General Bankruptcy

File for a bankruptcy in Clearwater Florida

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.

Section 558 of the Bankruptcy Code is titled, Defenses Of The Estate. According to this Section of the Bankruptcy Code, the Bankruptcy Estate has available any Defense that is available to the Debtor that is available to any Entity other than the Bankruptcy Estate, including Statutes of Limitation, Statutes of Fraud, Usury and other Defenses. Even if the Debtor in Bankruptcy waives such Defenses, the Bankruptcy Estate can still bring such Defenses.
WHAT DOES IT MEAN IF THE BANKRUPTCY TRUSTEE ABANDONS PROPERTY OF THE ESTATE? Section 554 of the Bankruptcy Code is titled, Abandonment Of The Property Of The Estate. Bankruptcy Code Section 554 states that after Notice and a Hearing, the Bankruptcy Trustee may Abandon any Property of the Bankruptcy Estate that is Burdensome to the Bankruptcy Estate or is of Inconsequential Value and Benefit to the Estate. For example, a Bankruptcy Debtor may have an Asset that is not protection by an Exemption in Bankruptcy, but the costs to Administer that Asset are prohibitively high, and will not render a significant distribution to the Unsecured Creditors. The Bankruptcy Trustee may elect, and should elect, in such a circumstance, to Abandon that Asset, and not seek its Liquidation
HOW DOES THE BANKRUPTCY CODE TREAT THE CONCEPT OF SETOFF?Section 553 of the Bankruptcy Code is titled, Setoff. A Creditor generally has a Right to Setoff of any Debt owed to that Creditor by the Debtor.   For example, if you have a Credit Card or Automobile Loan with Wells Fargo Bank, and a bank account with Wells Fargo also, and you do not pay either Obligation timely, then Wells Fargo can remove such monies from your bank account to pay the Credit Card or Automobile Loan.The Bankruptcy Code, in Section 553, states that the Creditor retains his Right to Setoff. However, the Right to Setoff is disallowed when the:
  1. Claim of the Creditor against the Debtor is disallowed
  2. Such Claim was Transferred by the Creditor:
  3. After the filing of the Bankruptcy
OR
  1. Within 90 days of the filing of the Bankruptcy AND the Debtor was Insolvent
For purposes of this Section of the Bankruptcy Code, the Debtor is Presumed to be Insolvent.
Section 548 of the Bankruptcy Code is titled, Fraudulent Transfers And Obligations. The Bankruptcy Code states that the Bankruptcy Trustee can Avoid any Transfer by the Debtor of an Interest in Property or an Obligation if:
  1. The Transfer was made less than two years before the filing of the Bankruptcy;
  2. The Transfer was made to:
  3. Hinder, delay or defraud any Creditor to which the Debtor was indebted;
OR
  1. The Debtor received less than reasonably equivalent value for in return for the Transfer
ANDThe Debtor was Insolvent at the time of the Transfer or become Insolvent as a result of the Transfer
WHAT ARE THE EFFECTS OF A PREFERENTIAL PAYMENT OR TRANSFER IN BANKRUPTCY LAW?Section 547 of the Bankruptcy Code is titled, Preferences. This Section of the Bankruptcy Code pertains to the Powers of the Bankruptcy Trustee to Avoid certain Transfers by the Bankruptcy Debtor to certain Creditors, before the Debtor filed Bankruptcy.In order for the Bankruptcy Trustee to Avoid the Transfer of an Asset or Property (such as an automobile or money), the Transfer must be:
  1. To or for the Benefit of a Creditor
AND
  1. For or on account of an antecedent debt owed by the Debtor before such transfer was made
AND
  1. Made while the Debtor was Insolvent
AND
  1. Made on or within:
  2. 90 days before the filing of the Bankruptcy Petition OR
  3. One Year before the filing of the Bankruptcy Petition, if such Creditor at the time of transfer was an Insider.
 Bankruptcy Code Section 547(c) enumerates the Restrictions on the Bankruptcy Trustee in his or her Avoiding Powers. Under Bankruptcy Code Section 547(f), the Debtor is presumed to be Insolvent on or before the 90 days preceding the filing of the Bankruptcy Petition. Under Section 547(g) of the Bankruptcy Code, the Bankruptcy Trustee has the burden of proving the avoidability of the Transfer and the Creditor has the burden of proving the nonavoidability of the Transfer. The Bankruptcy Trustee also cannot Avoid a Transfer if such Transfer was part of a repayment schedule between the Debtor now in Bankruptcy and an approved nonprofit budget and credit counseling company.
WHAT ARE THE LIMITATIONS ON THE AVOIDING POWERS OF THE BANKRUPTCY TRUSTEE IN BANKRUPTCY PROCEEDINGS?Section 546 of the Bankruptcy Code is titled, Limitations On Avoiding Powers. The Avoiding Powers are Powers given to the Bankruptcy Trustee, and the Bankruptcy Code, as passed by Congress, that allows the Bankruptcy Trustee to Avoid or reverse certain transactions by the Debtor in Bankruptcy and certain Claims or Liens that Creditors of the Bankruptcy Debtor may have.Bankruptcy Code Section 546 places limits on the Avoiding Powers of the Bankruptcy Trustee. The Bankruptcy Trustee must exercise his or her Avoiding Powers the later of:
  1. Two years after the Entry of the Order for Relief
OR
  1. One year after the Appointment of the first Bankruptcy Trustee
OR3. The time the Bankruptcy Case is Closed or Dismissed
Section 542 of the Bankruptcy Code is titled, Trustee As Lien Creditor And As Successor To Certain Creditors And Purchasers.This really refers to the Avoiding Powers that are given to the Bankruptcy Trustee in Bankruptcy Proceedings. Section 544(a) of the Bankruptcy Code states that the Bankruptcy Trustee, by the filing of the Bankruptcy, has the power to Avoid any transfer of property or any obligation incurred by the Debtor in Bankruptcy, that is voidable by a:
  1. 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;
  2. 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;
Bona Fide Purchaser of Real Property, other than Fixtures, from the Debtor
Section 542 of the Bankruptcy Code is titled, Turnover Of Property Of The Estate. This Section of the Bankruptcy Code empowers the Bankruptcy Trustee to Sell, Lease, or Use, any Property of the Bankruptcy Estate that is not Exempt under Section 522 of the Bankruptcy Code, and whatever State Exemptions may apply. The Bankruptcy Code provides that the Debtor in Bankruptcy, or any Custodian of the Property of the Bankruptcy Estate, must delivery or Turnover such property, to the Bankruptcy Trustee. The Bankruptcy Code does state that such property of the Bankruptcy Estate must be delivered to the Bankruptcy Trustee, unless such property is of little or inconsequential value. The Bankruptcy Debtor does have the power of Selection, which means that the Debtor may choose to surrender some of his property to the Bankruptcy Trustee and Select or Elect to retain other property, by protecting such property with an Exemption in Bankruptcy. In situations involving Turnover, this is where a competent and aggressive Bankruptcy Attorney is especially helpful to a Debtor in Bankruptcy. The Bankruptcy Trustee is not the friend of the Debtor, and nor should he or she be. The duty of the Bankruptcy Trustee is to protect and assemble the property of the Bankruptcy Estate, for liquidation and payment of the Creditors. The Bankruptcy Trustee is paid, partly, according to how much of the Debtor’s property he or she is able to take from the Bankruptcy Debtor. The first duty of the Bankruptcy Attorney is to represent the Debtor in Bankruptcy. These are the duties, respectively of the Bankruptcy Trustee and the Bankruptcy Debtor. The parties following their duties will act accordingly. Of course, not all Bankruptcy Trustees and Bankruptcy Debtors follow their duties, but that is the subject of another article.
WHAT IS PROPERTY OF THE BANKRUPTCY ESTATE IN BANKRUPTCY PROCEEDINGS? Section 541 of the Bankruptcy Code is titled, Property of The Estate. The Property of the Estate in Bankruptcy is all encompassing. Bankruptcy Code Section 541(a) states that the commencement of the Bankruptcy, creates an Estate, which includes property wherever it is located and however it is held. This Property, in Bankruptcy, includes all Equitable and Legal Interests of the Debtor in Bankruptcy. This Bankruptcy Estate includes any Community Property that the Debtor that has filed Bankruptcy may have with his Spouse, provided the Spouse does not have complete control over the Asset, to the exclusion of the Spouse, who has commenced Bankruptcy Proceedings. But just because an Asset or Property is Property of the Estate, when a Debtor commences a Bankruptcy, that does not mean that the Bankruptcy Debtor will have that Property taken by the Bankruptcy Trustee. Each Debtor in Bankruptcy is allowed an Exemption. An Exemption, in Bankruptcy matters and in the State Courts of Florida, and most other States, is a protection given to Debtors in which an Asset that they own cannot be taken, garnished or liened, by either the Bankruptcy Trustee or a Creditor. For example, in the State of Florida, there is a Head of Family Exemption, which states that the Head of Family, or Head of Household, cannot have his or her Wages Garnished. There are some Exceptions to that Law, such as when a Debtor Consents to the Garnishment, and how many months of Wages have accrued, for example, in a Bank Account of the Head of Household. Property of the Estate in Bankruptcy, according to Section 541(a)(7) of the Bankruptcy Code, also includes any interest in property that the Debtor acquires after the filing of the Bankruptcy.
WHAT RESTRICTIONS ARE THERE ON DEBT RELIEF AGENCIES IN BANKRUPTCY? A Debt Relief Agency, as it pertains to Bankruptcy Proceedings, is an Agency or Entity that provides services to Debtors who are seeking to file Bankruptcy. Section 526 of the Bankruptcy Code defines the Restrictions on Debt Relief Agencies. The Bankruptcy Code states, mainly, that Debt Relief Agencies may not counsel a Debtor in Bankruptcy, to make any statements in Bankruptcy documents that are misleading or false, misrepresent to any Bankruptcy Debtor the services that are to be provided, or misrepresent to any Debtor in Bankruptcy, the risks and benefits of filing Bankruptcy. The Bankruptcy Debtor cannot Waive such protections, by Contract or otherwise. Section 527 addresses the Disclosures required by Debt Relief Agencies in Bankruptcy Proceedings. The Debt Relief Agency, through the Bankruptcy process, must provide the written notices as required under Section 342 of the Bankruptcy Code, written notice that all information that the Bankruptcy Debtor provides must be complete and truthful, that all the Assets and Liabilities of the Debtor in Bankruptcy must be included in the Bankruptcy documents. The Bankruptcy preparer must also divulge all the Income of the Bankruptcy Debtor. There are other requirements made by the Bankruptcy Code upon the Debt Relief Agency. These are contained in Section 527 of the Bankruptcy Code.
CAN FILING BANKRUPTCY CAUSE ME TO LOSE MY STUDENT LOAN? Section 525(c)(1) of the Bankruptcy Code states that a governmental unit that operates a student grant or student loan program cannot discriminate or deny a student grant or student loan, because the Applicant has filed Bankruptcy. A Student Loan program under the Bankruptcy Code is defined as any program operated under Title IV of the Higher Education Act of 1965, or a similar program offered under State of Local Law.
CAN FILING BANKRUPTCY PREVENT ME FROM RENEWING A LICENSE? CAN FILING BANKRUPTCY PREVENT ME FROM GETTING A PERMIT? CAN FILING BANKRUPTCY PREVENT ME FROM RENEWING A PERMIT? CAN FILING BANKRUPTCY PREVENT ME FROM OBTAINING A FRANCHISE? CAN FILING BANKRUPTCY PREVENT ME FROM RENEWING A FRANCHISE? CAN FILING BANKRUPTCY PREVENT ME FROM OBTAINING EMPLOYMENT FROM THE GOVERNMENT? CAN FILING BANKRUPTCY CAUSE ME TO LOSE EMPLOYMENT FROM THE GOVERNMENT? CAN FILING BANKRUPTCY PREVENT ME FROM OBTAINING EMPLOYMENT FROM A PRIVATE EMPLOYER? CAN FILING BANKRUPTCY CAUSE ME TO LOSE EMPLOYMENT FROM A PRIVATE EMPLOYER? CAN MY EMPLOYER FIRE OR TERMINATE MY EMPLOYMENT IF I FILE BANKRUPTCY? CAN AN EMPLOYER DISCRIMINATE IN HIRING BECAUSE AN APPLICANT FILED BANKRUPTCY? Section 525(a) of the Bankruptcy Code states that a governmental unit cannot deny, revoke, suspend or refuse to renew a license, permit, charter or franchise, or otherwise terminate or discriminate in employment, of a person who has filed Bankruptcy, or received a Discharge in Bankruptcy, SOLELY because the Debtor has filed Bankruptcy. Also, the governmental unit cannot discriminate or deny such allowances, against persons associated with the Debtor who has filed Bankruptcy. In Section 525(b) of the Bankruptcy Code, the Bankruptcy Code extends the restrictions against governmental units, to private employers, and includes the language of SOLELY, as in cannot discriminate SOLELY because the Debtor filed Bankruptcy. The language of Sections 525(a) of the Bankruptcy Code and 525(b) of the Bankruptcy Code clearly indicates that if the employer of governmental unit was to take actions described in these Sections, such entities would not be violating the Bankruptcy Code, if such actions was not solely because of the Bankruptcy. For example, an Employer, such as a bank, could deny employment to an applicant who filed Bankruptcy and has another disqualifying factor.
