Tag: bankruptcy automatic stay

Bankruptcy Law

What Happens When You File for Bankruptcy? 

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The bankruptcy process is meant to give consumers who are struggling financially a fresh start. However, many consumers hold off due to the fear of filing for bankruptcy, even if it is the best option. Bankruptcy cases have both positive aspects, as well as negative ones, that go along with beginning and successfully finalizing a case. It is important to understand how a bankruptcy case works before moving forward with filing so that the person filing knows what to expect.  

Automatic Stay 

One of the most positive aspects of proceeding with a consumer bankruptcy case is the automatic stay that accompanies the filing. As soon as a Chapter 7 or Chapter 13 bankruptcy case is initiated, an automatic stay of all collection efforts against the filer is issued. What this means is the consumer’s creditors are temporarily blocked from moving forward on collecting any outstanding debt. This stay also stops wage garnishments, foreclosures, or completion of legal collections cases. The purpose of the automatic stay is to give the consumer a chance to work with the bankruptcy trustee on determining how various debts should be handled. A creditor can file a request to continue collection even though an automatic stay has been issued, but they can only continue if the request is granted.  

Bankruptcy Law

Miami Bankruptcy Attorney Timothy S. Kingcade Obtains Order Allowing Protections for Chapter 13 Bankruptcy Client

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Bankruptcy Attorney Timothy S. Kingcade of the Miami-based bankruptcy and foreclosure defense law firm of Kingcade Garcia McMaken obtained an Order for his client in a Chapter 13 case (Case No. 20-10135-RAM), limiting the scope of permissible relief in a pending criminal contempt case. The Motion for Contempt seeks relief against Jeffrey Charlow and counsel, for proceeding with a criminal case pending against Kingcade’s client in Broward County, Florida.

The Criminal Contempt Case was initiated by an order entered by Judge Robert W. Lee in a civil case also pending against the client. The court determined continuation of the Criminal Contempt case was not a violation of the automatic stay, but imposed two important limitations protecting our client:  Judge Lee may not sentence our client to jail with an Order that expels the sentence if a fine is paid and payment will necessarily come from the property of the estate.

Bankruptcy Law

Can Filing for Bankruptcy Save My Home?

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When someone is facing the possibility of bankruptcy, the thought of losing his or her home is a very real and frightening one. However, the protections of the bankruptcy automatic stay can help the filer protect his or her home through a Chapter 7 or Chapter 13 filing. The key to this protection rests heavily on the type of bankruptcy filing and the filer’s financial situation. The bankruptcy automatic stay also offers filers who are facing a multitude of collection calls relief from their creditors, protect them from lawsuits, wage garnishment, repossession, and losing valuable property.

As soon as the bankruptcy petition is filed, the automatic stay goes into effect. After this point, creditors and debt collectors are legally barred from attempting to collect on any debt owed by the filer.

Bankruptcy Law, Debt Relief

How Small Business Owners Can Protect Assets in Bankruptcy

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Many business owners worry about what will happen to their companies and their business assets when facing bankruptcy or a lawsuit. It is important for any business owner that he or she creates an asset protection plan for these exact types of situations.

The first step is to develop a debt management plan for the business. Having debt is not always a bad thing. The key is to manage the debt in an intelligent manner to stay out of trouble.  Business loans will usually involve offering business assets as collateral, which means that if the business owner ends up defaulting on the loan, the lender can seize the collateral to pay the debt. Some lenders will require borrowers to sign a personal guarantee if the collateral is not enough to cover the debt.

Bankruptcy Law

How Long Does the Bankruptcy Automatic Stay Remain in Effect?

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One of the benefits of filing for bankruptcy is the automatic stay and the protections it offers filers who are facing a multitude of collection calls from their creditors. It can also protect a person from lawsuits, wage garnishment, repossession, and losing valuable property.  As soon as the bankruptcy petition is filed, the automatic stay goes into effect. After this point, creditors and debt collectors are legally barred from attempting to collect on any debt owed by the filer.

The automatic stay will remain in effect throughout the duration of the bankruptcy case from filing to discharge. However, certain factors can affect the automatic stay and how long it remains in effect.

Bankruptcy Law, Debt Relief

How to Protect Your Home in Bankruptcy

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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

How Are Assets & Financial Accounts Protected in Bankruptcy?

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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.

Related Resource: https://www.nolo.com/legal-encyclopedia/florida-bankruptcy-exemptions-property-assets-bankruptcy.html

 

Foreclosures, Timothy Kingcade Posts

5 Steps to Slow Down the Foreclosure Process in Florida

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Receiving a notice of delinquency in the mail does not automatically mean that you are going to lose your home. Florida has what is called a judicial foreclosure process, which means that every homeowner is entitled to a hearing before the court to determine whether or not the bank is entitled to foreclose.  The most important thing to remember is that the homeowner has rights. There are things you can do to slow down the foreclosure process and even keep your home, while getting your financial life back on track.

  1. Educate yourself. Read over everything you have received from the lender, including the mortgage itself. Many notices will contain information on foreclosure prevention options. It is only after you have not paid your mortgage for a period of 90 days that foreclosure proceedings will start.  Remember, Florida is a judicial foreclosure state, meaning the lender must file a lawsuit against you before moving forward with the proceedings.
  2. Contact your lender. The lender will likely be willing to work with you as the foreclosure process can be lengthy and costly in Florida. There are different options they may extend to you, which include: refinancing, a repayment plan, forbearance or a loan modification.
  3. Contact a HUD approved housing counselor. There are federally funded agencies in each state that work with a variety of lenders to secure affordable repayment options for struggling homeowners. But with this option, beware that there are many non-legitimate companies looking to scam borrowers.  Research these options carefully and use caution. Make sure you are working with a free, federally approved agency.
  4. Consider doing a short sale. If you do not see yourself being able to repay your mortgage with a loan modification or repayment plan, a short sale may be a good option.
  5. Consider filing for bankruptcy. Filing for bankruptcy will not only eliminate your unsecured debt, but as soon as you file for bankruptcy an “automatic stay” goes into effect, which stops all collection attempts and halts the foreclosure process.

