Kevin Stine

As a shareholder in the Firm’s Atlanta office, Kevin Stine represents individuals and companies of all sizes (from start-ups to Fortune 500s) in business negotiations, disputes, and litigation. Contact Kevin at kstine@bakerdonelson.com.

Mortgage lenders received some good news from the Eleventh Circuit Court of Appeals last week!  In Failla v. Citibank, N.A., Case No. 15-15626 (11th Cir. Oct. 4, 2016), the Court affirmed a bankruptcy judge’s order for a married couple to stop opposing the lender’s efforts to foreclose on their home in Boca Raton, Florida.  As will be discussed below, Failla essentially affirms the principle that a bankruptcy debtor (or any other litigant) cannot take inconsistent positions in different legal proceedings.
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On August 31, 2016, United States Bankruptcy Judge Robert A. Mark ruled that a bankruptcy trustee can pursue avoidance of property transfers that occurred nearly ten years before the debtor’s bankruptcy filing.  The proceedings are related to In re: Kipnis, Chapter 7 Case No. 14-11370, pending in the United States Bankruptcy Court for the Southern District of Florida.
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Introduction

By most accounts, a decision from the Georgia Court of Appeals last September represents a sea change in the law governing judicial confirmation of foreclosure sales and post-foreclosure deficiency claims.  Indeed, the Court’s decision in HWA Properties, Inc. v. Community and Southern Bank, 322 Ga. App. 877 (2013) appears to be first declaration in Georgia that the safeguards against excessive deficiency claims in O.C.G.A. § 44-14-161 can be waived in the loan documents.  The significance of HWA Properties cannot be overstated — a creditor who fails to judicially confirm a non-judicial foreclosure sale (either because the creditor opts not to seek confirmation or the superior court denies confirmation) may still sue the guarantor(s) of the loan to recover the deficiency. (more…)