Section 524 of the Bankruptcy Code defines what is the Effect of a Discharge in Bankruptcy. When a Debtor receives a Discharge in a Chapter 7 Bankruptcy, a Chapter 13 Bankruptcy, or another form of Bankruptcy, that means that the Debtor in Bankruptcy, is now free of any Debts that are Discharged or relieved, through the Bankruptcy. Debts that are not Discharged in the Bankruptcy are still subject to collection by a Creditor of the Debtor. For example, if you have an automobile loan on a car that you surrender through the Bankruptcy, then the automobile loan has a Secured portion and an Unsecured portion to the Debt. If you receive a Discharge in a Bankruptcy, but you have not surrendered the automobile to the Creditor, then the Creditor can still attempt to obtain possession of the automobile. The Bankruptcy Attorney can explain what is the effect of a Discharge in your particular case.
Section 523 of the Bankruptcy Code is titled, Exceptions To Discharge. Many Debts in Bankruptcy are Dischargeable, meaning such Debts can be eliminated by the completion of the Bankruptcy. When the Bankruptcy is completed, the Debtor receives a Bankruptcy Discharge. Most taxes are Dischargeable in Bankruptcy provided they meet the criteria listed in Section 523 of the Bankruptcy Code. The Bankruptcy Code states that some Taxes may be Discharged provided the Debtor filed the Taxes at least two years ago (plus any Extensions), that the Taxes are over three years old, the Taxpayer did not file a fraudulent return, and there are no tax liens applied by the Taxing Entity. There are other Rules that related to the Dischargeability of Taxes in Bankruptcy, including when the Taxes were assessed and whether and when an Offer In Compromise was negotiated by the Taxpayer and the Taxing Entity. Some taxes are never Discharged in Bankruptcy, such as Withholding Taxes that the Employer, is supposed to pay on his Employee’s behalf. The Bankruptcy Attorney can explain what varieties of Taxes are Discharged in Bankruptcy, and how the Bankruptcy Laws apply to your particular situation. Section 523(a)(2) of the Bankruptcy Code states that money, property, services, or attainment of credit based upon false pretenses or false representation, or fraud, are an Exception To Discharge in Bankruptcy. Under Section 523(a)(2)(C) of the Bankruptcy Code, if a Debtor aggregates more than $600 in Debt in the purchase of Luxury Goods, and then files Bankruptcy within 90 days of acquiring such goods or Debt, such Debt is presumed to be Non Dischargeable in Bankruptcy. The concept of Presumed or Presumption is important in Bankruptcy Law, because the Debtor in Bankruptcy who acquires such goods within the 90 day time-frame is presumed to have acquired such goods fraudulently for Bankruptcy purposes, and must rebut the Presumption, in order to Discharge such Debt in Bankruptcy. This is generally a difficult hurdle to overcome. Under Section 523(a)(2)(C)(II) of the Bankruptcy Code, a Debtor that charges more than $875 in Cash Advances and files Bankruptcy within 70 days of such charges, must overcome the Presumption that such Debts are Non Dischargeable in Bankruptcy. Bankruptcy Code Section 523(a)(4) states that any Debt that was acquired through fraud or defalcation while acting in a Fiduciary Capacity, or though Embezzlement or Larceny, are Not Dischargeable in Bankruptcy. Bankruptcy Code Section 523(a)(6) states that Domestic Support Obligations are Not Discharged in Bankruptcy. This means that a Debtor cannot generally Discharge an obligation for Alimony or Child Support through Bankruptcy Proceedings. Bankruptcy Code Section 523(a)(6) states that Damages relating to the Willful and Malicious Injury by the Debtor to another person or Entity or the property of another, is not Dischargeable in Bankruptcy. Generally, Student Loans cannot be Discharged in Bankruptcy. However, the Debtor in Bankruptcy may successfully Discharge his Student Loan provided he can prove the existence of the Student Loan creates an Undue Burden, or that the Student Loan is not funded even in part by a Governmental Unit or Non Profit Entity, or that the Student did not receive an “Educational Benefit”. Understandably, there are many cases in the Bankruptcy Courts that addressed the issue of Student Loans and when such Loans can be Discharged in Bankruptcy. The Author wrote numerous Blog Articles that are posted on this website, that address the question of Student Loans and Dischargeability in Bankruptcy. Bankruptcy Code Section 523(a)(9) states that Damages arising from the death or personal injury caused by the Debtor’s operation of a motor vehicle, airplane, or other vessel, are Not Dischargeable in Bankruptcy, if the operator was intoxicated from the use of Drugs, Alcohol, or Other Substances. There are other Exceptions to Discharge in Bankruptcy that related to Marital Settlement Agreements, Monies owed to Condominium Associations after the filing of the Bankruptcy, and other more obscure Exceptions to Discharge in Bankruptcy. The Bankruptcy Attorney can explain the various Exceptions To Discharge under Section 523 of the Bankruptcy Code, and how such Exceptions apply to your particular situation. A Bankruptcy Attorney could expend his entire career, simply learning and mastering the intricacies of Section 523 of the Bankruptcy Code.
WHAT ARE BANKRUPTCY EXEMPTIONS? WHY ARE EXEMPTIONS IMPORTANT IN BANKRUPTCY? Section 522 of the Bankruptcy Code is titled Exemptions. Congress and the Legislatures of most States have determined that a Debtor either in Bankruptcy, or outside of Bankruptcy, should be protected from having all of his property seized to satisfy a Creditor. The Bankruptcy Code, in Section 522, enumerates the Exemptions available to Debtors in Bankruptcy, where the Bankruptcy Court is bound by the Federal Exemptions. Some States have their own State Exemptions, if such State elects to apply their own State Exemptions, then the Bankruptcy Court in which State it sits, must apply the State Exemptions in determining what Assets of the Debtor in Bankruptcy, are Exempt. Other States have elected to use the Federal Exemptions, in which case the Debtor in Bankruptcy must use those Exemptions, when filing Bankruptcy. However, the Debtor in Bankruptcy can use the Florida State Exemptions in Bankruptcy, and can also use the Federal Exemptions, provided that the Federal Exemption is not addressed or conflicts with one of the Florida State Exemptions. The State of Florida has elected that the Florida State Exemptions are to be applied in Florida Courts and in the Bankruptcy Courts, within the Jurisdiction of the State of Florida. The Florida Exemptions are considered to be, of all the State Exemptions, some of the most advantageous to the Debtor. Please read the Blog available on this website, where Mr. Weller discusses the numerous Florida State Exemptions, including the Homestead Exemption, The Head Of Family Exemption, Exemptions For Disability Benefits, Life Insurance Proceeds, Alimony And Child Support, Workers Compensation, Veterans Benefits, Teachers Retirement Benefits, Police Pensions, Firefighter Pensions, Florida Retirement System Benefits, IRAs, Roths, and other ERISA Qualified Retirement Accounts, and how those Exemptions are applied in Bankruptcy Proceedings.
Section 521 of the Bankruptcy Code defines the Debtor’s Duties in Bankruptcy. Section 521 of the Bankruptcy Code is one of the more prominent changes to the Bankruptcy Code that Congress made in 2005. The 2005 Bankruptcy Code changes brought much greater punishments and responsibilities upon the Debtor and expanded the powers of the Creditors and the Banks. With a strong Orwellian twist, Congress labeled their 2005 Bankruptcy Legislation, the Bankruptcy Abuse Prevention And Consumer Protection Act (BACPA). As an American Citizen, you, the Debtor, still have many Rights and Protections in Bankruptcy Proceedings. However, it is advisable to use the Services of a competent Bankruptcy Attorney, to navigate the many legal intricacies of the Bankruptcy process. Under Section 521(a) of the Bankruptcy Code, the Debtor in Bankruptcy, must file a List Of Creditors, and unless the Bankruptcy Court directs otherwise, a Schedule Of Assets and Liabilities, a Schedule Of the Bankruptcy Debtor’s Financial Affairs. Furthermore, the Debtor in Bankruptcy must reveal in the Documents, the Bankruptcy Attorney or Petition Preparer who prepared the Bankruptcy Documents, Copies of Pay Advices or Pay Check Stubs, or other forms of Evidence, showing the Income of the Debtor in Bankruptcy. The Bankruptcy Debtor must usually provide in the Middle District of Florida, the last two years Tax Returns, and in all Jurisdictions, many other Documents in the Bankruptcy. The Bankruptcy Code, as modified in 2005, created many new Duties and burdens on the Debtor in Bankruptcy. Please call and speak with our Bankruptcy Attorneys, who are fully aware of the requirements of Section 521 of the Bankruptcy Code.
ARE DIFFERENT CREDITORS TREATED OR PAID DIFFERENTLY IN BANKRUPTCY PROCEEDINGS? WHAT DOES IT MEAN TO BE A PRIORITY CREDITOR IN BANKRUPTCY? ARE CHILD SUPPORT AND ALIMONY PRIORITY CLAIMS IN BANKRUPTCY? Section 507 of the Bankruptcy Code is called Priorities. Bankruptcy favors some Creditors over others, and some types of Creditors are paid before other types of Creditors in Bankruptcy Proceedings where there are Assets of the Bankruptcy Estate. Assets for the Bankruptcy Estate in a Chapter 7 Bankruptcy are usually where there are Non Exempt Assets that the Chapter 7 Bankruptcy Trustee can liquidate or sell, and distribute among the Creditors in the Bankruptcy. In a Chapter 13 Bankruptcy, the Assets of the Estate are generally the Wages or Earnings of the Bankruptcy Debtor. Section 507 of the Bankruptcy Code states that Claims are to be paid in a certain order. The first Claims to be paid in Bankruptcy are called Priority Claims. These types of Claims must always be paid first in the Bankruptcy, and they must be included in the Bankruptcy. The first Priority claim named in Section 507(a)(1)(A) are the Allowed Unsecured Claims for Domestic Support. These generally include Child Support and Alimony. Domestic Support, as defined in the Bankruptcy Code, includes monies owed to the Child, the Guardian, or even the State, provided the State provided Welfare Benefits to the Spouse or Child, of the Non Supporting Parent. General Unsecured Creditors, such as Medical Bills or Credit Cards are generally given lower priority in Bankruptcy Proceedings. Claims of Creditors, or monies that the Creditors claim they are owed by the Debtor in Bankruptcy Proceedings, are paid according to their priority, as defined by Section 507 of the Bankruptcy Code.
Generally, Bankruptcy Proof Of Claims that are filed late, or after the Bankruptcy Claims Bar Date, are to be deemed as Disallowed, if such Objection is made to the Bankruptcy Claim, by either the Debtor or Bankruptcy Trustee. However, a Creditor may have such Bankruptcy Proof Of Claim Allowed by the Bankruptcy Judge if such Creditor can prove Excusable Neglect.Excusable Neglect in Bankruptcy Proceedings, the Bankruptcy Judge must examine whether:
  • The delay was reasonable;
  • The length of the delay; and
The Impact of the delay on the Bankruptcy Proceedings.
If a Creditor in Bankruptcy Proceedings, files a Bankruptcy Proof Of Claim late, a Party In Interest, such as the Debtor or Bankruptcy Trustee, can Object to the late Bankruptcy Claim, and such Claim can be Disallowed by the Bankruptcy Judge. This means that the Creditor, or entity filing the Claim, may not be entitled to any distributions via the Bankruptcy Proceedings.
In Bankruptcy Proceedings, most Creditors must file the Bankruptcy Proof Of Claim within 90 days after the consummation of the Section 341 Meeting Of Creditors. This Rule is true in Chapter 7 Bankruptcy, Chapter 12 Bankruptcy and Chapter 13 Bankruptcy. Governmental Units, such as the Internal Revenue Service, are afforded 180 days from the consummation of the Bankruptcy Meeting Of Creditors, to file a Bankruptcy Proof Of Claim.
