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Bankruptcy

Florida Bankruptcy Law

Chapter 7 and Chapter 13 bankruptcy law.
By Jonathan Alper, Esq.

Post Frequency: 2.7/day

Last Entry: March 28, 2011 at 13:42:00

Can Chapter 13 Bankruptcy Strip An Unsecured HOA Lien?

Posted on November 06, 2010
A reader sent me a question about Chapter 13 bankruptcy and homeowner association fees. He said he could not find on the internet a discussion of whether a Chapter 13 bankruptcy could strip off a lien filed by a condominium...

Some Chapter 7 Trustees Beginning To Fight Mortgage Lenders Over Defective Mortgage Assignments

Posted on November 05, 2010
Motions for relief from stay filed by mortgage lenders are usually a formality when the Chapter 7 debtor intends to walk away from the property and the property has no equity. The debtor typically does not contest the bank?s motion...

Do Pre-Filing Withdrawals From Pension Or IRA Count As Means Test Income?

Posted on November 01, 2010
Whenever I get an email question from one bankruptcy attorney I assume many other bankruptcy attorneys new to the practice have the same question. An attorney asked me, ?are a few withdrawals form a 401k to pay off credit cards...listed...

Pre-Bankruptcy Plan To Cram Down Mortgage On Homestead Property : Will It Work?

Posted on October 27, 2010
Chapter 13 bankruptcy can strip a second mortgage on your primary residence, and Chapter 13 can cram down to market value mortgages on investment property. Properties rented for income are investment assets subject to cram down. The debtor cannot cram...

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Pay On Death Account Paid To Debtor Within Six Months Of Chapter 7 Filing

Posted on October 22, 2010
Parents often set up their own checking accounts with a ?pay on death? instruction so that when they die the account will automatically transfer to their child without probate. The bankruptcy law state that any property you inherit within six...

Client Sells Former Residence And Pays Down Mortgage On Current Homestead: Fraudulent Conversion?

Posted on October 18, 2010
Five years ago one of my clients bought a new home pre-construction while he lived in his then current Florida homestead. The builder told him the new home would take 18 months to build. The builder finished early, in 12...

Number Of Tax Dependents Does Not Determine Household For Bankruptcy Means Test

Posted on October 14, 2010
Here?s a question from a bankruptcy attorney in South Florida which touches upon an important and very basic concept for the bankruptcy means test. The attorney states that he represents a Chapter 7 client who has been in a domestic...

Chapter 7 Debtor Defers Income Tax Refund And Protects The Money From His Bankruptcy Trustee

Posted on October 11, 2010
A Chapter 7 bankruptcy debtor?s tax refund is non-exempt and is part of the bankruptcy estate. Except that a Florida bankruptcy attorney told me about a case in another district where the bankruptcy debtor may have beaten ths system. The...

Discharge Of Student Loan In Chapter 13: One Debtor Got Away With It

Posted on October 07, 2010
Generally speaking it is difficult, almost impossible, to discharge a student loan in bankruptcy. The debtor has to show ?undue hardship?, and if you are physically able to go to work you will have difficulty showing undue hardship. Except that...

Chapter 7 Debtors May Have To Reaffirm Personal Liability On Mortgage In Order To Keep House

Posted on October 04, 2010
If you file bankruptcy and want to keep your car subject to a car loan you have to sign a reaffirmation agreement with the car lender wherein you agree to remain personally liable if you fail to make the payment...

Can Chapter 13 Debtor Add A Second Mortgage Strip To An Already Confirmed Chapter 13 Plan?

Posted on September 30, 2010
A Chapter 13 debtor can strip a second mortgage from his primary residency if the value of his home is worth less than the first mortgage so that there is no equity securing the second. I received a call from...

Inheritance From Parents' Revocable Living Trust Within 180 Days Is Not Captured In Debtor's Bankruptcy Estate

Posted on September 27, 2010
The general rule is that any property a debtor acquires after he files his bankruptcy petition is not part of his bankruptcy estate. The biggest exception to the general rule is money received as part of an inheritance or life...

Pre-Bankruptcy Planning Gets Attorney In Trouble When Legal Help Crosses The Line

Posted on September 22, 2010
All bankruptcy attorneys at one time or another meet clients who suggest transfers of assets to their family or friends in order to hide the assets from a future bankruptcy. These conversations put the attorney in a delicate position. Certainly,...

This Bankruptcy Client's Repayment Of Loan To Father Is Not A Reversible Creditor Preference

Posted on September 19, 2010
If you pay back debts owed to family members or business partners within one year prior to filing Chapter 7 bankruptcy the trustee can go after the people you paid to return the money to the bankruptcy estate. You cannot...

Don't File Bankruptcy Just Because You Are Liable For Upside Down Mortgage

Posted on September 14, 2010
Over the past few years I have on several occasions listened to other debtor?s trustee examinations during which the debtor stated that the reason they filed Chapter 7 bankruptcy because one or mortgages was upside down and they feared a...

