Bankruptcy Law Archives - Page 13 of 128

How Is Debt Handled in Divorce?

Posted on August 6, 2019by Admin

When a couple goes through a divorce, their property and finances are not the only thing that is divided in the legal proceedings. Many times, couples end up having to divide debt. The following rules determine how debt is handled in divorce.

Equitable Distribution

In Florida, property and debts are handled using the concept of equitable distribution. Many states require that property and debt be divided equally under the concept of community property, but Florida requires more of an equitable or “fair” division of assets and debts. This normally results in a relatively equal division, but equitable does not always result in a precise, equal division.

How to Protect Your Home in Bankruptcy

Posted on August 5, 2019by Admin

When facing the possibility of filing for bankruptcy, whether it be Chapter 7 or Chapter 13, the thought of losing your home can be frightening. In fact, losing one’s home can be one of the biggest concerns holding someone back from filing for bankruptcy. The lawyers at Kingcade Garcia McMaken work hard to protect people from losing their assets in a bankruptcy case, including the filer’s home.

Automatic Stay

One of the first protections filers receive when proceeding with any type of bankruptcy case is the automatic stay. The automatic stay keeps creditors from continuing any collections actions, and it immediately goes into effect after the bankruptcy petition is filed.

Bankruptcy Law, student loan debt, Student Loans

Bankruptcy: Finally An Option for Student Loan Debt?

Posted on August 1, 2019by Admin

Student loan debt is at an all-time high with 44 million Americans carrying outstanding amounts of the debt. It is currently estimated that $1.5 trillion is owed in student loan debt. With that many people graduating with student loans, it should come as no surprise that many of these borrowers eventually default.

Approximately 11 percent of student loan borrowers have defaulted or were delinquent on their loans by the end of 2018. For the most part, consumer debt, including credit card and medical debt, can be discharged in a bankruptcy case. Only a very select list of debt is not allowed to be discharged at the end of a bankruptcy case, including child support, alimony, criminal fines and certain overdue tax debt.

Bankruptcy Law, Credit

Tips for Renting an Apartment After Bankruptcy

Posted on July 31, 2019by Admin

Filing for bankruptcy gives individuals a financial fresh start, relieving the stress of debt and collection calls. However, declaring bankruptcy can add some additional obstacles to the apartment- hunting process, but not to worry: You can rent an apartment after declaring bankruptcy. It comes down to the application process, and we have some important tips for you.

Honesty Is the Best Policy.

It can be tempting to want to hide the fact that you recently filed for bankruptcy, but unless the apartment or rental home is a property that does not require a credit check for rental applications, this fact will be discovered quickly. The last thing an applicant wants is for the landlord to find this out after the fact before the renter has any chance to explain the situation. If a bankruptcy is on the individual’s history, it is best to be upfront from the beginning. Honesty is the best policy.

Bankruptcy Law, Debt Relief

The Biggest Violations Made by Debt Collectors

Posted on July 25, 2019by Admin

Debt collectors can be persistent to the point of becoming threatening or intimidating. However, this does not mean consumers are without rights. The Fair Debt Collection Practices Act (FDCPA) protects consumers from unfair debt collection practices by third-party debt collectors. The law provides when debt collectors can contact individuals, what information they can provide to third parties, and other protections.

In 2018, the Federal Trade Commission received a total of 84,500 complaints regarding debt collectors. The following violations are the most common offenses made by debt collectors.

Failure to Provide Written Verification of the Debt.

Any person who is contacted regarding a debt has the right to get written verification of the amount owed. Under the FDCPA, the debt collector must send written verification of the debt within five days after making initial contact. In that communication, the debt collector needs to provide the amount owed, the name of the original creditor, and information regarding how the individual can dispute the debt. However, many debt collectors fail to follow through on this requirement. Alternatively, many consumers are not aware they have the right to request this information.

Bankruptcy Law

Converting a Chapter 13 Bankruptcy to a Chapter 7

Posted on July 17, 2019by Admin

On occasion, a Chapter 13 bankruptcy case may need to be converted to a Chapter 7 case. This transition may be on the request of the individual filer or the bankruptcy court. Many bankruptcy filers will decide to convert their Chapter 13 case into a Chapter 7 case in the event their financial situations have changed after the initial filing, or if the filer had originally chosen to pursue a Chapter 13 case to protect property that no longer needs protection.

The Conversion Process

Florida bankruptcy courts have specific guidelines that must be followed for converting a case from Chapter 13 to Chapter 7. Unless the filer has already received a Chapter 7 bankruptcy discharge within the most recent eight years, he or she should be able to convert a Chapter 13 case into a Chapter 7 at any time.

Bankruptcy Law

Understanding the Bankruptcy Process: How to File & the Qualifications

Posted on July 16, 2019by Admin

Filing for bankruptcy can be an emotional and sometimes stressful process. However, enlisting the help of an experienced bankruptcy attorney can make the process painless and worry-free. Many clients have little understanding about what is involved when they file for bankruptcy. Bankruptcy is a legal proceeding where a judge and bankruptcy trustee review the financial situation of individuals or businesses who are not able to pay their financial obligations and discharge qualifying debts that they are no longer able to pay.

The Purpose of Bankruptcy

Bankruptcy is meant to give an individual a fresh financial start, allowing that person to wipe the slate clean. It also serves as a way to give the filer some sense of relief through the protection of the automatic stay, which means creditors are prohibited from continuing collection actions against the filer. This allows the person time to regroup, protect valuable assets and work with the bankruptcy trustee to handle their debts.

Bankruptcy Law, Debt Relief

How to Defend Yourself Against a Debt Collection Lawsuit

Posted on July 15, 2019by Admin

When someone is facing a debt collection action, it can seem like a hopeless situation. It is a situation, however, that many Americans face. According to the Consumer Financial Protection Bureau (CFPB), more than 70 million Americans have interacted with a debt collector.