Proof Of Claims are important in Bankruptcy for a number of reasons. A Bankruptcy Proof Of Claim determines how much a Creditor can receive in payment from a Bankruptcy Debtor, through the Assets of the Bankruptcy Estate. In a Chapter 7 Bankruptcy, the Assets of the Bankruptcy Estate are generally non Exempt Assets that the Bankruptcy Trustee can liquidate and distribute to Creditors. In a Chapter 13 Bankruptcy, the Assets of the Bankruptcy Estates are usually the Wages of the Debtor in the Chapter 13 Bankruptcy. If a Creditor files his Bankruptcy Proof Of Claim late, or improperly files or prepares the Bankruptcy Proof Of Claim, such Claim can be Disallowed in the Bankruptcy, and the Creditor may not receive any monies. Also, if a Creditor files a Bankruptcy Proof Of Claim then he or it is submitting to the Jurisdiction of the Bankruptcy Court, and may waive its right to a Jury Trial.
A Proof Of Claim in Bankruptcy Proceedings is a Document filed as to register a Claim against Assets of a Bankruptcy Estate. The Proof Of Claim in Bankruptcy indicates the amount owed the Creditor at the time of the filing of the Bankruptcy. Section 501 of the Bankruptcy Code states who may file Proof Of Claims in Bankruptcy. The Proof Of Claim in Bankruptcy must state what type of Debt the Debtor owes, either Priority or Secured, or Unsecured Non Priority, by default. The Bankruptcy Proof Of Claim must be signed by the Creditor or its Agent. Attached to the Bankruptcy Proof Of Claim must be copies of Documents and evidence showing a perfected security interest. Any Bankruptcy Proof Of Claim that is timely filed are allowed, unless a Party In Interest Objects through the Bankruptcy Court or Proceedings. A Party In Interest can be the Bankruptcy Trustee or the Debtor in the Bankruptcy.
ASK THE BANKRUPTCY LAWYER Section 366 of the Bankruptcy Code addresses Utility Service and Utility Services. Section 366 of the Bankruptcy Code states that with a few exceptions a Utility cannot refuse, discontinue services or discriminate against, the Trustee or the Debtor solely because the Debtor commenced a Bankruptcy. Furthermore, under the same Section of the Bankruptcy Code, a Utility cannot discontinue service because a debt owed by the Debtor in the Bankruptcy that was delivered before the commencement of the Bankruptcy was not paid on its due date. Section 366(b) of the Bankruptcy Code contains the first of the Exceptions to the above Laws as stated in 366 of the Bankruptcy Code. Although a Utility cannot discontinue service because the Debtor filed Bankruptcy, if neither the Debtor nor the Trustee tenders Adequate Assurance of payment, in the form of a Deposit or other form of Security, within 20 days after the filing of the Bankruptcy, the Utility can then discontinue, refuse, or otherwise alter, the Utility Service. Adequate Assurance is defined in Section 366(c) of the Bankruptcy Code as a cash deposit, a letter of credit, a certificate of deposit, a surety bond, a prepayment of utility consumption, or another form of Security that is mutually agreed upon by the Utility and the Debtor or Trustee.

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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.

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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:
  1. 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;
  2. The enforcement against the Debtor or the property of the Estate, of a Judgement entered before the filing or commencement of the Bankruptcy Case;
  3. Any conduct to obtain possession of the property of the Estate or exercise control over property of the Estate;
  4. 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;
  5. 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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.
Who may be a Debtor may vary depending upon the Debtor files Chapter 7 Bankruptcy, Chapter 11 Bankruptcy, Chapter 9 Bankruptcy, or Chapter 13 Bankruptcy. In a Chapter 7 Bankruptcy, a Debtor may be a person, provided that person is not a railroad, or a domestic of foreign insurance company or bank.   Under the law of Bankruptcy, a person may be a corporation, and thus a corporation may be a Debtor in a Chapter 7 Bankruptcy, provided that corporation is not a bank or insurance company.
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.
11 USC 101(51) of the Bankruptcy Code defines a Security Interest as: The term security interest means lien created by an agreement.

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.
The reason why the Median Family Income is an important concept in Bankruptcy Law is the calculation of the Median Family Income determines whether a Debtor may file a Chapter 7 Bankruptcy, as opposed to a Chapter 13 Bankruptcy. For reasons unexplained, the Median Family Income figures increase based upon the family size of the Debtor filing Bankruptcy. In the Middle District of Florida, the Median Family Income for a one person family is approximately $40,000, in the year 2015. For a two person family, the Median Family Income is approximately $50,000, and for a four person family, the Median Family Income is about $68,000.
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 legalor 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;
OR
  • (iii) a determination made in accordance with applicable non bankruptcy law by a governmental unit;
AND
  • 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;
AND
  • 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;
AND
  • 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(13) defines what a Debtor is under the Bankruptcy Code. Bankruptcy Code Section 101(13) states: The term “debtor” means person or municipality concerning which a case under this title has been commenced.
When filing Bankruptcy, the Debtor or Debtors’ Current Monthly Income is important in determining whether a Debtor is eligible to file a Chapter 7 Bankruptcy, and is important in determining the Debtor or Debtors’ monthly payment in a Chapter 13 Bankruptcy. The Bankruptcy Attorney and Paralegals at Weller Legal Group will calculate your Current Monthly Income, upon receiving the necessary proofs of income.
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);
OR
  • 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)
Current Monthly Income also, includes according to section 101(10)(B) of the Bankruptcy Code:
-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.
Any Tax Liens that are filed before the filing of the Bankruptcy, survive the Bankruptcy. However, if the Tax Debt is otherwise Dischargeable, the Debtor’s Personal Obligation can be Discharged through the Bankruptcy. The Tax Lien will only be Valid or Enforceable as it applies to the Debtor’s Assets. If the Debtor does not have significant Assets, this is not particularly onerous. For example, if the Debtor only has $500 in Assets, the Debtor could simply pay the Internal Revenue Service or Taxing Authority the $500 to release the Tax Lien. The Bankruptcy will Discharge the Debtor’s personal Obligation as to the Tax. The Internal Revenue Service can Seize or Attach any Property the Debtor owed before the filing of the Bankruptcy. The Tax Lien does not attach to Property that was obtained after the filing of the Bankruptcy. The only exception is when the Debtor obtains Property with Funds or Property he owned before he filed Bankruptcy.

What Is A Tax Lien?

A Tax Lien is defined as when the Internal Revenue Service or Taxing Authority follows certain procedures to obtain a Lien against the Taxpayer’s Property or Assets.

How Are Tax Liens Placed Or Created By The Internal Revenue Service against Real Estate Or Real Property?

In order to create or place a Federal Tax Lien against Real Property or Real Estate, the Internal Revenue Service must first file a Notice of the Federal Tax Lien in the Real Property Records in the County in which the Real Property or Real Estate is located. If the Debtor files Bankruptcy first, the Internal Revenue Service cannot File or Enforce a Valid Tax Lien. Real Property is defined as Land and Improvements to Land.
The Internal Revenue Service may file a Tax Lien against Personal Property by filing Notice in the County in which the Taxpayer Resides on date the Notice was filed. The location of the Personal Property is irrelevant. Whether the Taxpayer or Debtor moves to a different County after the Notice was filed, is also immaterial.
The Ten Year Rule applies when determining the Statute Of Limitations on Federal Taxes and Tax Liens. The Internal Revenue Service cannot collect Federal Taxes 10 years after it Assesses the Tax or places the Tax Lien. Exceptions are when the Internal Revenue Service or Taxing Authority, before the expiration of the 10 years, begins a Lawsuit to collect the Taxes, gets a Court Judgment or Renews the Judgment.
Interest follows the Tax on Federal Tax Debts. If the Tax is Dischargeable in Bankruptcy, the Penalty or Interest is also Dischargeable in Bankruptcy. If the Penalty is Not Dischargeable in Bankruptcy, the Interest is Not Dischargeable In Bankruptcy. An Exception applies when the Events that give rise to the Penalty happened more than 3 years before the Taxpayer or Debtor files Bankruptcy.
Sales Tax is a Tax that is collected by the Seller of a Good or Service, from the Buyer of a Good or Service. Sales Tax is never Dischargeable if the Debtor resides in a State in which such monies are treated as Trust Fund Taxes, as the Seller is mandated to collect from the Buyer the Tax monies and hold such monies in Trust for the Department of Revenue of that particular State.
Employment Taxes are treated differently in Bankruptcy depending on whether such Tax is the Employee portion or the Employer portion. The Employee portion is the Tax which the Employer is mandated to withhold from the Employees Wages, and provide to the Internal Revenue Service. This portion includes both Federal Withholding Tax, Medicare Tax and Social Security Tax. This Tax is categorized, like many State Sales Taxes, as a Trust Fund Tax, as the Employer is mandated to hold such monies in Trust, on behalf of the Employee. Such Tax is never Dischargeable in Bankruptcy. However, the 10 year Statute Of Limitation on collection may prevent the Internal Revenue Service from collecting on such Tax. The Employer portion of Employment Taxes is the amount that the Employer owes directly to the Government, and encompasses the added percentage that the Employer pays in Social Security and Medicare Tax. This Tax may be Discharged in Bankruptcy if the Debtor fulfills the 2 Year Rule and the 3 Year Rule, but there is no requirement that he fulfill the 240 Day Rule.
A debtor filing a Chapter 13 Bankruptcy can sometimes eliminate the second mortgage on his Homestead. In order to eliminate the second mortgage, the fair market value of the Homestead must be less than the balance owed on the first mortgage. We can establish the fair market value through either an appraisal from a certified property appraiser or a statement from the County property tax collector as to the Homestead’s value. This process is called lien stripping because the debtor in Bankruptcy eliminating the second mortgage from the Homestead is compared to someone stripping paint from a house. This process can only be accomplished through a Chapter 13 Bankruptcy, and only can be performed on a Homestead.
Bankruptcy Code Section 523 governs the Exceptions to Discharge, meaning which debts cannot be eliminated by successful completion of a Chapter 7 Bankruptcy. Such debts can be Discharged through a Chapter 13 Bankruptcy if the debtor pays these debts in full through the Chapter 13 plan. Bankruptcy Code Section 523(a)(1) states that a tax or customs duty is not dischargeable unless a number of criteria are met. The tax obligation must be at least three years due (including extensions) and the debtor must have filed his tax return at least two years ago. Secondly, the debtor cannot have made a fraudulent return or attempted to willfully evade such tax. The taxes must have been assessed more than 240 days before the filing of the petition. If the debtor negotiated an offer in compromise, the taxes must have been assessed more than 240 days plus 30 additional days before the Bankruptcy filing. If a stay of proceedings against collection of the tax was initiated, the debtor must wait 240 days plus an additional 90 days. There are other Bankruptcy Laws relating to the Dischargeability of tax debts. Please confer with your Bankruptcy Attorney. Bankruptcy Code Section 523(a)(2) states that money, property or services obtained by fraud or a false representation, are not Dischargeable under the Bankruptcy Code. Consumer debts owed to a single creditor totaling more than $550.00 for luxury goods or services incurred by the debtor within 90 days before filing the Bankruptcy are presumed to be non dischargeable. Luxury goods or services do not include goods or services reasonably necessary for the support of the debtor or his dependants. Also, cash advances totaling more than $825.00 within 70 days before the Bankruptcy filing, are presumed to be non dischargeable. Another exception to Discharge is for fraud while acting in a fiduciary capacity, embezzlement, or larceny. Domestic obligations are not dischargeable in Bankruptcy. Damages resulting from the willful and malicious injury by the debtor of another person or his property, are also not dischargeable in Bankruptcy. Student loans are usually non dischargeable under Section 523(8)(A) of the Bankruptcy Code. However, student loans can be discharged if the debtor can prove “undue hardship”. There is a three part test to prove undue hardship. How to define undue hardship is an area of study in itself. Our office does have a number of clients who were able to Discharge their student loans. Bankruptcy Code Section 523(a)(9) states that a debt incurred for the death or personal injury caused by the debtor’s operation of a motor vehicle, or other vessel, is non dischargeable if the debtor was intoxicated from using alcohol, a drug, or other substance. The Bankruptcy Code and Laws have many other exceptions to Discharge but these are among the more prominent. Even if a debt is not specifically mentioned under the Bankruptcy Code Section 523 as an exception to Discharge, that debt may not be eliminated in Bankruptcy for other reasons.
Adequate protection is a term used in numerous sections of the Bankruptcy Code to describe protections afforded the holders of secured claims. Adequate protection is meant to preserve a secured creditor’s position at the time of the filing of the Bankruptcy. If adequate protection is not provided to a secured creditor, the creditor may take measures to obtain relief from the automatic stay, and retrieve the property in question. For example, an automobile loan is a secured debt, because the loan is secured by the creditor’s lien on the automobile. The creditor is called a secured creditor. An automobile is continually depreciating in value, so a debtor in Bankruptcy must make assurances that the creditor will be reimbursed for this decline in value. Adequate protection in this instance probably would require the debtor to make payments to the creditor that is equivalent to the value of the secured property. If a debtor files a Chapter 13 Bankruptcy, and seeks to pay the true value of an automobile through the Chapter 13 plan, then this amount must be amortized or paid, over a forty eight month period. If the automobile has a value of $10,000, then the debtor will pay approximately $203.00 per month (which is $10,000 divided by 48 months) through the Chapter 13 Bankruptcy, to the secured creditor. The $203.00 that the creditor receives monthly is adequate protection. Adequate protection in a Chapter 7 Bankruptcy usually involves making the full monthly automobile payment. The Bankruptcy Code does not specifically define adequate protection, however, Section 361 addresses its treatment in Bankruptcy.
