Stop creditor harassment

When you file either Chapter 7 or 13, an “automatic stay” is put into place under bankruptcy law. The automatic stay requires all collection activity against the debtor to stop immediately. The automatic stay is the quickest way stop creditor’s phone calls and stop creditor harassment. Creditors and collection agencies will not be able to contact you, garnish your wages, or repossess your property while the automatic stay is in effect. This stay is applicable to all creditors and none of your creditors can repossess any of your property during the time the automatic stay is in place. See bankruptcy law 11 U.S.C. § 362(a).

How Long Does the Automatic Stay Last?

In most cases, the automatic stay will remain in effect and stop creditor harassment until your bankruptcy case is discharged. The automatic stay is available under both Chapter 7 and Chapter 13 bankruptcy. If you are unsure about which Chapter is right for you speak with a bankruptcy attorney in your area. Florida Law Advisers, P.A. offers a free initial consultation for bankruptcy clients, to speak with a bankruptcy lawyer in Tampa click here.

Although the automatic stay is usually in place during the life of your bankruptcy, it is automatically lifted as to all creditors once your case is closed out. See bankruptcy case Failla v. Citibank.  For example, if you did choose to surrender your home, the secured creditor can start the foreclosure process on your home as soon as the stay is lifted at the end of your case without first having to seek approval from the bankruptcy court. However, the creditor will be unable to continue with the foreclosure process until the stay has been lifted.

Stop Creditor Harassment With The Automatic Stay

If a secured creditor wants to move forward with collection efforts after the stay has been enacted, the creditor must first seek approval to do so from the bankruptcy court. This process will require notice to you (the debtor) and a hearing. See U.S. Supreme Court Case: Citizens Bank of Maryland v. Strumpf.

If the judge grants the secured creditor the ability to move forward with their collection after the hearing, the automatic stay is considered to be “lifted” and the secured creditor can come after the piece of property that it wishes to repossess. An example of this process would be in a Chapter 7 where you choose to surrender your home. If the secured creditor wants to take your home from you, the creditor must go through the process of seeking approval from the court in order to do so. For more information about a creditor’s right to lift the automatic stay contact a bankruptcy lawyer in your area.

Automatic Stay Stops Foreclosure

If there is a foreclosure pending against your home prior to filing bankruptcy and you want to keep your home, filing a bankruptcy petition will automatically stop that foreclosure process because of the automatic stay. You want to make sure that once you file your bankruptcy petition to stop the foreclosure action that you also file a “Suggestion of Bankruptcy” form in the state court foreclosure lawsuit right away. This must be done before the foreclosure sale date (if one has been set already) in order to stop the sale of your home. This assures that the state court judge is on notice of your bankruptcy so the foreclosure can be stopped on time. The Tampa bankruptcy law firm you hired should file the suggestion of bankruptcy in your foreclosure case on your behalf.

Exceptions to Automatic Stay

The automatic stay does not apply to all types of debts, collection activities, or creditor harassment. Bankruptcy law provides for many exceptions from the automatic stay. A list of some of these exceptions are below, for a more complete list of exceptions see bankruptcy law 11 USC §362 or contact a bankruptcy attorney.

Tampa Bankruptcy Law Firm

At Florida Law Advisers, P.A., the Tampa bankruptcy attorneys have years of experience helping people just like you to solve their financial problems. We understand that these are very difficult times and we are here to help. We have many options available that can help you successfully manage your debt and regain your financial health. The right course of action will depend on the unique circumstances of your case. To see which options may be available to you, contact us to today to schedule a free, confidential consultation with a Tampa bankruptcy lawyer at our firm.

bankruptcy affect Social Security payments

Clients commonly ask us, will bankruptcy affect Social Security payments? Generally, your Social Security benefits are protected under Chapter 7 and Chapter 13 bankruptcy, meaning that the funds belong to you and the trustee cannot take them. See bankruptcy law 11 U.S.C. 522. The monthly benefits that you receive in Social Security are exempt from being seized or garnished. However, each case is different and you should speak with a bankruptcy lawyer if you have questions. This article about how bankruptcy affect Social Security payments is general in nature, and not legal advice for any particular case or circumstance.

