Florida Bankruptcy FAQs
At Nowack & Olson, we are a proven resource for individuals, families and businesses considering bankruptcy. With thousands of cases under our belts, we have helped many clients understand the bankruptcy process and then help them use it successfully.
Here are answers to some of the most common questions we hear in our daily practice. For clients who desire more information about their specific case, we are always available via telephone or email to provide prompt answers.
Which type or chapter of bankruptcy should I file?
You may benefit from either Chapter 7 or Chapter 13 bankruptcy, depending on your income and circumstances. In most cases, the legal requirements for each chapter will determine which you may file.
When should I consider bankruptcy?
It may be wise to consider filing bankruptcy if:
- Your situation isn’t getting better — If you are not seeing the balance on your debts go down, or even seeing them go up, your strategy of making minimum payments clearly is not working. Bankruptcy can allow you to get out from under those debts and make a new start.
- You’re worried about your retirement — If you have dipped into your retirement savings to pay off debts, you are doing your future self a disservice. Often, a bankruptcy filing is an option to preserve the income you will need after retirement.
- Other people are depending on you — If you have a spouse, child, elderly relative or another loved one relying on you for support, it is essential to have enough money to cover emergencies and health insurance — not unsecured debts. Bankruptcy lets you prioritize what’s important.
- You may lose your home or car — Often, the threat of foreclosure or repossession is the final straw that leads to a bankruptcy filing. Bankruptcy can help you avoid repossession and allow you to keep your home.
Can I afford to file for bankruptcy?
Many of our clients have concerns about the expenses associated with bankruptcy. This is understandable, as a bankruptcy filing typically involves lawyer fees as well as court fees. However, it is important to remember that those costs cover a financial fresh start, putting you in a much better position than you were in before filing.
How can I afford bankruptcy?
If you are struggling to pay your debts and drowning in debt from your credit cards, medical bills or other financial demands, you cannot afford to do nothing.
- You cannot afford to keep making the minimum payment on your debt only to fall further and further behind.
- You cannot afford to try to file bankruptcy on your own and risk making costly mistakes.
- You cannot trust debt relief agencies to help you get out of debt; they will make your situation worse.
- You can afford a free consultation with the bankruptcy lawyers at Nowack & Olson.
We offer a free initial appointment so you can learn more about the benefits and costs of filing for bankruptcy before deciding what to do. We want you to be informed about the bankruptcy process and know what to expect.
Will I have to go to court?
The short answer is yes. However, your obligation to appear in court will be minimal. A month or so after filing your bankruptcy petition, you will be required to attend a hearing called a First Meeting of Creditors. If you retain our services, one of our knowledgeable bankruptcy lawyers will attend this meeting with you.
This meeting is presided over by a bankruptcy trustee. While the trustee oversees the court proceeding, he or she is not a judge. The trustee will ask you questions about your bankruptcy papers and financial situation, and creditors are permitted to do so as well. You will be under oath and bound to answer their questions. This hearing typically does not last long; the trustee has already had time to review your paperwork.
After this initial meeting, people who file for bankruptcy protection usually do not need to return to court. If a creditor or trustee files a motion or another action, however, it may be necessary to make another appearance.
When you retain Nowack & Olson to represent you in your bankruptcy matter, one of our knowledgeable bankruptcy lawyers will be by your side every step of the way. We know that a courtroom can be an intimidating place when you have not had much experience with the legal system. But it is important to know you are not facing it alone.
Can I keep my house or car?
What property you can keep will depend on many factors, including your payment history, income and where you live. When we meet for an initial consultation, we can help you understand what will happen to the assets you care about.
How can I keep my car?
In many cases, you can keep your car in bankruptcy, depending on where you live, your loan status and how much the car is worth. At Nowack & Olson, we can advise you of your rights during bankruptcy, as well as your options for keeping your vehicle.
What if I have a car loan?
If you have car loan debt, your options depend on whether you are up-to-date on your payments. Don’t let a debt relief company talk you into stopping paying your car loan. If you wish to maintain ownership of your vehicle, you must continue making your payments.
Your lender likely has a security interest in your vehicle, which is typically not changed by a bankruptcy proceeding. The bankruptcy trustee only cares how much equity is in the car. If you have equity, the Florida state bankruptcy exemptions will guide you.
Typically, an active bankruptcy case prevents a lender from repossessing a car or otherwise trying to collect on the debt. However, the court may grant the lender permission to repossess. For this reason, it is essential to work with a knowledgeable bankruptcy lawyer who knows how to protect your car and other belongings.
Will filing bankruptcy stop bill collectors from calling?
Yes. As soon as you file, something called the “automatic stay” goes into effect, barring creditors from pursuing any additional collection efforts on your debts. This gives you a chance to breathe and begin eliminating eligible debts.
How often can I file for bankruptcy?