Bankruptcy Code Section 365(a) states the debtor may assume or reject any executory contract or unexpired lease. This rule applies to an apartment lease, an automobile lease, or any other variety of lease. The debtor must either continue paying the lease according to its terms or reject the lease, or surrender the object of the lease. If the debtor is behind on the lease, he must promptly cure such default. This means he must bring the lease current according to the terms of the lease.
Upon the filing of a Bankruptcy, a stay arises which usually prohibits all debt collection efforts against the debtor or property of his Bankruptcy Estate. The automatic stay does not stop the collection of post petition debts against the debtor. The Bankruptcy Court does not usually have to sign an Order to enact the automatic stay. The mere filing of the Bankruptcy petition with the clerk is enough to create the automatic stay. There are some exceptions to this rule, in particular, Debtors who file successive Chapter 13 Bankruptcies. Section 362 of the Bankruptcy Code governs the automatic stay. Bankruptcy Code Section 362(a) states that the automatic stay stops most legal actions, brought or could have been brought, before the filing of the Bankruptcy petition. The automatic stay also stops the enforcement of a Judgment against the debtor, any act to obtain property of the Debtor, any act to perfect or enforce a lien, any right to setoff against the debtor, and any effort to collect a tax liability against the debtor. Bankruptcy Code Section 362(b) contains the exceptions to the automatic stay. The automatic stay does not stop a criminal action against a debtor, nor does it end an action for the establishment of paternity, for the establishment of domestic support obligations, or divorce or domestic violence proceedings. There are many other exceptions to the automatic stay, but these are the more common exceptions contained in the Bankruptcy Code.
A Conversion is where debtor converts or changes his Chapter 13 Bankruptcy into a Chapter 7 Bankruptcy. Bankruptcy Code Section 1307(a) states that the debtor may convert a Chapter 13 Bankruptcy to a case under Chapter 7 Bankruptcy at any time. Bankruptcy Code Section 1307(b) also states that the debtor may Dismiss his Chapter 13 Bankruptcy at any time. Any waiver of the debtor’s right to Dismiss is unenforceable. Section 1307(c) of the Bankruptcy Code permits a party in interest, other than the debtor, to convert or Dismiss the Chapter 13 Bankruptcy into a Chapter 7 Bankruptcy. A party in interest can be the United States Trustee, the Bankruptcy Trustee, or a creditor. A Chapter 13 Bankruptcy can be converted or dismissed due to many factors, including unreasonable delay by the debtor that is prejudicial to creditors, nonpayment of any required fees or charges, failure to timely file a Chapter 13 Bankruptcy plan, revocation of an order of confirmation, failure to pay a domestic support obligation after the Bankruptcy filing, and numerous other reasons.
Bankruptcy Code Section 548 governs fraudulent transfers and obligations. Section 548(a)(1) states that the Bankruptcy Trustee may avoid any transfer of property made by the debtor within two (2) years before the filing of the Bankruptcy, if such transfer was made to an Insider, and was made to hinder or delay a creditor or in which the debtor received less than fair value in return from such transfer. For example, if a debtor sold his automobile worth $5,000.00 to his brother for $1.00 and then within two years, filed Bankruptcy, this transfer would be considered a fraudulent transfer under the Bankruptcy Code. If the same debtor sold the automobile for $5,000.00, then the transfer would not be deemed to be a fraudulent transfer, because he sold the property for fair value.
The Bankruptcy Code prescribes the order in which different creditors are paid. In a Chapter 7 Bankruptcy in which the Bankruptcy Trustee liquidates some or all of the assets of a debtor, the Chapter 7 Bankruptcy Trustee will pay some creditors before others. In a Chapter 13 Bankruptcy, in which the debtor makes a monthly payment, the Bankruptcy Trustee will also pay some creditors before others. Section 507 and Section 726 of the Bankruptcy Code governs what order the creditors are paid. Bankruptcy Code Section 726 states that the creditors described in Section 507 must be paid first. The creditors described in Section 507 are referred to as priority creditors. There are various classes of priority creditors in Bankruptcy. Domestic support obligations, such as child support or alimony are given the highest priority. Administrative expenses, such as Trustee or Attorney fees, are given secondary priority status. Tax debts that are dischargeable in Bankruptcy are given a lower priority status than domestic support obligations or administrative fees. Secured creditors, such as an automobile loan, are usually paid before unsecured creditors. The debtor is paid last, meaning if all the creditors are paid, and there are monies remaining, the debtor will receive a refund of the balance.
Bankruptcy Code Section 321(a)(1) states that a person may serve as a Bankruptcy Trustee if that person is competent to perform the duties of the Trustee and resides or has an office in the judicial district in which the Bankruptcy case is pending. Section 704(a) of the Bankruptcy Code defines a Chapter 7 Bankruptcy Trustee’s duties. The Chapter 7 Bankruptcy Trustee must collect all monies of the Bankruptcy Estate that are not exempt or protected from Creditors, be accountable for all monies received, investigate the financial affairs of the debtor, examine all proof of claims filed in the Bankruptcy, oppose the Discharge of the debtor in appropriate cases, and make a final report of the administration of the Bankruptcy, with the Bankruptcy Court and the United States Trustee. The Chapter 13 Bankruptcy Trustee’s duties are contained in Section 1302 of the Bankruptcy Code. The Chapter 13 Bankruptcy Trustee must perform all the duties required of the Chapter 7 Bankruptcy Trustee. The Chapter 13 Bankruptcy Trustee must also appear at any hearing that involves the value of property subject to a lien, the confirmation of the Chapter 13 Bankruptcy plan, or modification of the plan after confirmation. The Chapter 13 Bankruptcy Trustee must also ensure that the debtor begins to make timely payments under the Bankruptcy plan, and take special measures regarding domestic support obligations. The Chapter 13 Bankruptcy Trustee has many other obligations that are not fully addressed in the Bankruptcy Code. However, these are the more prominent duties of the Chapter 13 Bankruptcy Trustee. Provided the Chapter 7 or Chapter 13 Bankruptcy Trustee is able to perform these duties, she is qualified to serve as a Bankruptcy Trustee. The Bankruptcy Trustee does not need to be an attorney or have any particular training. Some Bankruptcy Trustees are former accountants, some were realtors, or from other professions. The important consideration for service as a Bankruptcy Trustee is whether the individual can perform the duties of the Trustee, as contained in the Bankruptcy Code.
A Redemption is a process under the Bankruptcy Law, wherein a debtor can extinguish a lien on exempt property by making a cash payment equal to the value of the property. Section 722 of the Bankruptcy Code states that a debtor may redeem tangible personal property intended primarily for personal, family, or household use, if such property is exempted under Section 522 of the Bankruptcy Code, or has been abandoned under Section 544, by paying the holder of such lien the allowed secured claim of such holder. For example, if a debtor owes $5,000 on a Mercury Villager minivan, and the minivan has a fair market value of $1,000, he may redeem the minivan by paying the creditor $1,000. The debtor is permitted an automobile exemption of $1,000, therefore the property is protected as an exempt asset under Section 522 of the Bankruptcy Code. The debtor must undertake the process of Redemption, and upon completion, the Bankruptcy Judge will sign an Order of Redemption. The debtor then tenders the $1,000 to the creditor. The debtor then must obtain a clear title from the creditor. The debtor then owes the minivan free and clear. The $5,000 balance owed on the automobile loan is Discharged or eliminated. If the minivan had a fair market value of $5000, then the debtor could not Redeem the property because the value of the property exceeds the automobile exemption of $1000. However, this same debtor may be able to value the property, or pay its true value, through a Chapter 13 Bankruptcy. This process may save the debtor considerable money, and allow the debtor to reduce his monthly automobile payment or obligation.
A Preference is where the debtor pays all or part of a debt owed to a creditor, to the exclusion or detriment, of his other creditors. For example, if a debtor owes $20,000 in credit card debt, and pays off a $5,000 American Express credit card, but does not pay anything to his other credit cards, he is preferring his American Express account over his other accounts. If he makes this payment and then shortly thereafter files Bankruptcy, the debtor has committed a Preference under the Bankruptcy Code. Section 547 of the Bankruptcy Code governs Preferences. Bankruptcy Code Section 547(b) states the Bankruptcy Trustee may avoid any interest in the debtor in property, if such interest was for the benefit of a creditor within 90 (ninety) days before the filing of the Bankruptcy petition, if such debtor was insolvent at the time of the transfer. If the debtor is an Insider, then the Bankruptcy Trustee can avoid such transfer within one year of the filing of the Bankruptcy. Bankruptcy Code Section 101(31) defines an Insider as a relative or general partner of the debtor, a partnership in which the debtor is a general partner, a general partner of the debtor, or a corporation in which the debtor is a director, officer, or a person in control. Bankruptcy Code Section 547(c) states that the Bankruptcy Trustee may not avoid a transfer if the transfer was a contemporaneous exchange for new value given to the debtor, or if such transfer was made in ordinary course of business or financial affairs of the debtor, or if the obligation is a consumer debt, that the amount transferred is less than $600. If a debtor pays his home mortgage payment of $1200 and then files Bankruptcy, this is not a Preference under Section 547 because the debtor made this payment in the ordinary course of business. If the debtor pays American Express over $600 an then files Bankruptcy within 90 days of this payment, such payment is a Preference, under the Bankruptcy Code. If the debtor pays $5000 that he owes his grandmother, and then files Bankruptcy within one year of this payment, such payment is also a Preference under the Bankruptcy Code. The Bankruptcy Trustee may avoid or reverse this transaction, and collect the money paid from the Creditor American Express, or in the latter example, the grandmother.
Section 350 of the Bankruptcy Code governs the closing and reopening of cases. Section 350(a) states that after the Bankruptcy Estate is fully administered and the Bankruptcy Judge has discharged the trustee, the Court must close the case. Once the Bankruptcy case is formally closed, that means the Bankruptcy is completely ended. In a Chapter 7 Bankruptcy, until the case is closed, the debtor may add creditors to the Bankruptcy. If the Bankruptcy is closed, the debtor may not add any creditors to the Bankruptcy. If a debtor wishes to add more creditors to his Bankruptcy case, then he must reopen the Bankruptcy under Section 350(b) of the Bankruptcy Code. The Bankruptcy may be reopened to administer assets, to accord relief to the debtor, or for other cause.
Section 109 of the Bankruptcy Code states that “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. A person can be either a individual or a corporation. In a Chapter 7 Bankruptcy, a debtor can be any entity other than a railroad, most types of banks, or a foreign insurance company. Any individual can file a Chapter 13 Bankruptcy. A corporation cannot file Chapter 13 Bankruptcy. A Corporation must file either a Chapter 7 Bankruptcy or a Chapter 11 Reorganization. The debtor in a Chapter 13 Bankruptcy must have regular income and under $336,900 of noncontingent, liquidated, unsecured debts, and 1,010,650 of noncontingent, liquidated, secured debts (as of May 10, 2011). If the debtor exceeds these debt limitations, he cannot file a Chapter 13 Bankruptcy. He must file either a Chapter 7 Bankruptcy or a Chapter 11 Reorganization.
If a debtor owes money to a bank, either through a credit card, automobile loan, or any other debt obligation, and the debtor is delinquent on his payment, the bank can withdraw monies from the debtor’s bank account, to satisfy that obligation. The debtor must have an obligation with the same bank with which he has a bank account. For example, if a debtor has a credit card with Bank of America, and also maintains a bank account with Bank of America, and becomes delinquent on the credit card, then Bank of America can withdraw monies from the debtor’s bank account. This is called the banks right to Setoff. If the same debtor maintains his bank accounts with a different bank, before it could access the debtor’s bank account, Bank of America would have to bring a Lawsuit and obtain a Judgment. Section 553 of the Bankruptcy Code addresses the issue of Setoff in Bankruptcy Law. Bankruptcy Code Section 11 USC 553(b)(1) states that “if a creditor offsets a mutual debt owing to the debtor against a claim against the debtor on or within 90 days before the filing of the petition, then the trustee may recover from the such creditor the amount so offset…”. This means that if a bank exercises a Setoff against a debtor within 90 days of the debtor’s Bankruptcy filing, the Trustee can retrieve that money from the creditor. In a Chapter 13 Bankruptcy, the debtor may seek, on his own behalf, the return of these monies. The argument is that these monies need to be returned to the debtor, because such monies are essential to the continuation of the Bankruptcy Estate.
