Bankruptcy in the state of Florida can be filed by an individual without the aid of an attorney or document preparation agency. Yet, it is still recommended that anyone filing for personal bankruptcy should seek legal counsel.

The federal bankruptcy code creates different categories of bankruptcy, known as chapters, which gives debtors different ways of dispensing with debt. The two most common forms of individual bankruptcy available to any resident of Florida are chapter 7 and chapter 13. This brief “how to” guide is written in with a systematic process for both types.

Chapter 7

Note: After filing for a chapter 7 bankruptcy, a debtor must wait 6 years before they will be allowed to file again.

Step 1: Filing the Petition

A chapter 7 bankruptcy begins with a petition filed at the federal district courthouse servicing the area the filer lives in. Under federal and Florida law, an individual, partnership, or corporation can file chapter 7 regardless of the amount of debt. This petition paperwork is provided by the courthouse or can be obtained online at many legal websites.

Along with the petition, or shortly after the initial filing, the debtor must also submit several schedules listing current income, expenditures, and a statement of financial affairs, executor contracts, existing or potential lawsuits, and any recent transfers of assets. If a debt is omitted then it will not be covered in the bankruptcy.

Step 2: The Stay Period

Filing the petition automatically stops all creditors from trying to collect money that is owed. This stay period happens automatically without any judicial action. The stay period is effective from the time of filing, even if creditors are not aware of it until later. In this period, lawsuits, garnishment actions, and even phone calls to the debtor must stop.

Step 3: The Creditors Meeting

Once the petition is filed for a chapter 7 bankruptcy, the court immediately appoints a trustee to administer the overall case and liquidate any non-exempt assets to pay off creditors. The trustee will call a meeting for the debtor’s attorney and the creditors wishing to collect debt. The debtor must attend this meeting and creditors may attend in order to ask questions and examine documents concerning a debtor’s financial affairs.

In most individual bankruptcy cases, all of the debtor’s assets are either exempt or subject to valid liens, which leaves no assets for a creditor to pursue. These cases are called no asset cases and many times a creditor will not show up.

Step 4: Claims of Creditors

After the creditors meeting takes place, all creditors can file a claim against the debtor with the court. This is done so that a creditor can make a claim against nonexempt assets free of security interests.

Step 5: Liquidation, Discharge, and Reaffirmation

The idea of having a trustee is to liquidate the debtor’s non-exempt assets and pay off as many creditors as possible. A chapter 7 bankruptcy concludes when the trustee sells the debtor’s property, distributes any cash to the creditors, and discharges the remaining debt. The final discharge, ordered by a judge, ends the debtor’s remaining personal liability on the debt. Some debt is not dischargeable such as alimony and child support, most tax obligations, most student loans, and liability for damages resulting from willful or malicious acts.

During this process, creditors can ask the court to deny an individual debtor a discharge. The grounds for approval are based on whether a debtor fails to adequately explain the loss of assets, the debtor perjures him or herself or fails to obey lawful orders of the court, or the debtor fraudulently transfers, conceals, or destroys property that should be included in the bankruptcy case.

Chapter 13

Chapter 13 bankruptcy is considered a wage-earner plan because it is generally used by people with stable incomes who want to repay at least some of their debts but cannot handle the full brunt of it. The biggest advantage of a chapter 13 over a chapter 7 is that the debtor is allowed to keep his or her property and set up a court-approved payment plan. Only individuals with less than $100,000 in unsecured debts and less than $350,000 in secured debts are eligible to file chapter 13.

Step 1: The Petition

The petition is similar to that mentioned above in the explanation on chapter 7. The debtor provides the court with lists of all creditors including amounts and the nature of claims, the source and amount of income, lists of all property, and detailed descriptions of the debtor’s monthly living expenses, including groceries, clothing, shelter, utilities, taxes, transportation, and medical care.

