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A Guide to the Distressed Florida Homeowner Facing ForeclosurePrincipal Residence – The following applies generally to principal residences in chapter 13 bankruptcy. The rules as to modification of mortgages on non-principal residences in chapter 13 bankruptcy may actually be more liberal. Changes allowing the more liberal modification of principal residence mortgages in chapter 13 are now before Congress and may soon be enacted. Other more liberal rules for modification may also apply to those qualifying as “family farmers” under chapter 12 bankruptcy. Automatic Stay – With certain exceptions, the filing of a chapter 13 bankruptcy stays or stops most creditor collection actions, including mortgage foreclosure. The automatic stay provides a homeowner a “breathing spell” in order to allow him or her an opportunity to reorganize their debt while under the protection of the U.S. Bankruptcy Court.
Timing – Generally, a chapter 13 bankruptcy must be filed before a foreclosure sale if a person desires to attempt to save their home under a chapter 13 bankruptcy plan. A foreclosure sale is normally set by the Florida Circuit Court a number of weeks after the entry of the final judgment of foreclosure.
Chapter 13 Bankruptcy Prior to the Present Real Estate Crisis - Chapter 13 bankruptcy plans typically provided to reinstate first and second mortgages on a principal residence over a five year plan while at the same time paying the ongoing regular monthly mortgage payments. Mortgages secured only by a principal residence are generally not “modifiable” under present chapter 13 bankruptcy laws. Second mortgages that are wholly “underwater” are an exception to the rule against modification and may be avoided and deemed as “unsecured” claims and paid a dividend on the same basis as other unsecured claims such as credit cards. Unsecured claims are usually only paid a small percentage on the dollar under a chapter 13 plan.
Present Real Estate Crisis – Many homeowners owe more on their home mortgages than their present value (“underwater”) and many are unable to pay their monthly payments.
“Making Home Affordable Program” - last week the federal government announced updated information on its “Making Home Affordable Program.” http://www.financialstability.gov/makinghomeaffordable/. This program provides for the refinancing or modification of a mortgage under certain circumstances. More information is available from the federal government’s “Homeowner’s HOPE Hotline” at (888) 995-HOPE.
The Typical Present Distressed Homeowner’s Situation - the typical South Florida homeowner is in a situation where the amounts owed on the first and second mortgages substantially exceed the value of his or her home. Many of the comparable sales are sales of foreclosed homes. Many first mortgages may be adjustable rate mortgages. Property taxes may be high for recent purchasers. Condominium and association fees may have risen due to the default of other unit owner’s default. What is the Typical Homeowner in Crisis Presently to Do? Non-bankruptcy Refinancing or Modification – Most distressed homeowners should immediately contact their mortgage servicers or lenders to attempt refinancing or modifications. Patience may be required as the new provisions of the “Making Home Affordable Program” are now being implemented. Efforts should be made even if you were previously turned down. Participate in Florida Circuit Court Foreclosure Actions- A person who hasbeen served with a mortgage foreclosure action should normally participate in the foreclosure action. There may be opportunities to mediate a modification with the mortgage company. The participation should begin by “answering” the foreclosure complaint within the time period set forth in the summons attached to the foreclosure complaint. The answer may be made by the homeowner himself or through an attorney. Chapter 13 Bankruptcy Protection - If a homeowner is about to lose his or her home in a foreclosure sale, under appropriate circumstances, he or she may consider filing for chapter 13 bankruptcy relief before the foreclosure sale takes place. The Second Mortgage - Most second or junior mortgages are “underwater” and would be avoidable even under the present chapter 13 laws. A wholly underwater second mortgage holder will be avoided and receive a dividend on the same basis as unsecured credit cards. The First Mortgage - The homeowner will seek to refinance or modify his or her first mortgage under the non-bankruptcy “Making Home Affordable Program” or on such other basis as may be available. As the mortgage company will normally have special bankruptcy counsel, a direct line of communication for modification is available facilitating efforts to modify. The chapter 13 plan will typically provide for the first mortgage in the first phase of the plan (i.e. months 1-30) and a dividend to unsecured creditors during the second phase of the plan (i.e. months 31-36). Until a refinancing or modification is reached, the first mortgage company will receive its regular payment or such other lesser amount as may be appropriate. Jordan E. Bublick, Miami and Palm Beach, Florida, Attorney at Law, Practice Limited to Bankruptcy Law, Member of the Florida Bar since 1983
Bankruptcy Attorney Jordan E. Bublick practices Chapter 7 and Chapter 13 bankruptcy law in Ft. Lauderdale and all of Broward County, Florida. Jordan E. Bublick has been a member of the Florida Bar since 1983. Chapter 7 bankruptcy is generally used by people who desire to discharge unsecured debt and who have little non-exempt property. Chapter 13 bankruptcy is used to reorganize secured and unsecured debt as well as to discharge unsecured debt.
