The Eleventh Circuit’s ruling in the Failla case was triumph for mortgage lenders when it affirmed the District Court’s opinion that “once the debtor decides to ‘surrender’ secured property… [w]hile the debtor need not physically deliver the property to the secured party, the debtor is precluded from taking any action which would interfere with the secured creditor’s ability to obtain legal title to, and possession of, the property through legal means.”
However, as set forth in the recent case of In re Kurzban, 2017 WL 3141915 (Bankr. S.D. Fla. July 24, 2017), “the Eleventh Circuit did not rule that a debtor’s decision to surrender lasted in perpetuity“.
In the Kurzban case, the mortgage lender sought to reopen the debtors’ 2009 chapter 7 bankruptcy case, over 7 years after the debtors received their discharge, to compel the debtors to surrender their real property, consistent with their bankruptcy Schedules. The bankruptcy court noted that the bank had abandoned its foreclosure efforts, entered into modification negotiations with the debtors, seven years had passed since the debtors received their discharge and five years had passed since the bank’s first foreclosure action was voluntarily dismissed. It was only after years of modification efforts proved unsuccessful, and the bank filed its second foreclosure action, that it sought to enforce the debtors’ surrender election years later.
Accordingly, the Kurzban court held that there was absolutely no basis under Failla decision to support the relief sought by the bank years later. The Kurzban court reasoned that “a debtor’s decision to surrender may be binding in a foreclosure action pending, or ripe for filing, at the time of the bankruptcy case in which the intent to surrender is made, but it certainly is not binding in a subsequent foreclosure action…”
The take away for mortgage lenders where a debtor elects surrender? Do NOT sit on your rights! Be diligent in your efforts to foreclose and enforce your leverage under the Fialla case.
Heather L. Ries is an attorney with the Financial Restructuring and Bankruptcy Department of the law firm of Fox Rothschild LLP. Heather focuses her practice in matters related to bankruptcy, creditors’ rights, commercial workout and foreclosure disputes, and commercial litigation. You can contact Heather at 561-804-4419 or hries@foxrothschild.com.