Under the Bankruptcy Code, 11 USC 525, no employer may terminate the employment of, or discriminate with respect to employment of, any person who has filed Bankruptcy. Also, with limited exceptions, a governmental unit may not deny, revoke, suspend, or refuse to renew a license, permit, charter, franchise, or other grant, based upon the filing of a Bankruptcy. Since I began practicing Bankruptcy Law in 1993, I have no reports of any of my clients being terminated or denied employment, because of having filed Bankruptcy. Obviously, it is difficult to discern what is in the mind of a person who discriminates against an existing or prospective employee for any reason. However, it does not appear from my experience, that employers are significantly concerned about whether an existing or prospective employee has filed Bankruptcy.
If a debtor has an adjustable mortgage, the Bankruptcy may help him, but only indirectly. The Bankruptcy Code prohibits the modification of a mortgage loan. An adjustable rate mortgage cannot be changed into a fixed rate mortgage by filing Bankruptcy. However, if a debtor is in arrears on an adjustable rate mortgage, he can file a Chapter 13 Bankruptcy to stop the Foreclosure and pay those arrearages over a period of 36-60 months. After one to two years of payments to the Chapter 13 Bankruptcy Trustee, the debtor may qualify to refinance the property, changing the adjustable rate into a fixed rate. The biggest factor in whether the debtor can refinance will not be the Chapter 13 Bankruptcy, but the debtor’s income and the amount of equity present in the property. If a debtor has any type of second mortgage on his Homestead, the debtor may be able to eliminate the second mortgage through a Chapter 13 Bankruptcy.
In 2005, Congress passed a new Bankruptcy Law that made dramatic changes in the Bankruptcy Laws and its practice. Some provisions of the new Bankruptcy Law had a deleterious impact on the rights of debtors. Other provisions work to the benefits of these same debtors. The new Bankruptcy Law requires all debtors to acquire a Credit Counseling Certificate before filing Bankruptcy. A Credit Counseling Certificate designates that the debtor attempted to enter a Credit Counseling program, but that his debts were such that a Bankruptcy is his only remedy. After the Bankruptcy is filed, the debtor must also obtain a Debtor Education Certificate, designating that the debtor received counseling designed to give the debtor the financial tools and knowledge to avoid Bankruptcy in the future. Our office assists its clients in the completion of these requirements. The new Bankruptcy Law provides for a Means Test to determine whether a debtor’s income disqualifies him from filing a Chapter 7 Bankruptcy. If a debtor’s income exceeds the income limit prescribed by the Means Test, the debtor must file a Chapter 13 Bankruptcy. The Means Test then determines how much the debtor must pay his creditors through the Chapter 13 Bankruptcy plan. Under the old Bankruptcy Law, if a debtor owned an automobile, and owed the finance company more than the fair market value of the automobile, the debtor could pay the true fair market value of the collateral through a Chapter 13 Bankruptcy plan. This permitted the debtor to greatly reduce the monthly payment committed to the finance company, and enjoy considerable savings on the automobile loan. This process is called valuing the collateral, because the debtor only pays the true value of the collateral. Under the new Bankruptcy Law, in order to value an automobile, the debtor must now own the property for 910 days, or approximately 2.4 years. If the automobile loan is a non purchase money secured interest loan, meaning the Debtor owned the automobile, and later borrowed money against it, the 910 rule may not apply. If a debtor wishes to value personal property, other than an automobile, he must own the property at least one year. Personal property can include not only household items, such as furniture or a television, but also a mobile home, provided the home is not attached to real property (land). The new Bankruptcy Law has changes in the Homestead Exemption, the Exemption for retirement accounts, and other modifications. To address all the changes could occupy volumes of pages. Mr. Weller can meet with you personally to inform how various changes in the Bankruptcy Law affect you individually.
Whether to file Bankruptcy is probably one of the more important decisions one has to make. An experienced and competent Bankruptcy Attorney can ensure that the debtor receive the best possible result in this endeavor. There are many issues and complexities involved in the modern Bankruptcy. An experienced Bankruptcy Attorney knows how to address these issues, through both his study of the Bankruptcy Laws, and the understanding that comes from the daily practice of his profession.
In a Chapter 7 Bankruptcy, once we submit your official paperwork, the Bankruptcy is completed in about four months. The process involves a 341 meeting which takes place 30 to 45 days after your file has been submitted, followed by a three month period in which the Chapter 7 Bankruptcy Trustee administers the Bankruptcy. During this time, the Bankruptcy Attorney is also completing his duties in the Bankruptcy case. After all efforts have been completed, the Bankruptcy Judge will sign an Order of Discharge. The Order of Discharge signifies that all dischargeable debts have been eliminated or Discharged. A Chapter 13 Bankruptcy takes longer to complete because it proposes a payment plan of 36 to 60 months. The Bankruptcy period begins when the debtor makes his first payment to the Bankruptcy Court, which is 30 days after the Bankruptcy filing. At the termination of the 36-60 month period, provided the debtor has made all his payments to the Chapter 13 Bankruptcy Trustee, the Bankruptcy Judge will sign the Order of Discharge. The debtor then has completed the Chapter 13 Bankruptcy.
A Proof of Claim is a statement filed by a creditor in a Bankruptcy describing the reason the debtor owes the creditor monies, and the amount of the debt. In a Chapter 7 Bankruptcy, the creditor will file a Proof of Claim in cases in which the debtor has an asset that can be sold, which can produce monies that can be distributed to the creditor. In a Chapter 13 Bankruptcy, the creditor will file a Proof of Claim in order to be paid by the Chapter 13 Bankruptcy Trustee. Creditors must file a proof of claim within 120 days. If the creditor does not file a Proof of Claim, or files such claim late, the creditor may not be entitled to any payment in either a Chapter 7 Bankruptcy or Chapter 13 Bankruptcy. Even though the creditor will not receive a payment in the Bankruptcy, the debt owed to the creditor is Discharged through the successful completion of the Chapter 7 Bankruptcy or Chapter 13 Bankruptcy.
Yes. Although the new Bankruptcy Act passed by Congress in 2005, entailed some restrictions on filing Bankruptcy, Bankruptcy is still an option available to the majority of our clients.
A Forbearance Agreement is when a home lender agrees to a payment plan to allow a delinquent borrower to bring his mortgage loan current. This option is typically used for borrowers who have temporary reductions in income, but have long-term prospects for increases in income that could again sustain the mortgage obligations. Historically, the Forbearance Agreement provides that the borrower must first pay half the arrearage amount on the home, and the balance of the arrears over a three (3) to six (6) month period, together with the regular monthly mortgage payment. HUD has guidelines for Lenders to follow in Forbearance situations.
A short sale is when the mortgage lender agrees to accept less than the full balance owing when a borrower sells his Home. Generally, the lender will require an appraisal as to the homes value, and the borrower must present an approved Buyer, in order for the lender to agree to a short sale. It is usually problematic to consummate a short sale because it is difficult and frustrating to negotiate with the lender. To complete a short sale can take well over a year. In addition, the borrower may be liable for any deficiency owing on the home. The lender may file a 1099 Form against the borrower, claiming the “forgiveness” of a portion of the mortgage balance should qualify as imputed income, for which the borrower should pay income tax.
If a debtor is behind on his automobile payments, the creditor can repossess the automobile anytime before the filing of the Bankruptcy. Typically, the creditor will not begin repossession efforts until the debtor is about three (3) months behind on his payments. Once the Bankruptcy is filed, the creditor must get permission from the Bankruptcy Judge, in order to repossess the debtor’s automobile. This process usually takes sixty (60) to ninety (90) days. At any time, the debtor can voluntarily surrender the automobile.
If you decide to surrender your home, you must move out after the foreclosure sale. How long it will take the lender to foreclose on your home has varied greatly over the last twenty years. When I began practicing as a Bankruptcy Attorney in 1993, if a borrower was behind on his mortgage payments, the lender would generally begin foreclosure proceedings after a delinquency of approximately four (4) months. Once the foreclosure was served on the borrower, the lender would generally complete the foreclosure in approximately three (3) to five (5) months. If the borrower filed a Chapter 7 Bankruptcy or a Chapter 13 Bankruptcy, the Bankruptcy protections would afford the borrower another three (3) to five (5) months in the home. Since 2006 or 2007, the amount of time a borrower may remain in the home has increased dramatically. A lender now will wait anywhere from four (4) to ten (10) months before beginning foreclosure on a home. The foreclosure takes about four (4) to twelve (12) months to complete and the Bankruptcy filing will give the borrower another four (4) to six (6) months in the home. The borrower now has anywhere from twelve (12) to twenty four (24) months before he needs to evacuate the home. My office also offers a Foreclosure Defense program for Clients who need additional time in their home. Foreclosure Defense strategies can give anywhere from four (4) to an additional twenty four (24) months in the home. Many of my clients wish to surrender their homes, either because the monthly mortgage payments are too burdensome or the home mortgage balance greatly exceeds the value of the home in the depressed Florida real estate market. A strategy I often employ with my clients is to try to keep them in the home for an extended period in order that they may save money, either towards the purchase of a future Homestead, or to have funds to move to new quarters, or to simply have some savings in our uncertain times.
The first step is to call our office to arrange a free initial consultation with Mr. Weller. Jay Weller will analyze your entire financial situation and suggest which remedy is best. Our office offers every program that exists to help persons in Debt, including Chapter 7 Bankruptcy, Chapter 13 Bankruptcy, Foreclosure Defense, Debt Consolidation, Consumer Protection litigation, Credit Counseling, Debt Settlement & Mediation, Mortgage Mediation, Credit Repair, and Creditor Harassment. Once we decide which program is most beneficial, we will review the appropriate retainer agreement for services and set the second appointment at our office. At the second appointment we will review the documents necessary for the prosecution of your case. These documents usually include tax returns, evidence of income such as pay check stubs, any account statements or bills, and whatever other necessary information. If you are filing a Chapter 7 Bankruptcy or Chapter 13 Bankruptcy, you will then have a third appointment wherein Mr Weller and the paralegal will review all the Bankruptcy documents to be filed in your case. We will then file the Bankruptcy, and continue from there.
Many famous people have filed Bankruptcy. The famous persons that have filed Bankruptcy includes: Abraham Lincoln-16th President of the United States; Kim Basinger-Actress; Natalie Cole-Singer; Francis Ford Coppola-Director; Walt Disney; Henry Ford-Automobile Inventor; Ulysses S Grant-18th US President; MC Hammer-Singer; Steve Howe-Baseball Player; Don Johnson-Actor; Larry King-Talk Show Host; William McKinley-25th US President; Wayne Newton-Singer; Burt Reynolds-Actor; Oskar Schindler-Activist; Anna Nicole Smith; Lawrence Taylor-NFL Player; Donald Trump; Mark Twain-Author; Oscar Wilde-Poet; and James Wilson, the US Supreme Court Justice.
Generally, a debtor will not lose his automobile if he files Bankruptcy. The Bankruptcy Laws and the Florida Exemption Statute permits a debtor who possesses $1000 equity in his Automobile and files Chapter 7 Bankruptcy, to retain his property. If the debtor does not own a Home, he can possess up to $5,000 to $6,000 equity in his automobile if filing Bankruptcy. Equity is the value of an asset minus any liens or loans. For example, if a debtor owns an automobile with a fair market value of $8,000 and has a loan on the collateral with a $5,000 balance, then the debtor has $3000 equity in the automobile. If a debtor in a Chapter 7 Bankruptcy has more equity in the automobile than the Exemption Statutes permit, the Chapter 7 Bankruptcy Trustee may seize the automobile and sell it at a public auction. The Bankruptcy Trustee will refund to the debtor the amount of the Automobile Exemption (usually $1,000), subtract her Trustee commission (about 25%), and distribute the remainder of the proceeds to the creditors. Sometimes, the Chapter 7 Bankruptcy Trustee, in lieu of a public auction, will permit the debtor to negotiate a “buy back”. In a “buy back”, the debtor will negotiate with the Chapter 7 Bankruptcy Trustee to buy back the equity in the automobile. In the above example, the Trustee would accept $5,000 from the debtor over a period of three (3) to twelve (12) months. In exchange, the debtor retains the automobile. In a Chapter 13 Bankruptcy, the debtor would retain the automobile. The Chapter 13 Bankruptcy Trustee does not have the power to forcibly sell the assets of a debtor. In the prior example, the debtor would pay the $5,000 over a period of thirty six (36) to sixty (60) months. However, the amount paid through the Chapter 13 Bankruptcy would probably be less than $5,000 because in a Chapter 13 Bankruptcy, a debtor’s assets are usually valued lower than the valuation in a Chapter 7 Bankruptcy.
