Car Repossession, Florida Bankruptcy Exemptions

Do I Have to Surrender My Car in Bankruptcy?

Filing for Chapter 7 bankruptcy can clear most unsecured debts, but it may also require selling or giving up some assets to pay debts. A fair question and one many people have is: “Will I be able to keep my vehicle if I file for bankruptcy?”

The answer is yes. Most filers will be able to keep their vehicle after filing for bankruptcy. Florida bankruptcy laws offer generous exemptions which allow individuals to keep various types of property, including their vehicle.  Vehicles are often exempt if they are necessary for you to maintain a job and household.

In a Chapter 7 bankruptcy, if your car is financed, you can surrender it by returning it to the lender. With that, the loan will be discharged in bankruptcy but will leave you without a car.

If you file Chapter 7 bankruptcy and are current on payments, you can keep the car if your equity is protected under state law. Under the Florida Motor Vehicle Exemption, bankruptcy filers can exempt up to $1,000 in motor vehicle equity. This amount can be even more if a married couple is filing for bankruptcy jointly. In cases where you are keeping a car with a loan on it, make sure you continue to stay current on your payments. The lender can still assert its lien rights if you get behind on payments and you could lose your car.

Secured Loans

It helps to understand the nature of a car loan as compared to other debt in a bankruptcy case. Since a car loan is attached to an asset, this debt is labeled as a secured debt, which means the asset can be used to pay off the amount owed if the consumer cannot continue paying. This debt is not liquidated in a Chapter 7 case if the consumer wishes to keep the car after everything is over. Therefore, the filer must file Form 108 at the start of the case, which is known as a statement of intention. This form tells the court whether the consumer wishes to reaffirm the car loan, redeem the car, or surrender it. This statement of intention must be filed within 30 days of the bankruptcy case being filed, or the car loan is not considered part of the bankruptcy proceeding.

Status of Vehicle

Determining the status of the filer’s vehicle is important before determining if he or she can keep the car. The status can be either the person owns it free and clear, he or she is leasing the car, or the person is still paying a loan on the car. If the filer is still making monthly payments on a loan, the lender holds the title to the car as collateral. Once the car loan is paid in full, the title then shifts to the vehicle owner. If, during the loan payments, the filer cannot keep up with payments, the lender will then take the car back, which is also known as repossession.

Being current on the car loan’s payments is key in both Chapter 7 and Chapter 13 in terms of the ability to keep the filer’s car. It makes it more likely that the filer will be able to continue paying on the car even after the bankruptcy case is over.

Value of the Car

The value of the vehicle is also important in how it is treated in bankruptcy. In a bankruptcy case, the value of the car is determined by the actual cash value of the vehicle. This value is usually the retail replacement value of the car. The car’s make and model, mileage, and condition determine the actual cash value of the car. Equity is important, as well, which is determined by subtracting what the filer owes on the car from its current value.

Bankruptcy Exemptions

Equity is key when it comes to determining the exemption that allows the filer to keep the car. Florida has one of the most generous bankruptcy exemptions in the country. To use Florida’s exemptions, the filer must have resided in Florida for at least 730 days before filing his or her bankruptcy petition. To claim the full value of the homestead exemption in Florida, the filer must have owned the property for at least 1,215 days before the bankruptcy filing. Under Florida bankruptcy exemptions, the filer can exempt up to $1,000 in motor vehicle equity or more if the person is married and filing for bankruptcy jointly.

Redeeming the Car

In a Chapter 7 case, the filer may be able to keep the car by redeeming its current replacement value. To do this, the filer pays to the lender what is owed on the car, minus the car’s current replacement value to own the car outright. Unfortunately, not many filers are able to do this since most do not have this kind of money available, which is why fewer than two percent (2%) of all filers redeem their car.

Reaffirmation Agreement

The filer can also keep the car by reaffirming the debt. This means he or she will agree to a new payment plan with the lender. To reaffirm the debt, the filer must submit Form 108, which is a statement of intent. Approximately two-thirds of all filers take this route.

