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3 years 9 months ago

images (11)There are debtors who feel filing bankruptcy may not be necessary when they are unemployed. But as time goes by, you have been unable to repay debt obligations or you have no assets for creditors to seize. When you gain employment again you may start thinking about your finances with intentions of getting back on […]


3 years 7 months ago

Congressman Eugene J. Keogh of New YorkIn 2009, the 11th Circuit Court of Appeals  issued its opinion in the case of In re Baker, ___ F.3rd ___, 2009 WL 4912122 (11th Cir. 2009) in which it held that the involved Keogh plan did not have to comply with ERISA in order to be exempt under § 222.21 (2)(a)(1), Florida Statutes. Keogh plan are a type of retirement plan for self-employed persons and small businesses. The Court held that the Florida exemption statute only required that the Keogh plan qualify under section 401 (a) of the Internal Revenue Code (the "IRC") and did not require the further compliance with the provisions of ERISA.

Section 222.21 (2)(a)(1), Florida Statutes generally provides for the exemption of assets payable to or an interest of an owner, participant, or beneficiary in a "fund or account" that is maintained in accordance with a plan that has been preapproved by the IRS as exempt from taxation under section 401 (a), et seq. of the IRC. Section 401 (a) of the IRC provides for the exemption from taxation of certain retirement plans maintained for the benefits of "employees", which includes "a self-employed individual."

The lower courts had held that the Keogh plan was not exempt on a contention that it was not maintained in accordance with the ERISA provisions (29 U.S.C. sections 1001-1461) in addition to having been "preapproved by the Internal Revenue Service" as required by § 222.21(2)(a)(1), Florida Statutes. The lower courts rejected the debtor's argument that § 222.21 (2)(a)(1), Florida Statutes only required the Keogh plan to qualify under section 401 (a) of the Internal Revenue Code and did not require the additional complaince with ERISA. The lower courts based their decision on the case of Raymond B. Yates, M.D., P.C. Profit Sharing Plan v. Hendon, 541 U.S. 1, 124 S.Ct. 1330, 158 L.Ed.2d 40 (2004), which held that the sole shareholder and president of a professional corporation could qualify as a "participant" in an ERISA pension plan as long as the plan cover other employees other than himself or spouse.

The 11th Circuit Court of Appeals reversed the lower courts and held that § 222.21(2)(a)(1) only required the preapproval by the IRS under section 401(a) of the IRC and did not require the additional compliance with ERISA. The court stated that Fla. Stat. § 222.21(2)(b) specifically provides that for the fund to be exempt it need not necessarily be maintained in accordance with a "governing instrument that is covered by any part of [ERISA]...".(305) 891-4055 - Jordan E. Bublick is a Miami Bankruptcy Lawyer with over 25 years of experience in filing Chapter 13 and Chapter 7 Bankrkuptcy Cases.


3 years 9 months ago

1871_Proof_Three-cent_nickel_reverseEach year roughly 1 million cases are filed in bankruptcy court.  During 2012 it was estimated that hundreds of thousands of petitions filed included foreclosure, but this wasn’t the prime reason why many filed.  A recent study took a look at why many cases were filed that year, with some surprising results.  While many households […]


3 years 9 months ago

I read over the weekend about Capital One Credit Card's new contract with cardholders.  Capital One has added a creep factor to their slogan, "What's in your wallet".  The new card holder agreement provides that they can personally visit you at your home and at work.  Imagine missing a payment and having a knock on the door from a Capital One representative.  They are probably going to want to know what is in your wallet.  Bankruptcy does a great job of eliminating debt from credit card companies.  However, more and more cards are taking a security interest in the property you purchase from certain stores.  For example credit card agreements can take a security interest in anything you buy from Best Buy, Big Lots, Furniture stores, Neiman Marcus, or Saks?  Technically, your clothes are in danger if you have a Saks "retail" card.  I have the most fun with credit companies expressing a security interest with my clients' mattresses.  They call requests whether my client's are willing to reaffirm the debt.  I laugh because a used mattress has virtually no value.  I am waiting for one of these companies to come to my client's house to repo the mattress.  Here is an example of a typical agreement with a credit company taking a security interest in a personal good:  Except as noted below, you grant us a security interest (which we may or may not perfect) in the following items financed using your Account:• any goods you buy with your Card; and
• any proceeds you get from the following:
  a) insurance contracts, and returned premiums: and/or
  b) mechanical failures and/or
  c) extended service contracts. Each good you buy using your Account:
• secures your entire Account balance until that good is paid in full; and
• may be taken from you if you do not pay on time.Thus, while bankruptcy will discharge the debt, a credit card company may still have security interest in the item you purchased.  You just may have to surrender the mattress you bought three years ago.   


