Bankruptcy is a legal process to discharge or repay some, or all, of your debt under the protection of the federal bankruptcy court. Bankruptcy prevents continued efforts by creditors to collect debts and can eliminate repayment obligations or provide for a restructuring of the obligations, enabling the debtor to obtain a fresh start. When a debtor files for bankruptcy, all their property becomes property of the bankruptcy estate. A debtor may prevent the taking and selling of their property by claiming them as exempt. The exemptions allowed are detailed in Florida Statutes. The date of filing determines the property of the bankruptcy estate.
Probably. The Bankruptcy code details which debtors can file and when they can receive a bankruptcy discharge. An experienced Bankruptcy Attorney will be able to advise you if you are eligible for a Bankruptcy Discharge and what chapter you should file.
There are different types of bankruptcies, which are referred to by their chapter in the U.S. Bankruptcy Code.
Individuals usually file a Chapter 7 or a Chapter 13 Bankruptcy, depending on their situation. A debtor will file a Chapter 7 if they have insufficient income to pay a portion of their debts and there is no “non-exempt property” they wish to keep. Chapter 13 is designed for higher-income individuals with regular earnings to repay a portion or all their debt over an extended period, usually 36 or 60 months. A debtor can pay off a Chapter 13 payment plan early.
Municipalities—cities, towns, municipal utilities, and school districts may file under Chapter 9 to reorganize.
Businesses – Businesses can file bankruptcy under Chapter 7 to liquidate or Chapter 11 to reorganize.
Family Farmers & Fishermen – File under Chapter 12 for debt relief in Bankruptcy.More than One Country – If the parties are from more than one country, they file under Chapter 15. Please seek advice from an experienced bankruptcy attorney if you’re considering filing for bankruptcy.
I would highly recommend retaining an experienced bankruptcy attorney given that the “success rate,” of Chapter 13 debtors is less than 14% successfully completing their Chapter 13 cases and receiving a bankruptcy discharge. If you are considering filing for bankruptcy protection, I always recommend hiring an experienced bankruptcy attorney. There are so many rules, regulations, laws, forms, procedures, etc., that it is difficult to navigate on your own. Ignorance of the law is no excuse. The Bankruptcy Code, local bankruptcy rules and regulations are lengthy and complicated. https://www.usbankruptcycode.org/. Filing a false or misleading document could result in your bankruptcy being dismissed without you receiving a discharge, or worse, you could be charged with bankruptcy fraud if your conduct was found to be intentional, willful, or malicious. To ensure safe passage through all the requirements of The Federal Bankruptcy Code and to receive a discharge, I always recommend an experienced bankruptcy lawyer. It really is money well spent, especially for something as significant as bankruptcy and regaining your financial freedom with a fresh start free from most debt.
Absolutely! Your employment status will not affect your ability to file for bankruptcy protection. However, your income will determine what chapter you file. Some of my concerns for my self-employed clients and their business is “are there any assets associated with the business (or otherwise) that the Trustee can seize? What is the business worth? Can it be sold? What debts are my clients personally liable for versus what debts are the liability of the business? Self-employed clients or clients that have accumulated primarily business debt, should note that business debt is treated differently with respect to the “means test”
Section 101(12A) of the Bankruptcy Code defines “debt relief agency” as “Any person who provides any bankruptcy assistance for the payment of money or other valuable consideration”. Bankruptcy lawyers are “debt relief agencies” as defined by the bankruptcy code.
An incarcerated debtor can still file for bankruptcy and must make themselves available via phone to attend the 341 or creditors meeting.
There are two ways to avoid the “means test” related to military service:
A “disabled veteran,” means you are entitled to veteran disability compensation by being least 30% disabled or you have been discharged from service, or released from active duty, because of “a disability incurred or aggravated in line of duty” and your “indebtedness occurred primarily during a period” in which you were either on “active duty,” meaning “full time duty in the active military service of the United States” or “performing a homeland defense activity.” To use this exemption, you must file your Chapter 7 bankruptcy during your term of duty or within the period of 540 days after it ends. The disabled veteran exemption is narrow because your indebtedness must have “occurred primarily during” your period of service. The active duty/homeland defense exemption is broader, but you must file your Chapter 7 case during or within 540 days after completing your service.
