Automatic Stay

Published on: October 19, 2011

Discharge Violations: Attempting to Collect Debt After Bankruptcy

If you have filed a bankruptcy in Jacksonville and have had debts discharged in the Florida bankruptcy court, a creditor cannot make an attempt to collect on that debt. If the creditor does, they are likely violating 11 USC §524. §524 serves as an injunction preventing the creditor from contacting the discharged debtor. This is similar to an injunction in family law commonly known as a Restraining Order. However, while a violation of a Restraining Order can lead to imprisonment, violation of a bankruptcy discharge injunction often leads to money being awarded to the client.

Discharge violations occur often and are sometimes overlooked by clients who just want to move on with their lives. The amount of money a client can be awarded depends on the severity and frequency of the collection attempts. Generally, the cost to bring an action against the creditor is paid for by the money collected from them. That means that a client could pay nothing out of pocket and could still walk away with cash.

If you are being contacted by a creditor who should have been discharged in your bankruptcy and would like them to stop, please contact a Jacksonville Bankruptcy Lawyer or call us at (904) 685-1200 for a free consultation.

Published on: September 23, 2011

Keith D. Collier’s Law Office sued for bankruptcy violations

By David M. Goldman

Elena Escamilla, a staff attorney for U.S. Trustee, Donald F. Walton, filed a law suit against Keith D. Collier for violations including: Sanctions for Violation of the Automatic Stay, Injunctive Relief, Violation of Discharge Injunction an Conflict of Interest Resulting in Disgorgement of Fees.

If you entered into a deferred payment plan whereby you made payments after the filing of a Chapter 7 bankruptcy or post-petition payments outside the plan in a Chapter 13, you may not have any obligation to make these payments and you may be entitled to a full refund of all payments made thus far. You should discuss your specific circumstances with a Florida attorney.

This is not the first time Middle District of Florida (which includes Orlando, Jacksonville, Tampa and Ocala) has ruled that actions which appear synonymous are inappropriate. See Walton v. Clark & Washington.

Published on: September 12, 2011

My Home Has Been Foreclosed And There Is A Sale Date. What Can I Do?

By David M. Goldman

Filing for bankruptcy will stop the future sale date of your home, even if there has been a final order foreclosing the property. This is due to an automatic stay that is immediately put into place upon filing for bankruptcy. Under the automatic stay, a creditor cannot take any action against you to try and collect a debt. So your foreclosure suit will halt immediately and your sale date will be cancelled; no more action will be taken in the case until the automatic stay is no longer in place.

The automatic stay will be effective until the conclusion of your bankruptcy. In a Chapter 7, this will probably be a short amount of time, around 4-6 months. But this extra time may give you the opportunity to catch up on your mortgage, achieve a modification, or sell your property. However, in a Chapter 13 bankruptcy, your case will not be concluded until after your Plan payments are finished. This will be anywhere from 3-5 years. Within those years, your Plan will allow you the opportunity to catch up on arrearages and so cure your deficiency with your mortgage company.

There are many ways in which a bankruptcy might be in your financial best interest. Help with mortgages that are in default is just one way a Jacksonville Bankruptcy Attorney can help you. Call us today at 904-685-1200 to schedule a free consultation.

Published on: July 27, 2011

Can a Bankruptcy Judge Order a Mortgage Company to Modify a Mortgage After I filed a Chapter 13 Bankruptcy?

By David M. Goldman

An attempt to pass a law that would allow Bankruptcy judges to modify mortgages never made it passed the Senate. So a judge cannot automatically modify the terms of your existing mortgage. However, filing bankruptcy in Florida can help in other ways.

First, if you are behind on payments, filing a Chapter 13 bankruptcy allows you to catch up the arrearages over time so you are no longer in default. Second, filing bankruptcy oftentimes serves as a strong negotiation point with lenders. Lenders might be willing to work with you more if they know that there is a strong possibility that you might just walk away from the house if they do not work with you. Third, your Orange Park bankruptcy attorney can file a motion within your bankruptcy proceeding to require your mortgage company into mediation with you. So the judge cannot automatically change the terms of your mortgage, but s/he can order your mortgage company into mortgage modification mediation with you. Finally, if your home is in foreclosure, filing bankruptcy will halt the foreclosure proceedings. The automatic stay will go into effect immediately and all activity in the foreclosure case will cease.

To see if filing for bankruptcy is in your best interest, contact an Orange Park bankruptcy attorney today to discuss the particulars of your situation.

Published on: July 25, 2011

Jacksonville Bankrupcty Lawyer: How Long Does the Automatic Stay Last in Bankruptcy?

