Jacksonville Bankruptcy Lawyer Blog

Published on: September 12, 2014

Foreclosure: Short Sale

If you are behind on your mortgage payments, and think you can no longer afford your home or are simply ready to walk away and start over, a Short Sale might be a good option for you. A Short Sale is when you sell your home for the highest value possible notwithstanding that the proceeds from the sale will be less than your outstanding mortgage balance. The biggest short fall of a Short Sale is that you remain liable for the deficiency, which is the difference between the proceeds from the sale and your mortgage balance. However, in many Short Sale negotiations, this deficiency can be negotiated away. Thus, leaving you without any further liability for the home or mortgage.

The Short Sale Process is simple and is as follows:

– Begin the Short Sale process by hiring a realtor to list the property for sale as a Short Sale. Make sure the realtor you choose is familiar with the Short Sale process.

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Published on: September 10, 2014

Can an Automatic Stay through Bankruptcy Stop the Eviction Process?

By Kendal Schoepfer

Tenants who are facing eviction may be able to continue living in their rental property longer and prevent eviction by filing a Chapter 7 bankruptcy. This depends on whether the landlord has already obtained a judgment for possession of the premises.

The act of filing bankruptcy enables the court to enact an automatic stay. The automatic stay goes into effect immediately upon filing, and prevents creditors from contacting the debtor or continuing their collection process. However, there are exceptions where a landlord can still evict a tenant.

In 2005, bankruptcy law was revised to add the Bankruptcy Abuse Prevention Consumer Protection Act to give landlords more power to evict tenants who file for bankruptcy. Before, if a tenant filed bankruptcy, the tenant would be granted an automatic stay even if there was already a judgment for possession. Under today’s bankruptcy law, when a judgment for possession is issued before a tenant files bankruptcy, the landlord does not have to comply with the automatic stay and may continue the eviction process. Another exception to the automatic stay rule is when a tenant is being evicted for endangering the property or using illegal substances on the rental property.

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Published on: September 8, 2014

Can Homeowner Association (HOA) fees be discharged through bankruptcy?

By Kendal Schoepfer

Debtors who file for Chapter 7 bankruptcy and owe HOA fees may be able to wipe out these debts. Filing a Chapter 7 bankruptcy is usually a good option if the debtor wishes to give up their home. However, it is important to remember that HOA fees that accrue after filing for bankruptcy cannot be discharged.

A debtor who files a Chapter 7 bankruptcy is required to sign a statement of intention regarding secured debts. This form tells the court and trustee whether the debtor wishes to retain or surrender their property. Debtors who can no longer afford their homes often choose to surrender their property through a Chapter 7 bankruptcy. Through a Chapter 7 bankruptcy, a debtor may be able to discharge all the debts associated with their home, including any homeowner’s fees.

There are a few options for debtors who acquire HOA fees after filing a chapter 7 bankruptcy. One possible solution might include contacting the HOA directly to negotiate a settlement or agreeing to let the association take the property. We recommend contacting an experienced bankruptcy attorney before taking any action.

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Published on: September 5, 2014

Foreclosure: Deficiency Judgment After Foreclosure

By Kendal Schoepfer

Thumbnail image for repossession.jpg When a mortgage lender forecloses on a home, the total debt owed by the borrower to the lender often exceeds the foreclosure sale price. The difference between the sales price and the total debt of the borrower is called a deficiency.

In many states, a mortgage lender can receive a personal judgment against the borrower to recover the deficiency owed. Once the lender receives a judgment on a deficiency, the lender can collect the amount from the borrower by levying the borrower’s bank account or garnishing the borrower’s wages.

In some states the mortgage lender can foreclose without going to court. In Florida, foreclosures are judicial, which means the lender must petition for foreclosure through state court. Lenders in Florida may obtain a deficiency judgment as part of the foreclosure action if the borrower was personally served with the foreclosure complaint. The lender may also file a separate lawsuit against the borrower for a deficiency, unless the court in the foreclosure action has granted or denied a claim for a deficiency judgment.

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Published on: June 25, 2014

Bankruptcy Law: What is the difference between a Chapter 7 and Chapter 13 bankruptcy?

By David M. Goldman

Bankruptcy laws help U.S. Citizens who can no longer pay their creditors pay their debts by liquidating their assets or creating a repayment plan. Most bankruptcies filed in the United States are either a Chapter 7 or Chapter 13. In order to decide which bankruptcy to file, the choice often depends on a client’s income, debts, assets, and financial goals.

Chapter 7 Bankruptcy

The most common bankruptcy filed is a Chapter 7. Those who are allowed to file a Chapter 7 bankruptcy include companies, married couples, and individuals. A Chapter 7 bankruptcy is designed to wipe out a person’s unsecured debt, such as credit cards and medical bills.

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Published on: June 24, 2014

Bankruptcy and Creditor Harassment during and after filing Bankruptcy

By David M. Goldman

People who are in debt are likely use to receiving constant phone calls and mailings from creditors. However, once a person files for bankruptcy this constant contact should come to a halt. If you still receive phone calls and mails from a creditor this, may be a form of harassment and you have certain rights.

