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.jpg "Florida Homestead Exemption in Three Different Contexts")
The concept of a Florida "homestead" arises in three different contexts under Florida law:
- exemption from taxation per Art. VII, Section 6, Fla. Constit.
- exemption from forced sale before and at death per Art. X, Section 4(a)-(b), Fla. Const. and
- Restrictions on devise and alienation, Art. X, Section 4(c), Fla. Const.
It should be noted that the definition of homestead property for Article VII, section 6 purposes (taxation) is not the same as Article X, section 4 (forced sale and devise and alienation).
Art. X, Section 4 Homesteads
Neither the Florida Legislature nor the Florida Constitution provide a definition of what is homestead property for purposes of Art. X, Section 4 (a)(forced sale and devise and alienation). Florida courts hold that the following requirements must be satisfied for property to be determined as homestead property:
- the property must be owned by a "natural person"
- the person claiming the exemption must be a Florida resident who establishes that he intends to make the real property his permanent residence
- the person claiming the exemption must establish that he is the owner of the property and
- the property claimed as the homestead must satisfy the size and contiguity requirements of the constitution.
Florida courts also have held that the Florida Constitution does not limit the types of estates that are eligible for homestead status. Therefore, the exemption may generally attach to any estate in land whether it is a freehold or lesser estate. A life estate has been expressly found to be among the property interests eligible for homestead status. Florida court have held that real property held in trust can be impressed with the character of homestead, including revocable and irrevocable trusts.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
When you file Chapter 7 bankruptcy, not all of your debts may be eliminated. For example, student loans, recent taxes, parking tickets, child support and debts incurred through fraud are not eliminated. The video below talks about how some people will run up the balance on a credit card in anticipation of filing Chapter 7+ Read MoreThe post What Debts Are Typically Non-Dischargeable? appeared first on David M. Siegel.
New York State Court Of Appeals Chief Judge Jonathan Lippman is fed up with all the flawed debt collection lawsuits filed in New York. So in a remarkable and unexpected win for consumers, he’s taken steps to make the process fairer.
As of June 15, 2014, new court rules and protocols will go into effect making it harder for debt collection companies to win default judgments.
Judge Lippman, during a speech in Albany, said that more than 130,000 debt collection lawsuits filed each year in the state were riddled with problems that compromised the consumer’s rights. Many people are never served with papers, and learn about a judgment only when their bank accounts are frozen or their wages are garnished.
In addition, the judge found that many debt collection lawsuits filed in New York are based on inadequate documentation as a result of the multiple times that the debt has been sold before the lawsuit filed.
This is something I’ve found for years, with people coming to me to file for bankruptcy because it’s the only way they could get their bank accounts released. Though they could make a motion to the civil court to set aside the judgment, many of my clients over the years have said that doing so would take too much time and money.
Between a rock and a hard place, they ended up in bankruptcy court.
Debt buyers purchase hundreds if not thousands of delinquent credit card debts for pennies on the dollar. They then file lawsuits to collect on those debts, usually without any documentation to prove that the consumer is actually the responsible party.
Under the new rules, effective as of June 15, 2014, creditors will be required to submit documents detailing the chain of ownership of the debt, as well as affidavits from people having personal knowledge of that history.
In other words, robo-signing is dead.
Creditors will need to swear that the statute of limitations to collect on the debt has not expired.
Sewer service will become a thing of the past as creditors will now have to give the court a stamped envelope bearing the debtor’s address. The court will send out a notice of the lawsuit before a default judgment is entered.
Will this end the abusive practices of debt buyers and creditors who use the New York court system to strong arm consumers? Probably not entirely; after all, creditors and debt collectors are adept at finessing their procedures to maximize their profit.
It is, however, a step in the right direction.
If you are facing foreclosure, bankruptcy offers two choices: 1. Delay foreclosure so that you can save money and find another place to live (Chapter 7 bankruptcy); or 2. Save your house be catching up on past due mortgage (Chapter 13 bankruptcy).
Here are more details on how bankruptcy can stop your home from being foreclosed:
The Automatic Stay: Instantly upon you filing bankruptcy, the court automatically issues an order -- called a “stay order”, or an “order for relief.” It automatically directs your creditors to stop all their collection activities. If your home is scheduled for a foreclosure sale, the sale date will be canceled. The Automatic Stay is issued in both Chapter 7 cases and Chapter 13 cases.