Step 2: The Stay Period

The stay period is identical to that of chapter 7 except that chapter 13 contains a provision that prohibits creditors from collecting on a debt owed by a third person such as a cosigner.

Step 3: Chapter 13 Plan

Federal and Florida law state that within 15 working days of filing for a chapter 13 bankruptcy, a debtor presents a plan to the bankruptcy court listing out how he or she intends to pay off debts over a three-year period, or in some cases a five-year period. These must be paid out based on priority and federal bankruptcy law lists several categories of unsecured claims that have priority over other unsecured claims including costs of administering the bankruptcy, employee’s wages, salaries and commissions, contributions to employee benefit plans, deposits accepted by the debtor for personal items or services that the debtor did not deliver, and taxes.

Individuals seeking to fill out this plan should get the aid of an attorney to ensure it is filled out properly. If the plan is not done correctly the court can deny the document and the bankruptcy cannot proceed.

Step 4: The Creditors Meeting

A meeting is usually held about one month after the initial petition is filed. A trustee and filer must attend the conference, and creditors have the option of coming also. The idea of the creditors meeting is for the creditors and trustee to question the individual filing the plan about his or her financial affairs and any possible problems with their plan. Some problems can be solved at this meeting.

Step 5: The Confirmation Hearing

After the meeting mentioned in step 4, the bankruptcy court will make a final determination whether the plan is feasible and meets the standards set forth in the bankruptcy code. Creditors can dispute the plan if they believe that a debtor has not pledged enough income to the plan or that the creditors receive less than they would if the debtor’s assets were simply liquidated.

If the plan is approved by the court, a portion of the debtor’s paychecks will go to a court-appointed trustee who divides the money among the creditors. At that point, the creditors are prohibited from garnishing wages or repossessing property.

Step 6: The Discharge

Once all payments are made, the plan approved by the court is complete and the bankruptcy is successfully discharged. The discharge releases the debtor from all debts provided for in the plan.

Other Types of Bankruptcy

The Federal Bankruptcy code also allows an individual to file a chapter 11 or 12. Chapter 11 is available for individuals, but is generally used by troubled corporations and partnerships.

Chapter 11 allows the debtor to remain in operation and reorganizes debts in a way that they can pay them. It is designed to keep businesses up and running rather than liquidation.

Chapter 12 is available only to farmers and is very similar to chapter 11. Before choosing either chapter 11 or 12, an individual should consult an attorney.

Author: Kenneth Diaz
Mr. Diaz is a Legal Document Preparer in Florida and New York with over 15 years of experience. He has launched an informational website for self-representing litigants (pro se) in the state of Florida. You can read more about his site at Florida Court Forms. For more information about this article, visit his Florida Bankruptcy web-page.

Article Source:http://www.articlesbase.com/bankruptcy-articles/personal-bankruptcy-in-florida-steps-to-chapter-7-and-chapter-13-bankruptcies-1726462.html

5 Common Mistakes Bankruptcy Clients Make

Bankruptcy is governed by Title 11 of the United States Codes. Oftentimes, what makes sense in bankruptcy world does not make sense in everyday life. Here are the top 5 mistakes potential bankruptcy clients make.

1. Selling assets in an attempt to get out of debt

What assets you can keep in bankruptcy is governed by the specific statutes of each state known as “exemptions.” This sets forth rules regarding what property you can keep through bankruptcy. Oftentimes, we see clients liquidate their 401(k), or borrow against it, or sell their assets. Carefully consider if you can get out of debt by taking such measures. If at the end of the day, you still cannot get rid of your debt or get it down to an amount that you can deal with, it does not make sense to get rid of assets that would otherwise be protected in bankruptcy.

The best time to consult with a bankruptcy attorney is when you are struggling to stay afloat and simply do not see a way to get rid of all of your debts. Remember, filing for bankruptcy is a tool to shed your legal responsibility to repay the debt. Nothing in the bankruptcy code prohibits you from voluntarily repaying the debt after bankruptcy. It’s not about running away from your debt, but taking a responsible step at facing your financial situation.

