What is bankruptcy?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.
Can I file for bankruptcy?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.
Are there different types of bankruptcy?
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.
Should I file for bankruptcy?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.
How much is a bankruptcy consultation?Most bankruptcy attorneys will provide an initial consultation for free. Take advantage of that and utilize their knowledge.
Am I entitled to a free consultation with a lawyer?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.
Should I hire a bankruptcy attorney?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.
What can I expect from my consultation with the Law Office of Bankruptcy Attorney Tony Turner?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.
Can I file for bankruptcy if I am employed, self-employed, unemployed or retired?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”.
What are the top five reasons a bankruptcy case can be dismissed?
- You do not complete the credit counseling courses as required.
- You did not pay the bankruptcy courts filing fee.
- You failed to attend the meeting of creditors.
- You did not provide all the information the trustee requested.
- You failed to make your payments in your Chapter 13.
What is a debt relief agency?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.
Can I be imprisoned for not paying my debt?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.
What if the debtor is incarcerated?An incarcerated debtor can still file for bankruptcy and must make themselves available via phone to attend the 341 or creditors meeting.
What is a Chapter 7 bankruptcy?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.
- A Chapter 7 is for individuals or businesses.
- A debtor must give full and fair disclosure of all assets and all liabilities to the trustee to receive a bankruptcy discharge.
- Trustee may liquidate non-exempt property and use the proceeds to pay creditors.
- If creditors are paid, priority debt such as taxes are paid first. Any unsecured debt is paid in proportion to what’s claimed.
- Chapter 7 bankruptcy are short term by legal standards – There’s an approximately 3–4-month timeframe from start to finish.
- Individuals with primarily consumer debt, must pass a “Means Test”. The means test determines whether you can file a Chapter 7 or must consider filing a Chapter 13 based on your total household income.
- You can file a Chapter 7 only once every eight years.
- If you are married, you can file without your spouse. Regardless of whether one or both spouse file for bankruptcy, household total income is considered when determining if you qualify for a Chapter 7 bankruptcy.
How does a Chapter 7 work?
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:
- “Schedules” listing your assets, their value, and your debt.
- Your current total monthly household income and expenses.
- A statement of financial affairs called a (SOFA).
- A schedule of executory contracts and unexpired leases.
- Individual debtors with primarily consumer debts must file a certificate
of credit counseling (See 1st Class a debtor is required to take).
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.
What is the Chapter 7 “means test” and how does it work?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.
What are the “military exceptions” to the means test?
There are two ways to avoid the “means test” related to military service:
- Is the disabled veteran; and
- the active duty/homeland defense exemptions.
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.
What is a Chapter 13?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.
Who is the Trustee and what do they do?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.
What is a Chapter 13 Confirmation Hearing?The bankruptcy court must hold a hearing on confirmation of the plan not earlier than 20 days and not later than 45 days after the date of the meeting of creditors. Any party in interest may object to confirmation of the plan. If the trustee and creditors don’t object to the plan, the Chapter 13 confirmation hearing should be a mere formality. The debtor does not have to attend this hearing unless their testimony would be beneficial.
How does a Chapter 13 work?
A Chapter 13 case begins with the filing of a petition, schedules, statement of financial affairs, counseling certificate and a Chapter 13 plan. The Chapter 13 plan will provide for regular monthly payments of fixed amounts to the trustee and detail how much each creditor will be paid. The trustee will distribute the funds to your creditors according to the terms of the plan. Some creditors may receive less than full payment on the debt due.
In a Chapter 13 case unsecured creditors must file their proof of claims with the bankruptcy court within 90 days after the first date set for the meeting of creditors. A meeting of the creditors will be scheduled for about 30 days post filing of your bankruptcy petition.
You must attend the creditors meeting and answer questions regarding your financial affairs and the proposed terms of the Chapter 13 plan.
If you want to keep the collateral securing a particular claim, like a car or a house, the plan must provide that the holder of the secured claim receives at least the value of the collateral. The plan need not pay unsecured claims in full if it provides that you will pay all projected “disposable income” over an “applicable commitment period,” and if unsecured creditors receive at least as much under the plan as they would receive if your assets were liquidated under Chapter 7. You are entitled to a bankruptcy discharge upon completion of all payments under the Chapter 13 plan. The discharge releases you from all debts provided for by the plan, with certain exceptions.
What debts are not discharged in a Chapter 13?Debts that are not discharged in Chapter 13 include debts for alimony or child support, certain taxes, debts arising from death or personal injury caused by driving while intoxicated or under the influence of drugs, and debts for restitution or a criminal fine included in a sentence on your conviction of a crime. Creditors provided for in full or in part under the plan may no longer initiate or continue any legal or other action against you to collect the discharged obligations.
Can I incur more debt while in a Chapter 13?While in a Chapter 13 you may not incur new debt without consulting the trustee.
How do you lien strip?The Chapter 13 bankruptcy plan may modify the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debtor’s principal residence. The Debtors may propose to strip the lien of the HELOC, paying the lienholder as an unsecured creditor through the Chapter 13. Upon discharge, the lien will be deemed satisfied/extinguished by a combination of the confirmation order, discharge order, and order from any adversary filed to evaluate the priority or status of the lien. What if no discharge is available? Can you still lien strip? Too many citations for cases holding that a debtor may not strip a lien in Chapter 13 when no discharge is available a so-called “Chapter 20” case if the Chapter 13 follows a Chapter 7 and those cases allowing the lien stripping.
What happens if I can’t make my Chapter 13 payments?Consider converting to Chapter 7. To convert and receive a discharge order, debtors must have been eligible for Chapter 7 discharge on the date of the filing of the original case.
What is a Chapter 20A so-called “Chapter 20” case if the Chapter 13 follows a Chapter 7 and those cases allowing the lien stripping.
Where can I find additional bankruptcy information?Basic information regarding filing for Bankruptcy is available on the Federal Courts Website at: United States Bankruptcy Courts.
I have decided to file bankruptcy, so what’s the next step?Take the 1st Class at www.debtorc.org and give them your attorneys email address. The Law Office of Tony Turners email address is [email protected] You must complete and obtain a certificate from an approved credit counseling agency during the 6 months before your bankruptcy petition is filed. Your attorney should be able to recommend one or you can review a list of the approved Credit Counseling Agencies on the U.S. Trustees website at www.justice.gov/ust/eo/bapcpa/ccde/cc_approved.htm
Where can I find information regarding the classes that must be taken both before and after filing for bankruptcy?Information relating to pre-bankruptcy credit counseling and post-bankruptcy debtor education is found on the Program’s Web site at: Credit Counseling & Debtor Education Information.
How and where do I file my bankruptcy?
If you retain an attorney, they will file it electronically for you. The physical location or address of the Federal Courthouse depends on the county you resided in at the time your Bankruptcy is filed. There are three bankruptcy divisions (Courts) in Florida. for Bankruptcy filing purposes: http://www.flmb.uscourts.gov/counties/
- The United States Bankruptcy Court for The Northern District of Florida; http://www.flnb.uscourts.gov/
- The United States Bankruptcy Court for The Middle District of Florida Middle; http://www.flmb.uscourts.gov/
- The United States Bankruptcy Court for the Southern District of Florida;
Are there any court filing fees associated with my bankruptcy?Yes. The filing fee for a Chapter 7 is $338 and the filing fee for a Chapter 13 is $313.00.
