Articles Posted in Discharge

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The most common type of summons received after filing bankruptcy and obtaining a discharge is a foreclosure summons. When received, it can be very alarming. You filed bankruptcy, surrendered a home, and received a discharge. You moved out of the home and on with your life thinking you are no longer liable for the home. However, when you elected to surrender the home in your bankruptcy petition, this only took care of your financial responsibility regarding the home. The bankruptcy did nothing about the deed for the home being in your name. Therefore, the bank still has to foreclose on the property in order to get the property out of your name and to take legal possession of the property. When a foreclosure is purely to take legal possession of the home and not for any money damages, it is called an in rem foreclosure action. You do not have to answer the summons unless you believe you were incorrectly served or they are suing for money damages as well. The mortgage holder must serve you because you are an interested party due to your name being on the deed.

If the summons you received after bankruptcy is for a credit card or another kind of debt you believe was discharged in bankruptcy, then you need to respond to the summons stating that the subject debt was part of a bankruptcy. Before doing so, make sure the debt was properly listed on your bankruptcy schedules and it is a debt that can be discharged. If it was properly listed on your schedules and you received a discharge, then assert this in your response/answer to the summons. Once you show the debt was discharged, the action should be dismissed.

If you are unsure of what type of lawsuit you have been served with or whether the debt was properly included in your bankruptcy, you should consult with an experienced bankruptcy attorney. A simple review of the summons, accompanying complaint, and your bankruptcy petition by an attorney can help you determine what action, if any, you need to take. Contact the Law Office of David M. Goldman, PLLC by calling (904) 685-1200 to speak with an attorney today.

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Recently, I have been receiving inquiries from clients regarding filing bankruptcy after having already filed a Chapter 7 Bankruptcy and receiving a discharge. If you have already received a Chapter 7 Discharge, you can most definitely file bankruptcy again. BUT, you must obey some very specific time limits.

If you filed a Chapter 7 Bankruptcy and received a discharge, you:

  • CANNOT file another Chapter 7 for eight (8) years from the date of your Chapter 7 filing.
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child_supportFiling for bankruptcy can be a great way to finally get out of debt and start your financial life over. However, there are some debts that bankruptcy does not eliminate. For instance, a bankruptcy will not remove a debtor’s student loans or owed child support payments.  The good news is that a Chapter 13 Bankruptcy repayment plan may help a debtor bring their missed child support payments current.

Why are child support payments not included in a bankruptcy?

The federal government has decided that some debts are too important to be erased by bankruptcy.   Congress decided that it would be too fundamentally unfair to allow a person to get out of their obligation of paying child support by filing for bankruptcy. A child support payment is court ordered and the money is spent on a child’s welfare.

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A person who cosigns, or acts as a guarantor on a debt may be affected when primary debtor declares bankruptcy. There are a few ways to protect a cosigner or guarantor during a bankruptcy, but it is important to understand each person’s roll in the process.

A guarantor, or a cosigner, is essentially a person who is responsible for paying back another’s debt if he or she is unable to. Creditors will often require a person to have a cosigner or guarantor if they feel skeptical of the person’s ability to repay the debt. This is why most young adults and those with bad credit scores are required to have a cosigner.

Further, there is a difference between a cosigner and a guarantor. A creditor can pursue a cosigner at any time if payments are not being made. With a guarantor, creditors must usually attempt to collect from the primary borrower first before going after the guarantor. If bankruptcy is declared, there is no longer a distinction and both classifications will be obligated to pay back the debt.

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bankruptcy-photo-thumb-250x219-6996Most debts can be liquidated through a Chapter 7 bankruptcy, or reorganized through a Chapter 13 bankruptcy. However, there are a few debts that can altogether be non-dischargeable.

Some types of debts are always non-dischargeable, unless a debtor can demonstrate extraordinary circumstances to convince a court otherwise. One such debt includes any debt the debtor fails to list on his or her bankruptcy petition; unless the creditor had actual notice or knowledge of the bankruptcy.

Other debts that are generally always non-dischargeable include certain taxes, such as federal tax liens, payroll taxes or fraud penalties. Child support debt and other debts owed to a former spouse that arise from divorce are also non-dischargeable. Student loans, injury caused by DUI, and homeowner association fees are also included in this list.

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Jacksonville Bankruptcy LawyerAs a Jacksonville Bankruptcy Attorney I am always being asked numerous questions about Florida Bankruptcies and their effect on individuals you file. Although individual results will vary, I strongly encourage you if you are considering Bankruptcy to consult with a local Jacksonville Bankruptcy Attorney. With that being said, here is a list of the 5 most common benefits applicable to most of my clients when filing a Florida Bankruptcy.

  1. Gives you a “Fresh Start.” This means you liability for your dischargeable will be eliminated.
  2. Will stop Foreclosure proceedings or allow you time to catch up on past due payments.
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Cut up your credit cardsMany Florida residents are under the impression that once they have filed for bankruptcy and their debts have been “discharged” they are no longer liable for those debts. This is not always the case as there are certain debts that cannot be discharged in bankruptcy. This is especially important for people to know before they begin the process of filing for bankruptcy.

