Bankruptcy Attorney Lawyer

Bankruptcy is governed by Federal law, and the Federal Bankruptcy Code allows states to determine what assets are exempt from bankruptcy. A bankruptcy exemption is personal property that is protected and cannot be claimed by creditors in the bankruptcy process. The idea of Florida bankruptcy exemptions is to allow a debtor enough personal property to start over after bankruptcy. Any debtor filing for bankruptcy must file a bankruptcy petition with the Federal Court in the area the bankruptcy petitioner primarily resides. 

Any property non-exempt property will be included in your bankruptcy estate, and your Chapter 7 Trustee can take and sell it, distributing the proceeds to your unsecured creditors. You will have the opportunity to keep the non-exempt property under a “buy-back” program, which you will agree to with your Trustee. Property exemptions can be extremely complex; therefore, it is best to speak to a Florida bankruptcy attorney to ensure you have taken advantage of all the available exemptions.

Florida Residency Requirements for Bankruptcy Exemptions. 

 The Florida Constitution grants all Floridians the right to unlimited homestead protection against judgment creditors, regardless of the length of residency. The bankruptcy system works differently. To apply the Florida bankruptcy exemptions the debtor must have lived in the state of Florida for a minimum of 730 days prior to filing the bankruptcy petition. If they were not living in a single state during the two years prior to the time you filed for bankruptcy, the state exemptions you are allowed will depend on where you lived for the majority of the 180-day period prior to the two years before filing for bankruptcy. If you are ineligible for any state exemptions, you will be allowed to use the federal bankruptcy exemptions.

The biggest concern in most bankruptcy cases deals with a person’s home or real estate. The debtor must file a homestead declaration with the county, as it must be their primary residence. In bankruptcy, the Florida homestead exemption allows a primary residence of unlimited value to be protected from creditors if the debtor has lived in Florida for 40 months or more, and the property is not larger than half an acre in a municipality or 160 acres elsewhere. If the 40-month residency requirement has not been met, the homestead exemption is capped at $160,375 per federal law. Contiguous property may include lots with separate legal descriptions and separate tax numbers. While mobile homes do not qualify as a homestead under the definition contained in the Florida Constitution, they are exempt under Florida law in Chapter 222. Investment property cannot be protected by the Florida homestead exemption. So, the bottom line is this: in bankruptcy, you don’t get the unlimited Florida homestead exemption unless you’ve lived in the state for 40 straight months. If you’re newer to the Sunshine state, the still generous $160,375 exemption will apply in your case.

The Florida Bankruptcy Wildcard Exemption

A debtor is allowed to claim up to $4,000 of personal property if they do not take advantage of the homestead exemption. For joint debtors in the State of Florida, the wildcard exemption is $4,000 apiece. Debtors who do not own a home can claim the wildcard exemption, and debtors who do own a home may still be able to claim the exemption. If you use your wildcard exemption for personal property, the value of that property is based on fair market value—what you could reasonably expect to get if you sold the property.

Under the bankruptcy laws in the state of Florida, personal property up to $1,000 is exempt. Personal property can include such things as electronics, furniture, and art. 

The Florida motor vehicle bankruptcy exemption allows you to protect $1,000 equity in a car. If you have more than $1,000 equity in your automobile, you may be able to cover the extra with your personal property exemption. If you do not to use the homestead exemption, you can use an additional $4,000 toward the equity in your vehicle.

Other pensions which are exempt during a Florida bankruptcy include tax-exempt retirement accounts such as 401(k)s, 403(b)s, profit-sharing plans, money purchase plans, SEP and SIMPLE IRA’s, state and county pensions, firefighter pensions, police officer pensions, IRAs and Roth IRAs (up to $1,171,650) and teacher pensions. The rule of thumb is that any pensions that are covered under federal tax exemptions are considered fully exempt property.  When in doubt ask your plan administrator whether the plan is an “ERISA” plan. If it is – the retirement plan is exempt.