Will Bankruptcy Affect Social Security Payments if Kept in a Separate Bank Account

It may be helpful, prior to filing bankruptcy to your keep your Social Security payments in a separate bank account from your regular funds. This is because a bankruptcy trustee will look at six months of bank statements up to the date of when you file your bankruptcy petition. If the trustee sees that your Social Security payments have been mixed in with your personal money, the trustee may argue that you cannot differentiate and prove which funds are Social Security money and therefore cannot receive the Social Security protection. This is one of the many reasons why it is important to have a bankruptcy attorney assist you. A successful bankruptcy plan should begin before your Chapter 7 or Chapter 13 bankruptcy case is filed.

If your Social Security benefits have already been mixed (or “comingled”) with your personal funds within one bank account, you may be able to still protect those Social Security funds by way of the “wildcard exemption.” For more information on exemptions click here. The wildcard exemption is an additional $4,000 that is allotted to you to protect your personal property, including income, if you do not own a homestead. See Florida Statute 222.25

Chapter 7 Means Test

In Chapter 7, you do not list your Social Security income on your Means Test, which determines whether you qualify for Chapter 7. Since you do not include your Social Security income on the Means Test, you have a greater chance of passing the test and qualifying for Chapter 7 because your income will be lower. The Bankruptcy Code provides that Social Security is not included in “current monthly income,” which is a required calculation under the Means Test, and therefore is protected from being included in the Means Test. See Bankruptcy law 11 USC 101. The means test can be very complicated, it is strongly recommended to hire a bankruptcy lawyer to assist you with filing for Chapter 7 bankruptcy. The means test has a lot of nuances, it is recommended to retain a bankruptcy law firm to assist with the means test.

Tampa Bankruptcy Law Firm

If you are having a difficult time meeting your financial obligations Florida Law Advisers, P.A. may be able to help. Our Tampa bankruptcy attorneys have years of experience helping people just like you solve their financial problems and obtain a fresh start. We combine our experience and skills in the courtroom with a thorough knowledge of the law to help achieve the results our clients need and deserve. When you hire Florida Law Advisers, P.A. you don’t just get legal advice, you get experienced bankruptcy lawyers by your side every step of the way. To learn more about how Florida exemption law can affect your bankruptcy call us today to speak with a bankruptcy lawyer at our firm.

Permanent Alimony in Florida

Alimony, which is also commonly referred to as maintenance or spousal support is payment from one ex-spouse to the other. Florida family law allows for many different types of alimony, which can vary in duration, amount, and purpose. Permanent alimony in Florida can allow for alimony payments to continue until death. The divorce attorney in an alimony case can make a big difference on the type and amount of alimony that is awarded. Therefore, it is important that you hire a divorce attorney in Tampa that is experienced litigating for and against permanent alimony in Florida.

How Alimony in Florida is Determined

The fundamental principal behind an award for alimony is the disparity in financial resources of the two parties. However, disparity in financial resources alone is not enough to justify an award for alimony. See Rosen v. Rosen. Instead, Florida family law courts look at one spouse’s ability to pay alimony vs the other spouse’s need for alimony. See Florida divorce case Green v. Green. For information about a specific case or set of circumstances contact a divorce lawyer in your area for assistance.

The amount and duration of any alimony award is determined on a case by case basis. The court will first determine if there is a need for alimony by one party, secondly, if the other party is able to pay alimony. Once that is determined, then the court must weigh the factors outlined in Florida divorce law 61.08. The statute also states that all other relevant factors can be considered when determining the amount and duration of the alimony award as the list of factors in the statute is not exclusive. An award of alimony may not leave the payor with significantly less net income than the income of the recipient unless there are exceptional circumstances found by the court.

Permanent Alimony in Florida

One of the types of alimony that a Florida family law judge can award is permanent alimony. Permanent alimony in Florida is appropriate when a party in the marriage lacks the ability to meet their needs and necessities of life following a divorce (dissolution of marriage). The needs and necessities of life of that party are determined by the standard of living during the marriage and if it is possible to maintain that lifestyle after the marriage ends. An award of permanent alimony should terminate upon the death of either party or upon the remarriage of the party receiving alimony.  Further, an award may be modified or terminated based upon a substantial change in circumstances. An example of a substantial change in circumstances is a supportive relationship of the party receiving alimony. However, the relationship must be in accordance with Florida divorce law 61.14.

