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Pro se legal representation: Means advocating on one's own behalf before a Court.
Recently, I have encountered a good number of individuals who decided they could file their Bankruptcy case on their own. It obviously seems like a pretty simple task, since at first glance the documents look like forms that you can just fill out. Unfortunately for these individuals, they are hit with reality when the Bankruptcy Court or the Trustee are requesting additional documents, Financial Management Course Certificates, Declaration Pages, and many other things that are very unlikely to make sense to someone who has not been through the process before or who does not work within the legal field. Filing your case Pro Se can put you in harm's way because if your case gets dismissed and you file a second time you will be faced with even more obstacles.
Individuals must be cautious of bankruptcy preparers and understand that these companies will not provide you with legal representation. It is important when considering bankruptcy you keep in mind that it is a legal proceeding in Federal Court which requires attention and knowledge.
I understand why some people choose to file their bankruptcy without legal representation. Legal representation costs money and if money wasn't an issue bankruptcy would not be a consideration. Is this really how you want to cut costs? Bankruptcy should be a solution to your problems not a problem in it of itself.
So you are a beneficiary of a recovable living trust. You need to file bankruptcy. Can you? Well, it depends. As long as you are not the settlor and the settlor lives through your bankruptcy, your beneficiary interest is contingent, meaning it doesn’t come into your bankruptcy as property of the estate. That’s because if the settlor is still alive, that person can always amend the terms of the trust and exclude you as a beneficiary.
Imagine if you filed a chapter 7 bankruptcy, which typically lasts between 4-6 months. During the course the chapter 7 trustee wanted to pull your contingent interest as a beneficiary into the bankruptcy estate. Well, the settlor would more than likely just change the terms of the trust and write you out immediately as a beneficiary. The chapter 7 trustee would be out of luck. The settlor did not engage in fraud in writing you out of the trust; there is nothing improper in doing so. However if the settlor was deceased or became deceased during the course of your bankruptcy, the beneficiary interest is no longer contingent and might become part of the bankruptcy estate where applicable.
By: Ceara L. Riggs, Bankruptcy Attorney in St. Petersburg, Florida at The Reissman Law Group, P.A.
The question I am probably asked the most is, “How long will I get to stay in my house?” It depends. Looking for a more definite answer? Chances are, any lawyer that wants to keep their Bar Card and Number will give you the same answer.
And as frustrating as that answer probably is, it’s the reality of the situation. So you want numbers, here’s the numbers:
- Day 1 – a foreclosure complaint is filed by the bank (which probably means you’ve missed at least 2-3 payments already, if not more). Enjoy how definite that number is because after day 1, everything “depends.”
- Some point after that – you’re going to be served with notice that the bank has filed a foreclosure suit against you. So, as you can see, the contingencies start early.
- 20 days after you’re served – you better have filed an answer to the bank’s complaint, otherwise the process moves ALOT faster and you’re likely to have significantly less time in your house.
- Sometime after you are served – there could be a Motion for Summary Judgment, there could be Interrogatories, Admissions, and/or Depositions, there could a case management conference, there could be a trial and there is no rhyme, reason or rule as to if any of these things occur or when they will occur if they do happen
- 860 days after day 1 – Approximately. If you have not reached a modification or agreement with your bank, your house will be sold at a foreclosure sale. But, of course, this is an average too.
Sparknotes version: it takes, on average, 861 days (or, more than 2 years), to foreclose on a property in Florida. Think about that. That means, every day, somewhere in Florida, a homeowner has stopped making payments on his or her house and then, at some point after that person stopped making payments, essentially nothing happened for about 861 days. Want to stay in your house? Want to find a new place? Want to rent out the place and have a new source of income? Maybe you just want to give raccoons and other critters a safe haven from the snowbirds on our roads?
Give us a call. Let us discuss your situation and where you fall on the “it depends” timeline. For a free evaluation of your situation and to see how we can help you stay in your house, contact The Reissman Law Group, P.A. today.
By: Ceara L. Riggs, Bankruptcy Attorney in St. Petersburg, Florida at The Reissman Law Group, P.A.
The question I am probably asked the most is, “How long will I get to stay in my house?” It depends. Looking for a more definite answer? Chances are, any lawyer that wants to keep their Bar Card and Number will give you the same answer.
And as frustrating as that answer probably is, it’s the reality of the situation. So you want numbers, here’s the numbers:
- Day 1 – a foreclosure complaint is filed by the bank (which probably means you’ve missed at least 2-3 payments already, if not more). Enjoy how definite that number is because after day 1, everything “depends.”
- Some point after that – you’re going to be served with notice that the bank has filed a foreclosure suit against you. So, as you can see, the contingencies start early.