 Earned income tax credits are protected under the Florida bankruptcy wage exemption as are public assistance benefits, unemployment benefits, VA benefits, workers’ compensation benefits, crime victim’s compensation, alimony, and child support necessary for support and Social Security benefits. As far as insurance benefits are concerned, the following are protected under the Florida bankruptcy wage benefits exemption: Death benefits which are payable to a specific person, life insurance cash surrender value, annuity contract proceed except winnings from the lottery, disability or illness benefits, and fraternal benefit society benefits.

Insurance Exemptions – The next exemption category outside of a person’s home deals with insurance.  Florida allows debtors to retain annuity contract proceeds, but this does not include lottery winnings.  

Florida also allows exemptions on death benefits payable to a specific beneficiary, but not a deceased person’s estate. For example, if a dead relative leaves a debtor a certain amount of money personally, then that money is exempt, but if the person is receiving money from an estate of a deceased relative, then that money is not exempt.

Other insurance exemptions included in Florida bankruptcy law are disability or illness benefits, fraternal benefit society benefits if they were received before October of 1996, and life insurance cash surrender value. 

Pensions and Miscellaneous Exemptions – The next categories of exemptions in Florida are titled miscellaneous and pensions.

Under miscellaneous exemptions, alimony and child support are exempt because they are needed for the support of a child or agreed upon in a divorce settlement for a person to live on their own.

Also, under miscellaneous is damages to employees for injuries in hazardous occupations. Some pensions are exempt from bankruptcy proceedings if it is a pension for county officers or employees of a county, firefighters, highway patrol officers, police officers, state employees, schoolteachers, and pensions from IRAs, Roth IRAs, and ERISA-qualified benefits. 

The Voluntary Bankruptcy Petition

The initial bankruptcy form filed in any bankruptcy case is the voluntary bankruptcy petition. The bankruptcy petition contains all the debtor’s information including prior names, last four digits of the debtor’s social security number, street address, county of residence, and mailing address if different from the street address.  If a spouse is filing for bankruptcy as well, then the bankruptcy petition must include their information as well.  

Once the initial petition is filed, the various forms needed to be filed along with the bankruptcy petition depend on the Chapter and whether it is an individual bankruptcy or a business filing for bankruptcy. A debtor will need to list all creditors and the amounts and nature of their claims, the source, amount, and frequency of personal income, a list of all property owned or part-owned by the debtor, and a detailed list of the debtor’s monthly living expenses. Monthly living expenses that should be listed include food, clothing, shelter, utilities, taxes, transportation, medicine, etc…

The Bankruptcy Petitions Schedules -The variety of schedules included in the bankruptcy forms A – J and lists all assets and debt.

 The list of schedules includes:

Summary of Schedules

Schedule A – Real Property

Schedule B – Personal Property

Schedule C – Property Claimed as Exempt

Schedule D – Creditors Holding Secured Claims

Schedule E – Creditors Holding Unsecured Priority Claims

Schedule F – Creditors Holding Unsecured Nonpriority Claims

Schedule G – Executory Contracts and Unexpired Leases

Schedule H – Co-debtors

Schedule I – Current Income of Individual Debtors

Schedule J – Current Expenditures of Individual Debtors

Declaration Concerning Debtor’s Schedules

Statement of Financial Affairs

 What is “Bankruptcy Petition Schedule D?”

Schedule D on the bankruptcy petition is for “secured creditors”. Secured creditors include cars, boats, RVs, and homes. If the debt is secured by the property, then it’s a secured claim.  If you fail to make the payments, the lender can repossess the secured asset. If you want to keep the property, you must make the payments and be current at the time you file for bankruptcy or get the loan modified. 

What is “Bankruptcy Petition Schedule E/F?”

Schedule E & F on the bankruptcy petition is where a debtor’s “priority claims” are listed. Priority claims are paid first and include child support, alimony, wages you owe a former employee, taxes, debts you owe the government, court fines, and judgments or money owed from a criminal case where you intentionally hurt someone. Any claims filed for debt listed on Schedule E/F get paid before “nonpriority” Schedule F debts. Nonpriority debt includes credit cards, medical bills, and personal loans. Any creditor wanting to get paid must file a proof of claim with the court.

What is “Bankruptcy Petition Schedule G?”