Of these 70 million, 25 percent of them report feeling threatened during their communications with debt collectors, who often use aggressive methods to obtain payment. If the collection gets to the point where legal proceedings are filed, certain steps can be taken to protect your rights.

File a Response

The biggest mistake that consumers make is to ignore the paperwork when they receive it. A consumer who is facing a debt collection proceeding will receive a summons and complaint, informing him or her that a legal action to collect upon the debt has been filed. This paperwork will provide information regarding how long the individual has to file a response to the legal action. If a response is not filed, however, the debt collector or creditor can get a default judgment against the individual, resulting in a garnishment of the consumer’s wages. If that happens, the court can add the collection agency’s legal fees, court costs and interest to the balance.

Bankruptcy Law

Impounded Cars Cannot Be Held After Drivers File for Bankruptcy

Posted on July 12, 2019by Admin

Drivers in Chicago who are without their vehicles may be able to get their cars back from city impound lots after filing for bankruptcy, according to a new federal appeals court ruling. The 7^th U.S. Circuit Court of Appeals ruled this week that the city’s policy of keeping impounded vehicles belonging to bankruptcy filers despite the fact that an automatic stay has been issued by the bankruptcy court is against federal bankruptcy law.

More specifically, the court argued that this policy essentially discourages drivers from filing for bankruptcy and violates the most basic of protections offered by a bankruptcy filing. It is the court’s belief that the city is doing this to generate revenue rather than help protect their constituents.

Eugene Wedoff, a retired bankruptcy judge who represented the debtors, argued that a Chapter 13 bankruptcy case was meant to allow the filer to get back his or her life by putting property in the filer’s hands. By keeping these impounded vehicles away from their owners, they argue the city is violating their rights.

Bankruptcy Law

How Are Assets & Financial Accounts Protected in Bankruptcy?

Posted on July 11, 2019by Admin

When filing for bankruptcy, a common concern individuals have is how bankruptcy will affect their assets. If you are filing for Chapter 7 bankruptcy in Florida, you can use Florida bankruptcy exemptions to protect your property. In addition, residents are provided unlimited exemptions for homestead, annuities, and the cash surrender value of a life insurance policy.

Florida has one of the most generous homestead exemptions in the country. To use these exemptions, you must have resided in Florida for at least 730 days before filing your bankruptcy petition. To claim the full value of the homestead exemption in Florida, you must have owned the property for at least 1,215 days before the bankruptcy filing.

Many people are misled to believe that bankruptcy can only make problems worse by causing them to lose their home, vehicle or their ability to ever take out credit, again. This could not be further from the truth.

In fact, those filing for Chapter 7 or Chapter 13 can keep almost everything. Depending on your specific case, Florida bankruptcy laws allow you to keep the following:

Homes
Cars
Retirement accounts
Pensions
Wages
Personal property
Savings
Veteran’s or Worker’s Comp. Benefits

Type of Bankruptcy Filed

One deciding factor lies in what type of bankruptcy is being filed. Under a Chapter 7 bankruptcy case, the filer turns over assets that are not otherwise protected under Florida’s bankruptcy exemptions to the court where they are liquidated and used to pay off that person’s creditors. Depending on what falls under Florida bankruptcy exemptions, if the filer has a great deal of assets, this bankruptcy may not be ideal. With a Chapter 13 bankruptcy, the filer’s assets are not liquidated. Instead, an affordable repayment plan is prepared by the court allowing the consumer to pay down his or her debts over three to five years.

Bank Accounts

In a Chapter 7 bankruptcy case, the average filer’s bank accounts are not affected. The exceptions to this, include:

When the filer’s bank or credit union account balances exceed the allowed exemption amount;
When the filer owes money to the bank or credit union where the funds are deposited;
When specific institutions implement policies to freeze the bank accounts.

The protections of the bankruptcy automatic stay, which go into effect immediately upon filing for bankruptcy halt any collection activity, garnishment, and lawsuits against you.

401(k) Accounts

If the filer has money in a 401(k) account through his or her employer, this money is considered safe for the most part. Under Florida bankruptcy law, a filer’s retirement accounts are protected so long as the 401(k) plan is qualified under the Employee Retirement Income Security Act (ERISA). Under 11 U.S.C. Section 522; Fla. Stat. Ann. § 222.21, ERISA qualified retirement plans are fully exempt, including 401(k)’s, 403(b)’s, profit sharing and money purchase plans. However, make sure the account is ERISA protected before making any assumptions.

Traditional or Roth IRA Plans

If the filer has an IRA, including a Roth IRA, this type of plan is treated differently than a 401(k) that is ERISA protected, meaning these accounts are more vulnerable in a Chapter 7 bankruptcy case. Further, any funds that are withdrawn from a retirement account are not considered protected in a Chapter 7 bankruptcy case and are considered fair game for creditors.

Other Retirement or Pension Benefits

Other financial accounts are protected under Florida bankruptcy law, including public employee retirement benefits, municipal police pensions, and firefighter pensions. Teacher retirement pensions, as well as state and county retirement benefits, are similarly protected under Florida bankruptcy exemptions.

Annuity Income

If the filer receives money through an annuity, the rules are a little different. If the annuity was funded through an ERISA-protected IRA or other qualifying account, the filer should be able to exempt up to $1,362,800 of its value, up until 2022 when it is subject to change. If the annuity is also tied to a condition of illness, disability or length of service, the money from the annuity may also be exempt. Because annuities tend to be a little more complicated, it is recommended you consult with a bankruptcy attorney regarding protecting annuity funds.

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If you have 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.