Can the filing fee be waived by the bankruptcy judge?Yes! Section 28 U.S.C. 1930(f)(1) provides that the Court may waive filing fee in a case under Chapter 7 for an individual if the Court determines that such individual has income less than 150 percent of the income official poverty line applicable to a family of the size involved and is unable to pay that fee in installments. When a judge waives the Chapter 7 filing fee for a debtor, the panel trustee who administers the case does not get paid, so judges take care to waive those fees only when it appears that the debtor truly cannot pay.
Can I pay my filing fee to the bankruptcy court in monthly installments?Yes! The Judge must enter an Order allowing you to pay the filing fee in installments. The debtor or their attorney must apply to the court and the application must be approved.
What will happen if I don’t pay the bankruptcy courts filing fee?The bankruptcy judge may dismiss your case filed or withhold entry of the bankruptcy discharge order, meaning you’re still obligated for the outstanding debt.
How do I prove my income if I am self-employed?You must produce “profit and loss statements” for the six months before the bankruptcy filing. You will also need bank statements, both personal and business for the six months prior to filing of bankruptcy and three years of business and personal income taxes.
What are the top reasons people file for bankruptcy?
- Credit Card Debt – Chapter 7 or Chapter 13 can eliminate credit card debt.
- Foreclosure – Many clients file for Bankruptcy to stop their home from being foreclosed upon and sold. They are afforded the opportunity to stop the foreclosure sale and save their home. The debtors can attend a mortgage mediation.
- Repossession – Once you file bankruptcy, an “automatic stay” is entered and any effort to repossess your automobile must stop. Bankruptcy will stop or discharge any lawsuit related to a repossession.
- Wage Garnishment – Under current Florida law, if your wages or bank accounts are going to be garnished, you will not receive any notice until after the wages have been withheld or a hold has been placed on your bank account. Once you file for Bankruptcy, wage garnishment must stop, the money taken should be returned and the debt owed is discharged in bankruptcy. Garnishment cannot exceed 25 percent of your net wages. A creditor can continue to garnish your wages under a continuing writ of garnishment until the judgment is paid in full.
- Medical Bills
- Death of a spouse
What is a judgment?After an order for the debt, you owe is entered against you, you are a “judgment debtor.” You owe the ordered amount plus penalties and interest so long as not paid in full. A judgment can last for up to 20 years and interest and attorney fees can accrue every year. A creditor who obtains a judgment against you is called a “judgment creditor”. If a judgment is entered against you by a court, your wages or bank account may be garnishment. There is a legal process called a levy or execution where a creditor can collect money owed under a judgment including the seizure of personal property and real property. When this happens, a judgment creditor pays a bond to the local sheriff to seize personal property owned by a judgment debtor so that it can be auctioned, and the proceeds applied to pay the judgment.
The law allows the judgment creditor to obtain a writ of garnishment, which orders your employer to deduct money from your paycheck until you have paid off the judgment
What is secured debt?Secured debt is collateralized (secured) by property. A lender that owns the secured debt has the right to repossess or foreclose on the property.
What is an administrative debt?An administrative debt is a priority debt. Generally, it’s for goods or services to your bankruptcy estate after you file your petition. An example of an administrative debt is the fee charged by an attorney or other authorized professional for services rendered after the bankruptcy case was filed.
What debts are considered priority debts?
A priority debt is a creditor that is entitled to receive payment before other creditors. They “stand in line first,” so to speak, when money is being distributed. The Bankruptcy Code 11 U.S.C. §507 defines priority debt as follows:
- Unsecured claims for domestic support obligations.
- Wages, salaries, or commissions, vacation, severance, and sick leave pay earned by an individual.
- Tax on income or gross receipts for a taxable year ending on or before the date of the filing of the petition for which a return, if required, is last due.
- A property tax incurred before the commencement of the case and last payable without penalty after one year before the date of the filing of the petition.
- A tax required to be collected or withheld and for which the debtor is liable in whatever capacity.
- An employment tax on a wage, salary, or commission of a kind specified in paragraph
- Claims for death or personal injury resulting from the operation of a motor vehicle or vessel if such operation was unlawful because the debtor was intoxicated from using alcohol, a drug, or another substance.
Can I keep my house?Yes. Many debtors chose to keep their homes. You can homestead and keep your home and up to one-half acre of land from any forced sale if you live in an incorporated area. If you live in an unincorporated area, you homestead and keep up to 160 acres. You must be current on your mortgage if you decide to keep your home and file a Chapter 7. Suppose you are not present on your mortgage payments. In that case, you may need to file a Chapter 13 and make up the past due amount (arrearages) over time, usually 60 months. Some debtors chose to “surrender” their home, meaning “give it up” in Bankruptcy. If you surrender your home, you owe nothing to the lienholder. What is right for you may depend on whether you have equity in your house.
Is mortgage mediation available in bankruptcy?Yes. Mortgage Mediation can be ordered by a Bankruptcy Judge and the lender must participate. A Mediation may result in a reduction of your principal, your payments, and your interest. The lien holders can forgive the arrearages or offer many solutions and options to allow a debtor to keep their house. You may be able to strip your 2nd mortgage and discharge the debt as unsecured in a Chapter 13 depending on the value of the homes
Who can place a lien on my house?The 1st or 2nd mortgage holder, your H.O.A. (Homeowners association) or anyone who loaned you money to buy, improve or repair your home.
What if my home was in forbearance?To combat ongoing misinformation, the Federal Housing Finance Agency (FHFA) stated that borrowers in forbearance with a Fannie Mae or Freddie Mac are not required to repay the missed payments in one lump sum. If the hardship was not resolved, the forbearance plan can be extended. If the hardship has been resolved, the servicer will work with the borrower to set up a repayment plan, modify the loan so the borrower’s payments are added to the end of the mortgage, or set up a modification that reduces the borrower’s monthly mortgage payment. Read more about FHFA and CFPB’s Borrower Protection Program here. To see the actions FHFA has taken to help Americans impacted by the coronavirus remain in their homes please visit FHFA’s Webpage on Coronavirus Actions.
What assets may I keep?It is possible to keep all your assets. It all depends on the exemptions you claim, the outstanding loans, whether you’re current on your secured loan payments (i.e., car or house), what chapter you file under (7 or 13), and what financial instruments your money is invested.
Can I keep my personal property?If you do not claim the homestead exemption described above, you have the right to claim a personal property exemption of up to $4,000 per person of your personal belongings. If you own more than $4,000 worth of personal property, you can choose which property to protect. The personal property includes money held in a bank account.
Can I keep my vehicle?Yes. However, you must be current on your payments. Some debtors surrender their car, meaning they are no longer obligated to pay the debt, but they no longer have use of the car.
Should I buy a new car before I file?Do not incur more debt, buy new/used cars, get loans shortly before you file for bankruptcy.