- 20 days after you’re served – you better have filed an answer to the bank’s complaint, otherwise the process moves ALOT faster and you’re likely to have significantly less time in your house.
- Sometime after you are served – there could be a Motion for Summary Judgment, there could be Interrogatories, Admissions, and/or Depositions, there could a case management conference, there could be a trial and there is no rhyme, reason or rule as to if any of these things occur or when they will occur if they do happen
- 860 days after day 1 – Approximately. If you have not reached a modification or agreement with your bank, your house will be sold at a foreclosure sale. But, of course, this is an average too.
Sparknotes version: it takes, on average, 861 days (or, more than 2 years), to foreclose on a property in Florida. Think about that. That means, every day, somewhere in Florida, a homeowner has stopped making payments on his or her house and then, at some point after that person stopped making payments, essentially nothing happened for about 861 days. Want to stay in your house? Want to find a new place? Want to rent out the place and have a new source of income? Maybe you just want to give raccoons and other critters a safe haven from the snowbirds on our roads?
Give us a call. Let us discuss your situation and where you fall on the “it depends” timeline. For a free evaluation of your situation and to see how we can help you stay in your house, contact The Reissman Law Group, P.A. today.
The post 861 Days to Foreclosure appeared first on St. Petersburg Law Blog.
Several times a week I get a client who is married but not interested in filing for Bankruptcy along with their spouse. There are many reasons for this. The most common reason being clients often keep their finances completely separate from their spouse. Here in Texas we are a community property state. This means any sort of asset would be considered community property as well as any liability that may arise from your spouse’s debt. When an asset is community property both parties involved in the marriage have an interest in that asset. This concept also applies to debts. In other words, if during the duration of a marriage one spouse acquires debt that does not include the name of the other spouse this debt is still considered a community debt, and the non signing spouse can still be held liable for the debt at a later time. In circumstances when only one spouse files and the other spouse decides not to file, there have been multiple occasions where the non-filing spouse has been served with a lawsuit due to a bad debt that was discharged in their spouse's bankruptcy. When filing for Bankruptcy you're aiming for a fresh start and by leaving the back door open the nightmare of harassing creditors may come back to haunt you.
By: Marshall G. Reissman Bankruptcy Attorney in St. Petersburg, Florida at The Reissman Law Group, P.A.
Professional athletes filing bankruptcy have been in the news over the years including Mike Tyson, Sheryl Swoopes, and Lawrence Taylor. It may shock some people that professional athletes, who made millions during their careers, face the same kind of financial troubles that middle class Americans find themselves in. One of the latest professional athletes to file bankruptcy is Warren Sapp, formerly of the Tampa Bay Buccaneers.
Unfortunately, professional athletes are not immune from the problems regular people face, they just have a few more zeros at the end of their bills. Whether it is over-spending, bad investments, or a victim of the recent real estate bubble, professional athletes are subject to the same types of financial problems. Another possible reason for filing bankruptcy is to stop pending litigation or to stop a garnishment. Read a post about bankruptcy and garnishment here.
Recently, I had the opportunity to look over Warren Sapp’s bankruptcy petition and schedules at the request of a local reporter. The question the reporter had was the question most people had, why did Warren Sapp file Chapter 7 bankruptcy? At first look, it may be hard to understand. Many of the larger debts owed by Warren Sapp would appear to be non-dischargeable including taxes owed to the IRS and domestic support obligations to a former spouse and minor children. So why now? When I looked over the Statement of Financial Affairs “why now” become apparent to me.
One of Warren Sapp’s creditors, PNC Bank, who Mr. Sapp listed a debt totaling over $800,000.00, held a judgment against Warren Sapp and the creditor executed a Writ of Garnishment. Warren Sapp stated that PNC bank garnished more than $130,000.00, in December, 2011. One way to stop a garnishment is to file bankruptcy. Our clients face garnishment of their wages and bank accounts on a regular basis, and if appropriate, we will file bankruptcy on their behalf to stop the garnishment and discharge the underlying debt. Again, Warren Sapp just had a few more zeros at the end of his garnishment than most of our clients, but it still has the same effect.
Please check back for information regarding Warren Sapp’s bankruptcy. I will be following his case and providing my thoughts on what happens.
By: Marshall G. Reissman Bankruptcy Attorney in St. Petersburg, Florida at The Reissman Law Group, P.A.
Folks usually seek out the services of a bankruptcy attorney only when their situation becomes dire. One of those situations occurs when a credior sues someone. A lawsuit can be detrimental enough, but the real pain happens if the creditor is able to get a judgment against the person. Once the creditor obtains the judgment, the creditor can take whatever legal action is available to enforce the judgment. One action is the ability of the creditor to garnish a person’s wages, bank accounts, and other revenue streams. A garnishment can turn things from bad to worse.
