assuredly deliver the “best”
strategy in handling foreclosure/
chapter 7 matters. Because of such,
jurisprudence of this issue must
continue to evolve in the bankruptcy
forum which would then have a trickling
down effect upon the Florida courts or
proposed Florida legislation.
1.
Or even a statement included
in a chapter 13 plan.
Conclusion
Until Judge Isicoff wrote the
Elkouby decision, the case law evolved
in favor of the creditors. Until Elkouby,
the only creditor-friendly decisions
were based upon a laches issue which
only arose because creditors were
unaware of the issue and delivered
the same on very old or even closed
cases. In Florida, the lawyers are
now at a crossroads. If the majority
eventually prevails, a debtor would best
be advised to delay the foreclosure,
and defer the bankruptcy filing as the
Statement of Intention’s “surrender”
would terminate the defenses in the
state forum. If the majority prevails, an
attorney seeking to defend a bankrupt’s
foreclosure would be advised to review
the bankruptcy schedules carefully
to see what the sworn Statement
of Intention to see if the foreclosure
2.
In re Plummer, 513 B.R. 135,
142 (Bankr. M.D. Fla. 2014)
54
CONSUMER BANKRUPTCY JOURNAL
(Endnotes)
3.
In re Plummer at 143 (Citing
Sullivan v Stroop, 496 U.S. 478, 484
110 S. Ct. 2499, 110 L. Ed. 2d 438
(1990)
4.
In re Plummer, 513 B.R. 135,
143 (Bankr. M.D. Fla. 2014) citing In
re White, 487 F.3d 199, 205 (4th Cir.
2007)
5.
In re Cornejo, 342 B.R. 834,
837 (Bankr. M.D. Fla. 2005)
6.
In re Plummer at 143, Citing
Cornejo at 837. The result was not
a right to demand turnover from the
debtor, but a “next best thing” of
prohibiting the debtor to defend the
foreclosure lawsuit ensued.
Spring 2016
7.
In re Rodriguez, 215 Bankr.
LEXIS 2704 (Bankr. S.D. Fla. August 2,
2015)
8.
In re Rodriguez, 215 Bankr.
LEXIS 2704 (Bankr. S.D. Fla. 2015)
9.
In re Townsend, 215 Bankr.
LEXIS 2023 (Bankr. M.D. Fla. 2015)
10.
In re Townsend
11.
In a chapter 13, a similar
result was obtained before the
Southern District of Florida
Bankruptcy Court’s Judge
Mark in Calzadilla. Judge Mark
initially found in Calzadilla:
“This Court’s research did not
reveal any published decisions
in this district interpreting
the meaning of ‘surrender’
in chapter 13 plans.” In re
Calzadilla, 534 B.R. 216,
218 (Bankr. S.D. Fla. 2015)
Upon reviewing the abovereferenced Failla case of
Judge Hyman, Judge Mark
concluded that an analogous
approach could be reached
not only because of equitable
concerns,
but
because
the mortgage modification
procedures of the court “. . .
explicitly require ‘surrender’
and ‘surrender’ means that
the debtor cannot thereafter
take any overt action to defend
or impede the foreclosure . .
.” In re Calzadilla, 534 B.R.
216, 219 (Bankr. S.D. Fla.
2015) July 9, 2015 changes
to the Southern District of
Florida’s Local Rules regarding
mortgage modification may
National Association of Consumer Bankruptcy Attorneys