Exempt Assets

Published on: August 16, 2011

Will I Have To Give Up My Child’s Car In My Bankruptcy?

A lot of people give their 16 and 17-year old children cars to drive. But in Florida, a minor child cannot own property. So the car must be titled in the parents’ name. If this is the case, this asset might be unexempt property, or at risk of being taken to pay your creditors. However, a recent case from the Southern Division of Florida clarified how one could keep this from happening. The court said that the parent could own a car as trustee for the minor child and keep this asset away from creditors in a bankruptcy. To find out how to hold the car in trust for the child, or for any other bankruptcy questions, contact an Jacksonville bankruptcy attorney now to discuss your situation.

Published on: August 15, 2011

Will I lose My Child Support if I File For Bankruptcy?

By David M. Goldman

No, your will not lose any rights to your child support by filing for bankruptcy. You must disclose in your bankruptcy how much child support you receive. However, this child support is exempt from being taken to in order to pay your creditors (meaning it is exempt property) for any amount reasonably necessary to help support your children.

The child support that you receive is considered income for purposes of the means test. The means test is the mechanism used to determine if you qualify for a Chapter 7 bankruptcy. (If you do not qualify for a 7, you can always file for Chapter 13 bankruptcy if you meet the debt ceiling to do so.)

To find out more about child support in bankruptcy, contact a Jacksonville bankruptcy attorney today. We do free consultations, just give us a call at 904-685-1200 to schedule yours today!

Published on: August 2, 2011

Florida Bankrupcty Lawyer: Can I sell my Assets Prior to Filing Bankruptcy?

By David M. Goldman

For example, what if someone thinking about bankruptcy has stock. Can he or she sell that stock before filing bankruptcy and put the money in something else? Generally, if you file bankruptcy, the Court will ask you about your sales of assets in the months prior to filing. They will attempt to see if you have made any fraudulent sales or transfers in an attempt to avoid paying a creditor, during this time and they mainly check to see if you received fair market value for your assets. So, if you sell your stock, you will need to disclose that sale and will need to list the proceeds as an asset.

Further, the court may view your sale as fraudulent in certain circumstances. For example, in Florida there exists an exemption under bankruptcy plans for your homestead. In other words, creditors cannot use the equity in your home to satisfy debts. However, if you have a second home, creditors may use the equity therein to satisfy your debts. Thus the question arises: what if you sell your second home and use the proceeds to pay some (or all) of your mortgage on your primary home?

The 2005 Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCA) largely prevents these practices. The statute now says you might lose your ability to discharge debts if you transfer property solely to hinder, delay or defraud creditors. Courts are left to determine what constitutes hindrance, delay, or fraud, so lawyers are cautious in encouraging such practices. If you are thinking about filing bankruptcy, contact a Ponte Vedra Beach Bankruptcy Attorney at 904-685-1200 to discuss your options.

Published on: July 30, 2011

Can a Creditor Freeze My Account?

By David M. Goldman

Yes, a creditor can freeze or take money out of your bank account if they have a judgment against you from the court. (If your delinquent debt is for unpaid taxes or child support, sometimes the creditor can take out money from your bank account without a judgment.) If you have a joint account and the other person on your account has the judgment, the creditor can also seize the funds from your account. It is up to you to prove at a hearing that these funds taken from the account are yours, and not the joint account holders. A Jacksonville attorney can help you do this properly.

A creditor can take this money from your account with no warning in most cases. They must notify you in writing the next day that they have taken the money, but by that time the damage is already done. Your bank must also notify you after the funds are taken.

A Jacksonville consumer law attorney can quite possibly get this money back for you, however. Oftentimes certain money is exempt from the creditor’s grasp, but you must have a hearing to prove it. Social security income and veterans benefits income are exempt from being taken. Also, certain retirement income and disability income are exempt. There is other exempt monies as well. Contact our Jacksonville lawyer today to see if the money taken from your account is exempt and learn how our legal team can help you get it back.

Published on: July 25, 2011

Florida Bankrupcty and Homestead Exemptions

By David M. Goldman

A Florida homestead exemption dictates how much of the equity in your home you may keep away from creditors. This means that any equity you have above that amount must be paid to creditors. The federal homestead exemption amount is $21,165.00. The Florida homestead exemption amount is unlimited under certain circumstances. This means that in Florida, you can have any amount of equity in your home and your creditors cannot take it. This is great news for those in the Jacksonville area who are overwhelmed by their debt and are needing to file for bankruptcy. Contact a Orange Park bankruptcy attorney today to discuss how to keep your home by filing for bankruptcy.

Published on: July 24, 2011

Jacksonville Bankrupcty Lawyer: Are There State Law Exemptions in Bankruptcies?

By David M. Goldman

Exemptions dictate what property of yours that you may keep when you file bankruptcy. Most people are surprised to learn that in most cases, the exemptions used in bankruptcy come from state law, not federal law. This is because states are allowed to opt-out of federal law exemptions and make up their own. Florida has done this. There are residency requirements however, to be able to use Florida’s exemptions. Just because you are a resident of Florida when you file for bankruptcy does not mean that you can use Florida’s exemptions. The law dictates that your bankruptcy exemptions are determined by the state in which you have been domiciled for the 730 days prior to filing your case. If you have lived in multiple states during this time, figuring out what state’s exemption laws apply to you can be tricky. A Jacksonville bankruptcy attorney will be able to help do this correctly. If you do not get your exemptions right, the trustee will object in your case.

Published on: July 1, 2011

Are IRAs protected in Bankruptcy?

By David M. Goldman

As you’re probably aware, an Individual Retirement Account, or IRA, is a type of savings account primarily used in preparing for retirement. Monetary contributions to traditional IRAs are tax-deductible, making them an attractive option for retirement.

As with most assets, IRAs are transferable to a named beneficiary upon death. When transferred, the IRA is referred to as an inherited Individual Retirement Account.

In bankruptcy, traditional IRAs are considered exempt under Florida law. This means that any assets you have in an IRA cannot be touched by your creditors. (As a caveat, you can typically contribute $5000 to $6000 per year to your IRA, depending on your age. So, you can’t put all your assets into an IRA and then declare bankruptcy.) Under the old version of Florida law, only traditional IRAs were considered exempt; creditors could, in fact, go after inherited IRAs.

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Published on: June 3, 2011

A Creditor Has Put a Lien On My Homestead. Should I File Bankruptcy?

By David M. Goldman

According to Florida Statute 222, there are only 3 reasons that a lien can be put on your homestead: 1. a mortgage 2. unpaid taxes 3. a contractor’s lien (you contracted for work to be done on your homestead and did not pay). Although this is the law, very often a creditor may put an improper lien on your homestead. To remove the lien, simply file and record a Notice of Homestead with the circuit court in the county in which the property is located. The Notice of Homestead you should use is listed in Florida Statute 222.01. The clerk will mail the Notice to the creditor via certified mail. After 45 days, the lien will disappear.

Although this process removes the lien from your homestead, it does not dissolve your liability to pay the debt so a bankruptcy might still be in your best interest. Speak with a Jacksonville bankruptcy attorney today to assess your specific situation.