Fortunately, one way to stop a garnishment is to file bankruptcy. When a person files bankruptcy, an auotmatic stay of protection is put into effect. The automatic stay prevents a creditor from taking certain actions including enforcing a pre-petition garnishment action. Not only will the garnsihment stop, but as long the person remains in bankruptcy and receives a discharge, the underlying debt will likely be dischargeable as well.
If a creditor has filed a lawsuit against you, seek out the advice of an experienced bankruptcy attorney to find out if filing bankruptcy is right for you. Call us today, and we will provide a free consultation and determine what course of action is right for you.
Bankruptcy is an essential component of a capitalistic society. The alternative to a Bankruptcy Code is a Debtor’s Prison. In 1833 our Country abolished federal imprisonment for unpaid debts. Further, without a Bankruptcy Code coupled with other federal laws our society would be dominated by a few holding all the wealth of our country, i.e. the winners of a giant monopoly game.
All of us run the risk of making financial mistakes or are subject to external forces - illness, divorce and/or surviving the existing recession, that resulted in an unmanageable financial crisis. There had to be a method to resolve these financial situations by allowing individuals a new beginning. Congress established Chapter 7 of the Bankruptcy Code as one method to accomplish this goal. The stated public policy of Chapter 7 is “a fresh start for an honest debtor”. Further each state developed exemption laws, property that creditors could not seize to satisfy a debt. Texas has always encouraged taking financial risks and as a counterbalance developed the most liberal exemption laws in the country. The purpose of the exemption law is to allow people to keep enough property to kick off the concept of a fresh start.
To demonstrate the necessity for a Bankruptcy Code all one has to do is look at Greece. Greece is in dire financial crisis with no real way to resolve their financial problems except by knuckling under the demands of the European Common Market Countries. The situation for Greek citizens continues to go downhill. Unemployment continues to rise, wages and pensions have been slashed as Greece implements the demands of its creditors and the demand of the Common Market. There seems to be no way for this country to get any solid footing in order to recover because only through growth of its economy can any country recover.
Chapter 7 allows an individual to be relieved of most of his/her existing debts as well as keep enough property to allow a person to have a fresh start with a reasonable degree of success. Chapter 7 of the Bankruptcy Code is one element of our society that allowed the United States to become the envy of other nations in the world.
Most experts agree that financial difficulties rate highly among the leading causes for divorce. Not surprisingly, when couples are dissolving their marriage they will often seek my advice regarding bankruptcy. I often hear from clients who are referred by a family law attorney. I also sometimes see clients after a family court judge has advised them to seek counsel from a bankruptcy attorney. This article explores a few of the most frequently asked questions involving bankruptcy law as it pertains to marital dissolution.
The first and most common question that arises is whether or not bankruptcy removes an obligation to pay child or spousal support. The answer pure and simple is that bankruptcy does not remove these obligations. Bankruptcy Code Section 523(a)(5) excepts from discharge debts owed to a spouse, former spouse, or child of the debtor if such debt is in the nature of alimony, support, or maintenance and is in connection with a separation agreement, a determination made under state or territorial law by a governmental unit. In fact bankruptcy often helps a party meet their support obligations in freeing up needed resources by removing other burdensome debts.
This brings us to the second most common question. The question is whether or not bankruptcy discharges an obligation to pay property settlement obligations, spousal indemnities to pay common debts, or orders to reimburse for the other spouses attorney’s fees. This is a much more complicated question. First, the answer to the question depends on which chapter of bankruptcy is filed. In a Chapter 7 bankruptcy, 11 U.S.C. § 523(a)(15) excepts from discharge any debt that is to a spouse, former spouse or child of the debtor; that is in connection with a separation agreement, divorce decree, order of a court or record or determination made in accordance with state or territorial law by a governmental unit; and is not a support obligation. In other words, property settlements obligations are not within the gambit of Chapter 7 discharge.
On the other hand, 11 U.S.C. § 523(a)(15) is not applicable to a discharge in a Chapter 13 case under 11 U.S.C. § 1328(a)(2). Even with a Chapter 13 one must be careful to distinguish an obligation to make a non-support related payment from the mere division or partition of community property. A spouse or former spouse fully retains the right to their share from the division of the community property. This is not affected by a bankruptcy discharge.
Another consideration is that it is often the case that if both spouses agree to file bankruptcy, regardless of chapter choice, that an obligation to indemnify for the payment of third party debts is either avoided altogether or becomes moot upon the bankruptcy discharge of both spouses. So if both spouses obtain bankruptcy discharges, many times neither spouse will have to pay for the third party debt. This can amount to a win-win situation for both spouses. As a result it is often prudent for one spouse to offer to pay for the bankruptcy of the other.