Can I keep my retirement account?Most retirement accounts are “exempt,” meaning you keep them so long as you do not liquidate or cash out your retirement account immediately before filing bankruptcy.
The following types of pensions and retirement funds are exempt in Florida:
- ERISA qualified retirement plans and pensions including 401(k) ‘s, 403(b) ‘s.
- Profit sharing and money purchase plans, SEP and SIMPLE IRAs, and other defined benefit plans) are fully exempt.
- IRA’s and Roth IRAs are exempt up to $1,171,650.
- Benefits payable under the Florida Retirement System.
- State and County officers and employee’s retirement system benefits.
- Firefighter pensions.
- Municipal police pensions.
- Teachers’ retirement benefits.
Can I keep my life insurance policy?Yes, but you must continue to pay your premiums. The cash surrender value of a life insurance policy and the proceeds of an annuity contract is fully exempt. (See Florida Statute 222.14).
Will I be able to keep my prescribed health aides?Any health aids used by you, or your dependents are exempt from being taken by creditors.
What other types of income are exempt from garnishment?Social Security benefits, workers’ compensation, unemployment benefits, disability benefits, veteran’s benefits and retirement benefits are exempt from garnishment. Pensions, 401(k) plans, life insurance proceeds, college savings funds, medical savings accounts and earned income credits from your taxes are also exempt from collection.
What is the “Florida head-of-family exemption?”If someone makes $750 or less per week in net wages, and the person is a head of family, those wages are exempt from collection. A head of family is one that provides more than half of the support for a child or other person. Wages in a bank account that belong to a head of family are protected from being seized for six months. You must file an affidavit with the court to declare your head-of-family status and protect your wages from being garnished.
Will my friends, family, or employer find out about my Bankruptcy?Not unless you owed them money. Although Bankruptcy filings are public record through the PACER website, they are difficult to locate.
Can I access the court records to check on my case?Yes, bankruptcy court records are accessible via the website “PACER” (Public Access to Court Electronic Records). Information on obtaining a PACER account is available at: PACER Service Center.
Can I get a free copy of my credit report?YES! Go to www.annualcreditreport.com for a free copy.
If I have filed for bankruptcy in the past, can I file again?The Bankruptcy Code allows debtors to file Bankruptcy again. There are no restrictions on the number of bankruptcy cases you can file or when you can file another bankruptcy. However, the code does limit the number of bankruptcy discharges you may receive during a specified period. Filing a bankruptcy and receiving a bankruptcy discharge are two separate and distinct matters.
How long do I have to wait to file bankruptcy again?
- The time you must wait between Chapter 13 cases is two years.
- If your previous bankruptcy was filed as a Chapter 7, and you want to file a Chapter 13, you must wait four years between filings to receive a bankruptcy discharge.
- If your previous bankruptcy case was filed under Chapter 13, you must wait six years before filing a Chapter 7 case to be eligible to receive a bankruptcy discharge.
- The time you must wait between Chapter 7 cases is eight years between Chapter 7 bankruptcy cases to be eligible for another bankruptcy discharge under Chapter 7.
- If you were in a previous Chapter 13 that was a 100% plan, there is no waiting period to file for a Chapter 7 or 13.
Will my I.R.S. tax debt be discharged?It’s a common misconception that tax debts cannot be discharged in bankruptcy. Income tax debts may be eligible for discharge in Chapter 7 of the Bankruptcy Code. Tax debts are typically priority debts and are paid first when assets are liquidated in Chapter 7 and are paid in full in a Chapter 13 payment plan. There are Five Rules to Discharge Tax Debt, and all must be met.
What are the requirements to discharge tax debt?
- The tax return must be due at least three years ago.
The taxes owed must be from a tax return that was due at least three years before the taxpayer files for bankruptcy. The due date includes any extensions.
- The tax return must have been filed at least two years ago.
The debt must be related to a tax return that was filed at least two years before the taxpayer files for bankruptcy. The time is measured from the date the taxpayer filed the return. Tax debts that arise from unfiled tax returns are not dischargeable. This is an important distinction because the IRS routinely assesses tax on unfiled returns. These tax liabilities can’t be discharged unless and until the taxpayer files a tax return for the year in question.
- The tax assessment must have been at least 240 days old.
The IRS must assess the tax at least 240 days before the taxpayer files for bankruptcy. The IRS assessment can arise from a self-reported balance due (such as a tax return you filed), an IRS final determination in an audit, or an IRS proposed assessment that has become final. In other words, you reported what you owed, or the IRS has officially stated, “This is what you owe.”
- The tax return wasn’t filed fraudulently.
The tax return cannot be fraudulent.
- The tax return must be due at least three years ago.
What debts are not discharged in bankruptcy?
The United States Bankruptcy Code lists several debts that are not eligible for a discharge in bankruptcy. See 11 United States Code § 523. The following are some debts not discharged in bankruptcy.
- Credit that was obtained by false pretenses or actual fraud. If one lies or misrepresenting information on the credit application, the bankruptcy court may deny their discharge.
- Debts owed to a single creditor totaling more than $675 for a luxury good or service incurred by an individual debtor on or within 90 days before the filing of the petition are presumed to be non-dischargeable.
- Cash advances aggregating more than $950 obtained by an individual debtor on or within 70 days before the order for relief under this title are presumed to be non-dischargeable.
- Any domestic support obligation.
- Any willful and malicious injury by the debtor to another entity or the property of another entity.
- A fine, penalty, or forfeiture payable to and the benefit of a governmental unit.
- Any educational loan that is a qualified education loan.
- For death or personal injury caused by the debtor’s operation of a motor vehicle, vessel, or aircraft if such was unlawful because the debtor was intoxicated from using alcohol, a drug, or another substance.
- Money owed to a pension, profit-sharing, stock bonus, or other plan established under the Internal Revenue Service Code.
Can Student Loans Be Discharged In Bankruptcy?There are exceptions, but in most situations’ student loans will not be discharged in bankruptcy. To do so, debtors must meet strict eligibility requirements. The Court must determine that the debtor will experience undue hardship if the debtor is required to repay the student loans. The case of Brunner vs. New York State Higher Education Services Corporation established the three requirements for determining whether a debtor will experience an undue hardship if required to repay student loans. It is essential to work with an experienced Florida bankruptcy attorney who understands the Brunner Test.
Can I discharge my timeshares in bankruptcy?Yes, you can surrender your timeshare back to the lender, but you’ll likely remain responsible for maintenance fees until the bank forecloses and transfers title out of your name. Bankruptcy law considers a timeshare, real estate, and treats it in much the same way as your house. Surrendering the timeshare in bankruptcy will eliminate your liability for the remaining balance, and any unpaid maintenance fees assessed before your filing date. However, you’ll continue to be responsible for the maintenance fees that accrue after you file bankruptcy and until the foreclosure concludes. You’ll remain the legal owner of the timeshare until the lender forecloses on the property and transfers the title out of your name.
Can I file without my spouse?Yes. A husband and wife need not file together. However, if only one spouse is filing, the non-filing spouse’s income will still be considered when determining whether the debtor must file a Chapter 7 or a Chapter 13 Bankruptcy. If the debtor is separated and is in the process of getting a divorce, the non-filing spouse’s income may not be required.
