Articles Posted in Chapter 7

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Abby Lee Miller of the famous reality television show “Dance Moms” recently plead guilty to bankruptcy fraud and was sentenced to 1 year and 1 month in a federal prison to be followed by supervised release for another 2 years. Fraud is not something taken lightly by the federal court system and can have devastating and life changing consequences.

Fraud in bankruptcy can take a couple of different forms.

  1. When a debtor, the person who is filing for bankruptcy, tries to hide their assets in order to prevent losing them. When filing bankruptcy, you are provided certain exemptions that allow you to protect a portion of your assets. Any asset that is not protected by one of these exemptions can be taken from you by the trustee and then distributed to your creditors.
  2. When a debtor tries to bribe the bankruptcy trustee.
  3. When a debtor deliberately files falsified or incomplete bankruptcy forms in order to protect their assets from being seized by the trustee.
  4. When a debtor files for bankruptcy multiple times this can be viewed as an abuse of the right to file bankruptcy and enjoyment of the protections that bankruptcy affords. As soon as someone files for bankruptcy, an automatic stay is put into place that prevents any of their creditors from continuing to collect the debt that is owed to them. This is often seen when someone is facing foreclosure. The debtor files for bankruptcy on the eve of a foreclosure sale date with no intention of completing the bankruptcy. The intentions are to have more time in the home. The bankruptcy is later dismissed by the court because the forms are incomplete or because the debtor does not comply with the bankruptcy court, or the debtor dismisses the case themselves. Once the bankruptcy case has been dismissed and a foreclosure sale date has been reset, the debtor again files bankruptcy on the eve of the sale date with the same intentions as the prior bankruptcy. Some debtors do this over and over again, and this is an abuse of the bankruptcy system.

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house-150x150Florida’s Bankruptcy Laws offer a very generous Homestead Exemption for those filing bankruptcy here in the Sunshine State. As long as you have owned your homestead property for 1,215 days or more prior to filing bankruptcy, the Florida Homestead Exemption is unlimited! How awesome? Right?

However, don’t get too worried just yet if you have not owned your homestead for 1,215 days. You can still take advantage of the Florida Homestead Exemption and protect up to $125,000 of the equity in your home per Debtor. That means that a couple can still protect up to $250,000 of the equity in their home when filing bankruptcy together, which is still pretty awesome!

But what happens when you file a Chapter 7 Bankruptcy with other real property that is not your homestead? Can that property be protected? How the property is treated will completely depend on whether or not the property is mortgaged and/or if there is any equity in the property. If the property is encumbered by a mortgage and there is no equity in the property, then you should be able to simply continue making those normal monthly mortgage payments, and the bankruptcy should not have any effect on the property whatsoever. However, if there is any equity in the property, then the Trustee will most likely take possession of the property and sell it in order to reach the available equity. Unfortunately, there is no exemption available to protect real property that is not your homestead.

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When you file bankruptcy all, if not most, of your debts are discharged, which means you are no longer responsible for them. A Reaffirmation Agreement is a brand new agreement or contract between you and your creditor in which you voluntarily choose to remain liable for the debt after you receive your bankruptcy discharge. The terms of the Reaffirmation Agreement are generally exactly the same as the terms of your original contract. There are two major types of debts that you most likely will have to sign a Reaffirmation Agreement for if you wish to keep the property secured by the debt. These two types of debts are car loans and mortgages.

Ok, so you filed bankruptcy. Your vehicle is financed and you believe that by filing bankruptcy it will be much easier to continue making your car payments. When you are contacted by the finance company about reaffirming the car loan, you do so without hesitation. However, a month or two into the reaffirmation agreement, you realize that it is still very difficult to make the monthly payments and decide it would be a better decision to surrender the vehicle and purchase a new vehicle with lower monthly payments. Can you change your mind and rescind the Reaffirmation Agreement? The answer is, as usual in the legal field, possibly and it depends. Continue reading →

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marriage-150x150One thought that many people think about when getting married, is what their future spouse’s credit history is and their ability to obtain new debt. A correlating question is how will their future spouse’s credit history affect their own ability to obtain new debt. Why? Because they most likely, one day in the future, would like to know they have the option to purchase a new home, motor vehicle, or simply just obtain new debt. It can become much more concerning if your future spouse has filed bankruptcy within the last few years. How will their bankruptcy affect your ability to obtain new debt? Unfortunately, there are a lot of factors that can affect the answer to this question. So, regrettably, the answer is that it will depend.

Most importantly, it is crucial to make note that the fact alone that your future spouse filed bankruptcy, regardless of when, is absolutely immaterial to your individual credit report. Your credit report will not merge with your future spouse’s credit report simply because you got married. You both will maintain separate and apart credit reports. In other words, your individual credit report will remain the same as it was before getting married. However, by being married, your spouse may have to sign certain types of contracts. Continue reading →

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When filing for bankruptcy, regardless of what chapter of bankruptcy you are filing, you must disclose in your Petition if you have any pending claims. In laymen’s terms, this means that if you have any reason to file a lawsuit against any person or entity, such as against a business because you slipped and fell while in their store, you must inform the Bankruptcy Court. The reason for this is any money you might be entitled to recover from said person or entity for any harm they caused you will most likely be considered a part of your bankruptcy estate and distributed to your creditors.

