Tuesday, August 21, 2018

Backlog of bankruptcy cases persists despite drop in filings

TAMPA — Eli Munoz-Soto and Marcial Solorzano held ownership stakes in more than 40 homes that got tangled up in Florida's epic housing meltdown.

For nearly three years, their cases crawled through bankruptcy court, as they sought modified mortgages with lower payments to avoid foreclosure. Finally, in a hearing this month, their attorneys presented a plan that some of their lenders and other affected parties had agreed to — enough to justify a court-imposed "cramdown" that makes everyone accept the new terms.

"You've relieved your debt. You have new lending terms you can now afford," Judge Catherine Peek McEwen told the two debtors. "So, congratulations!"

One case down, roughly 68,000 to go in the ever-busy U.S. Bankruptcy Court for the Middle District of Florida. Bankruptcy filings in the Tampa Bay area continue to drop from their 2010 peak, falling another 20 percent over the past 12 months to reach levels not seen in four years.

But the plunge in new cases in the bay area has done little to alleviate a backlog that could be months if not years away from returning to normal levels. The longer cases take, the longer until creditors can be paid and debtors can start rebuilding their financial lives.

Moreover, strained courtrooms already operating with smaller staffs because of budget cuts may see the situation worsen if bankruptcy filings rise once more — which is exactly what many observers predict.

"I think we're going to be in for a huge storm," said St. Petersburg bankruptcy attorney Charles Moore. "I think we're in a weird, artificially created low. … All of us are asking why (bankruptcy filings) are so low right now. The economy didn't magically get better over the last two years."

The temporary reprieve in new bankruptcies is rooted in the housing mess. Drawn-out efforts to modify mortgages along with the "robo-signing" scandal over foreclosures that had to be re-filed because paperwork was faulty or forged have given many delinquent homeowners an extended reprieve from losing their homes.

Terry Smith, a trustee for Chapter 13 reorganization cases for two of Tampa's bankruptcy judges, sees more foreclosures being the inevitable driving force for more bankruptcies. Delinquent homeowners — some of whom haven't made a mortgage payment in years — will suddenly be forced to put money toward rent instead of other expenses. And bankruptcy, he said, may be their only alternative.

Moore is already seeing it happen.

"I had a client in here today who hasn't made a mortgage payment in 31/2 years," he said. "They're finally getting a foreclosure and coming to me" to discuss bankruptcy options.

Moore said there's a common misconception that people who haven't made a mortgage payment for years must have saved something to shield them from bankruptcy.

"What bank account is that money in? It's not there. People are living to what they have," he said. "I don't think we have people out there hoarding their money."

Big reductions

Nationally, bankruptcy filings for the fiscal year ended Sept. 30 were down 14 percent from a year ago. As with Tampa Bay, the pullback was across the board: Chapter 7 liquidations were down 16 percent; Chapter 13 reorganizations down 10 percent; Chapter 11 reorganizations down 12 percent.

Another jump in filings is the last thing case managers and judges in the jammed Middle District Bankruptcy Court want to face.

During the Great Recession, the number of pending cases in the district peaked at just over 71,000 in 2010. Today, despite the drop in new filings, it is still handling 68,000 active cases.

Most of the court-clogging filings involve Chapter 13 personal bankruptcy reorganizations and Chapter 11 reorganizations for businesses and individuals with a higher net worth. The cases often involve more time-consuming real estate issues, such as stripping second mortgages from a debt or working out modified payment plans with a bank.

Smith, the Chapter 13 trustee, said he's juggling about 13,000 active cases, a volume almost unchanged over the past three years.

Chapter 13s can typically take three to five years to go through the system, Smith said. "A lot more people are staying in for the complete period of time," often because they're negotiating to remove a second mortgage from their debt in addition to being unable to pay their first mortgage and other bills.

Adding the real estate equation into bankruptcy cases has both transformed and complicated the process, said Ed Whitson, chair of the bankruptcy practice group at the Tampa law firm Bryant Miller Olive.

"You're seeing bankruptcy courts morph into more of a hybrid. You have loan modifications taking over bankruptcies. The mediation program is being built into the bankruptcy," he said.

Taking a long time to resolve a case is not all bad if the debtor walks with a clean slate, Whitson said. "It probably is more beneficial because it presents a more comprehensive solution to the situation."

The bankruptcy courtrooms in Florida's Middle District are taking steps to expedite cases. To cut down on hearings, for instance, judges are allowing more "negative notices" in which the court can enter an order into the record if no interested party objects to a notice within 21 days. Judges rule from the bench more often. They've also granted automatic stays, eliminating the need to hold time-consuming hearings.

Much of the burden to keep cases flowing lies with a handful of case managers.

But it doesn't help the drive for efficiency when courtrooms are grappling with budget cuts.

"We've had a cutback in staff. We've had a freeze of new hiring. … We're down a judge; we're down case managers," observed Judge McEwen.

On the positive side, McEwen said, the recent drop in cases indicates more people are able to manage their debts without the court's help.

On the negative side, fewer filings could lead to a smaller budget since the federal government funds staffing at the courts based on what happened in the past. "It's not a real time model," McEwen said.

So if fears of a new wave of bankruptcies come true, they could come at the same time the court is enduring further budget cuts.

Jeff Harrington can be reached at [email protected] or (727) 893-8242.

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