Jacksonville Bankruptcy Lawyer Blog

If somebody broke into my home while I was gone and took all of my personal property, I would want to be compensated for my loss, and I should be, right?
Imagine that like many in Florida today, you live in a home that is underwater on it's mortgage. You consult an attorney and because you fear a deficiency judgment or a 1099 for debt forgiveness income, either of which could result from a foreclosure. That attorney suggests that you file bankruptcy, which you do. You indicate in the bankruptcy petition that you want to surrender the home to the creditor. You are also required to provide a list of personal property to the court, but because you know you're only allowed to keep a certain amount of property in a bankruptcy, you decide to omit some valuable items. You rent a side apartment, but don't completely move out of the house. One day you return to the house to pick up some items and find it completely bare. You call your attorney and find out that the mortgage company violated the bankruptcy rules by entering your home and that you can sue them to recover the value of the lost property. You quickly create a list for your attorney of all the property that is missing and the attorney stops you. You did not list all of these items on your petition. This brings about at least two problems: first, you lied to the court under oath. This is perjury and your attorney may have to withdraw from representation because you used their services to perpetrate a fraud. Second, when you filed your petition you swore that you provided a complete list of your personal property and at the 341 hearing, you were sworn in and asked if the list was complete. If you now sue the creditor for taking your property, you're going to have to explain to the court why you failed to disclose property on your schedules and show that the property did, in fact, exist in the first place.
Listing all of your assets is a requirement of the Title 11 bankruptcy code. This is in the code because you're only allowed to keep a limited amount of non-exempt property in a bankruptcy. Situations like the one above turn the law on it's head, but really do stress the importance of honestly and accuracy on bankruptcy schedules. If you're considering a bankruptcy, it is important to get legal advice. Contact a Jacksonville Bankruptcy Attorney or call us at (904) 685-1200 for a free consultation.

Let's face it, when people file bankruptcy it's because they want their creditors to leave them alone. They're tired of the receiving second and third late notices and of the constant telephone calls. They may even admit they owe the debts, but now there's penalties and interest they can't afford. Bankruptcy may be a solution.
Regardless of which Bankruptcy Chapter you choose, an automatic stay goes into effect when you file. The automatic stay prevents creditors from making collection attempts -this is a very powerful thing.
If someone files bankruptcy and the next day their house is sold by the court, there trustee can request that the state court judge "vacate" the sale and depending on the kind of bankruptcy the debtor can continue to live in the house and catch up on their arrearage.
Sometimes creditors try and ignore the bankruptcy rules by attempting to collect a debt despite the fact that a bankruptcy has been filed. This is called a violation of the automatic stay and depending on it's severity, it can lead to big fines for those creditors to pay. In some cases, the bankrupt individual will see the proceeds from those fines.
The automatic stay protection stays in place from the date of filing until discharge unless one of two things happen: 1. the debtor somehow fails the bankruptcy; or 2. the creditor petitions the court for permission to collect on the debt. The latter of these two requires a pretty good argument and isn't often requested unless the debtor intended to surrender the property in the first place.
If you have questions about how the automatic stay can help you, contact a Yulee Bankruptcy Attorney or call us at (904) 685-1200 for a free consultation.

#bankruptcy
The Jacksonville, Florida court determined in 100 B.R. 579.pdf that the automatic stay protections extend to protect against not just evictions but damage resulting from those that are done wrongfully.
The debtor had entered a lease agreement with a residential property. Days prior to filing a bankruptcy case the debtor was served with an eviction notice. Despite receiving notice of the bankruptcy filing, the landlord forced her way into the Debtor's home and placed the debtor's belongings on the street. Before the debtor was able to discover the eviction, her personal possessions were stolen.
An action for violation of automatic stay is brought under 11 USC § 362. This provision gives debtors the power to sue their creditors if those creditors attempt to collect against them without court permission while they're in bankruptcy. An eviction is an attempt to collect a debt. In this case, because the theft of the debtor's personal property was a result of the creditor's conduct in the wrongful eviction, the debtor was able to recover the $11,311.06 value of her stolen property.
I am currently engaged in similar litigation regarding a wrongfully repossessed boat. The company financing the boat repossessed it without court permission. While repossessing it, the creditor's repossession agents stole a variety of personal items from inside the boat and tore off and removed the bimini cover. This is clearly a violation of the automatic stay and though the company returned the vessel, it is still unclear what recovery my client will obtain.
If you're looking for an attorney who is willing to sue a creditor if they violate your rights, contact a Neptune Beach Bankruptcy Attorney or call us at (904) 685-1200 for a free consultation.