Surrendering the Vehicle

If the filer cannot pay the debt in full or is not able to feasibly reaffirm the debt, he or she may surrender the car. Filers normally surrender their vehicles when they are significantly behind on payments. When a surrender happens, the lender gets the car back and the debt owed on it is forgiven. Unlike a repossession, the consumer is no longer liable for the deficiency balance owed on the car, which is what occurs in a repossession when the lender resells the car for less than what is still owed on it.

Chapter 13 Bankruptcy

The above options are normally the choices available to consumers in a Chapter 7 bankruptcy case. However, if the consumer wishes to keep his or her car, Chapter 13 bankruptcy is usually the best route for him or her. In a Chapter 13 case, the consumer works with the bankruptcy trustee to create a repayment plan that takes three to five years to complete where he or she pays down debts over the course of the case, liquidating whatever is left at the end of this period.

If the consumer has a lot of equity in the vehicle and if he or she can pay past due payments while remaining current on all other payments, it is likely he or she will be able to keep the car in a Chapter 13 case.

Many times, the bankruptcy court can also get the lender to reduce the interest rate on a vehicle loan under Chapter 13. This reduction will lower the person’s monthly payments and will make it easier for him or her to make payments.

Additionally, in a Chapter 13 case, if the consumer has owned the car for more than 910 days, which is roughly about two and a half years, the bankruptcy court can rule that the loan balance owed will be based on what the car is worth now as opposed to what the balance of the original loan is.

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.

Sources:

If I File Bankruptcy, Can I Keep My Car? (debt.org)

What Happens to My Car During Bankruptcy? – Experian

Bankruptcy Filings, Bankruptcy Law, Consumer Bankruptcy

Protecting Your Assets During Bankruptcy

People often fear losing everything they own when filing for personal bankruptcy. The good news is the U.S. Bankruptcy Code and Florida bankruptcy laws protect a great deal of a consumer’s assets and property, if used appropriately.

The State of Florida has some of the most generous bankruptcy exemptions in the country. For these exemptions to apply, the consumer must have lived in the state for at least two years before filing. Otherwise, federal exemptions apply.

How bankruptcy exemptions apply depends on the type of bankruptcy case being filed. In a Chapter 7 case, the bankruptcy trustee sells the filer’s nonexempt property, using the proceeds to pay off qualified debts and discharging the remaining debts at the end of the case.

In some cases, if you are not able to exempt an asset fully, the trustee may abandon it because the value is not significantly more than the exemption amount.  Keep in mind, it is expensive to conduct a sale for an asset, and it is only worth selling the asset if there is money to pay back your creditors. Usually, goods and clothing are exempt unless they are worth a significant amount of money. In certain states, like Florida, there is an unlimited homestead exemption, which allows you to keep your home in its entirety.

Here is a list of the most common bankruptcy exemptions in Florida.

Homestead Exemption

The homestead exemption allows the filer to keep equity he or she has in the home. In Florida, the amount that is allowed to be exempted is unlimited, meaning the entire value of the house is protected. The filer can keep his or her home after the bankruptcy, so long as he or she can keep up on mortgage payments and can pay off any past due payments. Also, to use the unlimited exemption offered by Florida bankruptcy law, the consumer must have owned the home for at least 1,215 days prior to filing, which comes out to roughly three years and four months.

Wage Exemption

Money the filer earns through his or her paycheck can also be exempted up to a certain amount. The law allows wages of the head of household to be fully exempt up to $750 per week. This exemption applies to both paid and unpaid wages. Any wages deposited into the bank account for up to six months prior to filing can also be protected. Other members of the household can protect up to 75 percent (75%) of their wages or 30 times the federal minimum wage, whichever is higher.