Chapter 13 bankruptcy is often used to stop a foreclosure action and proposed a plan of reorganization. Due to the decreased real estate values in South Florida, often a junior mortgage lien may be avoidable as an "unsecured debt."
Certain unsecured debt in not dischargeable in Chapter 7 and Chapter 13 such as certain taxes, student loans, fines, etc.Jordan E. Bublick, Miami and Palm Beach, Florida, Attorney at Law, Practice Limited to Bankruptcy Law, Member of the Florida Bar since 1983
If you are a San Gabriel Valley Homeowner in Southern California, Chapter 13 Bankruptcy may be an alternative you want to consider, particularly where you have 2 or more mortgage payments & your home is underwater in California.
It is important to understand that chapter 13 bankruptcy is a structured means to create a repayment plan for all your creditors. Oftentimes, you can cure arrearages on your home, including property tax. Also, chapter 13 cases allow for a lien strip of underwater mortgages for junior liens in certain situations. It is critical to explore these options as you consider all of your financial options.
Chapter 13 Bankruptcy is not a cure all, nor does it allow someone to walk away from debts. Repayment of debts is required in chapter 13 cases. The key is to select a capable California bankruptcy attorney to handle your chapter 13 case so your payment plan is properly calculated and crafted. An honest and capable attorney should tell you both the good and bad regarding the chapter 13 process. Living through a chapter 13 case is not a pleasant experience and anyone telling you otherwise is being disingenuous. However, in certain situations, chapter 13 bankruptcy can do wonders for individuals saddled with mortgage payments and other debts that are otherwise unmanageable.
Many people go to extreme measure to avoid filing for bankruptcy. There are a number of alternatives that people may consider that can actually be worse in the long run than filing for bankruptcy. Below are a few examples.1. Debt Consolidation Options. There are a number of companies that will offer to consolidate your credit cards and help to improve your credit. Be very cautious here and ask them to explain the entire process to you. Many of the places will tell you to stop making your payments to creditors and direct your payment amounts to the company instead. They will then hold onto this money until it reaches a certain amount and then will negotiate your debt down, sometimes only paying cents on the dollar of what you owe. This can have a number of negative implications. First, your credit will continue to worsen as your bills go unpaid for months. Second, the fees that some of these companies charge are exhorbitant. Third, the difference between what you owe and what they will pay your creditors will be considered taxable income to you. Finally, this is a service that you do not need to pay for. You could hold on to your own money and negotiate the debt down yourself.2. Charge Off of Accounts. Many times debtors are relieved when companies charge off an account or mark it as uncollectable. An important thing to note is that this does not mean that the creditor does not have a legal right to collect. Often times the original creditor will sell the account to another party and that third party may start to harass you about the debt. Also, as mentioned above, any amount charged off is considered "discharge of indebtedness" and is taxable income. For example, if you owe 10,000 to your credit card and they settle for 2,000 the 8,000 written off should be reported on your tax returns the following year. You will be taxed on this money as you are taxed on your income, which may mean that you owe taxes you didn't expect to owe. 3. Ignoring the problem. Creditors will not usually disappear and may even start contacting you at work or contacting your friends and family members. Ignoring the problem will not make it any better.If you have questions, or would like to schedule a free consultation, contact a St. Louis Bankruptcy Attorney Today.
Jordan E. Bublick is a Board Certified Consumer Bankruptcy lawyer (American Board of Certification). The law firm was established in 1985. Practice is limited to bankruptcy law.
Jordan E. Bublick is a graduate of New York University School of Law (LL.M., 1984), Ohio State University College of Law (J.D., 1983), and Brandeis University (B.A., 1979)
North Miami Office - 11645 Biscayne Blvd., Suite 208, Miami, Florida (305) 891-4055
Broward Telephone - (954) 424-6618
Chapter 7 personal bankruptcy is generally used to discharge your dischargeable debt including credit cards, medical bills, and unsecured loans.