By David M. Goldman

When you file for bankruptcy in Jacksonville or Florida, an automatic stay goes into effect immediately. (Unless there has been aprevious bankruptcy, then you have to ask the Judge for one). This halts virtually all legal actions and collection actions against you or if they continue and a stay in in place they can be undone in most cases. This can really bring relief to those with creditors calling all day long. This also means that any foreclosure or garnishment action is halted, and a creditor cannot repossess your car, or the court cannot sell your home. So if you are behind on payments and think your collateral may be subject to repossession, a Florida bankruptcy can help to protect your assets while you figure out your next step.

If you think that getting a fresh start by filing for bankruptcy might help your situation, contact a Jacksonville bankruptcy attorney today at 904-685-1200 to assess your needs.

Published on: July 25, 2011

How a Bankruptcy “Stay” Works

By David M. Goldman

Bankruptcy was meant as a legal tool used to get people a fresh start when they are too deep in debt. If you are currently facing debts and your creditors are bearing down on you, filing bankruptcy could provide some immediate relief. For example, if your credit card company is threatening to sue you for past-due payment or the bank is foreclosing on your home, a filing of bankruptcy will automatically place a “stay” on your creditors from collecting the debt for a period of time. During this time, your creditors cannot take action against you to recover this debt unless they petition the court and the court grants them permission — not a common outcome. If you are thinking about filing bankruptcy, contact a Jacksonville Bankruptcy Attorney today to find out your options for your specific situation.

Published on: May 4, 2011

Can my car be repossessed right after I file Bankruptcy?

By David M. Goldman

NO. When you file bankruptcy, an automatic stay is put into place that blocks creditors from trying to collect from you. A creditor cannot call or write you to ask for you to pay a bill and they cannot repossess your property. A Jacksonville bankruptcy lawyer can probably get your vehicle back for you. If the creditor knew about the bankruptcy, which is likely, then your bankruptcy attorney can actually sue the creditor for monetary damages due to FDCPA violations.

Published on: May 3, 2011

What is the Fair Debt Collection Practices Act?

By David M. Goldman

The Fair Debt Collection Practices Act (FDCPA) is an Act that Congress passed in response to a growing number of abusive collection practices used by collection agencies. The FDCPA provides guidelines that creditors must follow when trying to collect debts from consumers. This Act applies to debt collectors. A debt collector is defined as any person who regularly collects debts that are owed to others. This act also applies to attorney collectors but in-house collections are not covered.

If the collection department from your favorite store is contacting you regarding your credit card with them, they are not restricted by the FDCPA, but they are governed by the Florida Consumer Collection Practices Act. However, if that same store used an outside collection agency, that agency is governed by the FDCPA.

Some restrictions that the FDCPA puts on debt collectors are:

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Published on: February 3, 2011

Foreclosure Mediation Program Ramping Up but Helping Few

By David M. Goldman

The Tampa Florida Tribune has posted an interesting article about the actual effects of the early stages of the statewide, mandatory foreclosure mediation program. According to statistics compiled by the Tribune, between March and June 2010 there were 13,417 cases referred to mediation statewide. Of those cases only 1%, 768 total, resulted in an agreement between the borrower and the lender!

The primary question many are asking is why is the program not working as intended. While there are several factors that may be contributing to the low success rate of the program, most mediation administrators are point to the sloppiness of the lenders attorneys’ and their process servers as the most obvious reasons for the breakdown of the program. The sloppy paperwork has made it difficult to locate borrowers in order to determine their desire to participate in the mediation program, which is problematic because the mediation program must contact the borrowers within 60 days of the lawsuit being filed or the case goes back to regular court proceedings.

While only 7 of the 20 Florida Circuit Courts submitted data for the Tribune report, there is enough data to determine that there are major flaws in the program. Foreclosure Defense Lawyers think that mediation is a good alternative for many struggling homeowners and hopes the trend reverses. If you are facing a Florida Foreclosure Lawsuit contact us to discuss how foreclosure defense or a bankruptcy may help you.

Published on: December 20, 2010

Stripping my second mortgage in a Bankruptcy?

By David M. Goldman

In many cases the answer to this question is yes. Often times homeowners find themselves “underwater” in the home and are afraid that if they surrender their home in satisfaction of their first mortgage their second mortgage lender will pursue a deficiency against them or they will file a form 1099(c) creating tax liabilities for the amount of the second mortgage.

One of the most effective ways a Jacksonville Foreclosure Lawyer has found to prevent that from happening is for a homeowner to file a chapter 13 bankruptcy surrendering the house in full satisfaction of the first and second mortgage before the house if foreclosed on. By doing this, the homeowner prevents the holder of a second mortgage company from filing a deficiency claims because the house has not yet been sold and the funds dispersed. This method is especially effective for those homeowners who have little other debt and are looking to protect assets.

If you are facing a Florida Foreclosure Lawsuit and are considering your foreclosure alternatives, contact a Jacksonville Bankruptcy Lawyer today for a review of your case and explore what alternatives may be available to you.