New Bankruptcy Rules to Take Effect December 1, 2021

A few changes to the Federal Rules of Bankruptcy Procedure became effective on December 1, 2021. The most noteworthy change relates to Bankruptcy Rule 9036, which addresses notice and service by electronic transmission.

  • Bankruptcy Rule 2005 – Bankruptcy Rule 2005 generally deals with the apprehension and removal of a debtor to compel attendance at an examination regarding the administration of the bankruptcy estate. Upon motion of a party in interest supported by an affidavit regarding the necessity of the examination and the risk of the debtor’s flight, the court may issue to the marshal or another officer of the court an order to bring the debtor before the court without unnecessary delay. The amendment to Bankruptcy Rule 2005(c) fixes a technical error related to the conditions of release of the debtor. The technical error arose in connection with the repeal and replacement of certain provisions under the Bail Reform Act of 1984, and the new reference to 28 U.S.C. § 3142 now properly tracks the conditions for release and gives the court discretion to consider only the “relevant” provisions of that section.
  • Bankruptcy Rule 3007 – Bankruptcy Rule 3007 covers the procedure for objecting to claims, and Bankruptcy Rule 3007(a) addresses the timing and manner of service of such objections. The amendment to Bankruptcy Rule 3007(a)(2)(A)(ii) clarifies that the specialized service requirements of Bankruptcy Rule 7004(h) apply only to insured depository institutions as defined in Section 3 of the Federal Deposit Insurance Act. In other words, institutions insured by the Federal Deposit Insurance Corporation are covered by Bankruptcy Rule 7004(h), which generally requires service by certified mail addressed to an officer of the institution, subject to limited exceptions. Institutions not insured by the FDIC, such as credit unions, may be served by first-class mail sent to the person designated for receipt of notice on the proof of claim.
  • Bankruptcy Rule 7007.1 – Bankruptcy Rule 7007.1 applies in adversary proceedings and generally deals with the requirement that a party file a disclosure listing the party’s parent corporation, if any, and publicly held corporations owning 10% or more of the party’s stock. The rule is used to assist the court in determining whether the assigned judge should be disqualified under Canon 3C(1)(c) of the Code of Conduct of United States Judges. The amendment makes clear that the Bankruptcy Rule 7007.1 applies to non-governmental corporations and also provides for supplementation of the notice when the information required by the rule changes.
  • Bankruptcy Rule 9036 – Bankruptcy Rule 9036 addresses notice and service by electronic transmission. When the bankruptcy rules require or permit sending a notice or serving a paper, Bankruptcy Rule 9036 provides for certain documents to be served electronically. The amendments to Bankruptcy Rule 9036 are designed to deal with high-volume paper- notice recipients. The clerk is now allowed to send notice or serve registered users by using CM/ECF (the court’s electronic-filing system) and also may serve any recipient by electronic means if the recipient had consented to such electronic notice in writing, subject to certain exceptions. The amended rule further clarifies that electronic notice or service is complete upon sending and that it is the recipient’s responsibility to keep its electronic address current with the clerk.

COVID-19 Student Loan Relief Coming to an End

On Aug. 6, 2021, the U.S. Department of Education announced a final extension of the student loan payment pause until Jan. 31, 2022.  The payment pause suspended loan payments and interest rates.  If you have outstanding student loans you should anticipate resuming payments after Jan. 31, 2022.

Collections and the Florida Statute of Limitations

Florida Statute 95.11 governs when a creditor can present an action to recover.  In general a creditor has 5 years to present their claim (some types of debts have different statute of limitations).  The Fair Debt Collections Practices Act prohibits collectors from taking action to collect a debt they cannot legally take.   Some actions you may take such as making a payment on an old debt may pause or toll the statute of limitations so it is important to consult with an attorney and carefully review any debt for which a creditor is attempting to collect.

US Supreme Court Ends Eviction Moratorium 8/26/2021

The US Supreme Court has ended the CDC Eviction Moratorium today specifying that a federally imposed moratorium should be should be authorized by Congress in order to continue.  If you are currently facing eviction be sure to speak with an attorney so that they can explain your legal options to you.