Chapter 13 bankruptcy is generally used to reorganize your financial affairs while under the protection of the Bankruptcy Court. Chapter 13 bankruptcy is often used to stop a mortgage foreclosure and to catch the payments up-to-date.
Chapter 11 bankruptcy is also used to reorganize your financial affairs while under the protection of the Bankruptcy Court. Chapter 11 can be used by individuals or corporations.
Practicing in Miami-Dade, Broward, and Palm Beach Counties, including W. Palm Beach, Boca Raton, Ft. Lauderdale, Coral Springs, Miramar, Pembroke Pines, and Plantation.Jordan E. Bublick, Miami and Palm Beach, Florida, Attorney at Law, Practice Limited to Bankruptcy Law, Member of the Florida Bar since 1983
Unfortunately going through divorce is not just an emotional roller coaster but it's also a financial disaster. It has been my experience that most married couples rely heavily on two incomes. Losing an income makes it impossible to maintain their household when dealing with separation or divorce. Yes, Family Court will grant you some relief once the divorce decree has been entered and the debts have been divided, however, most individuals will not be able to pay the debts they have been ordered to pay. In order to relieve one from these debts and the legal liability that goes along with these debts many individuals opt to file bankruptcy (Chapter 7 or Chapter 13) either before or after they have filed for divorce. Bankruptcy and Divorce seem to go hand in hand when talking about a fresh start. Not only are these individuals starting a new chapter in their lives but are starting it debt free or at the very least with their debt under control. Filing for bankruptcy after a divorce may make it possible for you to save your home or keep your vehicle (Chapter 13). In order to get your new life headed in the right direction it's important that you reevaluate your finances and make the necessary adjustments. Bankruptcy may be your answer for a fresh start and a new outlook.
A Chapter 13 Bankruptcy generally lasts for a period of five years. As we all know a lot can change in a five year period. Over the course of five years debtors may marry, have children, need to purchase a vehicle, or even suffer damage to a home or vehicle already owned. If a debtor becomes entitled to insurance proceeds while in bankruptcy he should notify his attorney as soon as possible.
The general rule is that if a debtor becomes entitled to any sum of money it must be turned over to the bankruptcy trustee to be distributed to creditors. Common sources of money that need to be disclosed, and potentially turned over, include money or property from an inheritance, tax refunds, insurance proceeds and so on. As a rule of thumb, if you receive any money you should inform your attorney.
If you want to keep the money that you are entitled to you can file a motion to retain the proceeds. This will have to be submitted to the court and it is generally set on negative notice. This means that your attorney will submit your motion to retain and if no one objects to the motion within 21 days you will be able to keep the money received. Any number of people may object, including the trustee and/or one of your creditors.
It is important to note that if you receive insurance proceeds for property, i.e. a vehicle, and there is a total loss any existing loan balance has to be paid off before any funds would be released to you if your motion to retain is successful.
If you would like to retain insurance proceeds your attorney will need a number of things to prepare your motion to retain. Your attorney will need to know how much money you will be receiving for the property. If the property is not a total loss and just needs repairs your attorney will need to know the estimated cost of repairs. It is best if you can provide a written estimate from a qualified individual to your attorney to file with the motion. If the property is a total lose (i.e. a vehicle that you are not keeping) your attorney will need to know how you intend to spend the money received. Perhaps you need to replace your vehicle. Again, it is best to provide written figures for how you will spend the money. If you would like to purchase a new car with a loan your attorney will also need to submit a motion to incur debt.
Please keep in mind that this process will take time. The motion will be submitted and it will be at least 21 days before a decision is made. From there your attorney will have to submit an order and the judge will need to sign the motion.
If you have questions, or would like to set up a free consultation, contact a St. Louis Bankruptcy Attorney today.
Bankruptcy Lawyer Miami - Practice Limited to Bankruptcy
Jordan E. Bublick Attorney at Law is a Board Certified Specialist in Consumer Bankruptcy Law (American Board of Certification) with offices located at 11645 Biscayne Blvd., Miami, Florida and South Dade Brand at 10700 Caribbean Blvd., Miami, Florida. Jordan E. Bublick limits his practice to person and businesses in Chapter 7, Chapter 13, and Chapter 11 bankruptcy. The firm of Jordan E. Bublick, P.A. was established in 1985. The firm offers a free initial consultation.
Chapter 7 bankruptcy allows a person to discharge most types of debt while keeping his "exempt" property.