Personal Property Exemptions

Personal property can also be protected to a certain amount. Florida’s bankruptcy exemptions protect up to $1,000 in personal property or $4,000 in personal property if the filer does not use the homestead exemption. This exemption covers art, electronics, jewelry, and furniture. Money in a health savings account and education savings account is also protected, as are prescribed home health aides.

Wildcard Exemption

If the filer does not use the homestead exemption, he or she can protect other property via the wildcard exemption. This exemption can be used on up to $4,000 of personal property or $8,000 if the consumer files his or her taxes jointly with his or her spouse. The wildcard exemption can also be used towards the consumer’s home if he or she owes more than the house is worth, to protect that amount of value in the residence.

Motor Vehicle Exemption

The law allows the filer to retain a certain amount of equity in the car he or she drives. Florida allows the filer to exempt up to $1,000 of the equity he or she has in a car, if the filer has any equity at all in the vehicle.

Retirement Savings & Pension Exemptions

Florida bankruptcy law will also protect certain types of retirement plans and pensions, including the following:

  • ERISA-qualified retirement plans, including 401(k)’s, 403(b)’s, IRAs, Roth IRAs, money purchase plans, and profit-sharing plans,
  • Public employee retirement benefits,
  • Firefighter and police pensions, and
  • Teachers’ retirement plans.

Insurance and Benefits Exemptions

Florida bankruptcy filers may also protect the following financial assets through bankruptcy exemptions:

  • Proceeds of a life insurance policy that are payable to a specified beneficiary,
  • Disability income benefits,
  • The cash surrender value on a life insurance policy,
  • Fraternal society benefits, and
  • Proceeds from an annuity contract, with the exception of annuities set up for lottery winners.

Public Benefits Exemption

Additionally, other benefits the consumer receives may also be exempt including the following:

  • Social Security benefits,
  • Veterans’ benefits,
  • Workers’ compensation and/or unemployment benefits,
  • Local public assistance benefits, and
  • Money received as crime victim’s compensation benefits.

Child Support and Alimony Exemptions

Money the consumer receives from an alimony or child support order are exempt from being seized in a bankruptcy so long as they are reasonably necessary the support of the filer and his or her child, in cases of child support.

To ensure that the consumer is properly using these bankruptcy exemptions to protect his or her property, a qualified bankruptcy attorney should always be consulted.

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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.

 

Bankruptcy Law

What Assets are Exempt in Bankruptcy?

Bankruptcy filers often fear losing everything they own when going through a Chapter 7 or Chapter 13 bankruptcy case. You may think that filing for bankruptcy means you have to give up your home, your car, and other important assets.  This is simply not true. The vast majority of Chapter 7 cases are no-asset cases, meaning the debtor gives up no possessions. This happens for two reasons. First, you can allot for basic assets, called exemptions that are necessary for day-to-day living. What you can exempt varies from state to state, so be sure to discuss exemptions with an experienced bankruptcy attorney. For possessions that are not part of the exemption, creditors likely don’t want them.  Under Chapter 13, you keep all of your assets, but the value of them figures into your repayment plan.

The U.S. Bankruptcy Code and Florida bankruptcy laws protect a great deal of a consumer’s property, if used appropriately.

Bankruptcy Law, Car Repossession, Consumer Bankruptcy

What Happens to My Car During Bankruptcy?

Will filing for bankruptcy cause me to lose my car? The fear of losing everything is a very real fear for many bankruptcy filers. However, this is one of the most common bankruptcy myths, and can keep individuals who are drowning financially from filing for bankruptcy. One concern many filers have is, what will happen to my car during bankruptcy?

The good news is most filers will be able to keep their vehicles after filing for bankruptcy. Florida bankruptcy laws offer generous exemptions which allow individuals to keep various types of property, including their vehicle. Under the Florida Motor Vehicle Exemption, bankruptcy filers can exempt up to $1,000 in motor vehicle equity. This amount can be even more if a married couple is filing for bankruptcy jointly.

