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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.
F.jpg "Exemption of Florida Personal Property from Seizure or Levy")
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.Jordan E. Bublick is a Miami Bankruptcy Lawyer with over 25 years of experience in filing Chapter 13 and Chapter 7 Bankruptcy Cases and Mortgage Modifications (305) 891-4055
One of the many benefits of filing a chapter 13 bankruptcy case is the ability to repay creditors less than what’s owed in many cases. Some cases don’t require a full payment to unsecured creditors. This all depends upon the income and expenses of the debtor as well as the debtor’s ability to repay the+ Read MoreThe post What Happens To Unsecured Creditors If They Don’t File A Claim? appeared first on David M. Siegel.
In Chicago and around the country, people are over spending on their credit cards. Maybe it’s the have it now, pay for it later mentality. Maybe it’s the convenience of not having to carry cash. Maybe it’s the enticements of rewards by using the card. Whatever the reason, folks have become too reliant on credit+ Read MoreThe post Credit Card Spending Can Lead To Bankruptcy Filing appeared first on David M. Siegel.
Private Student Loans + Bankruptcy Reform = Unemployment Chuck told me today that he can’t buy a house because of his private student loans. Fed Chairman Janet Yellen says he’s not alone–and that student loan debt is holding back jobs and the economic recovery. In her testimony to Congress yesterday, Fed Chairman Janet Yellen said […]The post How Private Student Loans and Bankruptcy Reform Cause Unemployment by Robert Weed appeared first on Robert Weed.
One spouse of often ordered to pay the attorney fees of the other spouse in a divorce. In some cases, this obligation to pay the involved attorneys fees is dischargeable in bankruptcy. This is one of the many issues presented in the application of bankruptcy law to obligations of alimony, child support, and marital settlement agreements. The bankruptcy code's provisions as to the dischargeability of support obligations were significantly changed in the 2005 amendments to the bankruptcy code. It should be noted that there are some differences in the provisions in chapter 7 and chapter 13 bankruptcy.
Atty. Jordan E. Bublick - 1221 Brickell Ave., 9th Fl., Miami, Florida
In some cases, divorce related attorney fees owed are dischargeable in bankruptcy, but in other cases they are not. It generally is based on whether the involved attorney fee fits within the bankruptcy code's definitition of a "domestic support obligation" (DSO). A decision issued in the Bankruptcy Court in Miami in 2009 in the case of In re Maria D. Lopez, Case No. 08-18101-BKC-LMI (Bankr. S.D.Fla. April 17, 2009)(Isicoff, J.) provides an an example of the application of the rules. In this case, the Bankruptcy Court held that the involved attorney fees were not entitled to priority status as a "domestic support obligation".
In this case, it was the ex-wife who sought to discharge her obligation to pay her ex-husband's attorney fees that he incurred in their dissolution of marriage case. In the dissolution of marriage case, the family cout awarded the debtor's ex-husband his attorney fees. When the ex-wife filed for bankruptcy under chapter 13, the ex-husband sought to have these attorneys fees paid in full on a priority status as a "domestic support obligation." priority status would require full payment and the lack thereof would subject to claim to status as a general unsecured creditor and typically only a small dividend.
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Definition of a Domestic Support Obligation
The Court explained that the Bankruptcy Code provides that a DSO owed to a former spouse is entitled to priority status. The Court noted thought that while an award of attorney fees in some instances may be considered a DSO, not every award of attorney fees in a dissolution of marriage case are entitled to DSO status.
The Court reviewed that for a claim to be considered as a DSO, it must meet all the requirements of section 101(14A) of the Bankruptcy Code. Generally, the claim must be
- owed to a spouse, former spouse, or child of the debtor, or such child's parent or guardian
- be in the nature of alimony, maintenance or support
- established or subject to establishment by reason of a separation agreement, divorce decree, or property settlement agreement or by court order
- not assigned to a nongovernmental entity unless voluntarily assigned for purposes of collection
"In the Nature of Alimony, Maintenance, or Support"
At issue in this case was whether the attorney fees were "in the nature of alimony, maintenance, or support."
