Bankruptcy and Foreclosure Attorney Blog

This is a very common, but valid concern. A foreclosure can stay on one's credit report for up to 7 years. This can be negotiated with the lender and is not automatic. You would want to make sure you get these type of agreements in writing. Also, make sure you do not get a 1099 for any kind of tax liability if you are successful in negotiating a short sale or other type of debt reduction.

If you choose to fight the foreclosure, you can report to your credit bureaus that the debt is disputed and that is how it should appear on your report. What are some of the effects of having a foreclosure, short sale, or deed in lieu on yoour credit report? It can become tougher to get financing for larger purchase items.

However, if you have a good job and a stable income, you may be able to rebuild your credit and become more attractive to creditors looking to extend credit.

Continue reading " How Long Does a Florida Foreclosure stay on My Credit Report? " »

If a debtor is under the state median income for the state of Florida, and files for Chapter 13 bankruptcy relief, he or she is able to complete a 36 month plan. However, many times the payments are too high and the debtor cannot afford the payments, especially if there are substantial arrearages.Therefore, it may be in the debtor's best interests to extend the length of the plan.

For example, the plan can run 40, 55 or even 60 months. It just cannot exceed the 60 month mark. The Trustee normally requires motor vehicles to be paid off within the 60 months also.

The idea is you should be coming out of the bankruptcy as debt free as possible. If you cannot afford the plan payments because your vehicle payment is too expensive, you may look to surrendering that particular vehicle. One of the nice features of a 13 bankruptcy is the ability to cram down vehicles. You must have purchased your vehicle over 910 days ago and it only works if you owe more than its worth. Typically, the debtor can cram it down to the Till interest rate which is around 5.75%.

Continue reading " If I qaulify for a 36 month Chapter 13 plan, does it have to be that Short? " »

Many times clients have unexpected deaths in the family. Many times this can cause a problem if the debtor is to receive an inheritance. If the debtor is already in bankruptcy and the case is pending, any inherited property or any property that is expected to be inherited could be subject to the bankruptcy Trustees control.

If the debtor received an inheritance within the last six months, that too could be subject to the Trustee's control. What if you already spent the money? Well, the Trustee could ask where it all went and look to that party or entity for recovery.

If that party no longer has the money or property, it can be sued and be indebted to the bankruptcy court. Typically, the Trustee can only go back as far as six months on recovering any type of inheritance, but it could be longer. It is imperative to disclose this in your bankruptcy or else you could lose your discharge and have your case dismissed. Of course, the property is only subject to turnover in a chapter 7. Property is not liquidated in chapter 13.

Continue reading " My Florida Bankruptcy and My Inheritance " »

It is difficult to work something out with a lender especially if they have already filed for foreclosure. However, sometimes it does help to have an attorney represent you and negotiate with opposing counsel. Many times a workout can be accomplished without having to file for formal mediation.

Sometimes, the bank is stubborn and will not work anything out. Therefore, it is imperative to have an attorney fight for your rights and defend action. Many times clients ask if the bank will consider a deed in lieu or short sale while the bankruptcy is pending.

The answer is typically, no. However, it does not hurt to ask and if there are hurdles and roadblocks in the foreclosure suit, that may give you the leverage you need to accomplish this goal.

Continue reading " Will my Lender work with Me after Filing a Florida Foreclosure? " »

A Reaffirmation Agreement is something that a lender will typically send to a debtor who has a secured debt. By reaffirming the debt, the debtor is agreeing to be personally responsible for the debt after the bankruptcy. Any subsequent bankruptcy would never be able to save the debtor should the debtor default on the loan. Therefore, it is imperative to really analyze the situation and whether or not it is in yor best interests to reaffirm.

What happens if you do not reaffirm the debt? Well, the balance on your credit report should be reported as zero to that particular lender. However, if you wish to keep that secured property, you better keep making the payments on it in order to avoid foreclosure of the property.

However, because you did not reaffirm, the debtor cannot be held personally responsible debt. If a creditor tries to collect on this debt, they may be violating the discharge injunction. This type of violatio is taken very seriously by the bankruptcy courts and the debtor could be entitled to monetary damages as a result.

Continue reading " What if I do not Reaffirm a Secured Debt in My Florida Bankruptcy? " »

This is a very common question. If you are being represented by an attorney, the attorney should do due diligence in your case to make sure everything is covered. However, sometimes debtors lie to their attorneys. If something is omitted from a bankruptcy schedule it can be detrimental to your case and you could face criminal charges for fraud and or perjury.

Many times debtors fail to mention ALL real and personal property owned or that tey may have an interest in. All assets and liabilities must be disclosed to the Trustee. Understandably, people make good faith mistakes all the time. The Trustees, for the most part can make that determination and sense when fraud or deceit is present in a case. The Trustee does not expect perfect schedules and peititions in every case and many times the schedules can be amended to correct the mistakes. Trustees perform title searches and run background checks so its not like debtors can get away with not disclosing things.