Naples Disaster Relief

On September 29 2017 President Trump signed the Disaster Tax Relief and Airport and Airway Extension Act of 2017 (HR 3823). Congress had approved the bill the day before.

This Act gives substantial relief to those affected by the recent hurricane disaster including: an exception to the 10-percent early retirement plan withdrawal penalty for qualified hurricane relief distributions.

This Act may provide relief to you. Consult your attorney or tax professional!

-Jonathan Tolentino

Florida Bar President’s Probono Award


Florida Bar Presidents Award Winner!

How to Improve your credit and credit score (Part I)

It’s been a long time coming that I post on how to improve your credit and credit score.  There is a difference between credit and credit score.  It is possible to have a good credit score and not have credit.  Anyone reading this probably would like both, and luckily they are related.  For now, we’ll focus on credit score because in general if you increase your credit score you will increase your credit.  There are several if not dozens of books on how to increase your credit score and I’ve read many of them.  They all contain valuable information, however there is no substitute for experience.  As an attorney I’ve helped many of my clients correct their credit reports and I’ve always pointed out to them that they can do it themselves without too much hassle.  I decided to post this article so that in the future I can forward it to anyone that asks how to ‘do it yourself’.  Of course, there are no guarantees and every case is different.  In some cases you may need to seek the help of an attorney or other professional.  However, in most cases you can ‘do it yourself’!

Since this is ‘Part I’ we must first get ready to do the job.  To get started you will need a copy of your credit report as reported by all three credit bureaus.  It is important that you have a copy from all three bureaus:  Experian, TransUnion and Equifax.  I also strongly suggest that you subscribe to a credit monitoring service.  There are many services available, just be sure that the service you subscribe to allows you to pull your credit score.  Most services also allow you to pull your credit report and this will allow you to kill two birds with one stone.  The reason you will want a credit monitoring service is so that you can quantify your credit score improvements.  Lastly you’ll need access to a computer with a printer so that you can write some letters!

In ‘Part II’ we’ll take a look at your credit report and I will show you how to identify what may be holding your credit score down.  We’ll also look carefully at what information is being reported incorrectly.  With this information we’ll write our first letter to the credit reporting agencies asking to correct or ‘reinvestigate’ the incorrect information which should result in our first increase in credit score – I’ll post an example letter for you to follow.  I bet you can hardly wait to get started, so check my blog soon for ‘Part II’…..

Paying off your Chapter 13 early?

Several clients have asked me recently whether they can pay off their chapter 13 plan early.  Essentially they would like to conclude their bankruptcy prior to the time specified by their confirmed plan.  A Debtor in bankruptcy can file a motion to approve the early payoff of their chapter 13 plan, however these motions are not routinely granted.  Since being appointed to the Ft. Myers Division, Judge Delano has taken an equitable approach to these motions weighing how long the plan has been confirmed, how many payments the Debtor has made, whether the Debtor’s income could potentially increase and whether the confirmed plan calls for committing tax refunds to the plan.  Ask your attorney if your circumstances would allow you to pay your chapter 13 plan off early.     Here is a case that deals with this issue:  In re: Carreiro 11-17863 (Opinion by Judge Delano).

2013 View From the Bench Seminar

Held every year, this was one of the first I attended without Judge Paskay as a speaker.  Our newly appointed Judge Delano (Middle District of Florida Fort Myers Division) was present along with nearly every Judge from the Middle District of Florida: Judge Jenneman, Judge Hyman, Judge Specie, Judge Glenn, Judge Williamson, Judge May, Judge McEwen, Judge Jackson.

A lot of consumer issues were reviewed.  I’ll update my blog to present some of these issues for anyone keeping tabs..


Mortgage Modification in Bankruptcy

Did you know that you can received a court ordered modification mediation in Bankruptcy?

Many bankruptcy filers are having great success in having their mortgage modified at a bankruptcy court ordered mediation. A financial disclosure is required and the bank is required to appear in good faith and evaluate which modification programs you qualify for. The Mediator oversees the process and makes sure that all parties are doing the best they can to reach a modification.

If you have been having problems modifying your mortgage this is an additional option! Talk to a bankruptcy attorney today to inquire about how you can get a successful mortgage modification mediation!