At The Jay Weller Legal Group one of our primary areas of practice is bankruptcy law and work hard to help our clients understand their options. A lot of the clients we help have questions about the bankruptcy process, so we’ve put together a video FAQ section to help you understand your options and how bankruptcy through a Bankruptcy Attorney from Weller Legal Group can help you.
Jay Weller has dedicated his entire professional career as an attorney in the representation of clients who are in debt. Since 1993, he has represented over 40,000 persons in both Chapter 7 Bankruptcy and Chapter 13 Bankruptcy.
Weller Legal Group not only represents debtors in Bankruptcy. For persons in debt, we offer a myriad of services, including Credit Counseling, Settlements, Credit Repair, Mortgage Mediation & Modifications, Credit Harassment, Foreclosure Defense, Debt Consolidation, Consumer Protection litigation, Taxpayer issues, and other programs designed to help debtors.
Mr. Weller has been instrumental in many important decisions and precedents in the Bankruptcy Court. He was one of the first attorneys to successfully remove a second mortgage from his clients’ Homesteads in Florida. He also was the first attorney to allow debtors to retrieve certain properties seized by creditors, through the filing of Bankruptcy. Weller Legal Group and Jay Weller are dedicated to the representation of debtors and the retention and expansion of debtors’ rights in the Bankruptcy Court.
Click through the videos below to learn more about each general bankruptcy topic.
- Claim of the Creditor against the Debtor is disallowed
- Such Claim was Transferred by the Creditor:
- After the filing of the Bankruptcy
- Within 90 days of the filing of the Bankruptcy AND the Debtor was Insolvent
- The Transfer was made less than two years before the filing of the Bankruptcy;
- The Transfer was made to:
- Hinder, delay or defraud any Creditor to which the Debtor was indebted;
- The Debtor received less than reasonably equivalent value for in return for the Transfer
- To or for the Benefit of a Creditor
- For or on account of an antecedent debt owed by the Debtor before such transfer was made
- Made while the Debtor was Insolvent
- Made on or within:
- 90 days before the filing of the Bankruptcy Petition OR
- One Year before the filing of the Bankruptcy Petition, if such Creditor at the time of transfer was an Insider.
- Two years after the Entry of the Order for Relief
- One year after the Appointment of the first Bankruptcy Trustee
- Creditor that extends Credit to the Debtor at the time of the commencement of the Bankruptcy and could have obtained a Judicial Lien on the subject property;
- Creditor that extends Credit to the Debtor at the time of the commencement of the Bankruptcy and obtains with respect to such Credit, an Execution against the Debtor that is returned unsatisfied;
- The delay was reasonable;
- The length of the delay; and
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Although the filing of a Bankruptcy usually implements the Automatic Stay, which prevents most legal actions against the Debtor from commencing or continuing, the Bankruptcy Code does contain numerous exceptions to the Automatic Stay. Under Section 362(b) of the Bankruptcy Code, the Automatic Stay does not stop Civil Actions for the commencement of Paternity, or for the establishment or modification of an Order for domestic support obligations, or Court Proceedings regarding child custody or visitation. Section 362(b)(2)(A) of the Bankruptcy Code further states that the Automatic Stay does not prevent actions or the Dissolution of Marriage, unless such Actions pertain to the Division of Assets pursuant to the Dissolution of Marriage or Divorce. Further, the filing of the Bankruptcy does not stop actions regarding Domestic Violence. The filing of the Bankruptcy does not stop the withholding, suspension or restriction of a drivers license, a professional license, or an occupational license, or a recreational license. There are numerous other exceptions to the Automatic Stay in Bankruptcy Proceedings. Please see our link to Section 362 of the Bankruptcy Code.ASK THE BANKRUPTCY ATTORNEY