2. Getting rid of assets for less than the fair market value

Another mistake clients often make is attempting to hide or get rid of their assets for the fear that they will lose the asset through bankruptcy. Any transfers of assets prior to bankruptcy must be disclosed in the bankruptcy petition. Remember, bankruptcy is for the honest debtor.

3. Repaying an “insider”

It’s a natural instinct to want to pay back family members, or business associates or other people whom you have a close connection to before paying back Discover, Chase or American Express. However, in bankruptcy, this is considered an insider transfer. It must be disclosed on the bankruptcy petition and the Trustee can go after the insider for the money if it was repaid within a certain time prior to filing you’re a bankruptcy petition

4. Incurring more debt in anticipation of bankruptcy

This can happen in two ways. One by tapping into lines of credit or other sources of credit you may have (for example, your home equity line of credit). The debtor may unwittingly convert an unsecured debt into secured. Remember that when you file bankruptcy, the duty to repay the debt on a secured debt is discharged, however, the creditor still has a security interest in the property, and can exercise its right to foreclose or repossess.

If a client maxes out his or her credit card, takes cash advances, takes a trip to Paris, with the anticipation of filing for bankruptcy, the client may be committing fraud. Bankruptcy fraud is a felony punishable by prison time. Credit card companies monitor its users for “abuse” and can object in the debtor’s bankruptcy proceeding. This will almost certainly mean additional attorney fees, and worse yet, non-discharge of your debt.

5. Not being honest

You are hiring your attorney to be able to spot potential issues and figure out solutions. The attorney is your ally and he or she should be treated as such. Maybe you’re simply embarrassed by something in your financial history, or there is something you’ve done that you do not want anyone to find out. The only issue your attorney cannot assist you with is one he or she does not know about. It’s important that you be upfront and honest with your <a target=”_blank” href=”http://www.jclawgroup.com”>san francisco bankruptcy attorney.</a>

About the authors: Jeena Cho and Jeff Curl are San Francisco bankruptcy attorneys practicing in San Francisco and San Mateo County. Their practice is focused on chapter 7 and chapter 13 bankruptcies for individuals, families and small businesses. They can be reached at (415) 963-4004

Article Source:http://www.articlesbase.com/bankruptcy-articles/5-common-mistakes-bankruptcy-clients-make-1693163.html

There is little doubt that most people and businesses are glad to see 2009 pass, but what does 2010 hold in store particularly when it comes to bankruptcy filings? Let’s take a look.

The 2009 calendar year saw the bankruptcy filings of companies that were once thought impervious to such a development. Two that immediately come to mind are Chrysler and General Motors. Both filings were fairly quick because the nature of the reorganizations were figured out before the filings were made. This presents us with our first trend in 2010.

We can expect to see more pre-packaged bankruptcy filings this year by large businesses. This type of bankruptcy has always been around, but it was turned into an art form in 2009. The basic idea is to put the screws to the creditors while threatening a bankruptcy filing. Those creditors that don’t agree to the deal being offered are then washed away in bankruptcy while those that agree come out the other side with some interest still in the company, often an equity interest.

The second trend we will see in 2010 is the continuation of huge bankruptcy filings. The difference is you and I will not recognize many of the names. These companies will be behind the seen entities. The number on industry where this will occur is in commercial real estate. Everyone from mall owners to brokers to, well, anyone associated with the industry is going to be in big pain. 2009 started the commercial real estate market implosion, but 2010 will see the biggest bloodletting.

The third development will be the continued “hidden” second great depression. People say we were saved from a great depression, but this isn’t true. The key is the banks. More banks failed in 2009 than 2007 and 2008 combined. The government is just doing a good job of keeping the news under wrap. Ah, and what about unemployment? Well, the reported rate is just over 10 percent. In truth, it is closer to 20 percent. The official rate does not include people who are working part time or haven’t had a job in a year. All of this will lead to more personal and business bankruptcy filings.