A Chapter 13, titled “Adjustments of Debts of an Individual with Regular Income,” is often referred to as “reorganization.” In a Chapter 13 case, you submit to the bankruptcy court a plan to repay creditors all or some of the money owed to them over a three to five-year period. The bankruptcy judge must approve the plan. If the plan meets the requirements set out in the Bankruptcy Code and is confirmed by the bankruptcy court, your payments under the plan are distributed to creditors by the Chapter 13 trustee. You must complete the payments before a bankruptcy discharge can be received. You are protected from lawsuits, garnishments, and other creditor actions while the plan is in effect. Your case can be dismissed for not making timely payments.
The Chapter 13 Trustee is a lawyer that oversees your case. They distribute the proceeds from your plan to the creditors. They have a fiduciary duty to the creditors to maximize the amount you must pay into you plan and make sure your plan complies with the bankruptcy laws.
Maybe. If you are considering Bankruptcy, you should consult with an experienced bankruptcy attorney. The decision whether to file or not will depend on your financial situation. If you are being sued, your wages garnished, your house foreclosed upon, or you cannot pay your debt, bankruptcy may be your best option. It would be wise to consult with an experienced bankruptcy lawyer before selling any assets or withdrawing money from your retirement accounts. Those decisions have a significant effect on your bankruptcy and an experienced bankruptcy attorney should be able to advise you on how best to proceed.
Most bankruptcy attorneys will provide an initial consultation for free. Take advantage of that and utilize their knowledge.
No. You’re not entitled to a free consultation but most attorney do offer free consultations. Take advantage of the free consultation and see if you qualify for bankruptcy.
You will be asked to provide me with sufficient information to evaluate your case. I will review your income and assets and advise you whether you qualify to file for bankruptcy and what chapter is best for you. You should feel confident with my experience, knowledge, expertise, and professionalism. I will be guiding you through this complicated process and accompanying you every step of the way. Call The Law Office of Tony Turner for a free consultation at 904-679-2020. Mr. Turner is an experienced Florida Bankruptcy Attorney and Workers’ Compensation Attorney. Attorney Tony Turner serves clients in Orange Park, Daytona, Jacksonville, Lake City, Deland, St. Augustine, and the surrounding areas of Florida.
In the past debtors were incarcerated if they did not pay their debt in what was known as “Debtor’s Prison”. The debtors were held in prison until the debt was paid. Usually, the family members were tasked with trying to pay the debt. This was problematic since the one incarcerated usually was the primary wage earner. Despite Congress abolishing debtors’ prisons in 1833, and the U.S. Supreme Court declaring them unconstitutional 50 years later, today, thousands of Americans are locked up for failing to pay their debts to the state, child support, alimony, and other monetary reasons.
A Chapter 7 bankruptcy is where a trustee examines your assets to determine if any property is available to be sold or recovered for the benefit of your creditors. Most if not all your property will be “exempt” under Florida law, meaning you keep it. If there are no assets to liquidate, you are considered a “no-asset case.” You will receive an order from the bankruptcy judge about 90 days after filing for bankruptcy. The order discharges your debts and gives you a much-needed fresh start.
In Summary:
A Chapter 7 case begins when you file a “bankruptcy petition” which is about a 60-page document, with the bankruptcy court. Contained on your bankruptcy petition will be:
About 30 days after the bankruptcy petition is filed, the trustee will hold a “meeting of the creditors,” where you will be placed you under oath, and asked questions about why you filed bankruptcy. If both spouses have filed for bankruptcy, then they both must attend the creditors’ meeting. About 90 days after filing your bankruptcy petition the judge should enter an order discharging your debt. The creditors listed on your bankruptcy petition will be notified via mail the debt has been discharged.
If your monthly income is less than or equal to the median income in your state, you’re eligible to file a Chapter 7 and receive a discharge assuming you meet the other Chapter 7 eligibility requirements, such as the rule limiting how often you can file a Chapter 7 and receive a bankruptcy discharge order. If your income is over the state median, then one needs to determine how much disposable income remains after deducting the expenses from your earnings. If you “fail” the means test, you might not be eligible for a Chapter 7 bankruptcy and instead must file a Chapter 13 bankruptcy.
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