Chapter 7

Chapter 13
July 17, 2014
July 17, 2014


    This basic information about Chapter 7 bankruptcy should assist you in understanding the course of events that occur when you file a Chapter 7 bankruptcy. If you cannot find the answer to your question here, you may e-mail your questions to your bankruptcy attorney.


    The new bankruptcy law (effective October 17, 2005) makes filing bankruptcy more complicated. The new law is accompanied by new rules, new forms, and additional work for debtors and their attorneys. Additionally, there are many parts of the new law which are ambiguous and subject to multiple interpretations. As judges interpret and clarify the new bankruptcy law through court decisions, the new law will become more clear. Since bankruptcy courts are located all over the country, even if one judge interprets a part of the new law, it will take time for that interpretation to be tested on appeal and for the ultimate ruling to spread throughout the country's legal community. Your bankruptcy attorney will try to advise you as best as (s)he can about the effect of the new law on your situation. There is some uncertainty about how the new bankruptcy law may impact your bankruptcy case.


    A permanent resident of Florida can file bankruptcy in a Florida bankruptcy court. Florida has three bankruptcy districts (Southern District, Middle District, and Northern District), and each of Floridas counties is assigned to one of the three bankruptcy districts. You must file bankruptcy in the district where you reside.

    An important concept in both Chapter 7 and Chapter 13 bankruptcy is exemptions or exempt property. When you file a Chapter 7 bankruptcy, the Trustee takes all of your non-exempt property and sells it for the benefit of your unsecured creditors. The Trustee cannot take your exempt property and you may keep all of your exempt property regardless of its value and amount. What property is exempt and what property is non-exempt depends on the exemption laws of the applicable state. Each state has its own and different laws about what assets are exempt and non-exempt for bankruptcy purposes. Therefore, before you file bankruptcy you and your bankruptcy attorney must ascertain which state laws will determine your exempt assets.

    Florida has liberal bankruptcy exemptions for some assets, including an unlimited homestead exemption in most cases, and limited exemptions for other assets. Only Florida residents are eligible for Florida exemptions. Just because you are a Florida resident when you file for bankruptcy does not mean you are entitled to Florida exemptions in bankruptcy.

    Under the new bankruptcy law the state exemption law applicable to your bankruptcy is determined by the state in which you have been domiciled for the 730 days (two years) immediately preceding your filing date. If you have not been a permanent resident of Florida for the two-year period immediately preceding your bankruptcy, then your bankruptcy exemptions will be those allowed by the state in which you were domiciled for 180 days immediately preceding the two year period, or the state in which you were domiciled for the longer portion of such 180-day period.

    Otherwise stated, a person filing bankruptcy in Florida today is eligible for the property exemptions he could have claimed if he had filed two years ago. If this person was a Florida resident two years ago he claims Florida exemptions today; if two years ago he was a resident of a different state then he is entitled to the exemptions of the state of his prior residence.

    Consider a person who sells his residence in Georgia for $100,000 and moves to Florida in January. In March of that year he purchases a Florida homestead for $100,000. The person gets a Florida drivers license and registers to vote in Florida. In March of the following year, 14 months after becoming a Florida resident, the same person loses his job and files bankruptcy. Under the new bankruptcy law, Georgias relatively limited exemption laws would apply to this bankruptcy, and the debtor would not have the benefit of Florida homestead protection.

    In reality, the laws about bankruptcy exemptions are even more complicated than the example above. Many issues are unclear in the new law and will have to be resolved over time through court decisions. Before you file bankruptcy in Florida you and your bankruptcy attorney should discuss where you have resided during the past few years and should discuss whether Florida bankruptcy exemptions would apply in your case. In many cases, the state where you moved from will provide better bankruptcy exemptions than will Florida law.


    If Florida exemption law applies to your bankruptcy, the following are the principle bankruptcy exemptions under Florida law.


    1. Homestead. Your homestead is exempt property under Article X, Section 4 of the Florida Constitution. This protection is afforded homestead properties situated on one-half acre or less within a municipality and properties up to 160 acres outside a municipality. There is no dollar limitation. The homestead exemption applies to all Florida residents. The new bankruptcy law does not affect homestead protection for Florida residents in state court proceedings.

