Bankruptcy Questions

Bankruptcy Attorney

Frequently Asked Bankruptcy Questions

Florida Bankruptcy Attorney, Mark Martella, Esq, offers Free Confidential Bankruptcy Consultations in Fort Myers, Cape Coral, Punta Gorda & Port Charlotte, FL.

We answer questions about Bankruptcy and Chapter 7 & 13. Call us today to schedule your FREE consultation 941-206-3700.

Who can file bankruptcy?

Any person residing, domiciled, or having property or a place of business in the United States may file Chapter 7. A business may also file a Chapter 7.

The new bankruptcy law includes a “means test” which applies an income vs. expense test in order to file Chapter 7 bankruptcy.

There are currently no minimum or maximum income limits or other income requirements or limitations for people whose unsecured debts are primarily non-consumer debts such as investment liability, business losses, taxes, or student loans.

What is a Chapter 7 bankruptcy?

Chapter 7 bankruptcy is the most common type of bankruptcy and is often referred to as a “liquidation bankruptcy.”

In Chapter 7, all of the debtor’s assets, other than those types of assets specifically exempt from liquidation by statute, are turned over to a bankruptcy trustee for sale.

Sale proceeds, if any, are distributed among the creditors. Most Florida Chapter 7 debtors have little non-exempt personal property because of Florida’s liberal exemption laws.

Chapter 7 bankruptcy is used to eliminate, or discharge, primarily unsecured debts such as credit cards or medical bills. Chapter 7 does not eliminate secured debts, such as vehicles (unless the secured item is surrendered).

Chapter 7 will not save a house from foreclosure or a car from repossession if you are delinquent in payments.

Under the new bankruptcy law, only people who pass the “means test” may file a Chapter 7 bankruptcy. People who fail the means test have to file Chapter 13 bankruptcy.

The means test is a complicated mathematical formula. Your bankruptcy attorney can run a means test using bankruptcy software after he collects necessary information from you.

What is a Chapter 13 bankruptcy?

Chapter 13 bankruptcy results in a plan to repay all or part of your debt, but it is not designed to discharge or eliminate most debts.

Chapter 13 is used most often to save a house from a foreclosure sale.

Chapter 13 is also useful to eliminate some IRS debt and to establish an affordable plan to pay IRS debt that cannot be eliminated.

Chapter 13 bankruptcy is available to debtors with regular income.

A business cannot file Chapter 13. In addition, there are upper limits on the amount of the individual’s secured and unsecured debts in Chapter 13 cases.

Can married people file bankruptcy jointly?

Married debtors can file a joint bankruptcy petition for a single filing fee, and most attorneys charge the same legal fee for joint cases as they do for individual cases. Married couples who are jointly liable on most debts should file a joint bankruptcy.

On the other hand, if only one spouse is liable on most of the debts, the indebted spouse may file an individual bankruptcy, and in most cases, the individual debtor’s bankruptcy will have no adverse effect on the non-filing spouse.

Do I need an attorney to file bankruptcy?

Bankruptcy law does not require that you hire an attorney to prepare a bankruptcy petition or to represent you in your bankruptcy case. If you enjoy doing things yourself, or if you really cannot afford an attorney, you can find forms on the internet needed to file your own petition.

However, bankruptcy is a complicated area of the law, and the bankruptcy law gives no special treatment to debtors who file their own petition. The new bankruptcy law makes filing bankruptcy substantially more complicated and the practice of bankruptcy law is therefore more specialized.

I strongly believe that the financial risk of filing your bankruptcy incorrectly under the new bankruptcy law is much greater than the amount of a reasonable fee paid to a bankruptcy attorney.

Do have to take a credit counseling course before I file bankruptcy?

The new bankruptcy law requires all debtors to fulfill two education requirements: a credit counseling course prior to filing and a debtor education course before obtaining a discharge. Failure to complete either of these courses and file the appropriate certificates with the court will prevent a successful bankruptcy.

The Chapter 13 Trustee will offer the required courses to Chapter 13 debtors, but Chapter 7 debtors are required to take the courses on their own. All bankruptcy education courses are available in person, by phone, or over the internet and are approved for the district in which you are filing

Can I keep my home and car after I file bankruptcy?

You will not lose your car during your bankruptcy case as long as your equity in the property is fully exempt. Even if your property is not fully exempt you may still be able to keep your property by filing a chapter 13 bankruptcy instead of a chapter 7 bankruptcy.

In a chapter 13 plan you will be required to pay at least the equivalent of the non-exempt equity you have in your home or car and any amount you are behind on your home or car loan over the course of the three to five plan. You also will be required to continue making the regular monthly payments.

Under the Florida Constitution, your homestead is protected from creditors. Therefore, as long as you can continue to make your mortgage payments, you can keep your home.