preferential transfer in bankruptcy

If you are considering filing for bankruptcy, you should consult with a Tampa bankruptcy lawyer as soon as possible. Without competent legal advice you may be unaware of bankruptcy laws that prohibit you from making specified purchases, payments, or transfers of property prior to filing for bankruptcy. Under bankruptcy law, the Trustee has the right to bring an action to avoid certain transfers that occurred prior to the bankruptcy filing, such as a preferential transfer in bankruptcy. If the Trustee discovers there was a preferential transfer in bankruptcy it can have grave consequences for your Chapter 13 or Chapter 7 bankruptcy.

What is a Preferential Transfer in Bankruptcy

One of the possible grounds for a trustee to avoid a pre-bankruptcy transfer is a preferential transfer in bankruptcy by the debtor. A preferential transfer enables a creditor to receive payment of a greater percentage of his claim than he would have received in bankruptcy if the transfer had not been made. For example, a debtor borrowers money from a family member and pays that debt in full within 90 days of filing for bankruptcy while not paying other creditors.  In order to avoid a preferential transfer, the Trustee must prove all of the following:

  1. The debtor transferred property to or for the benefit of a creditor
  2. A transfer was made for or on account of a debt that was owed prior to the transfer
  3. The transfer was made while the debtor was insolvent
  4. A transfer was made within 90 days of filing for bankruptcy
  5. The transfer enabled the creditor to receive more than he would have received in a Chapter 7 bankruptcy if the transfer had not occurred

What Qualifies as a Preferential Transfer in Bankruptcy

The law regarding a preferential transfer in bankruptcy is very broad and includes many different types of transfers. The policy behind the law is to enhance the bankruptcy estate for the benefit of creditors and to encourage a proportional distribution to creditors. See Union Bank v. Wolas, 502 U.S. 151. Actions taken by a debtor to hide, conceal, or transfer assets can be seen as attempting to defraud creditors/ the estate and may be treated as a preferential transfer in Bankruptcy. You should contact a bankruptcy law firm in Tampa for more advice on planning for bankruptcy if you think it may be something on the horizon.

Defenses to a Preferential Transfer in Bankruptcy

If the trustee fails to prove all five of the above requirements the transfer will not be deemed a preferential transfer in bankruptcy. However, even if the trustee does successfully prove all of the required elements there are still defenses. If a debtor is successful in proving a valid defense the transfer will not be avoided by the trustee and will not be deemed an invalid preferential transfer in bankruptcy. Defenses to preferential transfers include but are not limited to:

  • The transfer was made in the ordinary course of business
  • The transfer was substantially contemporaneous with the origination of the debt
  • A transfer that creates a security interest in property acquired by the debtor to the extent such security interest secures new value
  • Earmarking – a third party or a guarantor makes a payment or provides funds to the debtor “earmarked” for payment on a particular debt.
  • The transfer that was payment of a domestic support obligation.
  • The debtor’s debts are primarily consumer debts and the aggregate value of all property affected by the transfer is less than $600

Bankruptcy Law Firm in Tampa

Florida Law Advisers, P.A. is dedicated to providing effective representation, individual attention and affordable fees to our bankruptcy clients. Florida Law Advisers, is a customer-service oriented firm with a strong reputation for providing personalized attention and dedicated legal counsel to help avoid pitfalls, such as a preferential transfer in bankruptcy. Regardless of whether you need help with Chapter 13, Chapter 7, or other forms of debt relief, our professional legal team of bankruptcy lawyers in Tampa will provide you with competent legal advice you can trust.  Call us now at 800 990 7763 to speak with a bankruptcy lawyer in Tampa at our firm.

 

Misdemeanor DUI cases are heard in county court, on the other hand, felony DUI cases are heard in circuit court. Under Florida law, traffic court rules govern the citation procedures in traffic cases heard in county court. The Florida Rules of Traffic Court, define a charging document as “any information, uniform traffic citation, complaint affidavit, or any other manner of charging a criminal traffic offense under law.” The citation must contain the required information and be sufficient to inform the driver of the nature of the charges. If the charging document does not satisfy all of the prerequisites, the court will not have jurisdiction to convict the defendant.

In Leone v. Florida, the driver was arrested for two counts of drunk driving. The first count was for driving while under the influence of alcohol, a 2nd degree misdemeanor. The second count was for causing property damage while operating a vehicle above the legal intoxication limit, a 1st degree misdemeanor. The defendant pleaded no contest and was sentenced to one year in prison. However, on appeal, the court vacated the sentence and held the defendant should not have been sentenced to more than 6 months in prison.