    The new bankruptcy law does change the homestead exemption for Florida residents who file bankruptcy. Under the new law you can protect unlimited equity in your homestead provided you purchased the residence 40 months or more prior to filing bankruptcy. If you purchased your home within 40 months the new law exempts up to $137,000 of equity. The exemption amount is increased (effective April, 2007) from the original $125,000 to approximately $137,000 per person. Additionally, if you injected cash in your home within the 40 months, such as by paying down the mortgage or building a home addition, the amount of investment made within the 40 months will not be exempt even if you purchased the home 40 months prior to filing. The $137,000 homestead exemption limit applies only in bankruptcy cases. Several courts have held that a married couple filing jointly can claim two homestead exemptions for a total homestead protection of $274,000.

    2. Statutory Exemptions Chapter 222 of the Florida Statutes includes several categories of exempt property, including: pensions, 401K plans, tax deferred retirement plans, Social Security income, disability income, IRAs, annuities, cash value of life insurance, college investment plans (including 529 Plans), health savings accounts, and hurricane savings accounts.

    3. Automobile Exemption: You are allowed to exempt $1,000 of equity in an automobile. Spouses who jointly own a car may exempt $2,000 of value in that car. Most bankruptcy trustees use the average retail/wholesale value from the yellow NADA book, adjusted for the condition of your car. If the balance of your car loan is greater than the car value (upside down) then you have no car equity and your car is protected in bankruptcy so long as you keep your car payments current.

    4. Miscellaneous personal property exemption. Each bankruptcy debtor is allowed to exempt $1,000 ($2,000 for joint filings) of all other personal property including furniture, cloths, tools, and estimated cash on hand. For bankruptcy purposes the value of your personal property is its current fair market value at a public market such as a garage sale or flea market sale. A new Florida statute effective July 1, 2007, provides a $4,000 "wildcard" personal property exemption to bankruptcy debtors who do not claim a homestead exemption. You must not own a home or intend to surrender the home you do own to the mortgage lender in order to qualify for the wildcard exemption. Joint debtors can claim a $8,000 wildcard exemption.


    Any property which is not exempt under Florida law is included in the bankruptcy estate. The Chapter 7 Trustee may take and sell all non-exempt property and distribute the proceeds to the unsecured creditors. (You will have the opportunity to keep your non-exempt property by entering into a "buy-back" agreement with the Trustee. If you execute a buy-back agreement with the Trustee, you will make either a lump sum payment to the Trustee or make monthly installment payments over a period of several months.)


    The new bankruptcy law requires that anyone who files bankruptcy must received credit counseling and financial education by approved providers as a condition for filing bankruptcy and discharging debts. No one can file bankruptcy unless they complete accredited credit counseling within 180 days of their bankruptcy filings. The credit counseling can be provided in person, by telephone conference, or over the internet. You have to pay for credit counseling, but the costs will be regulated by the United States Bankruptcy Trustee office. You will be required to file a certificate from the credit counseling agency verifying the course completion with your bankruptcy petition. If credit counseling resulted in a debt repayment plan, you must file a copy of the plan. Your bankruptcy attorney can tell you where to find approved credit counseling providers.

    In addition, during the course of your bankruptcy you must also complete an instruction course concerning personal financial management in order to have your debts legally discharged. As is the case with credit counseling, financial management courses may be provided by phone or on line. You are responsible for the course fees. Your bankruptcy attorney can tell you where to find approved financial management providers.


    Under the old bankruptcy law almost any resident of the United States could file Chapter 7 bankruptcy. The new bankruptcy law includes a formula test, called the means test, to determine who may (and who may not) be eligible to file Chapter 7 bankruptcy. The means test applies only to people whose debts are primarily consumer debts. Consumer debtors include credit card debts, car debt, or mortgages for the primary residence. Many people are forced into bankruptcy because of non-consumer debt such as debts from a failed business, large business related judgment or delinquent mortgages on investment real estate. Those people whose debts are primarily business or investment debts, or debtors who owe primarily other non-consumer debts such as taxes or student loans, are exempt from the means test; these people may file Chapter 7 bankruptcy regardless of their income and expenses. Most importantly, if your family income is less than the median income for similarly sized Florida households you too are exempt from the means test. As of October, 2008, the Florida median income for a two-person household is approximately $52,000. The median income for a single person is approximately $41,000.

