Monday, October 24, 2016

Mortgages, child support, excessive force, and organic fennel, rosemary cream, and Kalamata olives on a bed of handmade posta

Appeals -- Sanctions -- Failure to timely file initial brief -- Failure to obey court orders -- Appellate counsel referred to Local Professionalism Panel
NOCARI INVESTMENT, LLC, et al., Appellants, v. WELLS FARGO BANK, N.A., et al., Appellees. 3rd District.

  Bankruptcy -- Claims -- Objections -- Rule 3001(c) objections, asserting that proofs of claim did not attach a copy of writing upon which claims are based, lack merit -- Creditor was not required to prove that its claims are based on an open-end or revolving consumer credit agreement -- Objections to claims, which were scheduled as undisputed in amounts identical to amounts asserted by creditor in its proofs of claim, are not good faith objections -- Objections to claims on grounds that account summary statement attached to each proof of claim includes a notation that debt was “charged off” are legally insufficient -- Mere fact that proof of claim includes reference to a charge-off date is not, standing alone, a legal basis for a claim objection -- Even if court followed decisions disallowing claims where debtor received a Form 1099-C reflecting the cancellation of debt, validity of proofs of claim remain unrebutted and claims will be allowed where debtors did not present evidence that they received a Form 1099-C for any of debts subject of charge-off objections In re: AMAURYS RODRIGUEZ and ANAEN NUNEZ, Debtors. U.S. Bankruptcy Court, Southern District of Florida.   Williams v. Poarch Band of Creek Indians Court: U.S. Court of Appeals for the Eleventh Circuit Docket: 15-13552 Opinion Date: October 18, 2016 Areas of Law: Constitutional Law, Native American Law Plaintiff filed suit against the Poarch Band of Creek Indians, alleging that she was terminated from her job because of her age pursuant to the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. 621-634. The district court adopted the Magistrate’s Report and Recommendation to grant the Poarch Band's motion to dismiss the suit based on the doctrine of tribal sovereign immunity. In this case, there is no evidence that the Poarch Band waived its immunity, either generally or in the present suit. The court rejected plaintiff's comparison of the definitions of the term "employer" found in the ADEA and Title VII, in conjunction with the Supreme Court's opinion in Fitzpatrick v. Bitzer; plaintiff's argument that the ADEA is a statute of general applicability is foreclosed by the court's precedent; and other circuits that have considered the issue raised by this appeal also have determined that federal courts lack subject-matter jurisdiction over an ADEA claim asserted against a federally-recognized Indian tribe. Accordingly, the court affirmed the district court's decision to grant the Poarch Band’s motion to dismiss for lack of subject-matter jurisdiction.    Bankruptcy -- Discharge -- Fraudulent transfer -- Discharge should be denied pursuant to Section 727(a)(2)(A) because debtor transferred property within one year before his bankruptcy petition with intent to hinder, delay, or defraud his creditors -- Debtor transferred property where debtor liquidated his pension fund, deposited the net proceeds of fund in his individual checking account, and within the two months between the deposit and filing of his bankruptcy petition made a number of transactions which had the effect of significantly diminishing his bank account -- Debtor cannot claim that proceeds of liquidated pension account were exempt from his Chapter 7 estate where he voluntarily withdrew funds from his pension plan, funds were never placed in designated individual retirement account or any other investment vehicle, Section 222. 21(c), Florida Statutes, did not provide an exemption for funds after they were paid to debtor and deposited into his checking account, and debtor did not claim an exemption for his checking account under that statute -- False oath or account -- Discharge should be denied pursuant to Section 727(a)(4) where debtors knowingly made a false oath on the bankruptcy schedules -- Where Statement of Financial Affairs signed by debtors did not disclose liquidation of pension fund; income received as a result of fund's liquidation; or gifts that debtor wife made from proceeds of fund, even though she was aware that the transactions had occurred within two months before bankruptcy petition was filed, debtors' nondisclosures constitute false oaths -- Debtors were obligated to disclose assets and transactions, despite their claim that pension proceeds were exempt -- Circumstantial evidence shows that debtors intended to hinder, delay, or defraud their creditors by disposing of proceeds of pension fund and misrepresenting the transactions on their bankruptcy schedules -- Based on circumstances, court could conclude that debtor husband had prior knowledge of bankruptcy process, that debtors were aware of claims of mortgage creditors who had foreclosed on their home, that husband liquidated his pension fund in effort to remove it from reach of creditors, and that debtors thereafter attempted to spend pension proceeds or otherwise conceal them from bankruptcy estate -- Failure to satisfactorily explain loss of assets or deficiency -- Discharge should be denied pursuant to Section 727(a)(5) because debtor experienced a loss of assets and failed to provide a satisfactory explanation for the loss -- Debtor's bank accounts were significantly diminished in weeks before bankruptcy petition was filed, and he was unable to provide even vague or speculative explanations of many transactions that took place on eve of his bankruptcy In re: JEFFREY LEONARD JONES, DARNELLA COLE JONES, Debtors. U.S. Bankruptcy Court, Middle District of Florida, Jacksonville Division.