Section 362 of the Bankruptcy Code defines what is an Automatic Stay in Bankruptcy Proceedings. The Bankruptcy Code states in Section 362(a) that the Automatic Stay operates to stop any Entities or Creditors of the Debtor from:- The commencement or continuation of any judicial, administrative, or other action against the Debtor that was or could have been commenced before the filing of the Bankruptcy;
- The enforcement against the Debtor or the property of the Estate, of a Judgement entered before the filing or commencement of the Bankruptcy Case;
- Any conduct to obtain possession of the property of the Estate or exercise control over property of the Estate;
- Any conduct to perfect, create or enforce a Lien against the property of the Debtor that commenced or could have commenced before the filing of the Bankruptcy;
- Any conduct to collect, assess or recover a claim against the Debtor before the filing of the Bankruptcy
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The Bankruptcy Code states in Section 350(b) that the Bankruptcy Case may be Reopened to Administer Assets, OR to accord relief to the Debtor, OR for other cause.ASK THE BANKRUPTCY ATTORNEY
Section 350 of the Bankruptcy Code states in 352(a) that after the estate is fully administered and the Bankruptcy Judge has Discharged the Bankruptcy Trustee, the Bankruptcy Court will Close the Bankruptcy Case.ASK THE BANKRUPTCY ATTORNEY
Section 350 of the Bankruptcy Code states in 352(a) that after the estate is fully administered and the Bankruptcy Judge has Discharged the Bankruptcy Trustee, the Bankruptcy Court will Close the Bankruptcy Case.WHAT IS THE EFFECT OF A DISMISSAL IN BANKRUPTCY?
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Section 349 of the Bankruptcy Code states that the Effect of a Dismissal does not prevent the Debtor from receiving a Discharge, unless the Bankruptcy Judge orders otherwise. Section 349(3) of the Bankruptcy Code states that the Dismissal Vests any property back to the entity under which such property was Vested before the filing of the Bankruptcy Case. In a Chapter 7 Bankruptcy or Chapter 13 Bankruptcy, the property usually Vests to the Bankruptcy Estate, under the direction of the Bankruptcy Trustee. Upon the Dismissal of a Chapter 7 Bankruptcy or Chapter 13 Bankruptcy, the property Vests usually back to the Debtor. This means that the Creditors of the Debtor may then seek to Attach or Garnish the property of the Debtor, by again, pursuing the Debtor. Furthermore, under Section 349(b) of the Bankruptcy Code, the Dismissal of the Bankruptcy also operates to Vacate any Liens avoided in the Bankruptcy. Another way to state this is the Dismissal of the Bankruptcy Reinstates any prior Liens. A Dismissal of a Bankruptcy also vacates any order, judgment, or transfer ordered pursuant to the Bankruptcy Proceedings under Section 349(2) of the Bankruptcy Code.ASK THE BANKRUPTCY ATTORNEY
Section 348 of the Bankruptcy Code defines what is the effect of Conversion in Bankruptcy Proceedings. Section 348 of the Bankruptcy Code states that a Conversion of a case from under one Chapter to another Chapter in Bankruptcy is an Order for Relief under the Chapter in which the Case is Converted.1 Furthermore, Conversion of a Case in Bankruptcy Proceedings terminates the services of the Trustee in the prior Case or Chapter in Bankruptcy. See Section 348(e) of the Bankruptcy Code. Section 348(2) of the Bankruptcy Code states that if the Debtor Converts Bankruptcy Case from Chapter 13 to another form of Bankruptcy Chapter and does so in Bad Faith, then the property of the Estate in the Converted Bankruptcy Case will be determined as of the date of the Conversion.ASK THE BANKRUPTCY ATTORNEY