The court based its decision on the fact that count 2 did not contain sufficient information to inform the defendant of the nature of the charges. Count 2 stated that the defendant had a blood alcohol level of .10 (the legal limit is .08) while operating a motor vehicle. The charging document failed to provide any facts or allegations that there was property damage as a result of the DUI. Each count of an indictment must allege the essential facts constituting the offense charged. The citation in this case only alleged the facts constituting a DUI, it did not include any facts alleging property damage.

The court reduced the sentence to 6 months because that is the maximum sentence for a 2nd degree misdemeanor DUI. On the other hand, if the charging document was sufficient to charge a DUI with property damage the driver would have been convicted of a 1st degree misdemeanor, which allows for a sentence up to one year in prison.

If you have been arrested for drunk driving in Florida it is important that you seek the counsel of a DUI defense attorney. At Florida Law Advisers, our DUI attorneys sift through every detail of a case to find any errors by police, violation of constitutional rights, mishandling of evidence, or sloppy police work that we can use to help our clients. To find out if we can help you beat your DUI charges or for answers to your legal questions, contact us today by phone, email, or website form.

common law marriage in Florida

Common law marriage in Florida is a marriage that has never been formally registered with the state, there was no official ceremony or marriage certificate issued. All that is necessary is a consent by the parties to the relationship, coupled with some outwardly visible action, such as living together. Essentially, the couple would represent themselves out to be married and act as if they are in fact married. Living together is not a requirement of common law marriage in Florida but is a substantial piece of evidence that can establish its existence.

Common Law Marriage in Florida vs Traditional Marriage

The law will treat a valid common law marriage in Florida as it would any other legal marriage, entitling the couple to all the benefits and responsibilities of marriage. In order to dissolve a common law marriage, the couple would need to go through a judicial divorce proceeding just as any other dissolution of marriage in Florida. Further, even Alimony is available in a common law divorce if the court feels it is appropriate under the circumstances. For more information on common law marriage in Florida or the divorce process contact a divorce law firm in Tampa.

Termination of Common Law Marriage in Florida

Florida permitted common law marriage until 1968, when it enacted Florida Statute 741.211. The statute abolishes a common law marriage in Florida entered into after January 1, 1968. However, Florida will still recognize a common law marriage that was legally created in another state. Marriages formed in other states are entitled to the full faith and credit under the United States Constitution. Thus, under Article IV of the U.S. Constitution, all states must recognize a valid common law marriage that was entered into in another state. The validity of the common law marriage in Florida is to be determined by the laws of the jurisdiction where the marriage was entered into.

Marriage in Florida

To create a valid marriage in Florida, a couple must secure a marriage license and then solemnize the marriage in a formal ceremony. The marriage license must be issued by either a Florida county court judge or clerk of the court. The issuing officer is required to issue the marriage license so long as the requisite fee is paid and there are no impediments to the marriage. The marriage license will expire within 60 days unless there is a ceremony administrated by an ordained minister, elder, or other clergy of any church, a judicial officer whether active or retired, a clerk of the circuit court, or a notary of the State of Florida to formalize the marriage.

Divorce Law Firm in Tampa

If you need legal assistance with either dissolving a traditional marriage or common law marriage in Florida contact us to speak with a divorce attorney in Tampa. We will listen carefully as you describe the details of your case and develop a comprehensive legal strategy aimed at resolving all of your concerns. Our professional legal team is passionate about fighting for you and your family’s needs. When you work with a Tampa divorce attorney at our firm, you can count on the support you deserve, as well as strong advocacy of your rights in these important matters.

eliminate a 2nd mortgage

Lien stripping is a very useful tool for borrowers who need to eliminate a 2nd mortgage. Lien stripping may allow you to eliminate a 2nd or 3rd mortgage on your home and/ or reduce your car loan to the car’s current market value. Stripped liens will receive the same treatment as all your other unsecured debts (i.e. credit cards) in bankruptcy.  These debts generally receive nothing or a small amount and get discharged at the completion of your bankruptcy.  Further, after the discharge your lender for the stripped lien will be required to remove its lien from the collateral. For more information on how to eliminate a 2nd mortgage contact a bankruptcy lawyer in Tampa to schedule a consultation.