Properly disclosing a possible claim was recently considered by the Illinois Second District Appellate Court. Prior to filing bankruptcy, the Debtor in question was visiting a store. While in the store, another customer caused some of the store’s inventory to be knocked over, which then fell onto the Debtor. As a result, the Debtor was injured and later had to have surgery. Shortly after having surgery, the Debtor filed a Chapter 7 Bankruptcy and did not list any pending claims in his Bankruptcy Petition. However, the Debtor later amended his Bankruptcy Petition to include a possible pending claim for around $15,000.00. Continue reading →

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Protect_thumb-150x150The first and most important thing to keep in mind when trying to rent after filing bankruptcy is the fact that you having filed bankruptcy, in itself, is not going to completely inhibit you from finding an apartment or home to rent. Nonetheless, and of course, a potential landlord will take filing bankruptcy into account as well as the circumstances around your decision to file bankruptcy, as well as where you stand today.

Here are some other items your future landlord is going to look at, some of which might just completely overshadow the fact you ever filed bankruptcy.

Your Rental History

If you have a good rental history, in that you can show that you have always been on time with paying your rent and have not broken any of your leases with previous landlords, then your potential landlord should not be too concerned about the fact you filed bankruptcy. Continue reading →

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Rule 2004 of the Federal Rules of Bankruptcy Procedure, notoriously referred to as the 2004 Examination, is usually used by a Bankruptcy Trustee and is similar to a deposition to a few caveats. 2004 Examinations have famously been referred to as a shipping expedition.

What Is a Rule 2004 Examination?

Rule 2004 of the Federal Rules of Bankruptcy Procedure states that “[o]n motion of any party in interest, the court may order the examination of any entity” regarding “the acts, conduct, or property or…the liabilities and financial condition of the debtor, or to any matter which may affect the administration of the debtor’s estate, or to the debtor’s right to a discharge….”

Rule 2004 is very broad and loose. There are very few procedural safeguards or objections available to improperly posed questions. The main purpose of the 2004 Examination is to discover undisclosed assets, question transactions and determine if the debtor has committed any fraud. Continue reading →

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Filing bankruptcy is a very scary process with a lot of unknowns. Throw in owning a small business, and it can be extremely overwhelming. The three most common types of small businesses are sole proprietorships, corporations and limited liability companies. The main characteristic of a sole proprietorship is that there is not a legal distinction between the owner and the business. What this means when filing a personal bankruptcy is that if the sole proprietorship has any assets, those assets will be considered the owner’s when filing bankruptcy.

If your small business is a corporation or a limited liability company, then the business is a completely different entity that is separate and apart from the owner(s). Outside of bankruptcy, this means that the debts of the owner are not the debts of the business, and the debts of the business are not the debts of the owner. This also means that any assets the business has only belongs to the business and not to the owner(s).

However, inside of bankruptcy things are little different. When you file a personal bankruptcy and are the owner of a corporation or limited liability company, the debts of the business are still not the debts of the owner and vice versa. What is different is that the assets of the business will be considered the assets of the owner for bankruptcy purposes. Whether the business assets are safe will depend on whether you file a Chapter 7 or a Chapter 13 Bankruptcy and whether the business has any assets. If the business does not have any assets, then the business should not be affected by the owner filing a personal bankruptcy, regardless of which bankruptcy chapter is being filed. Things can get a lot more difficult if your business has assets. Continue reading →

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Roughly about 30 to 45 days after you file bankruptcy in Jacksonville, Florida, whether it is a Chapter 7 or a Chapter 13 Bankruptcy, you will be required to appear at the Meeting of Creditors, a/k/a the 341 Hearing, along with your attorney. At this meeting, your assigned Trustee places you under oath and asks you a series of questions about your Bankruptcy Petition and the supporting documents that you provided to him or her.

dedective46-150x150However, very recently I have had a lot of clients come to me very concerned and worried about this meeting. They want to know what to expect. The best thing you can do to be prepared is to know what types of questions the Trustee might ask you.

Here are a few sample questions of what your Trustee might ask you and things you should keep in mind when under oath at your 341 Meeting in Jacksonville:

1. Once you have been placed under oath, your Trustee will have you state your full legal name and your current residence and/or mailing address? Continue reading →

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When you file a Jacksonville Bankruptcy, you are required by the United States Bankruptcy Code to list all of your assets in your Bankruptcy Petition. The reason being is to assist the Court, and your appointed Trustee, in figuring out which of your assets you are allowed to keep, and which of your assets you must turn over to your Bankruptcy Estate. The assets surrendered to your Bankruptcy Estate are liquidated to pay your creditors. If there is an asset you wish to keep, then you must accurately list that asset in your Bankruptcy Petition as well as the exemption (if applicable) that allows you to retain the asset.

The biggest hurdle is figuring out what your assets are and what exemptions are available to you. By definition, an asset is anything that has a value and that which can be sold or liquidated in order to pay your debts or commitments. The most common looked over assets are whole life insurance policies, as well as insurance policies in which you are the named beneficiary, accrued or unused vacation pay, timeshares, season tickets, unpaid insurance claims, security deposits, class action lawsuits, trademarks, liquor licenses, divorce settlements and tax refunds.

I cannot stress to you enough the importance of disclosing all of your assets. One accidental omission could have devastating consequences. Take this situation as an example:

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