A Chapter 7 Delays Foreclosure Proceedings:
Filing a Chapter 7 Bankruptcy will delay a foreclosure between two and four months. A lender may file a motion seeking relief from the “stay order.” Essentially, the lender seeks the bankruptcy court's permission to proceed with the sale. It is usually granted because the homeowner is behind on payments. If this motion is filed soon after you file bankruptcy, foreclosure will be typically delayed by two months. Sometimes a lender does not file a motion. They will be allowed to proceed with foreclosure about three of four months after filing your case. Thus, during a Chapter 7 bankruptcy, you can live in your home for free for several months while your bankruptcy is pending. You can then use that money to help secure new shelter.
A Chapter 13 Can Save Your Home:
Chapter 13 bankruptcy, on the other hand, is a great tool to save your house from foreclosure. After the case is filed, our office works with you to prepare a plan to catch up on the payments are past due. The plan has to be crafted so as to be caught up with payments in a five year time frame/60 months. For example, if a homeowner is behind $30,000, the homeowner can make $500 a month payments over 60 month time frame. The homeowner will also need to make the regular monthly house payment during the plan period as well. These plans can be tough, but with hard work and a disciplined budget, your home can be saved.
Attorney Ken Jorgensen is located in Clovis, California. He handles personal, property and business disputes, including bankruptcy and eviction cases in California. You can find out more about Ken on Facebook, or at his websites, www.fresnolawgroup.com and www.fresnobankruptcylawgroup.com. He can be reached at [email protected] or by telephone at 1-559-324-1882.
Photo Credit:Jeff Turner on Flickr
Valarie emailed me a little after midnight, to let me know she’d bought a new house. When Valarie came to see me in 2010 she was living in a trailer park. Next month, she’ll be a homeowner. Her house had been foreclosed, her electric was cut off, and she was making $325 a month payments […]The post Valarie gets approved for an after bankruptcy mortgage by Robert Weed appeared first on Robert Weed.
On June 1, the filing fee for a consumer chapter 7 bankruptcy goes up from $306 to $335. Is that fee fair? Let’s do a comparison. In a month-long jury trial ending yesterday, Apple was awarded $119 million in their patent lawsuit Samsung. Apple had asked for lots more–$2.2 billion–in this battle of smartphone giants. […]The post Chapter 7 bankruptcy fling fees go up–is that fair? by Robert Weed appeared first on Robert Weed.
A Chicago Bankruptcy Timeframe for a case can last anywhere from 3 to 4 months from filing until discharge. This assumes that there is no objection to your discharge or no adversarial complaint in your case. Let’s start at the beginning. You need to meet with a bankruptcy attorney to go over your income, your expenses,+ Read MoreThe post Chicago Bankruptcy Timeframe: From Start To Finish appeared first on David M. Siegel.
The interplay between divorce and bankruptcy is confusing. There are also important decisions to make when deciding whether to file bankruptcy and when to end a marriage. Divorcing is generally easier on all parties when the divorcing couple can agree on as many issues as possible. This is especially true for division of debt in+ Read MoreThe post Divorce and Chapter 7 Bankruptcy appeared first on David M. Siegel.
In Law v. Siegel, a case decided by the U.S. Supreme Court in March, the Court unanimously ruled that the bankruptcy court exceeded its authority when it surcharged the debtor’s homestead exemption to pay the Chapter 7 Trustee’s attorney fees, despite the debtor’s misconduct.
The case involved Stephen Law, a consumer debtor who filed for Chapter 7 bankruptcy in California. Law's only significant asset was his house, worth approximately $360,000. Law exempted $75,000 of the home equity under the state homestead exemption. Law further claimed that there was no additional equity in the house because it was subject to two mortgages totaling up to more than $300,000 — more than the nonexempt value of the house. The first mortgage was real. The second mortgage, allegedly in favor of "Lin's Mortgage & Associates,” was fake. Law was perpetrating a fraud. Alfred Siegel, the Chapter 7 Trustee, uncovered the mortgage scam. Unfortunately, in the process, the trustee incurred approximately $500,000 in legal fees. Read More ›
Tags: Chapter 7, U.S. Supreme Court
New Filing Fees Starting June 1, 2014, bankruptcy filing fees are going to increase. The filing fee for a chapter 7 bankruptcy case is increasing to $335.00. The filing fee for a chapter 13 bankruptcy case is increasing to $310. 00. So if you’re already struggling to pay your debts and are seeking bankruptcy protection,+ Read MoreThe post Getting Out Of Debt Just Got A Little Tougher appeared first on David M. Siegel.
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