May I file for bankruptcy without an attorney?Yes, an individual may file bankruptcy “pro se”, a Latin term meaning “on one’s own behalf”.
What is a Pro Se Debtor?A Pro Se Debtor is one who files Bankruptcy without an attorney. A Pro Se Debtor is responsible for all proceedings of their case. Failure to comply with the Bankruptcy Code and Rules or with court orders may cause dismissal of the debtor’s case. It is recommended that all Debtors seek legal advice before filing for bankruptcy protection.
Will I be assigned a bankruptcy case number?A case number will be assigned to your case, and it indicates the office location of the Court, the year the case was filed, the type of case, the number assigned to the case and the assigned judge. Example: 6:12-bk-00001-KSJ, 6 indicates the office in which the case is filed (3 – Jacksonville, 6 – Orlando, 8 – Tampa, 9 – Ft. Myers); 12 is the year filed, bk indicates a bankruptcy case (ap indicates an adversary proceeding); 00001 is the case number assigned, KSJ stands for Judge Karen S. Jennemann.
Who are the bankruptcy Judges for Jacksonville and the surrounding counties?A complete list of judges presiding over bankruptcy cases in the Middle District of Florida, click here: Bankruptcy Judges.
What is an automatic stay?An “automatic stay” is effective immediately upon the filing of a bankruptcy petition. The “automatic stay” stops creditors from pursuing you immediately, and all phone calls, lawsuits, garnishments, collections, or other actions must stop. If the automatic stay is violated, the violating party can be sanctioned by a bankruptcy judge.
Can the automatic stay be lifted?Yes, any creditor can file a “Motion to Lift Stay” with the bankruptcy court asking for “relief from the automatic stay”. Most often these are filed by secured creditors like vehicle lenders and home mortgage holders to retrieve possession of the secured collateral. The court will give “relief from the bankruptcy stay” to a creditor only under certain circumstances and for good cause.
What happens if a creditor violates the automatic stay?If a debt collector violates the automatic stay, they may be sanctioned under by a bankruptcy judge, and you may be able to sue them under the Fair Debt Collections Act and/or the Florida Fair Debt Collections Act.
What are the elements of a bankruptcy stay violation claim?
The filing of a bankruptcy petition creates a bankruptcy stay, applicable to everyone. This stay is effective upon the filing of a bankruptcy petition without any notice or order from the bankruptcy court. Nothing is more basic to bankruptcy law than the automatic stay, and nothing is more important to fair case administration than enforcing the stay violation. One who is injured by any willful violation of the stay may be able to recover actual damages, including costs, attorneys’ fees, and punitive damages. Punitive damages are only appropriate where the stay violation was conducted in bad faith, with malice, or in a particularly egregious manner. Courts have identified several factors to be weighed in determining whether an award of punitive damages is appropriate. These are “the nature of the creditor’s conduct, the creditor’s ability to pay, the motives of the creditor, any provocation by the debtor, and the creditor’s level of sophistication.” A debtor that files a claim for a bankruptcy stay violation bears the burden of proving the following by a preponderance of the evidence:
- That a bankruptcy petition was filed.
- That the debtor is an individual.
- That the creditor received notice of the petition.
- That the creditor’s actions were in willful violation of the stay.
- That the debtor suffered damages
What happens to the automatic stay if I file multiple bankruptcies?
If within the 1-year period before the filing of your present bankruptcy case you had one active prior bankruptcy case, which was dismissed, the automatic stay would go into effect at the filing of your new case but would automatically expire after 30 days, unless certain conditions were met. There is a presumption that the second bankruptcy filing was made in bad faith. However, the debtor may seek to extend the automatic stay by motion to the bankruptcy court and proving this bankruptcy was filed in good faith. To extend the automatic stay you need to show that in your prior bankruptcy filing(s) and your new one you are using the bankruptcy laws appropriately, and not to harass and delay creditors. The debtor will be required demonstrate that the second bankruptcy case was filed in good faith by clear and convincing evidence. The bankruptcy court will evaluate if there has been a substantial change in circumstances, and good reason to believe that the debtor will carry the current case through to discharge.
If within the 1-year period before the filing of your present bankruptcy case you had two or more active prior bankruptcy cases which were dismissed, the automatic stay would not go into effect at all at the filing of your new case. But the automatic stay could be imposed by the court if within 30 days after the filing of the new case you file a motion and convince the bankruptcy court that the new case was filed “in good faith.” You must present clear and convincing evidence that the third bankruptcy filing was made in good faith. This law was intended to prevent so-called serial bankruptcy filings. The one-year period for termination of the automatic stay begins to run from the date of dismissal of the first case.
In a joint bankruptcy case, if only one of the debtors had a prior case dismissed, then the automatic stay is affected only as to the debtor with the previous case. It should be noted that the debtor is required to file and serve a motion so the bankruptcy court can have a hearing and enter an order granting the motion within 30 days of the bankruptcy petition being refiled. Failure to file a timely motion may have serious consequences.
How do I obtain a copy of my bankruptcy discharge order?You can obtain a copy from the bankruptcy clerk’s office by coming in person or sending a written request. You may also contact the Bankruptcy Court’s contracted photocopying service, Judicial Research and Retrieval Service in Tampa at (813)-228-7200, Orlando at (800)-529-6226, and Jacksonville at (813) 228-7200. You can access it online using PACER or call your attorney and get a copy.
Can my bankruptcy discharge be denied?
Yes, pursuant to 11 U.S.C. § 727, the debtor’s discharge may be denied in a Chapter 7 case for the following reason:
- the debtor failed to keep or produce adequate books or financial records;
- the debtor failed to satisfactorily explain any loss of assets;
- the debtor committed a bankruptcy crime such as perjury;
- the debtor failed to obey a lawful order of the bankruptcy court; or
- there was a fraudulently transferred, concealed, or destroyed property that would have become property of the estate. Please see § 727 for a complete list.
When will I get a copy of my bankruptcy discharge order?Approximately 60 days after your creditors meeting, you will receive a Discharge Order entered by the Bankruptcy Judge. Your Bankruptcy Lawyer will receive a copy too. If you lose your copy, your Bankruptcy Lawyer can obtain a copy for you, or you can go to https://pacer.login.uscourts.gov where you can retrieve a copy of your Bankruptcy Petition, including the Discharge Order.
What does a bankruptcy discharge order do?A bankruptcy discharge in a bankruptcy case voids any judgment with respect to any debt discharged. It acts as an injunction against the commencement or continuation of any legal action to collect recover or offset any such debt. It discharges all your applicable debt.
How long will the bankruptcy appear on my credit report?A Chapter 7 bankruptcy is reported on your credit report for at least ten years from the date that your Bankruptcy Petition was filed. A Chapter 13 Bankruptcy will appear on your credit report for seven years from the date you filed your case.
What if I have not filed my income taxes?You will not receive a Bankruptcy Discharge from the Bankruptcy Judge until you have filed taxes for all years required.