    The means test formula is designed to evaluate whether the debtor has the financial means to pay back a substantial part of his debts in a repayment plan through Chapter 13 bankruptcy. The means test formula considers measures of income and allowable expenses. If, according to results of the formula, you do not have sufficient net monthly income to repay debts you are eligible to file Chapter 7; if the formula says you can repay your debts you are not eligible for Chapter 7 bankruptcy unless you prove "special circumstances" of hardship such as a recent job loss or medical problem. You may be eligible for relief in Chapter 13 bankruptcy.

    The means test formula is very complex and several of its important terms are counter-intuitive. The formula incorporates a variety of government statistics from several sources as well as information about each debtors financial situation. Calculations under the formula are difficult to do without a professional computer program designed for bankruptcy attorneys to prepare bankruptcy petitions.

    You may not obtain a discharge in a Chapter 7 bankruptcy within 8 years of the filing date of a previous bankruptcy in which you received a Chapter 7 discharge- the prohibition is 8 years from the prior filing date rather than the prior discharge. There is a 6 year wait after a prior Chapter 13 discharge. Thus, a debtor may obtain a discharge in a new Chapter 7 cases as long as 6 years have passed since the filing of a prior Chapter 13 chase in which a discharge had been granted. In addition, there is no time restriction on obtaining a discharge in a new chapter 7 chase after a prior Chapter 13 case in which a discharge was granted if 100% of the allowed unsecured claims were paid, or in which the actual payments under the previous Chapter 13 plan comprised at least 70% of the allowed unsecured claims in that case.

    A summary of the means test and its most important terms and definitions is provided in the bankruptcy section elsewhere on this website.


    Secured or Unsecured Debts. The bankruptcy petition asks you to list secured debts separately from unsecured debts.

    Unsecured debts include personal loans and credit cards issued by banks, such as Visa, MasterCard, American Express, or Discover, and other credit cards used to purchase consumable items. Vehicle leases are unsecured debts. Medical bills and personal loans are also unsecured debts.

    Secured debts include those debts where the creditor has a security interest in your property to guarantee payment. Examples of secured debts include mortgages, car loan, loans from finance companies (usually secured by household items), furniture, computers or electronics. If you purchased store goods using a store credit card, such as a card from Circuit City, Rooms to Go, Best Buy, Rhodes, etc., the store probably has a security interest in certain items purchased, which makes the store a secured creditor.

    Secured Property. After filing a Chapter 7 bankruptcy, you will have to choose to either reaffirm secured debts or surrender the secured items to the creditor. You are entitled to keep any secured property as long as you continue to pay the loan for that property. If, however, you elect to surrender secured property, the secured creditor may not thereafter recover any money from you personally on account of that debt. Some mortgage companies recently have required borrowers to sign cross-collateralization agreements by which the mortgage borrowers pledge bank accounts and other financial instruments to secure their mortgage. A cross-collateralization clause allows the mortgage lender to get money in your financial accounts to pay delinquent mortgage payments. If you are unsure whether you pledged financial accounts to your mortgage lender you should review the papers you signed when you got your mortgage.

    Reaffirmation Agreements. The law requires you to execute a reaffirmation agreement for secured personal property you want to keep. You must sign a reaffirmation agreement within 45 days of the first meeting with the trustee (the meeting of creditors or 341 meeting). If you do not sign the reaffirmation agreement or redeem the property within 45 days, the automatic stay is lifted as to that property and the creditor is permitted to take all legal action allowable under the law to repossess the property (if payments are not current). Signing a reaffirmation agreement means that you will be personally liable to pay the debts after your bankruptcy is over. You do not have the unlimited right to reaffirm a debt. Your attorney must sign your reaffirmation agreement if he believes you can afford the debt. If the attorney is not sure you can afford reaffirmation, the attorney may choose not to sign our reaffirmation agreement. In that event, you must go before the bankruptcy court judge and explain why you believe you can afford reaffirmation and why reaffirmation is in your best interest.

    Redemption. Bankruptcy also gives you the option to redeem secured personal property such as furniture, computers, automobiles, or other property purchased on credit and subject to a lien in favor of the lender. Redemption means purchasing the property from the secured lender at its current retail market value considering its age and condition. When the current retail value is less than the amount due under the loan, redemption can be financially beneficial.

