Posts Tagged: ‘Automatic Stay’

The Dangers of Filing Bankruptcy Pro Se

March 6, 2018 Posted by kingcade

Filing for bankruptcy “pro se” means that an individual represents himself or herself in the bankruptcy process.  It is a risky decision and there are a number of pitfalls associated with the same.  Filing for bankruptcy has a complex set of rules, forms, statutes and judicial decisions.  Some people choose to represent themselves because they think they cannot afford to hire a bankruptcy attorney or they may think they have a simple case.  Whatever the reasoning, it is not a wise decision.

Here are some of the most common problems with filing for bankruptcy pro se (without an attorney):

Filing the wrong type of bankruptcy– Each type of bankruptcy is designed to solve specific problems.  Property is treated very differently when it comes to Chapter 7 and Chapter 13.  If you file the wrong Chapter bankruptcy, you run the risk of losing valuable property or end up not being able to discharge certain debts.

Losing property you should have been able to keep– Filing for personal bankruptcy allows you to claim “exemptions,” which can save your home, even your business.  If you are filing for Chapter 7 bankruptcy in Florida, you can use Florida bankruptcy exemptions to protect your property.  Florida has one of the most generous homestead exemptions in the country. To use Florida’s exemptions, you must have resided in Florida for at least 730 days before filing your bankruptcy petition. Here are the most common Florida bankruptcy exemptions.

Not properly filling out the bankruptcy forms– When filing for bankruptcy, you will have to fill out much more than a standard bankruptcy petition.  You will be expected to submit dozens of supporting documentation, listing every single debt, all of your creditors and all of your assets.  If you make a mistake or miss something, costly delays can result.  Not to mention, you run the risk of your case being completely dismissed and rejected all together.

Continued creditor harassment– When you hire an attorney to file your bankruptcy, creditors are required by law to only speak with your attorney and may no longer harass you about your debt.  If you choose to represent yourself in bankruptcy, the lender may try and lift the automatic stay, which is what protects your from continued creditor calls while your bankruptcy is ongoing.   A consumer has specific rights when a creditor violates the automatic stay.

Failing to take required education courses– In Chapter 7 and Chapter 13 bankruptcy filers must take approved credit counseling courses before filing for bankruptcy, and complete a financial management course before receiving their bankruptcy discharge. Many pro se filers get confused about these requirements and if they fail to file the proper certificate, their entire case can be dismissed.

Failure to understand the above concepts will be problematic if a creditor challenges the dischargeability of a debt or if the bankruptcy trustee alleges you have committed fraud—or anything else that could crop up during the case. When you find yourself on the receiving end of a complaint or motion, an attorney is essential to your success.

If you have any questions on this topic or are in financial crisis and considering filing for bankruptcy, contact an experienced Miami bankruptcy attorney who can advise you of all of your options. As an experienced CPA as well as a proven bankruptcy lawyer, Timothy Kingcade knows how to help clients take full advantage of the bankruptcy laws to protect their assets and get successful results. Since 1996 Kingcade Garcia McMaken has been helping people from all walks of life build a better tomorrow. Our attorneys’ help thousands of people every year take advantage of their rights under bankruptcy protection to restart, rebuild and recover. The day you hire our firm, we will contact your creditors to stop the harassment. You can also find useful consumer information on the Kingcade Garcia McMaken website at www.miamibankruptcy.com.

Related Resources: https://www.nolo.com/legal-encyclopedia/pitfalls-filing-chapter-7-bankruptcy-without-attorney.html

Bankruptcy & Divorce: Which comes first?

July 14, 2017 Posted by kingcade

Going through a divorce can be stressful enough, but when you pile on financial issues the effects can be overwhelming.  Your financial situation can be greatly affected by a divorce, as divorce is commonly cited as the leading cause of bankruptcy.  Here are some important facts you should know when it comes to bankruptcy and divorce.

  1. Do not file for divorce and bankruptcy at the same time.  This is for the sake of simplicity.  People typically file bankruptcy before divorce for several reasons.  Once you file for bankruptcy an “automatic stay” is put in place.  This is a court order that prohibits creditors from contacting you and protects your property and assets.  This hold is in effect throughout the bankruptcy process.
  2. Chapter 7 bankruptcy is ideal for a quick divorce.  One of the benefits of filing for Chapter 7 is the timeline.  A Chapter 7 bankruptcy typically eliminates all dischargeable debts within three to six months, allowing you to file for divorce relatively soon after.  In comparison, a Chapter 13 bankruptcy establishes a three- to five-year payment plan for you to pay off your debt, which can drag your divorce out longer.
  3. Conditions of Bankruptcy. Abiding by the rules listed in the Bankruptcy Code is critical for having your debts discharged.  A Chapter 7 discharge may be denied if the debtor:
  • Fails to provide requested tax documents;
  • Hides property for the purpose of defrauding creditors;
  • Destroys financial books or records;
  • Commits perjury in connection to the bankruptcy case;
  • Violates a court order;
  • Fails to complete the mandatory credit counseling course.