When a bank wants to foreclose or repossess property from someone who has filed bankruptcy protection, that bank must obtain permission from the court for relief from the automatic stay provided by 11 USC §362. If the Judge enters an order granting that permission, the lender can then return to the county court and resume collection activities.
Select Portfolio Servicing (SPS) sought to foreclose on a mortgage held in trust by First Franklin Mortgage Loan Trust which encumbered a property possessed by a debtor in Chapter 7. SPS filed a motion for relief from automatic stay and the debtor objected on the grounds that the Mortgage Electronic Registration System (MERS) could not establish that it held an enforceable right against the property as MERS had no valid and enforceable interest in the mortgage.
States have various recording requirements for secured loans. One of the most common terms is "Perfection". A lien must be "Perfected" for it to attach to the subject property. "Perfection" is synonymous with "Recorded with the County (or state)". If a lien is not properly recorded, the lien does not attach to the property and is as unsecured as a credit card, i.e. you don't pay your mortgage and the lender can't take the homestead.
For years banks did the job of recording their liens and any subsequent assignments of their interest. However, by 1995 banks were selling mortgage notes multiple times and a MERS, a publicly traded company, came along and and offered banks a new solution to the assignment recording issue: Record the initial lien properly, then assign the interest to MERS. MERS would then buy and sell the mortgage notes 'in house' without recording those assignments and would nominate servicers to collect on unpaid mortgage notes. This method bypassed the debtor protection requirements set up by states and made things much easier for lenders.
When the New York court considered the issue, it blatantly stated, "This Court does not accept the argument that because MERS may be involved with 50% of all residential mortgages in the country, that is reason enough for this Court to turn a blind eye to the fact that this process does not comply with the law." To give permission to foreclose, the court requires that the entity requesting permission be the holder of the note and mortgage. The court in this case found that MERS, nor U.S. Bank had demonstrated no evidence that it either a valid holder of the note or mortgage nor had they validly recorded transfers with the state or county as required to remain secured. The court finished their opinion stating, "...in all future cases which involve MERS, the moving party must show that it validly holds both the mortgage and the underlying note in order to prove standing before this Court." This means that any MERS loan that attempts to obtain relief from automatic stay in New York will have to show ownership of both note and mortgage to have the right to ask for permission to foreclose.
The implications beyond this single bankruptcy case are huge. If MERS is found to be an invalid method of lien assignment and notes and mortgages have been lost the basis of perfection for hundreds of thousands of loans would be absent and all of those mortgage liens would become unsecured debts. If this were to occur, Florida borrowers could file Chapter 7 bankruptcy, discharge the unsecured mortgages and keep their homes. The impact on the banks would be severe as well as they would lose millions of dollars of home backed loans.
If you have questions about MERS or secured assets in bankruptcy, contact a Jacksonville Bankruptcy Attorney or call us at (904) 685-1200 for a free consultation.

When someone files for bankruptcy an automatic stay is put into place. The stay prevents creditors from making any collection attempts (calling, repossessing, selling) prior to obtaining court permission or, prior to the dismissal of the bankruptcy case.
A Co-Debtor Stay created by 11 USC §1301 occurs when the person filing bankruptcy owed a debt jointly with a non-filing person, typically a spouse. By virtue of being a co-debtor, creditors may no longer make collection attempts against the non-filing person as well. This becomes particularly useful when the creditor has a security interest, such as in a home. For example, if a couple was behind on a jointly owned homestead but one spouse individually owed a large amount of credit card debt, that one spouse could file a Chapter 13 bankruptcy, catch up on the mortgage arrears and simultaneously discharge their unsecured debts. While that spouse was in bankruptcy, the bank could not foreclose on the home as to the non-filing spouse because of the automatic stay protection.
Unfortunately, the Co-Debtor stay does not go into effect as to business assets or function in Chapters 7 or 11, so a conversion from a Chapter 13 to a Chapter 7 would cause problems.
If you have questions about how the co-debtor stay may be used to protect you or your loved ones, contact a Jacksonville Bankruptcy Attorney or call us at (904) 685-1200 for a free consultation.

If you want to reaffirm a debt after filing for bankruptcy, your must executed a new agreement with your creditor. This reaffirmation agreement must be written and must be signed by both you and the creditor. Should you sign this reaffirmation agreement? Here are some pros and cons.