Self Employed Business Owners Wants To Reduce Income From His Business In Order To Pass Means Test

Posted on September 10, 2010
Persons considering Chapter 7 bankruptcy must qualify for Chapter 7 under the ?means test.? The means tests evaluates your disposable income after expenses. This week a caller asked me if a self-employed person could successfully manipulate income for purposes of...

Judgement Creditor Serves Writ Of Garnishment Upon Chapter 13 Trustee And Gets Debtor's Money

Posted on September 06, 2010
A Chapter 13 debtor has the right to convert to dismiss his Chapter 13 case or to convert the case to Chapter 7 at any time provided he acts in good faith. The court will dismiss a Chapter 13 case...

Parents On Title To Child's Homestead: What Happens When Either Child Or Parents File Chapter 7 Bankruptcy

Posted on August 25, 2010
Homestead protection in bankruptcy gets complicated when there are non-resident co-owners of the debtor?s homestead. An example is when parents help an adult child buy a home and insist on placing their names as co-owners of their child?s house. A...

Question: Can Chapter 13 Debtor Strip Second Mortgage And Then Covert To Chapter 7 To Wipe Out Unsecured Debt?

Posted on August 18, 2010
Chapter 13 bankruptcy is being used increasingly to modify first and second mortgages on primary residences. Chapter 13 permits debtors to strip off a second mortgage on an upside down property, and a new mortgage mediation program in the Orlando...

To The Carpenter, Everything Looks Like A Nail. To Some Bankruptcy Attorneys, Filing Bankruptcy Is The Best Solution For All Debtors.

Posted on August 12, 2010
There is the well-known proverb that, to a carpenter everything in the world looks like a nail. Or, surgeons want to operate to cure any and all ailments. The same is applicable to some bankruptcy attorneys. I assisted a couple...

Reaffirmation Of Mortgage Note In Chapter 7: Interesting Post By Atlanta Attorney

Posted on August 09, 2010
Many mortgage companies ask Chapter 7 bankruptcy debtors to sign reaffirmation agreements if they intend to stay in their house through their bankruptcy. Reaffirmation means that the debtors will remain personally liable on their mortgage note after the bankruptcy discharge,...

When You End Up Marrying Your Spouse's Debt

Posted on August 05, 2010
If you plan on marrying someone facing bankruptcy do you also marry their debt? Generally, the answer is "no", but in some cases, your fiance?s debt walks down the aisle. You are not liable for your spouse?s debt- that?s the...

Mortgage Modification And Bankruptcy: HAMP Directive Protects Bankruptcy Debtors

Posted on August 02, 2010
Many people forced to file bankruptcy against unsecured debts are also trying to save their primary residence from foreclosure by negotiating mortgage modification. Many of my clients and callers are very worried that a bankruptcy could mess up their mortgage...

Wells Fargo/Wachovia Bank Is Freezing Bank Accounts Of Bankruptcy Debtors: Get Your Money Out While You Can

Posted on July 29, 2010
If you file bankruptcy with a checking account at Wells Fargo/Wachovia bank you have a problem. This bank has decided to freeze checking accounts of any customer who files bankruptcy. No, the debtor does not owe the bank or its...

My First Chapter 13 Mortgage Mediation: A Waste Of Time Because Bank Unprepared

Posted on July 28, 2010
I was involved in my first mortgage modification today under the Orlando bankruptcy court?s mortgage mediation program for Chapter 13 debtors. The scheduled mediation was a complete waste of time. The bankruptcy court issued its newly adopted standard mediation order...

Hooray For Another Honest Bankruptcy Debtor!

Posted on July 26, 2010
I enjoy writing about honest bankruptcy debtors because their true stories belie the perception that all people filing bankruptcy conceal or undervalue their assets. (not denying that some bankruptcy debtors lie on their petitions) A guy calls me from Tampa...

U.S. Supreme Court Ruling Addresses Appreciation Of Debtor's Assets During Bankruptcy Case

Posted on July 22, 2010
Debtor owns an appreciating asset- land, a business etc.- and files a Chapter 7 bankruptcy petition which assigns a low value to the asset which value is below the debtor?s exemption limits. The trustee does not challenge the value or...

Credit Repair After Bankruptcy

Posted on July 19, 2010
One of the major concerns of bankruptcy debtors is their credit rating. Credit ratings, while important to all, are especially important to bankruptcy debtors who usually emerge from bankruptcy with little cash and no assets. They need to reestablish credit...

Debtor Faces Judgment And Bankrutpcy With His Name On Title To His Parents' Home: Will The House Survive?

Posted on July 15, 2010
It happened again- a parent puts their home in their child?s name, and then later a judgment against the child exposes the parent?s home to the child?s creditors. In this instance, a caller stated that his elderly parents living in...

Anticipating Bankruptcy: Plan Now To Avoid Forfeiting A Tax Refund To Your Bankruptcy Trustee

Posted on July 13, 2010
There are usually several things you can do to prepare for filing bankruptcy if you can anticipate the need to file months in advance. I consulted with a client living in Ft. Myers who he will need to file Chapter...

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