Florida Bankruptcy: With a clear understanding of both Federal & Florida Bankruptcy laws, how to find and then fill out the Chapter 7 and Chapter 13 forms, and where the Bankruptcy Courts are located in Florida, any one can prepare a bankruptcy Pro Se (without a lawyer).
Personal bankruptcy in Florida is an often feared and misunderstood process. All citizens have the right to declare bankruptcy, and this right is protected by the United States Constitution.
We've prepared this Florida Bankruptcy section in order to give you the most up to date bankruptcy information available.
As a rule, Florida gives its citizens the protections afforded by the Federal Bankruptcy Code and adds more protections. These additional bankruptcy protections include provisions that exempt assets and personal property, as well as other protections.
The idea of a personal bankruptcy is to give any citizen that has fallen deeply into debt with no foreseeable way to get out of debt, the proverbial "fresh start". A debt-free citizen is a more productive citizen.
Bankruptcy is essentially protection from debt and debt collectors. Under the US bankruptcy code, there are several types of bankruptcies available. With few exceptions, the most common bankruptcies filed by individuals in Florida are Chapter 7 and Chapter 13 Bankruptcy.
Bankruptcy should be an individual’s last option as credit counseling and other debt reduction negotiations are available. In a Florida bankruptcy, individuals normally file under chapter 7 or chapter 13 of the federal bankruptcy code.
The hardest question anyone in dire financial straits has to face is to decide whether or not file for bankruptcy. Most people have one of the following situations happening when they decide to file for bankruptcy in Florida:
If a person is facing any of these problems, they should seek help before getting so far in debt that a bankruptcy is the only way out.
As mentioned above, any American has the right to file for bankruptcy, but finding out all of the facts, becoming familiar with bankruptcy, and choosing the right chapter to file under are all critical parts of the process. While the law does allow an individual the ability to represent themselves in a bankruptcy case, most every court recommends that a filer seek the aid of an attorney.
The Federal forms for bankruptcy are available through the US Courts website at www.uscourts.gov. Various legal websites and US District court websites provide the forms as well, but to understand how to find the forms you need and whether or not to file them depends on your particular situation and under which of the various bankruptcy codes you are filing under.
A chapter 7 bankruptcy is known as liquidation where a debtor is seeking to be discharged from debt or have personal property liquidated to pay off creditors.People seeking chapter 7 should be below a certain income level as determined by a means test and are unable to pay off their debts. Have a look at our Florida Chapter 7 Bankruptcy page for more on Chapter 7 bankruptcy.
While a Florida bankruptcy sounds like a wonderful method of eliminating all debt, anyone seeking this method of financial recovery needs to understand that not all debts are discharged.
For example, most debts surrounding taxes, child support, alimony, student loans, personal injury caused by driving drunk or under the influence of drugs, court fines, criminal restitution, and any debts incurred through fraud or theft, may not be included in a chapter 7 discharge.
Other types of debt are up to a bankruptcy judge or referee to decide whether to discharge in a personal bankruptcy case. Any bankruptcy attorney can advise someone of his or her rights and offer advice on the best method legally available. We highly recommend seeking the advice of an attorney even if you plan to file and represent yourself.
Choosing the right attorney can be a difficult task, but look for an attorney that specializes in Florida bankruptcy cases and find out if they will deal with your case personally rather than hand you off to a paralegal or secretary when you have questions or need advice.
At the very least, you can schedule a consultation with a local bankruptcy attorney in order to get their legal advice. Sometimes a short consultation is all you will need before you file your bankruptcy forms. Some attorneys offer free consultations. Online Bankruptcy Lawyer Referral
The process of filing for a personal bankruptcy in Florida is for a debtor to file a petition with all personal information. Along with the petition, several other court forms will accompany the petition listing all debts, assets, income, and expenses.
Once filed, the court will appoint a trustee over the case to either start the liquidation process if applicable or help a debtor set up a repayment plan. At some point, this same trustee will set up a meeting with the debtor and creditors to determine any information about the debts and/or repayment plan.
After the meeting is finalized, the trustee gives the court a recommendation for a ruling and a Florida bankruptcy judge will rule on the repayment plan or discharge of debt.