A 341 Meeting is so called because 341 refers to Section 341 of the Bankruptcy Code which governs the Meeting of Creditors. A 341 Meeting of Creditor Meeting or Hearing in Bankruptcy is a Hearing, usually before the Bankruptcy Trustee assigned to the Bankruptcy Case, in which the Debtor appears, usually with his or her Bankruptcy Attorney or Lawyer, and answers relevant questions that the Bankruptcy Trustee and Creditors, may have in his or her Bankruptcy Case. Typically, the questions of the Bankruptcy Trustee or Creditors revolve around what Assets the Debtor possesses, what income the Debtor may have, whether the Debtor transferred property before or during the Bankruptcy, and what are his intentions regarding certain Debts in the Bankruptcy. In a Chapter 7 Bankruptcy or a Chapter 13 Bankruptcy, the 341 Meeting of Creditors is about 15-45 minutes. For most of our Clients, represented by our Bankruptcy Attorney, the Creditors do not appear at the 341 Creditor Meeting. Instead, Creditors will contact the Bankruptcy Attorney directly, as such Attorney is acting on behalf of the Debtor. The 341 Meeting in Bankruptcy, is typically recorded by the Bankruptcy Trustee, and the transcripts from any 341 Hearing is available upon demand, and a reasonable price, to any interested parties. If the Bankruptcy Trustee or the Creditors ask any questions that are unlawful or not relevant to the Debtor’s Bankruptcy, the Debtor or his Bankruptcy Attorney, may tender an Objection to such questions. It is a requirement of all Debtors who file Bankruptcy, to attend a 341 Meeting of Creditors. If the Debtor does not appear at the 341 Meeting, the Bankruptcy Proceedings may be Dismissed by the Bankruptcy Judge, and other possible Sanctions could result.ASK THE BANKRUPTCY ATTORNEY
The Bankruptcy Trustee may be removed for cause, by the Bankruptcy Court, after notice and a hearing. The Bankruptcy Court does not have the power according to Section 324 of the Bankruptcy Code to remove the US Trustee. The Bankruptcy Code states further in Section 324(b) that whenever the Bankruptcy Court Judge removes a Bankruptcy Trustee, the Bankruptcy Trustee is also removed in all other Bankruptcy Cases in which the Bankruptcy Trustee is serving, unless the Bankruptcy Judge order otherwise.ASK THE BANKRUPTCY ATTORNEY
Section 323 of the Bankruptcy Code defines what is the role and capacity of the Trustee in Bankruptcy. Section 323 states in 323(a) that the Trustee is the representative of the Bankruptcy Estate. Section 323(b) of the Bankruptcy Code states that the Trustee has the capacity to sue and be sued.The Trustee, acting properly in Bankruptcy Proceedings has the primary duty to protect the Bankruptcy Estate. The reason the Trustee is called the Trustee is because, as in English Common Law, his duty is primarily to protect the Assets of the Estate.
The Trustee in Bankruptcy also has the capacity to sue and to be sued. In what manner and under what circumstances may the Bankruptcy Trustee be sued is an interesting subject for a Bankruptcy Attorney or anyone studying Bankruptcy Law. There are numerous cases in which the Bankruptcy Trustee may be sued for bad behavior. Jay Weller, a Bankruptcy Attorney at Weller Legal Group has written a blog on the subject of when a Bankruptcy Trustee may be sued, and such blog is posted on this website, www.jayweller.com.
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The Bankruptcy Code states in 11 USC Section 307 that the United States Trustee can raise and appear to be heard on any issue in any case or proceeding under this title but may not file a plan.ASK THE BANKRUPTCY ATTORNEY
The Bankruptcy Code states in 11 USC Section 301 that a voluntary case is commenced upon the filing with the Bankruptcy Court of a petition under such chapter by an entity that may be a Debtor under such chapter. When a case is Commenced in Bankruptcy Law is important because the commencement of the case signifies that Creditors are stopped, at least temporarily, from taking any measures to collect whatever Debt they claim you owe, as a Debtor. This device that prevents Creditors from collecting, harassing or forms of Creditor action is referred to as the Automatic Stay. There are exceptions to the general rule that the commencement of the Bankruptcy and the implementation of the Automatic Stay operate to stop Creditor action. The Bankruptcy Attorney can advise you as to the exceptions.WHAT IS THE DEFINITION OF A DEBTOR UNDER BANKRUPTCY LAW?
WHO MAY BE A DEBTOR UNDER BANKRUPTCY LAW?