Continue reading " What if I fail to List Something on My Florida Bankruptcy Schedules? " »

Many times the costs of filing bankruptcy can become unrealistic, especially if a debtor is looking for private counsel. Most communities have area legal aid that charge minimum, if any, costs. However, normally, the filing fee for filing chapter 7 is $299.00. The filing for chapter 13 is $274.00. Legal fees can becom expensive in a bankruptcy, depending on hocomplex the case is.

Our offic does not like to quote over the phone without a formal consultation because it is not fair to the client or the attorney. Only after a full blown consultation will the attorney know the complexity of the case and a fair fee for the services that will be needed. We do not like to under or over quote the fee. Each case is unique and different. In addition to the legal fees and costs associated with bankruptcy, the Code now requires Debtors to take financial education courses.

These courses can run anywhere between $15-$50. The debtors are required to take a pre-filing class and also a pre-discharge class. These classes are available on the Internet, by phone, and even in class room setting. They are pretty convenient and require about an hour of time.

Continue reading " How much does a Personal Florida Bankruptcy Cost? " »

In order to qualify for the additional $4000 iper debtor in wild card exemptions to protect personal property, you cannot also claim the homestead exemption. Essentially, you cannot claim both in a personal bankruptcy. If you are surrendering the homestead, you obviously do not have to claim it and you will be allowed the wildcard exemptions.

If you are not able to claim wildcard exemptions, then a debtor is limited to $1000 in motor vehicle equity and $1000 in personal property. Recently, the middle district of Florida bankruptcy court ruled that if a debtor is underwater on the homestead (owe more than its worth), then the homestead exemption does not have to be claimed even if the debtor wants to keep the property. This is a great decision for debtors!

They get to keep their home and use the wildcard exemptions. However, if a debtor has any equity in the homestead and wants to retain that property, the homestead exemption must be claimed or else the debtor loses the property. The additional $4000 can only be used for personal property, not real property (such as real estate, timeshares, burial plots, etc).

Continue reading " How do I get the Wildcard Personal Property Exemption? " »

This is a very sensitive subject right now. Unfortunately, most modification programs are voluntary and the banks are only required to "consider" struggling customers for modification programs. Even if you are one of the lucky ones that is able to participate in a trial modification, that is only temporary.

Typically, the payments are lowered for a three month period with the difference rolled to the back of the loan without the length of the loan being extended. Therefore, once the debtor comes out of the modification, the payments are usually higher than the original loan payment! Most struggling homeowners cannot make such a financial turnaround or adjustment within three months!

However, some customers get lucky and are approved for a permanent modification. Even so, you need to read the fine print and make sure you are understandinwhat you are agreeing to. In most situations, "if its too good to be true, it probably is."

Continue reading " Will I be Approved for a Loan Modification? " »

. This is not uncommon. The Middle District of Florida sets confirmation hearings for chapter 13 plans. They are usually set 30-45 days from the meeting of creditors date. Often times, creditors and the Chapter 13 Trustee in the case will file objections and ask for amendments before a plan can be confirmed. Once a plan is confirmed, creditors (for the most part) are bound by the terms of the plan (including a payments and terms of payments).

At the confirmation hearing, if the plan is not ready to be confirmed, the case will most likely be continued unless there are other issues which merit a dismissal. It is not unusual for a case to be continued multiple times because these plans must be exact to the penny in order to be confirmed. What should the debtor do if this happens? Nothing, if being represented by an attorney.

The attorney should be receiving all correspondence from the court and should make the necessary adjustments based on the objections. The debtor should just keep making the payments according to the plan until he or she receives notification otherwise.

Continue reading " What happens if my Chapter 13 plan is Objected Too? " »

Many times the average Florida citizen is unaware that Floridians enjoy unlimited homestead protection (unless the home was bought within the last three years, then it is capped at around $146,000). What does this mean? It means that there only certain creditors who can force the sale of your home. Most creditors are not able to affect a homestead.

For example, if a credit card sues and is looking to collect a debt by affecting the homestead, it should not be allowed per Florida law. In Florida, the mortgage company (who has a lien on the home),anyone who performs work on the home and you do not pay up, IRS, and state and local governments can force the sale of a debtor's home.

Therefore, credit card companies and other creditors are limited the in the state of Floirda on what they can and cannot collect on. If you have questions about this, you should consult with an experienced attorney.

Continue reading " Can a Credit Card company take my House? " »

The answer is no. In Florida, the foreclosure must go through and title transferred out of your name before you have to leave the premises. This is important because it allows the homeowner to save money while the foreclosure case is pending. How are you able to save money?

Well, you do not have to make a mortgage payment while the foreclosure is pending because the bank will not and cannot accept it if they wish to pursue the action. The foreclosure case could take months, even years, if the your defend the action, before you have to move off the property.

However, if you have a 2nd lien or Home Equity Line of Credit (HELOC) on the property, those would still need be to be kept current in order to avoid a foreclosure by that entity.