Generally, a debtor who files Bankruptcy will not lose his Homestead. The Florida State Exemption Statute has special provisions for the protection of the Homestead. If the debtor’s house qualifies as his Homestead, and he makes timely mortgage payments or payments through his Chapter 13 Bankruptcy, he will usually retain his Homestead. The same principles apply to a Chapter 7 Bankruptcy. To qualify for the Homestead Exemption, the debtor must have a deed ownership in a property in which he resides. Most domiciles qualify as a Homestead, including traditional houses, condominiums, mobile homes, and sometimes even motor homes (provided the wheels have been removed). A yacht or houseboat does not qualify as a Homestead. The Homestead must sit on one-half acre of land if located within the municipality and one hundred sixty (160) acres of land if located outside the municipality. The debtor is also limited to $125,000 equity in his Homestead if he acquired the property within 1215 days (3.3 years) of the filing of the Bankruptcy petition. After 1215 days, the debtor may have an unlimited amount of equity in his Homestead.
The Means test is a test applied if your income is more than the median income permitted for your family size. The median income varies depending on which State and Jurisdiction the debtor resides, and is determined by tables issued by the Internal Revenue Service. For example the median income as of April 4, 2011 for a one person household is $39,393, for a two person household the median income is $49,321, for a three person household the median is $53,713, and for a four person household, the median is $64,084. These figures usually change every two to three months. If a debtor is significantly above the median income for his household size, he generally will file a Chapter 13 Bankruptcy in order to pay a reasonable payment to his creditors. The test begins by calculating the debtor’s pre-filing income. Then the Bankruptcy Attorney deducts certain allowances and expenses as permitted by the Bankruptcy Code. The amount of income or monies remaining after all expenses and allowances is the amount that is available to pay the creditors. The debtor then pays this amount through a Chapter 13 Bankruptcy plan over the course of thirty six (36) to sixty (60) months. This is a quick summary of how the means test works, but its application is quite complicated. Many factors enter into the final payment in a Chapter 13 Bankruptcy.
The Creditor Hearing or 341 Hearings in Tampa are located at the Timberlake Annex Building, 501 East Polk Street, Tampa, Florida 33602. If you are traveling from Bradenton, Sarasota or St. Petersburg, take I-275 North, get off at Exit 44 West and go South on Ashley Drive. Take a left unto Cass Street and continue three blocks. The Courthouse is on the corner of Cass and North Florida Avenue. If you are traveling from Brooksville or Dade City, take I-75 South and continue to I-275 South. Take Exit 44 and go South on Ashley Drive. Turn left unto Cass Street and continue three blocks. The Courthouse is on the corner of Cass Street and North Florida Avenue. If you are traveling from Clearwater, Largo or Palm Harbor, take Highway 60 across Old Tampa Bay (Courtney Campbell Causeway). Follow 60 East towards Tampa. Continue unto I-275 North. Depart unto Exit 44 and go South on Ashley Drive. Turn left unto Cass Street and continue for three blocks. The Courthouse is on the corner of Cass and North Florida Avenue. If you are traveling from Lakeland or Plant City, follow I-4 West, continue to I-275 South and exit at Exit 44. Go South on Ashley Drive. Turn left unto Cass Street and continue for three blocks. The Tampa Bankruptcy Courthouse is on the corner of Cass and North Florida Avenue.
A debtor will be assigned to the Bankruptcy Court in Jacksonville if he lives in Baker, Bradford, Citrus, Clay, Columbia, Duval, Flagler, Hamilton, Marion, Nassau, Putnam, St. Johns, Sumter, Suwannee, Union, or Volusia County.
A debtor will be assigned to the Bankruptcy Court in Fort Myers if he lives in Charlotte, Collier, De Soto, Glades, Hendry or Lee County.
A debtor will be assigned to the Bankruptcy Court in Orlando if he lives in Brevard, Lake, Orange, Osceola or Seminole County.
Section 727 of the Bankruptcy Code governs what constitutes a Discharge in a Chapter 7 Bankruptcy. Section 1328 refers to Discharge in a Chapter 13 Bankruptcy. A Discharge means that all of a debtor’s obligations that are the subject of the Bankruptcy, have been forgiven or paid. Some debts are usually still active after the Discharge. Such debts that are Non Dischargeable include criminal restitution, some taxes, most student loans, alimony, child support, and ongoing mortgage obligations. If a debtor files a Chapter 7 Bankruptcy, usually he will owe these debts after he receives his Discharge. In a Chapter 13 Bankruptcy, usually the debtor will pay these debts through the Chapter 13 Bankruptcy plan. When the debtor completes the plan, he will receive a Discharge of these obligations because he paid in full a Non Dischargeable Debt.
Generally, the level of service or representation one receives from a petition preparer is inferior to that provided by a Bankruptcy Attorney. Most petition preparers do not understand the workings and nuances of Bankruptcy Law. Petition preparers are not employed or supervised by attorneys, can not represent your interests in the Bankruptcy Court or the Creditor Hearings, and are prevented by Law from providing legal advice. If there is a difficulty in a Bankruptcy case, it is better to have an attorney representing you. The Bankruptcy Attorney will be usually better equipped to deal with any problems that arise. The Bankruptcy Attorney is also licensed and regulated by the Florida Bar Association. If the attorney does not properly represent the debtor, the attorney can be reprimanded, suspended or even disbarred. The petition preparer is free of such worries, and less likely to take measures to remedy any mistakes or problems in a Bankruptcy case.
A new social security number will generally be issued only if another party has stolen your social security number and is using it illegally. If your social security number has been lost or your number has fallen into the wrong hands, this is usually not sufficient to procure a new social security number. The requester must provide evidence that the social security number is actually being misused and such misuse is causing harm. The Social Security Administration will not grant a new social security number to a requester seeking to avoid a legal responsibility, rebuild credit, or hide a criminal record.
It is not required for married debtors to file Bankruptcy together. If one spouse has significant debts, and the other spouse is relatively debt free, the first spouse may want to file Bankruptcy alone. If the majority of the debts are jointly held, or both spouses have significant debts, they may want to file Bankruptcy jointly. If the Bankruptcy filing is solely to stop a foreclosure, and there are no other debts present, only one spouse generally needs to file. The filing spouse generally needs to be present on the deed or have an interest in the property, to stop the foreclosure through the Bankruptcy filing.
The Bankruptcy Code requires that the debtor disclose all his liabilities. All debts must be listed. A debtor may Reaffirm certain Debts. Reaffirmation means the debtor reaffirms or re obligates his commitment to the debt, and continues paying on the obligation. A debtor may Reaffirm an automobile loan in order to retain the automobile, or may seek to Reaffirm a credit card with a small balance. Sometimes a Reaffirmation can be made with modified benefits to the debtor, such as an automobile loan with a lower interest rate or monthly payment.
In a Chapter 13 Bankruptcy a debtor can almost always Dismiss his Bankruptcy case after filing. If the debtor decides he wants to Dismiss, I will file a Motion to Dismiss with the Bankruptcy Judge or direct the Debtor to cease making payments to the Chapter 13 Bankruptcy Trustee, in order for the case to be Dismissed. In a Chapter 7 Bankruptcy, it is difficult for the debtor to Dismiss the Bankruptcy. The Bankruptcy Judge must decide that the debtor can voluntarily Dismiss the Bankruptcy. A debtor may wish to Dismiss a Chapter 7 Bankruptcy if the Chapter 7 is not going well. The Chapter 7 Bankruptcy Trustee may be trying to seize some assets of the debtor that the debtor does not want to lose. While the debtor probably will not be able to Dismiss the Chapter 7 Bankruptcy, the debtor can usually seek to Convert his Chapter 7 Bankruptcy to a Chapter 13 Bankruptcy. Section 348 of the Bankruptcy Code allows a debtor to Convert a Chapter 7 Bankruptcy to a Chapter 13 Bankruptcy, provided there is no bad faith involved. If a debtor is seeking, for example, to retain an asset that the Chapter 7 Bankruptcy Trustee is trying to seize, the Chapter 13 Bankruptcy will allow the debtor to retain that asset, and pay a monthly fee towards the payment of his creditors. While the Chapter 7 Bankruptcy Trustee may object to the conversion of the Bankruptcy to a Chapter 13, usually the Bankruptcy Judge, after argument by our office, will allow the conversion to a Chapter 13 Bankruptcy.
Section 525(c)(1) of the Bankruptcy Code states a governmental unit that operates a student grant or loan program and a person engaged in a business that includes the making of loans guaranteed or insured under a student loan program may not deny a student grant, loan, loan guarantee, or loan insurance to a person that is or has been a debtor under this title, or a bankruptcy or debtor under the bankruptcy act.
If a creditor attempts to collect a debt after the Bankruptcy is filed, the creditor is in violation of the Automatic Stay. Section 362 of the Bankruptcy Code provides that the filing of the Bankruptcy stops or stays creditors from continuing a Judicial Proceeding against the debtor, any act to take possession of the property of the debtor, any act to perfect a lien against the debtor or Estate, to collect or recover a claim that arose before the commencement of the case, and the setoff of any debt that arose before the Bankruptcy filing. There are numerous other manners in which a creditor can violate the Automatic Stay, but these are the main methods of violation. If a creditor persists in its attempt to collect after the Bankruptcy filing, it is best to contact our office so that we can help you with these debt collection violations. If a creditor continues collection efforts after Mr. Weller or an Attorney in the Weller Legal Group warns it of its violation of the Automatic Stay, we will bring sanctions against that creditor in the Bankruptcy Court. Depending on the severity of the violation of the Automatic Stay, the Bankruptcy Judge will enter a damage award against the creditor. This award generally includes actual and punitive damages, and any monies the debtor receives will be protected from attachment by creditors or the Bankruptcy Trustee.
A debtor will be assigned to the Bankruptcy Court in Tampa if he lives in the following Counties: Hardee County which includes the cities of Zolfo Springs and Wachula; Hernando County which includes the cities of Brooksville, Spring Hill and Ridge Manor; Hillsborough County which includes the cities of Tampa, Plant City, Brandon, Lutz, Apollo Beach, Ruskin, Gibsonton, Riverview, and Sun City; Manatee County which includes Bradenton, Ellenton, Parrish, and Myakka City; Pasco County which includes Port Richey, New Port Richey, Bayonet Point and Hudson; Pinellas County including Clearwater, St. Petersburg, Palm Harbor, Safety Harbor, Dunedin, Pinellas Park and Largo; Polk County including Lakeland, Winter Haven, Polk City, Bartow, Mulberry, Fort Meade, and Lake Wales; and Sarasota County including Sarasota, Venice, North Port, and Englewood. Persons living in these Counties all appear and are under the Jurisdiction of the Bankruptcy Court in Tampa. If you live in Citrus County, you might be able to appear in the Tampa Bankruptcy Court instead of the Bankruptcy Court in Jacksonville. Many of our Citrus County Clients prefer to attend the Bankruptcy Court in Tampa. Even though Citrus County Debtors are properly assigned to the Bankruptcy Court in Jacksonville, I can usually have their Bankruptcy case assigned to the Tampa Bankruptcy Court, based on convenience.
The Bankruptcy Court in Fort Myers is referred to as the Middle District of Florida, Fort Myers Division. The Fort Myers Bankruptcy Court is located at 2110 First Street, Fort Myers, Florida 33901.
The Bankruptcy Court in Jacksonville is referred to as the Bankruptcy Court of the Middle District of Florida, Jacksonville Division. The Jacksonville Bankruptcy Court is located at 300 North Hogan Street, Jacksonville, Florida 32202.
The Bankruptcy Court in Orlando is referred to as the Bankruptcy Court of the Middle District of Florida, Orlando Division. The Orlando Bankruptcy Court is located at 135 West Central Boulevard, Orlando, Florida 32801.
The Bankruptcy Court in Tampa is referred to as the Bankruptcy Court of the Middle District of Florida, Tampa Division. The Tampa Bankruptcy Court is located 801 North Florida Avenue Tampa, Florida 33602.
Section 727 of the Bankruptcy Code states that a Discharge can be denied when the debtor fails to keep or produce adequate books or financial records, commits perjury against the Bankruptcy Court, fails to obey a lawful Order of the Bankruptcy Court, or fraudulently transfers, conceals or destroys property that would have been property of the Bankruptcy Estate. There are other factors that lead to the denial of a Bankruptcy Discharge, including inadequate Documentation, but these are the more common basis for the denial of a Discharge.
It is rare for the Bankruptcy Court to revoke a debtor’s Discharge once it is granted. A Bankruptcy Discharge can be revoked if it is found that the debtor committed fraud or failed to surrender Non-Exempt Assets to the Chapter 7 Bankruptcy Trustee.