Eliminate a 2nd Mortgage with Lien Stripping

Chapter 7 may allow you to eliminate a 2nd mortgage with lien stripping. Lien stripping to eliminate a 2nd mortgage is not allowed in Chapter 7 where the lien is partially secured but may be permitted if the lien is wholly unsecured. For instance, if you own a home that is worth $200,000 but owe $250,000 on your first mortgage and $50,000 on a second mortgage, the second mortgage will be treated as an unsecured loan, but the entire balance of the first mortgage will still be classified as a secured loan. Thus, it is used as a tool only to eliminate a 2nd mortgage or Jr. lien.

Stripped liens will receive the same treatment as all your other unsecured debts (i.e. credit cards) in bankruptcy. See Bankruptcy law 11 US 506 These debts generally receive nothing or a small amount and get discharged at the completion of your bankruptcy. The specifics will vary based on the individual facts of each case, contact a bankruptcy law firm in Tampa for more information.

Lien Strip a Car Loan

Lien stripping can also be used to reduce the balance of a car loan. If the lien is stripped down to the market value, the remaining loan balance will be treated as an unsecured claim in bankruptcy and subject to discharge. For example, if you owe $10,000 on your car but the vehicle is only worth $5,000, then $5,000 would be classified as a secured claim and the remaining $5,000 would be treated as an unsecured claim. To see if you qualify to eliminate a 2nd mortgage or strip a car loan, contact a bankruptcy lawyer in Tampa, this article is for general information only.

Bankruptcy Attorney in Tampa

If you are having a difficult time meeting your financial obligations, Florida Law Advisers, P.A. may be able to help. Our bankruptcy attorneys in Tampa have years of experience helping people just like you to solve their financial problems. We understand these are very difficult times and we are here to help. In some cases, filing for bankruptcy may be a good solution, however, it is often not the only solution available. The right course of action will depend on the unique circumstances of each case. To see which options may be available to you, contact us to today to schedule a free consultation with a bankruptcy attorney in Tampa.

eliminate late fees and interest

In order for a person to be convicted of a DUI in Florida, the accused must be driving or have physical control of a vehicle while impaired by alcohol, chemicals, or controlled substances. The prosecutor will need to prove beyond a reasonable doubt that the defendant: (1) drove or was in actual physical control of a vehicle; (2) was under the influence of an alcoholic beverage, a chemical substance listed in Florida Statute 877.111, or a controlled substance listed in Chapter 893 of the Florida Statutes; and (3) was impaired or had a blood or breath alcohol level of .08 or higher. If the prosecutor fails to prove all three of the above elements the defendant must be found not guilty of a DUI.

There are two major types of evidence in a DUI case, direct evidence and circumstantial evidence. Direct evidence does not require any reasoning or inference to arrive at the conclusion it is intended to prove. For instance, if a police officer states that he saw a defendant driving a motor vehicle, that will be direct evidence of driving. On the other hand, circumstantial evidence requires that an inference be made between the evidence and the conclusion to be drawn from it. For example, evidence of failing to properly conduct a field sobriety test is circumstantial evidence of impairment.

Usually, the prosecutor will have direct evidence to prove at least one of the three required elements of DUI. However, in some instances the State will rely solely on circumstantial evidence. These types of cases carry a much heavier burden for the State than cases supported by direct evidence. The State must first provide competent evidence which is inconsistent with the defendant’s theory of events. If the judge does not feel the prosecutor has met this burden he must dismiss the charges. Conversely, if the Prosecutor meets this threshold it is then left up to the jury to decide whether to believe the defendant or accept the prosecutor’s arguments.

The defendant’s testimony and competency of defense counsel are crucial in these types of DUI cases. The legal strategy imposed by the defendant’s attorney will have a significant impact on the outcome of the case. The State will be unable to convict the defendant, no matter how strong the circumstantial evidence is if it does not reasonably refute the defendant’s theory of the events that caused the arrest. See Grover v. State, 581 So. 2d 1379 (Fla. 4th DCA 1991). Thus, if the defendant offers an explanation that is not refuted by the circumstantial evidence the defendant must be acquitted of the charges.

Florida Law Advisers, P.A. has a team of attorneys dedicated solely to defending drivers accused of DUI in the Tampa Bay Area. We will sift through every detail of a case to develop a comprehensive strategy to attack the charges and defend our clients. If you have been accused of a DUI in Florida click here to schedule a free case review.