Bankruptcy and divorce are chances for you to make a fresh start for you and your family. However, both of these processes can be extremely complex and detailed in nature.  You should consult with an experienced bankruptcy attorney and have a strong divorce attorney on your side who can guide you through the process and obtain the most successful outcome for you.

If you have any questions on this topic or are in financial crisis and considering filing for bankruptcy, contact an experienced Miami bankruptcy attorney who can advise you of all of your options. As an experienced CPA as well as a proven bankruptcy lawyer, Timothy Kingcade knows how to help clients take full advantage of the bankruptcy laws to protect their assets and get successful results. Since 1996 Kingcade & Garcia, P.A. has been helping people from all walks of life build a better tomorrow. Our attorneys’ help thousands of people every year take advantage of their rights under bankruptcy protection to restart, rebuild and recover. The day you hire our firm, we will contact your creditors to stop the harassment. You can also find useful consumer information on the Kingcade & Garcia website at www.miamibankruptcy.com.

Related Resources: http://www.divorcemag.com/monthly-newsletter/5-things-to-know-about-bankruptcy-and-divorce

When Filing for Bankruptcy- Timing Matters

July 7, 2017 Posted by kingcade

Timing the filing of your bankruptcy is important to obtain the best possible outcome in your case.  For example, waiting to file after creditors have already taken action against you can result in unnecessary legal costs and potential loss of property.  Filing shortly after transferring money or property to someone else, can run you the risk of being accused of bankruptcy fraud.

Here are a few points to remember when timing the filing of your bankruptcy:

Filing for bankruptcy will stop litigation.  It is best to file before a creditor receives a judgment against you.  This will save you the cost of legal fees and giving the creditor more rights to your property.

Prevents wage garnishment.  A creditor who has obtained a judgment against you can force your employer to deduct money from your check, even require your bank to withdraw the funds directly from your account.  You can save this money by discharging the debt before such actions can be taken.

Puts an end to creditor harassment & collection calls. As soon as you file for bankruptcy, creditors must stop contacting you and deal only with your attorney.  Creditors who continue to contact you are in violation of the U.S. Bankruptcy Code’s Automatic Stay and face sanctions by the Court.

Allows you to stay in your home. Filing for bankruptcy will stop the foreclosure process and allow you additional time to stay in your home.

Divorce & Bankruptcy: If you are in the middle of a divorce, it is best to file a joint bankruptcy with your spouse to discharge all debt before the marriage ends.  However, if your income is too high to qualify as a married couple you will need to decide whether the best option is to file individually while you are still married or wait until after the divorce.  When it comes to timing your bankruptcy filing while going through a divorce, you cannot go wrong setting up an appointment with an experienced bankruptcy attorney to discuss the best path for your financial future.  Many offer free consultations and Saturday appointments.

If you are in financial crisis and considering filing for bankruptcy, contact an experienced Miami bankruptcy attorney who can advise you of all of your options. As an experienced CPA as well as a proven bankruptcy lawyer, Timothy Kingcade knows how to help clients take full advantage of the bankruptcy laws to protect their assets and get successful results. Since 1996 Kingcade & Garcia, P.A. has been helping people from all walks of life build a better tomorrow. Our attorneys’ help thousands of people every year take advantage of their rights under bankruptcy protection to restart, rebuild and recover. The day you hire our firm, we will contact your creditors to stop the harassment. You can also find useful consumer information on the Kingcade & Garcia website at www.miamibankruptcy.com.

Related Resources:

http://bankruptcy.lawyers.com/bankruptcy-basics/time-matters-when-filing-chapter-7-bankruptcy.html

What Happens to Tax Debt in Bankruptcy?

January 26, 2017 Posted by kingcade

If you are considering filing for bankruptcy, you may be wondering if your tax debts can be discharged in bankruptcy court. Although the automatic stay will delay the IRS from contacting you about your debts, there are some taxes that cannot be eliminated in bankruptcy court. Here are three basic rules that will tell you if your tax debts are eligible for discharge.