3 years 9 months ago

The ultimate goal of your chapter 7 or 13 bankruptcy is receiving a discharge from the court. In a chapter 7 bankruptcy this occurs after your paperwork is filed, the meeting of creditors is held, the time period has passed for any creditors to object to a discharge, and you have completed your required financial education course. The post Bankrupcty Discharge appeared first on Tucson Bankruptcy Attorney.


3 years 7 months ago


Pursuant to Article X, Section 4 (a) of the Florida Constitution, a Florida "homestead" may generally be kept by you as "exempt" from the bankruptcy estate. The maximum size of the land is limited to 1/2 acres if located within a municipality and 160 acres if located outside a municipality. A homestead is generally limited to your actual residence or the residence of your family and may not generally include any portion used for commercial purposes.

A "homestead" pursuant to this definition is similar to, but not exactly the same as the definition of a "homestead" as applied for county property tax purposes or for the limitations on inheritances. The maximum dollar value of a "homestead" is unlimited , unless an exception applies, including the limitations provided by the bankruptcy code. The bankruptcy code's limitations on the Florida Constituion's homestead provisions is due to the "Supremacy Clause" of the U.S. Constitution. One bankruptcy code exception applies if you have acquired you interest in your homestead during the 1215 days prior to the filing of the bankruptcy case, you are limited to $155,675.00 in acquired value. 11 USC Section 522 (p).
Pursuant to the bankruptcy code, the homestead is also reduced to the extent that the value is attributable to certain property that was disposed of during the 10 year period prior to filing with the intent to hinder, delay or defraud a creditor.  11 USC Section 522 (o)
The homestead also may be limited to $155,675.00 in value under certain circumstances if the debtor was convicted of certain felonies, if the debtor owes a debt arising from the violation of certain securities laws or certain title 18 civil remedies or certain criminal or other acts that caused serious physical injury or death to another during the prior 5 year period. 522 (q)
(305) 891-4055 - Jordan E. Bublick is a Miami Bankruptcy Lawyer with over 25 years of experience in filing Chapter 13 and Chapter 7 Bankrkuptcy Cases.


3 years 9 months ago

When considering filing for bankruptcy there are a number of factors to evaluate. Many of our clients are facing serious financial and emotional losses, perhaps even including foreclosure of a home or repossession of a vehicle. We can help with these issues and many others. When you file a bankruptcy petition creditors are not permitted to keep contacting you for payment. Now, there are some exceptions; for example, if you want to keep your house you may find it easiest to discuss small matters (like a payment address or a change in escrow accounts) directly with your lender. If you would like to do this we can discuss this and fill out the proper paperwork to allow that type of communication.Though there are exceptions, the general rule is that your creditors cannot continue to contact you after you file for bankruptcy. This protection is called the "automatic stay". However, you should know that this protection has limitations. While the creditor cannot try to obtain payment from you or contact you regarding payment, the creditor does not have to continue to do business with you in the future. In most cases credit card companies will close accounts of cardholders that file for bankruptcy.Where this can be particularly troublesome is when your doctor or hospital is listed as a creditor. We have many clients, both with and without medical insurance, that owe their doctor or hospital money. This can range from a small copay to thousands of dollars for medical care. Once you file bankruptcy your doctor or hospital does not have to continue to provide you with services. Of course, there are exceptions if you require emergency care as medical professionals are required to provide anyone needing emergency care with services, regardless of ability to pay or other considerations. However, the provider would only have to stabilize you and then could refer you to another provider.We know this sounds a bit scary, but there are various options available. If the amount owed is very small, and you can afford it, you may be able to pay the amount prior to filing for bankruptcy and not be required to list your doctor or provider as a creditor. Please note, that it is absolutely imperative that you speak with us before doing this, as certain types and amounts of payments prior to a bankruptcy can be considered fraudulent and will complicate your bankruptcy. If payment is not an option you may be able to contact your provider and explain the situation to find out their policy in advance. You may also choose to voluntarily repay the debt. The doctor cannot ask for that, or require it, but in some cases doctors have accepted the payments and continued treatment. Finally, if these solutions will not work, we can talk about different bankruptcy options that involve repayment of creditors.If you have questions about this, or any other matter, please contact your St. Louis Bankruptcy Attorney today!