    Student Loans. Student loans are not dischargeable unless you can show that your loan payments impose undue hardship. In order to eliminate your student loans under the undue hardship exception you must file a separate motion with the bankruptcy court, and you must appear before the bankruptcy judge with proof of your hardship. As a practical matter, it is very difficult to demonstrate undue hardship unless you are physically unable to work.


    Unfair Debt Collection. The Federal Fair Debt Collection Practices Act (the Act) prohibits unfair collection of consumer debts. If you can prove that your creditors intentionally and repeatedly violated the Act before or after you retained your bankruptcy attorney, you may be able to recover damages. The following is a summary of a few prohibited debt collection practices:

    1. Calling you before 8 a.m. or after 9 p.m. local time.

    2. Contacting you directly after you told the creditor you retained me to represent you.

    3. Telling your employer or co-worker that you owe money to the creditor.

    4. Calling you at work after you have told them not to.

    5. Intentional and continuous harassment or abuse in connection with a debt.

    6. A creditors representative falsely representing that he is an attorney when in fact he is not licensed to practice law.

    7. Threatening you with arrest or imprisonment for failing to pay a debt.

    8. Communicating with anyone other than you our your spouse about your debt.

    The debt collection laws are complicated, and your right to recovery will depend on your specific facts and your evidence. Contact your bankruptcy attorney if you believe you can prove one of your creditors intentionally and repeatedly engaged in unfair collection practices. A copy of the complete Act is available at under Consumer Information.

    Use of Credit Cards. Do not use any credit cards after our initial consultation with your bankruptcy attorney or once you have decided to file bankruptcy. If you have charges or cash advances in the months preceding filing bankruptcy, the creditor may file an adversary complaint alleging that you incurred recent charges with fraudulent intent and without the intent and/or ability to repay these debts.

    Credit Union Loans. Many credit unions will make you close your checking and savings accounts if you discharge a loan or credit card debt from the same credit union. In such event, you will have to open new checking and savings accounts at a different financial institution. Additionally, your credit union loan may be secured by funds in your credit union accounts, and in such event, the credit union can seize money in these accounts to pay the loan prior to the filing of the bankruptcy petition. You should examine your loan documents or talk to your credit union if you are unsure whether or not your credit union loan is secured by money in the accounts. Many credit unions also cross-collateralize loans, which means that a credit card account may be secured by other property such as your automobiles.

    Get a Credit Report. You must obtain a credit report and furnish a copy to our office prior to filing bankruptcy. If you have recently been denied credit, you are entitled to a free credit report from the reporting agency. Instructions for obtaining this report should be on the letter you received denying credit. Also, a recent federal law gives you the right to obtain a free credit report once a year. You can obtain a free credit report from one or all of the primary credit reporting agencies at

    The Automatic Stay. The automatic stay acts like a shield between you and your creditors by prohibiting the commencement or continuation of creditors judicial proceedings against you as well as all collection efforts. The automatic stay does not begin when you hire a bankruptcy attorney, but begins only after you file your bankruptcy petition.

    Limits on Automatic Stay in Subsequent Bankruptcy. If you file a bankruptcy petition under Chapter 7 or Chapter 13 within one (1) year of the dismissal of an earlier case, the automatic stay in the second case terminates thirty (30) days after the second bankruptcy unless you demonstrate that the second bankruptcy was filed in good faith with respect to the creditor sought to be stayed. A second repeat bankruptcy filing within the same one (1) year period will not effect the automatic stay.


    The new bankruptcy law places additional duties on bankruptcy attorneys representing debtors in Chapter 7 bankruptcy cases. Your bankruptcy attorney must certify to the court that he or she has performed a reasonable investigation into circumstances giving rise to your bankruptcy, that your bankruptcy petition is well-grounded in fact, and the attorney has determined that your bankruptcy does not constitute an abusive filing. Also, the bankruptcy attorney must certify that, after reasonable inquiry, he or she has no knowledge that the information in your bankruptcy schedules is incorrect. These requirements increase the attorneys duties and liability. Your bankruptcy lawyer may ask you to provide copies of your pay stubs, checking account statements, credit reports and certain other information about your finances and assets.