What is a reaffirmation agreement in bankruptcy?A debtor may sign a “reaffirmation agreement” for assets such as an automobile. This agreement states they will pay all or a portion of the money owed, even though the debtor has filed bankruptcy. The reason a reaffirmation agreement is signed is if the debtor wants to keep a car or any other secured asset. In return, the creditor agrees they will not repossess the collateral if the payments are made timely.
Must I list all of my assets on my bankruptcy petition?YES! The Federal Bankruptcy Law requires you to list all your assets. You must also assign a value to these assets. Typically, it is the resale or garage sale value. Do not lie or hide any assets. It is a Federal Crime to do so. Your Bankruptcy can be dismissed without you receiving a discharge, or worst you could be charged with a crime and go to Federal Prison.
Will the bankruptcy trustee appraise my assets?Possibly. The bankruptcy trustee has the authority to retain an appraiser to value your property. The larger the estate, the more likely this is to occur. You will be notified well in advance of the date and time the appraiser will be coming to your house. Do not hide or fail to disclose any assets. Failing to disclose or hiding assets could be considered bankruptcy fraud.
Can I sell or dispose of my assets if I am filing for bankruptcy?No! Never dispose of any assets immediately before filing bankruptcy. Never transfer assets to keep them out of your bankruptcy estate. Doing so could be considered bankruptcy fraud.
Do I need to provide a list of all my creditors to my bankruptcy attorney?It is helpful. My office will pull your credit report from the three credit reporting bureaus: TransUnion, Equifax, and Experian. This should list most of your debt. However, medical bills, cable bills, cellphone bills, loans from individuals, and apartment leases do not appear on your credit report. You will need to provide a copy of these bills to your bankruptcy attorney so they can be listed on your bankruptcy petition.
What if a debt is not listed on my bankruptcy petition is it still discharged?That depends, if you are a Chapter 7 “no asset” bankruptcy, then the answer is YES! A “no asset” case is one where the trustee recovers no assets from your estate to pay your creditors. Otherwise, you need to list all your debt to ensure it is discharged in bankruptcy.
Am I required to list all of my debt?You are required by the bankruptcy law to list all your creditors. You will be asked under oath at your creditors meeting if you have listed all your debt. You need to answer truthfully.
Can anyone object to my bankruptcy discharge?Yes, there can be an objection to your bankruptcy discharge but typically this does not occur. Objections need to be for a valid reason, such as the loan or debt was incurred due to fraud or perhaps charges were made within 90 days of the filing. There can be an objection to an individual debt being discharged in bankruptcy or an objection to the entire case being discharged in bankruptcy.
Can bankruptcy stop my wages or bank accounts from being garnished?Yes! A garnishment will stop immediately upon the filing of a bankruptcy petition. The bankruptcy court enters and “automatic stay and all legal procedures, proceeding, collections attempts, and garnishments must stop.
Are “bad checks” discharged in bankruptcy?Yes! Bad checks can be discharged unless there is fraud involved.
Does it matter if debt is business debt versus personal debt?Business Debts are treated differently with respect to the “means test”. If the primary source of debt is because of or related to your business, the means test does not apply. Meaning higher wage earner that would typically have to file a Chapter 13 bankruptcy will qualify for a Chapter 7 bankruptcy. Make sure and let your bankruptcy attorney know about your business debt.
What happens to co-signers of loans and credit cards?Unless the co-signer has filed bankruptcy as well, they remain liable for the debt. Your filing for bankruptcy has no effect on their liability.
Will I be able to get credit after my bankruptcy discharge?You will receive credit cards offers in the mail almost immediately. Although you should take the appropriate steps to rebuild your credit correctly by being financially responsible.
Does it matter if debt is business debt versus personal debt?
What is a proof of claim?A “proof of claim” is filed by a creditor or one who claims to be owed money. It is a document or form that must be filed by a deadline set by the bankruptcy code. The proof of claim must list the amount of money due. Proofs of Claims can be disputed by the debtor or bankruptcy trustee.
What is the meeting of the creditors (a/k/a 341 Meeting)?After your bankruptcy petition is filed, a “Meeting of The Creditors” or “341 Meeting” is scheduled with a Chapter 7 or a Chapter 13 bankruptcy trustee. The trustee has a fiduciary duty to your creditors and is relied upon by the court to uphold the code. You must attend this meeting at which time you will be sworn in and placed under oath by the bankruptcy trustee. You have an obligation to tell the truth. Not telling the truth, while under oath and testifying before a bankruptcy trustee, bankruptcy judge or any other bankruptcy meeting or hearing is perjury and can be prosecuted as a Federal Crime that can result in jail time.
Why is my meeting called a “341” Meeting?It is called a “341 Meeting” because that is the Section of The United States Bankruptcy Code that requires The United States Trustees Office to schedule the meeting. All bankruptcy debtors must attend to receive a discharge.
When should I expect to attend the creditors or “341” meeting?The creditors or 341 meeting occurs about 30 days after your bankruptcy petition is filed. The meeting can be continued if necessary for medical reasons or other emergencies.
Where is the 341-meeting held?The meetings are being held by phone since Covid. You will be given a 1-800 number and a passcode to call in at a prearrange time. Please call in early and be prepared. The phone call will last about 5-10 minutes. If you were truthful and disclosed all your assets, then your 341 Meeting should go very smoothly.
What happens at the 341 meeting?
The Bankruptcy Trustee will swear you in and ask you the following questions.
- State your name, address, and telephone number for the record?
- Did you sign the petition, schedules, statements, and related documents?
- Did you read the petition, schedules, statements, and related documents before you signed them?
- Are you personally familiar with the information contained in the petition, schedules, statements, and related documents?
- To the best of your knowledge, is the information contained in the petition, schedules, statements, and related documents true, and correct?
- Are there any errors or omissions to bring to my attention currently?
- Are all your assets identified on the schedules?
- Have you listed all your creditors on the schedules?
- Have you previously filed for Bankruptcy? If so, the trustee must obtain the case number and the discharge information to determine the debtor(s) discharge eligibility.
- Is the copy of the tax return you provided a true copy of the most recent tax return you filed?
- Do you have a domestic support obligation? If so, to whom?
- Please provide the claimant’s address and telephone number to me, but do not state it on the record.
- Have you read the Bankruptcy Information Sheet Provided by the United States Trustee?
- Do you own or have any interest whatsoever in any real estate?
- Have you made any property transfers or given any property away within the last one-year period?
- If yes: What did you transfer? To whom was it transferred? What did you receive in exchange? What did you do with the funds?
- Do you have a claim against anyone or any business?
- Are you entitled to life insurance proceeds or an inheritance because of someone’s death?
- Does anyone owe you money?
- Have you made any large payments, over $600, to anyone in the past year.
- Were federal income tax returns filed on a timely basis?
- When was the last return filed?
- At the time of the filing of your petition, were you entitled to a tax refund from the federal or state government?
- Have you been engaged in any business during the last six years?
What if I do not appear for my creditors meeting?You will not receive a discharge.
How do I know which trustee was assigned to my case?The Chapter 7 bankruptcy trustees are assigned to cases at random by the bankruptcy court. Every bankruptcy trustee is different, and each has their own requirements regarding documents that bankruptcy debtors or their bankruptcy lawyers need to provide before the creditors meeting. Your bankruptcy attorney can advise you what documents must be provided to your bankruptcy trustee or to the United States Bankruptcy Trustees Office. A list of trustees and their addresses can be found at – https://www.justice.gov/ust/eo/private_trustee/locator/7.htm#mfl.