Bankruptcy Law, Consumer Bankruptcy

Understanding Bankruptcy

Many people view bankruptcy as an intimidating and complicated process. While bankruptcy can have its complications, many of the fear surrounding it has more to do with consumers not fully understanding the process itself. Bankruptcy is a legal proceeding that allows individual consumers or businesses who are struggling with debt to eliminate these debts and start over. The process is meant to help consumers and is not something to be feared.

All bankruptcy filings are heard in special federal courts set up throughout the 50 states. Bankruptcy procedures are governed by the U.S. Bankruptcy Code, although states, including Florida, can enact their own rules that preempt federal procedures.

Consumer Bankruptcy

Fear Holds Many People Back from Ever Filing Bankruptcy

There are many people who can benefit from bankruptcy, but put off filing due to fear and the myths surrounding bankruptcy. Bankruptcy offers consumers a fresh financial start and relief from the burden of debt, but for many, it is the fear of the unknown that holds them back from ever taking the first step. Every year, only a small portion of consumers who could benefit from bankruptcy actually move forward with starting a case.

According to the Federal Reserve Bank of New York, approximately 14 percent (14%) of U.S. households or nearly 17 million consumers owe more than they own. While most of these individuals could benefit from bankruptcy, less than one percent (1%) of them file for bankruptcy annually. In 2020, there were only 752,160 personal bankruptcies filed. 

Bankruptcy Law

What is a ‘No Asset’ Chapter 7 Bankruptcy Case?

In a no-asset Chapter 7 bankruptcy case, the person filing for bankruptcy keeps all of their property because it falls within the exemptions provided under federal law or the law in their state.

With a Chapter 7 liquidation bankruptcy, a filer surrenders their assets to the bankruptcy estate, which uses them to pay off creditors. But in reality, this is only true of non-exempt property. Many of our cases, are in fact, ‘no asset’ cases. Bankruptcy law recognizes that filers need to retain some property so they can survive the process with something on which to build a future after bankruptcy.

Bankruptcy Law

How Will Filing For Bankruptcy Affect My Spouse?

Filing for bankruptcy when someone is married can be a joint process, or it can be done by only one spouse proceeding with the case. Ultimately, it depends on the type of debt and the financial situations for both spouses. For example, if one only spouse owes a specific debt or debts, then that spouse may be able to proceed on a bankruptcy alone, especially if the other spouse has good credit and very few other debts. Proceeding with a single bankruptcy case while married can be complicated, and in certain situations, it can adversely affect the non-filing spouse, but not always 

Joint Debts

In any marriage, parties bring in their own, individual debts, and debts are almost always incurred during the marriage, as well. One spouse may choose to take out a loan, not naming the other spouse on the debt, which means only the spouse whose name is on the debt is responsible for what is owed. If that spouse is not able to continue making payments on the debt, he or she can proceed with a bankruptcy to discharge that debt. If the debts listed in that bankruptcy case belong to the filing spouse alone and not the non-filing spouse, discharging the filer’s debts and liabilities should be a straightforward process. It becomes more complicated if any of the debts listed in the bankruptcy case belong to the non-filing spouse. In these situations, these joint debts will normally remain with the non-filing spouse. 

Bankruptcy Law

What Happens When You File for Bankruptcy? 

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

Tips to Keep in Mind Before Filing for Bankruptcy in Florida

Many people view bankruptcy as this great unknown and truly do not understand the process before filing. However, it helps to understand what is involved when filing for bankruptcy and what to expect during the process.

What Is Bankruptcy?

Bankruptcy is a legal proceeding that basically provides the filer a fresh financial start. While it does involve putting the filer’s financial situation in the hands of the bankruptcy court and bankruptcy trustee, it can give the person a chance to breathe and get back on his or her feet. Bankruptcy will put all collection proceedings and foreclosure cases at a stop through the automatic stay and will also stop creditors from continuing to contact the consumer.