Jacksonville Bankruptcy Lawyer Blog

A recent article in Forbes states, "Octomom Files for Bankruptcy, because our Bankruptcy Laws Are Great". While this seems to quote Nadya Suleman (The Octomom) as having made such a statement, the term "great" only comes up in their article in a quote from the french political philosopher, Alexis de Tocqueville who said in relevant part: "There is no American legislation against [...] bankruptcies. Is that because there are no bankrupts? No, on the contrary, it is because there are many. In the mind of the majority the fear of being prosecuted as a bankrupt is greater than the apprehension of being ruined by other bankrupts..." What Tocqueville says here is not that the bankruptcy laws of the United States are great, but that because we as individuals see so many bankruptcies in our friends and neighbors that we realize that the possibility of our own bankruptcy as possible reality. This causes us to fear anti-bankruptcy legislation because we may one day need the relief ourselves. The fear of losing the ability to go bankrupt as a debtor is greater than the fear of losing the money we are owed as creditors. This is interesting because we don't enter into the same kind of analysis when forming other laws. For instance, we don't prevent laws that punish murder because we know as individuals that we may one day murder someone. This proves that there is something unique when it comes to bankruptcy, which I believe to be the public opinion that bankruptcy happens in large part by no fault of the debtor. It is well understood that medical debt, unexpected job loss, natural disaster, having eight babies, etc. are "out of our hands" as individuals. If we believe this negates the responsibility, we are less likely to punish people for it.
Octomom has filed for bankruptcy due to her financial inability to care for such a great number of children on her own. She may be an extremely unlikely example of a scenario that could happen to anyone but having a similar scenario could bring about the same result. I personally know someone who had unexpected twins. This caused an unexpected financial hardship and they did in fact file for bankruptcy, though they didn't indicate the kids were the cause (who with other places to point the blame would?).
The causes of bankruptcy are vast, frequent and are well recognized as being indiscriminate in whom they afflict. If you, like so many successful Americans before you, would like to explore your options in bankruptcy, contact a Duval County Bankruptcy Attorney or call us at (904) 685-1200 for a free consultation.

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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.

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.

Inheritance can be an issue in bankruptcy law. One might think that after you receive a discharge in your bankruptcy case, your case is done and the court does not have an interest in your finances. This is not always so.

In a Chapter 7 case, if a loved one dies and leave you an inheritance within 180 days from the date of filing your case, then this money becomes part of your bankruptcy estate. The trustee may want some or all of the inherited funds to distribute to creditors. The important thing to remember is that the date that you become eligible for the inheritance that is the date to use in this 180 day analysis. This is the date of the loved one's death, not when you actually receive the money or property.

In a Chapter 13 case there is an ongoing obligation to keep the trustee appraised of what property you own. Once they learn of an inheritance, they will likely take those funds for the benefit of your creditors. This can occur any time during the case. Since Chapter 13 cases are often as long as five years, it is important to make arrangements with relatives who may pass on during this time.

If you think you may receive an inheritance around the time when your going to be in bankruptcy, make sure to discuss this with your Jacksonville bankruptcy attorney so that steps can be taken to preserve your family's interest in those assets. To speak with a Jacksonville Bankruptcy Attorney today, call us at 904-685-1200.

If you file for Chapter 7 or Chapter 13 bankruptcy, you must attend a 341 Meeting of Creditors at the federal courthouse. This is a hearing with the trustee, and any creditors are invited to attend, though usually they decline to. You will be put under Oath and asked to produce a photo I.D. and social security card. Then the trustee will ask you some questions. Here are some sample questions that a trustee might ask.

1. Are you personally familiar with the information contained in the petition, schedules, statements and related documents? To the best of your knowledge, is the information contained in the petition, schedules, statements, and related documents true and correct?

2. Are all of your assets identified on the schedules?

3. Have you listed all of your creditors on the schedules?

4. Have you previously filed bankruptcy?

5. What is the address of your current employer?

6. Is the copy of the tax return you provided a true copy of the most recent tax return you filed?

7. Do you have a domestic support obligation? To whom? Please provide to me the claimant's address and telephone number, but do not state it on the record.