Is there any economic hope in 2010? Yes. The good news is we’ve stabilized from a confidence stand point. That is important because it means people will go out and spend at least a bit on things. I just bought an exercise bike! Regardless, the panic of 2009 has ended and one can expect a bit of stability in 2010. Will there be a recovery? Technically, we are already in one, but the effects won’t be felt by people like you and I until the end of 2010 or early 2011. Still, that is better than where we were in January 2009.

Thomas Ajava writes for BankruptcyAttorneysandLawyers.com – where you can find bankruptcy attorneys and lawyers in your area that will put an end to your financial misery.

Article Source:http://www.articlesbase.com/bankruptcy-articles/bankruptcy-what-can-we-expect-in-2010-1677236.html

Does the following scenario sound familiar to you?  The Smith family has had a difficult year financially.  John Smith lost his lucrative career as a result of cutbacks to middle management at a previously thriving construction company and has been working two jobs in retail for several months.  Jane Smith recently re-entered the workforce after twelve years of staying home to raise children in order to help make ends meet.  As the year comes to a close, Mr. and Mrs. Smith realize that bankruptcy is inevitable and decide to have one more wonderful Christmas before confronting the legal steps that will need to be taken.  The credit cards come out of the wallets to make this holiday the best one yet.  Tickets are purchased for the entire family to attend the Houston Texans’ final game of the season.  The girls get new iPods and cell phones.  The Smith’s only son, true to his Texas roots, receives new gear to help him prepare for upcoming tryouts for his high school’s football team and a used truck to drive to the games.

The Smiths have no reason to worry because all of the mounting credit card bills will just be included in the bankruptcy settlement, right?  In reality, this family may learn a hard lesson about the consequences of their spending practices.

If you are feeling overwhelmed by the debt that you are carrying and you believe that bankruptcy is your best solution, please know that some of the credit card debt you have accumulated may not be dischargeable.  Section 523(a)(2) of the federal Bankruptcy Code addresses the problem of credit card binging.  This clause exempts from discharge “debt that was obtained if an individual made material and false representations about his financial condition.” This may mean that a person submitted fraudulent information on the credit card application or knowingly made purchases for which he knew he would not be able to pay.  The latter issue is the more common situation, and the exemption that describes the scenario involving the Smith family.

A credit card company is going to use Section 523(a)(2) to challenge the discharge of your debt if one or more of the following circumstances exist:

1. An increase in credit card usage shortly before filing for bankruptcy
2. The use of the card for recent vacations or travel
3. Using the card while unemployed or otherwise without reasonable ability to repay
4. A large balance at the time of filing

One specific point in the Bankruptcy Code, Section 523(a)(2)(C), deserves special attention from all of those shoppers who are determined to find the perfect gift regardless of cost.  Consumer debts owed to a single creditor that total more than $500 for luxury goods or services within ninety days of filing for bankruptcy will be considered non-dischargeable.  And, by luxury items the law is not referring to fur coats and yachts.  Instead, luxury goods are defined as “goods or services reasonably not necessary for the support or maintenance of the debtor or a dependent of the debtor.”

What does this mean for people who overindulge with their spending during the Christmas season?  If you spend thousands of dollars in December knowing all along that you plan to file for bankruptcy once the New Year rolls around, your plans for debt relief may be delayed.  If you know that you will not be able to pay for the bills you created during Christmas, you will have to wait at least four to six months into 2010 to file for bankruptcy.  In the meantime, you will be expected to make regular payments to your creditors.  The bottom line is that you should not view an intended declaration of bankruptcy as an excuse to make everyone happy with the expensive gifts under the Christmas tree.