What documents will the trustee require me to submit?
The documents bankruptcy debtors must provide are:
- Six months of pay stubs.
- Six months of bank statements.
- Registration, Proof of Insurance, and copies of any titles to any vehicles including, but not limited to motorcycles, cars, boats, ATV’s, RV’s etc.
- Three years of income tax returns assuming the bankruptcy debtor had to file income tax returns. If a bankruptcy debtor was not required to file taxes, then your bankruptcy lawyer can complete an affidavit stating that you did not have to file taxes.
- A copy of your driver’s licenses and social security card.
Where can I get a copy of my title or registration?If the vehicle was registered in Florida, you can go to https://www.flhsmv.gov/ and obtain a copy of your title or registration.
Where can I get a copy of my tax return?https://www.irs.gov/ or you can pick a copy of them up at your local I.R.S. office. For Duval County and the surrounding areas, the I.R.S. office is located at: 400 W. Bay St., Jacksonville, Florida 32202.
What if I get a tax refund?Do not spend your tax refund until you received the Trustee approval.
Will bankruptcy affect my credit score?Maybe. Most of my clients were already delinquent paying their debt, they were facing foreclosure, wage garnishment, lawsuits, and repossessions. Bankruptcy improves their financial position and eventually their credit score. Don’t get too caught up with your credit score. Instead think about how much money you now that your debt has been discharged.
How can I rebuild my credit and increase my credit score?I would start by monitoring your credit score with Equifax, Wallet Hub, or any other credit monitoring service. You can boost your credit score by linking your bank account with Equifax. Equifax will give you a credit boost for on-time payments of electric bills, cable bills, Netflix, Hulu etc. Get a secured term loan from your lender. Make sure the loan is at least one year or longer. Make on-time payments. Ask for a secured credit card and use it occasionally paying it off every month. Do not max out your credit cards.
What is the taxpayers bill of rights?Every taxpayer has a set of fundamental rights they should be aware of when dealing with the IRS. They have the right to know what they need to do to comply with the tax laws. They are entitled to clear explanations of the laws and IRS procedures in all tax forms, instructions, publications, notices, and correspondence. They have the right to be informed of IRS decisions about their tax accounts and to receive clear explanations of the outcomes.
1) The Right to Quality Service.
Taxpayers have the right to receive prompt, courteous, and professional assistance in their dealings with the IRS, to be spoken to in a way they can easily understand, to receive clear and easily understandable communications from the IRS, and to speak to a supervisor about inadequate service.2) The Right to Pay No More than the Correct Amount of Tax.
Taxpayers have the right to pay only the amount of tax legally due, including interest and penalties, and to have the IRS apply all tax payments properly.3) The Right to Challenge the IRS’s Position and Be Heard.
Taxpayers have the right to raise objections and provide additional documentation in response to formal IRS actions or proposed actions, to expect that the IRS will consider their timely objections and documentation promptly and fairly, and to receive a response if the IRS does not agree with their position.4) The Right to Appeal an IRS Decision in an Independent Forum.
Taxpayers are entitled to a fair and impartial administrative appeal of most IRS decisions, including many penalties, and have the right to receive a written response regarding the Office of Appeals’ decision. Taxpayers generally have the right to take their cases to court.5) The Right to Finality
Taxpayers have the right to know the maximum amount of time they have to challenge the IRS’s position as well as the maximum amount of time the IRS has to audit a particular tax year or collect a tax debt. Taxpayers have the right to know when the IRS has finished an audit.6) The Right to Privacy
Taxpayers have the right to expect that any IRS inquiry, examination, or enforcement action will comply with the law and be no more intrusive than necessary, and will respect all due process rights, including search and seizure protections and will provide, where applicable, a collection due process hearing.7) The Right to Confidentiality
Taxpayers have the right to expect that any information they provide to the IRS will not be disclosed unless authorized by the taxpayer or by law. Taxpayers have the right to expect appropriate action will be taken against employees, return preparers, and others who wrongfully use or disclose taxpayer return information.8) The Right to Retain Representation
Taxpayers have the right to retain an authorized representative of their choice to represent them in their dealings with the IRS. Taxpayers have the right to seek assistance from a Low-Income Taxpayer Clinic if they cannot afford representation.9) The Right to a Fair and Just Tax System
Taxpayers have the right to expect the tax system to consider facts and circumstances that might affect their underlying liabilities, ability to pay, or ability to provide information timely. Taxpayers have the right to receive assistance from the Taxpayer Advocate Service if they are experiencing financial difficulty or if the IRS has not resolved their tax issues properly and timely through its normal channels.
What are some of the Federal Consumer protection laws?
Some of the Federal Consumer protection laws include:
- The Credit Repair Organizations Act – This act requires credit repair organizations to give you a copy of your rights as a consumer before you sign a contract. They also must give you a written contract that spells out your rights and obligations, and they cannot require you to pay them until they have delivered the promised services.
- The Fair Credit Reporting Act (FCRA) – Promotes the accuracy, fairness and privacy of information maintained and reported by credit agencies.
- The Equal Credit Opportunity Act (ECOA) – Prohibits creditors from discriminating against applicants based on sex, race, color, marital status, religion, national origin, age, receipt of public assistance or prior exercise of any rights under the Consumer Credit Protection Act.
- The Fair Credit Billing Act (FCBA) and Electronic Fund Transfer Act (EFTA) – Established procedures for resolving mistakes on credit billing and electronic fund transfer account statements in other words, credit cards and debit cards.
- The Fair Debt Collection Practices Act (FDCPA) – Prohibits debt collectors from using unfair, deceptive, or abusive practices to collect debts from consumers. Some of the federal consumer credit laws allow you to file your own claim against the offending business or organization for example, against a debt collector under the Fair Debt Collection Practices Act.
What are some of the State Consumer Protection Laws?State consumer protection laws include The Florida Deceptive and Unfair Trade Practices Act, which protects consumers from unfair, unconscionable, or deceptive acts in various types of transactions, including false or misleading advertisements and schemes.
What is the Service Members Civil Relief Act (SCRA)?Active military members can seek relief under the provisions of the SCRA. This act temporarily protects members from the entry of default judgments and enables the Court to stay proceedings against active-duty members while engaged in war or a military action. Generally, the protection ends when the member dies or within 90 days after separation from active duty.
What is the Service Members Civil Relief Act (SCRA)?Active military members can seek relief under the provisions of the SCRA. This act temporarily protects members from the entry of default judgments and enables the Court to stay proceedings against active-duty members while
What is the “Consumer Financial Protection Bureau”?What is “The Consumer Financial Protection Bureau”? The CFPB is a United States governmental entity that polices banks, lenders, and other financial institution to ensure they are complying with acceptable lending practices. If you believe you have been victimized by unscrupulous lending practices, you can file a complaint at with the CFPB at: https://www.consumerfinance.gov/complaint/.