The Court rejected the claimant's argument that the attorney fees met the requirement of being "in the nature of alimony, maintenance or support" finding that they instead related to something else - custody, parentage, or visitation.
The Court noted that the determination of what constitutes "support" is a matter of federal law. The Court further noted that in determining whether an award of state court attorneys' fees constitutes "support", the Bankruptcy Court may "only undertake a simple inquiry as to whether the debt can be characterized as 'support'" and that it may look to state law for guidance on whether the obligation should be considered in the nature of "support". Also the Court noted that the state court judgment awarded claimant attorney fees based on the debtor's litigation misconduct and not based on their respective wages or ability to pay.(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 and Mortgage Modifications
One spouse of often ordered to pay the attorney fees of the other spouse in a divorce. In some cases, this obligation to pay the involved attorneys fees is dischargeable in bankruptcy. This is one of the many issues presented in the application of bankruptcy law to obligations of alimony, child support, and marital settlement agreements. The bankruptcy code's provisions as to the dischargeability of support obligations were significantly changed in the 2005 amendments to the bankruptcy code. It should be noted that there are some differences in the provisions in chapter 7 and chapter 13 bankruptcy.
Atty. Jordan E. Bublick - 1221 Brickell Ave., 9th Fl., Miami, Florida
In some cases, divorce related attorney fees owed are dischargeable in bankruptcy, but in other cases they are not. It generally is based on whether the involved attorney fee fits within the bankruptcy code's definitition of a "domestic support obligation" (DSO). A decision issued in the Bankruptcy Court in Miami in 2009 in the case of In re Maria D. Lopez, Case No. 08-18101-BKC-LMI (Bankr. S.D.Fla. April 17, 2009)(Isicoff, J.) provides an an example of the application of the rules. In this case, the Bankruptcy Court held that the involved attorney fees were not entitled to priority status as a "domestic support obligation".
In this case, it was the ex-wife who sought to discharge her obligation to pay her ex-husband's attorney fees that he incurred in their dissolution of marriage case. In the dissolution of marriage case, the family cout awarded the debtor's ex-husband his attorney fees. When the ex-wife filed for bankruptcy under chapter 13, the ex-husband sought to have these attorneys fees paid in full on a priority status as a "domestic support obligation." priority status would require full payment and the lack thereof would subject to claim to status as a general unsecured creditor and typically only a small dividend.
Definition of a Domestic Support Obligation
The Court explained that the Bankruptcy Code provides that a DSO owed to a former spouse is entitled to priority status. The Court noted thought that while an award of attorney fees in some instances may be considered a DSO, not every award of attorney fees in a dissolution of marriage case are entitled to DSO status.
The Court reviewed that for a claim to be considered as a DSO, it must meet all the requirements of section 101(14A) of the Bankruptcy Code. Generally, the claim must be
- owed to a spouse, former spouse, or child of the debtor, or such child's parent or guardian
- be in the nature of alimony, maintenance or support
- established or subject to establishment by reason of a separation agreement, divorce decree, or property settlement agreement or by court order
- not assigned to a nongovernmental entity unless voluntarily assigned for purposes of collection
"In the Nature of Alimony, Maintenance, or Support"
At issue in this case was whether the attorney fees were "in the nature of alimony, maintenance, or support."
The Court rejected the claimant's argument that the attorney fees met the requirement of being "in the nature of alimony, maintenance or support" finding that they instead related to something else - custody, parentage, or visitation.