Executory contracts are current contracts that take a while to complete and that you are still responsible for paying when you file for bankruptcy such as a gym membership or apartment lease. If the lease is not expired when you file for bankruptcy, that is an unexpired lease. If you’re filing a Chapter 7 bankruptcy petition and you want to reaffirm the debt, you’ll state your intent on the “Statement of Intention for Individuals Filing Under Chapter 7.” You aren’t required to make disclosures about executory contracts or unexpired leases involving real property, such as your apartment, on the statement of intention form.

What is “Bankruptcy Petition Schedule H: Codebtors?”

Bankruptcy Petition Schedule H concerns codebtors. A codebtor is someone additionally responsible for the debt. In bankruptcy, when your debt is discharged, your codebtors are not relieved of their responsibility to service the debt. Codebtors must be notified of your bankruptcy.

What is “Bankruptcy Petition Schedule I?”

Schedule I includes all the income you receive from all sources during the six months prior to filing for bankruptcy. All your monthly income must be included. It does not matter if that income is taxed or not taxed. The only payments that are not included are those received under the Social Security Act which includes Social Security Retirement, SSI, SSDI, and TANF. Payments to victims of war crimes or crimes against humanity and payments to victims of international or domestic terrorism are also not included.

What is “Bankruptcy Petition Schedule J” (Expenses)?

Schedule J on your bankruptcy petition provides the bankruptcy trustee with your current household budget. The trustee will compare your expenses to your income. This will show the trustee if you are paying your creditors more or less than your household budget allows each month. Florida bankruptcy Schedule J shows the trustee and Court how much disposable income you have each month. If you have too much disposable income on Schedule J, you might not be able to file Chapter 7 Florida bankruptcy. On Schedule J, you must list all your current monthly expenses and all your dependents. A dependent is either a minor or an adult for whom you provide at least 50% of their support. Your spouse does not count. Their information is listed elsewhere on the Florida bankruptcy forms. 

What is a Statement of Financial Affairs?

Another form needed in any bankruptcy case is a statement of financial affairs.

 Filing for Chapter 7 Bankruptcy in Florida.

If the filer is looking for a chapter 7 bankruptcy, then a court will appoint a trustee to determine what assets, if any, can be sold to pay back creditors. If the filer is seeking a chapter 13 bankruptcy, then the filer must also fill out a plan to pay back creditors. Some debts are not discharged in bankruptcy. These debts, such as child support, alimony, some federal income taxes, and all employer withholding taxes cannot be erased in a bankruptcy. 11 U.S. Code § 523 – Exceptions to discharge

(a)A discharge under section 727, 1141, 1192 [1] 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt—(5) for a domestic support obligation; (15) to a spouse, former spouse, or child of the debtor and not of the kind described in paragraph (5) that is incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of a court of record or a determination made in accordance with State or territorial law by a governmental unit; However, unlike Chapter 7 proceedings other types of obligations and debts arising out of a separation or divorce, including property settlements, are still dischargeable in Chapter 13 proceedings. The biggest question when filing a bankruptcy in Florida is which type to file. An individual seeking to file bankruptcy will generally do so through chapter 7 or chapter 13. 

If you earn less than the median for a Florida family of similar size, you’re presumptively entitled to file for Chapter 7. However, if your income is above the median, your income and expenses will be evaluated under the means test.

The means test is the signature “accomplishment” of bankruptcy reform. It is a complicated government formula that allows deduction of your actual expenses in some cases and only government allowed expenses in others. Too much disposable income after expenses disqualifies you from the relatively speedy Chapter 7 process. A good bankruptcy lawyer will be able to help you crunch the numbers to determine whether you qualify. If you don’t, there’s always Chapter 13.

Filing bankruptcy in Florida – Chapter 13

Chapter 13 has many advantages over chapter 7. First, unlike chapter 7, filing chapter 13 does not mean a debtor cannot file bankruptcy again for six years. At any time after chapter 13 is filed, a debtor can file for a chapter 7 if they cannot meet the payments as spelled out in the chapter 13 plan.

Federal law allows credit agencies to list all the bankruptcy filings in the preceding 10 years.

