Eversheds Sutherland 11th Circuit Business Blog
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Bankruptcy Preemption/Preclusion Defense Does Not Preclude Class Certification in FDCPA/FCCPA Case

In an opinion vacating a district court order denying class certification, the Eleventh Circuit held that whether the Bankruptcy Code precludes and/or preempts the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1962 et seq., and the Florida Consumer Collection Practices Act (“FCCPA”), Fla. Stat. § 559.55 et seq., raised issues common to all class members.  Sellers v....

Florida Exemption Does Not Shield Improperly Maintained IRA from Creditors

An IRA owner could not rely on a Florida exemption to shield his IRA account from creditors after engaging in prohibited acts of self-dealing with his IRA funds, the Eleventh Circuit held in Yerian v. Webber, 2019 WL 2610751 (11th Cir. June 26, 2019). The IRA owner, Keith Yerian, opened a self-directed IRA. The IRA was governed by two contracts. One of the contracts required Yerian to...

Bankruptcy Debtors Can Recover Attorneys’ Fees Spent in Enforcing Stay and Seeking Damages, Including for Appeals

Richard and Patricia Horne filed for bankruptcy protection under Chapter 7 of the Bankruptcy Code. After the bankruptcy was filed and the automatic stay imposed by Section 362(a)(1) went into effect, Mary Mantiply, an attorney, filed a state court action against the Hornes on behalf of Mantiply’s client. Mantiply repeatedly refused to dismiss the case, even after being informed of the...

“Surrender” Means “Surrender” – A Debtor Who Surrenders Collateral in Bankruptcy Gives Up the Right to Oppose Foreclosure

David and Donna Failla filed for Chapter 7 bankruptcy protection in 2011. Shortly thereafter, the Faillas filed the “statement of intention” required by section 521(a)(2) of the Bankruptcy Code with respect to their house, which was subject to a mortgage held by Citibank.  In the statement, the Faillas agreed to “surrender” the house instead of the other options provided under the...

Eleventh Circuit Holds That Bankruptcy Rules Apply to Adversary Proceedings in District Court, Orders Reinstatement of $6-Million Verdict on Procedural Grounds

When a federal district court oversees adversary bankruptcy proceedings, is the post-trial deadline to request judgment as a matter of law governed by Federal Rule of Civil Procedure 50(b), which allows 28 days to file such a motion—or by Bankruptcy Rule 9015(c), which allows only 14 days? The Eleventh Circuit applied the Bankruptcy Rules’ shorter deadline in Rosenberg v. DVI...