    Notice of Meeting of Creditors. When the petition is filed, a combined Order Scheduling a Meeting of Creditors and Fixing Filing Dates for Claims, Complaints Objecting to Discharge, and Complaints Seeking Exception to Discharge will be sent by the Court to all creditors, to you, and to your attorney's office. This is commonly referred to as the 341 Notice or the Creditor Meeting Notice. You should receive this Notice from the bankruptcy court approximately ten (10) days after your petition is filed.

    What is a Trustee and What Does He/She Do? The Bankrupt Estate consists of all legal and equitable interests you have in property as of the date the case is filed. In Chapter 7 one primary job of the Trustee is to gather all of your non-exempt assets, sell those assets, and distribute the proceeds among all your unsecured creditors. A Trustee is randomly appointed by the Court immediately upon the filing of a Chapter 7 petition. The Trustee is usually a private attorney and is compensated primarily by a percentage of the non-exempt assets he or she is able to collect and distribute to your creditors

    Meeting with Trustee. The meeting with your Chapter 7 trustee (the creditors meeting or 341 meeting) is held in a conference room, not the courtroom, and the federal bankruptcy judge is prohibited by law from being there. Typically this meeting will last about five minutes. The trustee will ask you questions about your banrkuptcy petition. Your bankruptcy attorney can tell you what questions to anticipate.

    Who attends? You are required to attend the creditors meeting with the bankruptcy trustee (if filing jointly, both husband and wife must attend). Your bankruptcy attorney will accompany you and represent you at the meeting. As a practical matter very few, if any, unsecured creditors attend. The trustee's job is to represent all creditors whether or not a creditor attends the meeting of creditors.

    What Happens at the Creditors Meeting? The Chapter 7 Bankruptcy Trustee will ask you questions, but (s)he will not interrogate you, cross-examine you, or threaten you. The trustee may ask you why you filed bankruptcy. The trustee often asks questions about your assets and your sources of income.

    Tax Returns. The new bankruptcy law gives the Chapter 7 Trustee (or the Judge) the right to verify information about your income by reviewing copies of your income tax returns. Upon request of the court, the Chapter 7 Trustee (or the US Trustee) may request that you file a copy of your federal tax return (or a tax transcript) for the tax year ending during the time the case is pending and/or for the three years prior to the filing of the petition. As a practical matter, you should file with your bankruptcy petition a copy of your last two federal tax returns filed with the IRS. Income tax refunds are property of the bankruptcy estate and will be paid to the Chapter 7 trustee.


    Suggestion of Bankruptcy. You should provide a copy of any lawsuits you have received to your bankruptcy attorney or provide a copy of the bankruptcy court's notice of the commencement of your case to your civil attorney, so that a Suggestion of Bankruptcy can be filed in any civil case in which you are a party.

    Relief from Stay. In Chapter 7 bankruptcy cases secured creditors typically file a Motion for Relief from the Automatic Stay so that they are able to foreclose on your secured property in the event you do not pay your secured debt in a timely manner. Relief from stay motions are most often filed by mortgage lenders or car finance companies. The Court will usually grant this Motion but that does not mean that the creditor can take your property. The creditor can take your property only if you do not pay the loan in a timely manner under the terms of your mortgage or loan contract with the creditor, and only after the creditor forecloses its mortgage or lien in state court. If you are behind in your car loan payments, however, the creditor can repossess the vehicle once the stay is lifted.

    Procedure for Stay Motions. When a secured creditor files a Motion for Relief From Stay the court will set a hearing. Since the court usually grants the Motion, most bankruptcy attorneys do not attend the hearing, and in many instances your attorney will consent to the granting of the Motion. You do not have to attend the hearing unless you want to contest the Motion, in which case, you should contact your bankruptcy attorney in advance.

    Transferring Property After Filing. Immediately upon the filing of a bankruptcy petition, a legal estate is created by the law which consists of everything you own at the time you filed bankruptcy. This is called the bankruptcy estate. In fact, one of the Trustees principal duties is to collect the bankruptcy estate (that is, locate and assume jurisdiction over all the property). You should never sell, give away, or transfer any of your real or personal property which is part of your bankruptcy estate either immediately before or after the filing of your petition without checking with your bankruptcy attorney.