8. Have you made any transfers of any property or given any property away within the last one year period?

9. Do you have a claim against anyone or any business?

10. Does anyone owe you money?

11. Do you own an automobile?

12. If you do not own an automobile, how do you get around?

The questions that the trustee will ask you will most likely pertain to your specific circumstance, as outlined in your schedules. Your bankruptcy attorney will attend with you, so if you do not know the answer to a question or are confused, your attorney will be able to help you. It is important, as when filing, to be honest in your answers. The 341 Meeting usually only takes around 10 minutes per person. To contact a Jacksonville Bankruptcy Attorney today for a free consultation, call 904-685-1200.

With shares dropping 50% from last year, it comes as no surprise that Sears Holdings Corp., which owns both Sears, Roebuck & Co. and Kmart Corp., is closing stores more than 100 stores. The graph above shows a 84% decrease in income for the company since it first acquired Kmart.

The fall is an interesting development coming on the heels of Sear's CEO Edward Lampert pay out of a record $1 billion dollar income in 2004.

It is impossible to tell what the future holds for these companies, but I speculate that they will eventually file a Chapter 11 (Kmart did a few years ago) or that the company will be divided into smaller parts, Lampert selling off the less profitable portions and attempting to recover on the more profitable ones. Unfortunately, the brunt of the fall will be felt by the employees, who will lose their jobs and may be forced into bankruptcy themselves. Lampert, with a one year income of over a billion dollars, probably won't be so unfortunate.

As is most legal processes, bankruptcy can be a difficult thing to maneuver. There is a lot of misinformation out there, you need to be careful to get your information from a trusted source. Here are some myths regarding bankruptcy:

Myth 1: If I file for bankruptcy, everyone will know.
Like most legal proceedings, most bankruptcy documents are public record. Since I work at a law firm in the bankruptcy department, I search these records all the time. I even have a special username and password that allows me access online. However, how many times do you think your friends, family, or co-workers search through federal court records? The truth is that while your bankruptcy documents will be public information, it is unlikely that those you know would search to find them.

Myth 2: If I file for bankruptcy, I have to give up all my house.
If you are filing a Chapter 7 or Chapter 13 bankruptcy, you are often able to keep your house. Obviously, you need to be sure that you can pay your mortgage, or it would be useless to try and keep the house. But if you can afford the payments, then you can reaffirm the debt and retain your house. In a Chapter 13, you can even catch up on mortgage arrearages through your Plan, which may be all the help you need to keep your home.

Myth 3: Chapter 13 Plans require you to pay all of your unsecured debts.
A "means test" is the tool used to figure out if you qualify for a Chapter 7 or Chapter 13 bankruptcy. If you must file a Chapter 13, then a similar test tells you what your disposable monthly income is. This amount must be paid to your unsecured creditors. So, depending upon your situation, you could pay all of your unsecured debt, very little of your unsecured debt, or none at all.

Myth 4: Married couples must file bankruptcy together.
This is not true. You can file a joint petition if you want to save on court costs, but you are not required to. A Jacksonville Bankruptcy Attorney can assess your particular situation and tell you whether it is beneficial for one of you or both of you to file, based on how much debt you have, what kind of debt it is, and in whose name the debt is in. Often times it is more beneficial for one spouse to file.

To discuss any questions you have regarding bankruptcy, creditor harassment or consumer law, contact a Jacksonville Bankruptcy Attorney today at 904-685-1200 for a 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.

Two bankruptcy petition preparers in Wisconsin are in big trouble with the Court, facing possible criminal charges. Jennifer Abbott, who is a disbarred attorney, was cited with contempt by a bankruptcy judge. The Court said that she has violated bankruptcy Court Orders repeatedly and she refused to obey a subpoena issued by the U.S. Trustee's office. Abbot has also been convicted of felony theft for stealing from a client.

The second bankruptcy petition preparer, Gaynor Morrison, is in trouble for failing to appear in bankruptcy Court when ordered to do so. Also, he was alleged to have been overcharging clients and failed to return fees to clients after being ordered to by the Court.

