Saturday, June 14, 2014

'Disability Dog' Takes $300K Bite Out Of Rogue Condo Association For Jerking Around His Wheelchair-Bound, Reasonable Accomodation-Seeking Owner In Violation Of Fair Housing Act

In Davie, Florida, The Miami Herald reports:

  • Calling the behavior of a Davie condominium association “absurd” and “unreasonable,” a federal judge has ordered a Davie condominium to allow a disabled resident to keep her service dog.

    The two-year dispute will carry a hefty price tag for the Sabal Palm Condominiums: $300,000.

    Deborah Fischer, a retired Broward art teacher who was diagnosed with multiple sclerosis in 2000, was sued by Sabal Palm Condominiums after her dog, Sorenson, moved into her apartment in November 2011. Fischer, who uses a wheelchair and has limited use of her arms and hands, needs Sorenson to pick things, up, open and close doors and retrieve items from counter tops.

    “Sabal Palm got it exactly — and unreasonably — wrong,” U.S. District Judge Scola wrote in his order. “This is not just common sense — though it is most certainly that.”

    The condominium complex in Davie’s Pine Island Ridge neighborhood does not allow pets over 20 pounds and demanded medical records and other information to prove that Fischer needed Sorenson — a 5-year-old Labrador-golden retriever mix — to help her. Saying Fischer didn’t provide the proper documentation, the condo association sued, said the woman’s attorney, Matthew Dietz of Miami.

    Fischer, along with her husband, Larry, counter-sued, saying the condo board’s demands violated the federal Fair Housing Act, or FHA.

    Scola agreed with Fischer, and gave the condo board a serious verbal lashing in his 30-page order.(1)

    That the condo association “turned to the courts to resolve what should have been an easy decision is a sad commentary on the litigious nature of our society,” Scola wrote in a March 19 order. “And it does a disservice to people like Deborah who actually are disabled and have a legitimate need for a service dog as an accommodation under the FHA.”

    In their arguments, board members suggested that, even if Fischer needed a service dog, she could have gotten by with an animal that did not weigh more than the Sabal Palm’s 20-pount limit. But, Scola wrote, such a dog would not have been able to meet Fishcer’s needs. Sorenson, the judge ruled, was a “reasonable accommodation” to Sabal Palm’s requirements.

    “That a blind person may already have a cane, or that he or she could use a cane instead of a dog in no way prevents the blind person from also obtaining a seeing-eye dog as a reasonable accommodation under the FHA,” Scola wrote. “A contrary result is absurd.”

    After Scola ruled in the Fischers’ favor, Dietz said he negotiated the $300,000 settlement with the attorney representing Sabal Palm, Karen Nissen.

    Nissen did not return calls or an e-mail Tuesday. David Rosinsky, the attorney representing Marvin Silvergold, who was the board president at the time and was sued individually, said the case was “amicably resolved.” A summary judgment against Christopher Trapani, who was the attorney of the association at the time, was denied. Trapani could not be reached for comment.

    Fischer said the dispute started in November 2011, when she brought Sorenson home after getting him from Canine Companions for Independence, a nonprofit group that provides service dogs for people with disabilities. She had sent the complex’s association a letter notifying them that she would be getting a service dog. For five months, Fischer went back and forth with the association.

    “I have an obvious disability,” she said. “I just couldn’t believe how hard they were making it.”

    Fischer said Sorenson quickly became an important part of her life. He helped her do things she couldn’t do for herself — such as turning the lights in her apartment on and off, picking up TV remotes from coffee tables or counters, or scooping up keys from the floor. The retriever allowed her to perform routine tasks without bothering her husband.

    In all, Sorenson can recognize 40 separate commands, Fischer said.

    “He has made my life so much better,” she said.

    But as the litigation dragged on in court, Fischer said, the drama began to overwhelm her. She had lived in the complex for more than a dozen years, and, suddenly, people she had lived near for years were adverse parties to a lawsuit.

    “It was very difficult to deal with,” she said.

    Fischer’s lawyer said the facts were clear: “This is one of the worst cases like this that I’ve seen,” said Dietz, who specializes in civil rights and disability lawsuits. “It is obvious that the service dog would help her.”

    Dietz said a new board has since been elected and the rules have changed. He hopes the case will help others become more sensitve to the needs of disabled people.

    Fischer agreed, saying she hopes no one has to go through what she went through.

    “I am finally free of the questions, investigations and litigation,” she said. “We are at the point where we can have some peace of mind and finally move forward.”
Source: Davie woman with banished service dog gets $300,000 condo settlement (A Davie condo resident with MS will receive $300,000 from her Davie complex after she was told she couldn’t keep her service dog in her unit).