Where do I report bankruptcy fraud?You may report suspected bankruptcy fraud by using the U.S. Trustee Program’s Internet hotline at [email protected](link sends e-mail). Instructions for using this Internet hotline are found at: Report Suspected Bankruptcy Fraud or you may report suspected bankruptcy fraud to a U.S. Trustee Program field office. A list of Program offices is found at: Nationwide Office Locator.
What if I am an immigrant?Immigration is now looking at 46 different factors to determine if an immigrant is self-sufficient and will not become a public charge to the U.S. in the future. Bankruptcy may be a factor. To pass the public charge test, the immigrant must have more positive factors than negative factors. It’s important that if a person on a visa or undocumented is wanting to file bankruptcy, advise them to speak with an immigration attorney first.
What is the Federal Housing Finance Agency?https://www.fhfa.gov/
What is the National Consumer Law Center?https://www.nclc.org/
What is the “unbundling” of attorney fees?In some areas of the law, attorneys may provide ”unbundled” legal services, otherwise known as a “limited scope representation.” An attorney that provides unbundled legal services does not represent the client from the beggin9ng to the end of the case. Instead, the attorney provides limited legal representation. The representation provided varies, depending on the area of the law, the State Bar Ethics Rules, the local court rules, and what an attorney is willing to agree to do. The unbundling of legal services is common in bankruptcy. Most jurisdictions require attorneys to clearly outline in their written retainer agreements what services will be provided for the retainer.
Can I sue if a creditor violates the automatic stay?Yes, if the creditors violations were “willful”, which in the bankruptcy code means any deliberate act taken by any creditor in violation of the automatic stay, which the creditor knows to be in existence. A “specific intent” to violate the stay is not required. To recover damages, the debtor must demonstrate that they incurred damages. An award of damages can be compensatory and punitive. Bankruptcy courts have held, where a violation of the stay is willful, the code mandates an award of actual damages. Whether to assess punitive damages is with the discretion of the court. Compensatory damages should be awarded to repair the injury and reimburse the costs caused by the stay violation, including an award of a reasonable attorneys’ fees, even if the debtor has suffered no other compensable harm. Emotional distress may give rise to actual damages for the purposes of establishing a claim, but only if the debtor can show a “clear evidence” that significant harm occurred because of the bankruptcy stay violation.
What is the Attorney General doing to protect homeowners?Florida’s Attorney General’s office is committed to investigating any business that deceives or defrauds a consumer in the mortgage or foreclosure process. If a homeowner believes they have been scammed, they should call the Florida Attorney General’s fraud hotline at 1-866-9-NO-SCAM or file a complaint online at myfloridalegal.com. http://www.myfloridalegal.com/#
What is the Federal Home Loan Bank System?The Federal Home Loan Bank System was created by the Federal Home Loan Bank Act as a government sponsored enterprise to support mortgage lending and related investment. The FHL Bank System provides its members (thrift institutions, commercial banks, credit unions, insurance companies, and certified community development financial institutions) with a source of funding for mortgages and asset-liability management, liquidity for their short-term needs, and additional funds for housing finance and community development. Approximately 80 percent of U.S. lending institutions rely on the FHL Banks. https://www.fhfa.gov/AboutUs
What is the FDIC?The Federal Deposit Insurance Corporation (FDIC) is an independent agency created by Congress to maintain stability and public confidence in the nation’s financial system. To accomplish this mission, the FDIC insures deposits; examines and supervises financial institutions for safety, soundness, and consumer protection; makes large and complex financial institutions resolvable; and manages receiverships. https://www.fdic.gov/getbanked/
What is the Florida Court system?The Florida court system is comprised of the Supreme Court, five district courts of appeal, 20 circuit courts and 67 county courts. Each layer of the Florida judicial system has a distinct role in providing justice to all Floridians. The mission of the judicial branch is to protect rights and liberties, uphold and interpret the law, and provide for the peaceful resolution of disputes. Justice in Florida will be accessible, fair, effective, responsive, and accountable. To be accessible, the Florida justice system will be convenient, understandable, timely, and affordable to everyone. To be fair, the Florida justice system will respect the dignity of every person, regardless of race, class, gender or other characteristic, apply the law appropriately to the circumstances of individual cases, and include judges and court staff who reflect the community’s diversity. To be effective, the Florida justice system will uphold the law and apply rules and procedures consistently and in a timely manner, resolve cases with finality, and provide enforceable decisions. To be responsive, the Florida justice system will anticipate and respond to the needs of all members of society and provide a variety of dispute resolution methods. To be accountable, the Florida justice system will use public resources efficiently and in a way that the public can understand.
https://www.floridasupremecourt.org/ Court System Organization & Structure
Supreme Court – The highest appellate court in Florida, the Florida Supreme Court’s.District Courts of Appeal – There are five District Courts of Appeal in Florida, located respectively in Tallahassee, Lakeland, Miami, West Palm Beach and Daytona Beach.Trial Courts – Circuit – There are 20 judicial circuits in the Florida court system. Circuit courts have general trial jurisdiction over matters not assigned by statute to the county courts and hear appeals from county court cases.
Trial Courts – County
The Florida Constitution establishes that there is ONE county court in each of Florida’s 67 counties. The county courts are sometimes referred to as “the people’s courts,” probably because a large part of the courts’ work involves voluminous citizen disputes, such as traffic offenses, less serious criminal matters (misdemeanors), and relatively small monetary disputes. https://www.flcourts.org/Florida-Courtshave
How do I search statewide records?https://www.myfloridacounty.com/ori/search.do?validentry=yes&skipsearch=yes&county=12;
How can I find a Credit Union near me?https://www.mycreditunion.gov/about-credit-unions/credit-union-locator
How can I find information about loans?https://www.bankrate.com/mortgages/
What is The Federal Housing Finance Agency (FHFA)?The Federal Housing Finance Agency (FHFA) was established by the Housing and Economic Recovery Act of 2008 (HERA) and is responsible for the effective supervision, regulation, and housing mission oversight of Fannie Mae, Freddie Mac (the Enterprises) and the Federal Home Loan Bank System, which includes the 11 Federal Home Loan Banks (FHLBanks) and the Office of Finance. Since 2008, FHFA has also served as conservator of Fannie Mae and Freddie Mac.
Can debt collectors call me after hours or at work?According to the Federal Trade Commission, debt collectors are not allowed to call after 9 p.m. or before 8 a.m., and they are not allowed to call your workplace if you have told them verbally or in writing that your employer does not allow such calls.
What should I tell debt collector that call?The Federal Trade Commission suggests that you request a written validation notice from the debt collector, and you cannot discuss the debt until one is received. Debt collectors are required to provide written notice within five days after first contacting you. The notice will include the name of the creditor, the amount owed and your rights under the Federal Fair Debt Collection Practices Act. You can send a “cease communication” letter to the collection agency and they must stop calling you about your debt. https://www.ftc.gov/about-ftc
What if I paid my relative money owed before I file bankruptcy?If you pay back an “insider,” such as your mother, friend etc., money owed to them within 90 days of filing for bankruptcy, the trustee will ask you to pay them the same amount of money to them that you paid to the “insider”. The trustee will redistribute the proceeds it to the creditors that filed proofs of claims. Each creditor will be paid in proportionate to the amount of debt owed to them. The remaining debt will be discharged in bankruptcy.