Bankruptcy petition preparers are non-attorneys who help people file for bankruptcy. Courts and trustees often comment that the petitions or other required documents are flawed when drafted by a bankruptcy petition preparer. If this happens and the case gets dismissed without discharge, people could lose valuable assets or have to pay additional filing fees. Not all bankruptcy petition preparers are unprofessional, but it is best to have a licensed attorney with knowledge of the complexities of the Bankruptcy Code prepare your bankruptcy documents. To contact a Jacksonville Bankruptcy Attorney today, call 904-685-1200.

In a Chapter 13 bankruptcy, some of your debts must be paid through a Chapter 13 Plan. This plan lasts up to 5 years. A part of filing for Chapter 13 bankruptcy is that all of your monthly disposable income is committed to your unsecured creditors. Without proper budgeting, this may not leave money for unexpected expenses, like your car breaking down, unexpected medical bills, or needing to fly to California last-minute for a funeral. It is not uncommon for debtors to fall behind on their Plan payments on occasion. So what happens if you do?

If payments are a month or more behind, the Trustee will typically file a Motion to Dismiss your case for Failure to Make Plan Payments. If this is your first time missing a payment, the Court will enter an order giving you a specific amount of time to make up your payments, usually 60 or 90 days. The Order will state the date by which you need to be current.

One great way to make sure and not get behind on your payments is to have the money taken directly from your paycheck and given to the trustee. In the Jacksonville, Florida Middle District, we can have a judge sign an order for direct withdraw of those funds. This makes it much more difficult for debtors to get behind.

Another thing you should do is to keep track of your payment online. The Jacksonville, Florida Chapter 13 trustee has a website where you can see if your payment has been received, which creditors are getting money, if you are delinquent and by how much.

If you are thinking of filing for bankruptcy contact a Jacksonville Bankruptcy Attorney today at 904-685-1200.

Yes, you can still file for bankruptcy. However, a very important part of every bankruptcy case is your exemptions. Exemptions allow you to keep your real and personal property. There are federal exemptions, but most states have adopted their own exemption laws. To use Florida exemptions in your bankruptcy, there are residency requirements. If you have lived in Florida for the 730 days prior to your filing, you can use Florida's exemptions. If you have not lived here for that long, then your exemptions will be those of the state in which you resided for during the 180 days prior to your filing or the federal exemptions, whichever your prior state's law indicates.

Florida is often seen as having a liberal homestead exemption, as it allows you to keep your home despite unsecured creditors. However, to use the Florida homestead exemption, you must have owned the home for 1215 days, otherwise you can only protect up to $125,000 in equity. Since nearly half the homes in Florida are underwater on their mortgage, it is a rare circumstance that anyone has more equity that the federal system allows. If you are unclear what exemptions you are allowed to use, contact a Jacksonville Bankruptcy Attorney today to discuss your specific case and what exemptions would be best for you.

The U.S. House of Representatives introduced a new bill, the Mobile Informational Call Act of 2011, that would allow businesses to dial consumers' cell phones using an automatic dialing system. This practice is oftentimes called "robo-calling". This means that the operator does not have to manually dial each number. Rather, the computer system can dial the numbers and play a prerecorded message on many phones at once. The current law is that operators have to manually dial the numbers (unless the customer consents to robo-calling), which is not very profitable for many collection agencies.

The down side to this bill would obviously be that creditors would be able to start robo-calling your cellphone. This does not sit well with many consumers. But some creditors say that the current regulations have not kept up with the technology of today, and that a lot of people do not have home phone lines anymore. Creditors are wanting robo-calling access to cell phones.

The upside to the bill, however, is that an airline company could robo-call passengers if a flight was cancelled or is running late. Or your credit card company could set up a system to automatically call you if they think someone is fraudulently using your card. Or your bank could robo-call with a message that someone changed the address or PIN number on your account.

It does not look like the bill will be passed as it is. But the proponents may make some changes and re-introduce the bill. Either way, remember that the FDCPA is still in effect. Creditors cannot harass you. Creditors can only call at certain times during the day. Creditors cannot be abusive. If you have problems with creditors, contact a Jacksonville Bankruptcy Attorney today.