For the court ruling, see Sabal Palm Condominiums of Pine Island Ridge Association, Inc., v. Fischer, Case No. 12-60691-Civ-SCOLA (S.D. Fla. March 19, 2014).

(1) Judge Scola prefaced his ruling by acknowledging that, while the case before him was not such a case, "[t]here is some reason to be skeptical of requests to keep a dog as an accommodation for a disability in certain cases, particularly cases where the dog assists the disabled person by rendering emotional support."

See Fake Service Dogs, Real Problem or Not?  and Disability Dog Scams for more on the possible use of fake service dogs and fake identification by individuals to obtain special access to housing, public places or airports/airlines for their animal.

See, generally:
Go here and go here for earlier posts on service animals and the Fair Housing Act.

Friday, June 13, 2014

Loan Modification Deals That Leave Homeowners Bound & Gagged Grow More Widespread, Preventing Borrowers From Bad-Mouthing Banksters Or Suing Them In Court For Future Misconduct

Reuters reports:

  • Joseph and Neidin Henard thought they had finally fixed the mortgage that was crushing them.

    In January, the couple reached a settlement with every company that had a stake in the mortgage on their house in Santa Cruz, California, a deal that would have slashed their monthly payment by almost 40 percent to $3,337. It was the end of a process that started with their defaulting in 2009.

    But when they saw the final paperwork for their settlement, they found that Ocwen Financial Corp, the company that collected and processed their mortgage payments, had added an extra clause: they could not say or print or post anything negative about Ocwen, ever.

    The Henards' experience was not unusual. Mortgage payment collectors at companies including Ocwen, Bank of America Corp and PNC Financial Services Group are agreeing to ease the terms of borrowers' underwater mortgages, but they are increasingly demanding that homeowners promise not to insult them publicly, consumer lawyers say. In many cases, they are demanding that homeowners' lawyers agree to the same terms. Sometimes, they even require borrowers to agree not to sue them again.

    These clauses can hurt borrowers who later have problems with their mortgage collector by preventing them from complaining publicly about their difficulties or suing, lawyers said. If a collector, known as a servicer, makes an error, getting everything fixed can be a nightmare without litigation or public outcry.
  • Attorneys for lenders and servicers say consumer lawyers are overstating the importance of these clauses. Banks are looking to avoid being sued again for the issues resolved in the settlement, but understand they may be sued if they are responsible for a future wrong, said Martin Bryce, a partner with Ballard Spahr in Philadelphia who specializes in consumer finance and banking.

    Bryce acknowledges that the language is ambiguous - under the waivers, homeowners often give up the right to sue on claims "whether existing now or to come into existence in the future."
  • Clauses preventing future disparagement and lawsuits first started appearing after the housing crash, but they have grown more widespread in the last six months, said Ira Rheingold, executive director of the National Association of Consumer Advocates in Washington.

Thursday, June 12, 2014

Lender Ordered To Swallow $200K 'Cramdown' On Home Loan Modification In Chapter 13 Bankruptcy Case Despite Fact That Loan Was 1st Mortgage On Borrower's Primary Residence

In Miami, Florida, the Daily Business Review reports:

  • Even though a Miami man made money renting part of his duplex, a judge ruled in his favor and lowered the debt on his residential mortgage by nearly $200,000 in a Chapter 13 bankruptcy case.

    The question wasn't whether the duplex was Luis L. Ramirez's primary residence, U.S. Bankruptcy Judge A. Jay Cristol wrote in an April 7 order. It was whether the multifamily home on Northwest 26th Street met the legal test that allowed the modification of a first priority mortgage.

    "If you're using the home as part of an investment, then there's more of a risk to the lender," said Jacqueline Ledon, staff attorney at Legal Services of Greater Miami Inc.,(1) the nonprofit that filed the motion on Ramirez's behalf. "Primary residences are less risky. Most people will do whatever it takes to save the roof over their head."

    The bankruptcy code typically bans the modification of interest rates, principal and other terms on residential first priority mortgages.

    But in a case that hinged on how the court would treat a duplex where the homeowner rented part of the property, Cristol ruled in the homeowner's favor and allowed the mortgage modification.

    For "bankruptcy purposes the inquiry is not whether the property is the debtor's primary residence," Cristol wrote.

    "Rather the inquiry is whether the property is solely the borrower's primary residence. Where the borrower resides in one unit and rents out the other unit of a duplex, the property is not solely the borrower's primary residence and as such the mortgage is subject to modification."