What is Florida’s Bankruptcy “Wildcard Exemption?”Florida’s Wildcard Exemption allows you to keep up to $4,000 of personal property if you do not use the homestead exemption.
What is a “Creditor Matrix?”Your bankruptcy petition should create a “creditor matrix,” once it is completed, which lists your creditors and their addresses. You must sign your bankruptcy petition before it is filed, which certifies under penalty of perjury that you listed all your creditors and their addresses. You should never intentionally leave out a creditor. If you fail to include a creditor, they may not be discharged in your bankruptcy. This list is intended to provide notice to your creditors that you have filed for bankruptcy. They are given the opportunity to attend your creditors meeting and question you regarding the debt. Any creditor can object to you discharging their debt and they must be notified there is an automatic stay in place and to cease any collection attempts or lawsuits. Your creditors are also notified of the time and place of your 341 “meeting of creditors” and are allowed to attend and question you regarding your debt.
What courses are required before filing for bankruptcy?There are two courses you must take to successfully complete your bankruptcy. The first course is a pre-bankruptcy “Credit Counseling” course and the second is post-filing bankruptcy petition course called a “Debtor Education” course. Once you complete the first course a credit counseling certificate will be forwarded to you and your attorney. The credit counseling certificate must be filed with your bankruptcy petition. You can complete this course through any credit counseling course approved by the U.S. Trustee Program. Pre-bankruptcy counseling course evaluates your current financial situation and discusses bankruptcy alternatives, and a budget. The second course, or the post-filing debtor education course includes budgeting, managing money, and proper use of credit. Both courses are available in person, on the phone, or online.
What counties are in the “The Northern District of Florida” bankruptcy court’s jurisdiction and where are the courts located?The United States District Court for the Northern District of Florida is one of three federal judicial districts in Florida. The bankruptcy court for The Northern District of Florida is held in Gainesville, Panama City, Pensacola, and Tallahassee. The Northern District counties includes Alachua, Dixie, Gilchrist, Lafayette, Levy, Bay, Calhoun, Gulf, Holmes, Jackson, Washington, Escambia, Okaloosa, Santa Rosa, Walton, Franklin, Gadsden, Jefferson, Leon, Liberty, Madison, Taylor, and Wakulla.
What counties are in the “The Middle District of Florida” bankruptcy court’s jurisdiction and where are the courts located?The United States District Court for The Middle District of Florida is one of three federal judicial districts in Florida. The bankruptcy court for The Middle District of Florida is held in Fort Myers, Jacksonville, Ocala, Orlando, and Tampa. The counties for the middle district include Charlotte, Collier, DeSoto, Glades, Hendry, Lee, Baker, Bradford, Clay, Columbia, Duval, Flagler, Hamilton, Nassau, Putnam, St. Johns, Suwannee, Union, Citrus, Lake, Marion, Sumter, Brevard, Orange, Osceola, Seminole, Volusia, Hardee, Hernando, Hillsborough, Manatee, Pasco, Pinellas, Polk, and Sarasota counties.
What counties are in the “The Southern District of Florida” bankruptcy court’s jurisdiction and where are the courts located?The United States District Court for the Southern District of Florida is one of three federal judicial districts in Florida. The bankruptcy court for The Southern District of Florida include the nine counties of Broward, Highlands, Indian River, Martin, Miami-Dade, Monroe, Okeechobee, Palm Beach, and St. Lucie.
What if I don’t have a social security number?If you do not have a social security number, you must use a tax-processing number issued by the IRS called an “ITIN number.” An ITIN is often assigned if you cannot get a social security number because of your immigration status. If you do not have a social security number or an ITIN number, you will need to be assigned one before filing bankruptcy.
What is a “Statement of Financial Affairs” a/k/a/ ”SOFA”?The Statement of Financial Affairs or SOFA section on your bankruptcy petition advises the bankruptcy trustee and the court about your financial situation and transactions before you filed for bankruptcy.
What is the “Summary of Assets and Liabilities” section of my bankruptcy petition?The Summary of Assets and Liabilities section on your bankruptcy petition helps the bankruptcy court determine if your debts are primarily consumer or non-consumer debts. Consumer debts ones incurred by an individual for personal, family, or household purposes. Any other debt is non-consumer debt. Business debt for example is non-consumer debt. It’s crucial to note, that if more than half of your debts are business debts, the “means test” does not apply.
What is a “Statement of Intention”?The “Statement of Intention” section on the bankruptcy petition is to where you advise all interested parties and the bankruptcy court if you intended on keeping your secured or leased assets.
What’s the “Statement of Your Current Monthly Income” section?The Federal Bankruptcy Code requires a debtor filing for bankruptcy to list all the gross income received the six months preceding the month your bankruptcy petition is filed. If your gross income is at or below the median income for Florida, you can file Chapter 7 bankruptcy without a presumption of abuse. If your income level exceeds median income for Florida, you will need to complete an “extended means test” to see if you will qualify for a Chapter 7 bankruptcy.
What is the “Declaration” that I must?At the end of the bankruptcy schedules is the “Declaration about Schedules.” When you sign this declaration, you are stating that all the information provided in your bankruptcy petition is true and correct. If you are married, your spouse must also sign the “Declaration about Schedules”. A friendly reminder, there can be a fine of up to $250,000, imprisonment of up to 20 years, or both for bankruptcy fraud.
New questionsHow do I determine if there is a lien?
What if there is a lien on my assets?
What if my name is on my elderly parent’s bank accounts?
What if I inherit anything after I file for bankruptcy?
Can I move out of state after filing for bankruptcy?
Do I have the right to see a bankruptcy judge if I do not agree with the trustee findings?
What if I refuse to move from a house I have surrendered?
What happens if a debtor dies in bankruptcy?
Can I take cash advances before filing?
Who is considered a dependent?
What constitutes bankruptcy fraud?
How soon can I get a car loan after I file for bankruptcy?
Should I continue using my credit cards?
Can I sell, dispose of or transfer any assets before filing?
Can I pay back friends or relatives’ money I owe them shortly before filing for bankruptcy?
What if I have been sued and have pending lawsuits?
What is a cramdown?
What is a motion for hardship discharge?
Are debts associated with drunk driving dischargeable in bankruptcy?
Are government fines or penalties, state, local or federal dischargeable?
What if I do not speak English?
Can I terminate my lawyer if I am not satisfied?
Can my lawyer terminate me as a client?
Does a lawyer have to take my case?
Is what I tell my lawyer confidential?
Can I have two bankruptcies pending at once?
How long do I have to live in Florida before I can file bankruptcy as a Florida resident?
What’s the best interests of creditors test?
What is the best-efforts test?
What happens if I do not take my 1st class?
What happens if I do not take my 2nd class?
What is a bankruptcy estate?
What if the car is in my name, but it is my child’s car?
Can an employer discriminate against me for filing for bankruptcy?
How do I know what my assets are worth?
Can I get a home loan after filing for bankruptcy?
Where do I mail the bankruptcy courts filing fee?