When it comes to issues of bankruptcy, Texans are in a better position than many others in our country.  In 2008, our state ranked forty-sixth in the country for number of bankruptcies filed. While residents of the Lone Star State are proud of being the biggest and best in so many areas, this is one ranking for which we should take pride in being nowhere near the top.  However, this relatively good standing does not mean that there are not thousands of Texans who are struggling to pay their bills every month.  With the pressure to be a good consumer from the moment that the doors open on Black Friday until the exchanges are made and the clearance items are tagged the day after Christmas, the end of the year only makes already difficult situations even worse.

If you believe that you may be a candidate to file for Chapter 7 bankruptcy, which essentially offers a fresh financial start to those who qualify, make sure that you do not at this point begin to create debt that cannot be discharged.  The time to consult with an experienced bankruptcy attorney is now.  You need to receive solid legal advice concerning your financial options and any spending pitfalls to avoid while the paperwork is being drafted.  Once you know where you stand, try to relax and enjoy the rest of the holiday season at home with family and friends and not at the local mall.  Your credit rating and your legal counsel will thank you for it.

Tony R. Bertolino is the managing partner at Bertolino LLP with law offices located in Austin, Houston and San Antonio, Texas. A member of the Trial and Appellate Litigation Team, Mr. Bertolino’s practice is devoted largely to complex transactions, commercial litigation, business law, entertainment law and family law matters. You can read more about Mr. Bertolino at www.belolaw.com

Article Source:http://www.articlesbase.com/bankruptcy-articles/bankruptcy-may-not-cover-christmas-credit-card-binges-1641814.html

When Creditors Won’t Reaffirm

By Jacqueline S. Edington, Paralegal

            Bob (not his real name) filed a chapter 7 bankruptcy.  Bob stated that his intentions on a 2007 motorcycle were to reaffirm.  In the usual frame of time Bob received his Order in No Asset, meaning Discharge was right around the corner.  Bob realized that he had never been sent a reaffirmation agreement for the motorcycle.  I contacted the creditor.  The creditor refused to reaffirm the debt and explained that Bob could simply continue making his monthly payments.  “We just do not give out reaffirmation agreements,” was the response I received.

            Now, the consequences of making monthly payments without signing a reaffirmation agreement are that the creditor may come and take the property at any time.  This repossession could occur regardless of how long or how many payments you have made to the creditor.  Not an ideal situation for a motorcycle you plan to keep.

            When I relayed the creditor’s reply to Bob, he was understandably upset.  He decided that maybe if he called them he could reason with the creditor.  I listened to his phone conversation in my office.  His career, or calling you might say (for Bob is an ordained minister), was one where he was adept at persuading people.  “I want to pay you people the money I owe you,” were some of the words he used.  Bob truly wanted to do “the right thing.”  But again, the creditor rejected Bob’s sincere desire to reaffirm the debt.

             When I approached my boss, and Bob’s attorney, to discuss the situation, he suggested redeeming the motorcycle.  I drafted a Motion to Redeem for a ridiculously low amount far below the fair market value of the motorcycle.  The reason I did this was so the creditor would be forced to produce the reaffirmation agreement.  No Objection was made by the creditor within the specified time period and the Judge issued an Order.  We were astounded!

            My boss, still leery, told Bob that the creditor had thirty days to appeal the Order.  We waited thirty days and nothing happened.  Meanwhile, Bob had sent a check to the creditor for the amount ordered.  The check cleared but Bob did not have a Title to the motorcycle.

            I sent a letter to the creditor giving them thirty days to send the Title to our office.  Lo and behold the Title arrived!  Bob owns a 2007 motorcycle valued at $8,500.00 that had a lien on it for over $10,000.00 for the mere sum of $500.00!  It would have served this particular creditor well if it would have reaffirmed the debt with Bob.  Too many times we are letting creditors call the shots and intimidate our clients.  At our firm we fought back and won!  Now Bob thinks we are wonderful and has already referred several clients to us.  It pays to treat your client’s situations with due diligence!

Article Source:http://www.articlesbase.com/bankruptcy-articles/when-creditors-wont-reaffirm-1589035.html