Each chapter of the bankruptcy code specifies which debts are dischargeable and which are not. Section 523(a) of the Bankruptcy Code lists the types of debts that generally cannot be discharged in bankruptcy. This means that even after the debtor has prevailed in bankruptcy court, if the debts have not been discharged, then the debtor is still responsible for paying those debts. According to the Code, these non-dischargeable debts are exempt from discharge for reasons of public policy.

If a debt falls into one of the exempted categories in Section 523(a), then it is usually automatically removed from the discharge and the debtor remains obligated to pay those debts. Most commonly, those are child support and alimony debts, some tax debts, debts that the debtor failed to disclose to the court during the application process, most federal student loan debt, personal injury claims against the debtor for DUI-related incidents and personal injury claims against the debtor for willful or malicious damage to a person or to property.

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Casey Anthony Benefit From BankruptcySince Anthony was found not-guilty of first degree murder in 2008, she has been barraged by civil law suits. The most recent of these suits is brought by Mr. Roy Kronk. Kronk was a meter man who found the remains of Miss Anthony’s daughter. Kronk is suing Miss Anthony for defamation of character, as her defense team alleged that Kronk himself murdered the child. Later it was alleged by Anthony that her daughter, Caylee had drown in the family pool.

Defamation is a false and defamatory statement about a plaintiff which is heard by a third party by the fault of a defendant. Some kind of damage must result. In this case, defendant Casey Anthony, through her lawyers, said that plaintiff Ray Kronk had murdered a child and this was heard by third parties across several news stations. It’s likely that his reputation was damaged. it’s likely that Kronk will win such a suit, unless Anthony’s can prove by a preponderance of the evidence that Kronk did in fact kill the child. That would mean that she committed perjury in saying that the daughter drowned in the pool, but she’s already had perjury suits in the past.

Even if Anthony is found liable for the damages to Kronk, it is possible that she could file a Chapter 7 bankruptcy and discharge the debt. Unlike debts to the government, debts to private citizens are almost always discharged. One of the few exceptions to discharge-ability falls under 11 U.S.C. § 523(6) which requires that a willful and malicious injury by the debtor occur to the plaintiff. The case of In re George out of Tampa, Florida holds that some defamation judgments are both willful and malicious. This case found that willful merely means that an act was intentional. Malicious, on the other hand, was not defined by this court as the previous court that found the defamation had declared the defamation malicious, instantly proving it as a matter of law for the In re George case. The ultimate question is whether Casey Anthony could benefit from a bankruptcy filing. The answer to this depends on whether Kronk can prove malice on the part of Anthony. Malice is often thought of as actions arising from, “evil intent”. This poses an interesting question of what motivated Casey to accuse Kronk. Did she actually believe Kronk had murdered Caylee? No. She couldn’t have if she knew Caylee had died in the swimming pool. But Casey didn’t know Kronk, why would she want to frame him for a crime that she knew hadn’t been committed?

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IRS Passport Revocation and Discharge of Income Tax DebtsSenate Bill 1813 will allow for the revocation of passports from anyone who owes more than $50,000 to the Internal Revenue Service. The Bill will Amend Sub-chapter D of Chapter 75 of the Internal Revenue Code of 1986 to read:



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Student Loans Non-DischargableAs both an attorney and a holder of a postgraduate degree I am often approached by people, clients and associates alike regarding an American’s ability to discharge student loan debt in bankruptcy. I have recently read, “The Student Loan Scam” and found it to be an enlightening, albeit depressing, read. The book outlines the history of the non-dischargability of student loan debts in bankruptcy from the early stages when it was discharged like any other debt to when it required a five year Chapter 13, then a seven year case and then finally being practically impossible to discharge in any scheme at all. Apparently, student loans have only held their practically non-dischargable status since the passage of the 1998 Higher Education Act.

In Canada, recent changes to their laws have permitted discharge of student loans which originated seven (7) years prior. Recently, I spoke to an attorney out of Calgary, Canada who informed me that while Canadian loans can be discharged within the seven year period and that any of my clients who might want to file in Canada would still be liable on their U.S. loans.

Student loan borrowers are not without alternatives. “The Student Loan Scam” gave gruesome examples of those who migrated form the U.S., went underground or even committed suicide as a result of their non-dischargable debt. About three years ago the “Income Based Repayment” program went into effect. This program allows those with state backed loans to pay only a percentage of their income toward their debt. This is on a graduated scale and allows a person making less than $15,000 to have no payment. After twenty-five (25) years of these payments, the remaining debt is discharged. Just last year, this twenty-five (25) year period was reduced to fifteen (15) years. In short, the ability to discharge student loans in the United States went from dischargable in bankruptcy, to dischargable in five years, then seven, then not at all, then twenty-five years and now fifteen. What length of time is appropriate? Who knows.

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