Making the decision to file for bankruptcy is never an easy one. Many times, it can be difficult to know when the time is right or when it is better to wait.
A bankruptcy case allows a consumer to receive a much-needed financial fresh start by discharging his or her outstanding consumer debts. The types of debts that are discharged in a bankruptcy case include credit card debt, mortgages, car loans, medical debt, and other unsecured loans.
Credit card debt plagues so many today. Even with the economic stimulus relief, some consumers are having to utilize credit cards to make ends meet. Escaping the load of credit card debt can seem like an impossible feat. Whenever someone offers a way out or credit card debt forgiveness, it can be easy to jump to accept the offer. The problem is credit card debt forgiveness can be more complicated than simply having the debt forgiven.
Not All Debt Forgiveness Strategies Are Equal
Credit card debt is forgiven usually from two strategies, namely debt settlement or bankruptcy. Many consumers try a third strategy, which involves ignoring the amount owed until the statute of limitations has passed for collecting on the debt. However, the damage that can result to the consumer’s credit score as a result of this failed strategy make it often not worth the wait.
If you have filed for bankruptcy protection in the past and have found yourself facing financial trouble again, it is possible to file for bankruptcy a second time. In fact, approximately eight percent of bankruptcy filers end up needing to file again at some point. Ultimately, how often someone can file for bankruptcy protection depends on the type of case he or she filed initially, as well as how much time has passed since that first case.
One of the more commonly used forms of consumer bankruptcy is the Chapter 7 bankruptcy also known as a “liquidation” bankruptcy. This form of bankruptcy lasts a few months, allowing the filer to work closely with the bankruptcy trustee to sell any nonexempt assets to pay off qualifying debts. At the end of the case, the remainder of the filer’s debts, which are usually credit cards or other unsecured debts, are discharged. A Chapter 13 bankruptcy is another form of consumer bankruptcy, also known as a repayment or reorganization bankruptcy. In a Chapter 13 bankruptcy, the filer works with the bankruptcy trustee on a repayment plan, which lasts anywhere from three to five years, where the person pays off his or her debts, liquidating what is left at the end of the case.
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.
One of the biggest worries that filers have when proceeding with a bankruptcy case is how the matter will affect their ability to obtain financing in the future, including a mortgage for a new home. While a bankruptcy case does impact a person’s credit score, all hope is not lost for eventually being able to purchase a home and obtain a mortgage. It depends a great deal on the success of the bankruptcy case and the consumer’s financial habits after the case is closed.
A Chapter 7 liquidation bankruptcy case is a much faster bankruptcy route that takes several months to finalize, while a Chapter 13 reorganization bankruptcy case can take between three to five years to finalize. A Chapter 7 bankruptcy case can stay on a person’s credit report for up to ten years from the date of filing, while a Chapter 13 bankruptcy case can stay on a person’s credit report for seven years from the date of filing or ten years if the bankruptcy is not completed or discharged.
MIAMI – Managing Shareholder, Timothy S. Kingcade of the Miami-based bankruptcy and foreclosure defense law firm of Kingcade Garcia McMaken has been selected for inclusion in Florida Super Lawyers 2020, in the practice area of consumer bankruptcy. This is the seventh consecutive year Kingcade has been selected to the Florida Super Lawyers list (2014-2020). The designation means that he is a top-rated attorney as recognized by peers. The prestigious honor is awarded to only five percent of lawyers in the state.
Attorney Kingcade practices exclusively in the field of bankruptcy law, handling Chapter 7 and Chapter 13 filings for the Southern District of Florida. As an experienced CPA and proven bankruptcy attorney, Timothy Kingcade knows how to help clients take full advantage of their rights under the bankruptcy laws to restart, rebuild and recover.
MIAMI – Attorney Kristina Gonzalez of the Miami-based bankruptcy and foreclosure defense law firm of Kingcade Garcia McMaken has been selected for inclusion in Florida Super Lawyers 2020 as a Rising Star in the practice area of consumer bankruptcy.
The list recognizes the top up-and-coming attorneys in the State of Florida. A select group of 2.5 percent of attorneys are named to the prestigious Rising Stars list.
Bankruptcy laws require that the filer be honest and open about his or her financial situation, including disclosing all assets and debts. While no one wants to lose property to pay off creditors, some assets must be sold during the bankruptcy case to pay off the filer’s debts. If a filer actively tries to hide or fails to disclose information in hopes of keeping it from the bankruptcy court, this is called bankruptcy fraud and it can cause your case to be dismissed.
Hiding Assets
Concealing assets is one of the more common forms of bankruptcy fraud. Approximately 70 percent of all cases where some type of fraud was reported involved concealment of assets. It can involve the person simply leaving a certain asset off the list of those reported to the bankruptcy trustee. It can also involve hiding the asset through a fraudulent transfer, including giving the asset to someone else to keep it during the duration of the bankruptcy case, with the intent that the person holding the asset will return it after the case concludes. If this type of fraud is discovered, the filer and the person holding the asset could be held liable for bankruptcy fraud.
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
When it comes to debt and how it is handled in a bankruptcy case, two main categories exist, namely secured and unsecured debt. Even if you are not at the point yet where you will be filing for bankruptcy, knowing the type of debt involved can make a big difference, especially when money is tight, and you are worried about which debt to pay first: the mortgage or the credit card bill.
The main difference between secured and unsecured debt is the fact that one debt is secured by collateral and the other is not. Secured debt is debt that is guaranteed by collateral, which is something of value that the lender can seize for payment in the event the borrower is no longer able to pay on the debt.
Mortgages and auto loans are classic examples of secured debt. If you default on your mortgage or your car loan, the bank can foreclose on your home or repossess your vehicle to satisfy the debt. In comparison, unsecured debt is debt that is issued to someone but is not guaranteed by collateral. The most common types of unsecured debt include payday loans, credit card debt, student loans, and medical bills.
When you are not able to continue paying on your unsecured debt, the lender cannot collect your property to satisfy the debt. However, they can report your account as delinquent, which will hurt your credit score. They can also pursue a legal judgment against you for the debt, resulting in a possible wage garnishment.
For the most part, secured debt tends to carry a lower interest rate on the amount owed. The main reason for this difference is the lender has some type of guarantee that they will receive payment, even if you default later. The lender does not have that same guarantee with unsecured debt. It is for this reason that unsecured debt tends to carry a higher interest rate because the investment is seen as more risk for the lender.
When it comes to a bankruptcy case, secured debt is handled differently than unsecured debt. If you are filing a Chapter 7 bankruptcy case, unsecured debt normally ends up being discharged at the end of the case, while secured debt can stay with the asset. If you are struggling to pay unsecured debt, such as credit cards or medical bills, filing a Chapter 7 bankruptcy case may be a viable option for dealing with the debt. If you are struggling to pay for both secured and unsecured debt, a Chapter 13 bankruptcy case may be a good option to allow you to continue paying on your mortgage and stay in your home while discharging unsecured debt at the end of the payment period. An experienced bankruptcy attorney can evaluate your financial situation, after looking at the different types of debt you are carrying to determine which plan is best for you.
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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.