    The question was whether lender Lansdowne Mortgage LLC expected Ramirez to occupy the full two-unit building.

    Landsdowne argued it did. Its attorneys at Herron Ortiz in Miami objected to Ramirez's third amended Chapter 13 bankruptcy plan that proposed monthly payments of $718 plus interest and a final balloon payment of interest and $66,094 in the 60th month. The mortgage company rejected the proposal, saying it feared Ramirez would renege on the new terms in the 59th month.

    In its proof of claim for a first priority residential mortgage at a Jan. 29 evidentiary hearing, the lender told the court it viewed the mortgage transaction as "providing the borrower with a residence."

    But Ramirez's attorneys disagreed.

    "There are extensive examples throughout the case law that say you can modify the mortgage with a duplex because it's not solely the borrower's primary residence,"(2) Ledon said. "In most cases a single borrower can't occupy both units."

    For Cristol, an omission in the mortgage documents was a key factor in deciding whether the anti-modification provision applied.

    "The creditor responds that the mortgage does not actually contain a borrower-occupancy provision and suggests the rider was simply an error," Cristol wrote.

    The Legal Services attorneys argued the error was on Landowne's part because the lender drew up the contract. And in the end, that omission cost the Miami mortgage company about $200,000.

    In his ruling, Cristol permitted the cramdown, ordering Landsdowne to refinance the property and reduce the debt to $100,000—based on the lender's appraisal of the house—down from $297,087. Ramirez now has five years to repay the loan.

    "The court further finds that to the extent any ambiguity exists as to the applicability of the rider deleting the borrower-occupancy provision, such ambiguity is construed against the creditor as drafter of the mortgage contract," Cristol wrote.

    After the housing crash, Cristol supported a change in bankruptcy law that would have allowed judges to reduce the principal on first mortgages on single-family homes, something that was possible until 1979. Bankruptcy judges already have the power to cut second mortgages and credit card debt. The legislation failed.
For the story, see Lender's Mistake Costly, Leads To $200,000 Mortgage Reduction.

For the court order, see In re Ramirez - Order Confirming Chapter 13 Plan.

Go here for In re Ramirez - Debtor's Response To Creditor Objection To Confirmation.

(1) Legal Services of Greater Miami Inc. is the largest provider of broad-based civil legal services for the poor in Miami-Dade and Monroe Counties in Florida. Each year it provides free civil legal services which benefit more than 30,000 members of the community who have nowhere else to turn for help- women, children, seniors, veterans returning from combat, people with disabilities, low wage workers and the homeless who have problems in the areas of tenants’ rights, homeownership, health, income maintenance, employment, special education, tax and consumer rights, according to its website.

(2) In its order, the court noted:

  • As a preliminary matter, the Court notes that the cases permitting modification of residential mortgages secured by multiunit-properties are legionIn re Zaldivar, 441 B.R. 389, 390 (Bankr. S.D. Fla. 2011) (collecting cases). A totality of the circumstances test, analyzing the facts of each case, is used to determine whether a cramdown is permissible. Id. Specifically, the Court looks to the predominant character of the mortgage transaction: [...].

Wednesday, June 11, 2014

Unwitting Real Estate Owners Get Roped Into Co-Owner's Bankruptcy Proceeding As Chapter 7 Trustee Seeks Court Approval For Sale Of Entire Jointly-Owned Property, As Opposed To Just Debtor's Interest

From a recent post from by attorney Vicki R. Harding, Esq.:

  • A chapter 7 debtor owned real estate jointly with three other people as tenants in common. The chapter 7 trustee sought court approval to sell the entire property, as opposed to just the debtor’s tenant in common interest.

    The debtor and his wife listed a 50% interest in real estate described as “125.8 acres rough land” in their bankruptcy schedules. The chapter 7 trustee and the debtors settled a dispute regarding claimed exemptions in the property and agreed to liquidate the non-exempt portion for the benefit of the estate.

    Section 363(h) of the Bankruptcy Code provides that if a bankruptcy estate has an undivided interest in property as a tenant in common, the trustee can sell the interests of both the estate and any co‑owner if (and only if):
(1) partition in kind of such property among the estate and such co-owners is impracticable;

(2) sale of the estate’s undivided interest in such property would realize significantly less for the estate than sale of such property free of the interests of such co‑owners;

(3) the benefit to the estate of a sale of such property free of the interests of co‑owners outweighs the detriment, if any, to such co-owners; and

(4) such property is not used in the production, transmission, or distribution, for sale, of electric energy or of natural or synthetic gas for heat, light, or power.