Who may be a Debtor is an important concept in Bankruptcy Law. 11 USC Section 109 of the Bankruptcy Code defines who may be a Debtor in Bankruptcy Court. Section 109(a) of the Bankruptcy Code defines a Debtor as:- Notwithstanding any other provision of this section, only a person that resides or has a domicile, a place of business, or property in the United States, or a municipality, may be a debtor under this title.
In a Chapter 9 Bankruptcy, the Debtor must be a municipality. In a Chapter 13 Bankruptcy, the debtor must be an individual. A corporation cannot file Chapter 13 Bankruptcy.
In a Chapter 12 Bankruptcy, the Debtor must be a Family Farmer of Fisherman. In a Chapter 11 Bankruptcy, the Debtor can be an Individual, or a Corporation.
Sometimes, however, if you are a small businessman with a Corporation can file Chapter 13 Bankruptcy, but you would need to consult with the Bankruptcy Attorney to see whether you qualify to file Chapter 13.
WHY IS THE CONCEPT OF MEDIAN FAMILY INCOME IMPORTANT IN BANKRUPTCY LAW?
Bankruptcy Code Section 101(39A) defines Median Family Income as: For any year-- the median family income both calculated and reported by the Bureau of Census in the then most recent year; and
- if not so calculated and reported in the current year, adjusted annually after such most recent year until the next year in which median family income is both calculated and reported by the Bureau of the Census, to reflect the percentage change in the Consumer Price Index for All Urban Consumers during the period of years occurring after such most recent year and before such current year.
If you are a Debtor filing Bankruptcy, if your income significantly exceeds the Median Income as defined in the Bankruptcy Code as Median Family Income, then the Debtor is presumed to have disposable income sufficient to fund a Chapter 13 Bankruptcy. The Debtor most likely will not be eligible to file a Chapter 7 Bankruptcy because his Median Family Income, as determined by family size, significantly exceeds the figures as determined by the Census and the Consumer Price Index.
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WHY IS A JUDICIAL LIEN IMPORTANT IN BANKRUPTCY LAW?
The Bankruptcy Code defines a Judicial Lien in 11 USC 101(36). A Judicial Lien in Bankruptcy Law is: (36) The term judicial lien means lien obtained by judgment, levy, sequestration, or other legal or equitable process of proceeding. A lien is defined in the Bankruptcy Code in Section 11 USC 101(37) as a charge against or interest in property to secure payment of a debt or performance of an obligation.Certain Judicial Liens can be removed from property when a Debtor files Bankruptcy. For example, if in the State of Florida, Citibank Credit Cards acquires a Judicial Lien against a Debtor’s Homestead, the Debtor can have the removed from his property, through a Chapter 7 Bankruptcy, as one means. There may be other methods of removing the Lien. In the State of Florida, the Homestead is supposed to be protected from seizure or encumbrance by the type of Judicial Lienholder presented by a Citibank Credit Cards.
However, if a Debtor files Bankruptcy, and has among his Debts, a Debt owed to a Judicial Lienholder on his Homestead, he is advised to have the Lien properly removed from his Homestead, through the Chapter 7 or Chapter 13 Bankruptcy process. Simply filing a Bankruptcy in the State of Florida will not remove the Lien holder’s Lien from the Homestead. The Debtor or Bankruptcy Attorney, must take affirmative action to have the Lien removed from the Homestead.
It is advisable that the Debtor or Bankruptcy Attorney representing the Debtor research to determine whether the Debtor has a Judicial Lien. This can be accomplished through either a computer record search of the appropriate County in which the Debtor either Resides or holds property, or by actually going to the appropriate County Courthouse to investigate whether the Debtor has any Judgments or Judicial Liens.
Sometimes, a Debtor will file Bankruptcy and not know he has a Judicial Lien on his Homestead. The Debtor may receive his Discharge in Bankruptcy, and after his Discharge, seek to Refinance his Homestead. If the Judicial Lien was not properly removed from the Homestead, then he may be prevented from the Refinance of his Homestead.