3 years 9 months ago

7_playing_cardsBeing honest when you file bankruptcy can help you avoid making mistakes that lead to bumps in the road as the case proceeds. Bankruptcy is a privilege that deserves your cooperative attention while working with the court to ensure you get a favorable result. The following points are a few common mistakes made by debtors […]


3 years 9 months ago

On February 22, 2012, the 11th Circuit Court of Appeals issued its decision in Jennings v. Jennings, 670 F.3d 1330 (11th Cir. 2012).  The case involved the issue of whether debt arising from the debtor's active participation with a co-conspirator in performing a fraudulent transfer of real property was excepted from discharge under 11 U.S.C. §§523(a)(6) which provides that a debt for "willful and malicious injury by the debtor to another entity or to the property of another entity" is non-dischargeble. The Court upheld the District Court's decision that the claim was non-dischargeable.  It should be noted that this was a chapter 7 bankruptcy case and that this exception from discharge of  section 523(a)(6) does not apply in a chapter 13 bankruptcy case, except when the debtor seeks a chapter 13 "hardship discharge." 

In the adversary proceeding to determine dischargeability, the debtor argued that the debt was not within this exception from discharge. She argued  that because the fraudulent transfer took place before the state court judgment arose, she could not have injured the creditor or his property. The Court rejected this argument and found that an injury to the property of another did take place as creditor did have a judgment that established his right to payment on the property interest at the time he initiated the adversary proceeding in this chapter 7 bankruptcy case to declare the claim non-dischargeable under section 523(a)(6). 

The Court found that the evidence showed that the injury was "willful and malicious" and therefore rejected the debtor's arguments. The Court explained that proof of willfulness requires a "showing of an intentional or deliberate action, which is not done merely in reckless disregard of the right of another. In re: Walker, 48 F.3d 1161, 1163 (11th Cir., 1995)  The Court further explained that a debtor is responsible for a willful injury when he or she commits an intentional act the purpose of which is to cause injury or which is substantially certain to cause injury. The Court explained that "malicious" means "wrongful and without just cause or excessive even in the absence of personal hatred, spite or ill-will."  In re: Walker, 48 F.3d at 1164. The Court noted that to establish malice, "a showing of specific intent to harm another is not necessary."  

The Court upheld the District Court's ruling that the debt was non-dischargeable under section 523(a)(6) as it found that the evidence showed that the transfer of the property to keep it out of the hands of this judgment creditor was "willful" as the debtor knew the purpose of the transfer and further held that the evidence showed that the transfer was malicious as the debtor had no just cause to effect the transfer.

(305) 891-4055 - Jordan E. Bublick is a Miami Bankruptcy Lawyer with over 25 years of experience in filing Chapter 13 and Chapter 7 Bankrkuptcy Cases.