Chapter 13 bankruptcy allows a person to propose a plan of reorganization. It is often used to stop a mortgage foreclosure and to catch the mortgage payments up-to-date. Chapter 11 is used by individuals and businesses to reorganize their debt under a chapter 11 plan.Jordan E. Bublick, Miami and Palm Beach, Florida, Attorney at Law, Practice Limited to Bankruptcy Law, Member of the Florida Bar since 1983
Myths and Truths About Chapter 7 Bankruptcy, Part IVMyth: A debtor can dismiss a Chapter 7 bankruptcy if the Trustee finds assets.Truth: In a Chapter 7 bankruptcy, it is not possible to voluntarily dismiss your case if the Trustee finds assets. Generally, a debtor can voluntarily dismiss their case before discharge if they change their mind about filing the bankruptcy; however, this is not the case if the Trustee has found assets. When a bankruptcy is filed, the debtor has an obligation to list any property they have at the time of the filing and the value of said property, as well as any pending insurance claims, inheritance, and personal injury claims, etc. If the Trustee determines that the personal or real property has a higher value than the debtor originally assessed or if the Trustee finds assets that were not listed in the bankruptcy petition, the Trustee can seize the assets if they are not exempt. In order to prevent this from happening, many debtors request to voluntarily dismiss their case without discharge so they may retain their assets. This is not a possibility. If a Trustee finds unexempt assets in a Chapter 7 case, debtors are unable to dismiss their case voluntarily. That is why it is so important for debtors to accurately disclose their property and assets (present and future) to their attorney and on their bankruptcy petition before filing. Myth: If a debtor does not list something on the bankruptcy petition, the Trustee will not find out.Truth: It is essential for debtors to disclose all income, assets, and property, as well as the accurate value, on their bankruptcy petition and to disclose this information to their attorney. It is also important for debtors to list any transfers, money paid to family members or friends, payments to creditors, etc. The trustee completes their own investigation into the debtor's petition. They can check what property the debtor has and the value of the property. They can also find out about transfers of property and the recipients of transferred property. Trustees can require an appraisal of real or personal property if they believe the value listed is too low. They sometimes even wish to view the property personally. They can also look at bank accounts to determine if money was taken out or given to someone else or if income was earned but not reported. The Trustee will ask debtors questions under penalty of perjury. For this reason, it is essential to disclose fair, honest, and accurate information on the bankruptcy petition and schedules. If you have any questions, please contact a St. Louis or St. Charles bankruptcy attorney.
Myths and Truths About Chapter 13 Bankruptcy, Part IVMyth: If a house is jointly owned and in foreclosure, both parties on the loan must file Chapter 13 bankruptcy in order to save the house from foreclosure.Truth: Both parties on the loan do not need to file bankruptcy in order to save the house from foreclosure. It is very common for a house to be owned jointly, especially by a married couple. Many people think that because both names are on the loan, both people on the loan need to file bankruptcy in order to save the house from foreclosure. Actually, as long as one party on the loan files, that is enough to protect the house from foreclosure and implement the automatic stay as long as the bankruptcy is filed before the foreclosure. It may be beneficial for both parties to file together if they have other debt to include in the bankruptcy. In some cases, however, the house may be the only debt the parties possess or the additional debt may only be in the filing debtor's name. In that case, some people prefer to have only the one party on the loan file in order to preserve the credit of the other person. If the house is later surrendered through the bankruptcy or foreclosed, the second person on the loan may want to consider filing bankruptcy because they would then be responsible for the deficiency on the property. Otherwise, only one party would need to file bankruptcy.Myth: If the creditor isn't being paid through the bankruptcy, it is because the Trustee is choosing not to pay them.Truth: If a creditor is not being paid through the Chapter 13 bankruptcy, it likely due to reasons outside the Trustee's control. When a bankruptcy is filed, the creditors receive notice of the bankruptcy and are given a deadline in order to file a proof of claim. The proof of claim informs the Trustee of the amount due to the creditor so they know how much should be in the plan to pay them. Upon review of the proofs of claim, the Trustee makes sure the plan is feasible and pays the creditor a certain amount per month through the life of the plan. If the creditor does not file a proof of claim, the Trustee cannot pay them. Therefore, if the creditor is not being paid, there is a good chance there is no proof of claim filed. In that case, the debtor's attorney can call the creditor to remind them or file a proof of claim on the creditor's behalf to guarantee payment by the Trustee. If you would like more information, please contact a St. Louis or St. Charles bankruptcy attorney.
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