In any award of alimony, the court may grant periodic payments or payments in lump sum or both. Although adultery is not considered in determining if a divorce should be granted, the court may consider the adultery of either spouse in determining the amount of alimony to be awarded. An award of permanent alimony is normally awarded after a marriage of long duration. A marriage of long duration is a rebuttable presumption of a minimum of seventeen (17) years. This is the presumed number, but the court can determine this to be inappropriate given certain circumstances. The length of the marriage is the period of time starting from the date of the marriage until the date of the filing of an action for dissolution of marriage (divorce).

Permanent Alimony in Florida for Short-term Marriages

An award of permanent alimony can be awarded after a marriage of moderate duration if such factors from Florida Statute 61.08 are considered and an award is determined to be appropriate based on clear and convincing evidence. The rebuttable presumption of a moderate duration marriage is between seven (7) and seventeen (17) years. An award of permanent alimony can be awarded after a marriage of short duration only if there are written findings by the court of exceptional circumstances.

Temporary alimony in Florida

Another qualification a Florida family law judge must consider is whether any other form of alimony is appropriate. If an award of alimony that is only temporary can be found to be appropriate than an award of permanent alimony in Florida is not appropriate. The court will only grant an award of permanent alimony in Florida if there is nothing else that will be sufficient given the circumstances of that individual case.

Divorce Law Firm in Tampa

A skilled divorce lawyer in Tampa can make a big impact in a divorce involving a claim for alimony. If you are considering filing for divorce or your spouse has already filed for divorce, call us today to speak with a divorce attorney at our firm. The divorce lawyers at Florida Law Advisers, P.A. have years of experience in both advocating for and against alimony. With years of experience in family law litigation, we are more than ready to present a compelling case on your behalf and stand firm for what is fair. To schedule a free consultation with a divorce attorney at our firm call us today at 800 990 7763.

HOA Foreclosure in Florida

Homeowners are often surprised to learn that their homeowners’ association may be able to foreclose on their home. HOA’s may be able to seek foreclosure in Florida for missed payments, failure to maintain property, and other conditions set forth in the Association’s declarations and by-laws.  In many instances, an HOA foreclosure in Florida will even involve homes with no mortgage or other liens. Fortunately, there are ways to fight back against an HOA foreclosure in Florida. If you are being threatened with an HOA foreclosure in Florida contact a foreclosure defense lawyer for assistance.

HOA Foreclosure in Florida

Florida is a judicial foreclosure state, that means a party seeking to foreclose a home must go to court and receive approval from a judge before a home is sold at a foreclosure action. This includes not just banks, homeowners’ associations must also go through the court process before foreclosing on a home located in Florida. Unfortunately, many HOA’s are very aggressive and will seek foreclosure if a homeowner fails to pay the HOA dues and assessments. In fact, many HOA cases stem from balances due of less than $100. Homeowners facing an HOA foreclosure in Florida should contact a Tampa bankruptcy attorney for assistance. Bankruptcy can potentially provide additional options to stop the foreclosure and help keep your home.

The Automatic Stay

When a debtor (borrower) files for bankruptcy an automatic stay is put in place as soon as the Chapter 7 or Chapter 13 bankruptcy is filed. See bankruptcy law 11 U.S. Code § 362.   The automatic stay requires all collection activity against the debtor to stop immediately, including a foreclosure sale that has already been scheduled. For more information on the automatic stay click here.

Chapter 13 Payment Plan

A Chapter 13 bankruptcy filing could allow you to avoid foreclosure all together by working out a repayment plan over a span of three to five (3-5) years for the arrearage, otherwise known as back-due payments.  Essentially, the homeowner will have a 60-month loan to repay the back-due HOA fees. Most of the time, the interest rate applied to these types of payment plans is around 6%.  For more information about a specific case or payment plan contact a bankruptcy lawyer in your area to schedule a consultation.

Lien Stripping

Under Chapter 13 bankruptcy law, junior liens (including mortgages or a homeowner’s association liens) can be stripped, or removed from homestead property. If the lien is stripped down to the market value, the remaining balance of the debt will be treated as an unsecured debt in bankruptcy. Unsecured creditors typically receive nothing or only a small amount of the balance before being discharged.  Further, after the discharge is granted in your bankruptcy case the lien holder (HOA) will be required to remove the lien from the property. For more information on why the discharge is so important, click here.

