Should I hire an attorney?
The bankruptcy law is complicated. There are numerous forms to be completed and filed in a timely manner. Hearings are held and testimony is taken under-oath. Filing false or misleading documents is a Federal crime. Hiring an attorney that is experienced and knowledgeable in bankruptcy is wise. These can be stressful times and an experienced attorney can alleviate some of your concerns and make the process more efficient. Look at my google reviews. Ask for references. Make the right decision for you and your family.
Can I get a free copy of my credit report?
YES! Go to www.annualcreditreport.com for a free copy.
Can I file bankruptcy?
Probably. There are rules and regulations with respect to who can file and what Chapter they can file under. An experienced bankruptcy attorney should know the answer. If you have filed a Chapter 7 in the past, you will need to wait 8 years from the date you filed to receive another Chapter 7 discharge.
Can I file without my spouse filing?
Yes. A husband and wife need not file together. However, if one spouse is filing the non-filings spouse’s information will need to be obtained. Personal information must be obtained such as income, employer, and residency. If the spouses are in the process of getting a divorce this becomes problematic but not a barrier to filing.
What happens after I file?
An “Automatic Stay” takes effect. All lawsuits, debt collection attempts, phone calls from creditors, garnishment withholdings, foreclosures proceedings and the like MUST STOP. If a debt collector violates this automatic stay they may be sanctioned under the Fair Debt Collections Act and/or the Florida Fair Debt Collections Act.
You must attend a “Creditors Meeting” also called a 341 meeting. In all bankruptcy cases a trustee is appointed by the court to review the case. The Trustee’s role is to determine if there are any assets available to liquidate. All debtors must attend this meeting.
You should receive a “Discharge Order” approximately 90 days after filing your bankruptcy petition. This Discharge Order eliminates your liability or obligation to pay the eligible debt. There should be no further collection attempts from any of your discharged debt.
Can I keep my home?
Many clients chose to keep their home. Some chose to “surrender” their home and owe nothing to the creditor. What is right for you may depend on whether you have equity in the home. Some clients elect to participate in a “Mortgage Mediation” in an attempt to reduce their principle, payments and interest. Sometimes, banks have “forgiven” arrearages. There are many options to discuss including possible stripping or discharging a 2nd mortgage.
What about my retirement account?
Most retirement accounts are exempt meaning you keep all of the proceeds. However, do not cash in your retirement account before filing bankruptcy. There could be dire consequences like you losing these funds to the Trustee and your creditors.
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 IRA’s, and other defined benefit plans) are fully exempt. (11 U.S.C. Section 522 and Fl. Stat. 222.21.)
IRA’s and Roth IRA’s are exempt up to $1,171,650. (11 U.S.C. Section 522(b)(3)(C)(n).)
Benefits payable under the Florida Retirement System. (Fl. Stat. 121.131.)
State and County officers and employees retirement system benefits. (Fl. Stat. 122.15.)
Firefighter pensions. (Fl. Stat. 175.241.)
Municipal police pensions. (Fl. Stat. 185.25.)
Teachers’ retirement benefits. (Fl. Stat. 238.15.)
Can I keep my life insurance policy?
Yes. You must continue to pay your premiums. The proceeds of a life insurance policy payable to a specific beneficiary are fully exempt. (Fl. Stat. 222.13.) The cash surrender value of a life insurance policy and the proceeds of an annuity contract are fully exempt. (Fl. Stat. 222.14.)
Can I keep my automobile?
You must be current on your payments. Some clients will reaffirm their debt meaning they keep their car and continue to be obligated to pay the debt. Some clients surrender their car meaning they are no longer obligated to pay the debt.
Do I have to List all my assets?
YES! The Federal Bankruptcy Law requires you to list all your assets. You must also value 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 and your bankruptcy may be dismissed.
Will the value of my property be verified?
Possibly. The Trustee has the authority to retain an appraiser to value your property. The larger the estate, the more likely this is to occur.
Can I Sell my assets immediately before filing bankruptcy?
Absolutely not! A trustee has the power to reverse the sale or transfer. DO NOT DISPOSE OF YOUR ASSETS IN AN ATTMEPT TO KEEP THEM OUT OF BANKRUPTCY.
Do I need to give you a list of all my creditors?
It is helpful. However if you retain my office to file your bankruptcy, I will pull a credit report from the three credit reporting bureaus: TransUnion; Equifax and Experian. Most likely this will include the majority of your debt. Some debt is not listed on your credit report. Debt such as: Medical Bills; Cable Bills; Leases; Cell Phone Bills usually do not appear…just to name a few. Before you bankruptcy petition is filed you will review the document with me and will confirm it includes all your debt. You are required by the bankruptcy law to list all your creditors. You will be asked under oath at your creditors meeting by the Trustee if you have listed all your debt. You need to answer truthfully and the answer should be YES.
What if some of my debt is not listed? Is it still discharged?
That depends on your case. If you are a “no asset” case, then YES! A “no asset” case is one where the Trustee does no recover any assets to pay to any creditors. Otherwise, you need to list all of your debt for it to be discharged.
Can there be an objection to my bankruptcy discharge?
Yes. Typically this does not occur. Objections need to be for a valid reason, such as fraud. If you have told the truth, have not concealed or transferred any assets. It more likely than not you will receive a discharge.
What if my wages or bank account is being garnished?
A garnishment can be stopped immediately upon the filing of a bankruptcy. Some of your money may be recovered.
Are “Bad” checks discharged in bankruptcy?
Typically they are dischargeable unless there is fraudulent activity involved.
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. You filing for bankruptcy has no effect on their liability.
What happens after my bankruptcy discharge?
You will receive offers of credit cards in the mail almost immediately. Although you should take the appropriate steps to rebuild your credit, be careful of becoming over extended. Use this opportunity to start fresh from the burdensome debt.
How long will a bankruptcy remain on my credit report?
Bankruptcy may be listed on your credit report for 10 years. Even though you have a bankruptcy listed on your credit report you should be able to obtain loans for cars or houses if needed. Be careful of high interest rates and bad terms. Some creditors prey on individuals who have recently received a bankruptcy discharge.