Pros
First, if you want to keep the property, you must sign the reaffirmation agreement. Also, if you do sign, you will be certain what your payments will be, what your interest rate is, etc. Signing a reaffirmation agreement may also help rebuild your credit, since you are taking responsibility for a pre-filing debt and are making regular payments on a debt.

If the collateral is something other than a car, say furniture or electronics, then you may be able to negotiate a lesser amount due before signing the agreement. This is because the alternative to reaffirmation for the creditor is to repossess and auction off the property -something that costs the creditor money. Sometimes creditors would rather renegotiate your contract than to go through this hassle.

Cons
By signing the reaffirmation agreement, you are stating that you are now going to be responsible for the debt again. So if you cannot pay in the future and default, you no longer have the remedy or protection of bankruptcy available to you (unless you file again). If you default, a creditor may be able to garnish your wages to cover your debt.

If you have a debt for which you would like to reaffirm, or have any other consumer law issue contact a Jacksonville Bankruptcy Lawyer today for your free consultation.

Upon filing for bankruptcy protection, an automatic stay is put in place. This means that creditors can not try and collect from you. So a creditor cannot call you to request payment, send bills to you, garnish your wages anymore, or repossess your car without court permission. If there is a foreclosure suit against you, that suit must also stop immediately. If your home is sold and you filed prior to the sale, that sale can be vacated. Obviously, this is a powerful tool bankruptcy. Many people file to stop creditors from taking actions against them or their property.

The automatic stay will remain in effect until one of the following things occurs:
1. A creditor petitions the court for relief from automatic stay and the court enters an order granting it;
2. You receive a discharge in your bankruptcy case; or
3. Your case is dismissed.

If you have creditors that you would like to keep at bay by filing for bankruptcy and getting automatic stay protection, contact a Jacksonville Bankruptcy Attorney today for a free consultation to discuss your specific case.

Your Jacksonville home has a sale date. You've been holding off on filing bankruptcy because you thought a mortgage modification might be possible and now you have 24 hours before your home is going to be sold. If you think that nothing can be done to stop it, you're wrong.

If you file bankruptcy in the morning and your home was going to be sold in the afternoon, that sale will be stopped by the automatic stay. In simple terms, the automatic stay tells creditors to, "Stay away" until either the bankruptcy has completed or until they are granted court permission to collect again (a process which takes weeks).

The problem most people have is that filing a bankruptcy case requires a LOT of paperwork, and because this paperwork has to be accurate and is signed under penalty of perjury, it has to be accurate and complete. Fortunately, there is a way to gain the benefits of the automatic stay without having to complete all the paperwork up front: The Bare Bones Filing.

A Bare Bones Bankruptcy or Skeleton Bankruptcy is the creation of technicalities in the law. The title 11 bankruptcy code requires only that Form B1 (three pages) be completed on the day of filing. Four or five more pages are due within two days of that, but the remainder of the paperwork (upwards of 50 or so pages) isn't due for two whole weeks.

Now, I'm not advocating waiting until the last minute, but it's important to know that there is still hope if you are in that situation. If you would like to schedule an emergency filing, please contact a Jacksonville Bankruptcy Lawyer or call us at (904) 685-1200 for a free consultation.

If you have filed a bankruptcy in Jacksonville and have had debts discharged in the Florida bankruptcy court, a creditor cannot make an attempt to collect on that debt. If the creditor does, they are likely violating 11 USC §524. §524 serves as an injunction preventing the creditor from contacting the discharged debtor. This is similar to an injunction in family law commonly known as a Restraining Order. However, while a violation of a Restraining Order can lead to imprisonment, violation of a bankruptcy discharge injunction often leads to money being awarded to the client.

Discharge violations occur often and are sometimes overlooked by clients who just want to move on with their lives. The amount of money a client can be awarded depends on the severity and frequency of the collection attempts. Generally, the cost to bring an action against the creditor is paid for by the money collected from them. That means that a client could pay nothing out of pocket and could still walk away with cash.

If you are being contacted by a creditor who should have been discharged in your bankruptcy and would like them to stop, please contact a Jacksonville Bankruptcy Lawyer or call us at (904) 685-1200 for a free consultation.

Elena Escamilla, a staff attorney for U.S. Trustee, Donald F. Walton, filed a law suit against Keith D. Collier for violations including: Sanctions for Violation of the Automatic Stay, Injunctive Relief, Violation of Discharge Injunction an Conflict of Interest Resulting in Disgorgement of Fees.