    Adversary Claim by a Creditor. The majority of Chapter 7 cases do not involve adversary matters; however, if a creditor believes it should not be discharged, it may file, or threaten to file, an Adversary Case against you during the bankruptcy proceeding. The most common grounds for the filing an adversary case is fraud. Fraud in this context is not criminal, but it means that you allegedly have abused the bankruptcy process. For example, if you used credit to buy property or take cash advances prior to filing bankruptcy when you were insolvent, did not anticipate repaying the debt, or planned to file bankruptcy, this could be grounds to set aside a discharge of debt for fraud, and the creditor may have a basis to file an adversary case.

    Adversary Claim by Trustee. The Trustee may also file an adversary case to recover non-exempt property. A Trustee may also file a motion to value property which he believes you have undervalued in order to exempt under your $1,000 personal property exemption. If the Trustee convinces the court to increase the property value, he can then recover any of your property in excess of your exemption limit.

    Trustee's Objection to Exemptions. The Chapter 7 bankruptcy trustee has 30 days after the creditors meeting to object to any exemption of property claimed on your bankruptcy petition. Absent trustee objection, all property listed as exempt, including your homestead exemption, is exempted in bankruptcy and is not part of your bankruptcy estate. If the trustee objection to a claimed exemption, the court will set a hearing to rule on your exemption. Absent objection by the trustee all assets claimed as exempt on your bankruptcy petition are protected.


    60-Day Waiting Period. After the Creditors Meeting, there is a 60-day period during which time creditors can file claims if they believe you have non-exempt assets and during which creditors may object to being discharged provided they have legal grounds. Grounds for objection to discharge include the fraud, student loans, alimony and support obligations etc.

    Discharge Order. A minimum of 60 days (usually more) following the creditors meeting you should receive a copy of a court order that discharges your debts. The discharge order wipes out your debts and liability to creditors in your bankruptcy. Do not expect to receive your discharge immediately after 60 days.

    Discharged Debts. The entry of a discharge order does not affect a secured creditors rights in property which you pledged to repay the secured creditor. The secured creditor can always repossess the secured property if you do not pay according to your loan agreement. In addition, the discharge order only discharges debts that are dischargeable. Therefore, the order does not eliminate non-dischargeable debts, such as student loans, ineligible tax liability, or loans procured by fraud or by abuse of the bankruptcy system. The Order of Discharge does not give you a list of specific debts that were discharged; it simply states that dischargeable debts are discharged.

    Debts Not Discharged. The Bankruptcy Code has a list of debts which cannot be discharged in Chapter 7 bankruptcy. These non-dischargeable debts include:

    Debts incurred through fraud or embezzlement;

    Recent income tax liability;

    Education loans / student loans;

    Fines and penalties payable to the government;

    Child support, alimony, and property settlement obligations;

    Debts incurred for the purchase of luxury goods.

    There is a presumption of non-dischargeability for cash advances of over $750 taken within seventy (70) days of filing and for purchase of more than $500 within ninety (90) days of filing.


    Approximately 30 to 45 days after the Discharge, you will receive another notice stating that your case is closed. This means that your bankruptcy case is over.


    Bankruptcy and Your Credit Rating. Bankruptcy will appear on your credit report for several years. This does not mean you cannot get credit after filing bankruptcy. Most lenders will extend credit within two or three years after filing a bankruptcy case. Many creditors consider you a better credit risk after you filed bankruptcy because you have few other debts, if any, and you are unable to file bankruptcy again for seven years.

    Generally, the effect of bankruptcy on your credit is not a bankruptcy issue; it is a banking or credit issue. Most questions concerning reestablishment of credit are best answered by people at banks, credit agencies, or consumer credit services. Most banks and mortgage companies state that a debtor can establish normal credit two years after filing Chapter 7 bankruptcy.

    Many debtors report that after filing bankruptcy and receiving their discharge notice that their credit reports still show certain debts as written off or discharged. It may take the credit reporting agencies several months to update your file. Regardless of what is on your credit report, no creditor listed in your bankruptcy can collect money from you. If your credit report incorrectly reports certain debts you must resolve errors directly with the credit bureau because no bankruptcy law issues are involved in the incorrect reporting of your credit history. If you have contested the error directly with the credit reporting agency and the creditor, and the incorrect information is not corrected, you may want to contact an attorney to discuss your legal rights under the Fair Credit Reporting Act.

    Bankruptcy and Employment. It is illegal for an employer to discriminate against you in any way because you have filed bankruptcy.


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