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File Chapter 7 Bankruptcy To Protect Property The first reason why somebody would want to file Chapter 7 bankruptcy is if they have something they want to protect. What I’m talking about here is something of value that is subject to a taking if a bankruptcy case is not file. This could be wages. If someone is+ Read MoreThe post There Are Three Main Reasons Why Somebody Would Want To File Chapter 7 Bankruptcy appeared first on David M. Siegel.
In many cases, you can stop a mortgage foreclosure by filing for a mortgage modification under the HAMP program. The application for a mortgage modification can be filed directly with the mortgage lender or was part of a chapter 13 bankruptcy you may file. If you are on the eve of a foreclosure sale, I would probably be best to file a chapter 13 bankruptcy in order to insure the stopping of your foreclosure sale.
If you file the modification as part of a chapter 13 bankruptcy case, the modification request will proceed under the Miami Bankruptcy Court's new "LMM" program (Loss Mitigation Mediation) which has been very successful in helping homeowners achieve a mortgage modification.
Suspension of Referral or Foreclosure or Foreclosure Sale
Immediately upon a mortgage borrower's application for consideration for a HAMP mortgage modification, a may not refer a mortgage loan for foreclosure or conduct a scheduled foreclosure sale unless
- the borrower has been evaluated for HAMP and determined to be ineligible for the program
- borrower accepts a Trial Payment Plan and fails to make current trial period payments unless
- the mortgage servicer is evaluating the borrower for a HAMP Tier 2 application until the evaluation for a HAMP Tier 2 is complete and the borrower is determind to be ineligible for HAMP Tier 2
- the borrower or co-borrower states he is not interested in pursuing a HAMP modification
- the remaining non-borrower was unable to assume the note and re-apply for HAMP during the period provided under the rule
- the Loss Mitigation Application is incomplete and i. more than 120 days has passed or ii. more than 30 days has passed since the servicer sent the borrower an "Incomplete Information Notice"
- If the borrower submits an incomplete Loss Mitigation Application the mortgage servicer if the application still remains incomplete after the later of
- a delinquency for more than four months
- 30 days has has passed since the servicer sent the borrower an "Incomplete Information Notice" and the Loss Mitigation Application still is incomplete
Suspension of Foreclosure after Referral for Mortgage Foreclosure
If the foreclosure has already been filed, the mortgage servicer must suspend the foreclosure process upon the borrower's accept of a Trial Payment Plan upon verified income and for the duration of the trial period
Suspension after Foreclosure Sale Already Set
If a borrower submits a HAMP application at least 7 business days prior to a scheduled foreclosure sale, the mortgage servicer must immediately suspend the foreclosure sale for a period of time as necessary to evaluate the borrower's HAMP application if the new application under any of the following circumstances:
- If the borrower had made at least one payment under a HAMP Tier 1 Temporary Payment plan
- unless there has been a change in circumstances
- If the borrower had defaulted under a HAMP Permanent Modification and either i. 12 months has passed since the effective date of the modification or ii. the borrower has experienced a change in circumstances
- the borrower was previously determined to be ineligible for a HAMP Tier 1 modification
(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.
Bringing you the most up-to-date news, tips and blogs throughout the web. Here’s your Bankruptcy Update for April 10th, 2014 Malaysia Airlines could opt for bankruptcy if multiple, costly lawsuits are filed in response to missing flight James River Coal pushed into bankruptcy Bankruptcy over, ‘Real Housewives’ stars Teresa, Joe Giudice still owe $13.4 million
In order to file for Chapter 7 bankruptcy, you must provide a copy of your most recent Federal tax return. If you are going to be receiving a sizable refund, then you want to time your bankruptcy filing so that you do not have the refund forthcoming after your filing date. This way, you are+ Read MoreThe post Tax Return & The Importance Of Timely Filing – Bankruptcy appeared first on David M. Siegel.
(305) 891-4055 - Over 25 Years of Experience - Over 8,000 Cases Filed - 1221 Brickell Ave., 9th Fl., Miami, Florida - Jordan E. Bublick - www.bublicklaw.com
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You will normally receive your Chapter 7Discharge Order about 3 to 4 months after the creditor's meeting. This Order renders unenforceable all debts other than those specifically excepted by law. It also enjoins creditors from attempt to collect on debts that are discharged.