Continue reading " Do I have to Move out of My House when it is in Foreclosure? " »

Many times clients ask if they should or have to make mortgage payments while they are in foreclosure. The answer is the bank (that is suing for foreclosure) will not accept payment while the case is pending. However, if you have a 2nd lien or a home equity line of credit, it is probably wise to go ahead and continue making those payments.

For example, if the foreclosure action is dismissed because you were able to work out some type of modification with the bank, and you are in default to your 2nd lien holder, that entity could foreclose on the property. When you took out the 2nd mortgage or the home equity line of credit, you used your home to secure or collateralize that debt.

When you miss payments, they could legally look to foreclose on that collateral. It may not be in heir best interest to foreclose (because they incur filing fees and other costs) because the 1st lien holder is the party that gets paid off first. In this economy, its rare to have equity after your first loan is paid off.

Continue reading " Do I have to make mortgage payments while my house is in Foreclosure? " »

Many times a debtor looking to file bankruptcy will have recently moved to another state or jurisdiction. For example, if a Floridian moved from Jacksonville to Pensacola, he or she may have to file the bankruptcy in the Pensacola, Northern District Federal Courthouse. Jacksonville is in the Middle District along with Tampa and Orlando.

The Middle District of Florida is one the highest volume areas in the country for filing bankruptcies. If a debtor has moved to the state of Florida and it has been less than 90 days since that relocation, the debtor cannot file in Florida.

In addition, the personal property exemptions that are enjoyed by each debtor, could be different if the debtor has not lived in the state of Florida for the past two years. Therefore, if you want to file bankruptcy in Florida, you have to have lived here for at least the past 90 days.

Continue reading " Can I file my Bankruptcy in Florida? " »

When valuing your vehicle, the Trustee will want to know the condition of the vehicle and what its "replacement value" would be in the market. The Trustee looks to NADA and Kelly Blue Book, among other, to help value debtors' vehicles.

For ordinary assets such as applicances and furniture, the Trustee will look to "fair market" value. Normally, the Trustee will not do a personal, walk through, inventory of a debtor's home. Many times, the Trustee may ask debtors to send in pictures or additional information based on the petition and schedules filed in the case. When valuing a debtor's primary residence or any other type of real property, the Trustee will use zillow.com to determine the market value of the home.

The market value of the home is important as it pertains to whether or not there is equitty which in effect, determines the personal property exemptions allowed under the case.

Continue reading " How are my Assets Valued by the Trustee in my Florida Bankruptcy? " »

Many times debtors are concerned with whether or not they are required to go to court. For the most part, debtors only have to attend court one time. Once the case is filed, there is a 341 hearing, also known as the meeting of creditors. Do the creditors actually show up? It is very rare for a creditor to show, but even if one does, it really has no bearing on the case.

The 341 meeting is not in front of a judge, but is in front of a Trustee. The Trustee is the representative of your creditors and the administrator for the court. At the 341 meeting, the creditor will want to verify contact information and ask a few questions based on the petition and schedules that were filed in the case. After this hearing you should not have to go back to court for anything. There are circumstances where the debtor may have to go back, but for the most part, that is not the case.

Debtors are not even required to attend Chapter 13 confirmation hearings unless they are not being represented by an attorney.

Continue reading " Do I have to go to Court for Bankruptcy? " »

Whether you file a 7 or a 13, a bankruptcy will last on the debtor's credit for ten years. The debts that have been discharged should be reported on the debtor's credit report with a zero balance. If not, there may be Fair Credit Reporting violations on both the state and federal levels.

There may also be discharge injunction violations where moetary damages may be awarded if you were denied financing because of a particular debt remaining on your credit report when it should have been discharged and reported as a zero balance.

You should contact an experienced bankruptcy attorney if you are contemplating bankruptcy or if you are not sure about bankruptcy consequences and procedures

Continue reading " How long does a Florida bankruptcy stay on my credit? " »

The answer is normally, no. Once the bankruptcy case is filed, the debtor(s) usually needs to get the Trustee's permission before he or she can incur additional debt. This includes new credit cards, vehicles, homes, and vacations.

The reason being is the idea behind a chapter 13 is that all disposable income should be paid out to secured and unsecured creditors in the form of one payment that is administered by the Chapter 13 Trustee. If the debtor(s) try and incur new debt, that will affect the plan payment being made every month because now there is an additional or, in some cases, a reduction in expenses. If there is a reduction in expenses, the plan payments may go up.

Continue reading " Can I incur new debt in a Chapter 13 Florida Bankruptcy? " »

Unfortunately, no. Fines for tolls, tickets, and restitution cannot be discharged in a chapter 7 or 13 bankruptcy. The reason being is the bankruptcy code is not meant to discharge all debts in which the debtor incurred.

These fines are supposed to act as a deterrent against committing that particular action again in the future. If a debtor was able to include these types of debts in a bankruptcy, that would take away the deterrent factor and that is not what the federal government is wanting to do.

Many times, clients ask if dui fines and penalties be discharged in bankruptcy. Again, the same answer applies. Unfortunately, no. Most IRS federal tax debt is nondischargeable also.

Continue reading " Can I get a Bankruptcy Discharge on Government Fines? " »