Under U.S. Law, when a debtor files for bankruptcy one benefit he or she receives is creditors must stop all collection efforts against the debtor. Creditors who try to collect a debt during a bankruptcy or after a discharge is in violation of Federal bankruptcy law. When a bankruptcy is filed, an automatic stay prevents most creditors from continuing collection actions against a debtor. A debtor who continues to be contacted by a creditor, should contact their attorney’s office so the attorney can warn the creditor of a potential violation of the debtor’s automatic stay. The debtor should keep the mailing received or make a record of the phone call.

If the creditor continues to send notice of the debt to the debtor after being warned, the creditor can be dragged in front of a bankruptcy judge. This form of harassment is illegal, and no judge will be happy a creditor continued to contact a debtor after being notified of a bankruptcy filing. A judge will often order the creditor directly to stop.

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Published on: June 23, 2014

Bankruptcy Law: Can a Payday loan be discharged in Bankruptcy?

By David M. Goldman

Payday loans are small, short-term, unsecured loans often known as cash advances. These loans usually rely on the consumer having previous payroll and employment records. Payday loans are risky. The default rate on these loans has been reported to be as high as 10-20 due to high interest rates. In most cases, debtors can discharge payday loans through a Chapter 7 bankruptcy, or a portion of the debt through Chapter 13.

Before a debtor files for bankruptcy due to a payday loan, he or she should ensure the loan came from a Florida Licensed lender. In Florida, there are a number of restrictions on these loans that include not lending more than $500, and not lending to a person who already possesses an outstanding payday loan. State statutes limit the fees charged on a payday loan to 10% of the total loan amount. This is the interest rate for the specific loan term, not an annual interest rate. If the borrower cannot pay back the payday lender, the lender is limited to demanding the original amount lent plus the 10% fee, simple costs, and any bad check fees imposed by the bank. The lender cannot charge the borrower any other costs unless a court rules otherwise.

Payday lenders may be able to successfully object to a borrower’s payday loan being discharged in a Chapter 7 bankruptcy under certain circumstances. This usually happens if the borrower received a loan from the payday lender within 70-90 days prior to filing their bankruptcy. The lender may argue to the court the borrower took the loan with no intention of paying it back.

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Published on: May 9, 2013

Dischargeability of Student Loans in Bankruptcy

By Michael Duggar

“The most terrifying words in the English language are: I’m from the government and I’m here to help.” Ronald Reagan.

May 5, 1999, a day to be remembered. Why you ask? Well that was the day that Congress debated for three minutes and passed an amendment, offered by then Congressman and now Senator Lindsay Graham, which made privately-funded student loans non-dischargeable under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005.

Continue reading to find out why there may be a possiblity to discharge your Student Loans in Bankruptcy

Student loans comprise the greatest amount of consumer debt in the United States, recently surpassing credit card debt. With the most recent recession and a stagnant job market, college graduates are suffering from the burden of overwhelming monthly loan payments on their staggering student loan debt.

HISTORY
The federal government meant well when it created student loan programs. The goal was to afford every child an opportunity to attend college. The loans were created to bridge the gap between student grant monies and the cost(s) of tuition, books and board.
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Published on: April 8, 2013

Jacksonville Pro Bono Bankruptcy: Do they exist?

By David M. Goldman

THE SHRINKING WORLD OF PRO BONO BANKRUPTCY SERVICES

With the ever-changing funding from Florida and the federal government, Legal Services organizations who provide free legal services for the nation’s poor are being subjected to annual budget cutting and lay-offs. As a result, the numbers of individuals receiving these pro bono services continues to shrink on an annual basis. However, the needs of the poor have not shrunk and citizens filing cases on their own, or pro se, have risen sharply. Along with the budgetary restrictions and cuts, Legal Services Organizations (LSOs) have had to narrow the scope of those who qualify for free legal services. This has created a larger class who cannot afford traditional legal services, namely those who make too much money to qualify for free legal services, but not enough money to afford being able to hire an attorney to meet their needs.

I have had the privilege over the years to work with LSOs to offer free consultations with an attorney to discuss their financial problems. Within the monthly clinics, I have reviewed their finances and warned them of the consequences of failing to take some action to correct these problems. Within the Federal Bankruptcy Court, I have served in the capacity of helping pro se clients review reaffirmation agreements to make sure their best interest was being served. Pro bono needs are yet still great.

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Published on: November 5, 2012

What can Bankruptcy do for me?

By David M. Goldman

As a Jacksonville Bankruptcy Attorney I am always being asked numerous questions about Florida Bankruptcies and their effect on individuals you file. Although individual results will vary, I strongly encourage you if you are considering Bankruptcy to consult with a local Jacksonville Bankruptcy Attorney. With that being said, here is a list of the 5 most common benefits applicable to most of my clients when filing a Florida Bankruptcy.

Gives you a “Fresh Start.” This means you liability for your dischargeable will be eliminated.
Will stop Foreclosure proceedings or allow you time to catch up on past due payments.

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