Yes, any form of bankruptcy leaves a negative imprint on a credit report. As mentioned above, bankruptcy should not be the first option. If you are considering bankruptcy then you are most likely in a crisis already and your credit report should be the least of your worries.
A Florida bankruptcy can be on a credit report for up to 10 years and obtaining credit after a bankruptcy is not terribly hard, but you probably will not be offered the best interest rates.
First, you should consider carefully whether a Florida bankruptcy is the right choice for you. Gather all the necessary documentation we outline here and then seriously consider seeking legal advice.
In order to be eligible to file a Florida bankruptcy, you must receive credit counseling within the 180 days prior to filing.
Specifically, the law requires you to receive, from an approved agency, a briefing outlining the opportunities for credit counseling and help with a budget analysis. You may do this alone or in a group, and in person, on the phone, or even on the Internet.
If, due to an emergency, you are unable to obtain credit counseling services from an approved agency during a 5-day period, the court may excuse the requirement temporarily but you still must fulfill it within 30 days (or in some instances 45 days) after filing.
If you use a Florida bankruptcy attorney, he/she will most likely be able to help you complete this requirement.
You can find a list of approved non-profit budget and credit counseling agencies at the office of the United States Trustee or Florida Bankruptcy Administrator, at the Florida bankruptcy court Clerk's office, or online at the links we provide under Resources.
You need to file these forms, all of which are best prepared by an attorney:
If you fail to file all information noted above, with the exception of the last four, within 45 days of filing the petition, the case will be automatically dismissed.
If you use an attorney or a petition preparer, you will need certain information to file these documents with the court in a Florida bankruptcy.
What will happen in my Florida bankruptcy chapter 7 case after I file all these documents?
Chapter 7 cases are pretty simple for the most part. In most cases, you will attend one creditor's meeting and just wait for your discharge notice to come in the mail.
The Florida bankruptcy trustee runs the creditor's meeting, which is also called a 341 meeting (named after the section of the bankruptcy law that requires the meeting), and will question you under oath about all the information contained in your bankruptcy documents.
If you and your spouse file a joint petition, you must both attend the creditors' meeting and answer questions. It is important to cooperate with the trustee and to provide any records or documents requested.
In a simple case, the meeting will usually last just five minutes or so. While all creditors may attend, very few actually do. Be sure to bring a form of identification to the meeting, as well as proof of your Social Security number (usually your Social Security card). The Florida bankruptcy trustee may ask you to provide additional documentation during the meeting and give you a few days to produce it.
The discharge notice will arrive in the mail about 60 days after you attend the creditor's meeting. This piece of paper is proof that most of your debts have been discharged. You should keep it in a safe place.
Are there additional documents and other requirements in a Florida bankruptcy chapter 13 case? What is required in the chapter 13 plan?
If you are filing a chapter 13 case, rather than a chapter 7, in addition to the documents mentioned above, you must file a plan that describes how much you will pay your creditors and over what time period.
Your plan must provide that you pay creditors at least what they could have received in chapter 7 liquidation case, which basically means creditors must receive payments equal to the value of your non-exempt assets.
In addition, the plan must provide that you contribute all your disposable income to the plan. Disposable income is the income above what is necessary for the support of you and your family. However, in many cases the means test formula determines that amount.
The means test is a very complicated test, but essentially requires that you average your income over the past six months (from any source including regular gifts from family members), then deduct a series of allowed expenses, and see what is left to pay creditors. You will most likely need a Florida bankruptcy attorney to complete this analysis.
The chapter 13 plan lasts either until you pay your debts in full or until the end of a three- to five-year period. For certain low income debtors the maximum plan period without court approval is three years. For other debtors, creditors may be able to insist that the debtor pay a five-year plan.
Within 30 days of filing your Florida bankruptcy petition, you must begin making payments under your plan. You make the payments to a trustee, who distributes the payments to the creditors.
Like in a chapter 7 case, after filing the Florida bankruptcy petition, you must attend a creditor's meeting (also known as a 341 meeting, named after the section of the bankruptcy law that requires the meeting). The chapter 13 trustee will conduct the meeting and will question you under oath about the paperwork you filed in your case.