In this case two of the three other co‑owners consented to a sale and stipulated that the trustee was entitled to sell the entire property pursuant to Section 363(h). However, the remaining co‑owner (Simons) objected.

The trustee and Simons stipulated to various facts and agreed that “the only issue remaining under §363(h) is whether the Real Property is capable of partition or must be sold as a whole.” However, the court took issue with this characterization of the issue. In particular, it pointed out that if the trustee did not prevail, the result would not be to partition and sell the property, but rather the trustee’s request would be denied, leaving him with the right to sell the debtor’s undivided interest as a tenant in common.

The court decided that the parties had stipulated that factors 3 and 4 were met. Although their characterization of the question suggested that they were focusing only on factor 1, the court felt compelled to consider both factors 1 and 2 since it was not entirely clear what they intended.

On the issue of whether partition was “impracticable”:

[P]racticable is not a synonym for possible; nor is it a synonym for practical. Its meaning falls between the two concepts of possibility and practicality, and incorporates both ideas – something that is not only possible, but also feasible and sensible.

The trustee had the burden of proof, and his only witness clearly did not impress the court. The witness described the property as “rough, rock, and hilly land with no improvements.” According to him, the property could not be divided without affecting his estimated value. However, he gave no indication of the reduction in value nor the basis for these conclusions. (Apparently his testimony was based on a “drive-by” of the property, and he neither walked the property nor had any knowledge of the topography other than a brief view from an adjacent property and a review of an aerial map.)

In response, Simons testified as a fact witness that the property had been in her family for several generations, its only value was timber, and an old logging road evenly divided the property that would allow for a fair partition. The court determined that the trustee did not establish that partition was impracticable.

Considering the issue of whether a sale of an undivided interest would bring significantly less than a sale of the entire property, there was very little information to consider. The range of the only values available in the record led to a maximum difference of ~$6,500. The court concluded that the record did not contain proof that a sale of the tenant in common interest would bring significantly less, nor did the small change in value support a finding that partition was impracticable.

A more interesting argument was the trustee’s attempt to use a state statutory presumption of indivisibility. Although bankruptcy courts frequently look to state law to decide issues, in this case the court held that the question of whether a partition was practicable was a matter of federal and not state law.

The court further commented that it appeared the parties agreed that either the property should be sold as a whole or it should be partitioned. However, partitioning property is not an option under Section 363(h): the trustee either sells all of the interests in the property as provided in Section 363(h), or sells only the debtor’s undivided interest. Notwithstanding the desire of the parties, the court’s judgment was simply that the trustee failed to prove that the elements of Section 363(h) were met, and consequently he was not entitled to sell the property free of Simons’ interest.

The court’s decision to apply federal law to determine whether partition was practicable, while leaving the partition process to state law, could lead to a catch-22 where a trustee is not able to sell all of the co-owners’ interests based on federal law, but also is not able to partition the property under state law.

A co‑owner that is not familiar with bankruptcy would likely be surprised that the bankruptcy court can order the sale of its interests as well as the debtor’s interests. However, it is worth noting that a trustee (or debtor in possession) does not automatically have that right.

Source: Potential Sale of Jointly Owned Property: Practicable Partition Is Somewhere Between Possible and Practical.

For the court ruling, see Higgason v. Brown (In re Brown), 506 B.R. 446 (Bankr. E.D. Ky. 2014). rogue

Tuesday, June 10, 2014

Court OKs NY Woman's Use Of Divorce Settlement To Buy Home From Son-In-Law, Then File Bankruptcy & Claim Homestead Exemption To Stiff Her Now-Fired Divorce Attorney Out Of $93K In Legal Fees

In Buffalo, New York, the New York Law Journal reports:

  • A Buffalo woman who used a divorce settlement to buy a condominium from her son-in-law— then filed bankruptcy allegedly to avoid paying her divorce lawyer—can use a homestead exemption to shield her assets, a Buffalo bankruptcy judge has held in a case of first impression.

    Western District Judge Michael Kaplan rebuffed HoganWillig's allegations that its former client tried concealing assets to skirt a nearly $93,000 legal bill, noting that as the client's former divorce counsel, the firm "knew every penny of her financial affairs."

    The ruling potentially puts law firms on different, and less stable, footing than other creditors.

    "She hid nothing from anyone, HoganWillig least of all," Kaplan wrote in In re Wrobel, 12-13001. "The firm's effort to argue that it should be treated as, or represents, some other unsecured creditor of the debtor—a creditor who actually might argue surprise and deception—is rejected."