3 years 7 months ago

In the recent case of Guillermo A. Morales, Case No. 07-16284-BKC-RBR, (Bankr.S.D.Fla. January 2, 2008)(Ray, J.) the Bankruptcy Court was given the opportunity to interpret new section 222.25(4), Florida Statutes which allows a debtor to exempt personal property not to exceed $4,000 if he does not "claim or receive the benefits of a homestead exemption under s. 4, Art. X of the State Constitution." Based on the particular facts of the case, the Court held that the debtor had not proven that he had not received the "benefits" of the homestead exemption and the trustee's objection to the debtor's exemption under section 222.25(4), Florida Statutes was sustained. But the court did state that if a debtor properly abandons his entire interest in his homestead at the start of a case or and does not claim his homestead exemption or does so by proper subsequent schedule amendments, then he would be able to claim the $4,000 section 222.25(4) personal property exemption.

In his chapter 7 schedules, the debtor listed one piece of real property with two mortgages. He did not claim the real property as exempt in his schedule C. In his original statement of intentions, the debtor set forth his intentions to reaffirm the two mortgages. Later he filed an amended statement of intentions where he indicated that his intentions were to surrender the real property to one of the mortgagees and reaffirm [sic] the other mortgage. The debtor claimed the use the $4000 personal property exemption under section 222.25(4), Florida Statutes (2007) and the trustee filed an objection to this claim of exemption.

The issue before the court was the meaning of section 222.25(4)'s phrase "receive the benefits of a homestead exemption." The trustee argued that the debtor was not eligible for the section 222.25(4) exemption as by owning a homestead, the debtor receives the benefit of the homestead exemption whether or not he makes use of it. The debtor contended that he had abandoned his interest in the real property, had not claimed it as exempt in his schedule C, and was not receiving any "benefits" of a homestead exemption.

The court looked to the language of the statute and found that it was written in the present tense. The court stated that the fact that a "debtor may have claimed or received the benefits of a homestead exemption in the past would appear to have no bearing on the application of the statute to a debtor's present situation." The court reasoned that even if a debtor had in the past received the benefits of the homestead exemption, he would qualify for the $4,000 section 222.25(4) personal property exemption if he does not claim it [the real property] as exempt and ceases to receive the benefits of a homestead exemption.

The court noted that in this case, that although debtor did not claim the homestead exemption, it was not clear whether he had derived any "benefits" from the exemption. The debtor argued that his amended statement of intentions to surrender the real property constituted an "abandonment" of the real property and that he was no longer receiving any "benefit" of the homestead exemption.

The court stated that the debtor was correct in his statement that under Florida law, abandonment of a homestead is one way that the protection of the homestead exemption may be lost. However, the court concluded that the debtor had failed to clearly indicate his intention with respect to the real property and that the court could not conclude that he had abandoned his homestead. The court noted that at the beginning of the case, the debtor had filed a statement of intentions indicating his intention to reaffirm the mortgages and retain the real property. The debtor only later changed his mind. The court also found "incompatible" with an abandonment the debtor's stated intention in his amended statement of intentions to surrender the real property to only one of the two mortgage holders and reaffirm the debt owed to the other mortgage holder.

Although the court failed to find an abandonment of the homestead in this case which led to the court's denial of the debtor's claim of exemption under section 222.25(4), the court stated that if a debtor "properly abandons his entire interest in his homestead at the start of a case and does not claim his homestead exemption" then he would be able to claim the $4,000 section 222.25(4) personal property exemption. The court even left open the possibility of a subsequent amendment of the debtor's schedules to indicate an abandonment of all interest in his homestead and to claim the $4,000 section 222.25(4) personal property exemptions.

In this case, the court found that the debtor failed to clearly indicate his intentions with respect to the real property and was denied use of the section 222.25(4) exemptions. Since the rendering of the court's decision, the debtor filed an amended statement of intentions setting forth a surrender to both mortgagees and has moved the court for a rehearing. In his motion for rehearing, the debtor refers to this amended statement of intention and points out that he did not oppose the motion for stay relief filed by one of the mortgagees.(305) 891-4055 - Jordan E. Bublick is a Miami Bankruptcy Lawyer with over 25 years of experience in filing Chapter 13 and Chapter 7 Bankrkuptcy Cases.


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