If a debtor filed a Chapter 7 Bankruptcy, he must wait eight (8) years from the first Bankruptcy filing, before he can file a second Chapter 7 Bankruptcy. If a debtor receives a Discharge in a Chapter 7 Bankruptcy, he must wait six (6) years from the prior Chapter 7 Bankruptcy filing to file a Chapter 13 Bankruptcy and receive a Discharge upon completion. The debtor may file a Chapter 13 Bankruptcy before the six (6) year mark, but he will not receive a Discharge. However, depending on the debtor’s situation, it may not be important that he receive a Discharge. A Chapter 13 Bankruptcy has uses wherein a Discharge may not be important, such as when a debtor files Chapter 13 solely to prevent foreclosure on his Home. There is no waiting period when the prior Chapter 7 Bankruptcy had a defined payout. If a debtor files a Chapter 13 Bankruptcy and receives a Discharge, he must wait four (4) years from the prior case filing (or prior case Discharge depending on the Jurisdiction) in order to file a Chapter 7 Bankruptcy for which he could receive a Discharge. Finally, if a debtor files a Chapter 13 Bankruptcy and receives a Discharge, he must wait two (2) years from the prior Chapter 13 filing (or Discharge depending on the Jurisdiction) before he can file a second Chapter 13 Bankruptcy, and receive a Discharge. These rules, especially as they apply to a Chapter 13 Bankruptcy, mandate waiting periods when a Discharge is granted. If a debtor files Chapter 13 Bankruptcy and the case is dismissed by the Bankruptcy Judge for non payment to the Trustee or other factors, then no Discharge is granted. The debtor can then file a second or even a third Chapter 13 Bankruptcy in a dismissed case once the Dismissal Order is entered by the Bankruptcy Judge. If a debtor files a second Chapter 13 Bankruptcy within a certain time after the first Chapter 13 Bankruptcy is dismissed, the debtor must negotiate additional procedural requirements in order to receive the protections provided by the Bankruptcy. This involves extending the Automatic Stay to protect the debtor’s assets and stop collection efforts by creditors. If a debtor files a third Chapter 13 Bankruptcy within a prescribed amount of time after the second Chapter 13 Bankruptcy is Dismissed, the debtor must take action to enact the Automatic Stay in order to receive these same protections.
Section 727 of the Bankruptcy Code defines the circumstances under which a debtor may be denied a Discharge. Bankruptcy Code Section 523 explains the Exceptions to Discharge. Among the actions for which a creditor can object to the dischargeability of its debt include for money, services or financing obtained by “false pretenses, false representation or actual fraud” and for debts or cash advances incurred shortly before filing Bankruptcy. If a creditor feels that a debtor behaved in a fraudulent or abusive fashion, it may object to the dischargeability of its particular debt. This is referred to as a 523 Action or Section 523 Adversary Proceeding. The creditor will file an Objection in the Bankruptcy Court, requesting the Bankruptcy Judge find the debt to be non-dischargeable. If a creditor or other party, including the Bankruptcy Trustee or United States Trustee, considers the debtor’s actions to be more flagrantly abusive, the party or parties may file an Objection to the entire Bankruptcy. This is called a 727 Action. Section 727 of the Bankruptcy Code states the Bankruptcy Court may deny a Discharge if the debtor acted to hinder, delay, or defraud a Creditor by hiding assets, knowingly made a false oath, withheld from an Officer of the Court any relevant Documents relating to the debtor’s property or financial affairs, or failed to obey a lawful order of the Bankruptcy Court. There are numerous reasons for which a creditor or an officer of the Bankruptcy Court can bring either a 523 or 727 action but these are the most common.
In theory, bad remarks should be removed from one’s credit report after seven (7) years. However, creditors often misreport or sell the debt to other collection agencies that continue to report bad remarks after the expiration of the seven (7) years. A Judgment will not ever be removed in seven (7) years, as it usually valid for twenty (20) years in Florida. The often cited “seven year rule” is misleading as most debtors will suffer bad remarks on their credit report well past the seven (7) years. The “seven years” also only applies to a Consumer Credit Report. A Mortgage Credit Report, which is more extensive, will have remarks from creditors for decades. Credit Repair is sometimes beneficial, either independently, or subsequent to a Bankruptcy, Credit Counseling or Settlement program. If you are interested in Credit Repair, contact our office and we will gladly review with you how Credit Repair would benefit your situation.
After a creditor receives a Judgment, it can take various measures to collect the monies owed, including Garnishment. A Garnishment can be a wage garnishment wherein the creditor obtains an order from the State Court requiring a debtor’s employer to take a portion of the debtor’s income, and pay it to the creditor. Secondly, there is a Garnishment of a debtor’s accounts, usually bank accounts, wherein the creditor takes funds directly from a debtor’s bank account.
If a creditor procures a Judgment or Foreclosure Judgment against a debtor in the State of Florida, such Judgment is valid and enforceable for as many as twenty (20) years. When a State Court Judge enters a Judgment, the Judgment is automatically valid and enforceable for ten (10) years. The creditor has the opportunity to re-record the Judgment, which means the Judgment will be enforceable for another ten (10) years, resulting in an enforceable twenty (20) year Judgment. Usually, the creditors will re-record the Judgment immediately after the State Court Judge initially enters the Judgment (lest they forget), extending the validity of the Judgment to twenty (20) years. This means that at any time during the next twenty (20) years, the creditor has the right to garnish wages, seize bank accounts, or whatever other remedy is available to satisfy the Judgment.
Bankruptcy is a public record. This means that any member of the public could go to the Bankruptcy Court to review the documents filed in your Bankruptcy. This happens in rare occasions as most members of the public are not interested in knowing the information contained in a stranger’s Bankruptcy filing. Some creditors may wish to review a debtor’s Bankruptcy documents, but only as the information pertains to them. Most creditors never review the Bankruptcy documents of our clients, but will contact our office asking for information as it pertains to them. We only supply such information to which the creditors are entitled, and are material to the Bankruptcy. When Weller Legal Group began in the Tampa Bay area in 1993, it was not uncommon to see a client’s Bankruptcy listed in the newspaper. Tampa was a smaller community. The Lakeland Ledger and the St Petersburg Times would have listings of various Bankruptcies filed in Tampa Bay. Today, there are more people and more Bankruptcies, and the likelihood your name will appear in the newspaper is very slight. Most of the Bankruptcies listed are Business Bankruptcies, and are listed in order that other businesses or vendors are aware that the business, having filed Bankruptcy, may not continue operations, or that such operations have changed.
In a Chapter 7 Bankruptcy, the debtor can keep all Exempt Assets. A Chapter 7 Bankruptcy Trustee will sell or liquidate all Non-Exempt Assets. An Exempt Asset is an asset protected by the Bankruptcy Laws from your creditors and the Bankruptcy Trustee. In a Chapter 13 Bankruptcy, you can retain all of your assets. However, your payment will increase in order to retain any Non Exempt Assets. The new Exemption Laws are complicated. In some cases, the Bankruptcy Attorney needs to use the Exemptions for the State of Florida, sometimes the Federal Exemptions, and in other cases, the Exemptions of another State. One needs to know when to apply which respective Exemption, and the Exemption Laws for each of the fifty states, along with the Federal Exemption. We can determine which Exemption to apply, and which Exemptions work best for your benefit.
At the final appointment before filing, we will have all your Bankruptcy documents and paperwork prepared. You will sit down with one of our professional paralegals, and will examine each page of your documents to ensure all information is accurate. The attorney will also review the documents to make certain everything is properly presented and there are no remaining issues that are not accounted for. Secondly, the paralegal and attorney will preview what will happen in the Bankruptcy after it is filed. We will preview the questions and issues that will be presented by the Bankruptcy Trustee at the Creditor Hearing and by the Bankruptcy Judge later in your case. We want you to feel comfortable that all your questions and concerns are addressed, and that you are confident in knowing what will happen in your case. It is the policy of Weller Legal Group that all clients’ concerns are addressed fully and all questions are answered, without being rushed.
The documents needed to file Bankruptcy vary. In either a Chapter 7 Bankruptcy or Chapter 13 Bankruptcy, the debtor will need to provide evidence of income for the last six (6) months, tax returns for the last two (2) years, and bank statements for the last two (2) to six (6) months. In a Chapter 7 Bankruptcy, the Bankruptcy Trustee may require more information, such as mortgage and automobile loan balances, the VIN numbers on all automobiles, copies of leases or mortgages, and various other documents. We will provide you with a complete list of the documents we need to successfully prosecute your Bankruptcy case.
In order to meet with Mr. Weller, no documents are needed. However, your most recent pay check stubs from your employment, any statement or listing of you bills, along with any lawsuits or collection letters, are all helpful in analyzing your situation. If you have a second mortgage on your Homestead, see if you have a recent statement from the tax collector documenting their estimate of your homes value. In addition, the vehicle identification numbers (VIN) of your automobiles in beneficial. For the first consultation, we mostly need an overview of your debts and situation. Any specific information you can provide will allow us to give more detailed answers for your particular situation.
Yes. In addition to Bankruptcy representation, Weller Legal Group provides a wide spectrum of programs designed to help persons in debt or facing difficulties with their creditors. Among the non-Bankruptcy programs include Credit Counseling, Debt Settlements, Credit Repair, Creditor Harassment, Mortgage Mediation & Modifications, Foreclosure Defense, Debt Consolidation, Taxpayer issues, and a Homebuyer Assistance Program. We are the only organization in the State of Florida that provides every avenue of assistance for those confronted with debt and creditor problems.
The Debtor Education Course Certificate is also known as the Personal Financial Management Certificate. Specifically, the debtor receives the Personal Financial Management Certificate after he completes the Debtor Education Course. Presumably, the Debtor Education Course is designed to give the debtor tools to better manage his finances in order to avoid filing Bankruptcy in the future. The debtor must complete this Course in order to receive his Discharge.
A Credit Counseling Certificate is a document that shows that the debtor attempted to enter a credit counseling program, but his debts were such that Credit Counseling was not beneficial. Having exhausted this remedy, the only option for the debtor is to file Bankruptcy. All debtors who file either a Chapter 7 Bankruptcy or Chapter 13 Bankruptcy must obtain a Credit Counseling Certificate. To file Bankruptcy, the debtor must obtain the Credit Counseling Certificate within 180 days before filing Bankruptcy from an approved Credit Counseling agency. After 180 days, the certificate expires. The certificate may be procured through a short briefing on the phone, internet, or in person. The provider of the Credit Counseling Certificate will email or fax the certificate to our office. After your Bankruptcy is filed, you must then obtain a Debtor Education Course Certificate. Usually, the provider of Credit Counseling Certificate will also issue the Debtor Education Course Certificate.
A United States Trustee or the US Trustee is essentially the policeman of the Bankruptcy Court. Her function is to ensure that debtors and Bankruptcy Attorneys are behaving honestly. If a party to the Bankruptcy Court deceives or lies to the Bankruptcy Judge or Bankruptcy Trustee, the US Trustee can seek to impose sanctions, which can include criminal fines and even imprisonment.
There are two different kinds of Bankruptcy Trustees; a Chapter 7 Bankruptcy Trustee and a Chapter 13 Bankruptcy Trustee. A Chapter 7 Bankruptcy Trustee is assigned by the Bankruptcy Court to oversee cases of persons filing Chapter 7 Bankruptcy. Bankruptcy Law is historically balanced between the interests of debtors and creditors. In a Chapter 7, the debtor seeks to eliminate or Discharge all or most of his debts, without any payment to the creditors. The Chapter 7 Bankruptcy Trustee’s function then is to attempt to secure some dividend or monies for the creditors. Therefore, the Chapter 7 Bankruptcy Trustee seeks to take from the debtor, assets that are Non-Exempt under the Bankruptcy Laws. The Chapter 7 Trustee then will sell those assets at a public auction. Any monies made at the auction are paid to the creditors after the Bankruptcy Trustee takes her fee or commission. The function of the Bankruptcy Attorney is to prevent this from happening. The function of Chapter 13 Bankruptcy Trustee is generally different from a Chapter 7 Bankruptcy Trustee. A Chapter 13 Bankruptcy involves the consolidation of the debts of a debtor, and a monthly payment to the creditors over a period of thirty six (36) to sixty (60) months. The Chapter 13 Trustee’s main function is to assess what is a fair repayment of debt, based on a debtor’s income, assets, and other considerations. While the Chapter 13 Bankruptcy Trustee is often viewed as a neutral party, the Trustee’s Office is under pressure from varying factions to seek a higher payment from the debtors. The function of the Bankruptcy Attorney is to try to make this payment as low as possible.
