DEFENSES IN FLORIDA FORECLOSURE
Judge Jennemann reviewed this
issue and found a, “distinction
between delivering and surrendering
property.”6 (Emphasis added)
Based upon the mostly
creditor–favorable results obtained in
Briskman’s Cornejo and Jenneman’s
Plummer cases, creditors filed motions
in bankruptcy courts to reopen closed
cases to terminate arduous and
strenuous foreclosure defenses by
either chapter 7 debtors who had
asserted an intention to surrender the
property subject to foreclosure; or,
chapter 13 debtors who surrendered
their interest in the foreclosed property
in their confirmed chapter 13 plan. The
reopening motions initially were not
favorably received.
Tardiness Will Affect Creditor’s
Rights
The Southern District of Florida
Bankruptcy Court’s Judge Cristol
in Rodriguez understood that even
though it was “not disputed that the
Debtor filed her Statement of Intention
stating her intent to reaffirm the debt,
but never executed a reaffirmation
agreement . . .”,7 the debtors failure
to do so was found not exclusively
caused by the debtors. The Rodriguez
court found that the creditor was also at
fault. The court disdainfully observed
the creditor’s failure to do anything
for a period of six years. The court
further asserted that the reopening
of the case years after the closing
was not welcomed. Ultimately, the
creditor’s motion to reopen Rodriguez
– in an attempt to end defenses in
the foreclosure matter – was denied
pursuant to a simple interpretation of
the doctrine of laches.8
Similar concepts occur in
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CONSUMER BANKRUPTCY JOURNAL
Chapter 13. In Townsend, the Middle
District of Florida’s Bankruptcy Judge
Delano similarly stated that a chapter 13
plan’s statement of surrender could not
compel the court to require a cease and
desist order of the debtor’s foreclosure
defense when the creditor’s motion
was filed six years after the case’s
commencement and after the case was
closed.9 The Townsend court also
concluded that the relied upon case
law supporting the motion [the more
recent decisions of Jennemann and
others] occurred after the chapter 13
plan’s confirmation and payment. The
Townsend court concluded that such
case law “. . . should not be applied
retroactively to a case filed in 2008.”0
Another Chapter 13 analysis arrived in
the Southern District.1
Judge Olson of the Southern
District of Florida Bankruptcy Court
also encountered a laches issue
in Kourogenis when the creditor’s
motion was filed more than five years
after the case was closed.2
In
Kourogenis, Judge Olson concluded
that “‘Laches’ is a defense sounding
in equity that serves to bar suit by a
plaintiff ‘whose unexcused delay, if the
suit were allowed, would be prejudicial
to the defendant.’ One of the most
fu