Bankruptcy and Foreclosure Defense Law Firm:
If you are thinking about filing for bankruptcy or are being threatened with foreclosure contact Florida Law Advisers, P.A. Our bankruptcy attorneys in Tampa are experienced in both bankruptcy and foreclosure defense. Every foreclosure and bankruptcy case is different, and our vast experience allows us to cater our services to each client’s individual needs. All of our initial consultations are free and convenient payment plans are always available. Regardless, if you need help with Chapter 13, Chapter 7, or foreclosure defense our professional legal team will provide you with competent legal advice you can trust. Call us now at 800 990 7763 to speak with a lawyer, we are available to answer your calls 24/7.

How to Keep Property in Bankruptcy

Many people who choose to file Chapter 7 do so because they can no longer afford to stay in their home, and/or want to be relieved of their car loan. In Chapter 7, there are generally three options on how to keep property in bankruptcy. If the property has a loan/ lien securing the debt, a statement of intention as to those secured debts must be filed within 30 days of filing your bankruptcy petition. See bankruptcy law  11 U.S.C. § 521. It is highly recommended to consult with a bankruptcy attorney prior to completing you statement of intentions. Without competent advice you may accidentally limit the amount of relief bankruptcy can provide. For information on how to treat debt in a specific case contact a bankruptcy law firm in your area.

Reaffirm Debt in Bankruptcy

Generally, the first option for borrowers is to reaffirm the debt. Reaffirmation can be a successful tool used when trying to figure out how to keep property in bankruptcy. A reaffirmation essentially creates a new loan agreement between you and the lender, where you agree to pay your loan amount in full, at an agreed interest rate, within a certain amount of time.  If a reaffirmation agreement is signed by you, your lender, and approved by the bankruptcy judge, then it will be legally binding on the parties.  Once a reaffirmation agreement is finalized, this debt will no longer be dischargeable because you are agreeing to pay the full amount and to not stop making payments.

If for some reason you stop making payments on a car loan after entering into a reaffirmation agreement, the lender not only can repossess your vehicle, but you also become personally liable for that remaining debt and the lender can obtain a judgment against you. So, make sure you truly want to keep that vehicle (or home) before entering into a reaffirmation agreement. You should consult with your bankruptcy attorney for advise on your specific situation.

How to Keep Property in Bankruptcy with Redemption

The second option borrowers can consider when evaluating how to keep property in bankruptcy is to redeem the property. This means that you, or someone on your behalf, who can pay the remainder of the loan in full, in cash, at that moment.  If you have someone that can do that and you choose to redeem the property, then you will own it free and clear of any liens.  However, careful consideration should be taken before redeeming property. Consult with a bankruptcy lawyer in Tampa to see if this option is right for you.

Surrender the Property in Bankruptcy

The third option is to surrender your property. If you choose to surrender your home in Florida, you are walking away from it, handing it over to the trustee assigned to your case (or the creditor if the trustee does not want to sell the property), and you are not allowed to defend a foreclosure action against your home after you receive discharge. See  bankruptcy case Failla v. Citibank . When you choose to surrender real or personal property, you will no longer be personally liable for the debt connected to that piece of property (this includes your car if you choose to surrender it). The surrender option exists to give you a “fresh start” and a creditor cannot later come after you for the amount discharged from your decision to surrender.

Bankruptcy Exemptions

Additionally, property may be kept if it qualifies for an exemption. Exempt property is property that you do not have to forfeit when filing for bankruptcy and are instead entitled to keep. For more information on bankruptcy exemptions click here.

Bankruptcy Law Firm

If you are struggling with debt Florida law advisers may be able to help get a fresh start without having to lose your property. Regardless if you need help with Chapter 13, Chapter 7, or other debt relief, our professional legal team will provide you with competent legal advice you can trust. We are dedicated to providing effective representation, individualized attention, and affordable fees to our bankruptcy clients. All of our initial consultations are free and convenient payment plans are always available. Call us now at 800 990 7763 to speak with a Tampa bankruptcy lawyer.