  1. The Three Year Rule. Your tax debts must be three years old from the date they were due, not from the date that you filed. Tax returns are due on April 15th each year. This means that your 2010 taxes are not eligible for discharge until April 15th of 2014. This is because your 2010 taxes were technically due in April 2011. Calculate three years from the time the taxes were due.
  2. Your Tax Returns Must Have Been Filed for Two Years Before Bankruptcy. Taxes must be filed for two years prior to the bankruptcy filing to prevent delinquent taxpayers from filing late returns one day and bankruptcy the next.
  3. The Taxes Must Have Been Assessed More Than 240 Days Ago. The IRS must formally determine that you owe the taxes you are trying to eliminate in bankruptcy more than 240 days before you file the paperwork with the court. Note that an offer in compromise will delay the 240-day rule while it is pending plus an additional 30 days.

If you are in financial crisis and considering filing for bankruptcy, contact an experienced Miami bankruptcy attorney who can advise you of all your options. As an experienced CPA as well as a proven bankruptcy lawyer, Timothy Kingcade knows how to help clients take full advantage of the bankruptcy laws to protect their assets and get successful results. Since 1996 Kingcade & Garcia, P.A. has been helping people from all walks of life build a better tomorrow. Our attorneys’ help thousands of people every year take advantage of their rights under bankruptcy protection to restart, rebuild and recover. The day you hire our firm, we will contact your creditors to stop the harassment. You can also find useful consumer information on the Kingcade & Garcia website at www.miamibankruptcy.com.

Related Resources:

http://www.natlbankruptcy.com/bankruptcy-and-tax-debt-what-happens-to-tax-debt-in-bankruptcy/

http://www.thebankruptcysite.org/resources/bankruptcy/stop-irs-collecting-tax-debts.htm#

When Bankruptcy is the Best Option

May 25, 2016 Posted by kingcade

Filing for bankruptcy is not the end of the world. In fact, it can help improve your overall situation and relieve the financial stress you are facing. Bankruptcy stops collection calls, lawsuits and wage garnishment. It wipes out most, sometimes all of your debt and can improve your credit score.

Many credit bureaus and scoring experts will disagree, not seeing the whole picture.  For most people after struggling with insurmountable debt for sometime, their credit score has already greatly been affected by the time they file for bankruptcy.

Once they file for bankruptcy, their credit score typically increases. If the debt is erased, which is also known as a “discharge,” scores can increase even more- typically within a year. Accessing data from the Equifax credit bureau, researchers at the Federal Reserve Bank of Philadelphia found that filers’ credit scores plunged in the 18 months before filing for bankruptcy and rose steadily after that.  The average credit score for someone who filed Chapter 7, the most common type of bankruptcy, in 2010 was 538.2 on Equifax’s 280 to 850 range. (Scores in the low 600’s and below are generally considered poor.) By the time the filers’ cases were discharged, usually within six months, their average score was 620.3.

Credit scores are not the only factor to consider when making the decision to file for bankruptcy.  People who file for bankruptcy benefit from the “automatic stay,” which stops all collection activity, including lawsuits, wage garnishment and collection calls.  A Chapter 7 bankruptcy wipes out a number of debts, including: credit card debt, medical bills, personal loans, civil judgments (excluding fraud), past-due rent and utility bills, business debts and older tax debts.

Most of us feel we have an ethical obligation to repay our debts, if we are able to.  But oftentimes, people find themselves in over their head before realizing they need to consider bankruptcy as an option.  Some continue to pay down debt they may never be able to pay off, prolonging the damage to their credit score and diverting money that could be put into retirement savings.

Bankruptcy is likely your best option if your consumer debt (any of the debts listed above) total more than half your income, or if it would take five or more years to pay off that debt, with extreme fiscal measures.

Click here to read more on this story.

If you are in financial crisis and considering filing for bankruptcy, contact an experienced Miami bankruptcy attorney who can advise you of all your options. As an experienced CPA as well as a proven bankruptcy lawyer, Timothy Kingcade knows how to help clients take full advantage of the bankruptcy laws to protect their assets and get successful results. Since 1996 Kingcade & Garcia, P.A. has been helping people from all walks of life build a better tomorrow. Our attorneys’ help thousands of people every year take advantage of their rights under bankruptcy protection to restart, rebuild and recover. The day you hire our firm, we will contact your creditors to stop the harassment. You can also find useful consumer information on the Kingcade & Garcia website at www.miamibankruptcy.com.