    However, while Kaplan allowed Krystyna Wrobel to claim a homestead exemption, he expressed concern about the possible "insider" transaction and left a lien on the property in place. If Wrobel sells the condominium in the next three years, or her son-in-law returns the money she gave him for the property, HoganWillig may be able to assert a claim.

    The case turned on an analysis of 11 U.S.C. §522 (o) of the Bankruptcy Code, which was enacted in 2005. Under that provision, if a debtor disposes property "with the intent to hinder, delay or defraud" a creditor, the homestead exemption is reduced accordingly.

    Here, Wrobel was living in an apartment owned by her estranged husband and had retained HoganWillig to represent her in what became a lengthy divorce proceeding. At some point, Wrobel fired HoganWillig and hired a different lawyer, who settled the divorce. Wrobel became the apartment building's owner in the settlement.

    When HoganWillig learned that its former client was about to sell the building, and would net about $100,000, the firm went to state court in an unsuccessful attempt to prevent her from using the funds to buy a homestead. Wrobel in turn bought a condominium from her son-in-law; a year later, she filed for bankruptcy and claimed a homestead exemption.

    HoganWillig, which is holding a $92,377 judgment against Wrobel, accused its former client and her current lawyer of scheming to convert non-exempt assets into exempt assets in an attempt "to hinder, delay or defraud" the firm, as that phrase is contemplated in §522(o). While acknowledging the law tolerates bankruptcy exemption planning as a financial device, the firm asked the court to determine "when it is that a pig becomes a hog."

    But Wrobel's current attorneys with the firm Dennis Gaughan in Hamburg said HoganWillig is trying to "bully" a "relatively unsophisticated Polish immigrant" to extract an exorbitant fee from a client in her 60s who works part time as a $20,000-a-year hospital housekeeper. The attorney, Christopher Tyrpak, said Wrobel made no attempt to conceal assets and argued she should not be denied the homestead exemption.

    Kaplan said the dispute centers largely on how §522(o) impacts bankruptcy planning, but with several "twists and turns," agreed with Tyrpak.

    The judge said it "once was clear" that a debtor could convert non-exempt property to exempt property before filing bankruptcy. But Kaplan said that changed in the wake of a few notorious cases where wealthy debtors moved to states with unlimited homestead exemptions to keep their money away from creditors, and Congress responded with the "hinder, delay or defraud" provision.

    Kaplan said there is no Second Circuit authority on applying that provision in the framework of a bankruptcy planning, and no state law that addresses the situation that arose in the Wrobel matter. He said courts have adopted a "smell test" to determine if a debtor had engaged in an inappropriate transaction.

    Here, Kaplan said, HoganWillig's assertion that the debtor concealed assets "borders on sanctionable conduct." He said Wrobel "openly and notoriously acquired the homestead" and rejected HoganWillig's claim that her actions constituted "badges of fraud" and established that the transaction was a sham.

    "The badges of fraud bespeak 'hiding,' 'absconding,' 'avoiding, 'sharp dealing,' etc.," Kaplan wrote. "The natural question is 'Who exactly is it who was victimized by such evil actions?' Certainly not HoganWillig, and no one else is complaining."

    Tyrpak said the ruling clarifies the law in the Second Circuit.

    "I think it is significant because it provides a basis for interpreting §522(o), at least in the Second Circuit, and it adopts a significant portion of the holdings of other circuits that have already answered this question," Tyrpak said.

    Cheryl-Lane Bechakas of HoganWillig represented her firm. Steven Cohen, who runs the firm's litigation department, said HoganWillig will seek leave to appeal to the district court.

    "Judge Kaplan's decision is very, very dangerous," Cohen said. "He is making new law here. What he is saying is that a law firm is not a creditor in the same category of other creditors."

    Cohen said that if the ruling stands, law firms will be understandably reluctant to represent some clients because there would be an almost sure-fire way to cheat lawyers out of their earned fees.

    "Certainly, we went into this with our eyes open and the understanding that there were non-exempt assets we could use for our fees, and [that] encourage[d] us to sink the amount of time and effort into this case that we did," Cohen said. "What his honor has said is, 'I don't care what you and your client talked about. I don't care whether these assets are exempt. I don't care if §522(o) prohibits a debtor from hiding this money in a transaction with a son-in-law. You're a law firm so you don't get paid.' That is troubling."
Source: Judge Permits Homestead Exemption to Shield Assets.

For the court ruling, see In re Wrobel, Case No. 12-13001, (Bankr. W.D.N.Y. March 28, 2014).