If you entered into a deferred payment plan whereby you made payments after the filing of a Chapter 7 bankruptcy or post-petition payments outside the plan in a Chapter 13, you may not have any obligation to make these payments and you may be entitled to a full refund of all payments made thus far. You should discuss your specific circumstances with a Florida attorney.

This is not the first time Middle District of Florida (which includes Orlando, Jacksonville, Tampa and Ocala) has ruled that actions which appear synonymous are inappropriate. See Walton v. Clark & Washington.

Filing for bankruptcy will stop the future sale date of your home, even if there has been a final order foreclosing the property. This is due to an automatic stay that is immediately put into place upon filing for bankruptcy. Under the automatic stay, a creditor cannot take any action against you to try and collect a debt. So your foreclosure suit will halt immediately and your sale date will be cancelled; no more action will be taken in the case until the automatic stay is no longer in place.

The automatic stay will be effective until the conclusion of your bankruptcy. In a Chapter 7, this will probably be a short amount of time, around 4-6 months. But this extra time may give you the opportunity to catch up on your mortgage, achieve a modification, or sell your property. However, in a Chapter 13 bankruptcy, your case will not be concluded until after your Plan payments are finished. This will be anywhere from 3-5 years. Within those years, your Plan will allow you the opportunity to catch up on arrearages and so cure your deficiency with your mortgage company.

There are many ways in which a bankruptcy might be in your financial best interest. Help with mortgages that are in default is just one way a Jacksonville Bankruptcy Attorney can help you. Call us today at 904-685-1200 to schedule a free consultation.

An attempt to pass a law that would allow Bankruptcy judges to modify mortgages never made it passed the Senate. So a judge cannot automatically modify the terms of your existing mortgage. However, filing bankruptcy in Florida can help in other ways.

First, if you are behind on payments, filing a Chapter 13 bankruptcy allows you to catch up the arrearages over time so you are no longer in default. Second, filing bankruptcy oftentimes serves as a strong negotiation point with lenders. Lenders might be willing to work with you more if they know that there is a strong possibility that you might just walk away from the house if they do not work with you. Third, your Orange Park bankruptcy attorney can file a motion within your bankruptcy proceeding to require your mortgage company into mediation with you. So the judge cannot automatically change the terms of your mortgage, but s/he can order your mortgage company into mortgage modification mediation with you. Finally, if your home is in foreclosure, filing bankruptcy will halt the foreclosure proceedings. The automatic stay will go into effect immediately and all activity in the foreclosure case will cease.

To see if filing for bankruptcy is in your best interest, contact an Orange Park bankruptcy attorney today to discuss the particulars of your situation.

When you file for bankruptcy in Jacksonville or Florida, an automatic stay goes into effect immediately. (Unless there has been aprevious bankruptcy, then you have to ask the Judge for one). This halts virtually all legal actions and collection actions against you or if they continue and a stay in in place they can be undone in most cases. This can really bring relief to those with creditors calling all day long. This also means that any foreclosure or garnishment action is halted, and a creditor cannot repossess your car, or the court cannot sell your home. So if you are behind on payments and think your collateral may be subject to repossession, a Florida bankruptcy can help to protect your assets while you figure out your next step.

If you think that getting a fresh start by filing for bankruptcy might help your situation, contact a Jacksonville bankruptcy attorney today at 904-685-1200 to assess your needs.

Bankruptcy was meant as a legal tool used to get people a fresh start when they are too deep in debt. If you are currently facing debts and your creditors are bearing down on you, filing bankruptcy could provide some immediate relief. For example, if your credit card company is threatening to sue you for past-due payment or the bank is foreclosing on your home, a filing of bankruptcy will automatically place a "stay" on your creditors from collecting the debt for a period of time. During this time, your creditors cannot take action against you to recover this debt unless they petition the court and the court grants them permission -- not a common outcome. If you are thinking about filing bankruptcy, contact a Jacksonville Bankruptcy Attorney today to find out your options for your specific situation.

NO. When you file bankruptcy, an automatic stay is put into place that blocks creditors from trying to collect from you. A creditor cannot call or write you to ask for you to pay a bill and they cannot repossess your property. A Jacksonville bankruptcy lawyer can probably get your vehicle back for you. If the creditor knew about the bankruptcy, which is likely, then your bankruptcy attorney can actually sue the creditor for monetary damages due to FDCPA violations.