When filing for bankruptcy, it is very important to be very honest and disclose everything. If you do not, you risk having your bankruptcy denied, discharge revoked or even prison time in the worst case scenario. When you sign your bankruptcy documents, you are doing so swearing that they are true under penalty of perjury. If the trustee finds out that something you have in your schedules is incomplete or untrue, this will raise a red flag and the trustee will scrutinize your bankruptcy schedules even more.

A common way that people fail to disclose everything in bankruptcy is trying to hide assets. Debtors might leave off a gold watch or a private bank account. This is a big mistake. When filing for bankruptcy, you must list all of your assets. Even if you think an asset is inconsequential or minute, you should list it. It is better to have overkill than to raise a red flag.

Another thing debtors sometimes fail to list is creditors that happen to be friends or relatives. Or maybe the debtor does not want a specific creditor to know that they have filed for bankruptcy, so they do not want to list that creditor. You should not do this. You need to list all creditors to whom you currently owe any kind of debt on your bankruptcy papers. The trustee wants to make sure that all of your creditors get their fair share of your estate. No matter your intentions, make sure to list every creditor. If you do not and the trustee finds out, this will raise a red flag.

If you fail to disclose everything on your bankruptcy schedules, you will most likely be sorry in the long run. However, the trustee may be understanding if you make an honest mistake. If you accidentally leave something off your schedules, correct the mistake by filing an amendment as soon as you realize the mistake.

To learn more about bankruptcy and to schedule a free consultation, contact a Jacksonville Bankruptcy Attorney today at 904-685-1200.

A recent Jacksonville case allowed a debtor to pay for a mortgage in his sister's name on a house in which he had a 50% ownership interest. As long as the debtor has a legitimate ownership interest in the property, the debtor can pay any lien on the property (including any arrears on that lien) in a Chapter 13 repayment plan.

This case occurred when a sister executed a mortgage on her home, transferred that home to her mother only to have the mother die shortly thereafter. Because the mother died intestate, the ownership in the house was then split amount her ten children evenly. One son wanted to live in the home and because the sister had not paid on the mortgage in some time, four of the other siblings transferred their interest in the house to that son. He then had a 50% interest on a home that was now facing foreclosure. In an effort to cure his sister's arrearage no the mortgage, he filed a Chapter 13 case and submitted a payment plan that included his sister's mortgage.

The sister, for unknown reasons, filed an objection to her brother paying off her mortgage. She argued that because the mortgage was not in his name, he could not pay it. Interpreting the bankruptcy code, the Judge ruled that the debtor had the ability to pay on any lien encumbering property in which the debtor had an interest. As a result, the son was able to pay his sister's mortgage through a Chapter 13 case.

Admittedly, these are unusual facts, but the letter of the law could be applied to any similar facts that include some property in one person's name and a lien on that property in someone else's.

If you have questions about a unique financial situation, please contact a Jacksonville Bankruptcy Attorney or call us at (904) 685-1200 for a free consultation.

Jeffrey Summers, of Taft, California, and Stafan Miller, of Santa Clara, California, perpetrated a scam upon multiple creditors. They formed Maxwell, Turner & Associates, a collection services company who employed around 20 people. From February 2009 until May 2010, their company did not deliver on their promises to clients. Summer and Miller would provide false information about legal proceedings and tell their creditor clients wrong contact information for debtors. Also, if the company did collect any money from debtors, it would not pass this money along to the appropriate creditor. Instead, the two would pocket the money. The scheme took in more than $2.7 million.

Summers was convicted for conspiracy to commit mail fraud and sentenced to 8 years in federal prison. Miller was ordered to serve 6 years and 9 months for conspiracy to commit mail fraud and money laundering. The two have also been ordered to repay $1,311,700 in restitution to the victims of their fraudulent scheme.

If you feel that you have been defrauded in any financial situation, you should speak with a Jacksonville Consumer Law Attorney to see if a remedy this available for you.