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Choosing the right attorney can make the difference between whether or not you can keep your home. A well-qualified Miami foreclosure defense attorney will not only help you keep your home, but they will be able to negotiate a loan that has payments you can afford. Miami foreclosure defense attorney Timothy Kingcade has helped many facing foreclosure alleviate their stress by letting them stay in their homes for at least another year, allowing them to re-organize their lives. If you have any questions on the topic of foreclosure please feel free to contact me at (305) 285-9100. You can also find useful consumer information on the Kingcade Garcia McMaken website at www.miamibankruptcy.com.

Bankruptcy Law, Debt Relief, Timothy Kingcade Posts

Protections of the Bankruptcy Automatic Stay

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One of the best tools available to bankruptcy filers is the automatic stay. When a person files for bankruptcy, the court will issue an order called an automatic stay. This puts an immediate stop to collection attempts, creditor harassment, along with any civil lawsuits filed against the person pursuing bankruptcy.

The automatic stay also provides some much-needed relief to filers who are likely facing a number of different stressors and collection actions at once. It allows the person to be freed from those conflicts so that he or she can work with the bankruptcy trustee on the best method to deal with creditors.

Benefits of the Automatic Stay

Many times, someone going through a difficult financial situation may find himself or herself at the point where he or she is on the brink of losing the most basic of living necessities. If someone is behind on their utility bill and could potentially lose water, electric or gas, the automatic stay will give that person an additional number of days to work out the situation and hopefully avoid their utility from being shut off.

The same applies for someone facing foreclosure. The automatic stay will put an immediate halt to the proceedings. If the filer rents his or her home and is facing eviction proceedings, the automatic stay may also provide some temporary relief. If the person’s landlord already has a judgment of possession against the renter when bankruptcy is filed, however, the automatic stay will not be able to help him or her from being evicted. If it has not gotten to that point in the eviction proceeding, the automatic stay will be able to put a temporary halt to the eviction so that the person can figure out his or her next step rather than being tossed out immediately.

Many filers also find themselves facing wage garnishment by the time they decide to file for bankruptcy. A bankruptcy petition will put a stop to most garnishments, although not all, specifically child support or alimony.  Other garnishments for debts that would be able to be discharged in bankruptcy, such as personal loans or credit card debt, can be stopped and will likely end up being discharged at the end of the proceedings.

The key with an automatic stay is it provides relief to the filer who is likely feeling a great deal of stress at the time of filing. As a consumer, you have rights if the creditor does not follow the proper procedure and violates the automatic stay. Any violation should be immediately reported to your attorney, as well as the bankruptcy court. Depending on the violation and the behavior of the creditor, he or she may face fines, and severe penalties for the violation.

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.

Source: https://www.nolo.com/legal-encyclopedia/how-bankruptcy-stops-creditors-automatic-29723.html

 

Bankruptcy Law, Debt Relief, Timothy Kingcade Posts

How Much Debt Is Required To Qualify for Chapter 7 Bankruptcy?

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One of the common misconceptions surrounding bankruptcy has to do with how much debt you must have to qualify for bankruptcy. Bankruptcy laws do not have a set minimum debt requirement for someone to be able to file for bankruptcy. Ultimately, it depends largely on the person’s financial circumstances, including the type of debt he or she has, as well as the person’s ability to pay back the debt, along with other factors.

When it comes to debt levels, how much debt you have is only one consideration made when determining whether you should proceed with a bankruptcy filing.  Unlike a Chapter 7 bankruptcy case, a Chapter 13 bankruptcy does have a maximum debt amount for debtors considering this form of bankruptcy. While there is no minimum debt amount required to file for bankruptcy, you cannot have more than $1,257,850 in secured debt or $419,275 in unsecured debt if you want to file for Chapter 13 bankruptcy (these amounts, which are adjusted periodically to account for inflation, are valid as of April 2019).

Filers are limited in how many times they can receive a bankruptcy discharge within a set amount of time. For example, if you filed for Chapter 7 bankruptcy and received a discharge, you must wait eight years before being able to file for Chapter 7 again. Therefore, if you do not have a significant amount of debt, you may want to consider whether you will anticipate needing to file in the future. Is it worth it to file for bankruptcy now on a smaller amount of debt and be barred from filing again, if needed? A bankruptcy attorney can talk through these options with you to help you make the best choice.

Bankruptcy looks at the different types of debts you carry and whether these debts can be discharged. Certain debts are considered non-dischargeable, including priority tax debts, student loans in most cases, child support, spousal support, and any obligations arising from a personal injury case caused by wrong actions, which can include drunk driving. For instance, if most of your debt is in student loans, a bankruptcy may not be your best option, while a person who carries mostly credit card and medical debt will find bankruptcy beneficial.

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.

Even if you do not have a large amount of debt, if you are being sued or the matter is being referred to collections, it may be best to file for bankruptcy now instead of later. As soon as you file for bankruptcy, an automatic stay will be issued, putting a stop to all collection actions. If you wait too long, and a judgment is issued on the debt, resulting in wage garnishment, it may be too little too late. It is for this reason that it is important you meet with an experienced bankruptcy attorney to talk about your financial situation and whether bankruptcy is right for you.

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.

Source: AllLaw.com