The Florida Bankruptcy Courts are located throughout the state and organized into three districts: Northern, Middle, and Southern Districts. Each district is further subdivided into divisions so that Floridians have relatively easy access to a federal court. Here’s where you may have to file for bankruptcy if you live in Florida.

Northern District of Florida Bankruptcy Court

Gainesville: 401 SE First Ave., Gainesville, FL 32601, 866-639-4615

Panama City: 30 W. Government St., Panama City, Florida 32401, 866-639-4615.

Pensacola: 100 N. Palafox St., Pensacola, FL 32502, 866-639-4615

Tallahassee: 110 East Park Ave., Suite 100, Tallahassee, Florida 32301, 866-639-4615.

 Middle District of Florida Bankruptcy Court

Fort Myers: 2110 First St., Fort Myers, Florida 33901, 813-301-5162, Note: this location does not accept bankruptcy filings

Jacksonville: 300 N. Hogan St., Suite 3-150, Jacksonville, Florida 32202, 904-301-6490 .

Orlando: 400 W. Washington St., Suite 5100, Orlando, FL 32801, 407-237-8000.

Tampa: 801 N. Florida Ave., Suite 555, Tampa, Florida 33602, 813-301-5162.

Southern District of Florida Bankruptcy Court

Miami: 301 N. Miami Ave., Miami, FL 33128, 305-714-1800 

Fort Lauderdale: 299 E. Broward Blvd., Fort Lauderdale, FL 33301, 954-769-5700.

West Palm Beach: 1515 N. Flagler Drive, West Palm Beach, FL 33401, 561-514-4100.

What Does the Bankruptcy Clerk’s Office Do?

Other than mailing out the documents mentioned above to creditors, the Florida bankruptcy court clerk provides clerical and legal support to the court. This support comes in the form of processing filed documents, maintaining case-related papers, collecting authorized fees, sending notices, entering judgments and other orders, informing parties of scheduled hearings, and handling all inquiries from the public or attorneys. It is important that anyone seeking bankruptcy needs to understand that a Florida bankruptcy court will not give legal advice or specifically represent a person filing for bankruptcy. The court is limited to supplying the forms through their websites, offering literature, and even video resources on bankruptcy law. All the Florida bankruptcy courts recommend that anyone seeking to file bankruptcy seek legal counsel from an accountant, legal aid, or attorney before filing. Florida Bankruptcy Forms: Like any legal matter, Florida bankruptcy cases include many official bankruptcy forms. The number and type of forms used in a bankruptcy depend on all the issues involved and the type of bankruptcy. To find the right forms, one should first find the location of the district courthouse. Finding the right court is as simple as a web search. Once the right district is found, a quick visit to the official court’s website will yield a link to all the official Florida bankruptcy forms and instructions on how to fill each form out. Another way to find the correct forms is to visit a legal forms website and purchase the forms with additional instructions, seek help from a document-preparing agency, or consult an attorney specializing in bankruptcy cases. If you are considering filing for Chapter 7 or Chapter 13 bankruptcy in the state of Florida, you may have questions concerning property that is exempt during the bankruptcy. In short, exempt means you get to keep that asset at the end of your

 After the Bankruptcy Discharge

Once a court has discharged a debt, creditors can no longer harass the debtor for repayment.  The timing of the discharge will vary based on the type of bankruptcy filed. In some cases, the court may grant a discharge from certain debts promptly after a fixed time after filing. Typically, this date will happen about four months after filing.  In the case of bankruptcy where a debtor is seeking to pay back creditors then the discharge will happen once an agreed-upon amount is paid back to a creditor. When a debtor receives a discharge, a discharge letter will be mailed from the bankruptcy court to all creditors letting them know of the court’s decision.  This is an important document because creditors that still seek to collect any debts discharged by a Florida bankruptcy court will be in contempt of court and subject to punishment. In all bankruptcy cases, creditors have the right to object to any possible discharge but must do so in a formal manner to the court.  The bankruptcy judge can deny a discharge if anything is amiss.  Call or text Attorney Tony Turner at 904-679-2020 today.  You deserve a fresh start free from harassing phone calls, wage garnishments, lawsuits, foreclosures, repossessions, and burdensome debt. Know your rights!

Call me at 904-679-2020 0r 386-490-5215 today.