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Florida Bankruptcy Court Rules that Bankruptcy Trustee May Not Waive Debtor's Defenses to Foreclosure Actions

When you filed for bankruptcy protection, the bankruptcy trustee steps into your shoes regarding your rights including lawsuits. In Florida, a woman was sued by her mortgage company, Wells Fargo, seeking to foreclose on her home. She raised various defenses to the foreclosure action and counterclaimed the mortgage company in the foreclosure lawsuit. Approximately one year later, the woman filed for a Chapter 7 Bankruptcy. Her counterclaim was an asset in her bankruptcy and claimed by the bankruptcy trustee. The bankruptcy trustee settled with Wells Fargo allowing the foreclosure to proceed if Wells Fargo paid the bankruptcy estate $10,000.00 which would be paid to the woman's creditors. In the settlement, the bankruptcy trustee dismissed the counterclaim and waived the foreclosure defenses. However, the Bankruptcy Court for the Southern District of Florida disagreed and would not approve the settlement agreement. See In re Larkin, 468 B.R. 431 (Bankr. S.D. Fla. 2012).

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