Exceptions from Discharge
In general, items not dischargeable in bankruptcy include the following:
- Student loans and educational benefit overpayments if they are made, insured, or guaranteed by the government or funded under a program funded in whole or in part by the government or a nonprofit institution unless you can show an "undue hardship". The same rule applies to obligations to repay funds received as an educational benefit, scholarship, or stipend.
- Certain taxes and debts incurred to pay certain taxesCreditors not listed in the bankruptcy case or not otherwise notified about the case
- Debts for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny,
- Debts to spouse, former spouse, or child for alimony, maintenance, or support and obligations of a similar nature
- Damages for willful and malicious injury to another or another's property.
- Certain governmental fines and penalties
- Debts arising from drunk driving
- Debts for money, property, services, or for credit obtained by false pretenses, false representation, or actual fraud (This includes credit card charges, cash advance, etc. made without the intent to repay).
- Debts for money, property, services, or for credit obtained by use of a written statement that was materially false concerning your financial condition if the creditor reasonably relied on it that was used with the intent to deceive
(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
When you and your spouse are coming to terms with your marriage and finances involved you may have questions that come about regarding divorce and bankruptcy. Depending on your situation you may be recommended to complete one before the other. Or, you may be able to complete each process at the same time depending on […]
Chicago Bankruptcy Lawyer Explains According to Chicago bankruptcy lawyer David Siegel, some property should be reaffirmed. With secured property such as a vehicle, furniture, jewelry, electronics, those are secured items. Therefore, when you file a chapter 7 bankruptcy you have effectively eliminated the debt on those items if you want to give up the property. + Read MoreThe post Chicago Bankruptcy Lawyer David Siegel Explains Reaffirming A Debt In A Chapter 7 Bankruptcy Case appeared first on David M. Siegel.
The District Court for the Southern District of Florida, in the case of Carpenter v. Brown, 13-CV-61183-KMM (SD Fla. 2013), addressed the issue of whether the placing of a property on the market for sale or the entering into a sales contract constitutes the abandonment of the homestead exemption. In this case, the debtor closed on a contract for the sale of his property eight days after filing for chapter 7 relief. In the case, the District Court upheld the Bankruptcy Court's disallowance of the exemption of the real property as a homestead as it found that the debtor did not have the intent to remain permanently in the property on the date the bankruptcy case was filed.
Article X, section 4 (a)(1) of the Florida Constitution provides for the homestead exemption. The Court explained that the definition of a "homestead" is liberally construed to protect homeowners. In re: Brown, 165 B.R. 512, 514 (Bankr. MD Fla. 1994). But the Court noted, that at the same time, the Court must "take care to prevent it from being an instrument of fraud." Once a property is established as a homestead it does not lose that status until it is "abandoned". The Court explained that a "homestead has been abandoned when it is no longer a 'bona fide' home and place of permanent residence." The Court noted that the main consideration in the determination of whether a homestead has been abandoned is the "owner's intent" and the physical absence from the property is "not determinative."
In this case, the District Court, which was acting in its appeals capacity of the Bankruptcy Court's decision, upheld the Bankruptcy Court's finding that the debtor failed to satisfy the "intent prong" of the homestead exemption. The Bankruptcy Court found that the debtor did not possess the requisite intent to live permanently at the property on the date of the filing of the bankruptcy case and that he had therefor abandoned the property as being his homestead.
The District Court rejected the debtor's argument that despite the contract for the sale of the property, the homestead was still intact as he still lived there. The District Court cited a prior rulings in other cases which held that the placing of property on the market for sale or lease may constitute the abandonment of the intent to use and occupy the property as a permanent place of residence. The property would no longer qualify for the homestead exemption unless the debtor had the intent or ability to use the proceeds to establish a new homestead. Smith v. Hamilton, 428 So. 2d 382, 384 (Fla. Dist. Ct. Appl. 1983).
In this case, the District Court stated that the debtor did not display an intention to reinvest the sales proceeds in a new homestead. The debtor noted that the spent a portion of the sales proceeds on moving expenses and moved to Massachusetts. The Court reviewed that the sales proceeds of a sale of a homestead are only exempt if "the seller shows by a preponderance of the evidence an abiding good faith intention prior to and at the time of the sale of the homestead to reinvest the proceeds in another homestead within a reasonable time." Orange Brevard Plumbing & Heating Co. v. La Croix, 137 So. 201, 206 (Fla. 1962). The Court noted that here is was undisputed that the debtor did not have the intention to reinvest the proceeds in another homestead.
if the property is not exempt as a homestead, the sales proceeds(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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