Child custody -- Jurisdiction -- Uniform Child Custody Jurisdiction Enforcement Act -- Florida is home state of child who was born in Florida and lived in Florida until mother relocated to New York when child was less than two weeks old -- Trial court erred in dismissing putative father's petition for determination of paternity, parental responsibility, child support, and related relief on basis that court lacked jurisdiction under UCCJEA because Florida was not child's home state -- Fact that child was born out of wedlock has no bearing on child's home state
JAMES BAKER, Appellant, v. CARA CATHERINE TUNNEY, Appellee. 5th District.

Child support -- Income -- Deductions -- Administrative support order erroneously allowed deductions for expenses against gross income that were not permitted by statute -- Remand for recalculation of parents' respective net incomes for purposes of child support guidelines
DEPARTMENT OF REVENUE on behalf of HOLLY N. HARRIS, Appellant, v. THADIUS DEMENTRIEL CRAWFORD, Appellee. 1st District.

Civil procedure -- Proposal of settlement -- Attorney's fees -- An offer of settlement is not invalid for failing to state, as required under Rule of Civil Procedure 1.442(c)(2)(F), whether the proposal includes attorney's fees and whether attorney's fees are part of the legal claim, where attorney's fees are not sought in the pleadings
SUSANNE L. KUHAJDA, Petitioner, vs. BORDEN DAIRY COMPANY OF ALABAMA, LLC., et al., Respondents. Supreme Court of Florida.

Civil rights -- Search and seizure -- Arrests -- Excessive force -- Officer's multiple tasings of suspect, after an arrest had been fully secured and any potential danger or risk of flight eliminated, violated suspect's clearly established constitutional right to be free from excessive force -- Where law enforcement officers handcuffed and pinned down the suspect following a struggle and then tased him five times with at least two of those tases occurring after suspect had ceased resisting, a reasonable officer in arresting officer's position and under circumstances would have had fair warning that repeatedly tasing handcuffed suspect after he had ceased struggling and resisting was unreasonable and unconstitutionally excessive under Fourth Amendment -- Evidence construed in favor of plaintiff demonstrates that suspect was not flight risk or a threat to safety of officers or public prior to conclusion of tasings -- Officer was not entitled to qualified immunity on excessive force claim at summary judgment stage of proceedings
PATRICIA JUANITA WATE, individually and as personal representative of the Estate of James Clifton Barnes, Deceased, Plaintiff-Appellee, v. KENNETH KUBLER, Defendant-Appellant. 11th Circuit.

Consumer law -- Mortgage foreclosure -- Real Estate Settlement Procedures Act -- Loss mitigation -- Loan servicer had no duty to evaluate an application for loss mitigation options submitted by borrowers when, at time application was submitted, a foreclosure sale of borrowers' property was scheduled to occur in two days -- Under Regulation X, which implements RESPA, a loan servicer's duty to evaluate a borrower's loss mitigation application is triggered only when borrower submits the application more than 37 days before the foreclosure sale -- Borrowers' application was untimely, even where servicer postponed the foreclosure sale such that sale actually transpired more than 37 days after they submitted their complete loss mitigation application -- To evaluate the timeliness of an application, Regulation X requires counting the number of days between date a complete loss mitigation application is received and date of foreclosure sale, and directs using scheduled date of foreclosure sale as of date complete application was received to determine date of foreclosure sale -- It is irrelevant if servicer subsequently reschedules foreclosure sale to a later date -- Because borrowers completed their application too late to trigger servicer's duty to evaluate the application, summary judgment was properly granted to servicer on loss mitigation claim -- Notice of error -- Borrowers were not entitled to summary judgment on separate claim that loan servicer failed to respond adequately to their subsequent notice of error as required by Regulation X, because borrowers failed to present evidence that they suffered actual damages or were entitled to statutory damages based on pattern or practice of RESPA noncompliance -- Use of a template to respond to borrowers' notice of error was insufficient evidence from which to infer that servicer had a pattern or practice of issuing form letters that were unresponsive to borrowers' notices of error
JOHN LAGE, MARIA MANTILLA, Plaintiffs-Appellants, v. OCWEN LOAN SERVICING LLC, Defendant - Appellee. 11th Circuit.

Mortgages -- Satisfaction -- Failure to timely record certificate of discharge -- Jurisdiction -- Plaintiff who used proceeds of real estate sale to satisfy a mortgage owned by defendant lacks standing to sue when he alleges only a failure to record a satisfaction of mortgage within a statutory period and fails to bring suit until after that statutory violation has been remedied -- Because plaintiff has not alleged that the violation of New York law that occurred when defendant failed to timely record the discharge of mortgage caused or could cause him harm that could constitute a concrete injury in fact, appeal from dismissal of complaint must be dismissed for lack of jurisdiction
ROGER NICKLAW, on behalf of himself and all others similarly situated, Plaintiff-Appellant, v. CITIMORTGAGE, INC., Defendant-Appellee. 11th Circuit.

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1 comment:

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