In such a case it may then be necessary to Reopen the Bankruptcy, in order that the Debtor or Bankruptcy Attorney may have the Judicial Lien removed from the Homestead. This is an unfortunate expense of time, money, and aggravation that may be prevented by researching early in the process of filing Bankruptcy, whether there are any Judgments of Liens against the Debtor.
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What is a domestic support obligation, otherwise known as Child Support of Alimony, is important under the Bankruptcy Code for a number of reasons. If an obligation to a former Spouse or a Child is a domestic support obligation, as defined by the Bankruptcy Code, then such obligation is not dischargeable under the Bankruptcy Code.Bankruptcy Code Section 11 USC 101(14A) defines a Domestic Support Obligation as: ….means a debt that accrues before, on, or after the date of the order for relief in a case under this title, including interest that accrues on that debt as provided under applicable non-bankruptcy law notwithstanding any other provision of this title, that is-
- owed to or recoverable by-
- a spouse, former spouse, or child of the debtor or such child’s parent, legal guardian, or responsible relative; or
- a governmental unit;
- in the nature of alimony, maintenance, or support (including assistance provided by a governmental unit) of such spouse, former spouse, or child of the debtor or such child’s parent, without regard to whether such debt is expressly so designated;
- established or subject to establishment before, on, or after the date of the order for relief in a case under this title, by reason of applicable provision of-
- a separation agreement, divorce decree, or property settlement agreement;
- (ii) an order of a court of record;
- (iii) a determination made in accordance with applicable non bankruptcy law by a governmental unit;
- not assigned to a nongovernmental entity, unless that obligation is assigned voluntarily by the spouse, former spouse, child of the debtor, or such child’s parent, legal guardian, or a responsible relative for the purpose of collecting the debt
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Whether a Person is a Disinterested Person is important under the Bankruptcy Code. A Disinterested Person is necessary, for example, in appointments to the employ of a Bankruptcy Trustee. Bankruptcy Code Section 101(14) states: The term disinterested person means a person:- is not a creditor, an equity security holder, or an insider;
- is not and was not, within 2 years before the date of the filing of the petition, a director, officer, or employee of the debtor;
- does not have an equity interest materially adverse to the interest of the estate or of any class of creditors or equity security holders, by reason of any direct or indirect relationship to, connection with, or interest in, the debtor, or for any other reason
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What is the principle residence of the Debtor is important in Bankruptcy Law. The principle residence of the Debtor is particularly important in determining in what Bankruptcy Court and in what District the Debtor may file Bankruptcy and in determining what Exemptions the Debtor may apply in his or her Bankruptcy. Bankruptcy Code Section 101(13A) defines the Debtor’s Principle Residence as:- means a residential structure, including incidental property, without regard to whether that structure is attached to real property; and
- includes an individual condominium or cooperative unit, a mobile home or manufactured home, or trailer.
Bankruptcy Code Section 101(10A) defines Current Monthly Income as:
The term current monthly income means the average monthly income from all sources that the debtor receives (or in a joint case the debtor and the debtor’s spouse receive) without regard to whether such income is taxable income, derived during the 6-month period ending on-
- the last day of the calendar month immediately preceding the date of the commencement of the case if the debtor files the schedule of current income required by section 521(a)(1)(B)(ii);
- the date on which current income is determined by the court for purposes of this title if the debtor does not file the schedule of current income required by section 521(a)(1)(B)(ii)
-any amount paid by an entity other than the debtor (or in a joint case the debtor and the debtor’s spouse), on a regular basis for the household expenses of the debtor or the debtor’s dependents (and in a joint case the debtor’s spouse if not otherwise a dependent)….
However, according to the same section of the Bankruptcy Code, Current Monthly Income does not include:
…..benefits received under the Social Security Act, payments to victims of war crimes or crimes against humanity on account of their status as victims of such crimes, and payments to victims of international terrorism (as defined in section 2331 of title 18) or domestic terrorism (as defined in section 2331 of title 18) on account of their status as victims of such terrorism.