The Bankruptcy Laws were conceived to balance the interest of the debtor in getting a fresh start and the creditors in seeking a meaningful repayment on the amount owed by the debtor. Therefore, Congress and your State Legislature decided what assets should be Exempt or protected, from your creditors. It was felt that a debtor needed to retain certain assets in order that they could get a fresh start. Most debtors who file Bankruptcy in Florida use the Florida State Exemptions. There is the Homestead Exemption that protects the home in which you live, provided you do not exceed the number of permitted acreage or the amount of equity you are allowed in your home. The Florida Automobile Exemption is usually limited to $1000.00 equity per person. There are certain cases in which a debtor is allowed more than $1000.00 equity per automobile, through what is referred to as the Super Exemption. The concept behind the Automobile Exemption is that the State Legislature has deemed that a debtor in Bankruptcy is allowed to retain an automobile, but if that automobile has more than the prescribed amount of equity, then the creditors should benefit from the equity in that asset. If an asset is not Exempt, the Chapter 7 Bankruptcy Trustee can sell such asset at a public auction. For example, if a debtor has an automobile that has a fair market value of $9,000.00 and he is allowed an Automobile Exemption of $1,000.00, the Bankruptcy Trustee can sell the automobile at a public auction. If the high bidder pays $9,000.00 for the automobile, then the Bankruptcy Trustee will refund the debtor $1,000.00 and the remaining $8,000.00 will be paid to the creditors (minus the Bankruptcy Trustee fee of roughly 25%). If the debtor wishes to retain the automobile, the Bankruptcy Attorney may be able to negotiate a “buy-back” wherein the debtor essentially buys back the Automobile by making monthly payments. Very few of my clients over the last twenty years have lost their Automobile to the Chapter 7 Bankruptcy Trustee. In a Chapter 13 Bankruptcy, the Chapter 13 Trustee can not sell a Non-Exempt Asset but can seek a payment increase if the debtor wishes to retain such asset. Generally, the debtor in a Chapter 13 Bankruptcy must pay his unsecured creditors the same amount of money they would receive if the debtor filed a Chapter 7 Bankruptcy. This is called the Liquidation Test or the Best Interest of Creditors Test. In the above example, if the creditors were to receive $8,000.00 from the sale of the debtor’s automobile in a Chapter 7 Bankruptcy, then the debtor must pay roughly the same amount (usually less) to his creditors in a Chapter 13 Bankruptcy.
In my experience, having practiced Bankruptcy Law since 1993, none of my clients were ever denied renting an apartment or other domicile, because they filed a Chapter 7 Bankruptcy or Chapter 13 Bankruptcy. Some lessors (the landlord) may require the lessee (the tenant) pay first and last month rent or additional security deposit in order to Lease in the event of Bankruptcy or bad credit. However, in my experience, the lessor is primarily looking at one’s prior rental history. If you were a good tenant in the past, this will help you more than any Bankruptcy will hurt. A letter from a prior lessor or landlord will usually avoid any difficulty in leasing an apartment or other domicile.
Certain debts are Dischargeable in Bankruptcy. This means that these debts may be Discharged or eliminated through the successful completion of a Chapter 7 or Chapter 13 Bankruptcy. These debts include credit cards, medical bills, unsecured loans, and old phone bills. In some cases, taxes can be Discharged in Bankruptcy. Under very limited circumstances, a student loan can be Discharged in Bankruptcy. Child support and Alimony obligations are almost never Dischargeable.
We accept almost any manner of payment, including personal checks, money orders, cashier checks, cash, and debit cards. The only manner of payment we can not accept is your personal credit card. We can, however, accept a credit card of a third person (i.e. friend or family member), if such person wishes to pay for the Bankruptcy services.
Filing Bankruptcy, either Chapter 7 Bankruptcy or Chapter 13 Bankruptcy, costs between $800 and $1,500. We have payment plan wherein you can begin the services for $100 to $200 and make payments over three or four months. Generally, when you begin the services for a Chapter 7 Bankruptcy, you stop payments on all credit cards and unsecured debts. When you begin the services for a Chapter 13 Bankruptcy, oftentimes you stop all credit card, home, and even automobile payments.
If you file Bankruptcy, you can buy a house. If you have the cash funds to buy a house, the Bankruptcy is usually not an impediment to a purchase. If you need a mortgage or some form of financing to purchase a home, whether you qualify depends on many different factors, including the type of financing, how much you earn, and the amount of your deposit. If you enter an owner-finance type of situation, you can purchase a home usually while still under the Bankruptcy Proceedings. If you seek financing through what is usually termed a conventional mortgage, whether you qualify for a mortgage depends on the requirements of the Lender. Normally, with steady income, a substantial down payment (10-20%), and a one to two year wait after the Bankruptcy, you can qualify for a conventional mortgage. However, the housing and lending market is changing rapidly, and it is difficult to predict what requirements will be necessary for a conventional mortgage in the future.
If your home qualifies as your Homestead under the Florida State Exemption, you can generally sell your home even while you are still in the Bankruptcy. There are certain requirements for a home to qualify for the Homestead Exemption. If the home is located within the municipality, it can not have more than 0.5 acres of land, you must reside in the home, and have deed ownership of the property. You may be limited in the amount of equity you may have in the Home, depending upon how long you resided there. Any proceeds derived from the sale of an Exempt or protected Homestead are considered property of the debtor. Under the Bankruptcy Laws these proceeds are protected from creditors and the Bankruptcy Trustee, and such proceeds can presumably be used towards the purchase of another Homestead. If the property is not a Homestead, the property can still be sold, but the proceeds from the sale are subject to the attachment of the Chapter 7 Bankruptcy Trustee or, in a Chapter 13 Bankruptcy, to contribution to the Chapter 13 plan creditors.
In the State of Florida, if your spouse is not a joint debtor or joint obligor on any of your debts, filing either a Chapter 13 Bankruptcy or Chapter 7 Bankruptcy will not have any effect on their credit or credit score. I have found in some instances, that when a spouse is an authorized user on a credit card, that spouse can have her credit affected by the filing spouse’s Bankruptcy. There are measures that can be taken to reduce the possible damage to the non-filing spouse’s credit. If a non-filing spouse owns assets with the filing spouse, this may create some difficulties. If an automobile is owned jointly, the automobile may not be protected from creditors or the Bankruptcy Trustee depending on how much equity is in the automobile, how the automobile is titled, and other considerations. I can advise you as to how the Bankruptcy will affect a non-filing spouse in your case.
A Bankruptcy will appear on your credit report for ten (10) years. However, if you file Bankruptcy, either Chapter 13 or Chapter 7, your credit will be prominently affected for about two (2) years. How one’s credit is affected depends on that person’s circumstance. For some people, with very low credit scores, a Bankruptcy will actually improve their credit. Generally, if you do certain things after your Bankruptcy, your credit score can be in the 650 to 700 range about two years after filing Bankruptcy. This credit score will usually qualify you for an automobile loan at a respectable interest rate, a home loan with a down payment, and unsecured credit cards. Obtaining a secured credit card will help re-establish your credit score. A secured credit card is where you place a deposit on a credit card that provides a credit line usually equal to that deposit. A hundred dollar deposit will give you a credit card for which you can charge or purchase one hundred dollars in items. Buy groceries or other items on the credit card and pay back the purchase over a few months. This will help establish a credit history. It is best to do your research regarding the different secured credit cards available. Some secured cards are good, but others charge high fees. Saving money in the bank, keeping steady employment, and putting utilities in your name will all help improve your credit score. After you receive your Discharge in a Chapter 7 Bankruptcy or have your case confirmed in a Chapter 13 Bankruptcy, our office will assist you in pulling and reviewing your credit report. If the Bankruptcy is not properly reflected on your credit report, this can have a deleterious effect on your credit score. We can contact the credit reporting agencies and have this matter corrected. Credit is important but the most important goal in your Bankruptcy is to put yourself in a position wherein you can live comfortably in the future. Eliminating credit card payments is beneficial but not if you are saddled with a large mortgage or automobile payment. The point of the Bankruptcy should be to allow you, after the Bankruptcy, to comfortably pay your bills, plan for the future, and have some savings for life’s unexpected emergencies. When you come to my office, I look at the entire situation, and try to devise a solution that not only gives immediate relief, but a prescription for a less stressful financial future.
If you file Bankruptcy, attendance at the 341 Meeting of Creditors is usually required. If you do not attend the Creditor Meeting, the Chapter 7 Bankruptcy or Chapter 13 Bankruptcy can be dismissed. Sometimes, if a debtor is not physically able to attend the Creditor Meeting because of a medical condition, we can get the debtor excused from the meeting if we have a letter from the debtor’s attending physician. In such cases, we will conduct the Meeting telephonically with the Bankruptcy Trustee and the Debtor. In a Chapter 13 Bankruptcy, the debtor usually does not have to attend the Confirmation Hearing. The Confirmation Hearing is where the Bankruptcy Judge formally approves or confirms the Chapter 13 plan. We will attend the Confirmation Hearing and notify you as to the result. The debtor normally only has to attend the Confirmation Hearing if there is a problem in his Chapter 13 case.
No. Usually it is not important if the balances on your accounts or credit cards have are more when you file than when you first listed your accounts. In a Chapter 7 Bankruptcy, the amount of debt owed on an account is less important than whether we can Discharge that particular debt. In a Chapter 13 Bankruptcy, the amount of debt owed is usually important only if the amount greatly exceeds the original debt. Section 109 of the Bankruptcy Code states that only a Individual “with regular income that owes, on the date of the filing of the petition, noncontingent, liquidated, unsecured debts of less than $336,900 and noncontingent, liquidated, unsecured debts of less than $1,010,650” may file a Chapter 13 Bankruptcy. If a debtor’s accounts are less than the amounts prescribed by Section 109, he usually qualifies for a Chapter 13 Bankruptcy. After we file a Chapter 13 Bankruptcy, the creditors have an opportunity to file what is called a Proof of Claim. In the Proof of Claim, the creditor documents what it believes the debtor owes. If the Proof of Claim is more than originally stated in the Bankruptcy petition, and the amount in the claim is correct, the Bankruptcy Attorney will adjust the Chapter 13 documents to properly reflect the proper amount owed.
When we file your Bankruptcy, written notifications of the filing are sent to all your creditors. The more troublesome creditors receive a direct phone call and fax from our office notifying them of the Bankruptcy filing. Nevertheless, some creditors may call you after the case is filed. Some creditors will continue collection efforts simply because of a simple mistake, some will continue collection because they do not understand the protections given by the Bankruptcy filing, and others because they do not respect the Bankruptcy Laws. When we file your case, we will assign you a Bankruptcy case number. Most creditors will stop calling you if you simply give them your Bankruptcy case number. Our office also will provide this case number if the creditor calls. If a creditor persists in calling or attempting to collect a debt after the Bankruptcy is filed, we will bring sanctions against the creditor, as provided in Section 362 of the Bankruptcy Code.
Sometimes, creditors will innocently send bills to debtor after they have filed Bankruptcy. If you receive a bill from a creditor after you filed Bankruptcy, one solution is to make a copy of your 341 Hearing notice and mail this notice by certified mail along with the bill or collection letter. If a creditor persists in its attempt to collect a debt from you, we advise you to bring the bill to our office. The attorney will then bring sanctions against any creditor who continues collection efforts after the Bankruptcy filing. Section 362 of the Bankruptcy Code provides for what is called the “Automatic Stay”. The Automatic Stay means that when you file Bankruptcy, the creditors, with some exceptions, are stayed or prevented from taking collection efforts against you. When you file Bankruptcy the creditors must stop any Foreclosure against your home, any lawsuit against you personally, or even send collection letters to your residence. If a creditor persists in its collection efforts after the Bankruptcy filing, we will take appropriate action to stop such behavior.
Yes. Either Jay Weller, or Will Brumby will represent you at the Creditor Hearing in your Bankruptcy case. The Creditor Hearing is so called because your creditors have an opportunity to appear at this Hearing to ask any relevant questions in your Bankruptcy case. It is also called a 341 Hearing because Section 341 of the Bankruptcy Code provides for the establishment of this hearing. Every person who files Chapter 7 or Chapter 13 Bankruptcy, with some exceptions, must attend the Creditor Hearing. At this hearing, we will meet with the Bankruptcy Trustee, who will ask various questions regarding your Bankruptcy. Most of the questions the Trustee may have will be provided by the documents we present to the Bankruptcy Court. Although the creditors may attend this Hearing, they are not required to attend. In most cases, you will not personally meet a creditor, as they usually correspond with our office directly. We advise that you attend the 341 Hearing at least 20-30 minutes early so that you can meet with the Bankruptcy Attorney and review the important issues in your Bankruptcy. We will then enter the Hearing room to meet with the Bankruptcy Trustee. Please bring your drivers license or other permitted Identification, and evidence of your social security number.