Technically, there is no limit to how many times you can file bankruptcy. There is also no limit how often you can file. Limits apply to how often you can receive a discharge, or release from your debts. If you file too early the second time, you may be unable to receive a second bankruptcy discharge. It is important to understand those limits to avoid wasting time and money.
The specific time limits vary depending on which chapter of the Bankruptcy Code you are using.
- Chapter 7, then Chapter 7 —– Eight years
- Chapter 13, then Chapter 13 —Two years
- Chapter 7, then Chapter 13 — Four years
- Chapter 13, then Chapter 7 — Six years — There are exceptions for cases in which you paid all unsecured creditors in the Chapter 13, or if you paid at least 70 percent of the claims in the Chapter 13, and the plan was proposed in good faith and was your best effort.
These limitations may not apply if your first bankruptcy case was dismissed or denied. Every case is unique, and the best way to fully understand your options is to speak with a lawyer experienced in bankruptcy proceedings.
Will bankruptcy eliminate my back taxes or child support obligations?
No. These types of debt are secured and cannot be discharged during bankruptcy. However, Chapter 13 can allow you to pay them back over time.
What do I need to begin the bankruptcy process?
It is wise to begin compiling a list of your past and current debts, as well as your assets and liabilities. This will help you and your bankruptcy lawyer work promptly and efficiently toward your goals.
What property can I keep in bankruptcy?
What and how much you can keep during the bankruptcy process depends on what types of property you have, their value and the exemptions you use. Some property you may be able to keep include:
- Homestead — Bankruptcy filers may file a homestead declaration for real estate property that they occupy. This may include a home, trailer or mobile home. The property cannot exceed a half acre if it is located in an urban area.
- Personal property — A limited amount of personal property may be kept during the bankruptcy process, including federal income tax refunds, health aids and $1,000 worth of vehicles.
- Insurance — Certain insurance benefits, such as death benefits and proceeds from annuity contracts, may be exempt in bankruptcy. This also includes pensions.
- Public benefits — Crime victim compensation, Social Security and unemployment benefits are just a few of the public benefits that you may be able to keep in bankruptcy.
Myth: You will have to sell off your property if you file for bankruptcy. In theory, the bankruptcy trustee can sell or liquidate a debtor’s property to pay off creditors as part of the Chapter 7 bankruptcy process. In practice, however, this hardly ever happens. Florida law offers a wide range of exemptions, allowing debtors to keep certain property out of the hands of the bankruptcy trustee. At Nowack & Olson, we understand and utilize the Florida bankruptcy exemptions to the fullest extent allowable. In fact, most of our Chapter 7 filings are “no-asset” bankruptcies, and our clients do not have to sell any property to have their debt discharged.
Myth: Student loans are not dischargeable in bankruptcy. There is a lot of talk on Capitol Hill about making it easier to discharge student loans in bankruptcy. Many people think a discharge of their student debt isn’t a possibility under current law, but this is not so. Student loans are dischargeable if the debtor can prove that paying back the loan would pose an undue hardship on the debtor. An experienced Florida bankruptcy lawyer can help determine the likelihood of getting your student loan discharged in bankruptcy. It may not be easy, but don’t automatically assume it is impossible.
Myth: You can’t buy a home with a bankruptcy on your credit report. Your credit score does take a hit from bankruptcy, and the bankruptcy stays on your credit report for seven years (Chapter 13) or ten years (Chapter 7). But credit score is not the only factor lenders look at in deciding whether to approve you for a home loan. If you have a steady job and have saved enough for a down payment, your credit score may affect the interest rate you get, but it won’t necessarily keep you from getting a loan. Also, consider taking out an FHA loan instead of a conventional loan. A Chapter 13 filer can apply for an FHA loan as soon as one year after starting bankruptcy payments, and a Chapter 7 filer can apply for a mortgage as soon as two years from a bankruptcy discharge.
Myth: Filing for bankruptcy is something to be ashamed about. The ability to file for bankruptcy has been around for as long as the U.S. has been a country. In fact, bankruptcy is even mentioned in the Constitution, giving Congress the power to create uniform bankruptcy laws for the nation. Nobody wants you to lose your home, go broke, or become unable to provide for yourself and your family. Bankruptcy protections are in the law to help people out of financial straits before their situation becomes desperate, and taking advantage of the laws put in place to help you is nothing to be ashamed of. Just ask Abraham Lincoln. Or Henry Ford. Some of our country’s greatest and most successful people have had to file bankruptcy at one time or another. They didn’t let the need for bankruptcy get them down or stop them from succeeding, and neither should you.
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From offices in Fort Lauderdale, Miami and Palm Beach, our lawyers serve clients throughout South Florida. To arrange a consultation at any one of our offices, please call 866-907-2970 or send us an email. Let an experienced lawyer answer your bankruptcy questions today.