This creditor's meeting will last longer than a meeting in a chapter 7 case. The trustee will likely question you about your income and your expenses, and may also require additional documentation at the meeting.
After the meeting of creditors, you, the chapter 13 trustee, and those creditors who wish to attend will come to court for a hearing on your chapter 13 plan. If there are no problems, the court will approve (confirm) your plan.
After completing payments under the plan and completing any financial counseling required, you will receive a discharge of any debts not paid under the plan.
Must I produce tax returns before and after my Florida bankruptcy?
You must provide the trustee and/or any creditor with copies of any federal tax return that you filed for the year prior to filing. If you do not comply with this request, the court may dismiss your bankruptcy case.
You must also file copies of any federal tax returns filed during the case with the bankruptcy court.
Any taxing authority may request dismissal of a bankruptcy case if you fail to file all required tax returns.
Do I have to list all creditors on the bankruptcy schedules?
You must list all your debts, with the name and address of the creditors. This is so creditors receive notice of the bankruptcy and get their fair share of any money paid to creditors. You may think that you should omit a creditor because you want to continue to pay the debt.
This would violate the law, and it is unnecessary because you can always choose to pay a debt voluntarily, even though the debt has been discharged and there is no legal obligation to make payment. However, creditors are prohibited from taking any action to collect discharged debts.
What should I do if I discover that I forgot to list a creditor in the bankruptcy schedules?
As soon as you realize that you have omitted a creditor, you should notify your attorney and provide him or her with all the information necessary to complete the schedule (the amount of the debt, the type and value of any collateral, and the name and address of the creditor).
In some cases, failure to list a creditor will result in harm to the creditor, such as if the creditor missed an opportunity to participate in the bankruptcy and/or receive payments. If this happens, your attorney can advise you about what additional action, if any, is necessary.
If an omitted creditor demands payment of the debt, you should inform the creditor of the bankruptcy, as discussed below.
What should I do if a creditor demands payment of a debt after I file my case?
Most efforts by a creditor to collect a pre-petition debt (one that you owe as of the filing of your case) or to obtain your property without the permission of the bankruptcy court are violations of the automatic stay.
The court may punish a creditor who knowingly violates the automatic stay and the creditor is liable to the debtor for harm caused.
If you did not list a debt on the schedules filed with the court, the creditor may not be on notice of the bankruptcy. Therefore, you should inform the creditor of your bankruptcy and request that the creditor stop the collection efforts.
If you are represented by an attorney, you should give the creditor your attorney's name and telephone number. If you are not represented by an attorney, you should give the creditor additional information about the case: the date of filing, the court in which the case was filed and the case number.
If improper collection action continues, you should consult with an attorney, notify the trustee or seek protection from the court.
Is there anything I should know about the timing of my case?
Probably the most important thing you need to know is that once you have decided to file for bankruptcy, you need to stop using your credit cards.
Anything that you charge knowing you will not pay the money back is fraud under the bankruptcy law and the debt may not be discharged.
Also, if you charge luxury goods before the filing or take out cash advances right before your case, the debt is presumed to be non-dischargeable even if you did not know you were filing for bankruptcy when you charged the items or took out the cash advances.
Consult with experienced bankruptcy counsel before deciding when to file for bankruptcy.
Can I have these documents prepared by a non-attorney?
Debtors must list all property and debts in their bankruptcy schedules. If a debt is not listed, it is possible the debt will not be discharged. (Lists of the documents [including schedules] that debtors must file are set out on Form B200, one of the Director's Procedural Forms.)
The judge can also deny the discharge of all debts if a debtor does something dishonest in connection with the Florida bankruptcy case, such as destroying or hiding property, falsifying records, or lying.
Individual bankruptcy cases are randomly audited to determine the accuracy, truthfulness, and completeness of the information that the debtor is required to provide. Please be aware that bankruptcy fraud is a crime.
Pro se litigants, whether debtor or creditor, are expected to follow the rules that govern procedures in the federal courts. Pro se litigants should be familiar with the United States Bankruptcy Code, the Federal Rules of Bankruptcy Procedure, and the local rules of the court in which the case is filed.
Local rules, along with other useful information, are usually posted on the court's web site and are available at the local court's intake counter.
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