The Court noted that the determination of what constitutes "support" is a matter of federal law. The Court further noted that in determining whether an award of state court attorneys' fees constitutes "support", the Bankruptcy Court may "only undertake a simple inquiry as to whether the debt can be characterized as 'support'" and that it may look to state law for guidance on whether the obligation should be considered in the nature of "support". Also the Court noted that the state court judgment awarded claimant attorney fees based on the debtor's litigation misconduct and not based on their respective wages or ability to pay.Jordan E. Bublick is a Miami Bankruptcy Lawyer with over 25 years of experience in filing Chapter 13 and Chapter 7 Bankruptcy Cases and Mortgage Modifications (305) 891-4055
A successful chapter 13 requires you to make timely, monthly payments to a chapter 13 trustee over the life of your plan. The plan could last anywhere from 36 to 60 months typically. Your plan may run less than that provided you pay off the debt in full. If you fall behind on your trustee+ Read MoreThe post If I Fall Behind On My Chapter 13 Trustee Payments, Will My Case Be Dismissed? appeared first on David M. Siegel.
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If you think you may qualify for bankruptcy and would like to discuss your options with a lawyer specializing in bankruptcy, please contact Adrienne Woods.
Adrienne Woods
The Law Offices of Adrienne Woods, P.C.
[email protected]
917.447.4321
Have your financial questions answered by financial coaching, credit repair and bankruptcy professionals – all under one roof!
Financial Coaching – Make good money but you have no idea where it goes? Feel like you’re “bad with money?” Learn how to quickly get a hold of your finances so you can get out of debt and save more money!
Credit Repair – Feel like your low credit score is costing you hundreds if not thousands of dollars in higher financing costs? Learn how to get your credit back on track in as quickly as 30 days plus a 100% Money-Back Guarantee with our powerful credit repair solutions.
Bankruptcy – Weighed down by debt? Don’t make enough money to pay your bills? Burdened by collection calls? Learn how you can get a FRESH START by filing for bankruptcy!
Date: Wednesday, May 28th from 6:00 p.m. – 9:30 p.m.
Location: SLC Conference Center, 15 West 39th Street, NYC
Symposium Agenda: 6:00pm-9:30 pm
Financial Planning: 6:00pm-6:45pm
Credit Repair: 7:00pm-7:45pm
Bankruptcy: 8:00pm-8:45pm
Open Questions and Break Outs: 8:45-9:30
For more information or to register, go to: http://www.financialhealthevent.eventbrite.com
If you think you may qualify for bankruptcy and would like to discuss your options with a lawyer specializing in bankruptcy, please contact Adrienne Woods.
Adrienne Woods
The Law Offices of Adrienne Woods, P.C.
[email protected]
917.447.4321
In the last ten years, new technologies have revolutionized the debt collection industry, broadening the cope of operations from local and regional to national, and sometimes even to international. Technological innovation has facilitated the creation of very large, full-service debt collection operations, while simultaneously enabling smaller, niche-focused collection to become profitable.
Automated dialing and interactive voice recording also have made debt collectors’ calling campaigns substantially more efficient. The biggest change is now pervasive use of predictive dialers, which are now used by the vast majority of collections agencies.
Predictive dialers are automated computer systems that determine the number of calls to make based on the time of day, the number of collectors logged on to the system, and the average length of time collectors speak with consumers. At core, these dialers allow debt collectors to be vastly more efficient, because they eliminate the time spent dialing and waiting for a consumer to answer.
Call recording technologies also have emerged, making it possible for collectors to preserve every collection call. Debt collection supervisors may review the calls of their collectors.
In essence, the collections industry has become incredibly efficient. The automated dial calls that you are receiving are not random at all, but are built on fairly advanced statistical models. The problem is that you can no longer count on a collection being more trouble than it’s worth because with automated systems, collection efforts are no trouble at all.
If you are receiving automated calls or you are wondering where you are situated on the debt collection continuum, contact our offices and set up a consultation. If your schedule does not currently allow you to come to our Salem or Portland office, give me a call and we can talk it through.
The original post is titled Technology and the Debt Collection Industry , and it came from Portland Bankruptcy Attorney | Northwest Debt Relief .
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