The last common question for discussion has to do with the relative timing of bankruptcy relative to their divorce. Specifically, many clients ask whether it is advisable that they wait until the divorce is finalized before filing for bankruptcy. While there is no easy hard and fast answer to this question, several key points should be considered. The first key point has to do with urgency. If one needs to stop a wage garnishment or a pending foreclosure it probably is not advisable to wait. On the other hand waiting for a finalized divorce decree along with an attendant Marital Settlement Agreement (MSA) and order thereon might favorably affect property exemptions, controversy over what is and is not property of the debtor’s bankruptcy estate, and qualifications under the means test. Qualifications under the means test might affect whether the client can file a Chapter 7 bankruptcy or not and what the client is required to pay into a Chapter 13 bankruptcy plan. Each case will be unique and the pros and cons will need to be carefully weighed by an experienced bankruptcy attorney. With bankruptcy the timing of a case is crucial, so an early evaluation is recommended to insure the best outcome in a given case. Also, certain planning opportunities may require timely and close cooperation of the client’s family law and bankruptcy law attorneys.
For advice specific to the facts of your case please contact Attorney Raymond Schimmel at (619) 275-1250 or visit my website at http://endbillcollections.com/
Most experts agree that financial difficulties rate highly among the leading causes for divorce. Not surprisingly, when couples are dissolving their marriage they will often seek my advice regarding bankruptcy. I often hear from clients who are referred by a family law attorney. I also sometimes see clients after a family court judge has advised them to seek counsel from a bankruptcy attorney. This article explores a few of the most frequently asked questions involving bankruptcy law as it pertains to marital dissolution.
The first and most common question that arises is whether or not bankruptcy removes an obligation to pay child or spousal support. The answer pure and simple is that bankruptcy does not remove these obligations. Bankruptcy Code Section 523(a)(5) excepts from discharge debts owed to a spouse, former spouse, or child of the debtor if such debt is in the nature of alimony, support, or maintenance and is in connection with a separation agreement, a determination made under state or territorial law by a governmental unit. In fact bankruptcy often helps a party meet their support obligations in freeing up needed resources by removing other burdensome debts.
This brings us to the second most common question. The question is whether or not bankruptcy discharges an obligation to pay property settlement obligations, spousal indemnities to pay common debts, or orders to reimburse for the other spouses attorney’s fees. This is a much more complicated question. First, the answer to the question depends on which chapter of bankruptcy is filed. In a Chapter 7 bankruptcy, 11 U.S.C. § 523(a)(15) excepts from discharge any debt that is to a spouse, former spouse or child of the debtor; that is in connection with a separation agreement, divorce decree, order of a court or record or determination made in accordance with state or territorial law by a governmental unit; and is not a support obligation. In other words, property settlements obligations are not within the gambit of Chapter 7 discharge.
On the other hand, 11 U.S.C. § 523(a)(15) is not applicable to a discharge in a Chapter 13 case under 11 U.S.C. § 1328(a)(2). Even with a Chapter 13 one must be careful to distinguish an obligation to make a non-support related payment from the mere division or partition of community property. A spouse or former spouse fully retains the right to their share from the division of the community property. This is not affected by a bankruptcy discharge.
Another consideration is that it is often the case that if both spouses agree to file bankruptcy, regardless of chapter choice, that an obligation to indemnify for the payment of third party debts is either avoided altogether or becomes moot upon the bankruptcy discharge of both spouses. So if both spouses obtain bankruptcy discharges, many times neither spouse will have to pay for the third party debt. This can amount to a win-win situation for both spouses. As a result it is often prudent for one spouse to offer to pay for the bankruptcy of the other.
The last common question for discussion has to do with the relative timing of bankruptcy relative to their divorce. Specifically, many clients ask whether it is advisable that they wait until the divorce is finalized before filing for bankruptcy. While there is no easy hard and fast answer to this question, several key points should be considered. The first key point has to do with urgency. If one needs to stop a wage garnishment or a pending foreclosure it probably is not advisable to wait. On the other hand waiting for a finalized divorce decree along with an attendant Marital Settlement Agreement (MSA) and order thereon might favorably affect property exemptions, controversy over what is and is not property of the debtor’s bankruptcy estate, and qualifications under the means test. Qualifications under the means test might affect whether the client can file a Chapter 7 bankruptcy or not and what the client is required to pay into a Chapter 13 bankruptcy plan. Each case will be unique and the pros and cons will need to be carefully weighed by an experienced bankruptcy attorney. With bankruptcy the timing of a case is crucial, so an early evaluation is recommended to insure the best outcome in a given case. Also, certain planning opportunities may require timely and close cooperation of the client’s family law and bankruptcy law attorneys.
For advice specific to the facts of your case please contact Attorney Raymond Schimmel at (619) 275-1250 or visit my website at http://endbillcollections.com/
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